MARY JO KRAUEL v IA METHODIST MEDICAL
___________
No. 95-3768
___________
Mary Jo Krauel, *
*
Appellant, *
*
v. *
* Appeal from the United States
Iowa Methodist Medical Center, * District Court for the
* Southern District of Iowa.
Appellee. *
_______________________________ *
*
Equal Employment Advisory *
Council, *
*
Amicus Curiae. *
___________
Submitted: May 13, 1996
Filed: September 11, 1996
___________
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
WOLLMAN, Circuit Judge.
___________
BOWMAN, Circuit Judge.
Mary Jo Krauel appeals the grant of summary judgment by the
District Court(1) in favor of defendant, Iowa Methodist Medical Center
(IMMC), on her claim of disability discrimination brought under the
Americans with Disabilities Act (ADA), her claim of pregnancy
discrimination brought under the Pregnancy Discrimination Act
(PDA), and her claim of sex discrimination brought under Title VII
of the Civil Rights Act. We affirm.
I.
Krauel has been employed as a respiratory therapist with IMMC
since 1979. Throughout her employment, Krauel has participated in
IMMC's HealthCare Preferred Plan (the Plan), an employee medical
benefits plan regulated by the Employee Retirement Income Security
Act (ERISA). The Plan is self-funded in that benefits are paid
from IMMC's general assets. As such, the Plan is not subject to
state laws that regulate insurance. Since 1990, Plan Exclusion 31
has excluded medical coverage for treatment of male or female
infertility problems.
Krauel was diagnosed with endometriosis(2) in 1992. Later that
year, Krauel had a laparoscopy, a laser surgery procedure designed
to eliminate endometriosis. After attempting to become pregnant
naturally for over one year, Krauel visited a fertility clinic
where she received artificial insemination and gamete
intrafallopian tube transfer (GIFT).(3) Krauel underwent, and paid
for, three GIFT treatments, one of which resulted in her pregnancy.
In 1994, Krauel gave birth to a baby girl. Pursuant to the Plan's
coverage scheme, IMMC paid for Krauel's laparoscopy, pregnancy, and
delivery expenses, but IMMC denied coverage for Krauel's fertility
treatments under the Plan's exclusion for treatment of infertility
problems.
Krauel brought suit in the District Court, alleging that
IMMC's denial of insurance coverage for her fertility treatments
violated the ADA, the PDA, and Title VII. Krauel testified in her
deposition that her infertility limits her ability to reproduce
naturally and to care for others.(4) She also testified, however,
that she has not experienced any difficulty caring for herself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, or working as a result of her alleged
disability. She indicated that her infertility has not affected
her work performance, attendance, or opportunities for promotion.
Krauel did not request special scheduling arrangements or any other
accommodation at work because of her infertility.
The District Court granted summary judgment in favor of IMMC,
concluding that: (1) Krauel is not an individual with a disability
under the ADA because procreation and caring for others are not
major life activities; (2) the Plan's infertility treatment
exclusion is not a disability-based distinction; (3) the Plan is
not a subterfuge to evade the purposes of the ADA within the
meaning of SS 501(c)(3) of the ADA, codified at 42 U.S.C.
SS 12201(c)(3) (1994); (4) the Plan did not violate the PDA because
treatment for infertility is not treatment for pregnancy,
childbirth, or a related medical condition; (5) Krauel failed to
establish intentional discrimination under Title VII; and (6)
Krauel failed to establish a prima facie case of disparate impact
under Title VII resulting from the infertility treatment exclusion.
Krauel now appeals, seeking reversal as to all her claims.
II.
We review de novo the decision to grant a summary judgment
motion. Kiemele v. Soo Line R.R., No. 95-3700, slip op. at 2 (8th
Cir. Aug. 20, 1996). We will affirm the judgment if the record
shows there is no genuine issue of material fact and that the
prevailing party is entitled to judgment as a matter of law. Id.
at 3; see also Fed. R. Civ. P. 56(c).
III.
Krauel argues that the District Court improperly granted
summary judgment in favor of IMMC on her ADA claim because: (1) she
is an individual with a disability; (2) the Plan's infertility
exclusion is a disability-based distinction; and (3) the Plan is a
subterfuge to evade the purposes of the ADA. After carefully
reviewing the record, we conclude that the District Court properly
granted summary judgment in favor of IMMC on the ADA claims.
A.
Krauel first argues that the District Court improperly
determined that she is not an individual with a disability who is
protected by the ADA. Krauel asserts that she has a physical
impairment, infertility, that prevents her from becoming pregnant
naturally. She argues that her infertility substantially limits
two major life activities, reproduction and caring for others.
