Ingarra v. Ross Education, LLC

Filing 15

OPINION AND ORDER denying 10 Motion to Dismiss. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VIRGINIA INGARRA,
Plaintiff,
v.

Case No. 13-cv-10882

ROSS EDUCATION, LLC,
HON. MARIANNE O. BATTANI
Defendant.
_____________________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM UNDER FED. R. CIV. P. 12(b)(6)
Before the Court is Defendant’s motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 10). Plaintiff Virginia Ingarra
filed a complaint on March 6, 2013, against her former employer, Defendant Ross
Education, LLC, (“Ross”) alleging gender discrimination in violation of Title VII and
Michigan’s state law counterpart, the Elliot-Larsen Civil Rights Act. At oral argument on
the Defendant’s Motion to Dismiss, the Court granted Ingarra leave to amend her
complaint. The Court heard oral argument on Defendant’s second motion to dismiss on
November 4, 2013, and at the conclusion of the hearing took this matter under
advisement. Upon review of the pleadings, briefs, and arguments, the Court DENIES
Defendant’s Motion to Dismiss.

I.

STATEMENT OF FACTS
Ingarra began working for Ross in March 2010 as a dental instructor, and was

promoted to Lead Dental Instructor in July 2011. (Doc. No. 9 at 2). In March 2012 she
notified her supervisor that she would be undergoing in-vitro fertilization (“IVF”) to try to
become pregnant. (Doc. No. 9 at 2). While receiving IVF, Ingarra’s supervisor told her
that she had to work as a “teaching assistant” instead of as lead instructor to
accommodate the procedure and allow her to sit. (Doc. No. 9 at 2-3). Ingarra alleges
she never requested accommodations or asked to sit down while working. (Doc. No. 9
at 3). Her supervisor told her to work sitting down “because you are being pumped with
so many hormones.” (Doc. No. 9 at 3). Ingarra completed the procedure in late April
2012 and used accrued vacation time to take one week off after the procedure. (Doc.
No. 9 at 3). Documents she sent to her employer while on leave indicated that her
position was still listed with Ross as “Lead Dental Instructor.” (Doc. No. 9 at 3).
Ingarra returned to work on May 2, 2012, but suffered a miscarriage that day.
(Doc. No. 9 at 3). Ingarra was demoted the next day, her job title officially changed the
next week, and her job status changed from full-time to part-time. (Doc. No. 9 at 3). In
July 2012, Ingarra alleges that she had a conversation with her supervisor during a
scheduling meeting. While reviewing Ingarra’s survey results at this meeting, the
supervisor said that “you are not a good cheerleader in the classroom and more
focused on babies.” (Doc. No. 9 at 4). Her supervisor asked if she intended to have
additional medical procedures “regarding her desire to bear children.” (Doc. No. 9 at 4).
Ingarra objected to this question, but her supervisor pressed her to answer. (Doc. No. 9
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at 4). Ingarra alleges that her supervisor was specifically concerned with whether
Plaintiff planned to become pregnant again. (Doc. No. 9 at 4).
Her supervisor also told her that she was emotionally unstable to teach because
of the increase in hormones from IVF and her pregnancy. (Doc. No. 9 at 4). Ingarra
objected that the IVF did not alter her mood, but her supervisor claimed that other
employees asked about Ingarra and said she was moody and acting weird. (Doc. No. 9
at 4). Ingarra only worked occasionally from May through August 2012, and the last
day she worked for Ross was August 20, 2012. (Doc. No. 9 at 4). Ingarra alleges that
Ross’s stated reasons for her demotion and termination were untrue and a pretext to
cover up the real reasons, which were because of her gender and pregnancy. (Doc.
No. 9 at 6).
Ross disputes many of Ingarra’s factual allegations. According to Defendant,
Ross Medical Education Center provides post-secondary certificate programs at
multiple campuses in Michigan and other states. (Doc. No. 10 at 2). Ross agrees that
it hired Ingarra in March 2010 as a dental instructor at its Madison Heights campus
(Doc. No. 10 at 2). It contends that because Ingarra did not obtain the proper
certification, it moved Ingarra to a “Teaching Assistant/Substitute” position on May 8,
2012. (Doc. No. 10 at 3). According to Ross, Ingarra did not object to this change in
position at the time and signed a contract to become a Teaching Assistant. (Doc. No.
10 at 3). Ross states that another woman replaced Ingarra as Lead Instructor. (Doc.
No. 10 at 3).
Ross also states that it never terminated Ingarra’s employment; rather, she
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simply refused to accept scheduling assignments beginning in August 2012. (Doc. No.
10 at 4). Ross maintains that Ingarra’s efforts to become pregnant had no impact on
the decision to remove her from the Lead Instructor position. (Doc. No. 10 at 4).
II.

