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VARGAS v. GLOBETROTTERS ENG'G CORP.

May 7, 1998

ROSA VARGAS, Plaintiff,
v.
GLOBETROTTERS ENGINEERING CORPORATION, Defendant.



The opinion of the court was delivered by: ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Rosa Vargas filed this suit against her former employer, Globetrotters Engineering Corporation (GEC), alleging that GEC violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, and the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), when it terminated her employment after she took a maternity leave. GEC has moved for summary judgment on both claims. For the reasons set forth below, the motion for summary judgment is denied.

 I. Background1

 GEC is an architectural consulting firm located in Chicago. The firm obtains work from its clients by bidding on particular projects, and because most of these projects are related to the construction industry GEC generally has more work in the spring, summer, and fall than in the winter. Because GEC's staffing needs fluctuate depending on the number of projects it is working on, it is commonplace for company employees to experience periods where there is no work available for them. See Haithcox Dep. at 63-64, 69.

 In 1994 GEC hired Vargas as a "field secretary," see id. at 19, which meant that she served as a secretary at project sites rather than at GEC's headquarters. *fn2" The main difference in qualifications between field secretaries and secretaries working at headquarters is that the latter generally must be able to type at least 70 correct words a minute, while the former need only type 50. See id. at 20; Cohen Aff. P 5. The reason for this distinction is that headquarters secretaries are frequently involved in preparing lengthy documents while field secretaries are not.

 In 1996, Vargas worked as a field secretary for GEC's State Street Project. Vargas was aware that this project had an anticipated completion date of December 1996. During the year Vargas learned that she was pregnant and that her due date was in December. In October she informed GEC that, pursuant to her rights under the FMLA, she would take five weeks of unpaid maternity leave starting on December 6, 1996. This seemed like a good time for Vargas to take a maternity leave since it coincided with the end of the State Street Project, but neither Vargas nor GEC knew for certain whether there would be work available for her in January when she planned to return. See Haithcox Dep. at 64, 69, 72; Vargas Dep. at 105.

 When Vargas attempted to return to work in January there were no field secretary positions available. GEC's personnel director, Patrick Haithcox, suggested that Vargas take a typing test to see if she could qualify for a secretarial position at company headquarters. Haithcox Dep. at 77. Vargas did so, but despite being permitted to take the test twice was unable to type more than 61 correct words per minute. Haithcox told Vargas that she had not qualified for a secretarial position at headquarters, but encouraged her to keep in touch with him about the possibility of working on a prospective project at the Lincoln Park Zoo.

 Since GEC did not appear to have any positions available for Vargas, she asked the company to provide her with a termination letter so that she could apply for unemployment insurance benefits. Although GEC did not usually issue formal termination letters to employees who were temporarily idle, it agreed to Vargas' request and provided a termination letter dated January 30, 1997. See Haithcox Dep. at 85-86, 112-13 & Ex. 4. GEC indicated in its letter that it considered Vargas an "excellent" employee and that it would "happily rehire her" if a position for which she was qualified opened up. Id. Ex. 4. GEC did offer Vargas the first field secretary position to open up (in December, 1997), but Vargas turned it down.

 Although it is true that GEC did not have any "field secretary" positions available between January and early December, 1997, the company did have work available for which Vargas' typing skills would have been adequate. This is illustrated by the company's treatment of Katrina Huckleby, a field secretary hired by GEC in 1996 whose typing skills (60 correct words per minute) were nearly identical to Vargas'. As with Vargas, the project at which Huckleby was working ended in December 1996, but unlike Vargas GEC found her a variety of temporary positions--primarily data entry and secretarial assignments--that kept her gainfully employed until she decided to leave the company in September, 1997. Haithcox shoehorned Huckleby into these positions because he was under the impression that the president of GEC, Niranjan Shah, had guaranteed Huckleby permanent employment with the company during a conversation with her in December, 1996. Haithcox Aff. PP 21-22; Huckleby Dep. at 32. Shah apparently offered Huckleby this guarantee in order to deter her from interviewing with another company.

 Since January, 1997, GEC has hired five people to perform secretarial functions. These hirings cast some doubt on the company's assertion that an ability to type 70 correct words per minute is a non-negotiable prerequisite for obtaining a secretarial position at company headquarters: two of the newly hired secretaries could not meet this standard. See Haithcox Aff. PP 31, 34 (indicating that Fahimeh Tabrizi and Adrienne Stephens could type only 67 and 68 words per minute, respectively). *fn3" There is no evidence that any applicant for a secretarial position besides Vargas has ever been rejected by GEC for inadequate typing speed.

 II. Discussion

 Vargas contends that GEC's failure to re-employ her after she took her maternity leave violated both the FMLA and the PDA. We ...


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