United States District Court, N.D. Oklahoma
WHITNEY M. LACOUNT, Plaintiff,
SOUTH LEWIS SH OPCO, LLC, a Domestic Limited Liability Company d/b/a THE VILLAGES AT SOUTHERN HILLS, Defendant.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion to Reconsider the
Court's Order Granting Defendant's Motion to Dismiss
(Dkt. # 30). Plaintiff asks the Court to reconsider its
opinion and order (Dkt. # 28) dismissing her claims of
pregnancy discrimination. Defendant responds that the Court
considered all of the arguments raised by plaintiff in
support of her pregnancy discrimination claims in its opinion
and order and plaintiff's pregnancy discrimination claims
were properly dismissed.
25, 2016, plaintiff filed this case in Tulsa County District
Court, alleging that her former employer, South Lewis SH
OPCO, LLC, terminated her employment after learning that she
was pregnant. Plaintiff alleged claims under 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 Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.
(ADA), and the Employment Retirement Income Security Act, 29
U.S.C. § 1001 et seq. (ERISA). Defendant
removed the case to this court and filed a motion to dismiss
plaintiff's claims. In her response, plaintiff agreed to
voluntarily dismiss her ERISA claim and she requested leave
to file an amended complaint re-alleging her Title VII and
OADA claims, but she argued that she had properly pled a
claim under the ADA. Dkt. # 17. The Court found that
defendant's motion to dismiss was moot as to
plaintiff's ERISA claim and granted the motion to dismiss
as to plaintiff's remaining claims. Plaintiff was
permitted to file an amended complaint re-alleging her Title
VII and OADA claims, but she was not granted leave to include
an ADA claim in her amended complaint. Dkt. # 20, at 6-8.
Plaintiff filed an amended complaint (Dkt. # 21) alleging
pregnancy discrimination claims under Title VII and the OADA
(counts one and two) and a disability discrimination claim
under the ADA (count three).
filed a motion to dismiss (Dkt. # 22) the amended complaint
and argued that the amended complaint failed to state claims
of pregnancy discrimination under Title VII and the OADA.
Defendant noted that plaintiff did not have leave of court to
include an ADA claim in the amended complaint, but it moved
to dismiss the ADA claim under Fed.R.Civ.P. 12(b)(6) if the
Court declined to dismiss the ADA as improperly included in
the amended complaint. Dkt. # 22, at 6 n.2. In her response
to the motion to dismiss, plaintiff asked the Court to
reconsider its decision to dismiss her ADA claim and she
argued that a lifting restriction imposed by her physician
could be considered a pregnancy-related impairment. Dkt. #
26, at 3-5. Plaintiff asserted that defendant's policies
concerning pregnant and disabled workers constituted direct
evidence of pregnancy discrimination, and she also argued
that her allegations were sufficient to support an inference
of pregnancy discrimination based on circumstantial evidence.
Id. at 6-9.
Court entered an opinion and order (Dkt. # 28) granting
defendant's motion to dismiss and entered a judgment of
dismissal (Dkt. # 29). The Court stated that it could have
dismissed plaintiff's ADA claim on the ground that
plaintiff did not have leave to include the claim in her
amended complaint. Dkt. # 28, at 6. However, the Court
considered the allegations of the amended complaint and found
that plaintiff's pregnancy did not qualify as a
disability under the ADA. Id. at 6-7. As to
plaintiff's pregnancy discrimination claims, the Court
considered plaintiff's argument that defendant's
disability and pregnancy policies were direct evidence of
discrimination. Id. at 8. The cited policies
accurately tracked existing law as to pregnancy and
disability discrimination, and the policies did not tend to
show that defendant acted with discriminatory animus when it
terminated plaintiff's employment. Id. at 9. The
Court next considered whether the well-pleaded allegations of
the amended complaint gave rise to an inference of
discrimination, and the Court did not require that plaintiff
make out a prima facie case of pregnancy
discrimination at the pleading stage. Id. at 10.
Plaintiff alleged that defendant accommodated non-pregnant
employees in some situations, but her allegations were too
vague for the Court to infer what conditions or restrictions
the other employees had and if they were similarly situated
to plaintiff. Id. Plaintiff's allegations did
not support an inference that she was treated differently
than any other employee because of her pregnancy, and she had
not stated claims under Title VII or the OADA.
motion to reconsider was filed within 28 days of the entry of
judgment of dismissal, and the Court will treat
plaintiff's motion as a motion to alter or amend judgment
under Fed.R.Civ.P. 59(e). Under Rule 59(e), a party may ask a
district court to reconsider a final ruling or judgment when
the district court has “misapprehended the facts, a
party's position, or the controlling law.”
