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Appeal from the United States District Court for the Eastern District of California District Court Case No. CV-F-97-6002 REC DLB Honorable Robert E. Coyle, United States District Judge APPELLEE’S ANSWERING BRIEF SEYFARTH, SHAW, FAIRWEATHER & GERALDSON KATHRYN MORRISON. (Bar No. 122845) MARTHA MICHAEL GATES (Bar No. 160002) MICHELLE M. CASEY (Bar No. 183924) 400 Capitol Mall, Suite 2350 Sacramento, California 94814 Telephone: (916) 448-0159 Counsel for Defendant/Appellee McClatchy Newspapers, Inc. Rule 26.1 Corporate Disclosure Statement The Fresno Bee is an unincorporated division of McClatchy Newspapers, Inc., a Delaware corporation. McClatchy Newspapers, Inc. is a wholly-owned subsidiary of The McClatchy Company, also a Delaware corporation. The McClatchy Company has issued shares to the public and is traded on the New York Stock Exchange. I. STATEMENT OF JURISDICTION Circuit Rule 28-2.2 A. The District Court’s jurisdiction is based on 28 U.S.C. section 1331 and 28 U.S.C. sections 1441(a)-(b). B. Appellee McClatchy Newspapers, Inc.(“McClatchy”) agrees with Appellant Jacalyn Thornton’s (“Thornton”) statement as to this jurisdictional element. C. McClatchy agrees with Thornton’s statement as to this jurisdictional element. II. ISSUES PRESENTED Whether Thornton presented sufficient evidence to raise a genuine issue of material fact that she was “disabled” or alternatively, that she was a “qualified individual with a disability” under the Americans with Disabilities Act (“ADA”) or California’s Fair Employment and Housing Act (“FEHA”). Whether Thornton has shown that the District Court abused its discretion in finding bad faith, undue delay, and prejudice in denying her second motion to amend her complaint, which she brought after the close of discovery. III. STATEMENT OF THE CASE Thornton was a part-time features reporter at The Fresno Bee, one of McClatchy’s newspapers. She contends that McClatchy violated the ADA and FEHA by failing to accommodate her workplace injury, which necessitated prophylactic keyboarding and handwriting restrictions limiting the amount of time she engaged in such activities each day. Although McClatchy repeatedly attempted to accommodate her restrictions, Thornton rushed to the courthouse steps to vindicate her belief that she was entitled to the accommodation of her choice. During the course of the litigation that followed, Thornton waived her right to a jury trial on her complaint. After learning of her waiver, Thornton embarked on a furious attempt to undo it, filing a barrage of motions to add new theories to her complaint and a premature demand for jury trial. Concluding that Thornton was proceeding in bad faith, the District Court denied her motions and the subsequent requests for reconsideration. Then immediately after discovery closed and right before dispositive motions were to be filed, Thornton filed her second motion for leave to amend her complaint. After finding undue delay, prejudice and continuing bad faith, the District Court again denied her motions for leave as well as for reconsideration. Thornton now appeals claiming that the District Court abused its discretion in denying her second motion to amend her complaint. After a lengthy and expensive discovery process, McClatchy moved for summary judgment. Considering the motion in the non-jury trial context, the District Court correctly concluded that Thornton had failed to provide sufficient evidence that her prophylactic restrictions constitute a “disability” under the discrimination laws. The Court entered judgment in McClatchy’s favor. Thornton now appeals this judgment. IV. STATEMENT OF FACTS A. Thornton’s Employment with McClatchy Thornton started working for McClatchy at The Fresno Bee during 1973. During her employment, she alternated between part-time and full-time employment, worked in various departments, and held a variety of positions. (ER 173:5-182:14.) Thornton’s most recent position with McClatchy was as a part-time reporter in the Features Department. (ER 174:4-12; 175:16.) Thornton shared that position with another co-worker, working six and one quarter hours a day, three days a week, for a total of 18.75 hours per week. (ER 175:12-176:2.) 1. Thornton’s Essential Job Functions As A Part-Time Reporter The essential functions of a part-time (job share) features reporter at The Fresno Bee are the same as those for a full-time features reporter, with one exception: the production level for the part-time position is lower. (ER 163:23-24; 313:10-314:23.) These essential functions include: writing articles and reporting with accuracy and clarity; writing both short and in-depth stories; and interviewing story sources. (ER 313:10-314:23.) Note taking and computer use are essential duties of a features reporter in all phases of preparing an article. (ER 164:21-22.) Additionally, the features reporter must interact with editors, may be assigned to work on a story with another reporter, and must be available for last minute assignments to cover breaking news reports. (ER 164:5-15.) Naturally, completion of articles for the newspaper and submission of articles to editors for review is a deadline driven process. (ER 164:16-20.) In performing her duties as a part-time features reporter, Thornton used McClatchy’s proprietary computer system to research subject matters and would spend approximately 1/3 of her day keyboarding to complete her reporting tasks. (ER 195:15-196:2; 207:1-209:3.) Additionally, Thornton engaged in handwriting to complete her reporting duties, which included preparing notes for interview questions, taking notes during interviews, and writing down telephone messages. (ER 210:18-211:9.) Thornton conducted the majority of her interviews by telephone, and when required to do a face-to-face interview, she usually would travel to the interviewee. (ER 198:20-199:2.) Generally, Thornton would type notes while conducting phone interviews and her interviews could last from a couple of minutes to an hour, with the longest interview she recalled being up to two hours. (ER 200:13-21; 201:23-202:9.) If Thornton tape recorded an interview, she would listen to the tape and type notes into the computer that she would later insert into her story. (ER 203:8-24.) Transcribing the tape recorded interview would generally take Thornton at least as long as it took her to conduct the interview. (ER 212:8-213:23.) After Thornton was done preparing a story, she would transmit it, via computer, to an editor, who then would review the story and transmit it back to Thornton for additional work edits. (ER 204:21-206:25.) 2. Thornton’s Prophylactic Restrictions On Handwriting and Keyboarding During May 1996, while she continued to work as a part-time features reporter, Thornton filed a workers’ compensation claim, alleging injury to her right arm, shoulder, and wrist from using a computer keyboard and from handwriting. (ER 216:25-217:4.) During February 1997, after additional accommodations to Thornton’s work arrangement proved futile (including lowering Thornton’s desk and providing a portable armrest), Thornton’s treating physician, Dr. Wong, ordered Thornton off work completely so that she could focus on improving her pain. (ER 222:9-15; 349:19-22.) During June 1997, after approximately a four month leave of absence, Dr. Wong released Thornton to return to work with the following restrictions: 1) continuous keyboard use limited to 30 minutes per day; 2) continuous handwriting limited to five minutes per day; 3) intermittent keyboard use limited to 60 minutes per day; and 4) intermittent handwriting limited to 60 minutes per day. (ER 528.) These prophylactic restrictions were put in place to prevent Thornton from having further pain. (ER 356:17 -359:8.) There were no other stated restrictions on any other activity. At the time Dr. Wong issued these restrictions on June 13, 1997, she concluded that although Thornton could perform other jobs, she was not able to perform her job as a part-time features reporter at The Fresno Bee. (ER 528.) Thornton later stipulated to Dr. Wong’s June 13, 1997 report. (Id.; ER 85-90.) 