F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VICTORIA ALBERT,

Plaintiff-Appellant, 

v.

SMITH’S FOOD & DRUG CENTERS,

INC.; DALLON CLARKSON; KEVIN

SLOWEY,

Defendants-Appellees. 

No. 02-2052

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-01-266-RLP/LCS)

 J. Douglas Foster (Kerri L. Peck with him on the briefs), Foster, Johnson,

McDonald, Lucero, Koinis, LLP, Albuquerque, New Mexico, for PlaintiffAppellant.

 Edward Ricco (Thomas L. Stahl, Jeffrey L. Lowry, with him on the brief),

Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for

Defendants-Appellees.

Before BRISCOE, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
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I. INTRODUCTION

Plaintiff Victoria Albert filed this suit against her former employer, Smith’s

Food & Drug Centers, Inc. (“Smith’s”), and individual defendants, Dallon

Clarkson, and Kevin Slowey. Albert alleged that Smith’s failed to reasonably

accommodate her asthmatic condition, in violation of the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), and the New Mexico

Human Rights Act, N.M. Stat. Ann. § 28-1-7 (1978) (“NMHRA”). Albert also

alleged state law interference with contract claims against Clarkson and Slowey. 

The district court granted summary judgment in favor of Smith’s on the ADA and

NMHRA claims and dismissed the state claims against Clarkson and Slowey after

concluding they had been fraudulently joined to destroy diversity. Albert appeals. 

This court has jurisdiction under 28 U.S.C. § 1291. We reverse the

district court’s grant of summary judgment on the ADA claim, and affirm the

district court’s rulings on the NMHRA claim and on Albert’s failure to mitigate

her damages. We remand with instructions for the district court to vacate the

order dismissing the claims against Clarkson and Slowey and alter the dismissal

of Clarkson and Slowey to dismissal without prejudice. Finally, we deny Albert’s

requests for certification to the New Mexico Supreme Court. 
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II. BACKGROUND

Since early childhood, Albert’s asthma has limited her activities. She has

been instructed by her doctors to avoid crowds, cigarette smoke, people wearing

perfume, and outdoor activities. She must avoid being active at night, remain

indoors during windy conditions, and cannot be in enclosed spaces with cleaning

agents. In addition, a large variety of materials can trigger an asthma attack for

Albert and such an episode renders her completely unable to function. Albert

uses a variety of medications in an attempt to control her symptoms, but she

alleges that even with these medications she experiences symptoms most of the

time. 

Albert worked for Smith’s in various positions for approximately fourteen

years. Albert became concerned that her asthma was getting worse because of her

exposure to numerous aggravating substances as a result of her work as a cashier. 

As a consequence, she began to seek other jobs in the company that she felt would

limit her exposure to triggering substances. Although Albert applied for other

positions, other applicants were chosen to fill them. 

In August 1999, Albert had a severe asthma attack while at work. Albert

took a medical leave of absence until October 14, 1999, when she was authorized

by her health care provider to return to work with certain restrictions. Albert

gave a note from her health care provider to Slowey, her supervisor, informing
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Smith’s that she should avoid exposure to certain substances and should avoid

cashiering. While on leave of absence, Albert contacted Slowey to ask if any

scanner or receiver positions were available. 

Upon her return to Smith’s, Ms. Albert was assigned to the customer

service booth for three weeks. On November 1, 1999, Albert was informed that

there were no more hours available for her in the customer service booth. 

Clarkson, another of Albert’s supervisors, informed Albert that if her health care

provider would authorize her return to the cashier position, she could have her job

back. Albert claims she contacted the health care provider, but the provider

would not give Albert that authorization. Albert stopped working in the customer

service booth on November 5, 1999. After November 5, 1999, Albert did not

apply for any positions in any Smith’s store, nor did she contact the Smith’s

where she had worked. On November 15, Albert filed for unemployment

compensation. 

On November 18, Albert filed a charge of discrimination against Smith’s

with the EEOC. On December 17, 1999, Smith’s responded to the charge, stating

that Albert had been “voluntarily off work” since November 1999. In addition,

Smith’s stated that Albert had been informed she could be placed in a receiver or

scanner position if one opened, but no such position had become available since

November. It was later shown that a position had in fact become available on
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December 10, 1999, and that other similar positions opened up around the same

time. A computer report from Smith’s lists Albert’s termination date as April 10,

2000. 

