## 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 b riefs), Foster, Johnson, McDonald, Lucero, Koinis, LLP, Albuquerque, New Mex ico, for PlaintiffAppellant. Edward Ricco (Thomas L. Stahl, Jeffrey L. Lowry, w ith him on the brief), Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquer que, New Mexico, for Defendants-Appellees.

Before BRISCOE , McKAY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Plaintiff Victoria Albert filed this suit against h er former employer, Smith’s Food & Drug Centers, Inc. (“Smith’s”), and individu al defendants, Dallon Clarkson, and Kevin Slowey. Albert alleged that Sm ith’s failed to reasonably accommodate her asthmatic condition, in violation o f 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 favo r of Smith’s on the ADA and NMHRA claims and dismissed the state claims againstClarkson and Slowey after concluding they had been fraudulently joined to des troy 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 A DA claim, andaffirm 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 Sl owey and alter the dismissal of Clarkson and Slowey to dismissal without prejudi ce. Finally, we deny Albert’s requests for certification to the New Mexico Suprem e Court.-3-

II. BACKGROUND Since early childhood, Albert’s asthma has limited her activities. She has been instructed by her doctors to avoid crowds, cig arette smoke, people wearing perfume, and outdoor activities. She must avoid be ing active at night, remain indoors during windy conditions, and cannot be in e nclosed 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 u nable to function. Albert uses a variety of medications in an attempt to cont rol her symptoms, but she alleges that even with these medications she experi ences 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 re sult of her work as a cashier. As a consequence, she began to seek other jobs in t he company that she felt would limit her exposure to triggering substances. Altho ugh Albert applied for other positions, other applicants were chosen to fill the m. In August 1999, Albert had a severe asthma attack w hile at work. Albert took a medical leave of absence until October 14, 1 999, 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-4-

Smith’s that she should avoid exposure to certain s ubstances and should avoid cashiering. While on leave of absence, Albert cont acted Slowey to ask if any scanner or receiver positions were available. Upon her return to Smith’s, Ms. Albert was assignedto 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 c ustomer service booth. Clarkson, another of Albert’s supervisors, informedAlbert 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 s topped 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 d id she contact the Smith’s where she had worked. On November 15, Albert filedfor unemployment compensation. On November 18, Albert filed a charge of discrimination against Smith’s with the EEOC. On December 17, 1999, Smith’s respo nded to the charge, stating that Albert had been “voluntarily off work” since N ovember 1999. In addition, Smith’s stated that Albert had been informed she co uld be placed in a receiver or scanner position if one opened, but no such positio n had become available since November. It was later shown that a position had i n fact become available on-5-

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 st ate law claims against Smith’s. While the litigation proceeded, the parti es began negotiations in an attempt to settle the case. Smith’s offered Albertreinstatement to a position that would accommodate her disabilities. Smith’s statedAlbert 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 a nd it was set to expire on July 24. Albert asked for additional time to consi der the offer and Smith’s extended the deadline to July 25. Albert did not a ccept the offer on July 25. During a settlement conference on July 26, Albert s tated 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 pa rties also filed several motions. In her original complaint, Albert made a claim under NMHRA for discrimination based on her disability. In her sec ond amended complaint, Albert included claims against Clarkson and Slowey. Both Clarkson and Slowey are residents of New Mexico, as is Albert. Smith’s rem oved the action to federal-6-

district court and asserted that Clarkson and Slowe y had been fraudulently joined to defeat diversity. Albert filed a motion to rema nd 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 onthe 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 gran ted 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 grant ed it, and Albert filed this appeal.
III. DISCUSSION A. The claims against Clarkson and Slowey Albert argues the district court erred when it dism issed the claims against Clarkson and Slowey. Albert’s argument raises two issues. First, because the district court’s analysis of the claims against Cla rkson and Slowey was in the context of Albert’s motion to remand the case to st ate court, Albert’s argument is necessarily an attack on the district court’s fraud ulent joinder analysis. As discussed below, this court need not address whethe r the district court’s denial of-7-

the motion to remand was proper because an alternat ive basis for federal jurisdiction existed at the time the district courtrendered 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 frau dulent joinder analysis, a jurisdictional inquiry, we conclude that the distri ct 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 mot ion to remand to state court when coupled with the appeal of a final judgm ent.” Huffman v. Saul Holdings Ltd. P’ship , 194 F.3d 1072, 1076 (10th Cir. 1999)(quotation om itted). Albert argues that the district court’s fraudulent joinder analysis is flawed because the court failed to resolve whether she cou ld state a claim for interference with prospective contractual relations between hers elf 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 h ad federal question jurisdiction by virtue of the ADA claim.
InCaterpillar Inc. v. Lewis , the Supreme Court discussed the impact of jurisdictional defects at the time of removal on th e subject matter jurisdiction of-8-

