                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-3684
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.
                          ____________
        ARGUED JUNE 4, 2007—DECIDED JULY 16, 2008
                          ____________


  Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
   SYKES, Circuit Judge. 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
2                                              No. 06-3684

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 condi-
tions.” 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.
No. 06-3684                                               3

2003) (same). Each IVF treatment takes weeks to com-
plete, 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 reorgani-
zation 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 in-
forming 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 discrimina-
tion 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.
4                                               No. 06-3684

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 sum-
mary judgment for Nalco on the ground that infertile
women are not a protected class under the PDA be-
cause infertility is a gender-neutral condition. Hall ap-
pealed.


                      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 ap-
propriate when “the pleadings, the discovery and dis-
closure 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-
No. 06-3684                                                 5

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 individ-
ual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(2). In 1978 the Preg-
nancy 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, child-
    birth, or related medical conditions shall be treated
    the same for all employment-related purposes, in-
    cluding receipt of benefits under fringe benefit pro-
    grams, 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.
42 U.S.C. § 2000e(k). The PDA was enacted to overrule the
Supreme Court’s decision in General Electric Co. v. Gilbert,
429 U.S. 125 (1976), which had held that excluding preg-
nancy from a list of nonoccupational disabilities covered
by an employer’s disability benefits plan did not amount
to discrimination on the basis of sex. See Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 676-78
(1983).
  The PDA created no new rights or remedies, but clarified
the scope of Title VII by recognizing certain inherently
gender-specific characteristics that may not form the basis
for disparate treatment of employees. Id. at 678-79. “[T]he
simple test” in any Title VII sex-discrimination claim is
6                                                No. 06-3684

whether the employer action in question treats an em-
ployee “in a manner which but for that person’s sex
would be different.” City of L.A., Dep’t of Water & Power v.
Manhart, 435 U.S. 702, 711 (1978). The enactment of the
PDA did not change this basic approach. Newport News,
462 U.S. at 683-85. The PDA “made clear that, for all
Title VII purposes, discrimination based on a woman’s
pregnancy is, on its face, discrimination because of her
sex.” Id. at 684. The same is true for disparate treatment
based on childbirth and medical conditions related to
pregnancy or childbirth. See 42 U.S.C. § 2000e(k) (discrimi-
nation “because of sex” includes discrimination “because
of or on the basis of pregnancy, childbirth, or related
medical conditions”).
  The district court concluded that Hall’s allegations do
not state a Title VII claim because infertility is a gender-
neutral condition entitled to no protection under the
language of the PDA. In reaching this conclusion, the
court relied primarily on two cases from other circuits
holding that the PDA does not require employer insur-
ance policies to cover infertility treatment so long as both
male and female treatments are excluded. See Saks v.
Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003) (“Be-
cause reproductive capacity is common to both men and
women, we do not read the PDA as introducing a com-
pletely new classification of prohibited discrimination
based solely on reproductive capacity.”); Krauel v. Iowa
Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996)
(“[B]ecause the policy of denying insurance benefits for
treatment of fertility problems applies to both female and
male workers and thus is gender-neutral,” it does not
violate the PDA.).
  Both Saks and Krauel distinguished the Supreme Court’s
decision in International Union v. Johnson Controls, Inc., 499
No. 06-3684                                                       7

U.S. 187 (1991), an important case concerning the scope
and proper interpretation of the PDA. At issue in Johnson
Controls was an employer policy that barred all fertile
women from jobs involving lead exposure because of its
potentially damaging effect on fertility and the fetus. The
Court held the policy was invalid under the PDA be-
cause it “classifie[d] on the basis of gender and child-
bearing capacity, rather than fertility alone.” Id. at 198
(emphasis added). Implicit in this holding is that classi-
fications based on “fertility alone”—and by like implica-
tion, infertility alone—are not prohibited by the PDA,
which reaches only gender-specific classifications.1 As the


1
   Notably, this understanding of Johnson Controls rests on
the fact that infertility is gender neutral, not on Nalco’s alterna-
tive argument that the PDA only applies postconception. Cf.
Krauel, 95 F.3d at 679 (infertility is not a related medical condi-
tion because “[p]regnancy and childbirth, which occur after
conception, are strikingly different from infertility, which
prevents conception”). Indeed, this argument (and this aspect of
the Eighth Circuit’s reasoning in Krauel), is specifically fore-
closed by Johnson Controls, which explicitly recognized the
applicability of the PDA to classifications based on “potential
for pregnancy,” not just actual pregnancy. Johnson Controls,
499 U.S. at 199; see also Griffin v. Sisters of Saint Francis, 489
F.3d 838, 844 (7th Cir. 2007) (“There are circumstances under
which a pregnancy discrimination claim might be based on an
adverse employment action taken against a woman who is
not currently pregnant . . . .”); Kocak v. Cmty. Health Partners of
Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005) (holding that a
woman cannot be refused employment based on a belief that
she intends to become pregnant in the near future); Walsh v.
Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003)
                                                      (continued...)
8                                                   No. 06-3684