Albert filed a complaint in state court alleging state law claims against

Smith’s. While the litigation proceeded, the parties began negotiations in an

attempt to settle the case. Smith’s offered Albert reinstatement to a position that

would accommodate her disabilities. Smith’s stated Albert would receive higher

pay and the same seniority she had in the previous position. In addition, Albert

was free to accept the offer and continue to pursue her lawsuit against the

company. Smith’s made the offer on July 18, 2001 and it was set to expire on

July 24. Albert asked for additional time to consider the offer and Smith’s

extended the deadline to July 25. Albert did not accept the offer on July 25. 

During a settlement conference on July 26, Albert stated that she would accept the

reinstatement offer, but Smith’s refused to reinstate Albert unless she dropped her

lawsuit. 

While the settlement negotiations proceeded, the parties also filed several

motions. In her original complaint, Albert made a claim under NMHRA for

discrimination based on her disability. In her second amended complaint, Albert

included claims against Clarkson and Slowey. Both Clarkson and Slowey are

residents of New Mexico, as is Albert. Smith’s removed the action to federal
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district court and asserted that Clarkson and Slowey had been fraudulently joined

to defeat diversity. Albert filed a motion to remand the matter to state court. The

district court denied the motion and dismissed Clarkson and Slowey from the suit. 

Smith’s then filed a motion for summary judgment on the NMHRA claim. 

Smith’s also moved for summary judgment on Albert’s state claims for front pay

and back pay arguing Albert had failed to mitigate her damages. Before the

district court ruled on the motion, Albert filed a third amended complaint adding

claims under the ADA. The district court then granted summary judgment on the

NMHRA claim and concluded that Albert had failed to mitigate her damages by

failing to accept an offer of reinstatement. Smith’s filed a motion for summary

judgment on the ADA claim, the district court granted it, and Albert filed this

appeal. 

III. DISCUSSION

A. The claims against Clarkson and Slowey

Albert argues the district court erred when it dismissed the claims against

Clarkson and Slowey. Albert’s argument raises two issues. First, because the

district court’s analysis of the claims against Clarkson and Slowey was in the

context of Albert’s motion to remand the case to state court, Albert’s argument is

necessarily an attack on the district court’s fraudulent joinder analysis. As

discussed below, this court need not address whether the district court’s denial of
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the motion to remand was proper because an alternative basis for federal

jurisdiction existed at the time the district court rendered judgment. Second,

Albert’s arguments also attack the district court’s decision to dismiss her claims

against Clarkson and Slowey on the merits. Because the district court’s dismissal

of these claims took place in the context of a fraudulent joinder analysis, a

jurisdictional inquiry, we conclude that the district court should not have

dismissed the claims with prejudice. 

1. Denial of the motion to remand

“This court has jurisdiction over a denial of a motion to remand to state

court when coupled with the appeal of a final judgment.” Huffman v. Saul

Holdings Ltd. P’ship, 194 F.3d 1072, 1076 (10th Cir. 1999)(quotation omitted). 

Albert argues that the district court’s fraudulent joinder analysis is flawed

because the court failed to resolve whether she could state a claim for interference

with prospective contractual relations between herself and Smith’s. Even

assuming that Albert is correct, however, this court will not reverse the district

court’s denial of the motion to remand. Indeed, a remand to a state court would

be improper because the district court thereafter had federal question jurisdiction

by virtue of the ADA claim.

In Caterpillar Inc. v. Lewis, the Supreme Court discussed the impact of

jurisdictional defects at the time of removal on the subject matter jurisdiction of
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the trial court. 519 U.S. 61, 64 (1996). In that case, although the suit was

removed on the basis of diversity jurisdiction, at the time of removal there was

not complete diversity among the parties. Id. at 67. By the time final judgment

was rendered, however, the jurisdictional defect had been cured. Id. The

Supreme Court held that remanding the case to state court after final judgment

would “impose an exorbitant cost on our dual court system, a cost incompatible

with the fair and unprotracted administration of justice.” Id. at 77.

Were this court to conclude that the district court’s decision on the merits

of Albert’s claims should be affirmed, the holding in Caterpillar would obviate

the need to address any attack on the denial of the motion to remand. As

discussed below, however, we have concluded that the district court’s ruling on

Albert’s ADA claim must be reversed. Thus, further consideration of the order

denying remand is required. In Huffman v. Saul Holdings Ltd. Partnership this

court remanded a case to state court after reversing the district court’s ruling on

the merits, despite the cure of an earlier jurisdictional defect. 194 F.3d at 1084. 

