Case 2:13-cv-02160 Document 1 Filed 12/03/13 Page 1 of 20

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

7 MICHAEL HALL, and ELIJAH UBER

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a/k/a Elijah Hall, and their marital community; and AMIE GARRAND and

9 CAROL GARRAND and their marital community,

10 Plaintiffs,
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vs.

13 BNSF RAILWAY CO., a Delaware corporation,
14 Defendant.
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No. _________________
INDIVIDUAL AND COLLECTIVE COMPLAINT FOR NONPAYMENT OF WAGES UNDER EQUAL PAY ACT

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COME NOW the plaintiffs and through counsel allege as follows:

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INTRODUCTION

18 1. This is a claim under the federal Equal Pay Act 29 USC §206(d)(1), §216 and
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related sections, for sex based discrimination by defendant BNSF Railway Co. (BNSF), which 20

21 refuses and fails to pay for the spousal health care costs of its employee, locomotive

22 engineer/plaintiff Michael Hall, who is married to Elijah Uber (also known as Elijah Hall) who is

23 also male. The failure to pay is based on sex because BNSF does pay for spousal health needs

24 for employees, and locomotive engineers, if the employee is a female married to a male spouse,

25 but does not pay for Elijah’s health needs because Michael Hall is male -- and not female -26

COMPLAINT FOR NONPAYMENT OF WAGES UNDER EQUAL PAY ACT - 1

Cleveland Stockmeyer PLLC 8056 Sunnyside Ave. N. Seattle, WA 98103 (206) 419-4385

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married to a male (Elijah). The denial of the same benefit to employee Michael Hall because he 1 2 is male and not female is discrimination in pay or benefits based on sex that is per se illegal. 3 Similarly, BNSF denies spousal health care coverage to its employee conductor Amie Garrand

4 solely because she is a female married to a female (Carol Garrand) and not a male married to a

5 female. BNSF commonly pays the benefit to employees who are males, who are married to

6 female spouses. The denial of the spousal health care benefits to Amie Garrand because she is

7 female and not male is discrimination in pay and benefits based on sex, and this discrimination is
8 illegal under the Equal Pay Act.
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2. BNSF’s stated policy and reason for not paying the benefits is “marriage is

11 between one man and one woman” -- but BNSF does not get to judge what marriage is. That the

12 denial of equal pay is based on this BNSF policy only shows BNSF is discriminating based on

13 the sex of the employee.

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3. The Halls and the Garrands sue to compel BNSF to provide Michael Hall and

15 Amie Garrand the spousal health care benefit and also to compel BNSF to provide this benefit to
16 all other employees similarly situated, i.e., BNSF engineers, conductors or other employees who
17 were married in other states with legal same sex marriage and who have been denied the benefit
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19 based on the sex of the BNSF employee. The plaintiffs here also seek all damages and liquidated

20 damages allowed under the statute, fees and costs, and injunctive relief to prevent future similar

21 violations of the Equal Pay Act. .

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4. On information and belief, there are numerous or hundreds of other BNSF

23 employees or engineers or conductors in legal same sex marriages who are similarly situated and

24 who are being denied spousal health care benefits based on the sex of the employee in the states
25 where BNSF operates that have legal same sex marriage (Washington, Minnesota, Iowa, Illinois
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Cleveland Stockmeyer PLLC 8056 Sunnyside Ave. N. Seattle, WA 98103 (206) 419-4385

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and California, Illinois, and New Mexico) (or who had legal marriages in any state or 1 2 jurisdictions with same sex marriage and who work anywhere for BNSF).

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PARTIES, JURISDICTION, VENUE

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5. Plaintiff incorporates and re-alleges herein all other allegations of this complaint.

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6. This case arises under 29 USC §206 and 216 and related sections and federal

6 question jurisdiction is present in this Court under 28 USC § 1331.
7 7. Michael Hall and Elijah Uber (also known as Elijah Hall and referred to herein as
8 Elijah Hall) are males residing in Pierce County, Washington who legally married in Washington
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10 State on January 21, 2013. Amie Garrand and Carol Garrand are females who are residents of

11 Clark County, Washington who were legally married in Washington State on February 17, 2013.

12 Michael Hall and Amie Garrand are BNSF employees.

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8. BNSF is a Delaware corporation doing business in Washington State and in

14 Seattle city limits and in this judicial District and is subject to personal jurisdiction here.

15 BNSF’s principal place of business in Washington State is in Seattle in King County where it has
16 offices. A BNSF supervisor told Michael Hall his fight for the benefits would be long and
17 bumpy (i.e., BNSF would deny the benefit) from the BNSF terminal where Hall works in Seattle
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19 in King County, Washington.

