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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GALE CLAPPER, 

Case No. 20-cv-02635 

Plaintiff, 

Hon. Manish S. Shah 

v. Magistrate Judge Maria Valdez 

UNITED AIRLINES, INC. 

Defendant. 

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR RECONSIDERATION 

Defendant United Airlines, Inc. (“United”), by and through its counsel of record, Sean C. 

Herring and Audrey Olson Gardner of Jackson Lewis P.C., hereby submits this response to the 

motion for reconsideration filed by Plaintiff Gale Clapper (“Plaintiff”). 

INTRODUCTION 

Notwithstanding the sound reasoning of the Court’s decision granting United’s motion for 

summary judgment, Plaintiff has filed a redundant motion for reconsideration seeking a second 

bite at the same apple. However, it is well established in the Seventh Circuit that motions for 

reconsideration are to be used only in the rarest of circumstances and are an extraordinary measure 

of relief that are discouraged by courts. Plaintiff has disregarded those principles. Her motion for 

reconsideration merely rehashes the same arguments she made in her opposition to United’s 

motion for summary judgment and otherwise offers blanket statements and conclusions without 

citations to the record or relevant case law. She has failed to explain in any way how the Court’s 

decision was based upon manifest error of law or fact, as she must. She instead makes clear that 

she is simply disappointed with the Court’s decision and wants the Court to re-evaluate the same 

arguments and evidence but reach the opposite conclusion. That is not a proper use of a motion 

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for reconsideration. For these reasons, as well as those discussed below, United requests that the 

Court deny Plaintiff’s motion for reconsideration. 

BACKGROUND 

On April 1, 2022, United filed a motion for summary judgment on all claims in Plaintiff’s 

Complaint. (Dkt. Nos. 76-77.) Plaintiff filed an opposition to United’s summary judgment on 

May 16, 2022 and United filed its reply on June 21, 2022. (Dkt. Nos. 81-84, 87-89.) Through 

those filings, United and Plaintiff collectively presented the Court with: 

 Briefing and argument regarding the facts and applicable law; 

 A declaration from Plaintiff (portions of which the Court disregarded due to lack of 

foundation); 

 Plaintiff’s collective bargaining agreement (“CBA”); 

 United’s relevant employment policies from its Working Together Guidelines and 

Inflight Policies and Procedures for flight attendants; 

 United’s April 2019 letters to Plaintiff regarding her investigative review meeting; 

 United’s statement of findings from the May 6, 2019 investigative review meeting; 

 A screenshot of surveillance video showing a customer service representative was 

present on April 2, 2019, when Plaintiff deplaned and that Plaintiff had a brief 

conversation with the customer service representative; 

 Plaintiff’s termination letter; 

 United’s COBRA notice to Plaintiff; 

 Documents related to Plaintiff’s post-termination appeals pursuant to the CBA; 

 Absence certificates submitted by Plaintiff’s physician; 

 A statement of charges showing that United paid for Plaintiff’s May-June 2019 hip 

surgery and recovery; 

 Plaintiff’s EEOC intake form wherein she admits she is not disabled; 

 The full transcripts and accompanying exhibits of Plaintiff’s deposition as well as the 

depositions of defense witnesses Rosalyn Bishop and Richard Flowers; and 

 Relevant excerpts from the depositions of defense witnesses Robert Krabbe, Daniel 

Dentzer, and Rachel Telson. 

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(See Dkt. Nos. 76-77, 81-84, 87-89.) The Court considered that evidence in deciding United’s 

motion for summary judgment. (See Order1 p. 2-11.) On October 25, 2022, after reviewing the 

evidence and applicable law, the Court, in a thorough 23-page opinion, ruled that Plaintiff failed 

to raise a genuine issue of material fact as to any of the claims in her Complaint and according 

granted United’s motion for summary judgment in full. (See id., p. 1-23.) The following week, 

on November 4, 2022, Plaintiff filed the instant motion for reconsideration. (Dkt. No. 94.) 

STANDARD OF REVIEW 

A motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure is 

an “extraordinary remedy reserved for the exceptional case.” Certain Underwriters at Lloyds v. 