We noted that the judicial efficiency rationale of Caterpillar does not apply when

the district court is reversed on the merits. Id. at 1080. After reversal, no

judgment on the merits remains and “there is no reason to refrain from ordering a

remand to state court” on the basis of a defect in removal procedure. Id. 
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 The district court in Huffman, however, had jurisdiction based only on

diversity. Thus, any proceedings after reversal were limited to questions of state

law, whether in federal or state court. The situation here is quite different. After

the district court denied Albert’s motion to remand, she chose to amend her

complaint to add a claim under the ADA, giving the district court federal question

jurisdiction. 

The posture of this case is similar to that in Akin v. General Electric Co.,

156 F.3d 1030 (10th Cir. 1998). The plaintiffs in Akin filed a motion to remand,

arguing some of the defendants could not have properly consented to removal. Id.

at 1036. The district court denied the plaintiffs’ motion to remand. Id. The

plaintiffs then added federal claims against those defendants, thus giving the

district court jurisdiction. Id. The plaintiffs challenged the denial of the motion

to remand on appeal. Id. This court held that “once plaintiff decided to take

advantage of his involuntary presence in federal court to add a federal claim to

his complaint he was bound to remain there.” Id. (quotation omitted). 

The rationale of Akin applies with equal force to this case. As the plaintiffs

did in Akin, Albert affirmatively utilized the federal forum for her own purposes

after the district court denied her motion to remand. Indeed, it is Albert’s ADA

claim which merits reversal of the district court’s decision. Unlike Huffman, the

claims remaining after appeal in this case are not state law claims. The efficiency
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concerns of Caterpillar, therefore, are implicated in this case despite this court’s

conclusion that the district court should be reversed because Albert’s ADA claim

destines this case to remain in federal court. 

We recognize that at least two circuits have held that the amendment of a

complaint to add federal question claims did not doom a challenge to the denial of

a motion to remand. See King v. Marriott Int’l Inc., 337 F.3d 421, 426 (4th Cir.

2003); Waste Control Specialists, LLC, v. Envirocare of Tx, Inc., 199 F.3d 781,

787 (5th Cir. 2000). Two concerns were central to these decisions. First, the

finality and efficiency concerns of Caterpillar were not present in either case. 

See King, 337 F.3d at 426; Waste Control Specialists, 199 F.3d at 787. Second,

in each case the amendment of the complaint was narrow adding the “one and

only claim the district court suggested [the plaintiff] had.” Waste Control

Specialists, 199 F.3d at 787 n.5; King, 337 F.3d at 426 (noting that the

amendment made by the plaintiff simply made explicit the federal claim which the

district court held was implied in the complaint).

Those circumstances are not present in this case. Because Albert amended

her complaint to include the ADA claim, the efficiency concerns of Caterpillar

are indeed present here. Furthermore, the district court’s decision did not imply

that Albert’s only viable claim was the federal ADA claim. Indeed, the court’s

denial of the motion to remand left intact Albert’s claims under the New Mexico
1

 Because Albert’s interference with contract claims were alleged only

against Clarkson and Slowey, their dismissal was necessarily the dismissal of the

contract claims.

2

 We note that in amending her complaint to add the federal claims, Albert

did not attempt to reassert the claims against Clarkson and Slowey. 

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Human Rights Act and Albert amended her complaint to add claims wholly

different from those eliminated by denial of the motion to remand. Therefore, as

we did in Akin, we hold that under the circumstances of this case, Albert “cannot

voluntarily invoke, and then disavow, federal jurisdiction.” Akin, 156 F.3d at

1036; Cf. Waste Control Specialists, 199 F.3d at 787 n. 5 (discussing the

difference between the narrow amendment in that case and a “studied decision to

take advantage of the forum” in another case). Accordingly, Albert cannot

challenge the district court’s decision to deny her motion to remand by attacking

the district court’s fraudulent joinder analysis.