STANDARD OF REVIEW
To properly state a claim, Federal Rule of Civil Procedure 8(a)(2) requires a

“short and plain statement of the claim showing that the pleader is entitled to relief.” In
order to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
complaint must allege facts which, if proven, would entitle the plaintiff to relief. First
Am. Title Co. v. DeVaugh, 480 F.3d 438, 443 (6th Cir. 2007). “A complaint must
contain either direct or inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.” Weiner v. Klais & Co.,
108 F.3d 86, 88 (6th Cir. 1997).
When reviewing a motion to dismiss, the Court “must construe the complaint in
the light most favorable to the plaintiff, accept all factual allegations as true, and
determine whether the complaint contains enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the federal procedural rules do not require that the facts alleged in the complaint be
detailed, “‘a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of a cause of
action's elements will not do.’” Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”). A complaint’s factual allegations must
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“allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft, 556 U.S. at 678.
Plaintiff is not required to plead all elements of a prima facie case of
discrimination in order to survive a motion to dismiss, but still must convince the Court
that her claim is plausible. See Keys v. Humana, Inc., 684 F.3d 605, 609-10 (6th Cir.
2012) (applying Swierkiewicz to Twombly and Iqbal, concluding that the district court
improperly required the plaintiff to plead all elements of a prima facie discrimination
case to state a claim). Plaintiff’s allegations must allow the Court to draw the
reasonable inference that Defendant unlawfully discriminated against Plaintiff. Id.
Prima facie elements that are impossible for Plaintiff to meet without further discovery
need not be supported with specific factual allegations. Id.
III.

APPLICABLE LAW
Plaintiff brings gender discrimination claims under Title VII of the Civil Rights Act

of 1964 and under Michigan’s analogous state law, the Elliot-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2201, et seq. Both are analyzed under the same
framework and require the same factual allegations. See Ondricko v. MGM Grand
Detroit, LLC, 689 F.3d 642, 652 (6th Cir. 2012); see also White v. Baxter Healthcare
Corp., 533 F.3d 381, 391 (6th Cir. 2008). The Title VII and ELCRA claims will be
analyzed together, using the elements of a prima facie discrimination case for the
framework. In addition, she brings a claim under the Pregnancy Discrimination Act.
The first step in a Title VII gender discrimination claim is to establish a prima
facie case. Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248 (1981);
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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff must show that (1)
she is a member of a protected group; (2) she was qualified for the position; (3) she
was subjected to adverse employment action; and (4) was replaced by someone
outside of the protected class, or similarly situated, non-protected employees were
treated more favorably. Grace v. USCAR, 521 F.3d 655, 677 (6th Cir. 2008) (citing
Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004)).
The analysis complicates when considering pregnancy discrimination claims
under the Pregnancy Discrimination Act (“PDA”) of 1978. This law amended Title VII of
the Civil Rights Act of 1964 to protect against pregnancy discrimination by further
defining Title VII’s provision “on the basis of sex” as “because of or on the basis of
pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e(k). The PDA
overturned a Supreme Court case that held that pregnancy discrimination did not
constitute gender discrimination.
The Sixth Circuit applies slightly different prima facie elements to a pregnancy
discrimination claim, even though such a claim is analyzed “in the same manner” as
other Title VII gender discrimination claims. Cline v. Catholic Diocese of Toledo, 206
F.3d 651, 658 (6th Cir. 2000) (quoting Boyd v. Harding Acad. Of Memphis, Inc., 88 F.3d
410, 413 (6th Cir. 1996)). The plaintiff making a pregnancy discrimination claim must
show that (1) she was pregnant; (2) she was qualified for her job; (3) she was subjected
to an adverse employment decision; and (4) there is a nexus between her pregnancy
and the adverse employment decision. Cline, 206 F.3d at 658 (citing Boyd, 88 F.3d at
413). In a termination case, a plaintiff meets the second prong by showing that she
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was performing “at a level which met [her] employer’s legitimate expectations.” Id.
(citing McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)).
The majority of lower courts agree with this circuit that pregnancy is a necessary
prerequisite to a PDA claim. But as to the specific issue of whether the PDA applies to
women who are receiving IVF, only the Seventh Circuit has ruled that it does. Compare
Miles v. Dell, Inc., 429 F.3d 480, 490 (4th Cir. 2005) (collecting cases from other circuits
that all require showing that the plaintiff was pregnant to make a prima facie pregnancy
discrimination case) with Hall v. Nalco Co., 534 F.3d 644, 645 (7th Cir. 2008) (holding
that an employee who was fired for taking time off to pursue IVF had a “cognizable sexdiscrimination claim under the language of the PDA” because “adverse employment
actions taken on account of childbearing capacity affect only women.”). See also Lulaj
v. Wackenhut Corp., 512 F.3d 760, 765 (6th Cir. 2008) (noting that plaintiff is a member
of the protected class—pregnant women).
This Court is not willing to go as far as to conclude that a non-pregnant plaintiff
can bring a PDA claim if IVF is being used. The Sixth Circuit has never specifically
taken up the issue of whether a plaintiff who is using IVF falls under the protections of
the PDA. But the Court agrees that adverse employment actions taken on account of
childbearing capacity do affect only women and are therefore valid claims under Title
VII.
IV.

