# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 11, 2014

Decided October____________, 2014

Before

WILLIAM J. BAUER, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 13

‐ 2175

WILLIAM G. COLDWATE,

Plaintiff

‐ Appellant

,

v.

ALCATEL

‐ LUCENT USA, INC.,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 10

‐ CV

‐ 04918

James B. Zagel

, Judge

.

O R D E R

William G. Coldwate brought a series of claims against Alcatel

‐ Lucent USA

Incorporated after he was terminated from his position as a metal fabricating mechanic.

Pretrial litigation ensued and the district court granted summary judgment in favor of

Alcatel

‐ Lucent. Coldwate filed three motions to reconsider, and the district court

ultimately upheld its initial summary judgment determination. Coldwate appealed. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 2175 Page 2

Due to the uncertain status of our appellate jurisdiction in light of the multiple motions

to reconsider, we entered a series of orders instructing the parties to clarify the

jurisdictional landscape of this appeal. After the benefit of briefing and oral argument,

we conclude that we have jurisdiction over only a single issue, and affirm.

I. Facts

Alcatel

‐ Lucent USA Incorporated (“ALU”) is a Delaware corporation that

specializes in communications technology research. Since at least September 1981, it has

operated a product development shop in Naperville, Illinois, where parts used by other

divisions of the company are constructed. In September 1981, William G. Coldwate was

hired by ALU to work as metal fabricating mechanic in the Naperville shop. Coldwate

had a number of health problems during his twenty

‐ seven

‐ year career at ALU, most

notably a history of rotator cuff tears. In 2006, he suffered a complete rupture of his

right rotator cuff in an off

‐ duty car accident. He had injured this rotator cuff twice

previously, including another complete rupture requiring surgery. In 2007, after a short

leave of absence following the accident, he returned to work with significant

restrictions, which ALU accommodated with several months of light

‐ duty work that

was then available. After a series of complications arose from restrictions imposed on

Coldwate’s range of motion, he was terminated on October 4, 2008.

II. Procedural History

In June 2010, Coldwate filed suit against ALU in Illinois state court, alleging that

ALU terminated him in violation of the Illinois Human Rights Act, 775 ILCS 5/101 et seq.

(“IHRA”) and the Employee Retirement Income Security Act (“ERISA”). After ALU

removed this case to federal court, Coldwate was granted leave to amend his complaint

to add a count under the Americans with Disabilities Act, 42 U.S.C. §12101 et seq

. (“ADA”), and two years of pretrial litigation commenced. The gravamen of Coldwate’s

theory was that ALU terminated him to save money. Coldwate alleged that ALU sought

to terminate him because of his continued health problems. Further, he claimed that

ALU had an incentive to terminate him because his termination did not obligate ALU to

pay him full benefits under its severance plan. Finally, he asserted that his termination

relieved ALU of its obligation to pay his pension, which accrued when he turned 65.

ALU’s theory was that it terminated Coldwate because he could no longer perform the

essential functions of his duties and they had exhausted reasonable efforts to provide

alternative work within his range of motion. On October 18, 2012, the district courtNo. 13

‐ 2175 Page 3

entered a Memorandum Opinion and Order granting ALU’s motion “on all counts.” On

that date, the court also entered judgment for ALU.

On November 16, 2012, twenty

‐ nine days after the summary judgment order

was entered, Coldwate filed a motion styled “Plaintiff’s Motion to Reconsider and to

Amend Final Judgment” in which he sought reconsideration of his ADA claim only. At

that time, he did not file a notice of appeal on either the IHRA or ERISA claims the

district court had rejected. On January 25, 2013, the district court granted Coldwate’s

motion in part and sought further briefing, which the parties completed. On February

22, 2013, Coldwate filed his second motion for reconsideration. On March 25, 2013, the

district court struck and withdrew its January 25, 2013 Memorandum Opinion and

Order and entered an order denying Coldwate’s second motion to reconsider. On April

22, 2013, Coldwate filed his third motion to reconsider, directed at the March 25, 2013

order, which was denied by minute entry on April 29, 2013. On May 28, 2013, Coldwate

appealed, seeking review of all issues decided on summary judgment.

On May 31, 2013, we ordered Coldwate to file a statement addressing whether

any of his motions tolled the time to appeal the district court’s initial entry of summary

judgment. He complied and on June 10, 2013, we entered an order instructing Coldwate

to explain why our review should not be limited to review of the district court’s denial

of his third motion for reconsideration entered on April 29, 2013. After ordering a

response from ALU, on November 4, 2013, we issued a final order instructing the

parties to address all jurisdictional issues raised in our orders in their briefs on the

merits.

III. Analysis

A. Appellate Jurisdiction

In pertinent part, Rule 52 of the Federal Rules of Civil Procedure states that “[o]n

a party’s motion filed not later than 28 days after the entry of judgment, the court may

amend its findings—or make additional findings—and may amend the judgment

accordingly.” Fed. R. Civ. P. 52(b). Similarly, Rule 59 states that “[a] motion to alter or

amend a judgment must be filed no later than 28 days after the entry of the judgment.”

Fed. R. Civ. P. 59(e). Rule 60 sets out six grounds for relief from a final judgment, order,

or proceeding. See Fed. R. Civ. P. 60(b). Notably, Rules 52 and 59 contain hard deadlines

of 28 days from the entry of judgment. Rule 60(b) contains no temporal limitation. ButNo. 13

‐ 2175 Page 4

the freedom to invoke Rule 60 at any time comes at the cost of a highly deferential

standard of review.

