# Dixon v. Regional University System of the Oklahoma Board of Regents

> District Court, E.D. Oklahoma · May 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10385736

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** May 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385736

## How later opinions describe it (automated extraction)

- holding that “one panel of this court cannot overrule the judgment of another panel absent en banc consideration or an intervening Supreme Court decision that is contrary to or invalidates our previous analysis” (citation omitted)
- noting that a motion for reconsideration filed prior to final judgment “was nothing more than an interlocutory motion invoking the district court’s general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

MARCI D. WALKINGSTICK )
DIXON, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-391-GLJ
)
STATE OF OKLAHOMA, ex rel. )
Regional University System of the )
Oklahoma Board of Regents d/b/a/ )
Northeastern State University, )
)
Defendant. )
ORDER
This matter comes before the Court on motion for reconsideration of this Court’s
previous order granting partial summary judgment to Defendant State of Oklahoma ex rel.
the Regional University System of the Oklahoma Board of Regents d/b/a Northeastern
State University (“NSU”).1 For the reasons set forth below, Plaintiff’s Motion to
Reconsider with Authority [Docket No. 137] is DENIED.
I. Procedural History
As relevant to this appeal, Plaintiff’s Amended Complaint, filed on February 4,
2020, alleges the following claims as to NSU: (Count I) gender discrimination, race
discrimination, retaliation for complaints of race and gender discrimination, and hostile
work environment, in violation of Title VII; and (Count II) discrimination and retaliation

1 Plaintiff named three other individual Defendants who have previously been dismissed and are
not part of the present motion. See Docket Nos. 52, 126.
in violation of the Rehabilitation Act.2 NSU moved for summary judgment, which this
Court granted as to all Plaintiff’s claims against NSU except for the hostile work

environment claim. See Docket No. 126. Plaintiff now requests partial reconsideration,
see id., p. 1, of that decision. Although she never clarifies,3 it appears Plaintiff challenges
all portions of that decision which are not favorable to her, i.e., the grant of summary
judgment to her Title VII claims of gender discrimination, race discrimination, and
retaliation, as well as her Rehabilitation Act claims of discrimination and retaliation.

II. Law Applicable
The Federal Rules of Civil Procedure do not recognize a “motion to
reconsider.” Instead, the rules allow a litigant subject to an adverse judgment
to file either a motion to alter or amend the judgment pursuant to
Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to
Fed.R.Civ.P. 60(b). These two rules are distinct; they serve different
purposes and produce different consequences. Which rule applies to a
motion depends essentially on the time a motion is served.

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Moreover, “where, as
here, a party’s motion seeks reconsideration of a non-final order, such relief falls within
the Court's discretionary power to revisit and amend its interlocutory orders as justice
requires.” Equal Emp. Opportunity Comm'n v. Jetstream Ground Servs., Inc., 2016 WL
879625, at *1 (D. Colo. Mar. 8, 2016) (emphasis added) (citing Fye v. Okla. Corp.

2 All other claims have been dismissed and are not relevant to the Motion to Reconsider.
3 Like her Amended Complaint and Response to Defendants’ summary judgment motions, Plaintiff
persists in combining arguments for all claims in Count I by organizing the briefing into the three
steps from the McDonnell Douglas burden shifting test rather than by the actual claims, leaving
the Court to parse the arguments itself. Plaintiff claims her arguments are raised as such “for
conciseness and clarity,” but this organization has the opposite effect, particularly as to clarity.
See Docket No. 126, pp. 19-20, n.5. The Court will not strain to apply the arguments where
Plaintiff has not done so herself.
Comm’n, 516 F.3d 1217, 1224 n. 2 (10th Cir. 2008) (“The District Court’s partial summary
judgment ruling was not a final judgment. Thus, [plaintiff’s] motion for reconsideration is

considered an interlocutory motion invoking the district court’s general discretionary
authority to review and revise interlocutory rulings prior to entry of final judgment.”) and
Fed. R. Civ. P. 54(b)); see also Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005)
(“[E]very order short of a final decree is subject to reopening at the discretion of the district
judge.”) (quotation omitted); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir.
1991) (noting that a motion for reconsideration filed prior to final judgment “was nothing

more than an interlocutory motion invoking the district court’s general discretionary
authority to review and revise interlocutory rulings prior to entry of final judgment.”).
Courts differ as to the standard of review applied to motions to reconsider
interlocutory orders, but many apply the standard for motions to reconsider pursuant to
Rule 59(e). See In re Akbari-Shahmirzadi, 2013 WL 1099794, at *4-5 (D. N.M. March

