Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 1 of 15

HONORABLE ROBERT S. LASNIK

2

cc: TO JUDGE JK

,
-'

4

5

6

CLERK

'I S (' 1)1

Uu
Ricr COU!'I

:n' WESTERN 0 Tf:C ",-, '/.lh;i';iNG1{)I-i

7

::: ''':i'r''

!i

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

10

.JENNIFER ERICKSON, on behalf of herself )

11 and all others similarly situated,

)

)

12

Plaintin: )

)

13

v.

)

)

14 TIlE BARTELL DRUG COMPANY,

)

)

1 5

Defendant. )

-------------------------)
16

No. COO-1213L
AMENDED COMPLAINT - CLASS ACTIO"!

17

Plaintiff Jennifer Erickson, through her undersigned attorneys, brings this Class Action

18 Complaint against the Bartell Drug Company ("Bartell") and in support thereof states the lollowing
19 upon information and belief:
20 I. Introduction
21 1. This is an employment discrimination action, arising under the Civil Rights Act of 1964

as amended, 42 U.S.c. § 2000e et ~ (,Title VII"), and specifically as amended by the Pregnancy 23
Discrimination Act of 1978, 42 U.S.c. § 2000e(k) (the "PDA'').
24 2. Bartell singles out female employees for disadvantageous treatment by excluding
25
prescription contraceptives irom an employee benefit plan while including benefits for other 26

AMENDED COMPLAINT-J

N.124 7(:,3/1 / M-IE:-JDEl)(,0\1P1. AINT. DOC

ORlGINAL

T[tE-PIION,

')8 12!_~')~'J {ZOh) 12~_,,81)~

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 2 of 15

1 preventivc medical services, including other preventive prescription medications and devices.

2 Prescription contraception, which is available for use only by women, is basic medical care for

3 women who have the potential to become pregnant but who wish to control that potential by

4 reversible means. The failure to provide coverage for prescription contraception treats medication

5 needed for a pregnancy-related condition less favorably than medication needed for other medical

6 conditions; it therefore constitutes facial sex discrimination.

7

3. In addition, Bartell's exclusion of prescription contraception has an adverse disparate

8 impact on Ms. Erickson and other members ofthe proposed class. Because prescription

9 contraceptives are available for use only by women, Bartell's failure to provide coverage for

10 prescription contraception forces its female employees to choose between paying their own out-of-

I I pocket prescription costs, or bearing the physical, emotional and financial costs of unplanned

12 pregnancy.

13

4. As a result of Bartell's decision (0 exclude contraceptives from its non-union employee

14 benefit plan, Ms. Erickson and other members of the proposed class are being discriminated against

IS in the terms and conditions of employment, which includes the receipt of benelits under fringe

16 benefit programs, because of their potential for pregnancy. This violates Title VII.

17

5. To remedy this discrimination, Ms. Erickson and the Class she represents seck equitable,

18 declaratory and inj uncti ve relief against Bartell.

19

II. Jurisdiction and Venue

20

6. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331 (federal question); and 42

u 21

.Sc. ~ 2000e-5(f)(3) (Title VII).

22

7. Ms. Erickson's claim for declaratory and injunctive relief is authorized by 28 u.s.c. §§

23 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and

24 equitable powers of this Court.

25

8. Venue is appropriate under 28 U.S.c. § 1391 (b) and (c), and 42 U.S.c. § 2000e-5ef)(3)

26 because the unlawful employment practices giving rise to this claim were committed in this district

AMENDED COMPLAINT - 2
i'.:124 7113/11 AII,;IF.'lflF'DCOVlPI ,'\ INT. 00('

I?()JNRTA Hl/./;·Y, WSH.I ili()8.Jj
PLANNED Pi\ltENTI100f) OF WESTERN WA~HIN(iION
2()OI EAST M,\DISO:' SEATTLIT, WASHINGTO~ 0~12~_2,)5'-J
TELEPHONE (21H) \~~·6RI):S

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 3 of 15

1 and Bartell resides in this district.

2

1I1. Parties

-~ '

9. Jennifer Erickson has been employed on a full-time basis by Bartell as a licensed

4 phamlacist since February, 1999, As part of the terms and conditions of her employment Ms.

5 Erickson receives health insurance coverage, including coverage of prescription drugs and devices.

6 Ms. Erickson sues on her own behalf and as a representative of the proposed dass of employees who

7 arc discriminated against by the exclusion of contraccption from Bartell'5 bene lit plan.

8

10. Ms. Erickson is 26 years old, has been married for one year, and has no children. She

9 and her husband plan to have children some day, but they are not yet ready to do so. In order to

10 avoid unplanned pregnancy, Ms. Erickson uses a reversible contraceptive: birth control pills (also

11 known as oral contraceptives). Because prescription contraceptives are excluded by Bartell's non-

12 union employee health plan, Ms. Erickson must pay out-ot:pockct for her prescription contraceptives

13 or risk the physical. emotional and financial costs or an unplanned pregnancy.

14

1 I. On or ahout Jline 30, 1999, Ms. Erickson wrote to Bartell's Benefits Department

15 requesting that the company change its Health Plan to include insurance coverage for contraccption.

16 She received a letter back indicating that contraception was not part of the Prescription Benefit Plan.

17

12. On December 29, 1999, Ms. Erickson filed a charge with the EEOC in Seattle,

18 Washington alleging that Bartell's failure to provide her with health insurance coverage for

19 prescription contraceptives constitutes unlawful discrimination on the basis of sex.

20

13. On July 10,2000, Ms. Erickson received a right-to-sue letter from the EEOC. A copy of

21 that letter is annexed hereto as Exhibit A.

22

14. Bartell is a corporation organized under the laws of Washington, with its principal place

ot'business in Seattic, Washington. On information and belief~ Bartell employs approximately 1,380

24 individuals.

25

IV. Bartell's Health Plan

26

15. As a tenn and condition of her employment, Bartell offers Ms. Erickson the opportunity

AMENDED COMPLAINT - 3
:-::/24763/1.1AM!'.!\; D['[)(,O\-'PI ..'\il\ T. DOC

j(()!U,KF,1 IUU;Y, W:1HA ,'1l68.Jl
PLANNED PARENTIIOOD OF \VI,~TFR,'11 WASHINGTO.'\I
2001 CAST MADl,ON o.;FArru-,_ WASHINGTOr>, ')HI2Z·2<t59
TELEPHONl (206) HS-,,~iI'

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 4 of 15

1 to enroll in one of two health plans. Upon information and belief, Bartell self-insures and controls

2 all of the terms and conditions of these plans. Both health plans ofTered by Bartell are administered

3 by Regcncc l3Iue Shield. Both plans exclude prescription drugs other than those provided on an

4 inpatient basis. However, as a term and condition of her employment, Bartell also offers Ms.

5 Erickson the opportunity to enroll in the Bartell Drug Prescription Benefit Plan for Non-Union

6 Employees, which is the only outpatient prescription coverage available to her as a non-union

7 employee of Bartell. Upon information and belief. Bartell selt:insures and controls all of the terms

8 and conditions oj' the Bartell Drug Prescription Benefit Plan for Non-Union Employees

9 ("Prescription Benefit Plan"). The Prescription Benefit Plan requires employees to till all

10 prescriptions at a Bartell Pharmacy (unless an emergency arises when the employee is out of the

11 service area served by Bartell).

12

16. As of May I, 1999, Ms. Erickson enrolled in one of the Regenee-administered health

13 plans and the 8artell Drug Prescription Benefit Plan for Non-Union Employees (together, the

14 "Health Plan"). Under the Health Plan, Ms. Erickson's benefits include coverage of many

15 preventive services and prescription drugs, including but not limited to coverage of: routine exams,

16 immunizations, well child care, cancer screenings, routine hearing and vision exams, preventive and

17 diagnostic dental services, smoking cessation care, blood-pressure and cholesterol-lowering

18 prescription drugs, and hormone replacement therapy to prevent osteoporosis.

19

17. Despite covering other preventive medical services and prescriptions, the Health Plan

20 docs not cover prescription drugs and devices used by women to prevent pregnancy. The written

21 Bartell Drug Prescription Benefit Plan for Non-Union Employees lists "contraceptive devices

22 (including birth control pills)" as a "non-covered item."

23

I S. If Ms. Erickson were to become pregnant, the Health Plan would cover the costs of either

24 an abortion or continuing the pregnancy to term - whichever she chose to do.

25

V. Harm to Ms. Erickson and Other Class Members

26

19. As a result of Bartell's failure to cover contraception to prevent pregnancy, Ms. Erickson

AMENDED COMPLAINT - 4
N:l24 763.1 I !AME'lUEDCOMPL.A!NT ,DOC

NOBI:;}/JA fUf,EY. "VS/;i,j iU6,').Jj PLANNEIl PARE~THOOD
OF WESTERN WA.'lf-IINGTON
2001 EAST MADISOt\' S[ATTLE, W!\SHI:\IGTO'\ <JH 122-2'159
rl:U';PHOl\E 121)~\ jIS·(,~1)3

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 5 of 15

must pay for her monthly supply of birth control pills on an out-ot:pockct basis, or risk unintended

2 pregnancy. Like many healthy women of reproductive age, contraception is the only prescription

3 drug Ms. Erickson uses on a regular basis.

4

20. On information and belieJ: Bartell cmploys numerous women of reproductive age who

5 use prescription contraception.

6

21. If contraception were treated on an equal basis with other prescriptions under the Health

7 Plan, Ms. Erickson and other class members would pay a co-pay of either $5 (generic) or $10 (brand

8 name) for a 34-day supply of contraception.

9

VI. Factual Framework

10

22. For over thirty years of their lives, women have the biological potential for pregnancy.

11 Contraception is a drug or device that prevents pregnancy. Without contraception, the average

12 woman would be expected to have between 12 and 15 pregnancies in her lifetime. In any given

13 year, 85 out of 100 sexually active women of reproductive age who do not use contraception will

14 become pregnant. Most American women want only two children. To achieve that goal, the typical

15 American woman spends roughly three decades- or about 75% of her reproductive life- trying to

16 avoid unintended pregnancy. Of the 60.2 million women of reproductive age, 64% currently nse

17 contraception. Ninety-fcmr percent of American women use contraception at some point during their

18 reproductive years. Among all women aged 20-44 who have ever had sexual intercourse, 85% have

19 used prescription oral contraceptives.

20

23. The Food and Drug Administration (FDA) has approved five methods of reversible

21 prescription contraception: oral contraception; Norplant; Depo-Provera; intra-uterine device

22 ("IUD"); and the diaphragm. Only women can use these methods of prescription contraception.

23 Other fomls of contraception are sold over the counter (OTC) and thus generally are not covered by

24 health insurance. The OTC methods include the male condom and five female methods: spennicidal

25 foam, jelly, tilm, suppositories and the female condom. All methods work either by preventing

26 fertilization ofa woman's ovum or by preventing implantation of the blastocyst in the uterine wall.

AMENDED COMPLAINT - 5
N:/247(;J! 1j AME}.I DEllCOIVl PL\ II"T. DOC

R()Hf''-U'IA Nfrh"!" WSH.-I :flf>8-i1
PLANNED PARENTHOOD OF WESTERN WASHINGTON
W()I I-.-IS'\ MiI,lJl~{)i'.
SE.'\TTLE, WASlIINGTO" 9ljl2::'Z'l59 TELEPIIONE (2(n, J~8·hXfl:i

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 6 of 15

1

24. Women bear all of the physical burdens of pregnancy, which are quite substantial.

2 Pregnancy itself can put a woman's life at risk. Ectopic pregnancy is the deadliest complication in

3 the early stages of pregnancy. The three dead! iest complications of full-term pregnancy arc

4 hemorrhage, hypertension and thrombosis. In the United States today, for every 100,000 birtbs, 8-22

5 women (depending on their county of residence) die as a result of pregnancy-related complications.

6

25. Pregnancy also poses non-life threatening health risks for women. The morbidity rate

7 during pregnancy is quite high. Twenty-two percent of all pregnant women are hospitalized bef(xe

8 delivery because of various complications. Pre-term labor is one of the most common reasons

9 women are hospitalized before delivery. In such instances, the medical interventions a woman must

10 undergo often include long-term bed rest and administration of various drugs, some of which havc

11 signilicant side effects for the woman.

12

26. The more pregnancies she bears. the greater the likelihood a woman will suffer one or

13 more of the myriad life and/or health-threatening complications of pregnancy. Women who

14 experience a large number of pregnancies arc known to be at far greater risk for certain permanent

15 health problems such as uterine prolapse (downward displacement of the uterus so that sOllle or all of

16 the uterus comes outside of the vagina), rectocele (hernial protrusion of the rectum into the vagina),

17 cystocele (hernial protTLIsion of' the urinary bladder through the vaginal wall), pelvic floor disorders

18 and varicosc vcins.

19

27. For women with pre-existing medical conditions, even one pregnancy can pose grave

20 health risks. Preexisting medical conditions that are exacerbated by pregnancy include: certain

21 blood diseases, including sickle-cell disease; heart disease; cancer; endocrine disorders sllch as

22 diabetes; diseases of the nervous system such as epilepsy; kidney and liver diseases; connective

23 tissuc disorders such as systemic lupus erythematosus and rheumatoid arthritis; chronic

24 hypertension; respiratory disease including asthma and pneumonia; and HlV present in the blood

25 stream.