On November 16, 2012, twenty

‐ nine days after the district court’s entry of its

October 18, 2012 summary judgment order, Coldwate filed a motion styled as

“Plaintiff’s Motion to Reconsider and to Amend Final Judgment,” in which he sought

reconsideration of his ADA claim only. Coldwate invoked Rules 52(b) and 59(e) as the

bases for revisiting the October 18, 2012 judgment. However, the deadline to file a

motion under either Rule 52(b) or 59(e) ran on November 15, 2012. Thus, his motion to

reconsider and amend were filed one day late, as both Rules require that any such

motions must be filed within 28 days of the entry of the judgment.

“When a motion is filed more than 28 days after the entry of judgment, whether

the movant calls it a Rule 59(e) motion or a Rule 60(b) motion, we treat it as a Rule 60(b)

motion.” Banks v. Chi. Bd. of Educ., 750 F.3d 663, 666 (7th Cir. 2014). Thus, Coldwate’s

motion was effectively brought under Rule 60(b), regardless of how he styled it at the

time or how the district court construed it. “A district court’s acceptance of an untimely

Rule 59(e) motion does not save the motion from this fate.” Id. at 666–67. Motions that

are effectively Rule 60(b) motions toll the time for appeal only if they are filed no later

than 28 days after entry of the judgment, and Rule 52 or 59 motions have tolling effect

only if they are timely ( i.e., filed within 28 days). See Fed. R. App. P. 4(a)(4)(A)(ii), (iv),

(vi).

Because Coldwate’s motion was filed twenty

‐ nine days after entry of the

judgment, his post

‐ judgment motion was not timely under Rule 59(e). It did not toll the

time for him to file a notice of appeal of the judgment itself, so we do not have

jurisdiction to consider his arguments challenging the grant of summary judgment.

Banks, 750 F.3d at 667. Therefore, we reject Coldwate’s argument that his motion tolled

the 30

‐ day time limit to appeal the October 18, 2012 final judgment, and conclude that

we lack jurisdiction over Coldwate’s IHRA and ERISA claims.

B. Rule 60(b) Analysis

The sole issue before us—Coldwate’s ADA claim—is reviewed under Rule 60(b).

“When a district court denies relief under Rule 60(b), appellate review is deferential.”

Justice v. Town of Cicero, Ill., 682 F.3d 662, 665 (7th Cir. 2012) (citing Metlyn Realty Corp. v.

Esmark, Inc., 763 F.2d 826 (7th Cir. 1985)). Therefore, we review the denial of a Rule 60(b)No. 13

‐ 2175 Page 5

motion for abuse of discretion. Banks, 750 F.3d at 667; Cash v. Illinois Div. of Mental

Health

, 209 F.3d 695, 697 (7th Cir. 2000).

In its Memorandum Opinion and Order dated March 25, 2013, the district court

held that Coldwate could not show he was terminated because of his disability, see 42

U.S.C. § 12112, concluding that:

Ultimately this case boils down to Plaintiff’s disagreement with 1) [Coldwate’s

supervisor’s] assessment of plaintiff’s right

‐ shoulder capabilities; and 2) Dr.

Pearah’s determination of the appropriate physical restrictions to impose in light

of [Coldwate’s supervisor’s] assessment and plaintiff’s history of right shoulder

injury.

There is no genuine issue of material fact as to whether Plaintiff was terminated

“because of” a record of disability or because Defendant regarded him as

disabled. 42 U.S.C. § 12112. Defendant engaged in an exhaustive, three

‐ month

‐ long process to determine if there was any way that Plaintiff could perform his

job following his 2007 surgery to repair his right rotator cuff. This process

included a physical exam from an independent third

‐ party, multiple conference

calls between various employees to discuss possible accommodations, a special

assessment of the core job functions of the MFM position, and a final consultation

with a third

‐ party group to determine whether any other accommodations

should be considered.

Coldwate v. Alcatel

‐ Lucent USA, Inc., 2013 U.S. Dist. LEXIS 41083, *16–17 (N.D. Ill. March

25, 2013). On April 22, 2013, Coldwate filed his third motion for reconsideration, and

the district court entered a minute entry denying that motion on April 29, 2013.

Under Rule 60(b), “we limit our consideration to discerning whether the district

court erred in assessing factors that could render the judgment vulnerable to attack, i.e.,

mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or

fraud.” Cash

, 209 F.3d at 697–98. But Coldwate’s third motion for reconsideration

challenges only the district court’s legal conclusions contained in its Memorandum

Opinion and Order entered on March 25, 2013, and “legal error is not a proper ground

for relief under Rule 60(b).” Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002). In other

words, Coldwate challenges the district court’s analysis on legal grounds other than

those identified in Rule 60(b). Because Coldwate’s third motion for reconsideration doesNo. 13

‐ 2175 Page 6

not raise any of the circumstances that are a valid basis for awarding relief from final

judgment pursuant to Rule 60(b), the district court was justified in denying Coldwate’s

motion. Id. Accordingly, it did not abuse its discretion in denying Coldwate’s motion to

reconsider its March 25, 2013 decision. Banks, 750 F.3d at 667; Cash

, 209 F.3d at 697.

IV. Conclusion

Our jurisdiction is limited to review of the ADA claim raised in Coldwate’s third

motion for reconsideration. We treat this filing as motion under Rule 60(b). Because the

district court did not abuse its discretion in denying Coldwate’s third motion for

reconsideration of its order granting ALU summary judgment, we AFFIRM.