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March 20, 2026 Get Citation Alerts Download PDF Add Note

Cesca Dixon v. The Board of Trustees of the Metropolitan State University of Denver Colorado

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:23-cv-00606

• Precedential Status: Unknown Status

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (17.3K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Regina M. Rodriguez

Civil Action No. 23-cv-00606-RMR-TPO

CESCA DIXON,

Plaintiff,

v.

THE BOARD OF TRUSTEES OF THE METROPOLITAN STATE UNIVERSITY OF

DENVER COLORADO,

Defendant.

                    ORDER                                        

Before the Court is Defendant’s “Motion for Judgement as a Matter of Law
Pursuant to FRCP 50(a)(b) and Joint Request Pursuant to FRCP 59 2-3 (FRCP 59 Motion
Attached” (the “Motion”). ECF No. 165 at 1. Plaintiff alleges discrimination (deliberate
indifference) and failure to accommodate under Section 504 of the Rehabilitation Act and
Title II of the Americans with Disabilities Act (“ADA”) against Metropolitan State University
(“MSU” or “Defendant”) because MSU would not accommodate her disability by allowing
her to complete her degree in Applied Mathematics remotely. In a well-reasoned
Recommendation, Magistrate Judge Timothy P. O’Hara recommended that the Court
grant MSU’s motion for summary judgment and enter summary judgment in MSU’s favor
on all of Plaintiff’s claims. ECF No. 161. On March 19, 2025, the Court adopted Magistrate
Judge O’Hara’s recommendation, ECF No. 164, and final judgment was entered on April
17, 2025. After the Court issued its order on the parties’ motions for summary judgment,
but before summary judgment was issued, Plaintiff filed her Motion on March 31, 2025.
Plaintiff is seeking “Judgement as A Matter of Law on all her claims in the case, and [to
be] awarded the $700,000 she is seeking in compensatory damages.” ECF No. 165 at 2.
For the reasons set forth below, Plaintiff’s Motion is DENIED.

I. LEGAL STANDARD

A. Review of a Pro Se Litigant’s Filings

Plaintiff proceeds in this matter pro se. Where a party proceeds pro se, the Court
“review[s] [her] pleadings and other papers liberally and hold[s] them to a less stringent
standard than those drafted by attorneys.” Trackwell v. United States, [472 F.3d 1242,

1243](https://www.courtlistener.com/opinion/168589/trackwell-v-united-states-government/#1243) (10th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless,
a pro se party “must follow the same rules of procedure that govern other litigants.” Green
v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (“This court has repeatedly insisted that pro se parties ‘follow the
same rules of procedure that govern other litigants.’”). Thus, although courts “make some
allowances for ‘the [pro se] plaintiff’s failure to cite proper legal authority,’” “confusion of
various legal theories,” “poor syntax and sentence construction,” or “unfamiliarity with
pleading requirements, the court cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

B. Fed. R. Civ. P. 50

“No later than 28 days after the entry of judgment—or if the motion addresses a
jury issue not decided by a verdict, no later than 28 days after the jury was discharged—
the movant may file a renewed motion for judgment as a matter of law.” Fed. R. Civ. P.
50(b). “Arguments presented in a Rule 50(b) motion cannot be considered if not initially
asserted in a Rule 50(a) motion.” Perez v. El Tequila, LLC, 847 F.3d 1247, 1255 (10th
Cir. 2017).

C. Motion to Reconsider

A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).

It is well established in the Tenth Circuit that grounds for a motion to reconsider include:

“(1) an intervening change in the controlling law, (2) new evidence previously unavailable,

and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete

v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore,

a motion to reconsider is “appropriate [only] where the court has misapprehended the
facts, a party’s position, or the controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in prior briefing.” Id.