3. Thornton’s Extensive Daily Activities As of July 25, 1997, Thornton’s daily activities included walking two miles every morning, preparing two to three meals a day for herself and her family, shopping for groceries, taking her children to their lessons or activities, doing laundry, making beds, and picking up around the house. (ER 276:22-277:22; 536.) Thornton described her social activities as of July 25, 1997 to include dinner/lunch with her friends and family, telephone conversations with her friends and families, and church activities. (Id.) Thornton’s volunteer work for her church included organizing and planning church fund-raisers and serving on church committees. (ER 253:12-256:1.) Thornton was involved with her children’s education, including driving for field trips and giving classroom talks. (ER 252:6-7; 256:19-25.) Thornton also provided volunteer services for the county library, including hosting annual fundraising dinners. (ER 257:25-258:14.) Thornton did not experience pain in getting dressed. (ER 250:25-251:2.) At times when cooking, Thornton may have needed help opening jars, slicing bread, and chopping food. (ER 250:1-24.) Thornton’s pain increased when performing certain limited household tasks, such as vacuuming, ironing, and dusting. (ER 251:18-25.) As of August 5, 1997, Dr. Wong recorded that Thornton was doing more tasks at home than she previously reported she was able to do. (ER 363:12-20.) Because playing catch and going down water slides with her children caused inflamation and pain, Thornton refrained from engaging in those activities. (ER 240:17-241:23.) Thornton also refrained from physical activities that she occasionally participated in, such as swimming and she no longer put together jigsaw puzzles. (ER 252:12-253:11.) Although Thornton’s restrictions did not include a driving restriction, she voluntarily refrained from excessive driving. (ER 265:18-23; 360:2-8.) B. McClatchy’s Efforts to Reasonably Accommodate Thornton’s 1997 Restrictions Prior to learning of Thornton’s specific restrictions (as articulated by Dr. Wong in her June 13, 1997 letter), Keith Moyer (“Moyer”), then Executive Editor, considered voice-recognition technology as a possible accommodation to allow Thornton to return to her position as a part-time features reporter. (ER 385:22-386:11; 387:23-388:22; 389:24-390:8.) However, after learning of Thornton’s exact restrictions, specifically her handwriting restrictions, McClatchy decided that voice recognition technology did not present a viable alternative for putting Thornton back to work as a features reporter. (ER 308:9-309:5; 391:25-392:11; 421:8-17; 448:15-449:10.) Christopher Caneles, the Information Systems Director, relayed to Rich Marshall (“Marshall”), Deputy Managing Editor, his belief, based on his previous experience at another newspaper, that voice recognition technology did not present an adequate solution for an individual in a newsroom with keyboarding and handwriting limitations. (ER 158:1-159:20.) Thornton never had a discussion with Marshall about whether she could do her job as a part-time features reporter even with voice recognition technology. (ER 190:2-6.) On June 5, 1997, after receiving Thornton’s restrictions from Dr. Wong, McClatchy considered possible job openings that might be reasonable accommodations for her. (ER 428:8-429:10;454:8-457:8.) McClatchy also considered Thornton’s use of a tape recorder to allow her to remain in her position as a features reporter. (ER 309:13-21; 392:12-25; 424:18-23.) McClatchy determined that a tape recorder could not accommodate Thornton’s restrictions because there was no guarantee that a source would consent to being tape recorded. Moreover, a tape recorder could not be used in all interviewing situations, such as when interviewing multiple sources at the same time or covering an event. (ER 78:14-80:11; 392:12-25; 425:2-15; 452:20-453:1.) McClatchy also considered whether Thornton would be able to meet her production standards as a features reporter in light of her restrictions and believed she could not. (ER 320:14-321:17; 439:10-440:2; 446:20-447:5.) On June 16, 1997, Valerie Bender, Features Department Editor, and Marshall met with Thornton for at least an hour to discuss her return to work. (ER 224:8-17.) At this meeting, Thornton stated that she probably would not consider any position that was “below [her] qualifications or abilities” and that it would be a “waste” to have someone with her experience and skills in certain positions. (ER 233:21-24; 288:19-289:3.) Instead, Thornton made proposals that were unrelated to reporting and required McClatchy to create a position for her by shifting duties performed by other employees to fill up her work week. (ER 247:2-15; 248:4-249:23.) Specifically, Thornton proposed that she be assigned any of the following tasks: 1) coordinating the Teen Page; 2) helping reporters with first drafts of articles; 3) coordinating the South Valley coverage section; 4) assuming “burdensome” duties being performed by the Food/Home editor; and 5) working with the newspaper interns. (ER 228:4-25; 230:23-232:19.) Thornton concedes that no position existed at McClatchy that included coordinating the Teen Section, coordinating the Home/Food section, coordinating South Valley coverage, and assisting reporters with story ideas. (ER 249:3-23.) Thornton understood that working with the interns, preparing the Food/Home section, coordinating the South Valley coverage, and coordinating the teen page were all other employees’ job responsibilities. (ER 232:8-16; 236:5-24.) Additionally, Thornton understood that the tasks associated with coordinating the South Valley coverage section and Food/Home Section were performed by editors. (ER 225:22-25; 227:4-15; 228:18-229:15.) Thornton understood that editor positions were above reporter positions in the newspaper hierarchy and thus reallocating job duties performed by an editor to Thornton would be a promotion from a reporter position. (ER 226:20-227:3.) Moreover, Thornton was well aware that working with the interns was part of Marshall’s responsibilities and that the intern program was only a half-year program. [ER 232:8-16; 294:5-24.) Sometime after the June 16, 1997 meeting, Thornton discussed an ombudsman position with Marshall. (ER 237:3-22.) Thornton understood that the ombudsman position also would be a promotion from a reporter position. (ER 237:20-22.) On July 10, 1997, after exhausting its search for a reasonable accommodation acceptable to Thornton, Bender completed a personnel action request form setting Thornton's termination date for August 16, 1997, the date her extended disability leave ended. (ER 295:22-299:24; 301:15-25; 541.) At that time, Bender understood that Thornton was pursuing a teaching position at Fresno State. (ER 306:8-21.) On or about August 5 or 6, 1997, Moyer received a letter from Thornton dated July 30, 1997 asking McClatchy to reconsider her termination date. (ER 285:17-24; 378:7-379:3; 539-540.) In response to Thornton's letter, McClatchy decided to extend her leave and explore other options. (ER 467:20-471:23.) McClatchy's subsequent proposals to Thornton were rejected and Thornton never returned to work. (ER 504-505.) C. Thornton's Ability to Work Other Than As A Features Reporter Despite the restrictions imposed by Dr. Wong, Thornton felt "perfectly able to get other jobs." (ER 279:14-18.) As Thornton's counsel acknowledged, during the pendency of this litigation, Thornton worked as a free lance journalist. (SER 117:6-13.) Thornton also agreed with the Social Security Administration's conclusion that she was able to work at jobs other than her job as a Features Reporter at The Fresno Bee. (ER 278:4-19; 279:14-21.) Thornton sought a teaching position at Fresno State and as of June, 1997 felt that she was able to teach journalism part-time. (ER 262:6-15.) On August 6, 1997, John Zelezny, Professor and Chair at Fresno State, sent Thornton a letter indicating that she would be accepted into the teaching pool. (ER 370:16-371:1; 544.) Dr. Wong felt that Thornton could work as a faculty member at a college/university. (ER 361:18-362:20.) Thornton's vocational rehabilitation counselor, Judith Najarian, also testified that Thornton was employable and could work as an instructor, particularly a Journalism, Writing or English instructor. (ER 366:19-368:6.) As of July 1, 1997, Najarian felt that Thornton was qualified to be an instructor at Fresno State. (ER 369:19-22.) Najarian also discussed with Thornton a number of different occupations for which she felt Thornton was qualified, some of which were ruled out because Thornton was more interested in the teaching position. (ER 372:5-23.) Additionally, Thornton was offered positions at the March of Dimes and KMPH radio, which she declined. (ER 264:18-266:25.) V. STATEMENT OF PROCEDURAL HISTORY On September 15, 1997, one month following Thornton's alleged August 16, 1997 termination date, she filed this action in the Fresno County Superior Court. (ER 1-5.) Thornton's complaint alleged that McClatchy failed to reasonably accommodate her workplace injury and terminated her in violation of the FEHA and ADA. (Id.) On October 15, 1997, McClatchy properly removed the case to federal court on the grounds of federal question jurisdiction. (ER 15:14-18.) On January 22, 1998, Thornton settled her outstanding workers' compensation case. (ER 86-88.) She signed a Compromise and Release and accepted $26,238.00 in settlement. (Id.) She never asserted a Labor Code 132a claim in her workers' compensation case. On February 3, 1998, McClatchy served its Scheduling Report in which it noted that the case was a non-jury case as neither party served a jury demand. (SER 1-2.) On February 5, 1998, Thornton then filed her scheduling report late and, for