2. Dismissal with prejudice

The district court denied the motion to remand and dismissed Clarkson and

Slowey from the suit without further comment.1

 Because the district court’s

conclusion was reached in the context of the denial of the motion to remand, we

conclude the district court should have dismissed the claims without prejudice to

Albert’s refiling the claims before another court.2

On the motion for remand, the district court was confronted with a question

of subject matter jurisdiction because it could only retain jurisdiction if the claims
3

 We recognize that in the past we have allowed a district court to grant a

Rule 12(b)(6) motion regarding fraudulently joined defendants at the same time it

denies a motion to remand. See e.g., Dodd, 378 F.2d at 882. The cases that do so

were decided prior to Steel Co. v. Citizens for a Better Environment, 523 U.S. 83

(1998) and do not articulate the jurisdictional basis for the court’s action. 

Moreover, these cases did not involve situations where an alternative basis of

jurisdiction later came into play. Accordingly, those decisions do not affect the

analysis in this case. 

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against Clarkson and Slowey were dismissed. Dodd v. Fawcett Publications, Inc.,

329 F.2d 82, 83 (10th Cir. 1964). Once it determined that Clarkson and Slowey

were fraudulently joined, the district court had no jurisdiction to resolve the

merits of the claims against them. In cases where the district court has

determined that it lacks jurisdiction, dismissal of a claim must be without

prejudice.3

 See Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir. 1973). 

Similarly, we hold that the dismissal of the claims against Clarkson and Slowey

should have been without prejudice to refiling before another court.

Because it is not necessary to determine if Albert could have stated a claim

for interference of contract we deny Albert’s request to certify to the New Mexico

Supreme Court the question of whether New Mexico law recognizes a cause of

action by an at-will employee for interference with prospective contractual

relations. 
4

 Because we conclude that there is a genuine issue of material fact

concerning whether Albert is disabled because her ability to breathe is

substantially limited we need not address Albert’s alternative argument that she is

disabled because her ability to work is substantially limited. 

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B. Whether the district court erred in granting summary judgment on

Albert’s ADA Claim

This court reviews the district court’s grant of summary judgment de novo.

Smith v. Midland Brake, Inc., 180 F.3d 1154, 1159 (10th Cir. 1999)(en banc). 

Summary judgment is appropriate if “there is no genuine issue as to any material

fact and [] the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We view the evidence in a light most favorable to the non-moving

party. Midland Brake, 180 F.3d at 1160.

To establish her claim under the ADA, Albert must show: (1) she is a

disabled person within the meaning of the ADA; (2) she is able to perform the

essential job functions with or without reasonable accommodation; and (3)

Smith’s discriminated against her because of her disability. Siemon v. AT&T

Corp., 117 F.3d 1173, 1175 (10th Cir. 1997). The district court concluded that

Albert is not disabled. 

The relevant language of the ADA defines a disability as “(A) a physical or

mental impairment that substantially limits one or more of the major life activities

. . . .” 42 U.S.C. § 12102(2). Smith’s concedes that breathing is a major life

activity.4

 
5

 The district court relied on Toyota Motor Mfg. v. Williams, 534 U.S. 184

(2002), to conclude that “the central inquiry must be whether the plaintiff is

unable to perform the variety of tasks required to be performed in most people’s

daily lives and not whether a plaintiff is unable to perform on-the-job duties.” 

The district court concluded that Albert had presented insufficient evidence to

avoid summary judgment on whether her asthma substantially limits a major life

activity.

The Court in Toyota did not set down the rule that all people claiming a

disability must show an inability to perform the variety of tasks required to be

performed in most people’s daily lives. See Toyota, 534 U.S. at 198. It is clear

from the opinion in Toyota that the Supreme Court was concerned only with what

substantially limited meant in terms of the performance of manual tasks which

was the major life activity affected by the plaintiff’s disability in that case. Id. at

197-98. The Supreme Court’s analysis regarding the impact of the disability

relevant in that case on the ability to perform basic tasks does not apply to what is

required to show a substantial limitation in the major life activity of breathing. 

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When inquiring whether Albert’s asthma substantially limits her ability to

breathe, we must examine the extent of the limitation caused by her impairment in

terms of her own experience.5 Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198

(2002). The relevant regulations state:

(1) The term substantially limits means: (i) Unable to perform a

major life activity that the average person in the general population

can perform; or

(ii) Significantly restricted as to the condition, manner, or duration

under which an individual can perform a particular major life activity

as compared to the condition, manner, or duration under which the

average person in the general population can perform that same

major life activity.

