The opinion of the court was delivered by: NORDBERG
Plaintiff Melinda Erickson sued the Board of Governors of State Colleges and Universities for Northeastern Illinois University in a three count complaint, alleging a violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), an amendment to Title VII, in Count I. Count II alleges a violation of the Americans with Disabilities Act. 42 U.S.C. § 12101 et seq. Finally, in Count III, Plaintiff alleges an ERISA violation. 29 U.S.C. § 1140. The case is currently before the Court on Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint.
Plaintiff was employed at Northeastern Illinois University from November, 1988 through December 17, 1993, when she was terminated. Plaintiff was covered by an employee benefits plan that entitled her to take ten days of sick leave per year and accrue 1.5 sick days per month with an upper limit of 300 days. From December, 1991 to December, 1993, Plaintiff was required to take sick days in either half-day or full-day increments. During her employment, Plaintiff underwent infertility treatment, using vacation days and sick days, generally in half-day increments. Plaintiff alleges that her supervisor signed her written requests for sick leave, was aware that she was undergoing infertility treatment, and expressed disapproval of her frequent use of sick days. Plaintiff alleges that on May 20, 1993 her supervisor issued "a memorandum reprimanding her for 'tardiness,' evidently in light of Plaintiff's legitimate use of sick leave." (Complaint P 21). On June 17, 1993 Plaintiff received a six month notice of termination, which became effective on December 17, 1993. However, as of June 17, 1993 Plaintiff had not used all of her sick leave and vacation days. On information and belief, Plaintiff alleges that Defendant hired a male to replace her.
The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint. Adams v. Cavanagh Communities Corp., 847 F. Supp. 1390, 1396 (N.D. Ill. 1994). In order to survive a motion to dismiss, a complaint must allege sufficient facts to outline a cause of action. Davis v. Frapolly, 747 F. Supp. 451 (N.D. Ill. 1989). The complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985).
The Court must accept as true all well pleaded factual allegations in the complaint and view them, along with the reasonable inferences to be drawn, in the light most favorable to the plaintiff. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). However, the Court need not accept as true conclusory legal allegations. Baxter v. Vigo County School Corp., 26 F.3d 728, 730 (7th Cir. 1994). A strict standard applies when a court evaluates the legal sufficiency of a plaintiff's factual allegations. A court may grant a motion to dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir. 1994).
I. The Motion to Dismiss Count I
In Count I, Plaintiff claims that Defendant discriminated against her on the basis of a medical condition related to pregnancy in violation of the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), an amendment to Title VII. Section 2000e-2 of Title VII provides that "It shall be an unlawful employment practice for an employer to . . . discharge any individual because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). In 1978 the PDA, in its entirety, amended the Definitions Section of Title VII such that:
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
Plaintiff claims that (1) she frequently, but legitimately, used her sick leave in order to receive infertility treatments, (2) her supervisor expressed disapproval of her actions, (3) on May 20, 1993 her supervisor reprimanded her for "tardiness" due to her legitimate use of sick leave, (4) on June 17, 1993 Defendant gave her a six month notice of her termination, and (5) on December 17, 1993 Defendant terminated Plaintiff. Plaintiff claims that Defendant "was unsympathetic to plaintiff's attempts to become pregnant" and responded by terminating her, thus discriminating against her on the basis of a medical condition related to pregnancy.
Defendant argues for dismissal of Count I on the grounds that "infertility is not a pregnancy-related condition within the meaning of the PDA," and, thus, Count I fails to state a claim upon which relief can be granted. Defendant reasons that the PDA applies only to actual pregnancy, excluding potential pregnancy. Defendant's argument rejects this district's decision in Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994) (Alesia, J.), where the court also addressed a claim that an employer violated the PDA by terminating a female employee in response to her use of sick leave when undergoing infertility treatment. As in the instant case, the defendant in Pacourek argued for dismissal on the grounds that infertility treatment is not a condition covered by the PDA. The court denied the motion to dismiss, holding that (1) the PDA applies to discrimination based upon intended or potential pregnancy in addition to actual pregnancy and (2) infertility is a pregnancy-related condition for purposes of the PDA. Id. at 1401-03. The Court agrees with the Pacourek holding, which follows from the plain language and legislative history of the PDA, as well as Supreme Court precedent.
Defendant's contention that the PDA does not apply to potential pregnancy is controlled by International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 198, 111 S. Ct. 1196, 1203, 113 L. Ed. 2d 158 (1991), where the Supreme Court held that a fetal-protection policy which excluded fertile women from certain jobs constituted sex discrimination in violation of Title VII. In support of its conclusion, the Court relied upon the PDA:
"The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S. Ct. 2622, 2631, 77 L. Ed. 2d 89 (1983). In its use of the words "capable of bearing children" in the 1982 policy statement as the criterion for exclusion, Johnson Controls explicitly classifies on the basis of potential for pregnancy. Under the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination.
499 U.S. at 199 (emphasis added).
The Court went on to assess whether the policy comes within the bona fide occupational qualification ("BFOQ") exception to Title VII. The Court declined to expand the BFOQ exception to allow fetal-protection policies based upon pregnancy or fertility, finding that "such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception, but also the plain language of the PDA." Id. at 204. Specifically, the PDA provides that "women affected by pregnancy, ...