The threshold requirement for coverage under the ADA is that
the plaintiff be a "qualified individual with a disability." 42
U.S.C. SS 12112(a) (1994). The ADA defines disability as "a
physical or mental impairment that substantially limits one or more
. . . major life activities." 42 U.S.C. SS 12102(2)(A) (1994).
Krauel's condition, infertility, prevents her from becoming
pregnant naturally. Regulations issued by the EEOC define
"physical or mental impairment" as including a disorder of the
reproductive system. 29 C.F.R. SS 1630.2(h)(1). IMMC does not
dispute that Krauel's infertility is a covered physical impairment,
instead arguing that, as the District Court concluded, the
impairment does not substantially affect a major life activity
within the meaning of the ADA.
Because the ADA does not define the term major life activity,
we are guided by the definition provided in 29 C.F.R. SS 1630.2,
the Equal Employment Opportunity Commission (EEOC) regulations
issued to implement Title I of the ADA. See 42 U.S.C. SS 12116
(1994) (requiring EEOC to issue regulations implementing ADA). As
defined in 29 C.F.R. SS 1630.2(i), the term major life activity
means "functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working."(5) While we recognize that this list is non-exclusive, we
note that reproduction and caring for others are not among the
examples of listed activities. Although Krauel is unable to
conceive without medical intervention, she has the ability to care
for herself, perform manual tasks, walk, see, hear, speak, breathe,
learn, and work. It is undisputed that her infertility in no way
prevented her from performing her full job duties as a respiratory
therapist. We conclude, then, that to treat reproduction and
caring for others as major life activities under the ADA would be
inconsistent with the illustrative list of activities in the
regulations, and a considerable stretch of federal law. See
Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240, 243 (E.D. La.
1995) (holding that reproduction is not a major life activity under
the ADA), aff'd, 79 F.3d 1143 (5th Cir. 1996) (table).
Krauel relies on Pacourek v. Inland Steel Co., 858 F. Supp.
1393 (N.D. Ill. 1994), to support the proposition that reproduction
is a major life activity. We are unpersuaded. The court in
Pacourek found that reproduction was a major life activity because
the reproductive system was included among the systems that can
have an ADA impairment. Id. at 1404; see 29 C.F.R. SS
1630.1(h)(1). As the court in Zatarain observed, this argument is
flawed because "physical or mental impairment" and "major life
activities" are "separate and distinct" components of the ADA's
definition of disability. Zatarain, 881 F. Supp. at 243. We hold
that the District Court properly concluded that reproduction and
caring for others are not cognizable major life activities under
the ADA. As the District Court held, Krauel does not have any
impairment that substantially limits her in any major life activity
that is within the purview of the ADA, and thus she is not an
individual with a disability under the ADA.
B.
Krauel next argues that even if reproduction and caring for
others are not major life activities, summary judgment in favor of
IMMC is inappropriate because the Plan is discriminatory on its
face. Specifically, she argues that the Plan's exclusion for
treatment of infertility is a disability-based distinction. We
disagree.
"A term or provision is `disability-based' if it singles out
a particular disability (e.g., deafness, AIDS, schizophrenia), a
discrete group of disabilities (e.g., cancers, muscular
dystrophies, kidney diseases), or disability in general (e.g., non-
coverage of all conditions that substantially limit a major life
activity)." EEOC: Interim Enforcement Guidance on Application of
ADA to Health Insurance, (June 8, 1993), reprinted in Fair. Empl.
Prac. Man. 405:7115, 7118 (BNA). Insurance distinctions that apply
equally to all insured employees, that is, to individuals with
disabilities and to those who are not disabled, do not discriminate
on the basis of disability. Id. at 405:7117.
For example, a feature of some employer provided health
insurance plans is a distinction between the benefits
provided for the treatment of physical conditions on the
one hand, and the benefits provided for the treatment of
"mental/nervous" conditions on the other. Typically, a
lower level of benefits is provided for the treatment of
mental/nervous conditions than is provided for the
treatment of physical conditions. Similarly, some health
insurance plans provide fewer benefits for "eye care"
than for other physical conditions. Such broad
distinctions which apply to the treatment of a multitude
of dissimilar conditions and which constrain individuals
both with and without disabilities, are not distinctions
based on disability. Consequently, although such
distinctions may have a greater impact on certain
individuals with disabilities, they do not intentionally
discriminate on the basis of disability and do not
violate the ADA.
Id. at 405:7118 (footnote omitted).
