Case: 20-20376 Document: 00515953480 Page: 1 Date Filed: 07/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 27, 2021
No. 20-20376 Lyle W. Cayce
Clerk
Tracy Drake,
Plaintiff—Appellant,
versus
Spring Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2912
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Tracy Drake sued her former employer for alleged discrimination in
violation of the Americans with Disabilities Act. The district court entered
summary judgment for her employer, Spring Independent School District.
Finding no error, we affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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I.
Tracy Drake joined Spring Independent School District (“Spring
ISD”) at the start of the 2008–09 school year as a Career and Technical
Education (“CTE”) teacher at Dueitt Middle School. 1 After teaching for
several years, Spring ISD hired Drake as Dueitt’s registrar for the 2013–14
school year. According to Drake, the job description contained only registrar
duties. But after she began to work as the registrar, she alleges that Spring
ISD required her to perform the additional duties of an attendance clerk,
essentially doing two jobs while being paid for one.
In 2014, after Drake’s first year as the registrar, her supervisors gave
her an unsatisfactory performance review. In April 2014, Drake filed an
internal grievance complaining about “the unreasonable amount of
additional duties,” “lack of support from her administration,” and
unprofessional treatment from the school’s assistant principal. One thing
(relevant to this lawsuit) that the grievance did not mention was Drake’s
physical health, aside from an assertion that the extra duties and poor
treatment “caused her considerable stress.” To the contrary, Drake’s focus
was the harm to her professional reputation within the district and to her
future employment prospects.
By the summer, Drake and Spring ISD entered into a settlement
agreement resolving the grievance. So, Drake returned as Dueitt’s registrar.
But in April 2015, Drake suffered a setback when her ulcerative colitis flared
up and prevented her from working. After consulting her gastroenterologist,
Drake requested leave under the Family and Medical Leave Act (“FMLA”).
1 Drake has a master’s degree in education and a bachelor’s degree in business
management. She has twenty-one years of experience in education, including a term as
summer school principal.
2
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Initially, Spring ISD granted Drake one month of FMLA leave from April 27
to May 26. But on May 22, Drake’s doctor wrote that she needed “at least”
one more month off work. And on June 2, the doctor wrote another note
recommending that Drake be off work for “at least” three months, subject to
reevaluation on July 28. Spring ISD granted Drake 90 days of temporary
medical leave in total, from April 27 to July 26.
Along with that approval, Spring ISD notified Drake of its policy
governing temporary medical leave, including that “[t]he length of the leave
may not exceed 90 calendar days including weekends and vacation days,”
that “[i]f the staff member has not been released by his/her physician by the
end of the leave, the staff member can either resign or be terminated from
their position,” and that “[p]rincipals may post and fill the vacant position if
it is in the best interest of the District to do so, even prior to the end of the
ninety days.”
On July 13, 2015, Spring ISD sent Drake a letter entitled,
“Notification that leave time is expiring.” In the letter, Spring ISD reminded
Drake that her leave would expire on July 26. And it asked her to return an
attached form by that date. The form offered three options: (1) certification
of a doctor’s release to return to work; (2) acknowledgment that her doctor
had not released her for active duty and that “all district benefits will stop
and I will no longer be employed by” Spring ISD; or (3) election not to return
to work despite her doctor’s release.
Drake never returned the form. But a few days before the end of her
leave, on July 23, she spoke with a Spring ISD employee named Brenda
Dorado about requesting additional temporary leave. On July 27, Drake sent
Dorado and her boss, Pamela David, another doctor’s note, which said that
she would need to be off work for at least another week and that she had a
follow-up scheduled in a couple days. The next day, Drake sent another
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email to Dorado, asking what documentation she would need to submit for
additional “temporary disability as I do not know when I will be released from
the doctor’s care.” On July 30, Dorado followed up, asking Drake for a
doctor’s letter from her July 29 appointment. Drake sent the note, which
explained that Drake “was scheduled for a Nuclear Medicine scan,
Ultrasound[, and] infusions for her Ulcerative Colitis.” The note concluded
that Drake would be reevaluated after that testing “to determine her ability
to return to [a] normal routine.”