26

28. Unintended pregnancy poses far greater health risks to women and children than does

AMENDED COMPLAINT - 6
N:l2 4 7 63,1 IIAJvlE NDmCOM PL AIN T, ODe

ROlnUTA RlfJJ", W.I,'lJA :1-168./ f
PL.ANNED P,\RENTHOOD
OF WESTERN WASHINGTO:-.l
2001 E'\ST MADISON SI-:ATfLE, W;\~llINGTO]\ Q81~:!-2"5'l
rt:Ll~HON( (205) \2~-i:>8I1j

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 7 of 15

intended pregnancy. The medical risks of unintended pregnancy are well documented. In general,

2 women who become pregnant unexpectedly are less likely to receive adeqnate pre-natal care and

3 thus have less opportunity to manage pre-existing medical conditions and other risks during

4 pregnancy. For instance, unintended pregnancy is quite dangerous, and may even be deadly, for

5 women with hypertension or diabetes. These conditions are best managed when medical care is

6 begun before conception. In addition, women who become pregnant unexpectedly forego the

7 opportunity to receive pre-conception counseling to improve the health of the fetus and arc more

8 likely to have low birth weight babies and experience a higher rate of neonatal mortality.

9

29. Unintended pregnancy is both frequent and widespread in the United States. Forty-nine

10 percent or all pregnancies in the United States are unintended. Among Western Nations, the United

I I States has one of the highest rates of unintended pregnancy. Unintended pregnancy affeets all

12 segments of society. Four out often pregnancies among married women are unintended. Low-

13 income women and unmarried women experience even higher rates of unintended pregnancy.

14

30. Contraception enables women to plan their pregnancies and time the spacing betwecn

15 pregnancies. The shorter the interval between her pregnancies, the greater the likelihood a woman

16 will experience pre-term labor, depression and other health problems. Recognizing that

17 contraception is central to the health and well-being of women and their children, the Center for

18 Disease Control and Prevention has recognized that "[sjmaller families and longer birth intervals

19 have contributed to the better health of infants, children, and women, and have improved the social

20 and economic role of women."

21

31. Furthermore, even in an otherwise healthy woman, pregnancy poses medical risks that

22 arc significantly greater than the risks of using contraception. In any given year, the average risk of

23 death from pregnancy is I in 11,000 while the risk of death from contraception is mueh less: I in

24 63,000 for non-smoking oral contraceptive users; I in 100,000 for IUD users; and no risk of death

25 Cor diaphragm users.

26

32. Duc to the wide variation in effectiveness, cost, and medical appropriateness of available

AMENDED COMPLAINT - 7
,,:124 763( 1.1A\,lEN LJEDCQi\1PL '\INT.DOC

!((WER1>! }I/f.!:'r, WSB,./ #I(,~-Il
PLANNED PARENTHOOD OF WESTERN W/\SIIIN(i\Ol\'
2U(J1 EAST MADJSOl\' SEATTLE, WASfl1N(;]'()~ ~~ 1222'15'1
TF.tF.PHO:-.JE 12(>[,) 12S-6Moi

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 8 of 15

fom1s of contraception, choice of contraceptive method is essential to successful pregnancy
1

2 prevention. Other factors that contribute to what type of contraception a woman chooses to use are

".J whether the woman intends to delay, space, or entirely prevent future childbearing.

4

33. Women with medical conditions that require pregnancy avoidance, in particular, require a

5 full range of contraceptive options because their medical conditions often preclude the usc of one or

6 more contraceptive methods. For example, birth control pills are medically contraindicated for

7 smokers over age 35 and women who are at risk of cardiovascular problems, such as stroke, heart

attack, blood clots, and hypertension, as well as women who have, or are at risk of, depression or

9 hepatic adenomas.

10

34. For all ofthe above reasons, a recent study by the Institute of Medicine recommends

11 improving contraceptive coverage in health plans in order to reduce the number of unintended

12 pregnancies and to improve health outcomes for women and children. Similarly. the United States

13 Department of Health and "uman Services has adopted the goal of improving pregnancy planning

14 and spacing and preventing unintended pregnancy. Moreover, the Guidelines for Women's Health

15 Care published by the American College of Obstetricians and Gynecologists (ACOG), which

16 represents 38,000 physicians in this country. advises that "prevention of unwanted pregnancy" and

17 "contraceptive options" be discussed with all women over the age of 13 during routine primary eare

18 assessments. In sum. contraception is basic to women's health and well-being.

19

35. The physical burdens of pregnancy increase the risk of interruption to a woman's

20 education, career and professional development opportunities. The ability to control her biological

21 potential for pregnancy is central to a woman's ability to participate in the workplace on an equal

22 basis with men.

23

36. Inadequate insurance coverage of contraception has substantial adverse economic

24 consequences for the 67% of American women of reproductive age who rely on employer-sponsored

25 health insurance coverage. These women pay 68% more in out-of-pocket expenditures for health

26 care services than men, and reproductive health services account for much of that difference.

AMENDED COMPLAINT - 8
i'< :124 76]/1 iAi'.IEN DmCOM PLA!:-':T.DOC

ROJ)rUTA RILEY. WSiJA ~JfJ8./{ PI ANi':F.D PARENTHOOD
OF \"iESTER~ WASHINGTON
2001 E.\ST M,\DI:'>ON
Sic,A rn F, W ,\SHI:-.IGTON ()~ 122 -29 '.C)
TEI.EPHOi'lE (206) J28-6~l)'

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 9 of 15

VII. Statutory Framework

2

37. Title VII provides that: "11 shall be an unlawful employment practice for an employer to

3 ... discriminate against any indi vidual with respect to his compensation, terms, conditions, or

4 privileges oCemployment, because of such individual's ... sex." 42 U.S.c. § 2000e-2(1).

5

38. In 1978. Congress enacted the Pregnancy Discrimination Act ("PDA") which provides

6 that the term "because of sex" in Title VII includes, but is not limited to, "because or or on the basis

7 of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The PDA further

8 states that "women atIected by pregnancy, childbirth, or related medical conditions shall be treated

9 the same for all employment-related purposes, including receipt of benefits under fringe benefit
10 programs as other persons not so affected but similar in their ability or inability to work." .!!L Thus.

11 Title Vll specifically mandates that employers may not single out employees for disadvantageous

12 treatment based on "pregnancy, childbirth, or related medical conditions."

13

39. Contraception is "pregnancy-related" within the meaning of the PDA because it is

14 medical treatment that provides women with the ability to control their biological potential for

15 pregnancy. Exclusion of contraception from a health plan is sex discrimination in violation oflhe

16 rDA because it treats women differently on the basis of their potential to become pregnant. The

17 exclusion of contraception from the Health Plan is, therefore, sex discrimination on its face in

IS violation of Title Vll, as amended by the rDA.

19

40. The exclusion of contraception irom the Health Plan also has an adverse disparate impact

20 on women in violation of Title VTI because it forces them either t[) pay for prescription

21 contraceptives out of pocket, despite having prescription insurance coverage, or to bear the physical,

22 emotional ami financial burdens of unplanned pregnancy. Bartell's policy of excluding

23 contraceptive coverage cannot be justified as job-related and consistent with business necessity.

24

VIII. Class Action Allegations

25

41. Pursuant to Fed. R. Civ. P. 23(b)(2), Ms. Erickson seeks declaratory and injunctive relief

26 on behalf of herself and all other persons similarly situated, defined as:

AMENDED COMPLA1NT - 9
'\J :/24 763/1 / AMF.NDEDC()\-lPLAI:-':T. DOC

!WHUOA /Uf.Fr, WSJlA :U68.fJ I>LAN~ED PARENTlIO(ln
OF WLsn'RN WASHINGTON
:001 E..o,ST MADISON SEATTLE, WASHI~(n()N ,11(122·29''1
TElEPHO"lF 12()(,1 31)1 &~05

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 10 of 15

All female employees of Bartell who at any time after December 29,

1997 were enrolled in Bartell's prescription benefit plan for non-union

2

employees while using prescription contraceptives.

3

42. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(a).

4

(a) Plaintiff is informed and believes that the class is so l1lunerous that joinder of all

5

members is impracticable. Bartell employs approximately 1,380 people in

6

Washington State, about one-half of whom are non-union employees eligible to

7

participate in the prescription benefit plan at issue in this case. Given the number

8

of qualifying employees and the well-documented utilization rates for prescription

9

contraceptive drugs and devices, plaintiff is informed and believes that the class

10

consists of at least 100 persons.

I I (b) There are questions of law or fact common to the class, including: whether
12 l3artell's conduct violates Title VII as amended by the Pregnancy Discrimination
13 Act, which prohibits discrimination based on "pregnancy, childbirth or related
14
medical conditions"; whether Bartell's conduct has an adverse disparate impact
15 on a protected class in violation of Ti tIe VII; whether Bartell's conduct is justi lied
16 by any recognized legal defense; the nature and scope of injunctive relief
17 necessary to prevent further violations of federal law; the nature and scope of
18 equitable relief appropriate to complement the injunctive relief awarded by the
19 Court; and the nature and scope of declaratory relief appropriate in this case.
20

21

(c) The claims of the representative parties are typical of the claims of the class. Ms.

22

Erickson was enrolled in Bartell's prescription benefit plan f()r non-union

23

employees during the class period. A health care professional prescribed

24

contraceptives for Ms. Erickson's usc. Like every other member of the class, Ms.

25

Erickson has been denied benefits of her employment based on a pregnancy-

26

AMENDED COMPLAINT - 10
N:i24763J 11A \'1ENDED(,OJl.·IPI.!l.I"JT .DO(,

ROIJi:KIA HI/JY, WSfrA fi/68-1l
I'I.ANNED Pf\REN"IlIOOD OF WESTERN W,\SIIIN(;T()N
20U I hA~ T \1ADlSO~ SEATTLE. WASfilNGTOS q3122-2~~<)
TELErHONF. (~Olt) ]2~·oR(l5

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 11 of 15

related medical condition. Furthermore, the Bartelt contraception exclusion has

2

had an adverse disparate impact on her, as it has on other female employees of

3

Bartell.

4

(d) Ms. Erickson will fairly and adequately protect the interests of the class. She wilt

5

pursue this litigation with diligence and vigor, and she has retained counsel

6

experienced in Title VIT and other class action litigation. Ms. Erickson has

7

exhausted administrative remedies on behalf of herself and the class.

8

43. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(bJ(1)

9 because Bartell has aeted or refused to act on grounds generally applicable to the class, thereby

10 making declaratory, injunctive and other equitable relief appropriate tor the class as a whole.

11

IX. First Claim for Relief: Disparate Treatment

12

44. Plaitltiffhereby incorporates by reference Paragraphs I through 43 above.

13

45. By providing Ms. Erickson and the Class with health insurance benelits that selectively

14 exclude all FDA-approved prescription contraception, Bartell discriminates on the basis of sex in

15 violation of Title Vll as amended by the PDA.

16

X. Second Claim tor Relief: Disparate Impact

17

46. PlaintilThereby incorporates by reference Paragraphs 1 through 45 above.

18

47. By providing Ms. Erickson and the Class with health insurance benefits that selectively

19 exclude all FDA-approved prescription contraception, Bartell engages in an employment practice

20 that has an adverse disparate impact on Ms. Erickson and the Class, thus constituting illegal

21 employment discrimination on the basis of sex in violation of Title VII.

22

XI. Prayer for Relief

23

48. On behalf of herself and all other persons similarly situated, Jelillifer Erickson seeks the

24 following relief:

25

(a) That an order be entered certifying the Class pursuant to Fed. R. Civ. P.

26

AMENDED COMPLAINT - 11
:-.J :/24 7 6311/A\1ENDEDCOM PUI"T .DOC

1?()8Iill"j"" NIl-Fr, IrS",A ,'lf68-Jf
PLA~NED PARENTHOOD
OF WESTERN WASHINGTON
20nl EAST MADI~ON
S~.A r I'u.:, W A.<,H I)';(;'1'0:-< <J312~·2()~"
Il:LEI'1I0NE (21)ftj .'!S-O~()'

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 12 of 15

23(b)(2).

2

(b) That a declaratory judgment be entered declaring that Bartell has violated the

3

civil rights of Ms. Erickson and the Class she represents as guaranteed by 42

4

u.s.c. § 2000e.

5

(cl That a permanent injunction be entered prohibiting Bartell from engaging in

6

the illegal and discriminatory conduct alleged herein and requiring Banell to

7

issue and disseminate to all eligible employees a revised prescription coverage

8

plan that covers all FDA-approved prescription contraceptive drugs and

9

devices.

10

Cd) That the Court award equitable relief to Ms. Erickson and the Class in the

1 1

form of nominal damages_ incidental monetary relief, back pay, attorneys fees

12

and costs.

13

(e) That the Court award Ms. Erickson and the Class their attorneys' fees and

14

costs pursuant to 42 u.s.c. § 2000e-S(k).

IS

(f) That the Court award such other and further relief as it deems just and proper

16

under the circumstances.

17

DATED this 6th day of September 2000.