In this case, the Plan's infertility exclusion does not single
out a particular group of disabilities, allowing coverage for some
individuals with infertility problems, while denying coverage to
other individuals with infertility problems. Rather, the Plan's
infertility exclusion applies equally to all individuals, in that
no one participating in the Plan receives coverage for treatment of
infertility problems. For example, the Plan exclusion bars
coverage for infertility caused by age, a condition which is not
recognized as a disability under the ADA, and for infertility
caused by ovarian cancer, which is defined as a disability under
the ADA. Therefore, the District Court properly held that the Plan
is not a disability-based distinction in violation of the ADA.
C.
Krauel also argues that the District Court erred in holding
that the Plan is not being used as a subterfuge to evade the
purposes of the ADA within the meaning of SS 501(c)(3), the
insurance safe harbor provision. In reaching this conclusion,
Krauel contends that the District Court incorrectly defined the
term subterfuge. This argument lacks merit.
Section 501(c)(3) states that the requirements of the ADA
shall not be construed to prohibit or restrict
(3) a person or organization covered by this chapter
from establishing, sponsoring, observing or administering
the terms of a bona fide benefit plan that is not subject
to State laws that regulate insurance.
Paragraphs (1), (2), and (3) shall not be used as a
subterfuge to evade the purposes of subchapter[s] I and
III of this chapter.
42 U.S.C. SS 12201(c)(3). To qualify for protection under
SS 501(c)(3), the Plan's infertility exclusion must (1) be part of
a bona fide ERISA medical benefit plan that is not subject to state
law, and (2) not be a subterfuge. It is undisputed that IMMC's
health plan, which has been communicated to covered employees, is
a bona fide plan because it exists and pays benefits. See Public
Employees Retirement System v. Betts,
492 U.S. 158, 166
(1989). It
also is undisputed that the Plan is not subject to any state law
that regulates insurance because it is self-insured and regulated
by ERISA. The only issue, then, is whether the Plan is being used
as a subterfuge to evade the purposes of the ADA.
The Supreme Court in Betts held that a benefit plan cannot be
a subterfuge unless the employer intended by virtue of the plan to
discriminate in a non-fringe-benefit-related(6) aspect of the
employment relation. In so doing, the Court struck down an EEOC
interpretive regulation that labeled any benefit plan a subterfuge
if the plan lacked a cost justification for an age-based
differential status. Id. at 175. While the Court in Betts was
interpreting subterfuge in the context of the Age Discrimination in
Employment Act (ADEA), the same definition of subterfuge is
applicable to the use of the term in SS 501(c) of the ADA. See
Modderno v. King, 82 F.3d 1059, 1065 (D.C. Cir. 1996) (holding
Betts definition of subterfuge applies to use of term in SS 501 (c)
of ADA, reasoning "when Congress chose the term `subterfuge' for
the insurance safe harbor of the ADA, it was on full alert as to
what the Court understood the word to mean and possessed
(obviously) a full grasp of the linguistic devices available to
avoid that meaning."). In Modderno, the court of appeals also held
that the EEOC's interim guidance on the application of the ADA to
health insurance, upon which Krauel relies, was "at odds" with the
plain language of the statute and thus not entitled to deference,
even assuming that any deference ordinarily would have been due.
Id. We agree with the conclusions reached in Modderno and adopt
them as our own.
Similarly, we are unpersuaded by the legislative history
Krauel offers us, in the form of statements by a few individual
members of Congress, on the definition of subterfuge. Congress
enacted SS 501(c)(3) on July 26, 1990, after the Supreme Court's
decision in Betts. See Pub. L. No. 101-336, 104 Stat. 327. Had
Congress intended to reject the Betts interpretation of subterfuge
when it enacted the ADA, it could have done so expressly by
incorporating language for that purpose into the bill that Congress
voted on and the President signed. We thus decline to employ the
proffered legislative history as a basis for rejecting the Betts
definition of subterfuge as controlling the meaning of the term in
SS 501(c).
Applying the Betts definition of subterfuge to the facts in
this case, it is undisputed that the fertility treatment exclusion
did not adversely affect Krauel's employment in any non-fringe
benefit plan context. Krauel concedes that she has suffered no
employment discrimination outside the Plan. Therefore, the
District Court properly concluded that the Plan is not a subterfuge
to evade the purposes of the ADA.
IV.
