United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
case arises out of Defendant Western Industries Corp.'s
termination of Plaintiff James Lister's employment after
a safety incident involving a saw that could have, but did
not, result in serious physical injuries to another employee.
His First Amended Complaint pursues claims for unlawful
discrimination as well as “employer negligence”
arising from Defendant's violations of the Occupational
Safety and Health Act of 1970 (“OSH Act”) and its
denial of Plaintiff's request for workers'
compensation benefits. The Court granted in part and denied
in part Defendant's motion to dismiss Plaintiff's
claims, and dismissed Plaintiff's “employer
negligence” claim. Plaintiff seeks reconsideration of
the Court's dismissal of his “employer
negligence” claim. For the reasons explained below, the
Court denies Plaintiff's motion for reconsideration (Doc.
Factual and Procedural Background
According to Plaintiff's First Amended Complaint, filed
on November 14, 2017, Plaintiff began working for Defendant
as a “temp” on November 25, 2015, with the
potential for permanent hire after 90 days. On January 19,
2016, Plaintiff and three other employees were involved in a
workplace safety incident that almost, but did not, seriously
injure another employee. Plaintiff alleges that Defendant
discriminated against him on the basis of his race when it
fired only him, the sole African American involved in the
incident, while at the same time retaining the three white
employees also involved in the incident.
First Amended Complaint also implies that he either filed or
attempted to file a workers' compensation claim relating
to saw dust, and that Defendant precluded him from pursuing
workers' compensation benefits. It does not identify when
he sought workers' compensation benefits; nor does it
identify the alleged injury entitling him to such
benefits. On November 27, 2017, Defendant filed a
motion to dismiss Plaintiff's First Amended Complaint.
The Court denied Defendant's motion as to Plaintiff's
discrimination claim, but granted it as to Plaintiff's
OSHA and KWCA claims.
filed a motion for reconsideration under Fed.R.Civ.P. 59(e)
identifying additional factual allegations regarding his
attempts to file a workers' compensation claim, his lack
of insurance, the injury he claims to have suffered, and
Defendant's alleged denial of his workers'
compensation claim. Plaintiff asserts that he has attempted
to call Defendant several times to file a workers'
compensation claim due to sawdust exposure that has affected
his asthma, and that Defendant has denied his attempts to
file a claim in violation of the KWCA. Plaintiff attached a
“denial letter” to his motion for
reconsideration. It is a letter from Defendant's counsel
stating, “Mr. Lister, I have spoken with April Beverly
and confirmed that any workers' compensation claim will
need to be submitted to Manpower. Here is the contact
information I have . . .”, and providing contact
information for the Wichita/Hutchinson, Kansas, Branch
Manager of Manpower.
Court may only grant a motion to alter or amend a judgment
under Fed.R.Civ.P. 59(e) if Plaintiff can establish:
“(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.” In other words, relief may be granted if
the Court “misapprehended the facts, a party's
position, or the controlling law.” Absent
extraordinary circumstances, the Court will not grant a
motion for reconsideration that “merely advances new
arguments, or supporting facts which were available at the
time of the original motion.”
has not satisfied his burden to establish any of the grounds
that may support his motion for reconsideration. He does not
allege the existence of an intervening change in law or that
his motion must be granted to correct clear error or prevent
manifest injustice-nor would the record support either
argument. Instead, he appears to rely on the “new
evidence previously unavailable” justification.
Plaintiff, however, does not purport to rely on new
evidence-he does not identify the dates associated with his
factual assertions or claim that the facts were previously
unavailable to him. Indeed, both exhibits attached in support
of his motion pre-date his First Amended
Complaint. Plaintiff does not assert “new
evidence previously unavailable” and has not identified
extraordinary circumstances to allow the Court to consider
the additional facts. Rather, it appears that Plaintiff
merely advances new facts available to him before he filed
his First Amended Complaint and before the parties'
briefed Defendant's motion to dismiss. Plaintiffs motion
for reconsideration fails to meet the criteria for altering
or amending this Courts' prior Memorandum and Order (Doc.
28). Accordingly, the Court denies Plaintiffs motion for
IS THEREFORE ORDERED that Plaintiffs Motion for
Reconsideration (Doc. 30) is DENIED
IS SO ORDERED