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PATTERSON v. XEROX CORP.

September 22, 1995

DEANNA PATTERSON and COLLIN PATTERSON, by his Mother and Next Friend, DEANNA PATTERSON, Plaintiffs,
v.
XEROX CORPORATION and ANDREA KAELIN, Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 The pleadings in this case require this court to undertake the often difficult task of deciding whether alleged conduct is sufficiently egregious to state a claim for intentional infliction of emotional distress. In this case, an additional question must be considered: Can a fetus suffer intentional infliction of emotional distress? Both of these questions arise in the context of pendent claims to claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). The motions in this case also question whether pregnancy-related complications can be a disability under the ADA.

 According to the complaint, *fn1" defendant Xerox Corporation ("Xerox") hired plaintiff Deanna Patterson ("Ms. Patterson") as a Customer Administrator Trainee in its Dallas, Texas office on October 20, 1986. In August, 1990, Xerox relocated Ms. Patterson to its Chicago office, where she began working as a Receivables Representative. In April, 1993, Xerox assigned Ms. Patterson to a new team. Defendant Andrea Kaelin ("Ms. Kaelin") was the supervisor of this new team. In February, 1993, Ms. Patterson learned that she was pregnant and due to deliver in October of that year. By April, 1993, she was suffering from severe back pain as a result of her pregnancy and the aggravation of a prior back injury. To alleviate the pain, Ms. Patterson's obstetrician advised her to take a walk every hour for approximately five to ten minutes. Ms. Patterson informed Ms. Kaelin of her doctor's advice and requested that Xerox allow her to take such walks. In response, Ms. Kaelin informed Ms. Patterson that she would either have to make up the time that she would spend walking, or else receive no pay for that time. Ms. Kaelin did not place similar restrictions on other employees who took similar breaks.

 Beginning in May, 1993, Ms. Kaelin began to harass Ms. Patterson on a regular basis. For example, Ms. Kaelin would often check to see whether Ms. Patterson was sitting in her office chair, and if she was not there, Ms. Kaelin would search for her and chastise her for being away from her chair. *fn2" She would also follow Ms. Patterson into the restroom and monitor how much time Ms. Patterson spent there. On one occasion in June, 1993, Ms. Patterson was conversing with other employees when Ms. Kaelin approached her, grabbed her arm, and pulled her away from the other employees. Ms. Patterson's arm was bruised during this incident. Ms. Kaelin did not follow or harass the other Xerox employees she supervised.

 In June, 1993, Ms. Patterson's obstetrician informed Xerox that Ms. Patterson should be allowed to take brief walks and that Ms. Kaelin had thus far failed to accommodate this request. Ms. Patterson also informed Joan Frisch ("Ms. Frisch"), Xerox's Human Resources Representative, that Ms. Kaelin was harassing her and that the harassment was causing her severe stress and mental anguish. However, the harassment continued despite Ms. Frisch's assurance that she would correct the problem. On July 29, 1993, Ms. Kaelin telephoned Ms. Patterson, who was ill at home, berated her for taking sick time, and informed her that she would not be paid. On August 1, 1993, Ms. Patterson was hospitalized for premature labor. The following day, Ms. Patterson telephoned Ms. Kaelin to inform her that she was hospitalized and would not be at work until she received further notice from her doctor. During this telephone conversation, Ms. Kaelin berated Ms. Patterson.

 On August 3, 1993, Ms. Patterson gave birth to plaintiff Collin Patterson. His birth was ten weeks premature. As a result, Collin Patterson required extensive medical treatment, including the use of an Apnea Monitor and hernia surgery. He presently requires continued medical attention and it is unknown whether his premature birth will permanently impair his health.

 On January 31, 1995, the Pattersons brought a three-count amended complaint against Xerox and Ms. Kaelin. The Pattersons claim that Ms. Kaelin's harassment caused Ms. Patterson to suffer severe stress, mental anguish, sleeplessness, embarrassment, and humiliation, which proximately caused the premature birth of Collin Patterson. Counts I and II charge the defendants with violations of Title VII, 42 U.S.C. § 2000e et seq., and the ADA, 42 U.S.C. § 12101 et seq. Count III is a state law claim of intentional infliction of emotional distress against both defendants.

 Defendants move to dismiss Ms. Kaelin from Counts I and II, and to dismiss Counts II and III in their entirety, pursuant to FED. R. CIV. P. 12(b)(6).

 Title VII and ADA "Employer"

 Ms. Kaelin moves to dismiss Counts I and II on the ground that she is not liable under Title VII or the ADA. A court may dismiss a complaint pursuant to Rule 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) (citation omitted).

 Title VII prohibits an "employer" from discriminating against any individual because of that individual's sex. 42 U.S.C. § 2000e-2(a). The ADA forbids discrimination against qualified individuals with disabilities by any "covered entity," which includes an "employer." 42 U.S.C. §§ 12112(a), 12111(2). Both Title VII and the ADA define an "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees . . . and any agent of such person . . ." 42 U.S.C. §§ 2000e(b), 12111(5)(A).

 Noting that the "and any agent" language was inserted into the definition of "employer" in order to ensure that courts would impose respondeat superior liability upon employers for their agents' acts, the Seventh Circuit has recently held that "individuals who do not otherwise meet the statutory definition of 'employer' cannot be liable under the ADA." U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281-82 (7th Cir. 1995). The court recognized that this holding, though only directly applicable to the ADA, "obviously affects the resolution of the very similar questions under Title VII. . ." Id. at 1282 n.10. Because Ms. Kaelin is not alleged to satisfy the statutory definition of "employer" under Title VII or the ADA, she is dismissed from Counts I and II of this lawsuit.

 The ADA and "Disability "

 Xerox moves to dismiss Count II on the ground that Ms. Patterson has failed to state a "disability" covered by the ADA. To state a claim under the ADA, a plaintiff must have a "disability," which is defined as "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual. 42 U.S.C. § 12102(2)(A). To determine whether a plaintiff has sufficiently alleged a disability under the ADA, a court should ask "(1) whether the plaintiff's condition is a physical or mental impairment; (2) whether that impairment affects a major life activity; and ...


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