Zatarain v. WDSU-Television, Inc.

• Citation: 881 F. Supp. 240
• Decision Date: 18 January 1995
• Docket Number: Civ. A. No. 94-1018.
• Parties: Lynn Gansar ZATARAIN v. WDSU-TELEVISION, INC. and John Carpenter.
• Court: U.S. District Court — Eastern District of Louisiana

881 F. Supp. 240

Lynn Gansar ZATARAIN v. WDSU-TELEVISION, INC. and John Carpenter.

Civ. A. No. 94-1018.

United States District Court, E.D. Louisiana.

January 18, 1995.

Michael G. Crow, Richard Anthony Goins, Janis van Meerveld, Michael McGrath Duran, Adams & Reese, New Orleans, LA, for Lynn Ganzar Zatarain.

Thomas Harry Kiggans, Phelps Dunbar, Baton Rouge, LA, Harry A. Rosenberg, Maria Nan Alessandra, David M. Korn, Phelps Dunbar, New Orleans, LA, for WDSU-Television Inc.

Thomas Harry Kiggans, Harry A. Rosenberg, Maria Nan Alessandra, David M. Korn, New Orleans, LA, for John R. Carpenter.

Harry A. Rosenberg, Maria Nan Alessandra, David M. Korn, New Orleans, LA, for Pulitzer Broadcasting Co.

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

VANCE, District Judge.

Before the Court is the motion for partial summary judgment of defendant WDSU-Television, Inc. ("WDSU") and John Carpenter seeking dismissal of plaintiff's claim under the Americans With Disabilities Act (ADA) and the motion of defendant John Carpenter ("Carpenter") seeking dismissal of all of plaintiff's claims against him individually. The Court, having reviewed the legal memoranda of the parties and heard oral argument, grants the motions for the reasons set forth below.

I. BACKGROUND

Plaintiff, Lynn Gansar Zatarain, was employed by WDSU from 1983 to November of 1992 as a reporter and anchor person. In October of 1990, she and WDSU entered into a personal services contract that would expire on November 30, 1992. Beginning in August or September of 1990, plaintiff anchored three evening newscasts at 5:00 p.m., 6:00 p.m., and 10:00 p.m. As the only anchor person for three newscasts, plaintiff was the highest paid news anchor at WDSU.

In July of 1992, plaintiff began fertility treatments in an effort to conceive a child. She informed both her news director, Linda Levy, and her co-anchor, Norman Robinson, of these developments. Others, including defendant John Carpenter, knew of her desire and attempts to get pregnant. At that time, plaintiff worked approximately eight hours per day. She arrived at work at 3:00 p.m. and left after the 10:00 p.m. newscast. When she began receiving hormone shots, as part of her infertility treatment, she told WDSU that she needed to get the shots between 4:00 and 6:00 p.m. WDSU allowed her to report to work later than 3:00 p.m. in order to visit the doctor's office before coming to work.

Since plaintiff's personal services contract would expire in November 1992, on September 30, 1992, WDSU offered her a new contract with $168,000 as an annual salary. Plaintiff rejected this offer because she wanted more money and a multi-year guarantee. WDSU made a second offer on October 23, 1992 with a higher salary and a two-year guarantee. The parties disagree on whether plaintiff accepted this offer. During the same time frame, plaintiff claims that she had other job offers for both prime-time and daytime anchor jobs with CNBC. Zatarain depo. at 72-73, 77-78.

Thereafter, in early November 1992, plaintiff for the first time informed WDSU that her doctor had recommended a reduced work schedule during the period of her fertility treatments — that she go to work at 5:00, do the 6:00 newscast, then go home and return at 9:00 for the 10:00 newscast. Zatarain depo. at 154. Plaintiff claims that she asked for the modification for up to four months. Id. at 159. Defendants stated at oral argument that plaintiff never indicated she would accept less money for this reduction of work. Plaintiff claims she offered to do special reports on the subject of fertility, following her own efforts and those of others to deal with fertility problems. Complaint at ¶ 11. Defendants also stated that plaintiff wanted the terms of the reduced work schedule included in the new personal services contract. WDSU was not amenable to that arrangement. Plaintiff's personal services contract was not renewed.

