Pacourek v. Inland Steel Co., Inc.

• Citation: 916 F. Supp. 797
• Decision Date: 16 February 1996
• Docket Number: No. 94 C 0130.,94 C 0130.
• Parties: Charline PACOUREK, Plaintiff, v. INLAND STEEL COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

916 F. Supp. 797

Charline PACOUREK, Plaintiff, v. INLAND STEEL COMPANY, INC., Defendant.

No. 94 C 0130.

United States District Court, N.D. Illinois, Eastern Division.

February 16, 1996.

Richard F. Nelson, McBride, Baker & Coles, Chicago, Illinois, James P. Nagle, Querry & Harrow, Ltd., Wheaton, Illinois, David H. Ortiz, David H. Ortiz & Associates, Chicago, Illinois, for plaintiff.

Thomas G. Abram, Richard C. Robin, Lawrence L. Summers, Paula Kay DeAngelo, Vedder, Price, Kaufman & Kammholz, Chicago, Illinois, for defendant.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is defendant Inland Steel Company's ("Inland Steel") motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the reasons that follow, the court denies Inland's motion for summary judgment.

I. BACKGROUND

The following facts are uncontested.¹ Plaintiff Charline Pacourek ("Pacourek") started working at Inland Steel in March 1975. In 1987, Pacourek began seeing a doctor regarding her infertility. That year, Pacourek missed several days of work because of these doctor appointments. In March 1991, Pacourek began to receive medical treatment for her infertility. In August 1991, Dr. Randall Barnes performed a laparoscopy on Pacourek, and diagnosed Pacourek as having unexplained infertility.

Pacourek began to receive infertility treatment. The treatment consisted of an injection of a natural hormone drug called Pergonal, followed by a process known as intrauterine insemination. Pacourek received treatment on October 6-13, 1991; December 3-10, 1991; January 18-24, 1992; and March 3-10, 1992, but to no avail.² Pacourek apparently missed work on at least some of the days on which she underwent treatment.

As of February 1992, Pacourek's supervisor knew that the reason for some of Pacourek's absences was the infertility treatment. On February 12, 1992, the supervisor presented Pacourek with a "90-Day Performance Plan," which stated that Pacourek was not to be absent from work between February 17 and May 15, 1992, unless she provided a letter from a doctor substantiating her absence; that her attendance would be monitored closely; and that if her attendance did not improve, her employment may be terminated. Pacourek provided medical certificates to substantiate her absences on March 10, 1992; July 7, 1992; and July 27, 1992.

On March 17, 1992, the section manager of Pacourek's department, Pacourek's supervisor's supervisor, told Pacourek that she had been designated "high risk" for termination. On May 21, 1993, another manager of Pacourek's department gave Pacourek a letter informing her that she was terminated, and that her last day of work would be June 11, 1993. June 11, 1993, was Pacourek's last day at Inland Steel.

Pacourek filed a charge with the Equal Employment Opportunity Commission ("EEOC") on July 9, 1993. Pacourek received her right-to-sue letter from the EEOC on November 2, 1993, and filed the instant lawsuit in this court on January 7, 1994. Pacourek alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-2000e-17; the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), an amendment to Title VII; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634; and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213.

Inland Steel now moves for partial summary judgment on Pacourek's ADA claim.

II. DISCUSSION

A. Standard of Review

A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The burden is on the moving party to show that no genuine issues of material fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Once the moving party presents a prima facie showing that she is entitled to judgment as a matter of law, the party opposing the motion may not rest upon the mere allegations or denials in its pleadings but must set forth specific facts showing that a genuine issue for trial exists. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Natl. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989).

B. Retroactive Application of the ADA

Inland Steel contends that the operative facts in this case occurred prior to July 26, 1992, the date on which the ADA became effective. Therefore, according to Inland Steel, because the ADA does not apply retroactively, Pacourek cannot bring a claim under the ADA.