Krauel next argues that the District Court improperly granted
summary judgment in favor of IMMC on her PDA claim. Krauel argues
that the Plan violates the PDA because infertility is a medical
condition related to pregnancy or childbirth. She contends that a
medical condition that causes infertility is related to pregnancy
because there is a causal connection between such a condition and
pregnancy. Therefore, the issue before us is whether the District
Court properly determined that treatment of infertility is not
treatment of a medical condition related to pregnancy or
childbirth.
With the enactment of the PDA in 1978, Congress explicitly
amended Title VII of the Civil Rights Act of 1964 to provide that
discrimination "on the basis of sex" includes discrimination
"because of or on the basis of pregnancy, childbirth, or related
medical conditions." 42 U.S.C. SS 2000e(k) (1994). Under general
rules of statutory construction, "when a general term follows a
specific one, the general term should be understood as a reference
to subjects akin to the one with specific enumeration." Norfolk &
W. Ry. v. American Train Dispatchers' Ass'n,
499 U.S. 117, 129
(1991). "Related medical conditions," a general phrase, thus
should be understood as referring to conditions related to
"pregnancy" and "childbirth," specific terms, unless the context of
the PDA dictates otherwise. The plain language of the PDA does not
suggest that "related medical conditions" should be extended to
apply outside the context of "pregnancy" and "childbirth."
Pregnancy and childbirth, which occur after conception, are
strikingly different from infertility, which prevents conception.
Moreover, the legislative history and the EEOC guidelines do not
make any reference to infertility treatments. See Senate Comm. on
Labor and Human Resources, 96th Cong., 2d Sess., Legislative
History of the Pregnancy Discrimination Act of 1978 (Comm. Print
1980); 29 C.F.R. SS 1604.10. Therefore, we hold that the District
Court properly concluded that infertility is outside of the PDA's
protection because it is not pregnancy, childbirth, or a related
medical condition.
The cases that Krauel cites in support of her argument are
unavailing. In International Union, UAW v. Johnson Controls, Inc.,
499 U.S. 187
(1991), the Supreme Court held that discrimination on
the basis of potential pregnancy was discrimination on the basis of
sex under Title VII and the PDA. The Court ruled that a company
policy that excluded women from jobs involving lead exposure was
"not neutral because it does not apply to the reproductive capacity
of the company's male employees in the same way as it applies to
that of the females." Id. at 199. Potential pregnancy, unlike
infertility, is a medical condition that is sex-related because
only women can become pregnant. In this case, because the policy
of denying insurance benefits for treatment of fertility problems
applies to both female and male workers and thus is gender-neutral,
Johnson Controls is inapposite.
In Pacourek, the court held that a medical condition that
prevents a woman from becoming pregnant "naturally" is a medical
condition for the purposes of the PDA. 858 F. Supp. at 1403. The
conclusions of the court in Pacourek are unpersuasive for two
reasons. First, in reaching this conclusion, the court relied
heavily on the legislative history of the PDA. This legislative
history, however, does not provide any direct evidence that
Congress intended infertility to be covered by the PDA. Second,
the defendant in Pacourek, unlike the defendant in this case, did
not contend (and therefore the court did not decide) that its
policy was a gender-neutral one applicable to all infertile
workers. We thus find in Pacourek no reason to disturb our holding
that the IMMC Plan does not violate the PDA.
V.
Finally, Krauel argues that the District Court erred in
granting summary judgment to IMMC on her Title VII sex-
discrimination claims because she (1) presented evidence of
intentional sex discrimination; and (2) established a prima facie
case of disparate impact. Having reviewed these arguments, we
conclude that the District Court properly granted summary judgment
in favor of IMMC on Krauel's Title VII claims.
A.
Krauel argues that IMMC's exclusion of infertility coverage
was sex and pregnancy motivated. In support of this argument,
Krauel offered statements allegedly made by IMMC vice-president
James Skogsbergh. Krauel asserts that Skogsbergh told her that the
Plan excluded coverage for infertility treatment coverage because
too many women of child-bearing age were employed by IMMC and
infertility treatments result in too many multiple births, thereby
creating a financial burden on the Plan.
In an intentional discrimination claim, "liability depends on
whether the protected trait [under the PDA, pregnancy, childbirth,
or related medical condition] . . . actually motivated the
employer's decision." Hazen Paper Co. v. Biggins,
507 U.S. 604,
610
(1993). In the circumstances of this case, we hold as a matter
of law that the alleged statements do not rise to the level of sex
discrimination. If the statements demonstrate anything at all,
they may indicate that cost was a factor in IMMC's decision to
exclude coverage for infertility treatment. That is irrelevant,
however, unless the fertility treatment exclusion is a sex-based
classification. Cf. Newport News Shipbuilding & Dry Dock Co. v.