D. Fed. R. Civ. P. 59(e) and 60

Federal Rule of Civil Procedure 59(e) provides that a party may file a motion to

alter or amend judgment no later than twenty-eight days after the entry of judgment. Fed.
R. Civ. P. 59(e). “[A] motion to reconsider filed within ten days after entry of judgment is
considered a Fed. R. Civ. P. 59(e) motion.” Servants of Paraclete, 204 F.3d at 1012.
Federal Rule of Civil Procedure 60(b) states that relief from a final judgment or
order is only appropriate based on “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.”
Fed. R. Civ. P. 60(b). Rule 60(b) relief is “extraordinary and may only be granted in
exceptional circumstances.” Servants of the Paraclete, 204 F.3d at 1009. A Rule 60(b)

motion is generally an inappropriate vehicle to advance “new arguments, or supporting
facts which were available at the time of the original motion.” Id. at 1012. Parties seeking
relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a
substitute for an appeal. Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th
Cir. 2005).

                 II.  ANALYSIS                                   

The Court assumes familiarity with the facts and procedural history of this case as
laid out in Magistrate Judge O’Hara’s Recommendation on the parties' motions for
summary judgment, ECF No. 161, and therefore, does not repeat them here unless
necessary.

A. Plaintiff’s Response is Timely

On April 21, 2025, Defendant filed a response in opposition to Plaintiff’s Motion
(the “Response”). ECF No. 167. In her reply, Plaintiff argues that Defendant’s Response
is untimely and was due April 15, 2025, and she asks that the Court strike the Defendant’s
untimely filing. ECF No. 168. Plaintiff does not cite a rule for her assertion that the
Response was due in fourteen days. She may be pulling the rule from Rule 59(c), which
allows an opposing party fourteen days to file opposing affidavits if a Rule 59 motion is
based on affidavits. Fed. R. Civ. P. 59(c) (emphasis added). Here, the Motion is not based
on affidavits. Rather, Local Rule 7.1(d) controls, which gives the responding party “21
days after the date of service of a motion, or such lesser or greater time as the court may

allow, in which to file a response.” D.C.COLO.LCivR 7.1(d). Defendant filed its response
21 days after the date of service of the Motion. Thus, Defendant’s Response is timely and
will not be stricken.

B. Relief Under Fed. R. Civ. P. 50 is Not Appropriate

Defendant is correct, Plaintiff’s reliance on Rule 50 is not appropriate because
there was no trial in this matter. ECF No. 167 at 2. This case was decided on the parties'
motions for summary judgment. The purpose of a motion for summary judgment is to test
whether a trial is required. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th
Cir. 2003). The Court granted summary judgment in favor of Defendant because it found

that there was no genuine issue of material fact to be determined by a trier of fact. ECF
No. 164. Rule 50 is only applicable if there is a trial. Plaintiff argues that Rule 50 applies
“regardless of whether or not the case was presented to a jury.” ECF No. 168 at 1 (citing
Maher v. City of Chicago, 547 F.3d 817, 824 (7th Cir. 2008)). In Maher, the court granted
in part a motion for summary judgment against the defendant, and the jury returned a
verdict in favor of the defendant on the remaining claim. Id. at 821-823. Maher’s Rule
50(b) claim failed on procedural grounds because he did not file a pre-judgment motion
under Rule 50(a) challenging the sufficiency of evidence in a civil jury trial. Id. at 824.
Maher does not stand for the proposition that Rule 50(a) and (b) “serves the purpose of
raising a challenge as to the sufficiency of the evidence and protects the right to challenge
sufficiency [ ] regardless of whether or not the case was presented to a jury” as Plaintiff
asserts. ECF No. 168 at 1. Rule 50 may be used to address a “jury issue not decided by
a verdict,” but not to address a case that was never put before a jury. See Fed. R. Civ. P.

50(b).

