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July 27, 1994



The opinion of the court was delivered by: JAMES H. ALESIA

This case is before the court on the motion of defendants Inland Steel Co., Inc. ("Inland Steel"), Alex Monanteras and Thomas Wides *fn1" to dismiss the Second Amended Complaint ("Complaint") for failure to state a claim upon which relief can be granted. FED. R. Civ. P. 12(b)(6).


 Plaintiff Charline *fn2" Pacourek charges defendants Inland Steel; Alex Monanteras, a manager at Inland Steel; Thomas Wides, Section Manager at Inland Steel; and Paul J. Austgen, Credit Manager at Inland Steel, with four different violations of federal employment discrimination law. Count I charges a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Count II charges a violation of the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), an amendment to Title VII. Count III alleges a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Count IV charges a violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. The factual background herein and the resolution of the pending Rule 12(b)(6) motion rely upon the allegations in the Second Amended Complaint. *fn3" See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 Inland Steel hired plaintiff Charline Pacourek into its Employee Benefits Department on March 4, 1975. Inland Steel transferred her on September 15, 1975, to the Profitability Accounting Department as a cost and inventory clerk. In December 1980, plaintiff was promoted to "Senior Price Computer" in the Invoice Pricing Department. The Complaint notes no other formal change in plaintiff's employment status until her termination June 11, 1993.

 In October 1986, plaintiff was diagnosed with esphofical reflux, a medical condition that prevented her from becoming pregnant naturally. Subsequent to that time, plaintiff began an experimental course of treatment at the University of Chicago in an effort to become pregnant. Plaintiff alleges that she and the university expended much money and time on the treatment because plaintiff was the university's first in-vitro--fertilization patient. Sometime after October 1986, plaintiff notified Inland Steel of her efforts to become pregnant through the experimental treatment. After that time, plaintiff and Inland Steel communicated a number of times about plaintiff's employment status (described in more detail below), ultimately leading to her termination June 11, 1993.

 Count I, the straightforward Title VII sex-discrimination count, alleges that defendants terminated plaintiff and replaced her with a male employee. Plaintiff alleges that the discrimination was pursuant to a "de facto policy, practice, custom or usage of discrimination against the Plaintiffs [sic] because of her sex." (Complaint at 4, P 25.)

 Count II also describes some details of plaintiff's employment relationship with Inland Steel between October 1986 and June 1993. She alleges that on February 12, 1992, Wides informed plaintiff that her esphofical reflux was "'a problem.'" Wides then "handed Plaintiff a memo which placed her on probation." (Id. at 6, P 35.) In March 1992 plaintiff explained the February 12 incident to Bill Lowry, Inland Steel's Personnel Director. Lowry informed plaintiff that "a letter from her treating physician would alleviate any problems." (Id. P 36.) Plaintiff provided such a letter dated July 30, 1992, addressed to Richard Heiden at Inland Steel. (Complaint Ex. B.) In March 1992 Wides informed plaintiff that she was considered a "'High Risk' and that it was inevitable that she would be terminated." (Complaint at 6, P 37.) Plaintiff submitted a memorandum to her personnel file regarding these events on November 23, 1992 (attached as Complaint Ex. C).

 Count III alleges age discrimination in violation of the ADEA, claiming that plaintiff, over 40 years old, was replaced by a younger person despite her being qualified and satisfactorily performing her duties. Again, plaintiff alleges the behavior was pursuant to "a de facto policy, practice, custom or usage of discrimination." (Complaint at 7, P 50.)

 Finally, Count IV alleges a violation of the ADA. Plaintiff claims that her condition, esphofical reflux, is a physical impairment substantially limiting reproduction, a major life activity. Plaintiff claims defendants terminated her, discriminated against her, and disparately applied the company's sick leave policy to her detriment because of her condition.

 Plaintiff seeks various legal and equitable remedies, which need not be discussed here, as they are not relevant to resolution of this motion.

 Defendants now present five separate arguments for dismissal, in whole or in part, of plaintiff's Second Amended Complaint: (1) plaintiff failed to file a timely charge with the EEOC, barring her claims under Title VII, the ADA, and the ADEA; (2) Count II fails to state a claim for discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions" within the meaning of the PDA; (3) Count IV fails to state an ADA claim because her condition is not a "disability" covered by the ADA; (4) defendants Monanteras and Wides are not subject to suit as supervisors under Title VII, the ADA, or the ADEA; (5) plaintiff has not pleaded state action to present a claim under 42 U.S.C. § 1983. *fn4"


 A. Statutes of Limitations in Federal Employment Discrimination Law

 Plaintiff and defendants are in agreement as to the relevant administrative statute of limitations in this case: Title VII, which governs Counts I and II of the Complaint, requires that, as a prerequisite to a subsequent lawsuit, a claimant must file a charge of discrimination with the EEOC "within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). Under the ADEA, governing Count III of the Complaint, a charge similarly must be filed with the EEOC "within 300 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(2). Finally, the ADA, controlling Count IV, adopts the Title VII procedures for filing a charge and enforcing one's statutory rights, thus imposing the 300-day limitation as well. See 42 U.S.C. § 12117(a); see also Kent v. Director, Missouri Dep't of Elementary & Secondary Educ. & Division of Vocational Rehabilitation, 792 F. Supp. 59, 62 (E.D. Mo. 1992).

