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7th Circuit won't rehear in vitro case

August 22, 2008

The full 7th Circuit Court of Appeals won't rehear a case of first impression involving an Indiana woman's claim that she was wrongfully fired for taking time off for in vitro fertilization, and attorneys haven't decided whether to seek further review by the U.S. Supreme Court.

In the first of its kind for any federal appellate court, the 7th Circuit Court of Appeals ruled in favor of the woman July 16 in Cheryl Hall v. Nalco Co., No. 06-3684, a case that could have implications on women workers across the country. The appellate panel reversed a ruling from U.S. District Judge David Coar in the Northern District of Illinois' Eastern Division, which granted summary judgment for the employer on the ground that Hall, in someone seeking that surgical impregnation, didn't fall within a protected class and couldn't prove sex discrimination because infertility is a gender-neutral condition.

The 7th Circuit found the District judge's emphasis on "infertility alone" and application of caselaw was misplaced based on the facts of this case.

A docket entry shows that the full court declined Aug. 15 to grant a rehearing en banc, noting that no active judge has requested a vote on that and Judges Diane Sykes, Kenneth Ripple, and Ilana Rover on the original panel denied that vote. Judge Richard Posner did not vote, the docket shows.

Nalco's attorney on the appeal, Mark Lies II in Chicago, declined to comment on the case or ruling and said his firm has a policy against that.

But Charlie Pajor, Nalco's senior manager of external communications, wrote in an e-mail to Indiana Lawyer Thursday, "We are still considering all our legal options, including further appeals, but have made no final decision. Because this issue is still in litigation, we cannot comment on the case itself."

Court rules give Nalco 90 days from the latest judgment - until mid-November - to file a petition for writ of certiorari.

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