Drake also added in her email to Dorado:
As I previously mentioned, I asked the doctor if I could return
to work on August 10th and he stated possibly as it will be based
on the results of the test. In addition, he stated that it takes
time for the treatments to take affect [sic] and we must diagnose
why I am continuing to have bloody stools and other issues with
my colon and digestive tract. I will contact you after I meet
with the doctor concerning the results of the test.
Dorado responded within a matter of minutes: “Thank you for the
follow up. As you are aware you have exceeded your time on FMLA, which
means your position is no longer protected. I will call you on [August 3] to
discuss the next steps.” Drake emailed Dorado back on August 3 requesting
a follow-up call with Dorado, but it appears the next communication was on
August 5, when Drake called Dorado’s boss, Pamela David. David told
Drake that Spring ISD would be terminating her employment.
After that conversation, Drake emailed David, complaining that
Spring ISD had denied her “request and rights for reasonable
accommodations and temporary disability leave afforded to [her] under [the]
Americans with Disabilities Act,” and asked that Spring ISD reconsider her
requests. On August 10, Spring ISD notified Drake by letter that her
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employment was terminated, effective August 7, 2015, “due to exhaustion of
days for FMLA/TML [Temporary Medical Leave],” and because she had
neither “been cleared to return to work” nor “indicated [a] plan to return.”
Also on August 10, Drake’s doctor sent a note that said Drake would be
reevaluated again in four weeks after her gall bladder was removed.
On August 21, 2015, Drake filed a level one grievance with Spring ISD
to appeal her termination. Drake alleged that Spring ISD did not offer
reasonable accommodations for her disability and had retaliated against her
for her grievance in April 2014. Drake asked for rescission of her termination,
reinstatement to her position at Dueitt or a comparable position “for which
[she was] certified,” and additional leave until she was cleared for return to
duty.
Drake also filed a charge of discrimination and retaliation with the
Texas Workforce Commission Civil Rights Division and the EEOC on
September 3, 2015. Her administrative charge alleged that Spring ISD
violated the ADA by not offering her temporary disability leave and that
Spring ISD should have engaged with her in the interactive process to design
and offer her a reasonable accommodation. She also alleged that Spring
ISD’s actions were done in retaliation for her April 2014 grievance.
Spring ISD held a hearing on Drake’s level one grievance on
September 18. Meanwhile, after Drake’s gall bladder surgery, her doctor
wrote a note on September 22, 2015, saying that Drake could return to work
part-time on October 26, working up to full-time two weeks later. And, while
the outcome of the level one grievance was still unknown, Drake took a
teaching job in nearby Aldine School District in October 2015. 2
2
Drake’s annual salary in Aldine School District was about $69,000.
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On October 30, Spring ISD offered to settle. Spring ISD’s offer
included: rescinding the August 7 termination; providing unpaid leave
retroactively from July 27 through October 31; and rehiring her in a position
comparable to the Dueitt registrar. Spring ISD suggested that the attendance
clerk position was comparable, but also invited Drake to submit her top three
alternatives. The school district emphasized that its proposed vacancies
would “be more flexible in hours and schedules in case Ms. Drake is in need
of additional accommodations.” Regardless, Drake’s attorney declined the
offer the same day, stating that “Ms. Drake is not interested in any of the
positions listed. She has a [m]aster’s degree and is not willing to accept a
paraprofessional position. She also has decided not to resign.” 3
On November 3, Spring ISD issued a level one grievance response,
which mirrored its previous settlement offer. The district granted Drake
retroactive unpaid leave from July 28 through November 6 and offered to
rehire Drake in an open position comparable to her previous role. Noting
that no registrar or teaching positions were available, Spring ISD offered to
hire Drake as an attendance clerk, which Spring ISD again asserted was
comparable to the registrar position. The school district directed Drake to
report to work on November 9 and notified her that it would deem her failure
to do so as a resignation. True enough, when Drake did not report to work
on November 9, Spring ISD considered her resigned.