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 ha d 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 ju stice.” 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 Caterpillarwould obviate the need to address any attack on the denial of the motion to remand. As discussed below, however, we have concluded that th e district court’s ruling on Albert’s ADA claim must be reversed. Thus, furtherconsideration of the order denying remand is required. In Huffman v. Saul Holdings Ltd. Partnership this court remanded a case to state court after reversin g the district court’s ruling on the merits, despite the cure of an earlier jurisdic tional defect. 194 F.3d at 1084. We noted that the judicial efficiency rationale of Caterpillardoes 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 rea son to refrain from ordering a remand to state court” on the basis of a defect in removal procedure. Id

.-9-

The district court in Huffman , however, had jurisdiction based only on diversity. Thus, any proceedings after reversal we re limited to questions of state law, whether in federal or state court. The situat ion 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 prope rly 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 moti on to remand on appeal. Id . This court held that “once plaintiff decided to take advantage of his involuntary presence in federal co urt 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 pla intiffs did in Akin , Albert affirmatively utilized the federal forum f or her own purposes after the district court denied her motion to reman d. 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-10-

concerns of Caterpillar , therefore, are implicated in this case despite th is court’s conclusion that the district court should be revers ed because Albert’s ADA claim destines this case to remain in federal court. We recognize that at least two circuits have held t hat the amendment of a complaint to add federal question claims did not do om 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 T x, 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 nar row adding the “one and only claim the district court suggested [the plaint iff] 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 explici t 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 efficie ncy concerns of Caterpillar are indeed present here. Furthermore, the districtcourt’s decision did not imply that Albert’s only viable claim was the federal ADAclaim. Indeed, the court’s denial of the motion to remand left intact Albert’s claims under the New Mexico1 Because Albert’s interference with contract claims were alleged only

against Clarkson and Slowey, their dismissal was ne cessarily 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 Clar kson and Slowey.
-11- Human Rights Act and Albert amended her complaint t o add claims wholly different from those eliminated by denial of the mo tion 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 juris diction.” 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 cas e and a “studied decision to take advantage of the forum” in another case). Acc ordingly, Albert cannot challenge the district court’s decision to deny hermotion 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 co nfronted with a question of subject matter jurisdiction because it could onl y retain jurisdiction if the claims3 We recognize that in the past we have allowed a di strict 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 bas is for the court’s action. Moreover, these cases did not involve situations wh ere an alternative basis of jurisdiction later came into play. Accordingly, th ose decisions do not affect the analysis in this case.
-12- against Clarkson and Slowey were dismissed. Dodd v. Fawcett Publications, Inc ., 329 F.2d 82, 83 (10th Cir. 1964). Once it determin ed 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 befo re another court. Because it is not necessary to determine if Albert could have stated a claim for interference of contract we deny Albert’s reque st 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 substantial ly limited. -13- B. Whether the district court erred in granting summ ary judgment on Albert’s ADA Claim This court reviews the district court’s grant of su mmary 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 gen uine issue as to any material fact and [] the moving party is entitled to judgmen t as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence in a light mos t favorable to the non-moving party. Midland Brake , 180 F.3d at 1160. To establish her claim under the ADA, Albert must s how: (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 di sability. Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997). The distri ct court concluded that Albert is not disabled. The relevant language of the ADA defines a disabili ty 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 t hat breathing is a major life activity. 45 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 t o perform on-the-job duties.” The district court concluded that Albert had presen ted insufficient evidence to avoid summary judgment on whether her asthma substantially limits a major life activity. The Court in Toyotadid not set down the rule that all people claiming a disability must show an inability to perform the va riety 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 Toyotathat the Supreme Court was concerned only with what substantially limited meant in terms of the perform ance of manual tasks which was the major life activity affected by the plainti ff’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 bas ic tasks does not apply to what is required to show a substantial limitation in the ma jor life activity of breathing.
-14- When inquiring whether Albert’s asthma substantiall y limits her ability to breathe, we must examine the extent of the limitati on 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 u nder which the average person in the general population can perfor m that same major life activity. (2) The following factors should be considered in d etermining whether an individual is substantially limited in amajor 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).-15-