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9. Venue is proper in the Western District of Washington under 28 USC § 1391

21 because plaintiffs reside in this district, a substantial part of the events or omissions giving rise to

22 the claim occurred in this district where BNSF management offices exist, and BNSF resides in

23 this judicial district since it does business here and has its principal place of business in the State

24 here, and has contacts here sufficient to subject it to personal jurisdiction if this district were a
25 separate State; and because this is the district with which BNSF has the most significant contacts
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in this State, and its principal place of business, having its NW Division headquarters in Seattle, 1 2 in King County Washington. The Seattle court is also proper under the local rules because all 3 defendants reside here and have their principal place of business here and or a substantial part of

4 the events or omissions giving rise to the claim occurred here, including the Seattle terminal

5 supervisor’s call to Hall denying the benefit and promising a long and bumpy fight to get it.

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KEY FACTS REGARDING THE HALLS

7 10. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.
8 11. BNSF is one of the larger railroads in the United States, moving goods by train on
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10 a railway that comprises 32,000 miles of track in 28 States on which freight cars, locomotives

11 and trains are sent throughout the railway system from one location to another nationwide.

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12. The entire BNSF railway constitutes one enterprise under the Equal Pay Act.

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13. BNSF has some 13 divisions which are groupings of employees; the freight and

14 cars and trains go from division to division, but not the employees.

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14. The NW Division includes the part of the railway in Northern California, Oregon,

16 Idaho, Washington, Idaho and Montana.
17 15. Michael Hall and Amie Garrand are employed in the NW Division.
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16. BNSF manages the employees in the NW Division out of its offices at 2454

20 Occidental Avenue South in Seattle, plus other management offices at 1000 Second Avenue suite

21 3700, Seattle, and terminal yards in Seattle, including the one where the supervisor called

22 Michael Hall, and BNSF has its principal place of business in the State of Washington in Seattle,

23 in King County Washington.

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17. BNSF manages the entire railway train operation from Forth Worth, Texas.

25 Employees are managed out of the divisions.
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18. Michael Hall was employed by BNSF starting in November 2010 and by 2013 he 1 2 was working as a locomotive engineer; he chose to work for BNSF in part due to its stated 3 antidiscrimination policy which bars discrimination based on sex and sexual orientation and

4 other things.

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19. In 2013 Michael Hall worked in the Interbay Yard in Seattle and other BNSF

6 locations in Seattle, and also drove mile long trains on three-day runs, from Auburn over

7 Stampede Pass and through the Yakima Canyon to Pasco; the next day along the Columbia River
8 to Vancouver, Washington; and the next day north to Auburn or Seattle.
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20. Typically Michael Hall’s trains included empties or grain or coal cars, or Z trains

11 which are high priority container double stack trains carrying semi-trailers with freight, like Fed

12 Ex or UPS freight, grain or coal; much of this freight arrived or was destined for the Port of

13 Seattle terminals in Seattle.

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21. In 2013, and other recent years, BNSF has had married employees who were

15 opposite sex married; and, increasingly, some who were same-sex legally married as same=sex
16 marriage has become legal in certain states and jurisdictions.
17 22. BNSF pays spousal health coverage throughout its enterprise where a male
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19 employee is married to a female spouse and where a female employee is married to a male

20 spouse.

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23. Starting in early 2013, Michael Hall repeatedly requested that BNSF cover

22 Elijah’s health care costs.

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24. Michael Hall has provided documentation of marriage required by BNSF or its

24 authorized agent for health care benefits, United Healthcare. 25

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25. BNSF has failed and refused to cover the health care costs of Michael Hall’s legal 1 2 spouse, Elijah Hall.

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26. This failure to pay is based solely on the fact Michael is male.

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27. If Michael Hall were female, married to a male, BNSF would pay him the spousal

5 health coverage benefits as it does to all employees who are female married to male spouses, or

6 males married to female spouses.