 Perhaps for the sake of clearer argument, defendants have actually invoked the longer of the two relevant administrative statutes of limitations. The shorter period, and the one plaintiff invoked in her Complaint (Complaint at 2, P 4), is 180 days. The 300-day limitations period applies where plaintiff has initially filed a charge "with a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e)(1); see also Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir. 1987). There are two requirements: (1) that the state be such a so-called "deferral" state; and (2) that the plaintiff have actually filed such a state charge. Gilardi, 833 F.2d at 1230. Illinois, plaintiff's state of residence and the state in which the alleged wrongdoing occurred, is such a deferral state. Id. (citing ILL. REV. STAT. ch. 68, § 7-101 (now codified at 775 ILCS 5/7-101)); see also 29 C.F.R. § 1601.80 (listing Illinois Department of Human Rights as a certified state agency). However, there is no indication that plaintiff utilized state avenues. Indeed, in the Complaint plaintiff pleads only that she filed a charge directly with the EEOC, and accordingly invokes the 180-day statute of limitations.

 Ultimately, defendants' concession is not damaging, which presumably prompted the concession in the first place. If, as is defendants' theory, plaintiff missed the 300-day limit, she would have missed the 180-day limit. The concession would only be damaging if plaintiff's claimed accrual date was between the 180-day and 300-day point, counting back from July 9, 1993, the date she filed her EEOC charge. However, as is discussed below, plaintiff's claimed accrual date for purposes of this motion is May 21, 1993.

 B. Resolution of Limitations Issue

 As alleged in the Complaint, "in March of 1992 Defendant Thomas Wides informed Plaintiff that she was considered a 'High Risk' and that it was inevitable that she would be terminated." (Complaint at 6, P 37.) Defendants argue that the limitations period accrued in March 1992, and that therefore the July 9, 1993, filing of the EEOC charge was more than 300 days after the point of accrual. Plaintiff contends instead that she was not notified of her termination until the May 21, 1993, letter, informing her that her last day of work would be June 11. (Complaint Ex. D.) Plaintiff attempts to explain away the intervening warning signals as follows:

While Plaintiff was placed in a high risk category in March of 1992, she was [not] terminated until June 1, 1993 [sic]. In the month of March 1992 Plaintiff was also assured by Personnel Director Bill Lowry of Inland Steel that a letter from her treating physician would alleviate any problems. . . . While plaintiff was continually threatened she was made officially aware that she would be terminated when she received official notice that her last day of employment would be June 11, 1993. Indeed the [May 21, 1993] letter indicated that a plant wide search for a suitable position has been ongoing. Thus this indicated that a final determination of Plaintiff's dismissal on June 11, 1993 was not reached until the date of the letter May 21, 1993.

 (Memorandum of Law in Support of Plaintiff's Response to Defendant's [sic] Motion to Dismiss Second Amended Complaint at 2.)

 The statute of limitations in federal employment law accrues "at the time the [adverse employment] decision was made and communicated" to the employee. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504, 66 L. Ed. 2d 431 (1980); see also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). What date the decision was made and communicated is a question of fact. Lever v. Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992). Indeed, all the favorable Seventh Circuit cases defendants cite were ruling upon a factual record of one sort or another, either after a hearing or on a summary judgment motion. See Lever v. Northwestern Univ., 979 F.2d 552 (affirming factual findings after hearing); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (affirming summary judgment); Mull v. Arco Durethene Plastics, Inc., 784 F.2d 284 (7th Cir. 1986) (affirming summary judgment).

 Here there is only the Complaint, not a factual record, and the task is to determine whether plaintiff has pleaded herself out of court by "plead[ing] facts that show that [her] suit is time-barred." Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir. 1993); see also Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). The court holds that plaintiff has not pleaded herself out of court; in other words, it does not follow inevitably from the Complaint that under Ricks plaintiff's claims are time-barred.

 Breaking things down a bit, there are two things the court would have to find about March 1992 -- when "Defendant Thomas Wides informed Plaintiff that she was considered a 'High Risk' and that it was inevitable that she would be terminated" -- in order to hold that the statute of limitations bars plaintiff's claims. First, the court would need to find that March 1992 was the date that plaintiff's employer took the adverse employment action, as distinguished from the day that "the handwriting [was] on the wall." Cada, 920 F.2d at 449. The court cannot make such a finding on this motion to dismiss, in which the court takes all well-pleaded allegations as true, grants plaintiff the benefit of all reasonable inferences, and must deny the motion unless under no circumstances can plaintiff state a claim upon which relief may be granted. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985). It could be reasonably inferred that by describing her termination as "inevitable" plaintiff meant something less than that the adverse employment decision was actually made. Inevitable could mean that is the way things are going, not that it has been decided (an admittedly subtle distinction). The court cannot conclude here that under no circumstances could plaintiff prove a set of facts under the Complaint entitling her to relief. If the court did not give this reading to paragraph 37 of the Complaint, then one would be hard-pressed to make sense of the allegation that Wides told plaintiff she was "High Risk" at the same time he told her it was "inevitable" she would be terminated. If it was as inevitable as it would have to be in order to be the equivalent of firing, "High Risk" would be an understatement. ...

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