Smith’s does not contest that Albert has a physical impairment, asthma, but argues that Albert has failed to raise a genuine qu estion of material fact about whether her asthma substantially limits her breathi ng. An examination of the evidence in relation to the above factors, however, suggests otherwise. As noted above, Albert’s asthma requires her to avo id a wide variety of everyday situations. She must avoid crowds, night- time or outdoor activities, cigarette smoke, and perfumes. Her asthma is activ ated 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 expo sure to cold air or stress. Moreover, her asthma is not completely controlled b y her daily use of multiple medications. This evidence suggests that the condi tion and manner under which Albert is able to breathe freely may be significant ly restricted. The testimony of Albert’s health care providers sup ports the contention that her asthma substantially limits her ability to breathe. Albert’s nurse practitioner, Trisch Van Sciver, testified that Albert’s asthma i s difficult to control and that Albert is symptomatic most of the time. Van Sciveralso testified that even when not having an episode Albert experiences chest tigh tness, wheezing, cough, and shortness of breath. In addition, Van Sciver notedAlbert’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 w as substantially impaired and we noted that evidence regarding the ability to sle ep of the average person in the general population would have aided the trier of fa ct 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 am ount of “other evidence.” -16- Smith’s argues that Albert has relied only on gener alized evidence and her diagnosis of severe persistent asthma to support he r claim of disability. Smith’s relies on Albert’s deposition testimony to argue th at Albert suffered asthma attacks only when exposed to a wide variety of alle rgens all at once. Smith’s also argues that Albert’s asthma substantially limits he r breathing only when she is having an attack. The evidence cited above, howeve r, demonstrates Smith’s view of the evidence is in dispute. Nothing more is req uired 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 breath e to that of the general public. 166 F.3d 1300, 1306, n.7 (10th Cir. 1999). Assumin g Pack stated a requirement which applies to this case, 6 Albert has presented sufficient evidence that her condition differentiates her from the general popul ace. The affidavit of Dr. James Poliner noted both that Albert has severe, persiste nt asthma and that she was probably susceptible to many common trigger substan ces. He then noted that asthmatics can have difficulty breathing after expo sure to everyday substances that do not affect “most people.” Van Sciver confi rmed that Albert suffers from-17-

the most serious form of asthma, a condition that b y 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 indic ate 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 commo n substances, the limitations on her activities, her multiple hospita lizations, and her frequent trips to the emergency room all support Albert’s contenti on 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 i nappropriate on the question of whether Albert was disabled because Alb ert has raised a genuine issue of material fact as to whether her asthma substanti ally limits her breathing and thus a major life activity.
C. Reasonable accommodation Smith’s argues that even if Albert is disabled, Alb ert cannot demonstrate that Smith’s failed to reasonably accommodate her. In Midland Brake , this court discussed the scope of an employer’s duty to reason ably accommodate a disabled employee under the ADA. 180 F.3d at 1159. This co urt concluded that an employer must take reasonable steps to reassign a q ualified individual to a vacant position or a position the employer reasonably anti cipates will become vacant in-18-

the fairly immediate future. Id . at 1171, 1175. We noted that the employer and employee must engage in an interactive process to d etermine what position would be appropriate. Id . at 1171. We outlined the interactive process as follows:

In general, the interactive process must ordinarilybegin with the employee providing notice to the employer of the employee’s disability and any resulting limitations, and expressing a des ire for reassignment if no reasonable accommodation is possible in the e mployee’s existing job. . . . Once the employer’s responsibilities within the int eractive process are triggered by appropriate notice by the employee, both parties have an obligation to proceed in a reasonab ly interactive manner to determine whether the employee would be qualifie d, with or without reasonable accommodations, for another job within t he company and, if so, to identify an appropriate reassignment opportu nity if any is reasonably available. . . . The interactive process includes good-faith communi cations between the employer and employee. Id . at 1172 (footnote omitted). The parties appear to agree that Albert provided s ufficient notice to Smith’s at least by October 14, 1999, when she gave her sup ervisor the note from her health care provider restricting her work activitie s. The parties disagree, however, over whether Smith’s took any action throu gh 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 heron November 1, 1999. Smith’s argues Albert’s supervisor was requesting m ore information about-19-

Albert’s workplace limitations on November 1, 1999 when he requested her health care provider sign off on her return to workas 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 Novemb er 5, Albert applied for unemployment compensation on November 15, and filedan 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 t hat Albert had been “voluntarily off work” since November. In that res ponse, Smith’s also stated that Albert had been informed she could have another pos ition when and if one became available. Additionally, Smith’s produced adocument in discovery listing Albert’s termination date as April 14, 2000

. Smith’s contends that because it could not have kno wn of the December 10 position when Albert requested reassignment, it hadno duty to inform Albert of any position that opened after her last day of workon November 5. Smith’s argues that an employer’s duty to identify vacant p ositions arises when the employee requests reassignment and ends after the e mployer 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-20-