E.E.O.C.,
462 U.S. 669, 685
n.26 (1983) (noting that, because
exclusion of pregnancy coverage is "gender-based discrimination on
its face," a cost comparison justification is not a defense);
Arizona Governing Comm. v. Norris,
463 U.S. 1073, 1084
n.14 (1983)
(Marshall, J., concurring) (noting that the "greater costs of
providing retirement benefits for female employees does not justify
the use of a sex-based retirement plan"). We already have
concluded, earlier in this opinion, that IMMC's fertility treatment
exclusion is not a sex-based classification because it applies
equally to all individuals, male or female. Thus Krauel's argument
concerning IMMC's consideration of cost is irrelevant, and the
District Court did not err in granting summary judgment in favor of
IMMC on Krauel's intentional discrimination claim.
B.
Krauel contends that IMMC's infertility treatment exclusion
disparately impacts female employees in two ways. First, Krauel
argues that infertility treatments have a greater impact on women
because, even if the male is the cause of the infertility, women
are required, more often than not, to undergo the treatment.
Second, Krauel argues that infertility has a greater impact on
women because they bear the larger portion of the costs for
infertility treatments. We find these arguments unpersuasive.
Title VII prohibits employment practices that may be "fair in
form" or facially neutral but that are "discriminatory in
operation." Connecticut v. Teal,
457 U.S. 440, 446
(1982) (quoting
Griggs v. Duke Power Co.,
401 U.S. 424, 431
(1971)). To establish
a prima facie case of disparate impact, Krauel must show that IMMC
uses "`employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on
one group than another,' without justification." Houghton v.
SIPCO, Inc., 38 F.3d 953, 958 (8th Cir. 1994) (quoting
International Bhd. of Teamsters v. United States,
431 U.S. 324, 336
n.15 (1977)). The plaintiff must offer "statistical evidence of a
kind and degree sufficient to show that the practice in question
has caused the exclusion" of benefits because the beneficiaries
would be women. Watson v. Fort Worth Bank & Trust,
487 U.S. 977,
994
(1988).
Krauel's first argument fails because she has offered no
meaningful statistical evidence showing that female employees were
more adversely affected by the Plan's fertility exclusion than male
Plan participants. Krauel's second argument is equally
unpersuasive because she has offered no statistical evidence
showing that female participants in IMMC's medical plan and their
dependent spouses incurred a disproportionate amount of the cost of
infertility treatments as compared with male Plan participants and
their dependent spouses. The fringe benefits received by an
employee include those received from the coverage of a dependent
spouse. Newport News,
462 U.S. at 682
(providing that the
discrimination analysis for employee insurance benefits should
include coverage of the dependents of the employees). In this
case, the District Court correctly determined there is no evidence
of a disproportionately adverse impact on female employees.
Therefore, the District Court properly held that Krauel failed to
establish a prima facie case of disparate impact.
VI.
For the foregoing reasons, the judgment of the District Court
is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
(2)
Endometriosis is a condition in which the lining of the uterus
grows aberrantly in various locations outside the uterus including
the fallopian tubes and ovaries. If left untreated, this condition
may cause sterility. Richard Sloane, The Sloane-Dorland Annotated
Medical-Legal Dictionary 252 (1987).
(3)
GIFT is a procedure in which the ova are removed and mixed
with sperm in a petri dish. The ova and sperm are then placed in
the fallopian tube for natural fertilization. Taber's Cyclopedic
Medical Dictionary 774 (Clayton L. Thomas, M.D., ed., 17th ed.
1993).
(4)
When asked to explain through a series of questions in her
deposition what she meant by caring for others, Krauel responded,
"Caring for others has do to with caring for--not being able
to care for your own children."
"You are unable to have your own children and you're unable to
fill that need that I think almost everybody has to raise
children."
"Because in the back of your mind, you always want to have
your own child to care for. It doesn't affect the way I do my
job."
"It affects the way I feel."
Having children of your own "gives you a sense of
fulfillment."
Deposition of Mary Jo Krauel at 73-75.
(5)
This list is drawn from the regulations issued under the
Rehabilitation Act of 1973, the predecessor to the ADA. See 45
C.F.R. SS 84.3(j)(2)(ii) (defining major life activities).
(6)
The EEOC guidelines define fringe benefits as "medical,
hospital, accident, life insurance and retirement benefits; profit-
sharing and bonus plans; leave; and other terms, conditions, and
privileges of employment." 29 C.F.R. SS 1604.9.