CSX Transp., Inc., No. 20-cv-0795-SPM, 2022 U.S. Dist. LEXIS 71001 at *3 (S.D. Ill. April 18, 

2022) (citing Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008.)) Indeed, motions for 

consideration are heavily disfavored in the Seventh Circuit. HCP of Ill., Inc. v. Farbman Group 

I, Inc., 991 F.Supp.2d 999, 1000 (N.D. Ill. 2013) (citing Bank of Waunakee v. Rochester Cheese 

Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).) As such, “a party moving for reconsideration 

bears a heavy burden and its motion must be supported by a showing of extraordinary 

circumstances.” Mahurkar v. C.R. Bard, Inc., 2003 U.S. Dist. LEXIS 21518 at *1 (N.D. Ill. Dec. 

1, 2003) (citing Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 

(7th Cir. 1996)). 

Extraordinary circumstances are particularly warranted before granting a motion for 

reconsideration because a court’s opinions “are not intended as mere first drafts, subject to revision 

and reconsideration at a litigant’s pleasure.” Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th 

Cir. 2018). Further, “[s]piraling dockets and limited judicial resources necessarily preclude a 

1

 “Order” refers to the Court’s Memorandum Opinion and Order, Dkt. No. 92. 

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permissive attitude toward attempts by losing parties to have another go at it.” HCP of Ill., Inc. v. 

Farbman Group I, Inc., 991 F.Supp.2d at 1000. Indeed, reconsideration “is not a mechanism that 

allows a party to revisit strategic decisions that prove to be improvident, to make arguments that 

could and should have been made in prior briefing, to express mere disagreement with a decision 

of the court, or to reprise or ‘rehash’ arguments that were rejected.” Terese F. v. Saul, 396 

F.Supp.3d 793, 794 (N.D. Ill. 2019) (internal citations omitted). 

Rule 59(e) motions are instead “for the limited purpose of correcting a manifest error and 

a manifest error is not demonstrated by the disappointment of the losing party; rather, it is the 

wholesale disregard, misapplication, or failure to recognize controlling precedent.” Certain 

Underwriters at Lloyds v. CSX Transp., Inc., 2022 U.S. Dist. LEXIS 71001 at *3 (citing Oto v. 

Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)) (internal brackets and quotation 

marks omitted.) A manifest error of law or fact occurs “when there has been a significant change 

in the law or facts since the parties presented the issue to the court, when the court misunderstands 

a party’s arguments, or when the court overreaches by deciding an issue not properly before it.” 

United States v. Ligas, 549 F.3d 497, 501–02 (7th Cir. 2008) (citing Bank of Waunakee v. 

Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)). “To be within a mile of being 

granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for 

changing its mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004). 

ARGUMENT 

A. Plaintiff Has Not Shown that The Court Made a “Manifest Error of Law or Fact.” 

In order to prevail on her motion for reconsideration, Plaintiff must show that the Court 

made a “manifest error of law or fact” in its decision. Oto, 224 F.3d at 606. She has failed to do 

so and, indeed, cannot do so. “A manifest error of law is the ‘disregard, misapplication, or failure 

to recognize controlling precedent.’” Anderson v. Holy See, 934 F.Supp.2d 954, 958 (N.D. Ill. 

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2013) (internal citation omitted); see also In re August, 1993 Regular Grand Jury, 854 F. Supp. 

1403, 1407 (S.D. Ind. 1994) (noting that a manifest error of law is “more than a quibble over the 

proper application or interpretation of legal authority[.]”) 

Here, the Court’s thoughtfully reasoned opinion shows it correctly analyzed Plaintiff’s age 

discrimination, disability discrimination, retaliation, and ERISA claims under controlling legal 

precedent. Plaintiff has not suggested that any legal principle was omitted or incorrectly relied 

upon. Thus, Plaintiff has not shown that the Court engaged in any “manifest error of law” 

sufficient to warrant granting her motion for reconsideration. 

