Jones v. Flagstaff Unified School District et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Holly Beth Jones,
Plaintiff,
v.
Flagstaff Unified School District, et al.,
Defendants.
No. CV-22-08102-PCT-DLR
ORDER
In this lawsuit, Plaintiff Holly Jones accused her former employer, Defendant
Flagstaff Unified School District (“the District”) of disability-based discrimination and
retaliation. (Doc. 11.) After the close of discovery, the District moved for summary
judgment on all claims (Doc. 209), which the Court granted (Doc. 272).
Now pending are three motions: (1) Ms. Jones’s motion under Federal Rule of Civil
Procedure 59(e) to alter or amend the judgment (Doc. 292), (2) Ms. Jones’s motion under
Federal Rule of Civil Procedure 60(b) for relief from the final judgment (Doc. 295), and
(3) the District’s motion for an award of attorney fees (Doc. 277). These motions are fully
briefed (Docs. 285, 290, 298, 300, 302, 303). For reasons explained below, all three
motions are denied.
I. Rule 59(e)
A motion to alter or amend the judgment under Rule 59(e) is, at bottom, a motion
for reconsideration. Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the
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interests of finality and conservation of judicial resources.” Kona Enter., Inc. v. Est. of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). Reconsideration is appropriate
only if the court is presented with newly discovered evidence, if there is an intervening
change in controlling law, or if the court committed clear error. McDowell v. Calderon,
197 F.3d 1253, 1255 (9th Cir. 1999). A motion for reconsideration is not a forum for the
moving party to make new arguments not raised in its original briefs, Nw. Acceptance
Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988), nor to ask the court
to “rethink what the court ha[s] already thought through,” United States v. Rezzonico, 32
F.Supp.2d 1112, 1116 (D. Ariz. 1998).
Ms. Jones argues that the Court’s order granting summary judgment for the District
should be vacated for three reasons: (1) allegedly newly discovered evidence precludes
summary judgment, (2) “multiple issues of fact” exist, and (3) the District’s summary
judgment motion relied, in part, on “inapplicable law.” (Doc. 292.) The Court addresses
each argument in turn.
A. Newly discovered evidence
To obtain relief based on newly discovered evidence, the moving party must show
(1) that the evidence existed at the time the Court entered its judgment, (2) it was not
discoverable sooner in the exercise of due diligence, and (3) the evidence is of such
magnitude that, had it been produced earlier, it likely would have changed the outcome.
See Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987).
In her motion, Ms. Jones includes a list of various assertions that she believes would
prove true at trial. (Doc. 292 at 4-9.) However, the only evidence that Ms. Jones presents
to the Court is a Forensic Psychological Evaluation report completed by Dr. David J.
McIntyre.1 (Doc. 295-1.) The report indicates that Ms. Jones engaged Dr. McIntyre for a
forensic psychological evaluation to determine whether her ADHD might have impaired
her ability to regulate her workplace behavior, contributing to her termination for policy
1 Ms. Jones submitted this report as an exhibit to her Rule 60(b) motion (Doc. 295),
not with her Rule 59(e) motion. However, her Rule 59(e) motion refers to this report as
newly discovered evidence (Doc. 292 at 9.) The Court therefore considers the report in its
analysis of both motions.
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violations. (Id. at 1.) Dr. McIntyre conducted a clinical interview with Ms. Jones and
reviewed her medical records, records related to her employment with and discipline by
the District, and records from this case, including discovery materials, the summary
judgment briefing, and this Court’s order granting summary judgement for the district. (Id.
at 1-2.) Dr. McIntyre opines that Ms. Jones’s ADHD “substantially impaired her ability to
conform her behavior to workplace expectations.” (Id. at 6.)
