and working." 29 C.F.R. § 1630.2(i). "Sitting" is also a "major life activity." 29 C.F.R. § 1630.2(i) App. An individual is "substantially limited" by an impairment if she is "significantly restricted as to the condition, manner or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1).
Xerox argues that Count II should be dismissed because the ADA does not recognize pregnancy as a "disability." See 29 C.F.R. § 1630.2(h) App. ("conditions, such as pregnancy, that are not the result of a physiological disorder are . . . not impairments"). See also Brennan v. National Telephone Directory Corp., 850 F. Supp. 331, 341-44 (E.D. Pa. 1994); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 1995 WL 427931, at *9 (D.N.H. 1995); Byerly v. Herr Foods, Inc., 1993 U.S. Dist. LEXIS 4253, No. CIV A. 92-7382, 1993 WL 101196, at *4 (E.D. Pa. Apr. 6, 1993). But see Chapsky v. Baxter Mueller Div., 1995 U.S. Dist. LEXIS 2609, No. 93-6524, 1995 WL 103299 at *3 (N.D. Ill. March 9, 1995) ("pregnancy is a recognized disability under the [ADA]"). Ms. Patterson responds that the disability she claims is not the pregnancy itself, but rather the severe back pain attributable in part to her pregnancy.
Ms. Patterson has alleged that she is disabled from severe back pain resulting from a combination of her pregnancy and the aggravation of a prior back injury.
She also claims that this impairment substantially limited her ability to sit at work for extended periods of time. Xerox retorts that her back pain, a consequence of her pregnancy, was merely a transitory impairment and that such impairments are not covered by the ADA. See 29 C.F.R. § 1630.2(j) App. ("temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities"). However, Ms. Patterson has alleged that her back pain was also attributable in part to the aggravation of a prior back injury, and thus the duration of her condition is impossible to ascertain on the meager record presently before the court. I therefore conclude that the complaint sufficiently alleges a "disability" to survive a motion to dismiss. Accordingly, Xerox's motion to dismiss Count II is denied.
Intentional Infliction of Emotional Distress
Defendants also move to dismiss plaintiffs' claims for intentional infliction of emotional distress. To state a claim for intentional infliction of emotional distress under Illinois law, a plaintiff must allege (1) extreme and outrageous conduct on the part of the actor; (2) that the actor intended, or knew that it was at least highly probable, that her conduct would cause severe emotional distress; and (3, that the conduct did in fact cause severe emotional distress. Doe v. Calumet City, 161 Ill. 2d 374, 204 Ill. Dec. 274, 641 N.E.2d 498, 506 (1994) (citation omitted); McGrath v. Fahey, 126 Ill. 2d 78, 127 Ill. Dec. 724, 533 N.E.2d 806, 809 (1988). Defendants argue that Deanna Patterson has not alleged conduct that is sufficiently "extreme and outrageous" to state a claim for this tort. They further argue that Collin Patterson, as a fetus, could not have suffered severe emotional distress as a matter of law.
Courts have had some difficulty defining the term "extreme and outrageous" with clarity and precision. The Supreme Court of Illinois has recently explained that conduct is "extreme and outrageous" if "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Doe v. Calumet City, supra, 641 N.E.2d at 507 (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d, at 73 (1965)). The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Public Finance Corp. v. Davis, 66 Ill. 2d 85, 4 Ill. Dec. 652, 360 N.E.2d 765, 767 (1976) (quotation omitted). Liability under this tort does not extend to "mere insults, indignities, threats, annoyances, petty oppressions or other trivialities." Id.; Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 180 Ill. Dec. 307, 607 N.E.2d 201, 211 (1992) (citation omitted).
The determination of whether a defendant's conduct is extreme and outrageous must be made on the facts of each particular case. Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 623 (7th Cir. 1989) (citations omitted); McGrath v. Fahey, supra, 533 N.E.2d at 811. Recognizing that the "outrageousness" requirement is necessarily difficult to apply because of its vagueness, the Illinois Supreme Court has set forth a nonexclusive list of considerations to guide this determination. See McGrath v. Fahey, supra, 533 N.E.2d at 809-11; Doe v. Calumet City, supra, 641 N.E.2d at 507. For example, the outrageous nature of a defendant's conduct may depend upon the degree of authority which the defendant exercises over the plaintiff:
the more control which a defendant has over the plaintiff, the more likely that defendant's conduct will be deemed outrageous, particularly when the alleged conduct involves either a veiled or explicit threat to exercise such authority or power to plaintiff's detriment. Threats, for example, are much more likely to be a part of outrageous conduct when made by someone with the ability to carry them out [than] when made by someone in a comparatively weak position.