UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Nicole Lang
v. Civil No. 13-cv-349-LM Opinion No. 2015 DNH 075 Wal-Mart Stores East, L.P.
O R D E R
In an order dated March 3, 2015, this court granted a
motion for summary judgment filed by the defendant, Wal-Mart
Stores East, L.P. (“Walmart”). Thereafter, the clerk of the
court entered judgment in Walmart’s favor and closed the case.
The plaintiff, Nicole Lang, has now filed a motion for
reconsideration, and Walmart has objected. For the reasons that
follow, Ms. Lang’s motion for reconsideration is denied.
I. Legal Standard
“[M]otions for reconsideration are appropriate only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st
Cir. 2009); see also LR 7.2(d) (motions for reconsideration must
“demonstrate that the order was based on a manifest error of
fact or law”). II. Background
Ms. Lang was formerly employed by Walmart at a distribution
center located in Raymond, New Hampshire. After her employment
was terminated in August of 2012, Ms. Lang brought a three-count
complaint against Walmart, alleging that Walmart had
discriminated against her on the basis of her pregnancy in
violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12111 et seq. (“Count I”), the New Hampshire Law
Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:7, and New
Hampshire common law.1 Ms. Lang now seeks reconsideration of the
court’s entry of summary judgment solely with respect to Count
I, the ADA claim.
The court granted Walmart’s motion for summary judgment as
to Count I based on a variety of deficiencies in Ms. Lang’s
case. The court found that Ms. Lang could not satisfy any one
of the three elements of her ADA claim, which required that she
“produce enough evidence for a reasonable jury to find that (1)
[she was] disabled within the meaning of the ADA, (2) [she] was
able to perform the essential functions of the job with or
without a reasonable accommodation, and (3) [Walmart], despite
knowing of [her] disability, did not reasonably accommodate it.”
Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003). In
1The factual and procedural background is more fully set forth in the court’s order of March 3, 2015 (doc. no. 27).
2 relevant part, the court found that Ms. Lang was not disabled
within the meaning of the ADA because pregnancy, alone, is not
considered a disability, that Ms. Lang (by her own admission)
could not perform the essential functions of her job involving
the lifting of heavy objects, and that Walmart had not failed to
provide Ms. Lang with a reasonable accommodation because her two
suggested accommodations were per se unreasonable.
III. Discussion
In her motion for reconsideration, Ms. Lang proffers two
arguments. First, she suggests that 2008 amendments to the ADA
expanded the definition of the term “disability” to include
pregnancy-related impairments. Second, under the assumption
that she was disabled, Ms. Lang suggests that Walmart failed to
engage in an “interactive process” to find a suitable
accommodation. These two arguments will be addressed in turn.
A. 2008 Amendments to the ADA
As Ms. Lang notes in her motion for reconsideration,
Congressional passage of the ADA Amendments Act of 2008
(“ADAAA”) broadened the definition of the term “disability.”
See 42 U.S.C. § 12102(1)(C) (defining “disability,” in relevant
part, as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual”);
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 n.6 (1st Cir.
3 2012) (noting that the ADAAA requires that the term “disability”
be construed broadly). Ms. Lang contends that the court
committed a manifest error of law by relying on precedent that
predated the ADAAA in concluding that Ms. Lang was not disabled.
In guidelines promulgated following the passage of the
ADAAA, the Equal Employment Opportunity Commission noted that
“[a]lthough pregnancy itself is not an impairment within the
meaning of the ADA, and thus is never on its own a disability,
some pregnant workers may have impairments related to their
pregnancies that qualify as disabilities under the ADA, as
amended.” Enforcement Guide: Pregnancy Discrimination and
Related Issues, available at http://www.eeoc.gov/laws/guidance
/pregnancy_guidance.cfm#amer. This guidance is reflective of
ADA cases decided after the effective date of the ADAAA, which
generally hold that pregnancy is not an actionable disability,
unless it is accompanied by a pregnancy-related complication.
See, e.g., Annobil v. Worcester Skilled Care Ctr., Inc., No. 11-
40131-TSH, 2014 U.S. Dist. LEXIS 126643, at *35-36 (D. Mass.
Sept. 10, 2014) (“Being pregnant, in and of itself, is not a
handicap. However, complications related to pregnancy can
constitute a handicap.”); Turner v. Eastconn Reg’l Educ. Serv.
Ctr., No. 3:12-CV-788-VLB, 2013 U.S. Dist. LEXIS 169785, at *22
(D. Conn. Dec. 2, 2013) (“Given that the plaintiff has not
presented any evidence showing that her pregnancy was of such a
4 complicated nature to permit the Court to stray from the
accepted holding that pregnancies are not disabilities under the
ADA . . . no reasonable trier of fact could find that the
plaintiff has a disability as defined in the ADA.”).