7 28. BNSF pays in its enterprise many female employees the health care benefits
8 concerning their male spouses, including many locomotive engineers who are female.
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29. BNSF has directly and through its apparent and authorized agent United

11 Healthcare stated its reason for not covering Elijah is it has a “policy” that “marriage is one man,

12 one woman”; although Michael Hall and Elijah Hall have explained many times this definition of

13 marriage is not the law in Washington state, and Elijah is the spouse and husband of Michael

14 Hall, factually, and legally.

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30. The one man/one woman definition of spouse used by BNSF to limit its liability

16 to cover spousal health benefits amounts to a BNSF policy to discriminate against Michael Hall
17 simply because he is male; under this policy, if he were a female married to Elijah, the benefit
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19 would be paid.

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31. Early in 2013 Michael Hall provided certified copies of his marriage certificate

21 and other documentation to United Healthcare who explained to him he did not qualify for

22 spousal benefits because BNSF Railway says that marriage is between one man and one woman.

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32. United Healthcare was possessed of actual and apparent authority to deal with

24 Michael Hall and other employees, for BNSF, on such coverage issues and to speak for BNSF as
25 to the reasons for denying coverage.
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33. BNSF had directed Michael Hall and other employees to look to United 1 2 Healthcare for coverage questions, and payment of the benefits.

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34. United Healthcare repeated to Michael or Elijah that BNSF policy is marriage is

4 one man and one woman, i.e., it was BNSF policy that required the servicer United Healthcare to

5 deny coverage to Michael Hall for his spouse Elijah.

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35. In June 2013, a federal law called “Defense of Marriage Act” was struck down by

7 the US Supreme Court in United States v. Windsor, 570 U.S. __ (2013).
8 36. Michael and Elijah again sought the benefit; United Healthcare told Michael Hall
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10 that BNSF tells them marriage is between one man and one woman; another employee of United

11 Healthcare told Michael Hall that he worked for the BNSF Railway, and cannot do anything

12 unless told by BNSF Railway to do so; Michael Hall then spoke to a supervisor at United

13 Healthcare called Christy but she never called back despite promising to do so.

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37. In a later call United Healthcare referred the Halls to the BNSF law department.

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38. They called the law department in Fort Worth, Texas, in June 2013.

16 39. On June 26, 2013 the law department promised Elijah Hall they would look into it
17 and call back but it failed to do so. Elijah called the law department on June 27, 2013 and spoke
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19 to a law department employee named Tina who cut off his explanation and request to be covered,

20 saying “we do it on our own time.” Elijah Hall told her coverage was legally required and she is

21 not above the law. Tina referred Elijah Hall to another female employee (name unknown), who

22 immediately said Hall had the “wrong number” when he mentioned same sex marriage. He

23 called back and got “Cathy” who put him off claiming she would take his number and call back.
24 No one called him back. 25

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40. Elijah Hall called United Healthcare again, whose representative refused to give 1 2 her name, and who said marriage is between one man and one woman. Elijah Hall explained 3 that same sex legal marriage is valid and made him the legal spouse so coverage should be

4 provided. He asked where in the health care plan does it state marriage is one man, one woman.

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41. The representative falsely said the plan so provides, but in fact the plan booklet

6 states any husband or wife is covered without limiting this to opposite-sex marriage. Copies of
7 relevant pages of the plan are attached hereto as Exhibit A.
8 42. The representative became rude and said that BNSF had sent them a memo after
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10 the Supreme Court ruling overturning DOMA, and then said, “let me read it to you.” She began

11 reading a BNSF letter to United Healthcare directing United Healthcare to deny all spousal

12 benefits for all same sex marriages in all areas where BNSF operates and has employees.

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43. Elijah Hall asked her name and she refused to give it, and though Hall got to talk

14 to a supervisor named Vanessa, she did not resolve the issue.

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44. Michael Hall also called BNSF HR who refused to do anything.