18 By

19

Roberta Riley, WSBA #16 1

PLANNED PARENTHOO OF WESTEKN

20

WASHINGTON

200 I East Madison

21

Seattle, Washington 98122-2959

Telephone: (206) 328-6805

22

23

24

25

26

AMENDED COMPLAINT - 12
N:/24763/ I iAr.'lE\'DEDCOMrLAI]>';T.DOC

IWBFNTA RILEY, WSIJ.-l #168-1/ I'LA~NI·:]) PARLN ['IIOOD
OF WESTER~ WASHINCrfON
2.001 EAST MADISON Sf'.ATTI.E, WASHINGTON 98122-2<)j'l
n;:l..!:PHONl (2061 ,"II (,~O'.

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 13 of 15

2 ,
.J
4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26
AMENDED COMPLAINT - 13
N..124763/11MIEN DEDCO~l PLAl:-;T .DOC

Eve C. Gartner, admitted pro hac vice PLANNED PARENTHOOD FEDERATION OF AMERICA 810 7th Avenue New York, New York 10019 Telephone: (212) 541-7800
Lynn Lincoln Sarko, WSBA #16569 T. David Copley, WSBA #19379 Gretchen Freeman Cappio, WSBA #29576 KELLER ROHRBACK L.L.P. 120 I Third Avenue, Suite 3200 Seattle, Washington 98101-3052 Telephone: (206) 623-1900 Of counsel: Marcia D. Greenberger Judith C. Appelbaum Barbara A. Burr NATIONAL WOMEN'S LAW CENTER II Dupont Circle #800 Washington, D.C. 20036 Telephone: (202) 588-5180
RO/JUUA !?!l.I/r, WS)U .II!(o,,'J/ PLANNED PAREl'<THOOf)
OF WI-,STERN WASHINGTON
~flll] EAST M,<\[)I~n\l S1:-. ,\T'i LE, WASIIINGTON q~I21-2<'>~9
rI:Lf:I'IiONE (2()6) J2~·(.~rl'

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000 Page 14 of 15

l!iZoC FOrni 11i1-.B (101%)

U.S. EQUAL EMPLOYMENT OPPORTtJNrI'Y COMMISSION

NOTICE OF RIGHT TO SUE (IsSUED ON REQUEST)

To:Jennifl!!r Er(c.k!on
406 118~ A..noe SR, Apt. 21 Bell.vue. WA 98005

Prom: EEOC - Se.ttle Diserlct om••
909 first Avenuc, Suite 400
S..tt1•• WA98104·1061

389000357

On b••oV ofp"'''ls) ""ri.'fflIwh"" itkltlity Lr
em CONFIDENTIAL '(29 t 1601.11<i))
EEOC llepr...fl.laUn
Mads Lonlcld, Inve.!tl84tor

Telephone No. (296) 129~682)

NOTICE TO THE PERSON AGGRIEVED:

Tille VII of the Clvll RJpll Ad of 1964 8IlJlor th. Americ:am wltb Dlsabllltl.. Act (ADA): This i. your Nodee of Right 10 Sue, issued
under Tille VU andlor the ADA based on the above-numbered. .hu,e. It hu been issued at your requ..l. Your lawsuit IlJldcr TI'le VII or the
ADA must be filed in federal or JtIIte court W1TBlN 90 DAYS of your receipt of IhI.! Notice. Otherwise, your right to lue based on this
cbarge will be 105t. (The time limit for flllng suit baled on • Itate claim may be different.)

r X
[ 1
r X

More tban ISQ day. bav. paned since the filing of rhl. charge. .

,

'

Lea. than ISQ days bave pused linee the filing of thiJ charge, but I have determined that it is unlikely that the EEOC wUl

be able 10 complete ill administrallve processing within 180 daya from the /lUng of the charge.

The BEOC is terminating Its Processini of thia cbarge.

The EEOC will contin~ to procell rhl. charge.

Age Discrimination In Employment Ad (ADEA): You may sue under the ADEA at any lime from ro days after the chUI. was filed

until 90 days after you receive notice that we have completed action on the dargc. In this regard, the pangraph marked beloW applies

to your case:

(

Wmu The EEOC is ciosing your case. Therefore, your lawsuit Under Ibe ADEA must be "led In rederal or Itate court

90 DAYS of your receipt or this NOllce. Otherwin. your right to !UC based on the above-numbered charge will bi: 105l.

,The EEOC Is conunuing its handling of your ADEA c..... However, if 60 days have passed ,ince the filing of your charge
you may m••uit in federal or slate court und.r the ADBA a' Ihll time.

Equal Pay Act (EPA): You already have Ihe rlElu to sue under the EPA (filing an EEOC charge is not required.) EPA suits must be brough,

Thu in tederal or slate court wlthln 2 yean (3 years for willful violadonl) of the a11eled BPA underpayment.

mew that backpay due for any

vlolatlo05 that occurred moO! than Z Yean C3 yeanl berore YOIl nl. IUIt 1I!!1 IIGt b. colledible.

If you file IUit basecl on thiJ chuge, pleale lend • copy of your court complalnllO ibis office.

Enclo,ure('j

On behalf a/lhe Comminion
t {7jPlM. Gwn, Abb Jeanette M. Leino, Dlml.! Director

JUL 1 0 lOOO

cc:

Case 2:00-cv-01213-RSL Document 6 Filed 09/06/2000
· .","'ORMATION RELATED TO FILING. UNDER TIlE LAWS ENFORCED BY THE EEOC

Page 15 of 15

(l?Us in/tJtmD.tion ~IDltllo flUn, luil in Fed"rol or S/ol" court lIndtr F,dtrol law.
l/yoll. ouo plllll to SUt claimi"/I violations ofSrglt law. pleast be aware thaI lime limil1 alld oeher
p",visians of Stol. law 11UZj b.,htJrttr or more /.miled thon lhose dt!Cribed below.)

PRJ S R

Title VlI of the Civil Ri&hts Act, the Americans with Disabilities Act (ADA).

VATE UIT IGIfl'S - or the Age DilcrimlDation In Employment Act (ADEA):

In order to pursue this matter fIIrther. you must filc a lawsuit against the respondent(s) named in the charge .l!1tbln
90 days of the date you reedy. thl. Notice. Therefore, you should keep a record of this dale. Once this 90-day p~riod i. over, your right to sue based on the charge referred to in this Notice will be lost. If you intend to consult an attorney, you should do so promptly. Give your attorney a copy of this Notice, and ilB envelope. and tell him or her the date you received it. Furthermore. in order to avoid any question that you did not act in a timely manner, it . is prudent that your sl.Iit be filed wltbl.n 90 days of the date this Notice was mailtd to you (as indicated where the Notice is signed) or the date of the postmark, if later.

Your lawsuit may be filed in U_So District Court or a State court of competent j\ll"isdietion. (Usllally, the appropriate State court is the general civil trial court.) Whether you file in Federal or State COl.lrt is a matter for you to decide after talking to your attorney. Filing this Notice is not cnol.lgh. YOIl must file a "complaint" that contains a short statement of !he facts of your case which shows that you are entitled to relief. Your suit may include any matler alleged in the charge or, to the extent permitted by court decisions. matters like or related to the matters alleged in the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has its main office_ If you have simple questions, you usually can get answers from the office of the clerk of the court ",here you are bringing suit, but do not expect that office to write your complaint or make legal strategy decisions for you,

PRIVATE SUIT RIGIfl'S - Equal Pay Act (EPA):
EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: backpay due for violations that occurred more than 2 YeafS (3 Years) hefore you me suit may not be collectible: For e~ample, if you were underpaid under the BPA for work performed from 111196 to 12/1/96. you should file suit before 111/98·· not 1211198 -- in order to recover unpaid wages due for July 1996. This time limit for filing an EPA suit is separate from the 90-day filing period under Title VII, the ADA or the ADEA referred to above. Therefor~, if you also plan to sue under Title VII. the ADA or the ADBA, in addition to suing on the EPA claim. suit must be filed within 90 days of this Notice ~ within the 2- or 3-year EPA backpay recovery period.

ArrORNEY REPRESENTATION - Title VII and the ADA: ,
If you cannot afford or have been unable to obtain a lawyer to represent you, the U,S. District Court having jurisdiction in your e&:Ie may, in limited circumstances. assist you in obtaining a lawyer. Requests for such assistance must be made to the U.S. District Court in the form and manner it requires (you should be prepared to explain'in detail your efforts to retain an attorney). Requests should be made well before the end of the 90-day period mentioned above, because such requests do ~ relieve you of the reqUirement to bring suit within 90 days.

ATTORNEY REFERRAL AND EEOC AsSISTANCE - AU Statutes:
You may contact the EEOC representa.tive shown on your Notice if you need help in finding a lawyer or if you have any questions about your legal rights, inclUding advice on which U.S. District Court can hear your case. Jfyou need to inspect or obtain a copy of information in EEOC's file on tbe charge, please request it promptly in writing and provide your charge number (as shown on your Notice), While EEOC de~troys charge files after a certain time, all charge files are kept for at least 6 montbs after Ollr last action on the case. Therefore. if you file suit and want to review the charge file, please make your review request within 6 months of this Notice. (Before liIing suit. any request should be made within the next 90 days.)
IF You FILE SUIT, PLEASE SBND Ii COPY OF YOUR COURT COMPLAINT TO THIS OFFICE.

 
 Case 2:00-cv-01213-RSL Document 102 Filed 12/03/2002 Page 1 of 3

/
v
The Honorable Robert S. Lasnik

2

3

4

5

111111111111111111111111111111111111111111111111111111111111

6 11111111111111111111111111111111111111111111111111

7

('\' ou U1213 ;,'00000102

DEC - 3 2002

/".-1- 3i-::j.\T'iU

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21

22

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24

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

JENNIFER ERICKSON, individually, and on )

behalf of all others similarly situated,

)

) No. COO-1213L

Plaintiff, )

) (PROPOSED) ORDER GRANTING

~

) PRELIMINARY APPROVAL OF CLASS

) ACTION SETTLEMENT, APPROVAL OF

THE BARTELL DRUG COMPANY,

) NOTICE TO CLASS MEMBERS AND

) SETTING FAIRNESS HEARING

Defendant. )

--------------------------)

This Court considered the joint motion for preliminary approval of the class action

settlement, approval of notice to class members and setting of fairness hearing, and the memorandum

and declaration of Roberta N, Riley in support thereof.

NOW THEREFORE, the Court hereby GRANTS the joint motion for preliminary approval

of class action settlement. The proposed notice to class members is also approved. Defendant

Bartell is ORDERED to notify class members of the settlement pursuant to the tenns of the

settlement on or before December 31, 2002. Any class member objecting to the proposed settlement

shall file her objection in writing on or before February 11, 2003. A fairness hearing regarding final

approval of the settlement is hereby set for March 4, 2003.

O(,) \ \1t £\\ \ \

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......

(PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, APPROVAL OF NOTICE TO CLASS MEMBERS AND SETTING fAIRNESS HEARING: Case No. COO-1213L: Page - 1

ROBERTA RlLEY, WS8A 1116&41 PLANsro PARENI'IIOOD OF WESTERr..- WASHING 0

N :\0 ,lFi'-ITS\24763\ 1\PLEA1)!:-"GS\ORDERMoTIONORDERSE'I'j LEMEf\TAPPRovALDO('

Case 2:00-cv-01213-RSL Document 102 Filed 12/03/2002 Page 2 of 3

Dated this 3r<I day of~, 2002.

2

3

Robert S. Lasnik

4

United States District Judge

5

Presented by:

6 PLANNED PARENTHOOD OF

WESTERN WASHINGTON

7

BY~~~~I~~.~~~.~./~/~J~~~~~______

9

Roberta Riley, WSBA # 841

2001 East Madison

10

Seattle, Washington 8122-2959

Telephone: (206) 328-6805

II

Lead Counsel for Plaintiffs

12

MILLER NASH LLP

13

14 15

:;:r B~"""'V1 1) \c..!L'i,N) I l James Dickens 4400 Two Union Square

1"1 L
. .........~. v\~

16

601 Union Street

Seattle, WA 98101-2352

17

Telephone: (206) 622-8484

18 Counsel for Defendant

19

20

21

22

23

24

25
26
("PROPO£BD) ORDER GRANTING PRELIMINARY APPRO VAL OF CLASS ACTION SETTLEMENT, APPROVAL OF NOTICE TO CLASS MEMBERS AND SETTING FAIRNESS HEARING: Case No. COO-1213L Page - 2
N :\CUENTS\24763\1 \PI,EADIN(jS\ORDERMOTIONORDERSt;TILFME"JTApPROVALIJOC

ROBERTA RILEY, WSBA 1116841 PLANNED PARt:NII100D OF WESTERN WASIlINGTON 2001 EAST MADISON SF.ATTI,E, WASHINGTON 'IlH22_2959
TELEPHONE: (206) 128_4805 .,'A(;SIMILE: (2{1oj H8_/5lZ

Case 2:00-cv-01213-RSL Document 102 Filed 12/03/2002 Page 3 of 3

Dated this __day of _____, 2002.

2

3

Robert S. Lasnik

4

United States District Judge

5

Presented by:

6 PLANNED PARENTHOOD OF

WESTERN WASHINGTON

7
8

BYdL./ErZt~i~~.({~~,-----_

9

Roberta Riley, WSBA # 841

2001 East Madison

10

Seattle, Washington . 8122-2959

Telephone: (206) 328-6805

II

Lead Counsel for Plaintiffs

12

MILLER NASH LLP

13

14 15

:;::r B~""'1-1 1) \c..j~) James Dickens 4400 Two Union Square

I

\

.

