Laporta v. Wal-Mart Stores, Inc.

• Decision Date: 22 May 2001
• Docket Number: No. 4:00CV50.,4:00CV50.
• Citation: 163 F.Supp.2d 758
• Parties: Michelle LAPORTA, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

163 F.Supp.2d 758

Michelle LAPORTA, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 4:00CV50.

United States District Court, W.D. Michigan, Southern Division.

May 22, 2001.

COPYRIGHT MATERIAL OMITTED

John T. Burhans, Burhans Law Offices, St. Joseph, MI, for Plaintiff.

Michael S. Bogren, Plunkett & Cooney, P.C., Kalamazoo, MI, Susan Klooz, Wal-Mart Stores, Inc., Bentonville, AR, for Defendant.

OPINION

SCOVILLE, United States Magistrate Judge.

This is an employment action brought under federal and state disability statutes. Plaintiff, Michelle LaPorta, brings claims under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101-12213, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), and the analogous Michigan statutes, the Elliott-Larsen Civil Rights Act, MICHCOMP.LAWS §§ 37.1607-37.2804, and the Persons With Disabilities Civil Rights Act, MICH.COMP.LAWS § 37.1101-37.1607. Plaintiff's claims arise from her termination from employment as a pharmacist by defendant Wal-Mart Stores, Inc. after defendant allegedly failed to accommodate plaintiff's asserted disability of infertility. The matter is now before the court on defendant's motion for summary judgment. The case has been referred to me for all proceedings, including the entry of final judgment, upon the written consent of the parties pursuant to 28 U.S.C. § 636(c). (See Consent and Order of Reference, docket # 9).

The court conducted a hearing on defendant's motion on April 25, 2001. For the reasons set forth below, the court concludes that plaintiff has stated a viable claim under the ADA and analogous state law and that genuine issues of material fact preclude entry of judgment as prayed for by defendant. The court further concludes, however, that defendant is entitled to judgment as a matter of law on her claim under the Pregnancy Discrimination Act and Elliott-Larsen Civil Rights Act.

Summary Judgment Standard

As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478-81 (6th Cir.1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir.1997) (en banc); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir.1996); Payne v. Board of Education, 88 F.3d 392, 397 (6th Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The standard for determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir.1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52, 106 S.Ct. 2505); see also, EEOC v. United Parcel Serv., 249 F.3d 557, 561-63 (6th Cir.2001); Henderson v. Ardco, Inc., 247 F.3d 645, 648-49 (6th Cir.2001).

The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 576, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir.1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir.1993). Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Facts

The following facts, with all inferences and disputed issues resolved in favor of plaintiff as the nonmoving party, are as follows.

Defendant Wal-Mart Stores, Inc. hired plaintiff as a pharmacist at its Benton Harbor, Michigan, store on or about January 20, 1995. Plaintiff was hired to work seventy hours every two weeks, by completing seven ten-hour shifts — four days one week and three days the next. During the time of plaintiff's employment, her direct supervisor was Jeffrey Kauffman, the pharmacy manager at the Benton Harbor store. Tim Lowe was the district manager with authority over a number of Wal-Mart pharmacies, including the Benton Harbor pharmacy.

From the time of her employment until August of 1995, plaintiff worked her assigned seventy-hour bi-weekly schedule. During August of 1995, plaintiff was injured in a boating accident and required a reduced work schedule. At plaintiff's request, defendant assigned her to a restricted schedule of forty-two hours (seven six-hour days every two weeks). Plaintiff was paid her full salary, regardless of the reduced schedule, until she used ninety days of paid leave. Thereafter, plaintiff was paid a reduced wage, and she continued on her restricted schedule until the time of her termination. There is evidence that plaintiff's need for a restricted schedule caused some inconvenience and disruption, which was felt especially keenly by Mr. Kauffman, who was often called upon to fill in for plaintiff. There is no evidence, however, that Wal-Mart ever demanded that plaintiff resume her seventy-hour schedule. Furthermore, although Mr. Lowe testified that he spoke with Mr. Kauffman about the possibility of terminating plaintiff's employment because of her inability to work ten hours a day (Lowe Dep. at 87), Mr. Kauffman denied having any such conversation. (Kauffman Dep. at 72-73). Consequently, for purposes of the pending motion, this court must conclude that a jury could find that Wal-Mart supervisors neither warned plaintiff of her need to resume a seventy-hour schedule nor discussed among themselves the possibility of terminating her for her inability to work such a schedule.

During the time that plaintiff was working a restricted schedule, she began pursuing medical treatment for perceived infertility. In February of 1997, plaintiff began a four-month course of treatment of artificial insemination with her gynecologist, Dr. Daniel Lewis. When that process proved unsuccessful, her doctor referred her to Dr. Donald Eward, an expert in reproductive medicine and the treatment of infertility. Dr. Eward began a course of attempted artificial insemination, again without success.

In the spring of 1997, plaintiff advised Mr. Kauffman that she intended to pursue in vitro fertilization and that the required procedures would necessitate that she take time off from work. Kauffman advised plaintiff that he would work with her in any way he could to cover the necessary time off. For her part, plaintiff agreed to take vacation time, if necessary, instead of sick leave. Plaintiff began her first cycle of attempted in vitro fertilization on August 21, 1997.

The record supports a finding that in vitro fertilization is a complicated, expensive, and somewhat dangerous process. It involves the administration of fertility drugs to force the production of multiple mature eggs by the ovaries, instead of a single egg. When the multiple eggs are mature, they are retrieved, either through laparoscopy or by transvaginal aspiration guided by ultrasound. The next step is insemination, which requires the physician to obtain a sperm sample on the day of egg retrieval. Fertilization is then accomplished in a glass dish ("in vitro"), and one or more fertilized eggs are transferred to the uterus. The process requires frequent visits to the doctor, especially to avoid a condition called "hyperstimulation," in which the ovaries become swollen. This condition can be life-threatening to the mother because of possible interference with kidney and liver function. The cost of the in vitro fertilization process often exceeds $10,000.00.

It is beyond genuine issue that both Kauffman and Lowe were aware that plaintiff was pursuing a course of in vitro fertilization and that both agreed to work with plaintiff to the extent that they could. Additionally, plaintiff was purchasing expensive infertility medicine directly from the Wal-Mart pharmacy.

The first attempt at in vitro fertilization, begun on August 21, 1997, was unsuccessful, because the fertility drugs did not stimulate the required egg production. Dr. Eward suspended treatments for a time, resuming them in late October of 1997, when plaintiff again began taking medication to stimulate multiple egg production. On Friday, November 7, 1997, Dr. Eward's office informed plaintiff that she was ready for egg retrieval and that she was scheduled for this procedure on the next Monday, November 10, at 9:00 a.m. Plaintiff advised Mr. Kauffman that she needed that day off. Kauffman advised plaintiff that he could not cover her shift on Monday, November 10, as he was already committed to a family vacation. He advised her that she should contact Tim Lowe to determine whether anyone else could work that shift.

Plaintiff telephoned Mr. Lowe and advised him that she needed to take Monday off. Lowe told plaintiff that there was no one available to cover for her and that she must report to work as scheduled. Plaintiff said that she did not intend to report to work and that she would be undergoing the medical procedure that day. Plaintiff was given "ripening" medication the next day (Saturday) at...