Drake filed a level two grievance on November 16 and was given a
hearing on January 11, 2016. The district said that it had offered Drake a list
of more than 50 positions to choose from, but that she had declined them all.
Instead, Drake expressed interest in two positions: behavioral specialist and
3
Drake later testified at her deposition that the attendance clerk salary was under
$25,000 annually. For comparison, her registrar salary was over $60,000.
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compliance director. But, according to the district, she was not qualified for
either position. And, in any case, it said that the compliance director position
had already been filled. Spring ISD further explained that it had granted
Drake’s request to be placed in a position comparable to the registrar, but
that she resigned by not reporting to work as an attendance clerk on
November 9, 2015. The school district also granted Drake’s request to
reinstate her health insurance coverage through November 2015, under the
condition that she pay her share of the monthly premiums for the time she
was on unpaid leave.
Finally, Drake filed a level three grievance complaint on February 2,
2016. Around this time, Drake’s attorney and the school district discussed a
CTE teaching role, but Drake refused the position. The Board of Trustees
held a hearing on September 13, 2016, in which Drake participated and was
represented by counsel (as she had been at the level one and two hearings).
Her counsel argued that the dispute came down to the district’s unacceptable
alternative positions. Drake spoke to the Board, emphasizing the financial
costs that she had incurred after losing her position and her medical
insurance. By unanimous vote, the Board affirmed the earlier decisions.
Drake then brought this suit, raising claims of disability discrimination
and retaliation under the ADA. 4 The district court granted Spring ISD’s
motion for summary judgment and denied Drake’s motion for
reconsideration. The court also excluded portions of Drake’s declaration as
“legal conclusions or conclusory assertions that will not be considered as
summary judgment evidence.”
4
Drake failed to address her retaliation claim on appeal, even in passing. No
section of her brief is dedicated to the claim. Indeed, no form of the word “retaliate”
appears anywhere in her briefs. As a result, Drake has abandoned this claim. See Tewari
De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 610 (5th Cir. 2011).
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II.
Our summary judgment review is de novo, applying the same standard
as the district court. King v. Ill. Cent. R.R., 337 F.3d 550, 553 (5th Cir. 2003).
We review the denial of Drake’s motion for reconsideration for abuse of
discretion. ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 847
(5th Cir. 2006). Ordinarily, we review a district court’s exclusion of evidence
for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). But
here, because Drake failed to object at the district court, we review for plain
error. Contogouris v. Pac. W. Res., L.L.C., 551 F. App’x 727, 734 (5th Cir.
2013) (unpublished).
III.
A.
We first address the district court’s exclusion of portions of Drake’s
declaration as “legal conclusions or conclusory assertions that will not be
considered as summary judgment evidence.” Drake submitted her
declaration in opposition to Spring ISD’s motion for summary judgment. In
response, Spring ISD objected in its reply brief and in a separately-filed list
of objections. Drake did not respond at the district court, nor did she squarely
address the district court’s evidentiary ruling in her briefs here. As a result,
our review is for plain error. See id.
We find no error, plain or otherwise. The excluded language asserted
that Drake “engaged in protected activity,” and that her requests for
accommodation “did not pose an undue hardship.” Those are textbook legal
conclusions. Cf. Tex. Peace Officers v. City of Dallas, 58 F.3d 635 (5th Cir.
1995) (unpublished) (affirming exclusion of expert witness’s legal
conclusions). So are Drake’s assertions that Spring ISD “discriminated and
retaliated against” her, “violated the Americans with Disability Act,”
“wholly failed to engage in the good faith interactive process,” and could not
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“establish and/or justify a business reason why [Spring ISD] could not
accommodate” her request to return as Dueitt’s registrar. The court was
also precise, differentiating between Drake’s conclusory language, which it
struck, and her factual allegations, which it did not. The district court did
not err in excluding the selected portions of Drake’s declaration.