If an ADA plaintiff's claim accrued before the effective date of the ADA, the claim is without merit, since the ADA does not apply retroactively. Dean v. Thompson, No. 92 C 20388, 1993 WL 169734, *4 (N.D.Ill. 1993) (citations omitted). A cause of action for employment discrimination accrues when the employer tells the employee that her employment is terminated. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 449 (7th Cir.1990), cert. denied, 501 U.S. 1261, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991); Pacourek v. Inland Steel Co., 858 F.Supp. 1393, 1398 (N.D.Ill.1994). When the discriminatory act occurred is a question of fact. Lever v. Northwestern University, 979 F.2d 552, 553 (7th Cir.1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993).³

The undisputed facts in this case indicate that on February 12, 1992, Pacourek was told that her attendance would be monitored closely and her employment terminated if her attendance did not improve. On March 17, 1992, Pacourek was told that she had been designated "high risk" for termination. On May 21, 1993, Pacourek was told that her employment was terminated.

Viewing reasonable factual inferences in favor of non-movant Pacourek, see Holland, 883 F.2d at 1312, it seems clear that Inland Steel did not communicate to Pacourek its decision to terminate her employment until May 21, 1993. While Pacourek may have had some indications that she was in danger of being fired by February or March 1992, she received no definite word that she was being fired until May 21, 1993. Thus, it appears to the court that Pacourek's cause of action accrued on May 21, 1993, ten months after the ADA became effective.

However, Inland Steel contends that Pacourek's cause of action accrued in March 1992, when she was told that she was in "high risk" of being terminated. The court disagrees. The very words used — "high risk" — indicate that there was a chance that Pacourek would not be terminated. Otherwise, the word "risk" would be meaningless, and the more apt statement would be that Pacourek was fired.

At best for Inland Steel, a question of fact exists about when Inland Steel made and communicated to Pacourek its decision to terminate Pacourek's employment. See Lever, 979 F.2d at 553. This factual issue precludes partial summary judgment in Inland Steel's favor.

C. Failure to Raise a Claim under the ADA

Notwithstanding its title, Inland Steel's current motion for partial summary judgment is akin to Inland Steel's earlier motion to dismiss for failure to state a claim, which the court denied. See Pacourek v. Inland Steel Co., 858 F.Supp. 1393, 1396-97 (N.D.Ill. 1994). Inland Steel contends that Pacourek has no claim under the ADA for two reasons: the status of "unexplained infertility" is not an impairment covered by the ADA, and procreation is not a "major life activity" within the meaning of the ADA and its implementing regulations.

Under the ADA, a "disability" is "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). The court applies a three-pronged analysis to determine whether a condition is a covered disability under the ADA: (1) whether the condition is a physical or mental impairment; (2) if so, whether that impairment affects a major life activity; and (3) whether the major life activity is substantially limited by the impairment. Pacourek, 858 F.Supp. at 1404.

1. Whether unexplained infertility is an impairment

A "physical or mental impairment" is "any physiological disorder ... or condition" that affects one or more of a number of listed "body systems." Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act ("ADA regulations"), 29 C.F.R. § 1630.2(h)(1) (1995). Specifically listed as one of the covered "body systems" is the reproductive system. Id.

It defies common sense to say that infertility is not a physiological disorder or condition affecting the reproductive system. In fact, infertility is the ultimate impairment of the reproductive system. Moreover, it does not matter whether the infertility is explained or not. The ADA and regulations under it are simply devoid of any requirement that a physiological disorder or condition have a scientific name or known etiology. Therefore, infertility, whether explained or not, is an impairment under the ADA.

In the present case, no dispute exists over whether Pacourek was infertile. She was. Accordingly, Pacourek had a physical impairment under the ADA.

2. Whether infertility affects a major life activity

Inland Steel's main bone of contention is over whether reproduction, obviously the primary activity affected by infertility, is a major life activity. In its earlier Pacourek opinion, the court held that it is.

In its earlier opinion, the...