Similarly, the Court did not engage in any “manifest error of fact” as it relied solely upon 

the undisputed facts submitted by the parties in their respective Rule 56.1 statements. (See Order 

p. 2-11.) Further, Plaintiff has not cited to any new evidence not previously submitted to be 

considered, nor has she suggested that the Court failed to understand her arguments or overreached 

by deciding an issue not properly before it. See United States v. Ligas, 549 F.3d at 501 (identifying 

the circumstances when a district court may reconsider a prior decision.) 

As such, because Plaintiff has not shown that the Court committed any “manifest error of 

law or fact,” her motion for reconsideration should be denied. 

B. Plaintiff Fails to Show The Court Made an Improper Credibility Determination. 

Plaintiff argues the Court’s summary judgment order is incorrect because the Court “made 

an improper credibility assessment” when it held that she failed to return a passenger’s lost 

property. Mot.2 p. 3. However, in so arguing, Plaintiff does not contend that the Court believed 

one side’s testimony over the other. Instead, she essentially argues the Court did not consider the 

reasons why she did not return the iPad and the jury should have been permitted to hear her 

2

 “Mot.” refers to Plaintiff’s Motion for Reconsideration, Dkt. No. 94. 

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explanation. Id. at p. 3-4. That is not a credibility determination. Compare Ritchie v. Glidden 

Co., 242 F.3d 713, 723 (7th Cir. 2001) (noting that whether a witness’s testimony is reliable is a 

type of credibility determination.) 

Further, contrary to Plaintiff’s argument, the Court did consider Plaintiff’s purported 

explanation as to why she failed to return the passenger’s missing iPad in its decision. See Order 

p. 5-6. Specifically, the Court recognized that after locating the missing iPad, Plaintiff “tried to 

catch up to the purser who had been aboard the aircraft, intending to turn the iPad over to him” 

and that “she attempted and failed to find the customer service representative at the gate a second 

time” for purposes of returning the iPad. Id. Additionally, the Court explicitly noted that, “Clapper 

intended to either return the iPad to the airport on her next flight or have an Apple store trace the 

owner.” Id. at p. 6. However, the Court explained that ultimately and most critically, “she didn’t 

do either of those things” – which Plaintiff herself does not dispute. See Mot. p. 4-5. Plaintiff also 

argued that she merely “forgot about the iPad.” Mot. p. 4. The Court acknowledged that proffered 

explanation too, specifically stating, “Clapper forgot about the iPad because she was flying for 

much of the next two weeks, dealing with a flood in her basement, and preparing for surgery.” 

Order p. 6. Thus, Plaintiff’s argument that the Court failed to consider the reasons why she did 

not timely return the iPad or contact United about the iPad is baseless. 

The Court made all inferences in Plaintiff’s favor and fully accepted her claim that she 

meant to return the iPad all along yet simply forgot to do so. However, the Court correctly 

reasoned that Plaintiff’s explanation did not change the fact that she “was required to hand over 

customer property retrieved on an aircraft to a customer service representative...failed to do so, 

and...brought the customer’s iPad to her home and forgot about it for two weeks.” Order p. 18. 

The Court properly held that undisputed fact was the reason for Plaintiff’s employment 

termination. Id. Indeed, the Court recognized that United had concluded “Clapper had violated 

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the company’s internal guidelines” and then terminated her employment “because Clapper had 

deprived a customer of his property and failed to follow company guidelines.” Id. 

Thus, Plaintiff has not demonstrated how the Court made any inappropriate credibility 

determination based on the undisputed facts. To the contrary, the Court simply applied the 

undisputed material facts to the law and reached the correct conclusion. Plaintiff’s contention that 

the Court engaged in an improper credibility determination is baseless. 

C. The Court Correctly Concluded Plaintiff is Not Disabled. 

Plaintiff next argues that the Court incorrectly held she is not disabled under the Americans 

with Disabilities Act. Mot. p. 8. However, in support of that argument, Plaintiff does not offer 

any case law in support of her position nor does she identify where the Court purportedly went 

wrong. Instead, she merely argues she “had difficulty walking” and therefore the Court should 

have rendered her disabled under the ADA. Id. Plaintiff is mistaken. She has failed to demonstrate 

any error or misunderstanding by the Court with respect to whether she is disabled under the ADA. 