the first time, served a demand for a jury trial, nearly four months after the case was removed. (ER 1696; SER 4:23; 6.) In her scheduling report, she represented that "Plaintiff is unaware of any need for amendments [to the pleadings] at this time. However, Plaintiff will reserve the right to seek leave of court if, through discovery, she learns of other possible claims to assert against McClatchy.” (SER 4:25-5:1.) On February 10, 1998, Magistrate Beck held a lengthy scheduling conference during which the parties discussed the case in detail, including McClatchy’s intention of filing a summary judgment motion on the threshold disability issues. (SER 78, 79:26-80:2.) The Court scheduled discovery cut-off dates beginning on July 1, 1998, and set a February 23, 1999 jury trial date. (SER 13-16.) As a result of the jury trial designation, on March 13, 1998, McClatchy filed a motion to strike the untimely demand (SER 7-8, 9-12.) On April 13, 1998, the Court struck Thornton’s jury demand noting that Thornton admitted that her demand was untimely. (ER 6-8; SER 17.) On or about June 22, 1998, Thornton filed a “conditional” motion to remand the case to state court and a motion for leave to file a first amended complaint. (ER 14-24.) Thornton’s “conditional” motion to remand hinged on the anticipated California Supreme Court decision in City of Moorpark v. Superior Court (“Moorpark”) , which she predicted would hold that “workers’ compensation preemption doctrine will not apply to workplace disabilities.” (SER 19:9-17.) Although Thornton admitted that her remand motion was premature, she argued that she had “insider information” on the Moorpark decision, which led her to file the motions. (SER 19:12-17; 60:11-62:2.) Thornton’s motion to amend sought to allege four new claims, including a claim for wrongful termination in violation of the public policy against disability discrimination, as well as three individual defendants. (ER 14-24.) Her motions also proposed dismissing her ADA claim once the Moorpark opinion issued if the Court would allow her to amend and then remand the case. (ER 15-16; SER 61:14-62:2.) In this vein, Thornton “incidentally” noted that the presence of individual defendants would defeat diversity jurisdiction. (SER 20:3-5.) Tellingly, on July 2, 1998, before her motions were even heard, Thornton filed a premature request for jury trial with respect to her proposed new claims. (ER 1698, #30.) The circumstances surrounding Thornton’s initial motions were suspect enough that Magistrate Beck questioned Thornton on her motives and whether her proposed “new” claims were consistent with Rule 11 requirements. (SER 63:24-64:6.) On August 6, 1998, Magistrate Beck denied Thornton’s motions. (ER 14-24.) He specifically denied Thornton’s motion for leave to amend on the grounds of bad faith and found that she was aware of the facts underlying her proposed “new” claims (including the public policy claim) at the time she filed her original complaint. (ER 22:26-28.) Magistrate Beck also found that Thornton’s prior awareness of these facts evidenced “an improper purpose behind her desire to amend her complaint, namely, to attempt to regain her right to a jury trial on some cause of action.” (ER 23:5-6.) Finally, he denied Thornton’s conditional motion for remand without prejudice to her right to bring the motion again once her stated contingencies came to pass. (ER 16-17.) On August 17, 1998, Thornton’s anticipated ruling in Moorpark was published. However, Thornton did not renew her motion to remand or seek to amend her complaint to assert what she now claims is a “newly” created cause of action under Moorpark. Instead, on August 24, 1998, Thornton chose to ask the District Court to reconsider Magistrate Beck’s denial of her motion to amend with respect to her proposed FEHA-based public policy and defamation claims and her motion for conditional remand in light of Moorpark. (SER 68-77.) She admitted she knew the facts all along but argued that the viability of a public policy claim was questionable until Moorpark. (SER 82:15-20.) She also conceded her motivation was, in essence, to regain a jury trial. (SER 71:1-8; 83:12-84:5; 87:16-20.) On October 5, 1998, during argument on Thornton’s motion for reconsideration, Thornton further confirmed that her motivations for amending her complaint were to seek a jury trial that she had already waived and to destroy federal court jurisdiction. (SER 87:16-20.) On October 8, 1998, after specifically noting his consideration of the oral and written arguments and the record, Judge Coyle denied Thornton’s requests for reconsideration. (ER 30-42; see SER 21-55.) He specifically held that the evidence supported the finding of bad faith because of Thornton’s motivation and method in seeking to amend (including her artful attempts to revive her waived jury trial) and because she knew facts supporting her public policy claim at the time she filed her original complaint. (ER 36:22-37:10 and 23-27; 38:20-40:5.) Judge Coyle also found that Thornton’s explanation of why she did not include a public policy claim at the outset of the litigation was inconsistent and suspect. (ER 37:23-26.) Subsequently, on October 26, 1998, after discovery had closed and experts were designated, Thornton filed her second motion to amend. (ER 43-51.) Once again, she asked for leave to amend to allege a wrongful termination in violation of public policy claim. (Id.) The factual allegations in Thornton’s second proposed pleading remained the same; she simply re-packaged the allegations and labeled the underlying public policy as the policy against workplace injury discrimination (Labor Code 132a). (Cf. ER 1-5 with ER 45-50.) On January 15, 1999, Magistrate Beck denied Thornton’s second motion to amend on the grounds of undue delay, bad faith, and prejudice. (ER 1592-1606.) Magistrate Beck found undue delay because Thornton knew the facts supporting a public policy claim before she filed her lawsuit and she failed to take any steps to assert her claim in either the workers’ compensation arena or within the one year statute of limitations. (ER 1602:11-14.) He also rejected Thornton’s explanation of delay as insufficient. He found that a reasonable extension of existing case law on public policy claims and an absence of California Supreme Court authority to the contrary would have allowed her to assert a public policy claim based on Labor Code 132a prior to Moorpark. (ER 1602:14-24.) Magistrate Beck also found prejudice on numerous grounds: 1) the procedural status of the case; 2) the great expense already incurred in discovery (including experts); 3) McClatchy would either be forced to forego discovery on the new claim or again continue the case, reopen discovery, and incur further discovery costs; and 4) McClatchy had already incurred the expense of preparing a summary judgment motion and would be forced to incur the time and expense of another motion, or forego summary judgment on the proposed claim. (ER 1602:26-1603:12.) Finally, Magistrate Beck concluded Thornton’s motion was made in bad faith for three reasons. First, Thornton would gain nothing by asserting her new claim other than potentially a right to demand a jury trial, which she had already waived. (ER 1603: 14-19, 1603:22-1604:11) Second, Thornton’s new claim would defeat McClatchy’s pending summary judgment motion, a motivation that Thornton admitted. (ER 1603:19-21, SER 122:25-123:13.) Third, the timing of Thornton’s motion and the circumstances surrounding it (given that Thornton waited over two months from Moorpark’s issuance yet filed her first motion to amend and for remand based on the impending Moorpark decision) were, at best, suspicious. (ER 1603:14-1604:20.) Magistrate Beck noted that if Thornton truly believed that she had a viable 132a claim and that a public policy claim based on 132a was prohibited before Moorpark, a reasonable plaintiff’s attorney would have asserted such a claim in the pending workers’ compensation case or at least before the statute of limitations expired on that claim. (ER 76:15-77:24; 1602:11-24.) On or about February 1, 1999, for the second time, Thornton asked Judge Coyle to reconsider a ruling by Magistrate Beck. (ER 1620-1629.) On March 8, 1999, after consideration of the written and the oral arguments, Judge Coyle again affirmed the Magistrate’s findings of undue delay, prejudice and bad faith and denied the request for reconsideration, finding that Thornton could not demonstrate that the ruling was clearly erroneous or contrary to the law. (ER 1650-1662.) Thereafter, on March 23, 1999, Judge Coyle granted McClatchy’s motion for summary judgment on the grounds that she was not disabled under the disability laws. (ER 1663-1687.) VI. SUMMARY OF ARGUMENT A. Motion for Summary Judgment In her appeal of Judge Coyle’s well-reasoned opinion, Thornton comes to this Court empty-handed. She provides no legal authority or supporting evidence to overrule the District Court’s