C. Plaintiff is Not Entitled to Relief

Defendants also argue that Plaintiff’s request under “Rule 59(e) should be denied
because such a request was unripe.” ECF No. 167 at 4. This is technically true. Rule
59(e) motions seek to alter or amend a judgment and “must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e). Plaintiff filed her motion on March
31, 2025, ECF No. 165, before final judgment was entered on April 17, 2025. However,
as a pro se litigant, Plaintiff’s pleading must be construed liberally. See Trackwell, 472
F.3d at 1243. A Rule 60 motion only needs to be “made within a reasonable time . . . of
the judgment or order”. Fed. R. Civ. P. 60(c)(1). Therefore, Plaintiff’s arguments are more
appropriately analyzed under Rule 60(b), seeking relief from the Court’s summary
judgment order or as a motion to reconsider the Court’s order granting summary judgment
in favor of the Defendant, rather than Rule 59(e). No matter how the Court construes
Plaintiff’s Motion, she is not entitled to relief under Rule 59(e), Rule 60, or a motion to
reconsider.

Plaintiff does not provide any new evidence previously unavailable or point to an
intervening change in controlling law. Plaintiff appears to argue that the Court
misapprehended the facts and/or her position. In doing so, she requests that the Court
revisit issues it has already addressed. For example, Plaintiff argues “[t]he defendants
have provided no evidence nor facts that support their purported narrative that Plaintiff is
not a qualified person with a disability.” ECF No. 165 at 2. Both Magistrate Judge O’Hara’s
Recommendation and this Court’s order granting summary judgment note that

“Defendant does not contest Plaintiff is a qualified individual with a disability” and the
“Court assumes that Plaintiff’s [Autism Spectrum Disorder] and social anxiety meet the
[ADA and Rehabilitation Act’s] definition of disability.” ECF Nos. 161 at 21-22; 164 at 14.
Plaintiff also argues that “Defendants have not proven that Plaintiff had to exhaust
administrative remedies.” ECF No. 165 at 2. As Magistrate Judge O’Hara notes in a
footnote, “Defendant raises no argument about whether Plaintiff had an obligation to
administratively exhaust her request.” ECF No. 161 at 17 n.10. Thus, the need for
exhaustion did not weigh in the Court’s analysis.

Plaintiff argues that Defendant has not proven that the documentation she
provided is insufficient to “address how in-[person] classes would impact Plaintiff

negatively.” ECF No. 165 at 2. However, that is not the standard. It may be the case that
Plaintiff “might benefit from virtual classes at school.” ECF No. 165 at 4. The issue is
whether the requested accommodation, remote attendance, “(a) impose[s] undue
hardship on the operation of the defendant's service, program, or activity, or (b) require[s]
a fundamental or substantial modification to the nature of its academic program or
standards.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 190 (2d Cir. 2015). The Court found that Plaintiff’s requested accommodation “would create
an undue hardship for the professors and fundamentally alter the math degree program
as designed by Defendant.” ECF No. 164 at 10. Plaintiff also argues that Defendant has
not “proven that Plaintiff’s request and situation relates to employment cases on any
level.” ECF No. 165 at 2. Magistrate Judge O’Hara notes “case law from the Title I ADA
employment context can be applied to the Title II ADA educational context.” ECF No. 161

at 22 (citing McGuinness v. Univ. of N.M. Sch. of Medicine, 170 F.3d 974, 978 (10th Cir.
1998); see also, Profita v. Regents of the Univ. of Colo., 709 F. App’x 917 (10th Cir. 2017);
Crane v. Utah Dep’t. of Corrs., 15 F.4th 1296, 1314 (10th Cir. 2021)). Plaintiff does not
provide support that the Court’s use of an employment context in its analysis is an
inappropriate application of the law.