15, 2013) (collecting cases). The three major grounds for reconsideration of a non-final
order are thus generally considered the same as the grounds for reconsideration under Rule
59(e): “where the court has misapprehended the facts, a party's position, or the controlling
law.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); see also
Bradley v. Denver Health & Hosp. Auth., 2011 WL 766951, at *1 (D. Colo. Feb. 24, 2011)

(“Although courts in this district have applied different standards . . . the basic assessment
tends to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error.”). Even with broad discretionary authority,
however, “[i]t is not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.” Paraclete, 204 F.3d at 1012. Because this
review falls under the Court’s general discretionary authority, the Court also notes that,

“[i]n this circuit, abuse of discretion is defined as ‘an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.’” Brown v. Presbyterian Healthcare Servs., 101 F.3d
1324, 1331 (10th Cir. 1996) (quoting FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.
1994)) (quoting United States v. Hernandez–Herrera, 952 F.2d 342, 343 (10th Cir. 1991)).
Thus, “[a]bsent extraordinary circumstances . . . the basis for the second motion must not
have been available at the time the first motion was filed.” Paraclete, 204 F.3d at 1012.

III. Analysis
In her Motion, Plaintiff argues that the court committed error in incorrectly applying
the summary judgment standard, erroneously requiring proof of discrimination at the prima
facie stage of the McDonnell Douglas4 test and applying the wrong prima facie test,
erroneously applying a “pretext-plus” standard at the pretext stage of McDonnell Douglas,

committing the same or similar errors in evaluating her retaliation claim(s), and improperly
requiring her to prove a disability for her Rehabilitation Act claims where Defendants did
not challenge that requirement. The Court has carefully analyzed the Motion for
Reconsideration (Docket No. 137), the Court's Order granting partial summary judgment
(Docket No. 126), and the briefing on Defendants’ underlying Motion for Summary

Judgment (Docket Nos. 114, 119). Based on that analysis, the Court concludes, as further
discussed below, that its Order granting partial summary judgment to NSU with respect to

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
Plaintiff’s claims was not clearly erroneous, nor did it result in manifest injustice. See King
v. Comm’r of Internal Revenue, 207 Fed. Appx. 681, 683 (7th Cir. 2006) (“Reasonable

minds might disagree over the interpretation of the [piece of evidence], but such a
disagreement is insufficient to amount to clear error.”).
Plaintiff’s Motion to Reconsider does not offer an intervening change in controlling
law, nor any new evidence previously unavailable. Rather, her Motion to Reconsider
reurges the arguments she raised, or could have raised, in response to the summary
judgment motion. More importantly, Plaintiff largely fails to connect her assertions of

error regarding the prima facie case and the evidence of pretext with any specific claim
(race discrimination, gender discrimination, etc.). As stated above, supra n.3, the Court
will not strain to apply the arguments where Plaintiff has not done so herself.
A. Summary Judgment Standard
Plaintiff’s first general assertion of error is that this Court erred in applying the

proper summary judgment standard because she was not given every available inference.
This Court correctly cited the appropriate standard. See Docket No. 126, p. 3, citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”).
Contrary to Plaintiff’s assertion, this standard does not require the Court to adopt every

inference propounded by Plaintiff. “Although the summary judgment standard requires
that all inferences be drawn in favor of the non-moving party the non-movant receives the
benefit of only those inferences that are ‘justifiable,’ ‘reasonable,’ or ‘rational[.]’” Parker
v. Cogentrix Blount Cnty. Holdings, Inc., 2006 WL 561885, at *6 (N.D. Okla. Mar. 6,
2006) (quoting Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998); Liberty
Lobby, 477 U.S. at 255; Gullickson v. Southwest Airlines Pilots’ Ass’n, 87 F.3d 1176, 1183