(2) The following factors should be considered in determining

whether an individual is substantially limited in a major life activity:

(i) The nature and severity of the impairment; (ii) the duration or

expected duration of the impairment; and (iii) the permanent or long

term impact of or resulting from the impairment. 

29 C.F.R. § 1630.2(j). 
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Smith’s does not contest that Albert has a physical impairment, asthma, but

argues that Albert has failed to raise a genuine question of material fact about

whether her asthma substantially limits her breathing. An examination of the

evidence in relation to the above factors, however, suggests otherwise. 

As noted above, Albert’s asthma requires her to avoid a wide variety of

everyday situations. She must avoid crowds, night-time or outdoor activities,

cigarette smoke, and perfumes. Her asthma is activated by an array of common

substances including pollen, mold, dust, cat dander, dog hair, strong- smelling

paint, aftershave, certain kinds of foods, cleaning agents, and chemicals. Her

asthma can also be activated by such things as exposure to cold air or stress. 

Moreover, her asthma is not completely controlled by her daily use of multiple

medications. This evidence suggests that the condition and manner under which

Albert is able to breathe freely may be significantly restricted. 

The testimony of Albert’s health care providers supports the contention that

her asthma substantially limits her ability to breathe. Albert’s nurse practitioner,

Trisch Van Sciver, testified that Albert’s asthma is difficult to control and that

Albert is symptomatic most of the time. Van Sciver also testified that even when

not having an episode Albert experiences chest tightness, wheezing, cough, and

shortness of breath. In addition, Van Sciver noted Albert’s asthma is not curable. 
6

 The situation in Pack is arguably much different from the case at hand. In

Pack, the plaintiff claimed that his ability to sleep was substantially impaired and

we noted that evidence regarding the ability to sleep of the average person in the

general population would have aided the trier of fact because “there was a dearth

of other evidence.” Pack v. KMart Corp., 166 F.3d 1300, 1306, n.7 (10th Cir.

1999). In Albert’s case there was a significant amount of “other evidence.” 

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Smith’s argues that Albert has relied only on generalized evidence and her

diagnosis of severe persistent asthma to support her claim of disability. Smith’s

relies on Albert’s deposition testimony to argue that Albert suffered asthma

attacks only when exposed to a wide variety of allergens all at once. Smith’s also

argues that Albert’s asthma substantially limits her breathing only when she is

having an attack. The evidence cited above, however, demonstrates Smith’s view

of the evidence is in dispute. Nothing more is required for the issue to survive

summary judgment. 

Relying on Pack v. KMart Corp., Smith’s argues that Albert was required

to present evidence comparing her ability to breathe to that of the general public.

166 F.3d 1300, 1306, n.7 (10th Cir. 1999). Assuming Pack stated a requirement

which applies to this case,6

 Albert has presented sufficient evidence that her

condition differentiates her from the general populace. The affidavit of Dr. James

Poliner noted both that Albert has severe, persistent asthma and that she was

probably susceptible to many common trigger substances. He then noted that

asthmatics can have difficulty breathing after exposure to everyday substances

that do not affect “most people.” Van Sciver confirmed that Albert suffers from
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the most serious form of asthma, a condition that by definition could not be

shared by the general populace. While we recognize that “[i]t is insufficient for

individuals attempting to prove disability status . . . to merely submit evidence of

a medical diagnosis,” Albert’s diagnosis does indicate that her ability to breathe is

different from that of an average individual. See Toyota, 534 U.S. at 198. 

The evidence concerning Albert’s reactions to common substances, the

limitations on her activities, her multiple hospitalizations, and her frequent trips

to the emergency room all support Albert’s contention that she doesn’t “breathe as

well as [other people]” Viewing the evidence in a light most favorable to Albert,

we conclude that summary judgment for Smith’s was inappropriate on the

question of whether Albert was disabled because Albert has raised a genuine issue

of material fact as to whether her asthma substantially limits her breathing and

thus a major life activity.

C. Reasonable accommodation 

Smith’s argues that even if Albert is disabled, Albert cannot demonstrate

that Smith’s failed to reasonably accommodate her. In Midland Brake, this court

discussed the scope of an employer’s duty to reasonably accommodate a disabled

employee under the ADA. 180 F.3d at 1159. This court concluded that an

employer must take reasonable steps to reassign a qualified individual to a vacant

position or a position the employer reasonably anticipates will become vacant in
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the fairly immediate future. Id. at 1171, 1175. We noted that the employer and

employee must engage in an interactive process to determine what position would

be appropriate. Id. at 1171. We outlined the interactive process as follows: 

In general, the interactive process must ordinarily begin with the

employee providing notice to the employer of the employee’s disability

and any resulting limitations, and expressing a desire for reassignment

if no reasonable accommodation is possible in the employee’s existing

job. . . .

