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LaCount v. South Lewis Sh Opco, LLC

United States District Court, N.D. Oklahoma

May 5, 2017

WHITNEY M. LACOUNT, Plaintiff,
v.
SOUTH LEWIS SH OPCO, LLC, a Domestic Limited Liability Company d/b/a THE VILLAGES AT SOUTHERN HILLS, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint and Brief in Support (Dkt. # 22). Defendant argues that plaintiff's amended complaint (Dkt. # 21) does not adequately allege a claim of pregnancy discrimination, and defendant also asserts that the Court's opinion and order (Dkt. # 20) dismissing plaintiff's original complaint did not permit her to re-allege claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). Plaintiff concedes that she did not have leave of court to re-allege her ADA claims in her amended complaint, but she asks the Court to reconsider the dismissal of her ADA claims. Dkt. # 26, at 3. She also argues that she has only a minimal burden to allege facts in support of her pregnancy discrimination claim, and she believes that she has alleged enough facts to support an inference that her employment was terminated because of her pregnancy. Id. at 7-8.

         I.

         Whitney M. LaCount worked as a certified nursing assistant (CNA) at defendant (“The Village”) from February 2014 to March 2015, and she alleges that she was assigned to the assisted living unit. Dkt. # 21, at 2. LaCount states that residents in the assisted living unit “need minimal care and assistance.” Id. In late January or early February 2015, LaCount believed that she was approximately five weeks pregnant, and she informed her supervisor, Clarissa Brown, of the pregnancy. Id. at 3. LaCount told Brown that she could perform all of her duties except for lifting one particular resident, and LaCount was required to lift this resident once each day. Id. She did not believe that this restriction would prevent her from working, because there were at least five other employees working in her unit who could assist with this particular task. Id. However, LaCount was required to assist with lifting the resident until she could provide documentation from a physician imposing a lifting restriction. Id.

         On March 5, 2015, LaCount visited her physician and was informed that she was 13 weeks pregnant, and she received a doctor's note restricting her from lifting more than 25 pounds. Id. LaCount provided the note to Brown, and Brown consulted with Amy Upton in the human resources department about LaCount's lifting restriction and pregnancy. LaCount alleges that Upton informed her that she was a “liability” and immediately placed LaCount on medical leave. Id. Upton told LaCount that she would inquire if LaCount could keep her health benefits while she was on medical leave, but LaCount claims that she never heard if a decision was made on this issue. Id. LaCount states that her employment was terminated when her leave under the Family and Medical Leave Act (FMLA) expired after 12 weeks. Id. at 4. LaCount cites the following provisions from defendant's Community Team Member Handbook:

Disabilities
Consistent with its obligations under the [ADA], the Community provides reasonable accommodation to applicants and team members who are qualified individuals with disabilities with the meaning of the ADA. Individuals with temporary injuries or with work restrictions due solely to pregnancy are generally not disabled for purpose of the ADA.
In general, a reasonable accommodation is considered to be any change in the work environment or in the way things are customarily done that enables an otherwise qualified individual with a disability to enjoy equal employment opportunities . . . .
After an otherwise qualified applicant or team member with a disability discloses the need for an accommodation, the Community will engage in an informal, interactive process with the individual to determine the appropriate accommodation. The Community is not obligated to implement an accommodation that requires elimination of an essential function of the team member's job, that places undue hardship on the Community or that would result in a direct threat to the health or safety of the individual or others.
Pregnancy
The Pregnancy Discrimination Act prohibits . . . discrimination on the basis of pregnancy, childbirth or related medical conditions. Applicants or team members affected by pregnancy or related medical conditions must be treated in the same manner as other applicants or team members with similar non work-related limitations. However, as in the case of disabled applicants and team members, the Community is not obligated to eliminate a team member's essential job functions, incur undue hardship or permit situations that would result in a direct threat to the health or safety of the pregnant team member or others.

Id. at 4-5.

         On July 25, 2016, LaCount filed this case in Tulsa County District Court, alleging claims under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII), the Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101 et seq. (OADA), the ADA, and Employment Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). The case was removed to this Court on the basis of federal question jurisdiction. Defendant filed a motion to dismiss, and the Court entered an opinion and order (Dkt. # 20) granting the motion in part and finding the motion moot in part. LaCount voluntarily dismissed her ERISA claim, and the motion to dismiss was moot as to that claim. Dkt. # 20, at 1. As to her Title VII claim, LaCount did not allege that she had direct evidence of discrimination, and the Court considered whether LaCount had alleged sufficient facts to support a claim of discrimination based on circumstantial evidence. Id. at 4. The Court did not require that plaintiff allege facts in the context of a prima facie case of pregnancy discrimination, but the Court cited EEOC v. Ackerman, Hood & McQueen, 956 F.2d 944 (10th Cir. 1992), for the proposition that a plaintiff must allege that similarly situated, non-pregnant workers were treated more favorably that the plaintiff. Dkt. # 20, at 5. The Court found that plaintiff's petition did not allege that she was treated differently than similarly situated, non-pregnant workers, but found that it was “not ‘patently obvious'” that allowing plaintiff to file an amended complaint re-alleging her Title VII claim would be futile. Id. at 6. As to plaintiff's ADA claim, the Court noted that “pregnancy and related medical conditions do not, absent unusual circumstances, constitute a ‘physical impairment' under the ADA, ” and plaintiff had not alleged that she had any complications or conditions that would make her pregnancy unusual. Id. at 7-8. The Court found that plaintiff had failed to adequately allege that she had a physical or mental impairment that would qualify as a disability, and the Court dismissed plaintiff's ADA claim without granting her leave to amend.

         Plaintiff filed an amended complaint (Dkt. # 21) that is substantially similar to her original petition, and she alleges claims of pregnancy discrimination under Title VII (Count One) and the OADA (Count Two) and a failure to accommodate claim under the ADA (Count Three). Defendant has filed a ...


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