Barber ex rel. Barber v. Colo. Dep't of Revenue,
562 F.3d 1222, 1228 (10th Cir. 2009). “Grounds
warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Reconsideration is “not available to allow a party to
reargue an issue previously addressed by the court when the
reargument merely advances new arguments or supporting facts
which were available for presentation at the time of the
original argument.” FDIC v. United Pac. Ins.
Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quoting
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577
(10th Cir. 1996)). “A Rule 59(e) motion to reconsider
is designed to permit relief in extraordinary circumstances
and not to offer a second bite at the proverbial
apple.” Syntroleum Corp. v. Fletcher Int'l,
Ltd., 2009 WL 761322 (N.D. Okla. Mar. 19, 2009).
argues that the Court overlooked allegations that would
constitute direct evidence of pregnancy discrimination, and
she asserts that the Court's decision to dismiss her
pregnancy discrimination claims is inconsistent with the
Supreme Court's decision in Young v. United Parcel
Service, Inc., 135 S.Ct. 1338 (2015). In its prior
opinion and order, this Court specifically considered whether
plaintiff had made allegations that would qualify as direct
evidence of pregnancy discrimination, and the Court concluded
that the employment policies cited by plaintiff were not
direct evidence of discriminatory animus. Dkt. # 28, at 8-9.
Plaintiff asserts that Amy Upton, a human resources employee,
told plaintiff that she had become a
“‘liability' due to her pregnancy”
before plaintiff was involuntarily placed on medical leave
and eventually terminated. Dkt. # 30, at 2-3. However,
plaintiff did not allege in her amended complaint that Upton
said that plaintiff was a “liability” because of
her pregnancy, and this is a subtle but significant
alteration to the specific statement allegedly made by Upton.
In her amended complaint, plaintiff alleges that she notified
her employer in late January or early February 2015 that she
was pregnant, and she continued to work as normal until she
reported to work on March 5, 2015 with a lifting restriction.
Dkt. # 21, at 2-3. Plaintiff alleges that on March 5, 2015
“Upton . . . informed her that she was being placed on
medical leave from work and that she [LaCount] had become a
‘liability.'” Id. at 3. The Court
considered Upton's alleged statement as circumstantial
evidence of discriminatory intent, and this was the
appropriate way to consider Upton's remark. Plaintiff
argues that the Court misapplied Young and imposed
too heavy of a burden at the pleading stage. Dkt. # 30, at 4.
She argues that defendant had a blanket policy of refusing to
accommodate pregnant employees and that pregnant employees
were treated differently than other disabled employees.
Id. The Court has explained in its two prior opinion
and orders that pregnancy is not a per se
disability, and plaintiff's attempts to compare herself
to employees with actual disabilities is not the relevant
comparison. Plaintiff is correct that Young
specifically considered whether an employer's failure to
accommodate a pregnant employee with a lifting restriction is
evidence of discriminatory intent when there is evidence that
the employer accommodated non-pregnant employees with such a
restriction. Young, 135 S.Ct. at 1354. In its
opinion and order, the Court noted that plaintiff does not
allege that any other employee with a lifting restriction was
granted an accommodation or that similarly situated,
non-pregnant employees ever received an accommodation.
Plaintiff merely alleges that non-pregnant and disabled
employees were given an accommodation in some circumstances,
but plaintiff's allegations are so general that the Court
cannot reasonably infer that the other employees were
similarly situated to plaintiff. Plaintiff's motion to
reconsider merely repeats arguments that have already been
considered and rejected by this Court, and her motion (Dkt. #
30) should be denied.
IS THEREFORE ORDERED that Plaintiffs Motion to
Reconsider the Court's Order Granting Defendant's
Motion to Dismiss (Dkt. # 30) is denied.
 Plaintiff asserted a disability
discrimination claim in her state court petition (Dkt. # 2)
and, after the case was removed to this Court, the disability
discrimination claim was dismissed due to plaintiff's
failure to allege that she was disabled. Dkt. # 20, at 7-8.
Plaintiff has not sought reconsideration of that ruling in
her motion to reconsider and the Court ...