order. Indeed, she disregards the fact that as the ultimate issues will be determined by Judge Coyle in a bench trial, he was entitled to, on summary judgment, weigh the evidence and resolve ultimate issues of fact. As the District Court properly concluded, there is simply no evidence that supports Thornton’s position that she was substantially limited in the major life activities of working and manual tasks. Thus, Thornton fails to present any admissible evidence to satisfy the threshold requirement of demonstrating that her restrictions rose to the level of a protected disability. Belatedly recognizing that the record on appeal is devoid of any admissible evidence, Thornton attempts to cure her evidentiary deficiencies through an unusual method � requesting the Court take judicial notice of precisely the fact she failed to prove. Thornton’s request for the Court to fill in the gaps of her evidentiary presentation is improper and, more significantly, unabashedly affirms the dearth of evidence supporting her complaint. Even if Thornton’s restrictions could be construed as a disability under the relevant laws, the undisputed evidence demonstrates that Thornton was not an otherwise qualified individual and that she is unable to satisfy her burden of demonstrating the existence of a reasonable accommodation that would have allowed her to perform her job as a part-time features reporter at The Fresno Bee. B. Motion to Amend This appeal represents Thornton’s fifth attempt to persuade a court to disbelieve the obvious prejudicial impact, undue delay and bad faith motivations behind her attempt to amend her complaint to assert a public policy claim. As with her previous attempts to have Judge Coyle find error with Magistrate Beck’s well-reasoned rulings, here Thornton again fails to make a clear showing that the District Court abused its discretion by either acting arbitrarily or in clear error when it denied her second motion to amend and subsequent request for reconsideration. The record overwhelmingly supports the District Court’s repeated findings of bad faith, undue delay, and prejudice, thereby justifying the District Court’s exercise of discretion to deny Thornton’s second motion for leave to amend her complaint. VII. ARGUMENT A. Summary Judgment in Favor of McClatchy Should Be Affirmed 1. Standard of Review Generally, the Ninth Circuit Court of Appeals presumes district court decisions are correct. Appellants have the burden of overcoming this presumption. Parke v. Raley, 506 U.S. 20, 29 (1992). Overcoming the presumption requires more than simply making the bare assertion that judgment is erroneous and leaving it to the appellate court to figure out why. It is not the appellate court’s role to construct theories or argument that would undermine the judgment and defeat the presumption of correctness. Instead, it is Thornton’s burden to present argument and legal authority on each point raised in the appeal. If she fails to provide an adequate record on review or adequate briefing, the appeal may be dismissed. Northwest Accept. Corp. v. Lynnwood Equip. Inc., 841 F.2d 918,924 (9th Cir. 1987) (failure to present sufficient argument in opening brief waived claim on appeal). Although this Court reviews the District Court’s grant of summary judgment de novo, “[t]he record below is examined to determine whether there is any basis for affirmance.” Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986). If the result reached by the District Court is correct, this Court will affirm based on any supporting legal basis. Id. This is especially true when, as here, the ultimate issues are destined for decision by the District Court rather than a jury. Transworld Airlines, Inc. v. Am. Coupon Exchange, Inc., 913 F.2d 676, 684-85 (9th Cir. 1990); Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978) (judge, as trier of fact, is in a position to and ought to draw his inferences without resort to the expense of trial); (ER 1675:20-1776:11.) Pursuant to Federal Rule of Civil Procedure 56, a court must grant summary judgment if it finds that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). To defeat summary judgment, the opposing party must produce specific facts supported by “substantial factual evidence” showing that there is a genuine fact for trial. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). Here, Thornton failed to make a showing sufficient to establish the existence of an element essential to her case and summary judgment was granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 332-334 (1986); (ER 1663-1686.). There is no basis in the record, nor any asserted in Thornton’s opening brief, to find that the District Court’s decision was incorrect. Absent any evidence, the District Court’s decision granting summary judgment is not only correct but also appropriate as the District Court would act as the ultimate trier of fact if this matter proceeded to trial. 2. The District Court Correctly Determined that Thornton Failed to Establish a Prima Facie Case To state a prima facie case of disability discrimination, Thornton first must prove that she was a disabled person within the meaning of the disability laws. Barnett v. U.S. Air, Inc., __ F.3d __, 1999 WL 976709 (9th Cir. 1999). Thus, Thornton must prove she has an impairment that substantially limits one or more major life activities, has a record of an impairment, or is regarded as having such an impairment. See 42 U.S.C. section 12102(2). This determination requires an individualized inquiry. Broussard v. Univ. of Cal., ___ F.3d ___, 1999 WL 729134 * 4 (9th Cir. 1999). In the District Court and now on appeal, Thornton fails to present any evidence to satisfy this essential threshold element. a. There is No Evidence that Thornton Was Substantially Limited in the Major Life Activity of Working If working is a major life activity, and if, as Thornton claims, she is limited in the major life activity of working, she must present evidence that she was “significantly restricted in the ability to perform either a class of jobs or broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities” in order to demonstrate a substantial limitation from working. 29 C.F.R. section 1630.2(j)(3)(i); Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2151 (1999); Thompson v. Holy Family Hosp., 121 F.3d 537, 539-40 (9th Cir. 1997). To do so, Thornton must present competent evidence of her vocational training and abilities, the geographical area to which she has access, and the number and types of jobs that demand similar training from which she would be disqualified. See Broussard, 1999 WL 729134 at *6 (evidence that plaintiff was limited to working in sedentary to light jobs insufficient to overcome summary judgment because, among other problems, it failed to analyze what jobs she was disqualified from based on her restrictions, educational and vocational training). The inability to perform one particular job or a narrow range of jobs does not constitute a substantial limitation on one’s ability to work. Id. Moreover, conclusory allegations regarding alleged work limitations do not constitute evidence and are insufficient to withstand a motion for summary judgment. Id., citing Thompson, 121 F.3d at 539. Despite this, Thornton only offers conclusions. When called to task on her lack of evidence by the District Court, Thornton simply argued that proving that she was substantially limited from the major life activity of working did not require her to come forward with evidence to “tell the Court what is obvious.” (SER 110:1-6.) Thornton further argued that “far and away” the “easiest” element to prove in this case is the major life activity of working. (SER 108:23-25; 111:4.) Yet, Thornton repeatedly acknowledged that no evidence had been presented to the Court to prove this “readily apparent” essential element of her claims. (SER 110:1-6; 111:4-11, 18-23.) Now, in her opening brief before this Court, Thornton still does not, as she is required to do, cite to any supporting evidence in the record. In stark contrast to Thornton’s self-serving conclusions, the record contains substantial evidence that Thornton is not limited in her ability to work in her profession. Thornton is highly educated, holds a journalism degree, and testified that she was “perfectly able to get other jobs.” (ER 279:14-18.) Moreover, her treating physician and her vocational rehabilitation counselor both felt that Thornton was able to work and was employable in other positions utilizing her education and vocational training, including as a professor at the local university. (ER 361:18-362:20; 366:19-368:6; 369:19-22; 372:5-23.) Indeed, Thornton was accepted into the teaching pool at Fresno State, turned down jobs, and took classes that required her to be in a classroom for a full day, to handwrite, type and take classroom examinations. (ER 259:8-260:24; 261:7-262:5; 264:18-266:25; 370:16-371:1; 544.) Additionally, during the pendency of this