ANALYSIS
Ingarra’s complaint outlines two different adverse employment actions. Her

claim that she was demoted the day after she miscarried qualifies as a pregnancy
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discrimination claim under the PDA. Her other claim, that she was phased out of
employment because she was using IVF to try to become pregnant again, falls within
Title VII’s scope, rather than the PDA, because she was not actually pregnant.
A.

PDA Claim

Plaintiff alleges that she suffered discrimination because of her pregnancy or
pregnancy-related condition; specifically, she claims that she was demoted because
she miscarried. Plaintiff meets the first prima facie element by claiming that she was
pregnant and suffered a miscarriage in early May 2012. (See Doc. No. 9 ¶ 17).
Ingarra also alleges that she was qualified for the lead dental instructor position.
She claims that her continued employment was not conditioned on becoming certified
in Michigan, that she received her certification in July 2012, and that she “was an
excellent employee who received good performance reviews and merit increases.”
(Doc. No. 9 ¶ 6-9). Ross disputes that Ingarra fulfilled the conditions of her
employment, asserting that she was demoted in May 2012 because she had not yet
received a required certification (Doc. No. 10 at 3). Despite this, Plaintiff’s allegations
are sufficient to at least make an initial showing that she was qualified for her position.
Ingarra claims, and Ross confirms, that Ross demoted Ingarra from lead dental
instructor to teaching assistant or substitute in May 2012 (Doc No. 9 ¶ 19-20, Doc. No.
10 at 3). Specifically, Ingarra alleges that she had a miscarriage on May 2, 2012, and
that she was demoted on May 3, 2012 (Doc. No. 9 ¶ 17-18). Ingarra’s allegation that
she had a miscarriage on May 2 implies that she was pregnant; thus, she suffered a
pregnancy-related condition. Because miscarriage is a pregnancy related condition,
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and she is alleging that she was demoted the day after her miscarriage, this temporal
nexus creates a sufficient inference that her demotion was caused by her miscarriage.
Consequently, Plaintiff states a plausible pregnancy discrimination claim under the
PDA.
B.