Indeed, she cannot do so, as the Court’s opinion thoroughly considered the relevant case law in 

holding that walking with a limp is not a disability. See Order, Dkt. No. 92, p. 14 (citing Moore 

v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951 (7th Cir. 2000.) As such, Plaintiff’s motion for 

reconsideration of the Court’s decision granting United summary judgment on her ADA claim 

should be denied. 

D. The Court Correctly Held That Blanco Is Not Similarly Situated to Plaintiff. 

Plaintiff further incorrectly argues that the Court improperly concluded that Julian Blanco 

was not “similarly situated” to her for purposes of her discrimination claims. Mot. p. 8-9. In 

making this argument, Plaintiff again does not identify any “extraordinary circumstances” that 

warrant reconsideration of the Court’s opinion nor does she identify any “material errors” in the 

Court’s analysis. Instead, she simply asserts that Blanco was similarly situated to her because he: 

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(1) “neglected his duties” on April 2 and was therefore also responsible for the missing iPad; (2) 

had previously been disciplined but never terminated; and (3) was assigned to the same base and 

subject to the same standards as her. Id. at p. 9. Those assertions do not warrant reconsideration 

of the Court’s opinion. 

As the Court correctly recognized, the Seventh Circuit has held that factors to consider in 

the “similarly situated” analysis include: (1) whether comparators dealt with the same supervisor, 

(2) were subject to the same standards, and (3) engaged in similar conduct. Coleman v. Donahoe, 

667 F.3d 835, 846-47 (7th Cir. 2012.) The Court already acknowledged that Blanco “may have 

been subject to similar standards” as Plaintiff—a factor she needlessly reiterates in her motion for 

reconsideration. See Order p. 16; Mot. p. 9. However, at summary judgment, Plaintiff failed to 

show that she and Blanco were subject to the same supervisor—and her motion for reconsideration 

remains silent on that critical point as well. See Mot. p. 9. Moreover, Plaintiff still fails to cite to 

any evidence establishing that Blanco engaged in conduct similar to Plaintiff, i.e., taking home a 

passenger’s personal property and then failing to return it. Instead, she merely argues that Blanco 

“neglected his duties” on April 2. However, “neglecting duties,” whatever that may mean, is not 

synonymous with taking home a passenger’s iPad and not returning it. Indeed, as the Court 

explained, even if Blanco had neglected his duties, such “misconduct wouldn’t have been 

comparable to Clapper’s because she took customer property home and failed to alert the company 

or customer.” Order p. 17. 

Finally, the Court noted that Plaintiff failed to offer evidence that Blanco was not disabled 

and was under 40 years of age. While she now conveniently alleges in her motion for 

reconsideration that Blanco was in his twenties in 2019, she fails to cite to any evidence in the 

record supporting this assertion. 

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As such, Plaintiff has failed to demonstrate any extreme circumstances or material errors 

warranting reconsideration of the Court’s conclusion that Blanco was similarly situated to her. 

E. The Court Correctly Held That Plaintiff Failed to Show Pretext. 

Plaintiff also argues that United “had pretextual reasons for firing her, one that Ms. Clapper 

(sic) has discredited.” Mot. p. 10. Again, Plaintiff does not indicate specifically how the Court 

supposedly erred in its decision and instead recycles the same arguments set forth in her opposition 

to United’s motion for summary judgment. 

Specifically, Plaintiff once again argues that: (1) her supervisor, Rosalyn Bishop, knew of 

her age and disability; (2) the human resources employee, Rachel Telson, informed Plaintiff that 

she could pursue surgery using Medicare; (3) United did not extend the disciplinary period to 

accommodate Plaintiff’s surgery; (4) United terminated Plaintiff outside the thirty day period 

under the collective bargaining agreement; (5) a screenshot of Plaintiff returning to the gate in 

search of a customer representative to return the iPad was overlooked during the investigatory 

meeting; and (6) the flight’s purser, Blanco, was not disciplined for the incident. See Mot. p. 10. 