litigation, Thornton worked as a free lance journalist. (SER 112:6-13.) Based on this overwhelming evidence, Thornton’s inability to work as a part-time features reporter at The Fresno Bee and her prophylactic handwriting and keyboarding restrictions are insufficient to raise an issue of fact on this element of her claim. See Broussard, supra; Thompson, supra. b. This Court Cannot Take Judicial Notice of A Fact Thornton Has the Burden of Proving Having unsuccessfully opposed McClatchy’s motion for summary judgment with no evidentiary support, Thornton now tries to subvert summary judgment by asking this Court to judicially notice what she could not prove directly; namely that her restrictions would “substantially impair any person from working at a variety of clerical jobs.” [Opening Brief 17-18.] By requesting judicial notice of this fact, however, Thornton not only seeks relief from her evidentiary duties but also more importantly concedes she cannot establish this by competent evidence. Such a request is inappropriate: “Judicial notice” is not [a] talisman by which gaps in a litigant’s evidentiary presentation . . . may be repaired on appeal.” American Stores Co. v. C.I.R.,170 F.3d 1267, 1270 (10th Cir. 1999) (citation omitted). Thornton must not be permitted to bypass the safeguards involved with the usual process of proving facts by competent evidence and to render inoperative the standard mechanisms of proof and scrutiny. Additionally, Thornton’s request is substantively improper. First, her request flies in the face of the Supreme Court’s directive that the determination of whether someone is disabled is an individualized inquiry based on their own abilities. Broussard, 1999 WL 729134 at *4, quoting Sutton, 119 S.Ct. at 2147. Thus, for purposes of determining whether Thornton’s restrictions rose to the level of a disability, the appropriate inquiry is not what “any person” is precluded from doing, but rather what she is precluded from doing, based on her education, training and experience. Sutton, 119 S.Ct. at 2151. Second, judicial notice is limited to facts that are not subject to reasonable dispute and are either “generally known” in the community or “capable of accurate and ready determination by reference to sources whose accuracy cannot be reasonably questioned.” See Fed. R. Evid. 201. The party requesting judicial notice bears the burden of proving this. Thornton cannot establish that the fact for which she seeks judicial notice is “generally known” or readily verifiable. “Generally known” facts are those that exist in the “unrefreshed unaided recollection of the populace at large.” Lussier v. Runyon, 50 F.3d 1103, 1113, (1st Cir. 1995). The fact here, that Thornton’s limitations substantially impaired any person from working a variety of clerical jobs, never achieved the requisite level of popular familiarity. Thornton also cannot show that the facts are readily verifiable. There is no evidence that the information regarding Thornton’s limitations is contained in a generally available and unquestionable source. See e.g. Pyles v. Merit Systems Protection Bd., 45 F.3d 411, 415 (Fed. Cir. 1995) (judicial notice taken of definition of “dementia” contained in medical dictionary). For these reasons, Thornton’s request must be denied. c. Thornton’s Ability to Perform Manual Tasks Was Not Substantially Limited Although performing manual tasks can be a major life activity for purposes of determining whether Thornton is disabled, she must produce evidence that she is substantially limited in a broad range of manual tasks. See Stevo v. CSX Transp., Inc., 11 N.D.L.R. 76, 1997 WL 667816, *5 (N.D. Ill. 1997) (to satisfy disability definition, plaintiff must show that he is substantially limited in a broad range of manual tasks); aff’d 151 F.3d 1033 (7th Cir. 1998) (table); Khan v. Cook County, 10 N.D.L.R. 151, 1997 WL 370199 (N.D. Ill. 1997) (same); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369 372 (6th Cir. 1997) (plaintiff with carpal tunnel syndrome not substantially limited in caring for herself where she alleged only that she was unable to mop floors); Hatfield v. Quantum Chem. Corp., 920 F. Supp. 108, 110 (S.D. Tex. 1996) (plaintiff not substantially limited in caring for himself when he can drive a car, groom himself, have lunch with friends, cook meals for himself and his family, work in his yard, and clean his house). Thornton’s self-serving recitations that she refrains from certain household and recreation activities because they cause her more pain are simply insufficient to avoid summary judgment. A mere difference in an individual’s ability to perform a major life activity does not demonstrate a substantial impairment. Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162, 2168 (1999). Nor is the fact that she has difficulty or experiences pain in performing some manual activities demonstrate that she is disabled. Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997) (moderate difficulty or pain does not rise to level of a disability); Aquinas v. Fed. Express Corp., 940 F. Supp. 73, 78 (S.D.N.Y. 1996) (plaintiff’s shoulder impairment that caused her considerable pain, discomfort and alteration of her activities is not a disability within the meaning of the ADA); see also Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595 (8th Cir. 1998) (impairment making every activity, including driving, a “great struggle” not evidence of a disability). Courts also consider the significance of the particular “manual tasks” at issue in determining whether a person is substantially limited in performing manual tasks. For example, in Ouzts v. US Air, Inc., 1996 WL 578514, 24 A.D.D. 704 (W.D. Pa. 1996), aff’d 118 F.3d 1577 (3rd Cir. 1997) (table), the court held that plaintiff was not substantially limited in performing manual tasks despite her inability to carry items weighing only a few pounds or to engage in any task that required grasping or manipulating items, such as opening doors, dusting, vacuuming, stirring with a spoon, grasping her steering wheel, and opening a can. The evidence also showed that plaintiff was able to perform many other activities such as making her own meals, bathing, and driving her car. Similarly, in Khan, supra, based on circumstances nearly identical to Thornton’s limitations, the court determined that a plaintiff with carpal tunnel syndrome was not substantially limited from performing manual tasks. Khan, 1997 WL 370199 at *6-7 (plaintiff’s inability, because of increased pain, to write for more than 15 to 20 minutes and to do some tasks such as lifting, which he argued prevented him from assisting with household maintenance chores such as carrying grocery bags or taking out the trash, and wearing tie shoes were too narrow of a category of manual tasks and were insufficient to constitute the definition of “manual tasks” contemplated by the ADA). Thornton’s evidence of what she cannot do, like the Khan and Ouzts plaintiffs, pales in comparison to what she can do and results in the same conclusion. The activities that Thornton points to (typing, handwriting, driving long distances and “various other commonplace manual activities” [Opening Brief 15]) are insufficient to qualify as “major” life activities contemplated by the ADA. By Thornton’s logic, any activity can be used to satisfy the definition of disability by simply labeling the activity “manual task.” This position is not only without legal support but also contrary to case law. See Bragdon v. Abbott, 118 S.Ct. 2196, 2205 (1998) (“major” denotes “comparative importance and suggests that the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.”) The District Court properly found that the evidence regarding the significant tasks Thornton was able to perform defeats her claim: “Despite her impairment, plaintiff can still perform a broad range of manual tasks, including cooking, caring for herself, grocery shopping and light housework.” (ER 1679.) See Hilburn v. Murata Elect. North America, Inc., 181 F.3d 1220, 1230 (11th Cir. 1999) (plaintiff’s testimony regarding her ability to eat, bathe, dress, work around the house, walk and work rendered her doctor’s conclusory statement that she was precluded from manual tasks insufficient to defeat summary judgment). Thornton spent her days walking two miles, cooking two to three meals for herself and her family, shopping for groceries, taking her children to lessons or activities, doing laundry, making beds, and picking up around the house. (ER 276:22-277:22; 536.) She was active in her community and her church. (Id.; ER 253:12-256:1; 257:25-258:14.) She took classes at the local university and completed examinations. (ER 259:8-260:24; 261:7-262:5.) In light of her ability to engage in activities of daily living, Thornton’s prophylactic limitations in the work activities of handwriting and typing, and her complaints of increased pain when engaging in certain household and recreational activities are insufficiently fundamental to qualify