Once the employer’s responsibilities within the interactive

process are triggered by appropriate notice by the employee, both

parties have an obligation to proceed in a reasonably interactive manner

to determine whether the employee would be qualified, with or without

reasonable accommodations, for another job within the company and, if

so, to identify an appropriate reassignment opportunity if any is

reasonably available. . . .

The interactive process includes good-faith communications

between the employer and employee. 

Id. at 1172 (footnote omitted). 

 The parties appear to agree that Albert provided sufficient notice to Smith’s

at least by October 14, 1999, when she gave her supervisor the note from her

health care provider restricting her work activities. The parties disagree,

however, over whether Smith’s took any action through an interactive process to

identify appropriate alternative jobs. 

Albert argues that Smith’s cut off the interactive process by informing

Albert there were “no more hours” available for her on November 1, 1999. 

Smith’s argues Albert’s supervisor was requesting more information about
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Albert’s workplace limitations on November 1, 1999 when he requested her

health care provider sign off on her return to work as a cashier. 

Albert’s status after November 5 is not clear from the evidence in the

record. After ceasing to work at Smith’s on November 5, Albert applied for

unemployment compensation on November 15, and filed an EEOC charge on

November 18. These actions support the contention that Albert understood the

interactive process to have been terminated. Smith’s, on the other hand, stated in

its December 17, 1999 response to the EEOC charge that Albert had been

“voluntarily off work” since November. In that response, Smith’s also stated that

Albert had been informed she could have another position when and if one

became available. Additionally, Smith’s produced a document in discovery

listing Albert’s termination date as April 14, 2000. 

Smith’s contends that because it could not have known of the December 10

position when Albert requested reassignment, it had no duty to inform Albert of

any position that opened after her last day of work on November 5. Smith’s

argues that an employer’s duty to identify vacant positions arises when the

employee requests reassignment and ends after the employer determines that no

positions are available or will become available in the fairly immediate future. 

That proposition, standing alone, is correct. See Midland Brake, 180 F.3d at
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1175. That proposition, however, fails to provide instruction in this case, because

a dispute concerning the status of the interactive process exists.

Neither party may create or destroy liability by causing a breakdown of the

interactive process. Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir. 1999). After

October 14, when Albert triggered the interactive process by delivering the note

from her health care provider, Smith’s had a duty to work with Albert to identify

the type of position that would reasonably accommodate her limitations. Midland

Brake, 180 F.3d at 1172. 

We do not mean to suggest that an employer may not terminate a disabled

employee after concluding that it cannot reasonably accommodate the individual. 

Smith’s argues, however, that it had not reached that conclusion on November 5. 

Instead, Smith’s states that it sought to continue the process of defining what

positions would reasonably accommodate Albert’s disabilities. Thus, had the

process continued, as Smith’s apparently hoped it would, one may presume that

the parties would have continued to seek a suitable position for Albert.

In Boykin v. ATC/VanCom of Colorado, L.P., this court held that:

[t]he determination of exactley how long an employer should retain

an employee on indefinite or medical leave pending the availability

of a position that would accommodate the employee’s disability, or 

how long after termination an employee should be entitled to

immediate placement when a position he can fill becomes vacant,

must be made on a case-by-case basis. 
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247 F.3d 1061, 1065 (10th Cir. 2001). That case specific determination relies on

an examination of the factual background of the interactive process. See id. As

outlined above, the material facts of the interactive process remain in dispute in

this case. Accordingly, Albert has raised a genuine issue of material fact

concerning whether Smith’s failed to reasonably accommodate her. 

D. Failure to mitigate

Under Ford Motor Co. v. EEOC, a plaintiff’s unreasonable rejection of an

unconditional offer of reinstatement will cut off an employer’s liability for

damages as of the date the offer is rejected or expires. 458 U.S. 219, 230-32

(1982). In Giandonato v. Sybron Corp., this court concluded the reasonableness

of the rejection must be examined in light of the circumstances surrounding the

offer and refusal. 804 F.2d 120, 124 (10th Cir. 1986). We noted that an offer

rejected solely for personal reasons will not avoid the rule set down in Ford. Id.