(10th Cir. 1996); Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001)). The Court has thus
not “misapprehended. . . the controlling law.” Paraclete, 204 F.3d at 1012.
B. Count I – Title VII Claims of Race and Gender Discrimination
a. Prima Facie Case
Plaintiff persists in failing to distinguish her race and gender discrimination claims,
and the Court will no longer attempt to do so for her. Instead, Plaintiff raises general

arguments that this Court incorrectly held her to a newer, three-part formulation of the
McDonnell Douglas test as to certain unidentified claims. Plaintiff contends that the older,
four-part test she cited controls because it has not been modified by an en banc Tenth
Circuit decision or intervening Supreme Court decision, see United States v. White, 782
F.3d 1118, 1126-1127 (10th Cir. 2015) (holding that “one panel of this court cannot

overrule the judgment of another panel absent en banc consideration or an intervening
Supreme Court decision that is contrary to or invalidates our previous analysis” (citation
omitted)), and that the Court erroneously required proof of bias and relied on a lack of
comparators.
The Court used a three-part test articulated by the Supreme Court for which the

Tenth Circuit has more recently expressed a preference. See Docket No. 126, p. 11, n. 4
(“We note that the district court evaluated Ms. Tabor's prima facie case under an older,
four-part test from the original McDonnell Douglas. We use a more recent variation of this
test, a three-part test articulated by the Supreme Court in [Texas Dept. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)], which the Tenth Circuit expressly prefers.” Tabor v.
Hilti, Inc., 703 F.3d 1206, 1216 n.4 (10th Cir. 2013)). The Court acknowledges, however,

that the McDonnell Douglas test was never meant to be “rigid nor mechanistic”; the
overriding issue is whether the Plaintiff has alleged, as a prima facie matter, sufficient facts
to give rise to an inference of discrimination. See Bennett v. Windstream Commc’ns, Inc.,
792 F.3d 1261, 1266 & n.1 (10th Cir. 2015) (emphasis added) (These elements “are neither
rigid nor mechanistic, their purpose is the establishment of an initial inference of unlawful
discrimination warranting a presumption of liability in plaintiff's favor.”) (quotation

omitted) (citing E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)); see also
Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1227 n.6 (10th Cir. 2000)
(“The Court recognized in McDonnell Douglas that although the articulation of the
plaintiff's prima facie test might vary somewhat depending on the context of the claim and
the nature of the adverse employment action alleged,[] the essential purpose served by a

prima facie test remains the same. . . . The critical prima facie inquiry in all cases is
whether the plaintiff has demonstrated that the adverse employment action occurred ‘under
circumstances which give rise to an inference of unlawful discrimination.’” (emphasis
added) (quoting Burdine, 450 U.S. at 253-254). The Court found that Plaintiff failed to
meet this burden as to both her gender and race discrimination claims, then proceeded

through the next two steps of the burden-shifting test only out of an abundance of caution.
See Docket No. 126, pp. 13, 19.
Plaintiff asserted without support in her Response Brief that she was not required to
establish “proof of bias,” and she continues to assert it in her Motion for Reconsideration.
“It is not appropriate to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.” Paraclete, 204 F.3d at 1012. Moreover, the case

language cited by Plaintiff, see Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1166 (10th
Cir. 1998), applies to claims for reduction in force. While Plaintiff has never clearly
articulated her individual claims, it is clear she has not alleged a reduction-in-force claim
and Beaird therefore does not apply. Here, Plaintiff’s unsupported assertion that she meets
the prima facie case requirement for either gender or race discrimination is belied by Tenth
Circuit and Supreme Court law requiring allegations that give rise to an inference of

discrimination.
Finally, Plaintiff contends that the Court erroneously relied on a lack of comparators
to find she had not established a prima facie case. However, the Court stated that showing
she was treated differently than similarly situated employees is “another way” she could
have established a prima facie case, but that she had not. Docket No. 126, p. 12 (emphasis

added). In other words, the Court attempted to analyze every possible avenue to determine
if Plaintiff could meet this non-onerous standard and still found she did not.
b. Pretext
Plaintiff challenges the Court’s findings at the pretext stage of the McDonnell
Douglas test, again without connecting her allegations of error with any specific claim.