B.
We next address the district court’s finding that Drake failed to
exhaust her workload-related claims before the EEOC. In response to Spring
ISD’s motion for summary judgment, Drake claimed for the first time that
she had requested a reduced workload as an ADA accommodation during the
2013–14 school year. The district court ruled that Drake’s “allegation that
Spring ISD refused to reduce her duties as an accommodation [was] not
raised in her EEOC complaint,” and was, therefore, unexhausted.
“As a precondition to seeking . . . judicial relief, . . . complaining
employees must exhaust their administrative remedies by filing a charge of
discrimination with the EEO division of their agency.” Pacheco v. Mineta,
448 F.3d 783, 788 (5th Cir. 2006); see Dao v. Auchan Hypermarket, 96 F.3d
787, 789 (5th Cir. 1996) (per curiam) (“[A]n employee must comply with the
ADA’s administrative prerequisites prior to commencing an action in federal
court against her employer for violation of the ADA.”); 42 U.S.C. § 12117(a)
(incorporating Title VII procedures into the ADA). We review this question
de novo. Pacheco, 448 F.3d at 788.
Drake claims that the district court erred but offers no legal or factual
support. And her administrative complaint quite clearly relates only to
Spring ISD’s failure to accommodate her colitis flare and hospitalization in
April through August 2015. True, Drake’s EEOC charge mentioned her
2013–14 grievance complaint. But it did so to assert a distinct claim that
Spring ISD’s actions in 2015 were “retaliation for [her] prior [2013–14
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grievance] complaint.” That retaliation claim does not give life to the
separate failure to accommodate that she urges here. We agree with the
district court that Drake failed to exhaust this claim before the EEOC.
Pacheco, 448 F.3d at 788.
We also agree with the district court that even if Drake had exhausted
her claim, it is meritless. “To prevail on a failure-to-accommodate claim, the
plaintiff must show (1) [she] is a qualified individual with a disability; (2) the
disability and its consequential limitations were known by the covered
employer; and (3) the employer failed to make reasonable accommodations
for such known limitations.” Moss v. Harris Cnty. Constable Precinct One, 851
F.3d 413, 417 (5th Cir. 2017) (internal quotations and citation omitted). The
employee must alert the employer. “Special words, like ‘reasonable
accommodation,’ need not be uttered, but the employee must explain that
the proposed adjustment in working conditions is for a medical condition-
related reason.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476,
481 (5th Cir. 2016) (cleaned up).
Drake’s claim fails on prong two. She points to Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), to support her assertion
that Spring ISD was aware of her ulcerative colitis when she filed the 2013–
14 grievance. But Burton is distinguishable. There, after the plaintiff inhaled
chemical fumes on the job, she immediately reported the incident to her
employer’s personnel department. She also sent an email to her employer
explaining that she was having heart palpitations after the incident. Id. at 230.
There were also other emails and “multiple reports from supervisors
explicitly tying complaints about Burton’s conduct to her asserted medical
needs.” Id. at 231.
In contrast, the district court here found no record evidence that
Drake informed Spring ISD of her ulcerative colitis at any time before her
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request for medical leave in April 2015. Drake points to her declaration as
evidence that she put Spring ISD on notice. But her declaration, which
contains stricken, conclusory language, is not enough to sustain this claim.
See Vinewood Cap., LLC v. Dar Al-Maal Al-Islami Tr., 541 F. App’x 443, 447
(5th Cir. 2013) (unpublished) (citing Vais Arms, Inc. v. Vais, 383 F.3d 287,
294 (5th Cir. 2004)).
Nor is there evidence for Drake’s claim that supervisors and co-
workers knew about her ulcerative colitis (let alone a connection between the
colitis and her request for a reduced workload). She offered no supporting
affidavits from co-workers. Worse still, her own deposition testimony
contradicts her arguments here: she admitted that the 2013–14 grievance
filings were “just about the work,” and had nothing to do with her disability.