as “major” activities. See Bragdon, supra. Finally, Thornton presents no evidence of a meaningful limitation in any of these purported manual tasks. At the very most, Thornton has demonstrated that she had a diminished tolerance for certain activities. A diminished tolerance does not equal a substantial limitation. See Hilburn, 181 F.3d at 1227; Cody v. CIGNA Healthcare of St. Louis Inc., 139 F.3d 595 (8th Cir. 1998) (impairment making every activity, including driving, “a great struggle” not evidence of a disability). Thornton cannot show that her increased pain and prophylactic restrictions that were in place to prevent further pain significantly limited her as compared to the general population. She presents no evidence in that regard. Indeed, such a suggestion is unfathomable in light of the evidence demonstrating the many activities Thornton did engage in as part of her active daily life. d. Thornton Was Not Regarded As Disabled In a final attempt to resurrect her case, Thornton argues that even if she is not actually disabled, McClatchy regarded her as disabled. However, Thornton’s “regarded as” claim fails because, once again, she has failed to present any evidence to support her prima facie case. An employer “regards” a person as disabled if it mistakenly believes that a person has an impairment that substantially limits one or more major life activities of the individual; not simply by finding that the employee is incapable of satisfying the singular demands of a particular job. Sutton, 119 S.Ct. at 2149-52 (to be “regarded as” substantially limited from working, one must be regarded as precluded from more than a particular job); Murphy v. United Parcel Service, 119 S.Ct. 2133, 2138 (1999) (same). The “regarded as” prong of the ADA seeks to protect individuals from mis-perceptions that often result from stereotypic assumptions not truly indicative of individual ability. Id. at 2150. Thus, as a matter of law, following doctor-imposed work limitations and seeking accommodations in response to an employee’s demand for accommodations does not support a “regarded as” claim. Thompson, 121 F.3d at 541 (even if employer believes plaintiff is limited as stated in doctor’s restrictions, it does not follow that employer regards plaintiff as disabled). Thornton points to deposition testimony that demonstrates, at most, that McClatchy accepted the handwriting and keyboarding restrictions imposed by her doctor and believed her doctor’s conclusion that Thornton should no longer perform her duties as a part-time features reporter at McClatchy. (See ER 318:23-319:4; 439:14-17.) Once again conceding her evidentiary deficiencies, Thornton then asks this Court to “infer” from this testimony evidence to support her “regarded as” claim. However, inferences are not evidence sufficient to withstand summary judgment. Celotex, 477 U.S. at 323 (to avoid summary judgment plaintiff must come forward with material, specific facts supported by admissible evidence to establish every element essential to claims). Moreover, Thornton’s suggested inferences are not reasonable. In each instance, the witness was only discussing whether Thornton’s restriction prevented her from doing a features reporter job at McClatchy. (See ER 976-977; 1034-1035.) As a matter of law, this is insufficient to show that McClatchy regarded her as disabled. Sutton, supra.; Murphy, supra.; Thompson, supra.; Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1230 (11th Cir. 1999) (there can be no finding of regarded as disabled where employer correctly recognizes employee’s limitations); Real v. City of Compton, 73 Cal.App.4th 1407, 1416-1420 (1999) (fact that employer discussed employee’s work restrictions, met to discuss his condition, or concluded that no modified positions available fails to establish “regarded as” claim). Thornton also asks this Court to infer that McClatchy “regarded” Thornton as substantially limited in all reporting and clerical jobs simply because of Weil and Moyer’s testimony that McClatchy attempted to accommodate her restrictions. (Opening Brief, 18-19.) Once again, these inferences are insufficient to support Thornton’s burden of proof and are unreasonable based on the testimony. More importantly, her suggestion results in a ludicrous conclusion that any time an employer attempts to accommodate an employee’s doctor-imposed restrictions or, as in this case, in response to an employee’s demands, it is automatically regarding her as disabled. Although this approach would be a convenient way for plaintiffs to avoid satisfying their burden of proving that their impairment substantially limits a major life activity, such convenience is not recognized. See Thompson, 121 F.3d at 541; Real, supra. To hold otherwise would undermine the very purpose of the disability discrimination statutes. 3. Thornton’s Failure to Show That She Could Perform Her Job With Reasonable Accommodation Is An Alternative Basis for Affirming Summary Judgment Thornton admits that she could no longer perform her job duties as a part-time features reporter absent a reasonable accommodation. (SER 90:16-19.) Thus, in order to defeat summary judgment, Thornton must demonstrate that she could perform her job with a reasonable accommodation. Barnett, 1999 WL 976709 at *8, citing, 42 U.S.C. section 12111(8) (to be a qualified individual with a disability, employee must be able to perform job with or without reasonable accommodation). It is Thornton’s burden to propose a specific reasonable accommodation that was available during the relevant time period. Id. at *8-9. A “reasonable accommodation” is one that is effective for the individual, that is, gives the individual an equally effective opportunity to perform essential job functions. EEOC Technical Assistance Manual III-9, Section 3.7. It is not reasonable that the proposed accommodation be merely speculative or hypothetical and the proposed accommodation is not reasonable unless it is effective. Barnett, 1999 WL 976709 at *8. As with proof of an alleged disability, the record here is devoid of sufficient evidence demonstrating the existence of a reasonable accommodation for Thornton’s June 1997 restrictions. Thornton’s proposed accommodations included creating a job for her, reassigning her essential reporter job duties, promoting her, hiring her an assistant, or working from home. Thornton concedes, however, that The Fresno Bee was not obligated to create a new position for her and was not obligated to hire an assistant for her. (ER 694:12-14; 695 4-5.) See Barnett, Id. at *12 (employer not required to reassign essential job functions or create new position); Moritz v. Frontier Airlines, Inc., 147 F.3d 784 (8th Cir. 1998)(employer not obligated to hire additional employees). The Fresno Bee also was not obligated to promote Thornton or to reallocate or eliminate the essential functions of her job. 29 C.F.R. section 1630.2(o). Accordingly, Thornton’s suggestion that The Fresno Bee pick and choose job duties to “make-up” a position for her or that The Fresno Bee place her in a position that would be considered a promotion are inherently unreasonable. Thus as a matter of law, Thornton’s proposed accommodations are unreasonable. The only accommodation Thornton proposed was her speculation that she could have done her job if given a litany of inter-connected hypothetical accommodations, including voice recognition technology, tape recorders, working from home, and spreading her 18.75 hour work week out over seven days. However, Thornton fails to demonstrate that any of these, let alone all proposed accommodations could have reasonably accommodated her restrictions. Indeed, the undisputed admissible evidence proves the contrary. Thornton’s own expert, Martin Tibor, could not guarantee that Thornton could perform the essential functions of her job with voice recognition technology. (ER 493:12; 494:15-495:2; 496:15-497:5; 498:12-499:10.) All that Tibor could conclude was that a person could get a “reasonable benefit” from the technology. (ER 494:15-495:2; 499:22-500:18.) Tibor testified that the technology had a narrow niche, which only addressed alternatives to keyboarding. (ER 479:13-30; 480:6-9; 483:3-15.) Tibor conceded the inability of voice recognition technology to address two important functions of a features reporter (note taking and productivity), characterizing note taking as an “unrelated task” to voice recognition technology and productivity level as not being a concern of voice recognition technology. (ER 163:23-24; 164:16-34; 210:13-21; 201:23-202:9; 203:8-24; 212:8-213:23; 313:10-314:23; 486:8-16; 487:4-7, 16-19; 488:23-489:3; 490:11-20; 491:22-492:23; 493:8-12; 496:15-497:4; 498:12-499:10.) Further, the fact that Tibor never even met Thornton underscores the speculative nature of deploying such technology under the specific circumstances here. (ER 157:20.) Such speculation is insufficient for proving the existence of a reasonable accommodation. Barnett, supra, at *8. Thornton bears the burden of proposing an accommodation and showing that such accommodation is objectively reasonable. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996). To be objectively reasonable, the accommodation must be both efficacious and proportional to costs. See Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 543 (7th Cir. 1995). At best, the technology may have allowed Thornton to perform one aspect of her reporting job�keyboarding�without violating her restrictions. There is no evidence in the record demonstrating that the minimal benefit of voice recognition technology (assuming it could address Thornton’s keyboarding restrictions) in this instance is proportional to its costs. Thus, it cannot be considered a “reasonable” accommodation. Similarly, there is no credible evidence that using tape recorders or spreading Thornton’s 18.75 hours of work out over seven days, or any other hypothetical accommodation, alone or combined, would reasonably accommodate her restrictions. When asked directly by the District Court what evidence there was that Thornton’s job could be done by spreading it over seven days, especially in light of deadlines, the only thing Thornton’s counsel could point to was Thornton’s self-serving declaration. (SER 113:3-114:5.) Similarly, when asked by the District Court what evidence there was showing that telecommuting could reasonable accommodate Thornton’s restrictions, Thornton’s counsel argued it had the same purported benefit of spreading tasks out over time. (SER 115:24-116:21.) Thornton’s counsel conceded that such “accommodations” could not address the impact Thornton’s restrictions had on her ability to sufficiently conduct interviews. (SER 116:22- 117:8.) Moreover, Thornton cannot get around the fact that California law prohibits tape recording conversations without consent. See Cal. Penal Code section 632. B. The District Court’s Denial of Thornton’s Motion to Amend Must Be Affirmed Because Thornton Has Failed to Demonstrate That the District Court Acted Arbitrarily Or Committed a Clear Error of Judgment in Denying Her Motion to Amend 1. Standard of Review A trial court’s denial of leave to amend a complaint is reviewable only for an abuse of discretion. M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983). Unless it has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors,” an appellate court cannot find an abuse of discretion. Silber v. Maybon, 18 F.3d 1449, 1455 (9th Cir. 1994); Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997) (abuse of discretion is plain error, discretion exercised to an end not justified by the evidence, “that is clearly against logic and affect of the facts as are found.”) Thus, the scope of appellate review is narrow, and the appellate court cannot “substitute [its own] ideas of fairness for those of the district judge in the absence of evidence that he acted arbitrarily, and such evidence must constitute a �clear showing’ of abuse of discretion.” Silber, 18 F.3d at 1455. While giving minimal recognition to the appropriate standard, Thornton fails to present any credible argument that suggests either Magistrate Beck or Judge Coyle committed a clear error of judgment in denying her second motion for leave to amend to add a public policy claim in violation of Labor Code section 132a. Instead, Thornton rehashes the same arguments that were repeatedly rejected by Magistrate Beck and Judge Coyle in the hope that this Court will improperly substitute Thornton’s ideas of fairness and review the District Court’s decision de novo. Absent any evidence suggesting an abuse of discretion, the District Court’s opinion must be affirmed. 2. Neither Magistrate Beck nor Judge Coyle Abused his Discretion, Acted Arbitrarily, or Made a Clear Error of Judgment In denying Thornton’s second motion for leave to amend, Magistrate Beck appropriately weighed the relevant factors, considered the entire procedural history of the case, and concluded that Thornton’s attempt to assert a public policy claim based on Labor Code section 132a was in bad faith, unduly delayed, and would result in undue prejudice to McClatchy. As such, leave was properly denied. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, (1962). Indeed, this was the second time Magistrate Beck considered the evidence and procedural history of the case and denied Thornton’s motion for leave to amend the complaint. Consequently, no one was, or could be, in a better position than Magistrate Beck to reach such conclusions, having observed the year of heavy pre-trial litigation, court conferences, and Thornton’s prior motion to amend and conditional motion to remand. See Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997) (no abuse of discretion because the district court judge had the unique opportunity of observing two years of pre-trial litigation and was able to speak with confidence in determining the issues based on his view of the case). Moreover, Judge Coyle twice reviewed and affirmed Magistrate Beck’s findings. Thus, the District Court considered the evidence and procedural history of this matter on four separate occasions before issuing the order that Thornton now appeals. There is nothing before this Court that even hints that the District Court’s repeated and exhaustive review of this matter erroneously led to the denial of Thornton’s motion for leave to amend to assert a public policy claim based on Labor Code section 132a. a. No Clear Error in Finding Undue Delay The District Court denied Thornton’s second motion to amend, in part, because it found that she had engaged in undue delay in bringing such a claim. (ER 1602-1603; 1653-1656.) The District Court reached this conclusion because it appropriately determined that Thornton knew about the facts supporting her proposed claim from the beginning of this case and she could have, under existing California law, alleged a public policy claim based on Labor Code 132a regardless of the Moorpark decision. Indeed, the same basic allegations support her original and proposed amended complaints. Moreover, Thornton offered no credible explanation as to why she failed to file a Labor Code 132a claim in her pending workers compensation case if, as she now asserts, she thought she had no authority to bring a public policy claim based on Labor Code 132a in her civil lawsuit until Moorpark. (ER 1654, n.1.) (Id.) The District Court reasonably concluded that Thornton failed to offer a credible explanation for her failure to file her proposed claim at three earlier opportunities: at the time she filed her original complaint, at the time of her first motion to amend, or, immediately following the Moorpark decision. In such circumstances, where only new theories are alleged and the movant does not offer credible explanations as to why she failed to develop those theories originally, a district court does not abuse its discretion in denying leave to amend. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1995); Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 677 (9th Cir. 1993). Further, discretion to deny leave to amend is particularly broad where plaintiff has bypassed other opportunities to amend. Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980). Thornton suggests that her lengthy delay and failure to file the proposed claim on any of the three earlier occasions should be ignored because the August 17, 1998 Moorpark decision represents a “newly discovered fact.” (ER 58:9-10.) This argument is fallacious and was properly rejected by the District Court. Under both Rojo v. Kliger, 52 Cal.3d 65 (1990) and Stevenson v. Superior Court, 16 Cal.4th 880 (1997), the California Supreme Court allowed public policy claims even though the plaintiffs could not meet the jurisdictional requirements for the underlying statutory claim. As the District Court correctly noted, while there were California Court of Appeals cases holding that Labor Code 132a was the exclusive remedy for claims related to workplace injuries, the California Supreme Court had not ruled on the issue and, at the same time, more recently was disposed to broadly interpret the common law claim for wrongful termination in violation of public policy. Moreover, Thornton’s explanations for her delay are nonsensical given the evidence and course of proceedings in this matter. While Thornton argues that she could not bring the proposed public policy claim before the Moorpark decision was issued, the absence of the Moorpark decision did not preclude her from asserting other claims or filing other motions. Specifically, the absence of the Moorpark decision did not prevent Thornton from asserting her original FEHA claim based on a workplace injury, even though she asserts the law was in flux. The absence of the Moorpark decision did not prevent her from filing a premature remand motion specifically based on the anticipated Moorpark decision. Finally, the absence of the Moorpark decision did not prevent her from seeking her