However, in its opinion, the Court thoroughly examined each and every one of those contentions, 

but ultimately (and correctly) concluded that “[n]one of these arguments show that United’s stated 

reason [for terminating Clapper’s employment] was a lie.” See Order p. 18-21. 

Thus, Plaintiff has not explained at all how the Court’s decision was incorrect or involved 

any “manifest error.” She certainly has not demonstrated any “extraordinary circumstances” 

warranting amendment or alteration of the judgment. 

F. The Court Correctly Concluded that United Did Not Intend to Interfere with 

Plaintiff’s Benefits in Violation of ERISA. 

Finally, Plaintiff argues that the Court should reconsider its decision regarding her ERISA 

claim because “Ms. Clapper did sufficiently plead a prima facie case.” Plaintiff confuses the 

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standard for a Rule 12 motion to dismiss with a Rule 56 motion for summary judgment. As the 

Court correctly recognized, to establish a prima facie case of a section 510 violation at the 

summary judgment on her ERISA claim, Plaintiff needed to cite to evidence showing that she: (1) 

belonged to the protected class; (2) was qualified for her position; and (3) was discharged under 

circumstances that provide some basis for believing that United intended to prevent Plaintiff from 

using her benefits. See Order p. 22 (citing Isbell v. Allstate Ins. Co., 418 F.3d 788, 796 (7th Cir. 

2005)). Nevertheless, if United “advance[d] a legitimate, nondiscriminatory reason for its 

action...there’s no need to decide whether [Clapper] has established the prima facie case.” Id. 

Here, the Court recognized that United advanced a legitimate, nondiscriminatory reason 

for terminating Plaintiff’s employment—i.e., depriving its customer of his property and failing to 

follow company guidelines and return it. Consistent with Isbell v. Allstate Ins. Co., 418 F.3d 788, 

796 (7th Cir. 2005), the Court accordingly held that Plaintiff’s ERISA claim failed as a matter of 

law. In so holding, the Court correctly reasoned that Plaintiff “remained eligible for the healthcare 

program at issue even being fired, and there’s no evidence that the Company intended to deprive 

Clapper of benefits”—a position Plaintiff now refutes without any basis and without any citations 

to the record. See Order, p. 22; Mot. p. 12. 

CONCLUSION

Plaintiff has not demonstrated what “extraordinary circumstances” exist so as to render the 

Court’s summary judgment decision materially flawed. She only re-asserts the same arguments 

that were set forth and already rejected by the Court. Indeed, as a whole, Plaintiff has not shown 

that the Court’s decision was based upon any manifest error of law pr fact—she simply reargues 

her points without any new law or supporting facts. A motion for reconsideration is not an 

opportunity for Plaintiff to “have another go” at the same arguments advanced previously. HCP 

of Ill., Inc. v. Farbman Group I, Inc., 991 F.Supp.2d at 1000 (denying motion for reconsideration 

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where movant “essentially rehash[ed] the arguments in the original motion[.]”) Thus, her motion 

for reconsideration is nothing more than a waste of judicial resources and should be denied. 

Wherefore, for the foregoing reasons, United respectfully requests that the Court deny 

Plaintiff’s motion for reconsideration and grant any further relief deemed just and appropriate. 

Dated: December 9, 2022 Respectfully submitted, 

UNITED AIRLINES, INC. 

By: /s/ Sean C. Herring

Sean C. Herring 

Audrey Olson Gardner 

Jackson Lewis P.C. 

150 N. Michigan Avenue, Suite 2500 

Chicago, Illinois 60601 

Tel: (312) 787-4949 

Sean.Herring@jacksonlewis.com 

Audrey.Gardner@jacksonlewis.com 

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CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that on December 9, 2022, he caused a true and 

correct copy of the foregoing DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR 

RECONSIDERATION to be filed with the Court by electronic filing protocols, and that same will 

be therefore be electronically served upon all attorneys of record registered with the Court’s 

ECF/CM system. 

/s/ Sean C. Herring 

4880-6336-8000, v. 1

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