Drake cannot point to her recent declaration to overcome that previous
testimony. See Free v. Wal-Mart La., L.L.C., 815 F. App’x 765, 766 (5th Cir.
2020) (unpublished) (“The sham affidavit doctrine prevents a party who has
been deposed from introducing an affidavit that contradicts that person’s
deposition testimony without explanation because ‘a nonmoving party may
not manufacture a dispute of fact merely to defeat a motion for summary
judgment.’” (quoting Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380,
386 (5th Cir. 2000))).
In short, Drake did not “explain” to Spring ISD “that the proposed
adjustment in working conditions is for a medical condition-related reason.”
Delaval, 824 F.3d at 481 (cleaned up). As we said above, Drake failed to
exhaust her reduced workload claim before the EEOC. And even if she had,
the claim lacks merit.
C.
We now move to Drake’s two exhausted discrimination claims. Drake
alleges that Spring ISD violated the ADA when it informed her of her
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termination on August 7, 2015, and further during the 2015–16 grievance
proceedings.
First, we address the termination claim. The district court found that
Spring ISD did not violate the ADA because Drake was not qualified to return
to work on August 7. The court also found it irrelevant that Spring ISD later
extended Drake’s unpaid leave in response to her grievance filings.
Regardless of those subsequent measures, on August 7, “Drake was out of
leave and could not provide a return date, so no accommodation existed.”
Review of this claim begins and ends with our decision in Moss v.
Harris County Constable Precinct One, 851 F.3d 413 (5th Cir. 2017). In Moss,
the plaintiff was a deputy constable who took several months of FMLA leave
for back surgery. Id. at 416. He was unable to return to work at the expiration
of all available leave and was terminated. Id. So, he sued under the ADA,
arguing that his years of “honorable performance as a deputy constable
show[ed] that he was qualified prior to his initial request for leave and that he
remained qualified during his leave.” Id. at 418. But while this court found
no problem believing that he was qualified for his job before he took leave,
the question instead was “whether he was qualified at the time of his
termination.” Id. (citation omitted). He was not.
When the deputy constable was terminated, he had been on leave for
over five months, exhausted all FMLA leave, “and his doctor had instructed
him and his employer that he was incapable of returning to work” for at least
two more months. Id. We affirmed dismissal of his claim because he was not
capable of performing his duties with or without accommodation and was
consequently not a qualified individual under the ADA. Id. (collecting cases).
So too here. Indeed, Moss is on all fours. When Spring ISD sent the
termination letter on August 7, Drake had been on leave for several months,
exhausted all FMLA leave, and was still unable to return to work for more
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than two months. As a result, Drake was not a “qualified individual”
protected from discharge under the ADA. 42 U.S.C. § 12112(a). Even with
“reasonable accommodation,” she was unable to “perform the essential
functions of the employment position that [she] h[eld] or desire[d].” 42
U.S.C. § 12111(8). See also Delaval, 824 F.3d at 481 (“Time off, whether paid
or unpaid, can be a reasonable accommodation, but an employer is not
required to provide a disabled employee with indefinite leave.”). The district
court properly found in favor of Spring ISD on this count.
Next, we consider Spring ISD’s actions during the 2015–16 grievance
proceedings. Drake argues that Spring ISD unreasonably refused her
requests to return as registrar or in a comparable position. “To prevail on
[this] claim, [Drake] must establish that 1) [s]he has a disability; 2) [s]he is
qualified for the position in which [s]he seeks employment; and 3) [s]he was
discriminated against because of [her] disability.” Jenkins v. Cleco Power,
LLC, 487 F.3d 309, 315 (5th Cir. 2007) (citation omitted). “The plaintiff
bears the burden of proving that an available position exists that [s]he was
qualified for and could, with reasonable accommodations, perform.” Id.