Plaintiff likewise misapprehends this standard. After a Defendant propounds a legitimate,
nondiscriminatory reason at step two of the McDonnell Douglas test, “the presumption of
discrimination established by the prima facie showing ‘simply drops out of the picture.’
To survive summary judgment, Plaintiff must establish by a preponderance of the evidence
that the proffered reasons were not the true reasons for the employment decision.” Berry
v. Airxcel, Inc., 2022 WL 2952511, at *7 (D. Kan. July 26, 2022) (quoting St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993)) (citing Aramburu v. Boeing Co., 112 F.3d 1398,
1403 (10th Cir. 1997)). Furthermore, as discussed above, Beaird is inapposite to the claims
in this case and Plaintiff’s citations to it in support of her arguments are unavailing.
Plaintiff further contends that the Court erroneously imposed an impermissible
“pretext plus” standard, which requires a plaintiff to show something more than pretext.
She contends that all doubts about pretext must be resolved in her favor, but even the case

she cited in support states, “[e]ven though all doubts concerning pretext must be resolved
in plaintiff's favor, a plaintiff's allegations alone will not defeat summary judgment.”
Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997). Plaintiff asserts the Court
ignored a “wealth” of pretext evidence in favor of Defendants’ version of facts. In support,
she revisits the evidence discussed at length in this Court’s previous Order, see Docket No.

126, including the evidence relating to her disciplinary write-up for the timekeeping issue,
as well as the annual performance reviews. Again, “[i]t is not appropriate to revisit issues
already addressed or advance arguments that could have been raised in prior briefing.”
Paraclete, 204 F.3d at 1012. Plaintiff contends that her timekeeping issue was not serious
and was a “low level of discipline.” However, it is undisputed that this episode resulted in

an “official reprimand” to Plaintiff. See Docket No. 114, Ex. 3. Furthermore, she contends
that the evidence related to her annual performance evaluations should have been put
before a jury and that the Court erred in failing to find she “Met Expectations” because that
is the inference that favors her. In this regard, the Court declined to make any inferences,
instead finding only that Plaintiff’s contention that these annual reviews were “wholly
favorable” was disputed based on the plain language of the exhibits. See Docket No. 126,

pp. 14-17, 25-26. In revisiting this evidence, Plaintiff contends the Court erred by ignoring
a pervasive plan to manufacture some justification for Plaintiff’s termination. As in her
Response Brief, Plaintiff again refers to often undated and/or unsigned handwritten notes
to support her contention that NSU leadership was looking for reasons to fire her. Plaintiff
also contends, however, this was also an attempt to deprive her of FMLA protection and
allow her to be fired. While Plaintiff may have presented evidence that NSU wished to

fire her, she has failed to establish that NSU’s legitimate, nondiscriminatory reasons for
firing her were a mere pretext for race or gender discrimination. See Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (“At this point, the
presumption of discrimination created by the plaintiff's prima facie case ‘simply drops out
of the picture,’ and ‘[t]he plaintiff then carries the full burden of persuasion to show that

the defendant discriminated on the illegal basis of [age or] gender.’”) (emphasis added)
(quoting St. Mary's, 509 U.S. at 511, and Bryant v. Farmers Insurance Exchange, 432 F.3d
1114, 1125 (10th Cir. 2005)).
C. Count I, Title VII Claim of Retaliation
On her claim(s) for retaliation based on race and/or gender, Plaintiff contends the

Court incorrectly calculated the temporal proximity of the time from her most recent
complaint considered protected activity to her termination because her intervening FMLA
leave should have resulted in an adjustment to the time calculation, and she persists in
contending that she did not merely repeat her earlier claims at the July 27 interview. Both
arguments were or should have been addressed in the earlier briefing and the Court declines
to revisit it now. “It is not appropriate to revisit issues already addressed or advance

arguments that could have been raised in prior briefing.” Paraclete, 204 F.3d at 1012.
“Absent extraordinary circumstances . . . the basis for the second motion must not have
been available at the time the first motion was filed.” Id.
Plaintiff further contends the Court erred in applying a “but-for” causation standard
at the prima facie stage, because an inference is sufficient. Additionally, Plaintiff
resurfaces her argument that the Court imposed a “pretext-plus” standard by collapsing the

prima facie case and fusing it with the pretext stage. But the Tenth Circuit has stated that,
at the prima facie stage, “where a considerable length of time has elapsed between a
protected activity and an adverse employment action, a plaintiff wishing to survive
summary judgment must ‘present ‘additional evidence’ tying the adverse employment
actions to [the plaintiff's protected activity].’” Foster v. Mountain Coal Co., LLC, 830 F.3d