Albert argues the district court erred by concluding that she had failed to

mitigate her damages. She asserts that she attempted to accept Smith’s

unconditional offer only one day after it expired, the offer was not made in good

faith, Smith’s failed to make the offer promptly, and the offer was not open for a

reasonable amount of time. Albert’s attempted acceptance of the offer one day

after it expired is irrelevant because under the usual principles of contract law

Albert’s failure to accept the offer before it expired ended her power to accept. 
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Restatement (Second) of Contracts § 41(1) (1979). It is unimportant that Albert

attempted to accept only one day after the offer had expired, as Smith’s was under

no obligation to extend the period that the offer was open to Albert. 

Albert offers no support for her contention that the offer was not made in

good faith. Albert’s suggestion that the offer was a mere “litigation tactic” is

unavailing; the employer’s motivation to avoid further damages does not alter the

unconditional nature of the offer that was made. 

Albert’s argument that the timing of the offer somehow affected its validity

is likewise unconvincing. Albert insists that Ford required Smith’s to make a

prompt offer and because the offer was made in July 2001, long after she filed her

November 1999 EEOC charge, it was not prompt. Albert cites Xiao-Yue Gu v.

Hughes STX Corp., 127 F. Supp. 2d 751, 756 (D. Md. 2001) and Eichler v.

Riddell, Inc., 961 F. Supp. 211, 213 (N.D. Ill. 1997) for support. These district

court cases are readily distinguishable, however, because the offers of

reinstatement in these cases were made after a determination on the merits. See

Xian-Yue Gu, 127 F. Supp. 2d at 756; Eichler, 961 F. Supp. at 213. Further, the

Court in Ford did not impose a requirement that the offer be prompt. Ford, 458

U.S. at 228, 230. In any event, the timing of the offer in Ford was not a great

deal different from the timing of the offer in this case. In Ford, the employer

made the offer some two years after the plaintiff was refused a position and in
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this case Albert was offered the position twenty-one months after she ceased

working at Smith’s. Id. at 222. 

Albert also argues that her failure to accept the offer was reasonable in

light of the short time period the offer was open. Albert argues the

reasonableness of her rejection is a factual question that should be resolved by a

jury. 

Smith’s gave Albert seven days to evaluate whether she would accept an

unconditional offer of assignment to a position she had previously sought. The

offer by Smith’s also would have allowed Albert to retain her seniority, receive a

higher rate of pay than she had received prior to leaving Smith’s, and yet proceed

with the litigation. Albert does not contest these facts other than to make the bald

assertion that seven days was not a reasonable amount of time. She offers no

reason why seven days was insufficient for the consideration of a position she was

familiar with, nor does she express any difficulties with the terms of the offer. 

Albert does not identify any downside to the offer other than the limitation of

further front pay, the very limitation Smith’s seeks to impose for Albert’s failure

to mitigate. Thus, there are no facts in dispute for a jury to resolve. For the

reasons outlined above, the district court did not err in granting summary

judgment on Albert’s failure to mitigate. On remand, if it is determined that
7

 We deny Albert’s motion to certify this question to the New Mexico

Supreme Court. Certification of state law questions to the state supreme court is

discretionary. Massengale v. Ok. Bd. of Exam’rs in Optometry, 30 F.3d 1325,

1331 (10th Cir. 1994). In light of the reversal on the ADA claim, certification

would only delay litigation. The question presented is not an unusually difficult

one and we exercise discretion to resolve it. 

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Smith’s is liable for damages, those damages cease as of the date the offer

expired, July 25, 2001. 

E. Reassignment under NMHRA

The NMHRA prohibits employers from refusing to reasonably

accommodate an individual’s disability. N.M. Stat. Ann. § 28-1-7(J) (2000). The

statute does not define what constitutes a “reasonable accommodation.” The New

Mexico Human Rights Commission regulations, however, define reasonable

accommodation as “such modifications or adaptations of the work environment or

job responsibilities of a handicapped person as are necessary to enable him or her

to perform the essential functions of the job in question . . . .” 9 N.M. Admin.