1I L

~

.........~Y\

16

601 Union Street

Seattle, WA 98101-2352

17

Telephone: (206) 622-8484

18 Counsel for Defendant

19

20

21

22

23

24

25

26
(PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, APPROVAL OF NOTICE TO CLASS MEMBERS AND SETTING FAIRNESS HEARING: Case No. COO-I2!3L: Page - 2
r-; :\CUEN'! 5\24763\1 \Pl.FAn!NCis\ORDERMoTlONORj)~RSETTI ,FMFNTArrROV AL.DOC

ROBERTA RILEY, It'SHA /I/(i1l41 PLANNED PARF.~TIIOOD OF WES'HRN WASIIlNGTOJ'"
20UI fi:AST MADISON SHATTLE. WASIIINGTON 98122-2959 I t;LEPIiONE: (H6) 323_61105 FACSIMILE: (20') HS-7S22

 
 Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 1 of 9

1

2

3

4

5 111111111111111111111111111111111111111111111111111111111111

6 11111111111111111111111111111111111111111111111111

7

CV 00--01213 #000001 OJ

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 JENNIFER ERICKSON, on behalf of herself and all others similarly situated,
11 Plaintiff,
12
v. 13
THE BARTELL DRUG COMPANY, 14
Defendant. 15

Civil No. COO-1213L
DECLARATION OF JAMES R. DICKENS RE NOTICE OF PROPOSED SETTLEMENT
Hearing date: Tues., March 4, 2003 9:00 a.m.

16

I, James R. Dickens, declare

17

1. I am counsel for defendant The Bartell Drug Company. I am making this

18 declaration pursuant to Section II, paragraph D, of the Settlement Agreement and Release

19 regarding certification of counsel as to the dissemination of the notice of proposed settlement to

20 the class members. The information set forth herein was provided to me by Bartell Drug, as of

21 February 17, 2003.

22

2. In accordance with the Settlement Agreement and Release, Bartell Drug

23 determined that there were 826 present and former employees within the class as certified.

24 Packets of information were prepared for each class member consisting of the Notice of Class-

::::~::I:~t:Ft:~::eR:~C::S ~:T;;:::ent 'J 25 Wide Settlement, and a copy of the Court's Order Granting Preliminary Approval of the

26

:

hearing on March 4, 2003 at 9:00 a',m\u·

PROPOSED SETTLEMENT - 1 (COO-l2l3L)
SEAOOCS:148114. I

If',\ INAI

MILLER NASH LLP

\

ATTORNEYS AND COUNSELORS AT LAW TELEPHOKE (206) 622_8484

60. UNION STRE44E0T0, TSWEAOTTULNEIO. WN ASSQHUINAGRTEQ:-J 98101-2152

r-------------------------------~.~

-

Case 2:00-cv-01213-RSL Document 103

Filed 03/03/2003 Page 2 of 9

1 Attached hereto are copIes of those documents mailed to the 826 class members on

2 December 13,2002.

3

3. After the 826 packets were sent to the class members on December 13,

4 2002, 42 were returned as undeliverable because of incorrect addresses. Bartell Drug did a

5 further check and resent 19 of the 42 to a new address, but 6 of the 19 also were retumed as

6 undeliverable. Therefore, of the packets sent to the 826 class members, 797 were presumed

7 delivered and only 29 were undeliverable.

8

4. As counsel for Bartell, we have received no objections from any of the

9 826 class members to the proposed settlement agreement or any other related aspects.

10

I declare under penalty of petjury and the laws of the United States that the above

11 is true and correct.

12

Signed at Seattle, Washington, this

day of March, 2003.

13

14

~MVAQ.W&MA

15

Varnes R. DIckens

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF JAMES R. DICKENS RE NOTICE OF PROPOSED SEITLEMENT . 2
(COO·1213L) SEADOCS;148114.1

MILLER NASH LLP
ATTORNEYS AND COUNSELORS AT LAW TELEPHONE (206) 622_B4U 4400 TWO UNION SQUARE
601 UNION STREET. SEATTLE. WASHINGTON 98101_2352

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 3 of 9

1

I hereby certify that I served the foregoing DECLARATION OF JAMES R.

2 DICKENS RE NOTICE OF PROPOSED SETTLEMENT on:

3 Roberta N. Riley

Donna Lee

Planned Parenthood of Western Washington Planned Parenthood Federation of America

4 2001 East Madison

810 Seventh Avenue, 12th Floor

Seattle, WA 98122-2959 5

New York, NY 10019

FAX # (206) 328-7522 6

FAX # (212) 247-6811

7 by the following indicated method or methods:

8

by faxing full, true, and correct copies thereof to the attorneys at the fax numbers

shown above, which are the last-known fax numbers for the attorneys' offices, and

9

by mailing full, true, and correct copies thereof in a sealed, first-class postage-

prepaid envelope, addressed to the attorneys as shown above, the last-known office

10

addresses of the attorneys, and deposited with the United States Postal Service at

Seattle, Washington, on the date set forth below. 11

12

D

by mailing full, true, and correct copies thereof in sealed, first-class postageprepaid envelopes, addressed to the attorneys as shown above, the last-known

office addresses of the attorneys, and deposited with the United States Postal

13

Service at Seattle, Washington, on the date set forth below.

14

D

by sending full, true and correct copies thereof via overnight courier in sealed, prepaid envelopes, addressed to the attorneys as shown above, the last-known

15

office addresses of the attorneys, on the date set forth below.

16

D

by causing full, true and correct copies thereof to be hand-delivered to the

attorneys at the attorneys' last-known office addresses listed above on the date set

17

forth below.

18

The undersigned hereby declares, under the penalty of peJjury, that the foregoing 19

statements are true and correct to the best ofmy knowledge.

20

£ Executed at Seattle, Washington, this

day of March, 2003.

21

22

23

es R. Dickens

24

OfAttorneys for Defendant

25

26
Certificate of Service - 1

MILLER NASH LLP
ATTORKEYS AT LAW TELEPHONE (206) 622-8484 4400 TWO UNlON SQUARE 601 UNION STREET, SEATTLE. WASlIINGTON 98101-2352

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 4 of 9

1

Hon. Robert S. Lasnik

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

)

10 JENNIFER ERICKSON, individually, and on )

behalfof all others similarly situated,

)

11

)

Plaintiff, )

12

)

13

v.

) )

14 THE BARTELL DRUG corvIPANY,

)

)

15

Defendant. )

-------------------=~~~--

No. COO-1213L
NOTICE OF CLASS-WIDE SETTLEMENT

16

17 To: 18

All females currently or formerly employed by The Bartell Drug Company ("Bartell',) who participated in Bartell's Prescription Benefit Plan for non-union employees between December 29, 1997 and June 12, 2001, While using prescription contraceptives.

19

This Notice is given pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and order

of the U.S. District Court for the Western District of Washington. The purpose of this Notice is to

20 infonn you of the terms of a proposed settlement in this case.

21 This case alleged that Bartell discriminated against its non-union female employees on the
22 basis of sex by excluding prescription contraception coverage from its non-union health benefits plans in violation ofTitle VII of the Civil Rights Act of 1964. On June 12,2001, the U.S. District
23 Court for the Western District of Washington held that Bartell must cover each of the available options of prescription contraception to the same extent, and on the same tenns, that it covers other
24 drugs, devices, and preventive care for non-union employees. Bartell appealed that ruling. 25 Subsequently, the parties reached a proposed settlement of the case. The proposed settlement
requires Bartell to provide prescription contraceptive coverage to its non-union employees and 26 compensation to the plaintiff class.

27

NOTICE OF CLASS·WIDE SETTLEMENT - 1

SEAOOCS: [37249.3

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 5 of 9

1

The class of Bartell employees on behalf of which this lawsuit was brought, as certified by

the Court, is defined as:
2

3

All female employees of Bartell who at any time after December 29, 1997, were enrolled in Bartell's Prescription Benefit Plan for non-union employees while using

4

prescription contraceptives.

5 For purposes of the settlement, a "class member" who may be eligible to receive compensation from Bartell is any current or fo=er female employee of Bartell who at any time between December 29,
6 1997 and June 12, 2001, was enrolled in Bartell's Prescription Benefit Plan for non-union employees while using prescription contraceptives.
7

8

Under the proposed settlement, Bartell does not admit liability for the discrimination alleged

in this lawsuit. To settle this case, Bartell does, however, agree to the following:

9 1. Bartell will cover all FDA-approved methods of prescription contraception to the

10

same extent, and on the same te=s, that it covers other drugs, devices, and

preventive care in its non-union health plan. FDA-approved methods of

11

prescription contraception include oral contraception; emergency contraception;

12

the intrauterine device ("IUD"); Norplant; injectables, such as Depo-Provera and Lune!le; barrier methoW;, such as the diaphragm; the contraceptive skin patch;

13

and the contraceptive ring;

14

2.

Bartell will cover contraception-related services, such as the initial visit to the

prescribing physician and any follow-up visits or outpatient services, to the same

15

extent, and on the same terms, as other outpatient services in its non-union health

16

plan;

17

3. For class members currently employed at Bartell, it will either: (a) provide

coverage for all FDA-approved methods of prescription contraception, and

18

contraception-related services, with no co-payments, until December 31,2006,

or until the employee is no longer enrolled in Bartell's non-union health plans as

19

an employee, or through COBRA continuation of benefits, whichever occurs

20

first; or (b) pay the class member up to $800 for out-of-pocket costs incurred at

any time between December 29, 1997 and June 12, 2001, for prescription

21

contraception that is typically purchased no more than once a year, such as an

IUD or Norplant, and/or for services related to such contraception, upon

22

submission of proof of expenditure;

23

4. For class members no longer employed at Bartell, it will pay either: (a) $100 in

24

full compensation for out-of-pocket costs incurred between December 29, 1997

and June 12, 2001, for prescription contraception and contraception-related

25

services, without proof of expenditure from the class member; or (b) up to $800

for out-of-pocket costs incurred at any time between December 29, 1997 and

26

June 12,2001, for prescription contraception that is typically purchased no more

27

NOTICE OF CLASS-WIDE SETfLEMENT - 2

SEADOCS:137249.3

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 6 of 9

1

than once a year, such as an IUD or Norplant, and/or for services related to such

contraception, upon submission of proof of expenditure;

2

5. For any class member who was denied coverage or reimbursement under the non-

3

union health plans for prescription contraception or contraception related services

4

obtained between June 12, 2001 and November 1,2001, Bartell will pay that

class member for the expenses incurred, upon submission of proof of

5

expenditure; and

6

6. Bartell will pay Jennifer Erickson, the Class Representative, $7,246 for her

7

efforts to secure contraceptive coverage for the class.

8

7.

Bartell will pay counsel for the class $180,000 for attorney fees and costs

incurred in representing Ms. Erickson and the class.

9

If you elect to receive any of the benefits described above, you will release Bartell and its

10 officers, shareholders and directors from any other actual or potential claims or damages because

II prescription contraceptives were not covered by Bartell's non-union health care plans prior to

June 12,2001.

12 The Court has given preliminary approval of the settlemem, and ir will determine whether
13 to finally approve the proposed sertlement as fair, reasonable and adequate at a HEARIJ\[G TO BE

HELD on MARCH 4,2003, at 9 a.m., in Courtroom 911, U.S. District Court for the Western District 14 of Washington, 215 U.S. Courthouse, 1010 Fifth Ave., Seattle, WA 98104.

15 You need not appear at this hearing. However, any member of the class who objects to the
16 proposed settlement may appear at the hearing and show cause why the proposed settlement should not be approved as fait, reasonable and adequate pursuant to Rule 23(e) of the Federal Rules of Civil
17 Procedure, provided that, unless otherwise permitted by the Court at the hearing, no person shall be heard in opposition to the settlement and no paper or brief submitted by any such person shall be
18 received or considered by the Court unless on or before FEBRUARY 11, 2003, you file a notice of 19 intention to appear and a statement of the position to be asserted and the grounds therefor, together
with copies of any supporting papers or briefs, with the Clerk, U.S. District Court for the Western 20 District of Washington, 215 U.S. Courthouse, 1010 Fifth Ave., Seattle, WA 98104.

21

Copies of all documents filed with the Clerk must be sent by first class mail, postage prepaid,

22 to the attorney for class members, Roberta Riley of Planned Parenthood of Western Washington,

2001 E. Madison, Seattle, WA 98122, and to the attorney for Bartell, James R. Dickens, Miller

23 Nash LLP, 4400 Two Union Square, Seattle, Washington 98101.

24 25 26 27

NOTICE OF CLASS-WIDE SETILEMENT - 3

sEADoes: 137249.3

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 7 of 9

1

Any questions you have concerning the matters contained in this Notice may be directed to

the attorney for class members, Roberta Riley of Planned Parenthood of Western Washington at

2 (800) 727-2996. DO NOT TELEPHONE THE CLERK. OF COURT REGARDING THIS NOTICE.

3

Dated: _ _ _ _ _ _ _ __

BY ORDER OF THE

4

U.S. DISTRICT COURT FOR THE

WESTERN DISTRICT OF

5

WASHINGTON

6

7

See attached copy of Court's ORDER Granting Preliminary Approval of

8

Class Action Settlement, Approval ofNotice to Class Members and Setting

9

Fairness Hearing.