As the court explained in detail in its March 3 order, Ms.
Lang did not allege facts suggesting that she had a pregnancy-
related complication. Rather, her complaint (and now her motion
for reconsideration) allege facts indicating that Ms. Lang had
lifting restrictions that resulted from an injury that was
wholly unrelated to her pregnancy. Thus, the court’s finding
that Ms. Lang was not disabled within the meaning of the ADA was
not a manifest error of fact or law, even as that term is
broadly defined in light of the ADAAA.2
2 In her motion for reconsideration, Ms. Lang cites two district court cases from other jurisdictions, which she suggests stand for the proposition that she was disabled within the meaning of the ADA. See Price v. UTi Integrated Logistics, LLC, No. 4:11-CV-1428-CAS, 2013 U.S. Dist. LEXIS 142974 (E.D. Mo. Oct. 3, 2013); Cohen v. CHLN, Inc., No. 10-514, 2011 U.S. Dist. LEXIS 75404 (E.D. Pa. July 13, 2011). The court has reviewed these cases, but finds that neither one is on point. As an initial matter, Price is inapposite, as the plaintiff in that case had a “high-risk” pregnancy and was ordered by her doctor to stay confined to her bed as a result of a pregnancy complication. Cohen is an ADA case involving a short-term condition, but it has nothing to do with pregnancy. Ms.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Nicole Lang
v. Civil No. 13-cv-349-LM Opinion No. 2015 DNH 075 Wal-Mart Stores East, L.P.
O R D E R
In an order dated March 3, 2015, this court granted a
motion for summary judgment filed by the defendant, Wal-Mart
Stores East, L.P. (“Walmart”). Thereafter, the clerk of the
court entered judgment in Walmart’s favor and closed the case.
The plaintiff, Nicole Lang, has now filed a motion for
reconsideration, and Walmart has objected. For the reasons that
follow, Ms. Lang’s motion for reconsideration is denied.
I. Legal Standard
“[M]otions for reconsideration are appropriate only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st
Cir. 2009); see also LR 7.2(d) (motions for reconsideration must
“demonstrate that the order was based on a manifest error of
fact or law”). II. Background
Ms. Lang was formerly employed by Walmart at a distribution
center located in Raymond, New Hampshire. After her employment
was terminated in August of 2012, Ms. Lang brought a three-count
complaint against Walmart, alleging that Walmart had
discriminated against her on the basis of her pregnancy in
violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12111 et seq. (“Count I”), the New Hampshire Law
Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:7, and New
Hampshire common law.1 Ms. Lang now seeks reconsideration of the
court’s entry of summary judgment solely with respect to Count
I, the ADA claim.
The court granted Walmart’s motion for summary judgment as
to Count I based on a variety of deficiencies in Ms. Lang’s
case. The court found that Ms. Lang could not satisfy any one
of the three elements of her ADA claim, which required that she
“produce enough evidence for a reasonable jury to find that (1)
[she was] disabled within the meaning of the ADA, (2) [she] was
able to perform the essential functions of the job with or
without a reasonable accommodation, and (3) [Walmart], despite
knowing of [her] disability, did not reasonably accommodate it.”
Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003). In
1The factual and procedural background is more fully set forth in the court’s order of March 3, 2015 (doc. no. 27).
2 relevant part, the court found that Ms. Lang was not disabled
within the meaning of the ADA because pregnancy, alone, is not
considered a disability, that Ms. Lang (by her own admission)
could not perform the essential functions of her job involving
the lifting of heavy objects, and that Walmart had not failed to
provide Ms. Lang with a reasonable accommodation because her two
suggested accommodations were per se unreasonable.
III. Discussion
In her motion for reconsideration, Ms. Lang proffers two
arguments. First, she suggests that 2008 amendments to the ADA
expanded the definition of the term “disability” to include
pregnancy-related impairments. Second, under the assumption
that she was disabled, Ms. Lang suggests that Walmart failed to
engage in an “interactive process” to find a suitable
accommodation. These two arguments will be addressed in turn.
A. 2008 Amendments to the ADA
As Ms. Lang notes in her motion for reconsideration,
Congressional passage of the ADA Amendments Act of 2008
(“ADAAA”) broadened the definition of the term “disability.”
See 42 U.S.C. § 12102(1)(C) (defining “disability,” in relevant
part, as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual”);
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 n.6 (1st Cir.
3 2012) (noting that the ADAAA requires that the term “disability”
be construed broadly). Ms. Lang contends that the court
committed a manifest error of law by relying on precedent that
predated the ADAAA in concluding that Ms. Lang was not disabled.