June 22, 1998 proposed amendment to assert a public policy claim based on FEHA, despite the fact that Thornton contended such claim a would have been questionable or futile before Moorpark. (SER 19:1-8; 86:12-22.) There is simply no legitimate or excusable explanation for Thornton’s delayed “reasonable extension of the law” argument since she claimed that as of June 22 she knew Moorpark would hold that Labor Code 132a was not the exclusive remedy for workplace injuries resulting in a disability. Indeed, Thornton previously used the “reasonable extension of the law” argument when she tried to assert a frivolous claim for violation of the California Confidentiality of Medical Information Act in her first motion to amend. (SER 57:20-58:8.) Thus, Thornton’s questionable explanations were reasonably rejected by the District Court. Similarly, the District Court appropriately found that Thornton’s proffered explanation as to why she did not move to amend immediately following Moorpark was disingenuous. Thornton postured that she waited because she expected the Court to remand the case and she did not want to “overburden” the Court. (ER 566, 1623.) This explanation is especially suspect given that the District Court already ruled that her conditional motion for remand was not properly before the Court. Further, Thornton never filed a proper motion for remand at any time before offering this explanation. Indeed, every indication from the District Court was that the case would not be remanded. Thornton’s suggestion that she waited to file her motion to amend out of courtesy to the District Court is not only disproved by the barrage of motions Thornton did file, but even if legitimate, it does not excuse her delay. Based on these facts and conclusions, the District Court rejected Thornton’s explanations for her delay as insufficient. (ER 1655:16-20.) See e.g., Kaplan, supra; Westlands, supra; see also Western Shoshone Nat. Council v. Molini, 951 F.2d 200 (9th Cir. 1991)(no abuse of discretion when motion filed two and a half years after the litigation commenced, no justification for the delay and evidence of prejudice). b. No Clear Error in Finding Bad Faith The District Court’s finding of bad faith relied on several factors, including the history of Thornton’s pre-trial antics and her admitted motivation in seeking to undo her inadvertent waiver of a jury trial. (ER 1592-1605, 1650-1662.) In an appropriate analysis, Magistrate Beck noted that other than the possibility of having a jury hear it, Thornton gains absolutely nothing from her proposed new claim. (ER 1603-1604.) The facts she has to prove to prevail will be essentially the same, her damages will be the same or less, and she may be subject to legal standards that are less advantageous to her. (Id.) Thus, he reasonably inferred that her only motive was to defeat summary judgment and attempt to regain her previously waived right to a jury trial. The District Court also based its bad faith finding on Thornton’s disingenuous explanations for her delay, as set forth above. (ER 1655: 16-20.) Indeed, the timing of her motion alone, after discovery closed and months after the Moorpark decision, suggests that the motion was an abusive tactic to attempt to secure the continuation of this litigation before a jury. After months of overseeing this case and becoming intimately familiar with the facts and the parties, Magistrate Beck was in the best position possible to determine the true impetus behind Thornton’s proposed claim. His reasoned analysis cannot be second guessed on appeal. Thornton’s sole argument that the District Court abused its discretion in finding bad faith is her unsupported assertion that pursuit of a viable claim “as a matter of law cannot be rendered an act of ‘bad faith’ by virtue solely of the availability of a jury trial for such a claim.” She cites no authority for such a conclusion. Moreover, this is precisely the same argument she made that the District Court rejected. (ER 1659:23-27.) As noted by the District Court, it was Thornton’s improper motivation and method in seeking leave to amend that constituted bad faith. (ER 58:23-26; 1603-1604, 1660-1661.) See e.g. Sorosky v. Burroughs Corp., 826 F.2d 794 (9th Cir. 1987). c. No Clear Error in Finding Prejudice The District Court also reached a reasoned conclusion based on numerous factors that McClatchy would be prejudiced if Thornton were allowed to assert a new theory. The proposed claim is subject to different legal standards, presents new evidentiary issues, and was proposed after discovery closed and after McClatchy filed its motion for summary judgment. As such, the District Court properly denied Thornton’s motion. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160-1161 (9th Cir. 1989) (no abuse of discretion); M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983) (same); Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) (same where new claim raises issues of state law not closely connected to the federal claim). The new public policy theory, although based on the same core facts, would require different evidentiary proof (i.e., Thornton must show that it was really her workplace injury that caused her termination and not McClatchy’s failure to accommodate her under the ADA). A public policy claim also changes the course of the litigation strategy, especially when the only issues litigated have been disability issues under the ADA and FEHA. Further, prejudice results because the new claim necessitates additional discovery in order to enable McClatchy to make strategic decisions and prepare its defense. At a minimum, McClatchy will have to take additional deposition testimony and written discovery from Thornton, as well as re?assess its affirmative defenses and the use and identity of experts. McClatchy is entitled to discover what Thornton believes proves her case. McClatchy already has made irrevocable strategy decisions in settling the workers’ compensation case, choosing experts, and deposing 23 witnesses. These decisions were made based on the assumption that whether Thornton’s injury was work-related or not was not an issue in the litigation. Finally, given that a summary judgment motion was pending, there was a real possibility that the disposition of the case would be delayed by granting the motion. Under these circumstances, the District Court did not abuse its discretion in denying a motion to amend. Ascon, 866 F.2d at 1160 (litigation on a new theory with even “the possibility” of additional discovery would cause undue prejudice); Western Shoshone Nat’l Council v. Molini, 951 F.2d 200 (9th Cir. 1991) (motion to amend denied because the introduction of major new evidentiary issues at a late stage in litigation would require extensive additional discovery and may therefore be prejudicial); M/V American Queen, supra; (same); Jordan, supra; (same). Significantly, a party’s own actions that result in prejudicial undue delay of a case should also be considered when determining whether leave to amend was properly denied. Ascon, 866 F.2d at 1160-61. Here, Thornton had multiple opportunities to assert her proposed claim, but failed to do so. Further, Thornton herself insisted on an early close to discovery, then caused the District Court to vacate the February 1999 trial date by filing a barrage of discovery and substantive motions, including her first motion for leave to amend. Given the substantial expense and extensive discovery already incurred, it is highly prejudicial to force McClatchy to continue the case for a third time on a nebulous claim. Accordingly, the District Court did not act arbitrarily or in clear error when it concluded prejudice. Ascon, supra; M/V American Queen, supra; Jordan, supra. VII. CONCLUSION Lacking any evidence, Thornton comes to this Court instead with an improper request to take judicial notice of the fact or infer the fact that she has the burden of proving. Despite these evidentiary tactics, Thornton cannot escape what the undisputed facts demonstrate � she was not disabled. Thus, this Court should affirm the District Court’s summary judgment in favor of McClatchy. Similarly, this Court should affirm the District Court’s denial of Thornton’s motion for leave to amend a public policy claim based on Labor Code section 132a. Thornton has not met her burden of demonstrating that the District Court acted arbitrarily or committed a clear error of judgment. Indeed, the record overwhelmingly supports Magistrate Beck’s and Judge Coyle’s repeated and well-reasoned decisions of bad faith, undue delay and prejudice. Based on the foregoing, this Court should affirm the District Court’s ruling on both issues on appeal and award McClatchy its costs on appeal. DATED: November 11, 1999 SEYFARTH, SHAW, FAIRWEATHER & GERALDSON KATHRYN MORRISON MARTHA MICHAEL GATES MICHELLE M. CASEY By MARTHA MICHAEL GATES Attorneys for Defendant/Appellee McCLATCHY NEWSPAPERS, INC.

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