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NOTICE OF CLASS-WIDE SETTLEMENT - 4

SEADOCS: 137249.3

Case 2:00-cv-01213-RSL Document 103 Filed 03/03/2003 Page 8 of 9

The Honorable Rob.;rt S. Lasnik

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This Court considered the joint motion for preliminary approval of th~ class action
settlement, approval of notice to class members and setting of fairness hearing, and the memorandum
and declaration of Roberta N. Riley in support thereof. NOW THEREFORE, the Court hereby GRAl\TS the joint motion for preliminary approval·

20 of class action settlement. The proposed notice to class members is also approved. Defendant

21 , Bartell is ORDERED to notify class members of the settlement pursuant to the tenns of the .
22 settierne"t on or before December 3 I, 2002_ Any class member objecting w the proposed settlement '

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Dated this 3 ~ day of ~ 2002.

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Robert S. Lasnik

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United States District Judge

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 141 F.Supp.2d 1266 (2001)
Jennifer ERICKSON, Plaintiff, v.
THE BARTELL DRUG COMPANY, Defendant.
No. C00-1213L.
United States District Court, W.D. Washington, at Seattle.
June 12, 2001.
12678 *1267 *1268 Lynn Lincoln Sarko, Keller Rohrback, Seattle, WA, Eve C Gartner, Donna Lee, Planned Parenthood Federation of America, New York, NY, Roberta N Riley, Planned Parenthood of Western WA, Seattle, for Jennifer Erickson, on behalf of herself and all others similarly situated, plaintiffs.
James Ralph Dickens, Miller Nash Wiener Hager & Carlsen, Seattle, WA, for Bartell Drug Company, defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
LASNIK, District Judge.
The parties' cross-motions for summary judgment in this case raise an issue of first impression in the federal courts' whether the selective exclusion of prescription contraceptives from defendant's generally comprehensive prescription plan constitutes discrimination on the basis of sex.[1] In particular, plaintiffs assert that Bartell's decision not to cover prescription contraceptives such as birth control pills, Norplant, Depo-Provera, intra-uterine devices, and diaphragms under its Prescription Benefit Plan for non-union employees violates Title VII, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).[2]
A. APPLICATION OF TITLE VII
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1). [3] Unfortunately, the legislative history of the Civil Rights Act of 1964, of which Title VII is a part, is not particularly helpful in determining what Congress had in mind when it added protection from discrimination based on sex. The 1964 law, coming in the midst of the Civil Rights movement and the turmoil in the South, was 1269 predominately about racial fairness for blacks, not gender equity for *1269 women.[4] In fact, the late amendment that added "sex" to one portion of the proposed civil rights law came from a powerful Congressman from Virginia who may have been attempting to derail the proposed law by adding a classification that would be seen as controversial. The two hours of humorous debate on the amendment has since been described as "Ladies Day in the House." Yet whatever the motivation of the Congressman who moved the amendment (and who later voted against the entire Civil Rights Law), once sex was added to Title VII, all future attempts to remove it or limit it were defeated.[5]
The legislative history of Title VII does not forecast how the law was to be interpreted by future courts faced with specific examples of allegedly discriminatory conduct. The truth of the matter is, Congress' intent regarding the evolution of a law is rarely apparent from fragments of legislative history. Long before this particular dispute arose, the protections of Title VII had no doubt been applied in ways that were never anticipated by the Representatives and Senators who voted for it or the President who signed it into law Nevertheless, Congress has generally chosen to interfere with the judiciary's interpretation of Title VII only where the courts attempted to

restrict its application, as discussed below. What is clear from the law itself, its legislative history, and Congress' subsequent actions, is that the goal of Title VII was to end years of discrimination in employment and to place all men and women, regardless of race, color, religion, or national origin, on equal footing in how they were treated in the workforce.
In 1978, Congress had the opportunity to expound on its view of sex discrimination by amending Title VII to make clear that discrimination because of "pregnancy, childbirth, or related medical conditions" is discrimination on the basis of sex. 42 U.S.C. § 2000e(k). The amendment, known as the Pregnancy Discrimination Act ("PDA"), was not meant to alter the contours of Title VII: rather, Congress intended to correct what it felt was an erroneous interpretation of Title VII by the United States Supreme Court in General Elec. Co. v. Gilbert, 429 U.S. 125, 97 1270 S.Ct. 401, 50 L.Ed.2d 343 (1976).[6] In Gilbert, *1270 the Supreme Court held that an otherwise comprehensive short-term disability policy that excluded pregnancy-related disabilities from coverage did not discriminate on the basis of sex. The Gilbert majority based its decision on two findings: (a) pregnancy discrimination does not adversely impact all women and therefore is not the same thing as gender discrimination; and (b) disability insurance which covers the same illnesses and conditions for both men and women is equal coverage. To the Gilbert majority, the fact that pregnancy-related disabilities were an uncovered risk unique to women did not destroy the facial parity of the coverage. The dissenting justices, Justice Brennan, Justice Marshall, and Justice Stevens, took issue with these findings, arguing that: (a) women, as the only sex at risk for pregnancy, were being subjected to unlawful discrimination; and (b) in determining whether an employment policy treats the sexes equally, the court must look at the comprehensiveness of the coverage provided to each sex. It was the dissenters' interpretation of Title VII which ultimately prevailed in Congress H.R.Rep. No. 95-948, at 2 (1978) ("Justice Brennan .. pointed out that since the plan included comprehensive coverage for males and failed to provide comprehensive coverage for females, the majority erred in finding that the exclusion of pregnancy disability coverage was a nondiscriminatory policy. Furthermore, Justice Stevens, in his dissenting opinion, argued that `it is the capacity to become pregnant which primarily differentiates the female from the male.' It is the committee's view that the dissenting Justices correctly interpreted the Act.").
The language of the PDA was chosen in response to the factual situation presented in Gilbert, namely a case of overt discrimination toward pregnant employees. Not surprisingly, the amendment makes no reference whatsoever to prescription contraceptives. Of critical importance to this case, however, is the fact that, in enacting the PDA, Congress embraced the dissent's broader interpretation of Title VII which not only recognized that there are sex-based differences between men and women employees, but also required employers to provide womenonly benefits or otherwise incur additional expenses on behalf of women in order to treat the sexes the same. See, e.g., Arizona Governing Comm. for Tax Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1084 n. 14, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983) (noting that the PDA buttresses the finding "that the greater cost of providing retirement benefits for women as a class cannot justify differential treatment based on sex").
Although this litigation involves an exclusion for prescription contraceptives rather than an exclusion for pregnancy-related disability costs, the legal principles established by Gilbert and its legislative reversal govern the outcome of this case. An employer has chosen to offer an employment benefit which excludes from its scope of coverage services which are available only to women. All of the services covered by the policy are available to both men and women, so, as was the case in Gilbert, "[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." Gilbert, 429 U.S. at 1271 135, 97 S.Ct. 401 (quoting Geduldig v. Aiello, 417 U.S. 484, 496-97, *1271 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974) ). Nevertheless, the intent of Congress in enacting the PDA, even if not the exact language used in the amendment, shows that mere facial parity of coverage does not excuse or justify an exclusion which carves out benefits that are uniquely designed for women.
The fact that equality under Title VII is measured by evaluating the relative comprehensiveness of coverage offered to the sexes has been accepted and amplified by the Supreme Court. In Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), the Supreme Court found that a health insurance plan which covered pregnancy-related costs for female employees, but not for the spouses of male employees, violated Title VII and the PDA. The court reasoned that because an employer cannot "provide complete health insurance coverage for the dependents of its female employees, and no coverage at all for the

dependents of its male employees," the same result applies "even if the magnitude of the discrimination were smaller." Newport News, 462 U.S. at 682-83, 103 S.Ct. 2622. Thus, a policy which provided complete coverage to the male spouses of female employees but only partial coverage for the female spouses of male employees discriminated against the male employees. Newport News, 462 U.S. at 683-85, 103 S.Ct. 2622.
The other tenet reaffirmed by the PDA (i.e., that discrimination based on any sex-based characteristic is sex discrimination) has also been considered by the courts. The Supreme Court has found that classifying employees on the basis of their childbearing capacity, regardless of whether they are, in fact, pregnant, is sex-based discrimination. International Union, United Automobile, Aerospace and Agricultural Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 197-98, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). The court's analysis turned primarily on Title VII's prohibition on sex-based classifications, using the PDA merely to bolster a conclusion that had already been reached. To the extent that a woman's ability to get pregnant may not fall within the literal language of the PDA, the court was not overly concerned. Rather, the court focused on the fact that disparate treatment based on unique, sex-based characteristics, such as the capacity to bear children, is sex discrimination prohibited by Title VII.
Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that 1272 Bartell's prescription plan was not the result of intentional discrimination,[7]*1272 the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII.
Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. See Newport News, 462 U.S. at 676, 103 S.Ct. 2622 (in evaluating fringe benefits under Title VII, the court must determine whether the benefit offered to one sex is less comprehensive than the protection afforded the other sex). In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory.[8]
B. SPECIFIC ARGUMENTS RAISED BY DEFENDANT-EMPLOYER
Bartell argues that opting not to provide coverage for prescription contraceptive devices is not a violation of Title VII because: (1) treating contraceptives differently from other prescription drugs is reasonable in that contraceptives are voluntary, preventative, do not treat or prevent an illness or disease, and are not truly a "healthcare" issue; (2) control of one's fertility is not "pregnancy, childbirth, or related medical conditions" as those terms are used in the PDA; (3) employers must be permitted to control the costs of employment benefits by limiting the scope of coverage; (4) the exclusion of all "family planning" drugs and devices is facially neutral; (5) in the thirty-seven years Title VII has been on the books, no court has found that excluding contraceptives constitutes sex discrimination; and (6) this issue should be determined by the legislature, rather than the courts. Each of these arguments is considered in turn.

(1) Contraceptives as a health care need.
An underlying theme in Bartell's argument is that a woman's ability to control her fertility differs from the type of illness and disease normally treated with prescription drugs in such significant respects that it is permissible to treat prescription contraceptives differently than all other prescription medicines.[9] The evidence submitted by 1273 plaintiffs shows, however, *1273 that the availability of affordable and effective contraceptives is of great importance to the health of women and children because it can help to prevent a litany of physical, emotional, economic, and social consequences. See Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 Wash. L.Rev. 363, 364-68 (1998).
Unintended pregnancies, the condition which prescription contraceptives are designed to prevent, are shockingly common in the United States and carry enormous costs and health consequences for the mother, the child, and society as a whole. Over half of all pregnancies in this country are unintended. Committee on Unintended Pregnancy, Institute of Medicine, The Best Intentions Unintended Pregnancy and the Well-Being of Children and Families 1 (Sarah S. Brown & Leon Eisenberg eds., 1995).[10] A woman with an unintended pregnancy is less likely to seek prenatal care, more likely to engage in unhealthy activities, more likely to have an abortion, and more likely to deliver a low birth-weight, ill, or unwanted baby Law, 73 Wash L.Rev. at 365-67. Unintended pregnancies impose significant financial burdens on the parents in the best of circumstances. If the pregnancy results in a distressed newborn, the costs increase by tens of thousands of dollars. Office of Technology Assessment, Healthy Children: Investing in the Future 85 (1988). In addition, the adverse economic and social consequences of unintended pregnancies fall most harshly on women and interfere with their choice to participate fully and equally in the "marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). See also Planned Parenthood v. Casey, 505 U.S. 833, 856, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.").
The availability of a reliable, affordable way to prevent unintended pregnancies would go a long way toward ameliorating the ills described above. Although there are many factors which help explain the unusually high rate of unintended pregnancies in the United States, an important cause is the failure to use effective forms of birth control. Alan Guttmacher Institute, Contraception Counts: State-by-State Information 1 (May 1997). Insurance policies and employee benefit plans which exclude coverage for effective forms of contraception contribute to the failure of at-risk women to seek a physician's assistance in avoiding unwanted pregnancies. Law, 73 Wash. L.Rev. at 364, 368-72.
The fact that prescription contraceptives are preventative appears to be an irrelevant distinction in this case: Bartell covers a number of preventative drugs under its plan.[11] The fact that pregnancy is a "natural" state and is not considered a disease or illness is also a distinction without a difference. Being pregnant, though natural, is not a state that is desired by all women or at all points in a woman's life. Prescription contraceptives, like all other preventative drugs, help the recipient avoid unwanted physical changes. As discussed above, identifying and 1274 obtaining an effective method of contraception is a primary healthcare issue throughout much of *1274 a woman's life and is, in many instances, of more immediate importance to her daily healthcare situation than most other medical needs. Decl. of Easterling at ¶ 7 (citing Vicki L. Seltzer & Warren H. Pearse, Women's Primary Health Care: Office Practice and Procedures, McGraw-Hill, Inc. 18, 141 (1995)). Although there are some distinctions that can be drawn between prescription contraceptives and the other prescription drugs covered by Bartell's plan, none of them is substantive or otherwise justifies the exclusion of contraceptives from a generally comprehensive healthcare plan.
(2) Pregnancy Discrimination Act
Defendant argues that the exclusion of prescription contraceptives from defendant's prescription benefit plan does not run afoul of the PDA and is not, therefore, unlawful. Under the express terms of the PDA, discrimination because of "pregnancy, childbirth, or related medical conditions" is a form of prohibited sex discrimination. When