Dr. McIntyre’s report cannot support vacating the summary judgment in favor of
the District because Ms. Jones has not shown that this evidence could not have been
obtained sooner with due diligence. Ms. Jones filed this case in June 2022. (Doc. 1.) The
Court set a fact discovery deadline of March 1, 2024, and an expert disclosure deadline of
April 1, 2024.2 (Doc. 73.) During this time, Ms. Jones had ample opportunity to use normal
discovery processes to develop evidence supporting her theory that her ADHD caused her
workplace misconduct. For example, to support her response in opposition to the District’s
summary judgment motion, Ms. Jones relied on a letter from her psychologist, Dr. Della
Lusk, in which Dr. Lusk stated that Ms. Jones’s impulsivity is consistent with ADHD.
(Doc. 272 at 14-15.) Relying on Alamillo v. BNSF Railway Co., 869 F.3d 916 (9th Cir.
2017) and Adams v. County of Maricopa, No. 20-17299, 2022 WL 42472 (9th Cir. 2022),
the Court found that Dr. Lusk’s letter was insufficient to create a genuine issue of material
fact. (Id. at 15.) But nothing prevented Ms. Jones from using ordinary discovery processes
to depose Dr. Lusk or to obtain a more detailed opinion from her before the dispositive
motions deadline. And more to the point, nothing prevented Ms. Jones from engaging Dr.
McIntyre to perform a forensic psychological evaluation during the ordinary discovery
process. Had she done so, the District would have had an opportunity to address this
evidence in its summary judgment motion, and the Court could have considered it in ruling
on that motion.
Instead, Ms. Jones waited over a month after the Court issued its summary judgment
order before engaging Dr. McIntyre in an effort to cure the evidentiary deficiencies that the
2 The fact discovery deadline later was extended to the end of May 2024 for the
limited purpose of permitting Ms. Jones to complete certain depositions. (Doc. 160.)
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Court had identified.3 She fails to persuasively explain what efforts (if any) she made
during the ordinary discovery process to obtain this sort of evidence and why it could not,
with reasonable diligence, have been obtained prior to the dispositive motions deadline.
See Phillips v. City of Fairfield, No. CIVS040377FCD PAN, 2006 WL 335472, at *3 (E.D
Cal. Feb. 10, 2006) (denying motion for reconsideration where the plaintiff “proffer[ed] no
reason why the expert could not have prepared the declaration submitted with the current
motion as evidence in opposition to defendants’ motion for summary judgment”). What’s
more, aside from the summary judgment briefing and this Court’s order granting summary
judgment, all the records reviewed by Dr. McIntyre were available to Ms. Jones prior to
dispositive motions practice. Dr. McIntyre’s professional opinion therefore “is not truly
newly-discovered,” Id. at *2, because he could have offered it within the discovery
deadline had Ms. Jones been diligent in engaging him.
Rather, what appears to have happened here is Ms. Jones did not diligently develop
her evidence during discovery. The District successfully obtained a summary judgment due
to the evidentiary shortfalls in Ms. Jones’s case. And only then did Ms. Jones make efforts
to obtain evidence that would have supported her theory of the case. Under these
circumstances, the Court cannot find that Dr. McIntyre’s forensic psychological evaluation
is newly discovered evidence within the meaning of Rule 59(e).
B. Issues of fact
Next, Ms. Jones lists what she perceives to be various issues of material fact
precluding summary judgment. (Doc. 292 at 9-12.) This list does not warrant
reconsideration for two reasons.
First, many of the arguments Ms. Jones makes in this section of her brief were
already presented to the Court in the original summary judgment briefing. For example,
Ms. Jones argues that Tari Popham’s deposition testimony differed from her testimony at
Ms. Jones’s due process hearing (Doc. 292 at 10-11), that several witnesses claimed not to
3 Dr. McIntyre’s report indicates that the date of his evaluation was May 8, 2025
(Doc. 295-1 at 1) but also states that he conducted in-person testing of Ms. Jones on May
9, 2025 (Id. at 2).
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recall certain information during their depositions (Id. at 11), and that Ms. Jones received
positive performance evaluations while employed by the District (Id. at 12). Ms. Jones
made these same arguments in her response in opposition to the District’s summary
judgment motion. (Doc. 261 at 6-15.) Ultimately, the Court did not find these arguments
sufficient to avoid summary judgment. Ms. Jones might disagree with that ruling, but mere
disagreement with the Court’s decision is not a sufficient basis for obtaining Rule 59(e)
relief.