Plaintiff brings this lawsuit alleging that she was discriminatorily discharged from employment by WDSU in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Defendants claim that partial summary judgment is appropriate because plaintiff's ADA claim is deficient in several respects. First, defendant contends that "infertility" (defendant's terminology) or a reproductive disorder (plaintiff's terminology) is not a "disability" under the ADA. Second, defendants claim that plaintiff's condition did not substantially limit her ability to engage in a "major life activity" within the meaning of the ADA. Defendant John Carpenter seeks dismissal of all of plaintiff's claims against him contending that he is not liable under Title VII or the ADA because he was not plaintiff's "employer."

II. ANALYSIS

A. Plaintiff's ADA Claim

In order for plaintiff to state a claim under the ADA, she must have a disability, which is defined as a physical or mental impairment that substantially limits one or more of the major life activities. 42 U.S.C. § 12102(2). An ADA plaintiff must therefore satisfy two requirements: (1) plaintiff must have an impairment; and (2) the impairment must interfere with a major life activity.

1. Impairment

There is evidence sufficient to withstand summary judgment on the issue of whether plaintiff has an impairment. Under the ADA regulations, she has an impairment if she has a "physiological disorder ... affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive ..." 29 C.F.R. § 1630.2(h)(1) (emphasis added). Defendants contend that plaintiff's condition is not a physiological disorder, or even the product of such a disorder, but a symptom of job stress or age.¹ Defendant claims that since neither age nor stress associated with employment are physiological disorders, plaintiff is not disabled.²

While it is true that plaintiff's doctors have not been able to pinpoint a specific cause of plaintiff's infertility, the record does not warrant summary judgment on WDSU's contention that it is solely the result of age or stress. Plaintiff has proffered expert testimony to the effect that she suffers from a disorder of the reproductive system of an undiagnosed nature, which exists separate and apart from age and stress.³ Accordingly, the Court cannot find as a matter of law that plaintiff does not have an impairment in the nature of a physiological disorder of the reproductive system.

2. Major Life Activity

Plaintiff's complaint contends that she was significantly restricted in the major life activity of working. See Complaint count 2, ¶ 2. The ADA regulations include "working" as a major life activity, along with caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning. 29 C.F.R. § 1630.2(i).

Plaintiff also contends that reproduction itself can be a major life activity. Plaintiff relies on Pacourek v. Inland Steel Co., 858 F.Supp. 1393 (N.D.Ill.1994). However, the structure of the ADA and its regulations indicate that the major life activity that is allegedly limited is separate and distinct from the impairment that limits it. Plaintiff's construction is faulty because it would allow her to bootstrap a finding of substantial limitation of a major life activity on to a finding of an impairment. To articulate plaintiff's analysis, she claims to have a reproductive disorder that interferes with the major life activity of reproduction, which is substantially limited because of her disorder. This analysis is circular and unpersuasive.

Furthermore, finding "reproduction" to be a "major life activity" would be inconsistent with the illustrative list of major life activities provided in the ADA regulations. Reproduction is not an activity engaged in with the same degree of frequency as the listed activities of walking, seeing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(i). A person is required to walk, see, learn, speak, breath, and work throughout the day, day in and day out. However, a person is not called upon to reproduce throughout the day, every day. This Court cannot reasonably infer that reproduction is a "major life activity" based on an analysis of the illustrative list of activities in the regulation. Treating reproduction as a major life activity under the ADA would be a conscious expansion of the law, which is beyond the province of this Court. Therefore, the only cognizable "major life activity" implicated here is found in plaintiff's claim that her reproductive disorder substantially limited her ability to work.

In order for plaintiff to prevail on this argument, she must demonstrate more than an impairment of her ability to serve as a prime-time news anchor for WDSU. Rather, the regulations provide that with respect to the major life activity of working, the term substantially limits means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes ... The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i) (emphasis added). The appendix to the regulations offers interpretive guidance. It states that "an individual is not substantially limited in working simply because he or she is unable to perform a particular job for one employer, or because he or she is unable to perform a specialized job or profession requiring extraordinary skill, prowess or talent." 29 C.F.R. Part 1630, App. § 1630.2(j) (1994). For example, a person who cannot be a commercial airline pilot because of a minor vision impairment, but who could be a commercial airline co-pilot or a pilot for a courier service, "would not be substantially limited in the major life activity of working." Id.

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