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 ca using 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 p rocess by delivering the note from her health care provider, Smith’s had a duty t o work with Albert to identify the type of position that would reasonably accommod ate 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 th at conclusion on November 5. Instead, Smith’s states that it sought to continue the process of defining what positions would reasonably accommodate Albert’s dis abilities. Thus, had the process continued, as Smith’s apparently hoped it w ould, 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 employe r 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 en titled to immediate placement when a position he can fill bec omes vacant, must be made on a case-by-case basis.-21-

247 F.3d 1061, 1065 (10th Cir. 2001). That case sp ecific determination relies on an examination of the factual background of the int eractive process. See id. As outlined above, the material facts of the interacti ve process remain in dispute in this case. Accordingly, Albert has raised a genuin e issue of material fact concerning whether Smith’s failed to reasonably acc ommodate 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 a n employer’s liability for damages as of the date the offer is rejected or exp ires. 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 c ircumstances surrounding the offer and refusal. 804 F.2d 120, 124 (10th Cir. 19 86). 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 concludin g that she had failed to mitigate her damages. She asserts that she attempt ed 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, a nd the offer was not open for a reasonable amount of time. Albert’s attempted acce ptance of the offer one day after it expired is irrelevant because under the us ual principles of contract law Albert’s failure to accept the offer before it expi red ended her power to accept.-22-

Restatement (Second) of Contracts § 41(1) (1979). It is unimportant that Albert attempted to accept only one day after the offer ha d expired, as Smith’s was under no obligation to extend the period that the offer w as open to Albert. Albert offers no support for her contention that th e 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 furt her damages does not alter the unconditional nature of the offer that was made. Albert’s argument that the timing of the offer some how 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 July2001, long after she filed her November 1999 EEOC charge, it was not prompt. Albe rt 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, b ecause the offers of reinstatement in these cases were made after a dete rmination 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 pro mpt. 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 w as refused a position and in-23-

this case Albert was offered the position twenty-on e months after she ceased working at Smith’s. Id . at 222. Albert also argues that her failure to accept the o ffer was reasonable in light of the short time period the offer was open. Albert argues the reasonableness of her rejection is a factual questi on 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 l eaving 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 amou nt of time. She offers no reason why seven days was insufficient for the cons ideration of a position she was familiar with, nor does she express any difficultie s 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 seek s to impose for Albert’s failure to mitigate. Thus, there are no facts in dispute f or 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 rema nd, if it is determined that7We deny Albert’s motion to certify this question t o the New Mexico

Supreme Court. Certification of state law question s 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 presente d is not an unusually difficult one and we exercise discretion to resolve it.
-24- 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 reas onably accommodate an individual’s disability. N.M. Stat. Ann. § 28-1-7(J) (2000). The statute does not define what constitutes a “reasona ble 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 re quires reassignment. In the absence of any controlling interpretation from the state courts, we must attempt to predict how the New Mexico Supreme Courtwould 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 imprope rly refused to consider

the affidavit of Patrick Simpson, counsel for the N ew Mexico Human Rights Commission which enforces the relevant regulations. The district court rejected the affidavit as irrelevant because it only pertain ed 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 th at 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 hold ing that the NMHRA does not require reassignment as a reasonable accommodat ion. 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 feder al 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 cla im under the Act, with the following reservation: Our reliance on the methodology developed in the federal courts, however, should no t be interpreted as an indication that we have adopted federal law as o ur 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 c ourts 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 statut e, not apply a methodology for dealing with the resolution of a claim. Were w e to simply apply the rationale-26-

of this court in requiring reassignment under the A DA 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 th e statute differs significantly from the language of the ADA. In Midland Brake , this court relied heavily on the ADA’s statutory definitions of “reas onable accommodation” and “qualified individual” to conclude that reassignmen t could be required. Midland Brake , 180 F.3d at 1161. Indeed, the ADA’s definition o f reasonable accommodation explicitly includes reassignment to avacant 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 purp ose requires that reasonable accommodation be read to include reassignment. Alb ert 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 th e regulations to the “job responsibilities of a handicapped person,” can reas onably be read to limit the consideration to an existing job. Moreover, the st ate regulations were drafted-27-

some eight years after the ADA was enacted, but NewMexico did not adopt the language used in the ADA to define reasonable accom modation.
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 e vidence of legislative intent supporting such a reading. Accordingly, we conclud e that the New Mexico Supreme Court would not read the NMHRA to require r eassignment. Because Albert has acknowledged that she could not reasonab ly be accommodated in her former job and we conclude that reassignment is notrequired 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 Rig hts Act claim and Albert’s failure to mitigate, anddenies 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 Slow ey to dismissal without prejudice to refiling before another court.