Second, the remaining arguments Ms. Jones makes in this section of her brief merely
reflect arguments or issues that Ms. Jones could have raised in her response in opposition
to the District’s motion for summary judgment. But “Rule 59(e) does not allow courts to
consider new arguments or evidence that the moving party could have raised prior to the
entry of judgment,” Delu v. Comm’r of Soc. Sec. Admin., No. CV-21-01849-PHX-DLR,
2024 WL 69638, at *1 (D. Ariz. Jan. 4, 2024), and Ms. Jones fails to offer a persuasive
explanation for why she could not have presented these arguments in her original
opposition brief. Nor has she shown that these arguments, if made, would have changed
the outcome.
C. The District’s legal authorities
Lastly, Ms. Jones faults the District for relying on “inapplicable law” in its summary
judgment briefing. (Doc 292 at 13-15.) The Court previously noted the issues with some
of the District’s legal authorities. (Doc. 272 at 13-14.) The Court ordered (Id. at 17) and
subsequently obtained (Doc. 278) an adequate explanation from the District. But the Court
did not rely on any of this “inapplicable law” in reaching its decision. This is no basis for
Rule 59(e) relief.
D. Conclusion
Ms. Jones’s Rule 59(e) motion is denied because it relies on arguments that either
were or could have been presented to the Court prior the entry of judgment, and on evidence
that could have been obtained during the ordinary course of discovery with the exercise of
reasonable diligence.
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II. Rule 60(b)
The Court may grant a motion for relief from judgment under Rule 60(b) only upon
a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence;
(3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) extraordinary
circumstances which would justify relief. Fed. R. Civ. P. 60(b); Allmerica Fin. Life Ins. &
Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997). Ms. Jones’s Rule 60(b) motion
is predicated on Dr. McIntyre’s report, which she contends is newly discovered evidence.
(Doc. 295.) Under Rule 60(b)(2) the movant must present “newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new trial.”
For reasons already discussed, Dr. McIntyre’s report is not newly discovered evidence
because Ms. Jones could have engaged Dr. McIntyre for a forensic psychological
evaluation prior to the entry of judgment with the exercise of reasonable diligence. Her
Rule 60(b) motion therefore is denied for substantially the same reasons the Court denies
her Rule 59(e) motion.
III. Attorney Fees
The District moves for an award of $309,352.50 in attorney fees. (Doc. 277.) Ms.
Jones asserted claims against the District under the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act. (Doc. 272 at 6.) These acts grant the Court discretion to
award the prevailing party its attorney fees. See 42 U.S.C. § 12205 (ADA); 29 U.S.C. §
794(a) (Rehabilitation Act). “However, attorney’s fees should be granted to a defendant in
a civil rights action only ‘upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation.’” Summers v. Teichert & Son, Inc., 127 F.3d 1150,
1154 (9th Cir. 1997) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978)). “[A] prevailing defendant should be permitted such fees, not routinely, not simply
because he succeeds, but only where the action brought is found to be unreasonable,
frivolous, meritless or vexatious.” Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir.
1976).
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Given this high bar, the Court does not find fee-shifting appropriate in this case. Ms.
Jones’s fundamental theory—namely, that she was terminated instead of accommodated
for workplace misbehavior caused by her ADHD—was not unreasonable or frivolous. The
Court ultimately concluded that Ms. Jones had not proffered sufficient evidence that her
misbehavior was caused by her ADHD to defeat summary judgment. But an unsuccessful
claim is not the same as an unreasonable or frivolous one. The District’s motion for attorney
fees is denied.
IT IS ORDERED that Ms. Jones’s motion to alter or amend the judgment (Doc.
292), Ms. Jones’s motion for relief from the judgment (Doc. 295), and the District’s motion
for attorney fees (Doc. 277) are DENIED.
Dated this 26th day of March, 2026.
Douglas L. Rayes
Senior United States District Judge
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