Congress enacted the PDA, it clearly had in mind the obvious and then-commonplace practice of discriminating against women in all aspects of employment, from hiring to the provision of fringe benefits, based on an assumption that women would get pregnant and leave the workforce. This perception relegated women to the role of marginal, temporary workers who had no need to participate in seniority programs, no hope of promotion, and no claim to the full panoply of employment benefits.
Having reviewed the legislative history of the PDA, it is clear that in 1978 Congress had no specific intent regarding coverage for prescription contraceptives. The relevant issue, however, is whether the decision to exclude drugs made for women from a generally comprehensive prescription plan is sex discrimination under Title VII, with or without the clarification provided by the PDA. The Court finds that, regardless of whether the prevention of pregnancy falls within the phrase "pregnancy, childbirth, or related medical conditions," Congress' decisive overruling of General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), evidences an interpretation of Title VII which necessarily precludes the choices Bartell has made in this case.
(3) Business Decision to Control Costs
Bartell also suggests that it should be permitted to limit the scope of its employee benefit programs in order to control costs. Cost is not, however, a defense to allegations of discrimination under Title VII. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 716-17, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978); 29 C.F.R. § 1604.9(e). While it is undoubtedly true that employers may cut benefits, raise deductibles, or otherwise alter coverage options to comply with budgetary constraints, the method by which the employer seeks to curb costs must not be discriminatory. Bartell offers its employees an admittedly generous package of healthcare benefits, including both third-party healthcare plans and an in-house prescription program. It cannot, however, penalize female employees in an effort to keep its benefit costs low. The cost savings Bartell realizes by excluding prescription contraceptives from its healthcare plans are being directly borne by only one sex in violation of Title VII. Although Bartell is permitted, under the law, to use non-discriminatory cuts in benefits to control costs, it cannot balance its benefit books at the expense of its female employees.
(4) Neutrality of Exclusions
1275 Prescription contraceptives are not the only drugs or devices excluded from coverage *1275 under Bartell's benefit plan. Bartell argues that it has chosen to exclude from coverage all drugs for "family planning," and that this exclusion is neutral and non-discriminatory. There is no "family planning" exclusion in the benefit plan, however, and the contours of such a theoretical exclusion are not clear. On the list of excluded drugs and devices, contraceptive devices and infertility drugs are the two categories which might be considered "family planning" measures. Contrary to defendant's explanation, there appear to be some drugs which fall under the "family planning" rubric which are covered by the plan. Prenatal vitamins, for example, are frequently prescribed in anticipation of a woman becoming pregnant and are expressly covered under the plan. And although both parties agree that Bartell's plan excludes coverage for Viagra, an impotency drug, it is not clear that it falls into any of the excluded categories.[12]
Even if the Court were able to identify a consistent theory to explain the various exclusions and inclusions in Bartell's plan,[13] the exclusion of prescription contraceptives, alone or in combination with the exclusion of infertility drugs, is in no way neutral or equal. Although the issue is not before the Court, there is at least an argument that the exclusion of infertility drugs applies equally to male and female employees, making the coverage offered to all employees less comprehensive in roughly the same amount and manner.[14] The additional exclusion of prescription contraceptives, however, reduces the comprehensiveness of the coverage offered to female employees while leaving the coverage offered to male employees unchanged. As discussed above, such inequities are discriminatory and violate Title VII.

(5) New Interpretation of an Old Law
Employers in general, and Bartell in particular, might justifiably wonder why, when Title VII has been on the books for thirty-seven years, this Court is only now holding that it includes a right to prescription contraceptives in certain circumstances. The answer, of course, is that until this case, no court had been asked to evaluate the common practice of excluding contraceptives from a generally comprehensive health plan under Title VII. While there are a number of possible explanations for the lack of litigation over this issue,[15] none of them changes the fact that, having now been properly raised as a matter of statutory construction, this Court is constitutionally required to rule on the issue before it.
Although the Court's decision is a matter of first impression for the judiciary, it is not the first tribunal to consider 1276 the lawfulness of a contraception exclusion. On December 14, 2000, the EEOC made a *1276 finding of
reasonable cause on the same issue which is entitled to some deference. See, e.g., EEOC v. Commercial Office Prod. Co., 486 U.S. 107, 115, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) ("[I]t is axiomatic that the EEOC's interpretation of Title VII, for which it has primary enforcement responsibility ... need only be reasonable to be entitled to deference."). Although the Commission's analysis focused primarily on the PDA, it considered some of the arguments raised by Bartell in this case (such as the alleged distinctions between contraceptives and other drugs and the appropriateness of limiting coverage in order to contain costs). Most importantly, however, the enforcing agency's overall interpretation of Title VII comports with this Court's construction of the Act and led the Commission to the same conclusion reached by this Court. As the Commission found, the exclusion of prescription contraceptives from a generally comprehensive insurance policy constitutes sex discrimination under Title VII because the employers "have circumscribed the treatment options available to women, but not to men." This unequal treatment is an unlawful employment practice under Title VII of the Civil Rights Act of 1964.
(6) Legislative Issue
Although this litigation involves politically charged issues with far-reaching social consequences, the parties' dispute turns on the interpretation of an existing federal statute. The Court must determine whether, given the facts of this case and the scope of the coverage offered by defendant, the exclusion of prescription contraceptives from Bartell's prescription plan constitutes discrimination because of sex under Title VII. The normal rules of statutory construction, not the give and take of a legislative body, will guide this determination. Contrary to defendant's suggestion, it is the role of the judiciary, not the legislature, to interpret existing laws and determine whether they apply to a particular set of facts. Chevron v. Natural Resources Defense, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("The judiciary is the final authority on issues of statutory construction .."); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). While it is interesting to note that Congress and some state legislatures are considering proposals to require insurance plans to cover prescription contraceptives, that fact does not alter this Court's constitutional role in interpreting Congress' legislative enactments in order to resolve private disputes.[16]
C. CONCLUSION
The Court has carefully considered the pleadings of the parties, the arguments of counsel, and the authorities cited therein to determine whether the exclusion of a class of women-only prescription drugs from a generally comprehensive drug plan is discrimination on the basis of sex. For all of the foregoing reasons, the Court finds 1277 that Bartell's prescription drug plan discriminates against Bartell's *1277 female employees by providing less complete coverage than that offered to male employees. Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate healthcare need uncovered. Pursuant to the analysis in the Gilbert dissents, Newport News, and Johnson Controls, Title VII requires employers to recognize the differences between the sexes and provide equally comprehensive coverage, even if that means providing additional benefits

to cover women-only expenses. See also Manhart, 435 U.S. 702, 98 S.Ct. 1370; Norris, 463 U.S. 1073, 103 S.Ct. 3492.
Plaintiffs' motion for summary judgment on their disparate treatment claim is GRANTED. Bartell is hereby ORDERED to cover each of the available options for prescription contraception to the same extent, and on the same terms, that it covers other drugs, devices, and preventative care for non-union employees. It is further ORDERED that Bartell shall offer coverage for contraception-related services, including the initial visit to the prescribing physician and any follow-up visits or outpatient services, to the same extent, and on the same terms, as it offers coverage for other outpatient services for its non-union employees. Because summary judgment in favor of plaintiffs is appropriate on their first claim for relief, the Court need not consider Bartell's motion for summary judgment regarding the disparate impact claim.
[1] Bartell's benefit plan is self-insured and covers all prescription drugs, including a number of preventative drugs and devices, such as blood-pressure and cholesterol-lowering drugs, hormone replacement therapies, prenatal vitamins, and drugs to prevent allergic reactions, breast cancer, and blood clotting. The plan specifically excludes from coverage a handful of products, including contraceptive devices, drugs prescribed for weight reduction, infertility drugs, smoking cessation drugs, dermatologicals for cosmetic purposes, growth hormones, and experimental drugs.
[2] Plaintiffs' complaint asserts claims of disparate treatment (first claim for relief) and disparate impact (second claim for relief). Complaint at ¶¶ 39 and 41. Defendant seeks summary judgment on both the disparate treatment and disparate impact claims.
This matter is proceeding as a class action on behalf of "[a]ll female employees of Bartell who at any time after December 29, 1997, were enrolled in Bartell's Prescription Benefit Plan for non-union employees while using prescription contraceptives."
[3] It is undisputed that fringe benefits, such as the prescription benefit plan at issue here, are part of the employees' "compensation, terms, conditions, or privileges of employment" Newport News Dock Co. v. EEOC, 462 U.S. 669, 682, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983).
[4] The Civil Rights Act of 1964 was the culmination of decades of debate and political maneuvering over various civil rights proposals. In the end, it took three momentous events to finally propel the bill to the top of the agenda of Congress and the Administration. The first was the August 1963 march on Washington during which Dr. Martin Luther King, Jr., gave his famous "I have a dream" speech. The second was the September 1963 bombing of a black church in Birmingham, Alabama, in which four little girls were killed. The third was the assassination of President Kennedy, whose support for the bill carried even more weight in Congress and with the public after his untimely death. It was in this time that Bob Dylan warned, "Come Senators, Congressmen, please heed the call. Don't stand in the doorway, don't block up the hall" Bob Dylan, The Times They Are A-Changin', on The Times They Are A-Changin' (Sony Music Entertainment/Columbia Records 1964). After months of debate and a seventy-five day filibuster in the Senate, the bill finally passed and was signed into law by President Johnson on July 2, 1964.
[5] For a more complete discussion of the events and legislative maneuvering from which Title VII arose, see, e.g., 88 Cong. Rec. H2577 (daily ed. Feb. 8, 1964) (statement of Rep. Smith); Francis J Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L.Rev. 431 (1965-66); and Jo Freeman, How "Sex" Got Into Title VII: Persistent Opportunism as a Matter of Public Policy, 9 Law and Ineq. 163 (1990-91).
[6] Proponents of the PDA "repeatedly emphasized that the Supreme Court had erroneously interpreted congressional intent and that amending legislation was necessary to reestablish the principles of Title VII law as they had been understood prior to the Gilbert decision." Newport News, 462 U.S. at 679, 103 S.Ct. 2622 (citing S.Rep. No. 95-331, pp. 7-8 (1977); H.R.Rep. No. 95-948, p. 8 (1978), U.S.Code Cong. & Admin.News 1978, p. 4765; 123 Cong. Rec. 10581, 29387, 29647, and 29655 (1977); 124 Cong. Rec. 21436 (1978)).
[7] There is no evidence or indication that Bartell's coverage decisions were intended to hinder women in their ability to participate in the workforce or to deprive them of equal treatment in employment or benefits. The most

reasonable explanation for the current state of affairs is that the exclusion of women-only benefits is merely an unquestioned holdover from a time when employment-related benefits were doled out less equitably than they are today. The lack of evidence of bad faith or malice toward women does not affect the validity of plaintiffs' Title VII claim. Where a benefit plan is discriminatory on its face, no inquiry into subjective intent is necessary. See Norris, 463 U.S. at 1080-86, 103 S.Ct. 3492.
[8] Bartell's argument that its prescription plan is not discriminatory because the female dependants of male employees are subject to the same exclusions as are female employees is unavailing First, discriminating against a protected class cannot be justified through consistency. Second, Bartell ignores the clear import of Congress' repudiation of Gilbert: a policy which uses sex-based characteristics to limit benefits, thereby creating a plan which is less comprehensive for one sex than the other, violates Title VII.
[9] A similar argument was adopted by the majority in Gilbert, 429 U.S. at 136, 97 S.Ct. 401.
[10] "The most recent Washington State public health statistics parallel the national trend: 53.1% of all pregnancies in the state are unintended." Decl. of Thomas R. Easterling, M.D. at ¶ 24 (5/7/01) (citing Washington State Dept. of Health, Office of Maternal and Child Health, Maternal and Child Health Five Year Needs Assessment, July 2000).
[11] See supra n. 1.
[12] Assuming Bartell is correct and its prescription benefit plan does not cover Viagra even when prescribed for the medical condition of impotency, such an exclusion may later be determined to violate male employees' rights under Title VII. This issue is not before the Court.
[13] If the Court considers the third-party healthcare plans offered by Bartell, identifying a consistent explanation for the coverage choices Bartell has made becomes even more difficult. Abortion is, after all, the quintessential "family planning" measure, and yet it is covered in all circumstances, even though it is specifically excluded under the PDA.
[14] The Court need not determine whether the exclusion of infertility drugs discriminates against women and simply notes that at least two courts have found that such an exclusion is not discriminatory. See Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir.1996); Saks v. Franklin Covey Co., 117 F.Supp.2d 318, 328-29 (S.D.N.Y.2000).
[15] See Law, 73 Wash. L.Rev. at 386-91.
[16] The federal and state legislative proposals on which Bartell relies for this argument appear to have a much broader scope and impact than Title VII does. Title VII applies to employers who have fifteen or more employees. If the federal proposal discussed by Bartell is enacted, not only would those employers have to include prescription contraceptives in their self-insured benefit plans, but employers of fewer than fifteen employees, insurance companies, and group health organizations would also have to make such benefits available on the same terms and conditions as they cover other prescription drugs S. 104, 107th Cong. (2001).
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CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:00-cv-01213-RSL