(citation omitted). “A disabled employee has no right to a promotion, to
choose what job to which [s]he will be assigned, or to receive the same
compensation as [s]he received previously.” Id. (citation omitted). “For the
accommodation of a reassignment to be reasonable, it is clear that a position
must first exist and be vacant.” Foreman v. Babcock & Wilcox Co., 117 F.3d
800, 810 (5th Cir. 1997).
Drake argues that the district court erred because the attendance clerk
position that Spring ISD offered was not comparable to her prior position as
registrar. She claims that the attendance clerk position amounted to “a
demotion, and a giant pay cut.” She points out that just before she applied
as registrar, Spring ISD had reclassified the position from paraprofessional to
professional. By contrast, she argues that the attendance clerk was a
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paraprofessional position. In addition, compared to her registrar salary of
over $60,000, Drake testified that the attendance clerk salary was under
$25,000 annually. 5
Even so, Drake does not address the other alternatives that Spring ISD
offered her, including any of 50 positions. To be sure, Drake’s argument at
the level three grievance hearing indicates that at least some of the 50
positions were not similar, including positions as a bus driver or an aide. But
there is no evidence in the record about the bulk of those positions. Nor does
Drake address her rejection of a CTE teaching role. She also does not
challenge the district court’s finding that Spring ISD had already filled the
registrar position by the time she recovered and could have returned to work.
She does not address our caselaw saying that she had “no right . . . to receive
the same compensation as [s]he received previously.” Jenkins, 487 F.3d at
315. Nor, given all the school district’s proposals, does she explain how
Spring ISD fell short of the “good faith interactive process” that the ADA
requires. Id. at 316.
Drake claims that her counterproposals were comparable whereas
Spring ISD’s offers were not. Yet, the record shows that Spring ISD had
already filled the compliance director position and that Drake was
unqualified in any case to fill it or the behavior specialist job. See 42 U.S.C.
§ 12111(8) (“[C]onsideration shall be given to the employer’s judgment as to
what functions of a job are essential, and if an employer has prepared a
written description before advertising or interviewing applicants for the job,
this description shall be considered evidence of the essential functions of the
job.”). Drake admitted at her deposition that she did not meet the
5
Drake also asserts that Spring ISD’s offer to bring Drake back as attendance clerk
was “in and of itself another adverse action.” Drake offers no legal citation, and the claim
does not warrant further discussion.
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requirements for those positions; her only experience was observational and
during an internship she had many years before.
As a result, Drake has not met her “burden of proving that an available
position exists that [s]he was qualified for and could, with reasonable
accommodations, perform.” Jenkins, 487 F.3d at 315 (citation omitted).
Contrary to Drake’s assertions, Spring ISD’s various offers are strong
evidence of a good faith effort at accommodation. The school district initially
offered to place Drake in an attendance clerk position that the district said
would offer a more relaxed schedule as she returned from surgery. When she
declined that position, the school district offered any of 50 others. Then,
when she declined those, the school district offered to hire her as a CTE
teacher. Even after that, Spring ISD asked Drake’s attorney “what she is
interested in and what she is wanting?” Aside from one position for which
she was unqualified, Drake has not identified a single alternative. The district
court correctly entered summary judgment for Spring ISD on this claim.
D.
Finally, Drake appeals the district court’s denial of her motion for
reconsideration. Reconsideration under Rule 59(e) is “an extraordinary
remedy” that “serve[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.”
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citations
omitted). It “is not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of
judgment.” Id. (citations omitted).
Yet, that is all Drake offered at the district court, and all she argues
here. The crux of her argument in front of the district court was a rehashing
of the same arguments that failed on summary judgment, plus the assertion
that the court “missed or failed to mention” the naked and unsupported
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assertions in her declaration. That was not only an improper argument under
Rule 59, it was untrue; the district court clearly ruled on Drake’s declaration.
Her arguments here fare no better. Indeed, they are nothing more than a
repetition of the same assertions she made or could have made at the
summary judgment stage. The district court did not abuse its discretion in
denying Drake’s motion for reconsideration.
* * *
AFFIRMED.
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