Plaintiff seeks to strike “all the declarations supplied by defendants . . . due to
being undermined by the incontrovertible evidence filed by Plaintiff.” ECF No. 165 at 6-7.
Magistrate Judge O’Hara found that the declarations of the professors in the mathematics
department and the employees of the MSU Access Center “present[] evidence that
adequate instruction depends on in-person participation.” ECF No. 160 at 32. Plaintiff

believes she has provided contradictory evidence to Defendant’s assertion because she
provided evidence that some of the same classes were taught remotely during the
extraordinary circumstances of the COVID-19 pandemic. As the Court noted in its order,
“[a]n accommodation is not reasonable just because it is technically possible.” ECF No.
164 at 13. Plaintiff cannot strike a declaration because she disagrees with the content of
the declaration. The Court addresses Plaintiff’s specific objection to Dr. Cermak’s
declaration as untimely in its order. Id. 10-11. The Court held that it “would reach the
same result even without Dr. Cermak’s declaration, as the evidence is sufficient even
without her declaration to establish the denial was justified.” Id. at 11. In her Motion,
Plaintiff again raises her argument that the Supreme Court’s decision in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) has been overruled
by Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). She argues that

Defendant was awarded deference based on “expert” opinions provided by the
mathematics department professors in their declarations. ECF No. 165 at 7. The Court
addressed this argument in its order on the motion for summary judgment, holding that
the decision in Loper Bright did not change the Court’s analysis and that as “an academic
institution, [MSU] is entitled to deference as to why the requested accommodation would
fundamentally alter its math degree program.” ECF No. 164 at 8.

Plaintiff next complains about the process the Court used to rule on the parties’
motions for summary judgment. She argues that the rules were changed as the case was
reassigned. She argues there were “[n]o charts, no open discussion between the parties
with the Judge.” ECF no. 165 at 11. This Court does “schedule a conference with the

parties to discuss the material facts and to determine whether there are disputes of any
material facts” before filing a motion for summary judgment. See RMR’s Standing Order
Regarding Rule 56 Motions. Before the conference, the parties are required to jointly “file
via CM/ECF a chart of undisputed material facts.” Id. However, the Standing Order does
not apply to unrepresented parties. Id. Plaintiff also argues she “was never
informed/reminded that she could choose to consent/or not consent to Judge O’Hara as
the magistrate for her summary judgment motion.” ECF No. 165 at 11. That is not
accurate. The parties did not consent to the exercise of jurisdiction by a United States
Magistrate Judge. See ECF No. 20. However, that does not prevent the Article III Judge
assigned to the case from referring the case to a Magistrate Judge 28 U.S.C. §
636 (b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b) for proposed findings of fact and
recommendations for rulings on dispositive motions. This Court referred the parties’

motions for summary judgments to the magistrate judge. Plaintiff could not decide
whether to have Magistrate Judge O’Hara provide a recommendation for her motion for
summary judgment.

Plaintiff is under the impression that, with the evidence she has presented, it would
be impossible for a court to find that there was no triable issue here. This court has
reviewed the evidence Plaintiff has provided three times now. First, by Magistrate Judge
O’Hara in a thorough 50-page Recommendation. And twice by this Court. First, when the
Court addressed Plaintiff’s objections to the Recommendation in its order adopting
Magistrate Judge O’Hara’s Recommendation. And, now a second time, in addressing
Plaintiff’s current Motion. Plaintiff has not presented any additional evidence or argument

that the Court has not already considered. Plaintiff has not demonstrated clear error or
manifest injustice. After review of the Motion and the entire file, the Court finds that
Plaintiff failed to demonstrate some reason why the Court should reconsider and vacate
the final judgment in favor of Defendant in this action.

                    lll.     CONCLUSION 

It is ORDERED, for the reasons stated above, that Plaintiff's Motion, asking the
Court for “Judgement as A Matter of Law Pursuant to FRCP 50 (a) (B) and Joint Motion
Pursuant to FRCP 59,” which the Court has treated as a motion for reconsideration or
relief from an order under Rule 60, is DENIED.
DATED: March 20, 2026
BY THE COURT:

                                 REGINA M. RODRIGUEZ 
                                 United States District Judge 

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