Erickson v. Bartell Drug Company Assigned to: Hon Robert S. Lasnik Demand: $0 Case in other court: 01-35870 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 07/19/2000 Date Terminated: 04/03/2002 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff
Jennifer Erickson on behalf of herself and all others similarly situated

represented by Donna Lee PLANNED PARENTHOOD FEDERATION OF AMERICA 434 W 33RD ST NEW YORK, NY 10001 212-541-7800 Fax: FAX 1-212-247-6811 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eve C Gartner PLANNED PARENTHOOD FEDERATION OF AMERICA 434 W 33RD ST NEW YORK, NY 10001 212-541-7800 Fax: 212-541-7800 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn Lincoln Sarko KELLER ROHRBACK 1201 3RD AVE STE 3200 SEATTLE, WA 98101-3052 206-623-1900 Fax: FAX 623-3384 Email: lsarko@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Bartell Drug Company

2/19/08 2:23 PM
Roberta N Riley PLANNED PARENTHOOD OF WESTERN WA 2001 E MADISON SEATTLE, WA 98122-2959 206-328-6805 Fax: FAX 328-7522 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Ralph Dickens MILLER NASH LLP 601 UNION ST 4400 TWO UNION SQUARE SEATTLE, WA 98101-2352 206-622-8484 Fax: (206) 622-7485 Email: jim.dickens@millernash.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

07/19/2000 07/19/2000 07/25/2000 07/28/2000
08/02/2000 08/03/2000 08/29/2000

1 COMPLAINT (Summons(es) issued) Receipt # 400138 (PM) (Entered: 07/23/2000)
LODGED APPLICATION FOR LEAVE TO APPEAR PRO HAC VICE: by Eve C. Gartner on behalf of pltf (PM) (Entered: 07/23/2000)
3 RETURN OF SERVICE of summons and complaint executed upon defendant Bartell Drug Company on 7/20/00 (CL) (Entered: 07/31/2000)
2 APPLICATION by plaintiff Jennifer Erickson AND ORDER admitting Eve C. Gartner as pro hac vice. Receipt # 400319 (cc: counsel) (PM) (Entered: 07/28/2000)
LODGED ORDER: stipulation and order extending time to answer complaint (VK) (Entered: 08/03/2000)
4 STIPULATION and ORDER by Judge Robert S. Lasnik : extending time to 9/8/00 for dft to answer (cc: counsel, Judge) (RS) (Entered: 08/03/2000)
5 SUBSTITUTION OF COUNSEL on behalf of Bartell Drug Company James Ralph Dickens term Peter M. Anderson (MD) (Entered: 09/05/2000)

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09/06/2000 09/15/2000 09/15/2000 09/15/2000 09/15/2000 09/15/2000 09/15/2000 09/25/2000 10/10/2000
10/16/2000
10/16/2000
10/16/2000
10/17/2000 10/19/2000 10/19/2000 10/19/2000 10/26/2000

6 AMENDED COMPLAINT [1-1] by plaintiff (RS) (Entered: 09/12/2000)
7 ANSWER to amended complaint [6-1] by defendant Bartell Drug Company (MD) (Entered: 09/19/2000)
8 MOTION by plaintiff to certify class action, Oral Argument Requested NOTED FOR 10/6/00 (MD) (Entered: 09/19/2000)
9 MEMORANDUM by plaintiff in support of motion to certify class action, Oral Argument Requested [8-1] (MD) (Entered: 09/19/2000)
10 DECLARATION of Roberta N. Riley re motion to certify class action, Oral Argument Requested [8-1] (MD) (Entered: 09/19/2000)
LODGED ORDER: re: motion to certify class action, Oral Argument Requested [8-1] (MD) (Entered: 09/19/2000)
11 AFFIDAVIT OF SERVICE by plaintiff of motion to certify class action, Oral Argument Requested [8-1] (MD) (Entered: 09/19/2000)
12 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 11/20/00 (cc: counsel, Judge) (VK) (Entered: 09/25/2000)
13 Letter/NOTICE by plaintiff that the following is RENOTED FOR 10/20/00 pltf's motion to certify class action, Oral Argument Requested (VK) (Entered: 10/10/2000)
14 MOTION by defendant to extend response date to reply to pltf's motion for class certification NOTED FOR 10/20/00 (noted per law clerk) (RS) (Entered: 10/20/2000)
15 DECLARATION of James Dickens by defendant re motion to extend response date to reply to pltf's motion for class certification [14-1] (RS) (Entered: 10/20/2000)
16 DECLARATION of Cindy Sankey by defendant re motion to extend response date to reply to pltf's motion for class certification [14-1] (RS) (Entered: 10/20/2000)
LODGED ORDER: re: continuing ntc date for motion to certify class action, Oral Argument Requested [8-1] (RS) (Entered: 10/19/2000)
17 REPLY by plaintiff Jennifer Erickson re: for class certification, oral argument requested [8-1] (MD) (Entered: 10/24/2000)
18 DECLARATION (supplemental) of Roberta Riley re: reply [17-1] (MD) (Entered: 10/24/2000)
19 AFFIDAVIT OF SERVICE by plaintiff of reply [17-1] (MD) (Entered: 10/24/2000)
20 ORDER by Judge Robert S. Lasnik GRANTING pltfs' motion to extend response date to reply to pltf's motion for class certification [14-1] (cc:

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11/01/2000 11/02/2000 11/02/2000 11/06/2000
11/09/2000 11/09/2000
11/09/2000 11/14/2000 11/14/2000 11/20/2000 11/27/2000 11/27/2000 11/27/2000 11/27/2000 11/30/2000
11/30/2000 11/30/2000

counsel, Judge) (VK) (Entered: 10/27/2000)
LODGED ORDER: stip and order on confidential info (RS) (Entered: 11/02/2000)
LODGED ORDER: stipulation and order on confidential information and documents (MD) (Entered: 11/03/2000)
21 STIPULATION and ORDER by Judge Robert S. Lasnik : on confidential information and documents (cc: counsel, Judge) (RS) (Entered: 11/03/2000)
22 MINUTE ORDER by Judge Robert S. Lasnik SETTING oral argument on pltf's motion to certify class action [8-1] at 1:30 12/13/00 (cc: counsel, Judge, GG) (VK) (Entered: 11/07/2000)
23 MOTION by plaintiff for order to maintain confidential information under seal NOTED FOR 12/1/00 (MD) (Entered: 11/14/2000)
25 DECLARATION (second supplemental) of Roberta Riley re motion for order to maintain confidential information under seal [23-1] (MD) (Entered: 11/14/2000)
26 AFFIDAVIT OF SERVICE by plaintiff of motion for order to maintain confidential information under seal [23-1] (MD) (Entered: 11/14/2000)
24 MEMORANDUM by plaintiff in support of motion for order to maintain confidential information under seal [23-1] (MD) (Entered: 11/14/2000)
PRAECIPE by Jennifer Erickson to replace documents to memorandum [241] in the Court file. (CL) (Entered: 11/16/2000)
27 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 2-5 (RS) (Entered: 11/24/2000)
28 RESPONSE by defendant to motion for order to maintain confidential information under seal [23-1] (KERR) (Entered: 11/28/2000)
29 DECLARATION of James R Dickens by defendant re: motion response [281] (KERR) (Entered: 11/28/2000)
30 EXHIBIT 1 to declaration of James R Dickens [29-1] (FILED UNDER SEAL) (KERR) (Entered: 11/28/2000)
LODGED ORDER: re: motion response [28-1] re: denying pltf's mtn to seal prior pleading (KERR) (Entered: 11/28/2000)
31 REPLY MEMORANDUM by plaintiff re: of law in further support of motion to maintain confidential information under seal [23-1] (MD) (Entered: 12/05/2000)
32 MOTION by defendant Bartell Drug Company for sanctions by deft re: conduct by pltf's cnsl NOTED FOR 12/15/00 (MD) (Entered: 12/05/2000)
33 DECLARATION of James R. Dickens re motion for sanctions by deft re:

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11/30/2000 11/30/2000 12/04/2000 12/04/2000 12/04/2000 12/08/2000 12/08/2000 12/08/2000 12/11/2000 12/13/2000
12/14/2000
12/14/2000 12/14/2000
12/15/2000
02/12/2001

conduct by pltf's cnsl [32-1] (MD) (Entered: 12/05/2000)
34 EXHIBITS re: declaration [33-1] (under seal) (MD) (Entered: 12/05/2000)
LODGED ORDER: re: motion for sanctions by deft re: conduct by pltf's cnsl [32-1] (MD) (Entered: 12/05/2000)
35 RESPONSE by defendant to pltf's motion to certify class action, Oral Argument Requested [8-1] (MD) (Entered: 12/08/2000)
36 DECLARATION of James R. Dickens re: motion response [35-1] (MD) (Entered: 12/08/2000)
37 EXHIBITS re: declaration [36-1] (under seal) (MD) (Entered: 12/08/2000)
38 REPLY by plaintiff TO RESPONSE to motion to certify class action, Oral Argument Requested [8-1] (KERR) (Entered: 12/12/2000)
39 DECLARATION of Gretchen Freeman Cappio by plaintiff re: motion reply [38-1] (KERR) (Entered: 12/12/2000)
40 EXHIBIT 1 to declaration of Gretchen Freeman Cappio [39-1] (FILED UNDER SEAL) (KERR) (Entered: 12/12/2000)
41 RESPONSE by plaintiff to motion for sanctions by deft re: conduct by pltf's cnsl [32-1] (KERR) (Entered: 12/13/2000)
42 ORDER by Judge Robert S. Lasnik DENYING pltf's motion to maintain confidential information under seal [23-1] (cc: counsel, Judge) (KERR) (Entered: 12/13/2000)
43 ORDER by Judge Robert S. Lasnik GRANTING pltf's motion to certify class action [8-1]. Ms Erickson is appt as representative of this class (cc: counsel, Judge) (KERR) (Entered: 12/15/2000)
45 REPLY by defendant re: motion to sanctions [32-1] (KERR) (Entered: 12/18/2000)
46 MINUTES OF ORAL ARGUMENT: RSL; Dep Clerk: GG; CR: Sue Palmerton; Pla Counsel present; Def Counsel present; The court hears argument on pltfs' motion to certify class action [8-1]. The mtn is taken under advisement. (KERR) (Entered: 12/18/2000)
44 ORDER by Judge Robert S. Lasnik DENYING deft's motion for sanctions by deft re: conduct by pltf's cnsl [32-1] (cc: counsel, Judge) (VK) (Entered: 12/18/2000)
47 ORDER SETTING TRIAL and RELATED DATES by Judge Lasnik: Court Trial set for 10/1/01 ; Deadline to Join Additional Parties is 3/12/01 Disclosure of expert testimony due: 4/4/01 ; Disclose Rebuttal Expert Testimony by <date not set> ; Motion filing ddl 5/4/01 ; Discovery deadline set for 6/3/01 ; Dispositive Motions to be filed by 7/3/01 ; Settlement conf. per CR 39.1(c)(2) by 8/2/01 ; 39.1 designation effective 9/1/01 ; Motions in

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03/23/2001 03/23/2001
03/23/2001 03/23/2001
04/04/2001 04/11/2001
04/16/2001 04/16/2001
04/16/2001 04/16/2001 04/16/2001 04/16/2001 04/16/2001 04/16/2001 04/16/2001

Limine deadline 9/3/01 ; Agreed Pretrial Order set for 9/19/01 ; Pretrial Conference to be scheduled by the court ; Trial briefs and exhibits to be submitted by 9/26/01 (cc: counsel, Judge) Length of Trial: 2 days (KERR) (Entered: 02/12/2001)
48 MOTION by plaintiff for summary judgment on first claim for relief, oral argument requested NOTED FOR 4/20/01 (MD) (Entered: 03/26/2001)
49 MEMORANDUM by plaintiff in support of motion for summary judgment on first claim for relief, oral argument requested [48-1] (MD) (Entered: 03/26/2001)
LODGED ORDER: re: motion for summary judgment on first claim for relief, oral argument requested [48-1] (MD) (Entered: 03/26/2001)
50 AFFIDAVIT OF SERVICE by plaintiff of motion for summary judgment on first claim for relief, oral argument requested [48-1] (MD) (Entered: 03/26/2001)
51 EXPERT WITNESS DISCLOSED by plaintiff (MD) (Entered: 04/06/2001)
52 APPLICATION by plaintiff Jennifer Erickson AND ORDER admitting Donna Lee pro hac vice. Receipt # 301516 (cc: counsel, Judge) (MD) (Entered: 04/11/2001)
53 MOTION (cross) by defendant Bartell Drug Company for summary judgment, Oral Argument Requested NOTED FOR 5/11/01 (MD) (Entered: 04/18/2001)
54 MEMORANDUM by defendant in support of motion for summary judgment, Oral Argument Requested [53-1] and response to pltf's motion for summary judgment on first claim for relief, oral argument requested [48-1] (under seal)(per court order of 5/3/01-document unsealed) (MD) Modified on 05/10/2001 (Entered: 04/18/2001)
55 DECLARATION of James R. Dickens (4/13/01) re: pltf's deposition experts [53-1] (MD) (Entered: 04/18/2001)
56 EXHIBITS re: declaration of James R. Dickens [55-1](under seal) (MD) (Entered: 04/18/2001)
57 DECLARATION of James R. Dickens (4/13/01)re legislative and supplemental materials [53-1] (MD) (Entered: 04/18/2001)
LODGED ORDER: re: granting deft's cross-motion for sj and denying pltf's motion [53-1] (MD) (Entered: 04/18/2001)
58 MOTION by defendant for order to unseal selected files NOTED FOR 5/4/01 (MD) (Entered: 04/18/2001)
59 DECLARATION of James R. Dickens re motion for order to unseal selected files [58-1] (MD) (Entered: 04/18/2001)
LODGED ORDER: re: motion for order to unseal selected files [58-1] (MD)