Code tit. 1.1.7. The New Mexico state courts have yet to decide the question of

whether reasonable accommodation under the NMHRA requires reassignment. In

the absence of any controlling interpretation from the state courts, we must

attempt to predict how the New Mexico Supreme Court would rule on the issue.7

See Fields v. Farmers Ins. Co., 18 F.3d 831, 834 (10th Cir. 1994). 
8

 Albert also argues that the district court improperly refused to consider

the affidavit of Patrick Simpson, counsel for the New Mexico Human Rights

Commission which enforces the relevant regulations. The district court rejected

the affidavit as irrelevant because it only pertained to Mr. Simpson’s personal

opinion. Albert contends that Mr. Simpson’s affidavit gives factual support to the

notion that the Human Rights Commission would rely on federal law because he

stated that they had in the past. Even assuming that Albert is correct concerning

the relevance of Mr. Simpson’s affidavit, it would not alter our conclusion. 

Accepting the proposition that the federal law can provide some guidance does

nothing to answer the specific statutory interpretation question posed in this case. 

-25-

Albert argues that the district court erred by holding that the NMHRA does

not require reassignment as a reasonable accommodation. Albert contends that

we should look to decisions interpreting the ADA to conclude that the NMHRA

does require reassignment.8

 The New Mexico Supreme Court, however, has

cautioned against just such an application of federal decisions in interpreting the

state human rights act:

In interpreting our State Human Rights Act, we have

previously indicated that it is appropriate to rely upon federal civil

rights adjudication for guidance in analyzing a claim under the Act,

with the following reservation: Our reliance on the methodology

developed in the federal courts, however, should not be interpreted as

an indication that we have adopted federal law as our own. Our

analysis of this claim is based on New Mexico statute and our

interpretation of our legislature’s intent . . . we are not binding New

Mexico law to interpretations made by the federal courts of the

federal statute. 

Gonzalez v. N. M. Dep’t of Health, 11 P.3d 550, 557 (N.M. 2000). To resolve the

issue at hand we must interpret New Mexico’s statute, not apply a methodology

for dealing with the resolution of a claim. Were we to simply apply the rationale
-26-

of this court in requiring reassignment under the ADA without an examination of

New Mexico’s statute we would gloss over important differences. In doing so,

we would commit precisely the kind of error the New Mexico Supreme Court took

pains to forestall. 

Examining the NMHRA reveals that the language of the statute differs

significantly from the language of the ADA. In Midland Brake, this court relied

heavily on the ADA’s statutory definitions of “reasonable accommodation” and

“qualified individual” to conclude that reassignment could be required. Midland

Brake, 180 F.3d at 1161. Indeed, the ADA’s definition of reasonable

accommodation explicitly includes reassignment to a vacant position. Id. The

NMHRA does not contain any analogous language. 

 While Albert points out that the Act was intended to eliminate unlawful

discriminatory practice, nothing in that broad purpose requires that reasonable

accommodation be read to include reassignment. Albert also argues that “job in

question” should be read to include whatever job is at issue, either the previously

held position or the position the employee seeks as an accommodation. We

decline to adopt that reading. The reference in the regulations to the “job

responsibilities of a handicapped person,” can reasonably be read to limit the

consideration to an existing job. Moreover, the state regulations were drafted
-27-

some eight years after the ADA was enacted, but New Mexico did not adopt the

language used in the ADA to define reasonable accommodation. 

In Midland Brake, we recognized the burden imposed by requiring

reassignment, but held that the language of the statute required the imposition of

that burden. Id. at 1164, 1167. We decline to impose that burden under the

NMHRA in the absence of any statutory language or evidence of legislative intent

supporting such a reading. Accordingly, we conclude that the New Mexico

Supreme Court would not read the NMHRA to require reassignment. Because

Albert has acknowledged that she could not reasonably be accommodated in her

former job and we conclude that reassignment is not required under the NMHRA,

summary judgment on the NMHRA claim was appropriate. 

IV. CONCLUSION

For the foregoing reasons, this court reverses the district court’s grant of

summary judgment on Albert’s ADA claim, affirms the district court’s grant of

summary judgment regarding the New Mexico Human Rights Act claim and

Albert’s failure to mitigate, and denies Albert’s requests for certification of

issues to the New Mexico Supreme Court. We remand with instructions for the

district court to vacate the order dismissing the claims against Clarkson and

Slowey and alter the dismissal of Clarkson and Slowey to dismissal without

prejudice to refiling before another court.