1178, 1191 (10th Cir. 2016) (citing Burdine, 450 U.S. at 253-254; Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). “The Supreme Court has likened this
burden to a showing of ‘but-for causation.’” Ward v. Jewell, 772 F.3d 1199, 1203 (10th
Cir. 2014) (quoting University of Texas Southwestern Medical Center v. Nassar, 570 U.S.
338, 360 (2013)). Here, Plaintiff relied only on temporal proximity, and the Court found

that her complaint was not sufficiently closely followed by her termination to meet the
“but-for” causation standard that applies when temporal proximity will not suffice.
Finally, Plaintiff contends she presented sufficient evidence of a motive for
retaliation because Dr. Reif was angry and stated that he found Plaintiff’s claims of sexism
and/or racism to be “very insulting” and “insulting to my very core.” See Docket No. 119,
Ex. 29, p. 4. In fact, Dr. Reif asked the NSU investigating committee for options for filing

a complaint of defamation of character. Dr. Reif believed Plaintiff wanted his job, and that
she was resisting the ITS Department’s move to greater transparency and accountability.
Id. But the cases Plaintiff cites in support of her argument all pertain to claims for violation
of an individual’s First Amendment right to free speech and are inapposite to the claim
here. Moreover, although Dr. Reif may have participated in discussions regarding her
termination, he was not the ultimate decisionmaker for it. And once again, Plaintiff fails

to tie any of the evidence to specific race or gender discrimination. See Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-148 (2000) (“‘It is not enough . . . to
dis believe the employer; the factfinder must believe the plaintiff's explanation of
intentional discrimination.’ . . . For instance, an employer would be entitled to judgment as
a matter of law if the record conclusively revealed some other, nondiscriminatory reason

for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether
the employer's reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”) (quoting St. Mary’s, 509 U.S. at 519
(emphasis in original)).
D. Count II - Rehabilitation Act Claims

Lastly, Plaintiff contends the Court erred in granting summary judgment on her
claims under the Rehabilitation Act. Plaintiff asserts the Court wrongly determined she
did not have a disability because NSU did not challenge the disability element of her claim
and the Court therefore improperly imposed an argument on behalf of NSU. The Court
pointed out Plaintiff’s error on this point in its original Order while acknowledging NSU’s
Motion for Summary Judgment and Brief likewise posed organizational problems, see

Docket No. 126, pp. 31-32 n.6, but does so once again here. NSU’s Motion for Summary
Judgment states,
c. As to Disability. Simply put, Plaintiff offers nothing. Plaintiff produced
no documents or other evidence in this case showing a medically diagnosed
disability. Plaintiff produced no evidence of requests to NSU to
accommodate any disability. (UMF #22). Plaintiff produced no evidence
that any one at NSU regarded Plaintiff as disabled. (UMF #21).

Docket No. 114, p. 21, ¶ “c.”5 Thus, the Court imposed no burden on what Plaintiff should
have argued, and confined itself to the argument raised by NSU, namely, that Plaintiff did
not have a disability.
Finally, the Court notes that Plaintiff also misapprehends the Court’s Rehabilitation
Act analysis regarding the discussion as to whether Plaintiff’s FMLA application was
sufficient to count as protected activity under the Rehabilitation Act. The Court stated that
the law was unclear, and further noted that the evidence in this case was particularly unclear
as to the nature of the leave and whether such leave would qualify under the Act. See
Docket No. 126, p. 26. The Court created no “bright-line rule,” as asserted by Plaintiff.
In sum, for the reasons this Court rejected those arguments previously, see Docket
No. 126, it rejects those arguments again now. Because she has failed to demonstrate that
reconsideration of any part of the Court's Order (Docket No. 126) is appropriate or
warranted, Plaintiff’s Motion for Reconsideration (Docket No. 137) must be denied.

5 The Court refers to the page numbers assigned to the docketed motion by the Court’s docketing
system. Plaintiff could also reference numbered page 14 of the Motion.
CONCLUSION
Accordingly, Plaintiff’s Motion to Reconsider with Authority [Docket No. 137] is

hereby DENIED.
IT IS SO ORDERED this 17th day of May, 2023.

GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385736. Public record. Not legal advice.