Title VII Gender Discrimination Claim

Ingarra properly characterizes her other claim as a “childbearing capacity”
discrimination claim because she alleges that she was targeted for her intent to become
pregnant. Specifically, Ingarra alleges that she was demoted and phased out of a job
she was qualified for because of gender discrimination based on her desire and ability
to become pregnant, or her childbearing capacity.
The United States Supreme Court has held that gender discrimination claims
based on childbearing capacity fall under Title VII’s protection. Int’l Union v. Johnson
Controls, 499 U.S. 187 (1991). In Johnson Controls, the defendant had a company
“fetal protection policy” excluding women from certain jobs because they were “capable
of bearing children.” Johnson Controls, 499 U.S. at 191-192. The Court held that the
policy classified on the basis of gender and childbearing capacity rather than fertility
alone, noting that the company “explicitly classifies on the basis of potential for
pregnancy.” Id. at 198-99. The Court found that a classification based on pregnancy
potential “must be regarded, for Title VII purposes, in the same light as explicit sex
discrimination.” Id. at 199. In addition, the Court stated that the company “treat[ed] all
its female employees as potentially pregnant; that choice evinces discrimination on the
basis of sex.” Id.
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In amending Title VII, Congress indicated that the overarching concern behind
Title VII and its later amendments was to prevent women from being marginalized in the
workplace. A committee report from the House of Representatives noted that “the
assumption that women will become pregnant and leave the labor force leads to the
view of women as marginal workers, and is at the root of the discriminatory practices
which keep women in low-paying and deadend jobs.” H.R. Rep. 95-948, 3, 1978
U.S.C.C.A.N. 4749, 4751.
Plaintiff’s particular method of trying to become pregnant was through IVF.
There are several cases involving IVF across various districts and circuits, but not all of
them involve gender discrimination claims based on childbearing capacity. These
cases can be put into two categories. The first category of cases involving either IVF or
similar fertility treatments involves claims that denying insurance coverage for fertility
treatments violates Title VII. Two cases from other circuits held that denying insurance
coverage for infertility treatments does not violate Title VII because infertility is genderneutral. See Saks v. Franklin Covey Co., 316 F.3d 337, 343 (2d Cir. 2003) (holding that
infertility is a gender-neutral condition and thus infertility discrimination from denial of
insurance coverage for infertility treatments does fall within Title VII’s protection), and
Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-680 (8th Cir. 1996) (holding the
same).
The second category of cases involves plaintiffs who were fired for taking time
off to undergo IVF. Courts are also split as to whether this is permissible under Title
VII. Compare LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758 (W.D. Mich. 2001)
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(granting summary judgment for defendant on Title VII claim where plaintiff was fired for
taking time off for IVF and concluding that infertility is not a condition related to
pregnancy or childbirth within the meaning of Title VII) with Hall v. Nalco Co., 534 F.3d
644 (7th Cir. 2008) (reversing the district court for granting summary judgment for
defendant, holding that plaintiff who was fired for taking time off for IVF was
discriminated against because of her childbearing capacity and presented a valid
claim).
In Hall, the court concluded that the plaintiff suffered gender discrimination
because only women undergo IVF. Here, although Ingarra makes similar arguments,
this case need not reach the issue of whether firing a woman for undergoing IVF
treatments constitutes gender discrimination because Ingarra does not claim that is why
she was fired. Instead, Ingarra claims that she was specifically targeted because of her
desire to become pregnant and bear children. Childbearing capacity only relates to
women because men have no childbearing capacity; they are biologically incapable of
bearing children. Because childbearing capacity discrimination is gender-based, this is
exactly the type of discrimination that Title VII was designed to cover in order to combat
the view of women as marginal workers.
The reasoning behind Title VII supports Ingarra’s childbearing capacity claim. In
this case, Ingarra is a member of the protected class by virtue of being a woman. She
also makes several specific allegations that support her claim that she was qualified for
the Lead Dental Instructor position. Ingarra states that she was hired as a dental
instructor due to her 2003 Canadian certification as a Dental Assistant (Doc. No. 9 ¶ 5),
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she passed the American Medical Technologists Certification Examination for
Registered Dental Assistant (RDA) for the State of Illinois on July 27, 2012 (Doc. No. 9
¶ 6), and she was not required to obtain a Michigan RDA certification to keep her
employment with Ross. (Doc. No. 9 ¶ 8). Furthermore, Ingarra maintains that she was
an excellent employee, received good performance reviews, and received merit
increases. (Doc. No. 9 ¶ 9). Ingarra also alleges that other similarly-situated
employees who were not seeking to become pregnant were treated more favorably.
(Doc. No. 9 ¶ 9). Ross disputes that Ingarra was qualified for her position and points
out that she was replaced with another woman. (Doc. No. 10 at 2-4).
Ingarra essentially alleges that she was targeted and marginalized for
attempting to become pregnant and making these attempts known. She alleges that
after she made it known that she was attempting to become pregnant through the use
of IVF, and after her miscarriage, her employer became concerned about “future
endeavors into child bearing.” (Doc. No. 9 ¶ 44). Ingarra also alleges that other
similarly-situated employees, who were not seeking to become pregnant and had
similar records and positions, were not demoted or terminated (Doc. No. 9 ¶ 47). She
alleges that her employer’s reasons for demoting her and terminating her were
pretextual (Doc. No. 9 ¶ 48).
Ingarra’s allegations must be accepted as true for the purposes of a motion to
dismiss. Consequently, even though Ross disputes that Ingarra was qualified for her
position and attaches exhibits to its motion to support its viewpoint, factual disputes are
not before the Court on a 12(b)(6) motion.
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V.

CONCLUSION
Accordingly, the Court DENIES Defendant’s Motion to Dismiss.
IT IS SO ORDERED.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: February 21, 2014

CERTIFICATE OF SERVICE
Copies of this Order were mailed and/or e-filed to Plaintiff and counsel of record
on this date.
s/Bernadette M. Thebolt
Case Manager

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