Second Circuit noted in Saks, this conclusion is necessary
to reconcile the PDA with Title VII because “[i]ncluding
infertility within the PDA’s protection as a ‘related med-
ical condition[ ]’ would result in the anomaly of defining
a class that simultaneously includes equal numbers of
both sexes and yet is somehow vulnerable to sex
discrimination.”2 316 F.3d at 346.
  The district court’s emphasis on this issue of “infertility
alone” is therefore misplaced in the factual context of
this case. As Johnson Controls illustrates, even where
(in)fertility is at issue, the employer conduct complained
of must actually be gender neutral to pass muster. Cf.
Newport News, 462 U.S. at 684-85 (“By making clear that an
employer could not discriminate on the basis of an em-
ployee’s pregnancy, Congress did not erase the original
prohibition against discrimination on the basis of an
employee’s sex.”). The employer policy in Johnson Con-
trols ran afoul of this mandate because its justification
was the effect of lead exposure on fertility—an effect
implicating both women and men—yet it barred only
fertile women from employment. 499 U.S. at 199. The Court


1
  (...continued)
(upholding jury verdict for plaintiff “discriminated against . . .
because she is a woman who had been pregnant, had taken a
maternity leave, and might become pregnant again”).
2
  The Second Circuit was careful to note that its decision did not
address the issue before us in this case; the court “expressly
decline[d] to consider whether an infertile female employee
would be able to state a claim under the PDA or Title VII for
adverse employment action taken against her because she
has taken numerous sick days in order to undergo surgical
impregnation procedures.” Saks, 316 F.3d at 346 n.4.
No. 06-3684                                                   9

concluded that the policy did not classify based on the
gender-neutral characteristic of fertility alone, but rather
on the gender-specific characteristic of childbearing
capacity, or “potential for pregnancy,” and was there-
fore invalid under the PDA. Id. at 198-99.
  Nalco’s conduct, viewed in the light most favorable to
Hall, suffers from the same defect as the policy in Johnson
Controls. Employees terminated for taking time off to
undergo IVF—just like those terminated for taking time
off to give birth or receive other pregnancy-related
care—will always be women. This is necessarily so; IVF
is one of several assisted reproductive technologies that
involves a surgical impregnation procedure. See The
Merck Manual of Medical Information, supra at 1418-19;
Mayo Clinic Family Health Book, supra at 1069-70. Thus,
contrary to the district court’s conclusion, Hall was termi-
nated not for the gender-neutral condition of infertility,
but rather for the gender-specific quality of childbearing
capacity.
  Because adverse employment action based on child-
bearing capacity will always result in “treatment of a
person in a manner which but for that person’s sex
would be different,” Manhart, 435 U.S. at 711, Hall’s
allegations present a cognizable claim of sex discrimina-
tion under Title VII.3 Accord Erickson v. Bd. of Governors of
State Colls. & Univs. for Ne. Ill. Univ., 911 F. Supp. 316, 320


3
   We recognize that our analysis differs from the legal theory
set forth in Hall’s complaint—that infertile women are a
protected class under the language of the PDA. However, “[a]
complaint need not identify a legal theory, and specifying an
incorrect theory is not fatal” to a plaintiff’s claim. Bartholet
v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1078 (7th Cir. 1992).
10                                            No. 06-3684

(N.D. Ill. 1995) (discharge of woman for undergoing
infertility treatment constitutes discharge because of her
capacity to become pregnant, stating a claim under Title
VII); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1403
(N.D. Ill. 1994) (termination for undergoing IVF violates
Title VII because “employers are to treat a woman’s
medical infertility with neutrality—the same general
command of the PDA regarding pregnancy itself”).
  Nalco alternatively argues that even if Hall’s claim is
cognizable, she has failed to demonstrate that Nalco’s
legitimate business reason for terminating her—consolida-
tion of its offices and the elimination of one secretarial
position—was pretextual. There is enough here to create
a triable issue regarding the reason Hall was terminated.
Hall was fired shortly after a failed IVF procedure and
just before she was scheduled to undergo a second at-
tempt; her boss, Marv Baldwin, told her that the termina-
tion was “in [her] best interest due to [her] health condi-
tion.” In her notes documenting Hall’s termination,
Jacqueline Bonin, Nalco’s employee-relations manager,
wrote that Hall “missed a lot of work due to health,” and
also noted in a section regarding Hall’s job performance,
“absenteeism—infertility treatments.” This evidence is
susceptible of both discriminatory and nondiscrimina-
tory explanations; a jury will have to decide.
  Nalco also maintains that the decision to retain Dwyer
instead of Hall was actually made by Gordie Hamilton, its
regional sales manager, who did not know that Hall was
undergoing IVF. There is contrary evidence, however.
Baldwin was Hall’s boss and a district sales manager;
Hamilton testified that district sales managers have the
authority to hire and fire, and Baldwin told Hall he made
the decision. These and other material factual disputes
No. 06-3684                                       11

(e.g., whether Dwyer was better qualified than Hall)
make this case inappropriate for summary judgment.
                              REVERSED AND REMANDED.




                 USCA-02-C-0072—7-16-08