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04/18/2001 04/19/2001 04/19/2001 04/23/2001 04/26/2001 04/26/2001 05/02/2001 05/03/2001
05/07/2001 05/07/2001 05/07/2001
05/10/2001 05/29/2001
05/29/2001 05/30/2001

(Entered: 04/18/2001)
60 EXPERT WITNESS DISCLOSED by plaintiff (MD) (Entered: 04/18/2001)
61 REPLY by plaintiff Jennifer Erickson TO RESPONSE to motion for summary judgment on first claim for relief, oral argument requested [48-1] (CL) (Entered: 04/24/2001)
62 DECLARATION of Gretchen Freeman Cappio by plaintiff Jennifer Erickson in support of motion reply [61-1] (CL) (Entered: 04/24/2001)
63 AFFIDAVIT OF SERVICE by plaintiff Jennifer Erickson of motion reply [61-1], etc. (CL) (Entered: 04/24/2001)
64 MINUTE ORDER: by Judge Robert S. Lasnik Oral Argument hrg set for 1:30 5/30/01 re: motions for sj (cc: counsel, Judge) (MD) (Entered: 04/27/2001)
65 PRAECIPE: to attach the final page of exhibit 2 to re: motion reply [61-1] (MD) (Entered: 04/27/2001)
LODGED ORDER: stipulation and order to unseal selected pleadings (MD) (Entered: 05/03/2001)
66 STIPULATION and ORDER by Judge Robert S. Lasnik : GRANTING motion for order to unseal selected files [58-1]. Clerk to unseal Bartell's brief on cross-motion for sj and response to pltf's motion (cc: counsel, Judge) (MD) (Entered: 05/04/2001)
67 MOTION by plaintiff to strike deposition exhibit 18 attached to declaration of James R. Dickens and section VI.B of deft's brief on cross motion for sj and response to pltfs' motion NOTED FOR 6/1/01 (MD) (Entered: 05/08/2001)
68 MEMORANDUM by plaintiff Jennifer Erickson in opposition to crossmotion for summary judgment on pltfs' second claim for relief (disparate Impact) Oral Argument Requested [53-1] (MD) (Entered: 05/08/2001)
69 AFFIDAVIT OF SERVICE by plaintiff of motion to strike deposition exhibit 18 attached to declaration of James R. Dickens and section VI.B of deft's brief on cross motion for sj and response to pltfs' motion [67-1] et al (MD) (Entered: 05/08/2001)
70 REPLY by defendant Bartell Drug Company re: cross motion for sj [53-1] (MD) (Entered: 05/11/2001)
71 RESPONSE by defendant to pltf's motion to strike deposition exhibit 18 attached to declaration of James R. Dickens and section VI.B of deft's brief on cross motion for sj and response to pltfs' motion [67-1] (MD) (Entered: 05/30/2001)
LODGED ORDER: re: order denying pltf's motion to strike [71-1] (MD) (Entered: 05/30/2001)
72 MINUTES OF HEARING: RSL; Dep Clerk: G Glass; CR: Laurene Kelly; Pla

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05/30/2001 06/04/2001 06/12/2001
06/12/2001
06/26/2001 06/26/2001 06/26/2001 06/27/2001 06/27/2001 06/27/2001

Counsel Riley;Gartner;Lee; Def Counsel Dickens; ct hears argument of cnsl re pltfs' and dft's motions for summ jgm; ct takes matter under advisement (RS) (Entered: 05/31/2001)
73 REPLY by plaintiff TO RESPONSE to motion to strike deposition exhibit 18 attached to declaration of James R. Dickens and section VI.B of deft's brief on cross motion for sj and response to pltfs' motion [67-1] (RS) (Entered: 05/31/2001)
74 MINUTES: RSL; Dep Clerk: Gail; CR: Laureen Kelly; Pla Counsel Roberta Riley/Eva Gartner/Donna Lee; Def Counsel James Dickens. Oral argument held on pending motions on 5/30/01. Court takes matter under advisement. A written decision will follow. (MD) (Entered: 06/04/2001)
75 ORDER by Judge Robert S. Lasnik, Granting pltfs' motion for sj. GRANTING motion for summary judgment on first claim for relief [48-1]. Bartell is hereby ordered to cover each of the available options for prescription contraception to the same extend, and on the same terms, that is covers other drugs, devices and preventative care for non-union employees. It is further Ordered that Bartell shall offer coverage for contraception-related services, including the initial visit to the prescribing physician and any follow-up visits or outpatient services for its non-union employees. Because sj in favor of pltf is appropriate on their first claim for relief, the Court need not consider Bartell's motion for sj regarding the disparate impact claim (cc: counsel, Judge) (MD) (Entered: 06/12/2001)
76 ORDER by Judge Robert S. Lasnik DENYING pltfs' motion to strike deposition exhibit 18 attached to declaration of James R. Dickens and section VI.B of deft's brief on cross motion for sj and response to pltfs' motion [671]. Court has considered Exhibit 18 and deft's brief in their entirety (cc: counsel, Judge) (MD) (Entered: 06/12/2001)
77 MOTION by defendant to amend sj order NOTED FOR 7/13/01 (MD) (Entered: 06/27/2001)
78 MEMORANDUM by defendant in support of motion to amend sj order [771] (MD) (Entered: 06/27/2001)
LODGED ORDER: re: motion to amend sj order [77-1] (MD) (Entered: 06/27/2001)
79 MOTION by plaintiff Jennifer Erickson to extend response date to respond to dft.'s motion to amend summary judgment order time NOTED FOR 6/13/01 (VB) (Entered: 06/28/2001)
LODGED ORDER: re: motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] (VB) (Entered: 06/28/2001)
80 MOTION by plaintiff Jennifer Erickson to shorten time on motion to extend response date to respond to dft.'s motion to amend summary judgment order

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06/27/2001 06/27/2001
06/27/2001
06/29/2001
07/02/2001 07/02/2001 07/02/2001 07/03/2001
07/19/2001 07/19/2001 07/19/2001

time [79-1] NOTED FOR 7/3/01 (VB) (Entered: 06/28/2001)
LODGED ORDER: re: motion to shorten time on motion to extend response date to respond to dft.'s motion to amend summary judgment order time [791] [80-1] (VB) (Entered: 06/28/2001)
81 DECLARATION of Roberta Riley by plaintiff Jennifer Erickson re motion to shorten time on motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] [80-1], re motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] (VB) (Entered: 06/28/2001)
82 AFFIDAVIT OF SERVICE by plaintiff Jennifer Erickson of declaration [811], of order lodged [0-0], of motion to shorten time on motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] [80-1], of order lodged [0-0], of motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] (VB) (Entered: 06/28/2001)
83 ORDER by Judge Robert S. Lasnik GRANTING pltf's motion to shorten time on motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] [80-1], RE-NOTED FOR 7/3/01 motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1]. Deft may file and serve its responsive brief no later than 12:00 noon on that date (cc: counsel, Judge) (MD) (Entered: 06/29/2001)
84 DECLARATION of James R. Dickens re motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1] (MD) (Entered: 07/03/2001)
LODGED ORDER: re: order cont date for deft's motion to amend sj order [84-1] (MD) (Entered: 07/03/2001)
LODGED ORDER: re: denying pltf's motion to extend response date on motion to amend sj order [84-1] (MD) (Entered: 07/03/2001)
85 ORDER by Judge Robert S. Lasnik GRANTING pltfs' motion to extend response date to respond to dft.'s motion to amend summary judgment order time [79-1], RE-NOTED FOR 7/27/01 motion to amend sj order [77-1]. Pltfs shall file their responsive brief no later than 4:30 p.m. on 7/19/01 and deft shall file reply brief no later than 4:30 p.m. on 7/26/01. (cc: counsel, Judge) (MD) (Entered: 07/03/2001)
86 BRIEF IN OPPOSITION by plaintiff Jennifer Erickson to motion to amend sj order [77-1] (CL) (Entered: 07/20/2001)
87 DECLARATION by plaintiff Jennifer Erickson (CL) (Entered: 07/20/2001)
88 AFFIDAVIT OF SERVICE by plaintiff Jennifer Erickson of motion response [86-1], etc. (CL) (Entered: 07/20/2001)

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07/26/2001 07/26/2001 08/16/2001
08/28/2001 09/13/2001 09/13/2001 09/13/2001
09/14/2001 09/21/2001 09/21/2001
12/04/2001 12/04/2001 01/07/2002 10/16/2002

89 REPLY by defendant TO RESPONSE to motion to amend sj order [77-1] (KERR) (Entered: 07/30/2001)
90 DECLARATION of James R Dickens by defendant re: motion reply [89-1] (KERR) (Entered: 07/30/2001)
91 ORDER GRANTING DFT'S MOTION FOR INTERLOCUTORY APPEAL by Judge Robert S. Lasnik GRANTING dft's motion to amend sj order [77-1]; dft may file appeal to 9th CCA re 6/12/01 Order (cc: counsel, Judge) (RS) (Entered: 08/17/2001)
ENT-PETITION FOR PERMISSION FOR APPEAL filed by attorney, James Dickens, forwarded to CCA in San Francisco via FedEx. (SA) (Entered: 09/07/2001)
92 NOTICE OF APPEAL (01-35870)by defendant Bartell Drug Company from Dist. Court decision [75-1] (cc: CCA, RSL, counsel) (SA) Modified on 09/21/2001 (Entered: 09/14/2001)
APPEAL FEE RECEIVED: Appellant paid fee in the amount of $105.00 (Receipt #403893) (SA) (Entered: 09/14/2001)
93 ORDER (CCA 01-80181) DENYING Petition for permission to appeal. Petition was filed untimely, not within 10 days after entry of the district's court's 8/17/01 order, certifying its 6/12/01 order for interlocutory appeal. (cc: CCA, RSL, counsel) (SA) (Entered: 09/17/2001)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (SA) (Entered: 09/14/2001)
NOTIFICATION by Circuit Court of Appellate Docket Number 01-35870 (SA) (Entered: 09/21/2001)
94 TIME SCHEDULE ORDER (CCA 01-35870) Appellant notify appellee of trans. ordered by 9/24/01; appellee notify appellant of additional trans. by 10/3/01; appellant file trans with district court 10/15/01; Court Reporter file trans. 11/13/01;Appellant opening brief due 11/13/01; Appellee brief due 12/31/01; Reply brief due w/in 14 days of service of appellee brief (cc: CR) (SA) (Entered: 09/21/2001)
95 TRANSCRIPT DESIGNATION and Ordering Form for dates: none [92-1] (KN) (Entered: 12/14/2001)
96 TRANSCRIPT DESIGNATION and Ordering Form for dates: none [92-1] (KN) (Entered: 12/14/2001)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (SA) (Entered: 01/07/2002)
97 MANDATE (01-35870) from Circuit Court of Appeals REMANDING the matter back to District Court for consideration of the parties' settlement agreement. Notice of reinstatement must be filed with this court within 28

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12/03/2002 12/03/2002
12/03/2002
12/03/2002 12/03/2002 12/03/2002
03/03/2003 03/04/2003 03/05/2003 03/05/2003 03/06/2003

days of entry of district court order denying the motion. [Appeal [92-1] (cc: all counsel, RSL, crt deputy) (SA) (Entered: 10/16/2002)
98 MOTION by plaintiff, defendant for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing NOTED FOR 12/2/02 (VK) (Entered: 12/03/2002)
99 MEMORANDUM by plaintiff, defendant in support of motion for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing [98-1] (VK) (Entered: 12/03/2002)
100 DECLARATION of Roberta N. Riley by plaintiff, defendant re motion for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing [98-1] (VK) (Entered: 12/03/2002)
LODGED ORDER: re: motion for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing [98-1] (VK) (Entered: 12/03/2002)
101 AFFIDAVIT OF SERVICE by plaintiff, defendant motion for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing [98-1] (VK) (Entered: 12/03/2002)
102 ORDER by Judge Robert S. Lasnik GRANTING motion for order granting preliminary approval of class action settlement, approval of notice to class members and setting of fairness hearing [98-1]; deft to notify class members of settlement by 12/31/02; class members' objections due by 2/11/03; SETTING fairness hearing re final approval of settlement for 3/4/03 (cc: counsel, Judge, KL) (VK) (Entered: 12/03/2002)
103 DECLARATION of James R. Dickens by defendant re notice of proposed settlement (VK) (Entered: 03/03/2003)
105 MINUTES of fairness hearing: RSL; Dep Clerk: KL; CR: Caroline Castle; Pla Counsel R. Riley; Def Counsel J. Dickens; counsel to file joint motion to dismiss along with final settlement order (VK) (Entered: 03/06/2003)
104 STIPULATION/joint motion to dismiss (VK) (Entered: 03/06/2003)
LODGED ORDER: re: stipulation/joint motion to dismiss [104-1] (final order) (VK) (Entered: 03/06/2003)
106 Final ORDER by Judge Robert S. Lasnik granting joint motion to dismiss with prejudice; case termed (cc: counsel, Judge, KL) (VK) (Entered: 03/07/2003)

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