In guidelines promulgated following the passage of the
ADAAA, the Equal Employment Opportunity Commission noted that
“[a]lthough pregnancy itself is not an impairment within the
meaning of the ADA, and thus is never on its own a disability,
some pregnant workers may have impairments related to their
pregnancies that qualify as disabilities under the ADA, as
amended.” Enforcement Guide: Pregnancy Discrimination and
Related Issues, available at http://www.eeoc.gov/laws/guidance
/pregnancy_guidance.cfm#amer. This guidance is reflective of
ADA cases decided after the effective date of the ADAAA, which
generally hold that pregnancy is not an actionable disability,
unless it is accompanied by a pregnancy-related complication.
See, e.g., Annobil v. Worcester Skilled Care Ctr., Inc., No. 11-
40131-TSH, 2014 U.S. Dist. LEXIS 126643, at *35-36 (D. Mass.
Sept. 10, 2014) (“Being pregnant, in and of itself, is not a
handicap. However, complications related to pregnancy can
constitute a handicap.”); Turner v. Eastconn Reg’l Educ. Serv.
Ctr., No. 3:12-CV-788-VLB, 2013 U.S. Dist. LEXIS 169785, at *22
(D. Conn. Dec. 2, 2013) (“Given that the plaintiff has not
presented any evidence showing that her pregnancy was of such a
4 complicated nature to permit the Court to stray from the
accepted holding that pregnancies are not disabilities under the
ADA . . . no reasonable trier of fact could find that the
plaintiff has a disability as defined in the ADA.”).
As the court explained in detail in its March 3 order, Ms.
Lang did not allege facts suggesting that she had a pregnancy-
related complication. Rather, her complaint (and now her motion
for reconsideration) allege facts indicating that Ms. Lang had
lifting restrictions that resulted from an injury that was
wholly unrelated to her pregnancy. Thus, the court’s finding
that Ms. Lang was not disabled within the meaning of the ADA was
not a manifest error of fact or law, even as that term is
broadly defined in light of the ADAAA.2
2 In her motion for reconsideration, Ms. Lang cites two district court cases from other jurisdictions, which she suggests stand for the proposition that she was disabled within the meaning of the ADA. See Price v. UTi Integrated Logistics, LLC, No. 4:11-CV-1428-CAS, 2013 U.S. Dist. LEXIS 142974 (E.D. Mo. Oct. 3, 2013); Cohen v. CHLN, Inc., No. 10-514, 2011 U.S. Dist. LEXIS 75404 (E.D. Pa. July 13, 2011). The court has reviewed these cases, but finds that neither one is on point. As an initial matter, Price is inapposite, as the plaintiff in that case had a “high-risk” pregnancy and was ordered by her doctor to stay confined to her bed as a result of a pregnancy complication. Cohen is an ADA case involving a short-term condition, but it has nothing to do with pregnancy. Ms. Lang does not cite (and the court is not aware of) any additional case law suggesting that pregnancy, alone, constitutes a recognized disability under the ADA.
5 B. Interactive Process
Ms. Lang next contends that the court committed a manifest
error of law in finding that Walmart did not violate the ADA by
failing to provide Ms. Lang with a reasonable accommodation.
Specifically, Ms. Lang contends that Walmart did not fulfill its
obligation to engage in an “interactive process” to identify a
suitable accommodation for her pregnancy. See, e.g., Tobin v.
Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005) (citing
29 C.F.R. § 1630.2(o)(3) (noting that ADA regulations may impose
on an employer the duty to initiate an “informal, interactive
process” with an employee to identify the “best means of
accommodating [a] disability.”)).
As discussed in the court’s March 3 order, the obligation
under the ADA of an employer to provide a reasonable
accommodation is triggered only where the employee is, in fact,
disabled. See 42 U.S.C. § 12112(b)(5)(A) (discrimination under
the ADA entails “not making reasonable accommodations to the
known . . . limitations of an otherwise qualified individual
with a disability . . . .”); Enica v. Principi, 544 F.3d 328,
338 (1st Cir. 2008). Likewise, an employer is under no
obligation to engage in an interactive process regarding a
reasonable accommodation for an employee who is not disabled.
Here, Walmart was under no obligation to engage in an
interactive process, or to grant Ms. Lang a reasonable
6 accommodation, because Ms. Lang did not have a “disability” as
that term is defined in the ADA.3 Thus, the court’s finding that
Walmart did not violate the ADA in this respect was not a
manifest error of fact or law.
IV. Conclusion
For these reasons, Ms. Lang’s motion for reconsideration
(doc. no. 29) is DENIED.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 3, 2015
cc: Darlene M. Daniele, Esq. Christopher B. Kaczmarek, Esq. Vanessa K. Hackett, Esq.
3Furthermore, for the reasons set forth in the court’s March 3 order, Ms. Lang did not establish that either of her two proposed accommodations was reasonable.