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Hall v. Nalco Co.

July 16, 2008

CHERYL HALL, PLAINTIFF-APPELLANT,
v.
NALCO COMPANY, FORMERLY KNOWN AS ONDEO NALCO COMPANY, A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 7294-David H. Coar, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge

ARGUED JUNE 4, 2007

Before RIPPLE, ROVNER, and SYKES, Circuit Judges.

Cheryl Hall maintains she was fired by Nalco Company for taking time off from work to undergo in vitro fertilization after being diagnosed with infertility. She filed this suit under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act ("PDA"), alleging her termination constituted discrimination on the basis of sex. Without reaching the merits of her claim, the district court granted summary judgment for Nalco on the ground that Hall could not prove sex discrimination because infertility is a gender-neutral condition.

We reverse. The focus of any Title VII sex-discrimination claim is whether the employer treated the employee differently because of the employee's sex. The PDA amended Title VII to provide that discrimination "because of" sex includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Although infertility affects both men and women, Hall claims she was terminated for undergoing a medical procedure-a particular form of surgical impregnation-performed only on women on account of their childbearing capacity. Because adverse employment actions taken on account of childbearing capacity affect only women, Hall has stated a cognizable sex-discrimination claim under the language of the PDA.

I. Background

Hall was hired by Nalco in 1997 and in April 2000 took on the role of sales secretary. In that position Hall reported to Marv Baldwin, a district sales manager in the Chicago-area office in which she was employed. In March 2003 Hall requested a leave of absence to undergo in vitro fertilization ("IVF"). IVF is an assisted reproductive technology that involves administration of fertility drugs to the woman, surgical extraction of her eggs, fertilization in a laboratory, and surgical implantation of the resulting embryos into the woman's womb. See The Merck Manual of Medical Information 1418-19 (Mark H. Beers, MD, et al. eds., 2d home ed. 2003) (describing IVF procedure); Mayo Clinic Family Health Book 1069-70 (Scott C. Litin, MD, ed., 3d ed. 2003) (same). Each IVF treatment takes weeks to complete, and multiple treatments are sometimes needed to achieve a successful pregnancy. Mayo Clinic Family Health Book, supra at 1069-70. Baldwin approved Hall's leave from March 24 to April 21. After Hall returned to work, she informed Baldwin she intended to undergo IVF again because the first procedure had been unsuccessful. On or around July 21, she filed for another leave of absence to begin August 18.

In the meantime, in January 2003 Nalco began a reorganization that ultimately led to a decision to consolidate Hall and Baldwin's sales office with another Chicago-area sales office. As part of this consolidation, Nalco decided to keep only one of the two sales secretaries serving those offices. At the end of July 2003, Baldwin told Hall of the consolidation and informed her that only Shana Dwyer, the secretary from the other office, would be retained. Baldwin told Hall her termination "was in [her] best interest due to [her] health condition." Prior to informing Hall of her termination, Baldwin discussed the matter with Jacqueline Bonin, Nalco's employee-relations manager. Bonin documented this conversation; her notes reflect that Hall had "missed a lot of work due to health," and more specifically, in a section relating to Hall's job performance, cite "absenteeism-infertility treatments." Dwyer, the secretary who was retained, was a female employee who since 1988 had been incapable of becoming pregnant.

After her termination Hall filed a timely discrimination charge with the Equal Employment Opportunity Commission and then filed this action against Nalco alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2.

Specifically, she alleged her termination violated the Pregnancy Discrimination Act, which amended Title VII to state that discrimination "because of sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Hall alleged she was fired on account of being "a member of a protected class, female with a pregnancy related condition, infertility." Without addressing the merits of Hall's claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition. Hall appealed.

II. Discussion

We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The district court did not address whether the case presented a material factual dispute; instead, the court concluded Hall's allegations did not amount to discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." We are presented, then, with a threshold legal question of whether Hall has stated a cognizable Title VII claim.

Whether allegations of the type Hall has made state a claim for relief under Title VII is an issue of first impres- sion in this circuit; we are also unaware that any other circuit has addressed the precise question presented here. Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee in the terms and conditions of employment "because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(2). In 1978 the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), amended Title VII to include the following definitional provision:

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 ...


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