16 45. One BNSF HR representative on June 27, 2013 stated that BNSF was above the
17 law, because they did not have to follow the federal laws.
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46. On July 8, 2013 at 10:24 AM, Elijah Hall sent an e-mail concerning the request to

20 be covered to BNSF upper management including Chairman/CEO Matthew K. Rose; President

21 and COO Carl Ice; Executive Vice President, Law and Secretary, Roger Nober; Kristen Smith;

22 Vice President and Chief Human Resources Officer Riz Chand; Vice President and General

23 Counsel Charles Shewmake; and Vice President and General Counsel, Regulatory Richard
24 Weicher. A true and correct copy of this e mail is attached as Exhibit B hereto. 25

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47. Elijah Hall in this email protested the “ILLEGAL actions of BNSF Railway and 1 2 their refusal to provide LEGAL spousal benefits” to legally married same sex couples. He 3 stated, “BNSF Railway AND United Healthcare have discriminated us. . . .Their health guide

4 DOES NOT state that spouse is 1 man 1 woman, or someone of the opposite sex….couples in

5 state[s] that recognize same-sex marriage will now be able to receive the same benefits as

6 heterosexual couples . . . .Large businesses that operate in multiple states will have to keep
7 track of who lives under what jurisdiction. ”
8 48. Elijah Hall also said “I have dealt with enough pain and suffering, headaches, etc.
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10 from their discrimination” and again requested coverage noting the legal marriage.

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49. Elijah Hall had in fact had headaches and much pain and suffering due to the

12 discrimination, as did Michael Hall.

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50. No one got back to Elijah Hall in response to the July 8 email to top BNSF

14 managers.

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51. Elijah Hall called United Healthcare July 8, 2013 and spoke to Cynthia Gray, who

16 said she could not talk because she was “busy.” When he explained that United had denied
17 coverage three times Gray hung up on him.
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52. In July 2013, Elijah Hall asked Debbie Trabold of United Healthcare to provide

20 him with a copy of the letter in which BNSF told United Healthcare to deny spousal benefits to

21 same sex couples, but she refused to do so.

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53. On July 10, 2013 both Michael and Elijah Hall called Pat Pitsch of BNSF

23 Railway HR and discussed their legal marriage, request for benefits and BNSF’s denial thereof.

24 In response, she said there was “nothing” BNSF could do and stated that BNSF law department
25 had said BNSF did not have to provide the coverage for same sex spouses.
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54. She also said no change would be made until 2014, then changed that to 2015, 1 2 and did not resolve the issue.

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55. On July 10, 2013 at 12:52 p.m., Elijah Hall again e mailed CEO Rose and the

4 other BNSF managers he contacted on July 8th, stating “SHAME SHAME SHAME on you,

5 BNSF Railway for allowing this discrimination and ILLEGAL actions to go on this long. For a
6 company that prides themselves for being a company built around diversity, and having a 7
diversity department, YOU SURE DO DISCRIMINATE!” 8
56. The e mail also stated “I spoke with Pat Pritsch, Director of BNSF Medical 9 10 Benefits, BNSF Railway, and she more or less stated that BNSF Railway was indeed above the
11 law.” A true and correct copy of this e mail is attached hereto as Exhibit C.

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57. BNSF is not above the law.

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58. On July 10, 2013 at 12:16 p.m. Michael called Marie Olson, Director of

14 Administration of Transportation for BNSF’s NW Division, and she called back at 2:16 p.m.

15 from her personal cell phone at 406-390-0633; Michael discussed the issue, that he was being

16 discriminated against in the denial of coverage, and since Olson she was on the diversity council,
17 he wanted her to help him not be discriminated against. She said she would look into the issue.
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59. On July 10, 2013, in the evening, a BNSF supervisor named Benjamin Marx, the

20 terminal manager in Seattle, Washington, called Michael Hall at his home while he was off duty,

21 which was highly unusual and Marx was not someone Michael dealt with normally.

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60. Marx demanded to know if Michael Hall was making all these calls to everyone;

23 Hall told him he was worried he be fired; Marx using a threatening tone told Michael Hall that he

24 was “brave” to “take on” BNSF and that it was going to be a “long and bumpy battle.” Michael
25 and Elijah Hall felt intimidated by this threatening call but continued to seek coverage.
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61. On July 15, 2013 at 12:00 p.m. Michael Hall called Marie Olson’s personal cell 1 2 and left a message; he got no call back, and called again on July 16, 2013 at 6:24 p.m. and left 3 her another message.

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62. On July 17, 2013 at 5:01 p.m. Marie Olson called Michael Hall from her personal

5 cell, saying she had been too busy to get back to him; Michael Hall explained he was legally
6 married and his Elijah should be covered and that BNSF was refusing to cover this benefit 7
because it is a same sex marriage and they had been told the denial is because BNSF policy is 8
marriage is one man one woman; Michael Hall asked her as a member of diversity council in a 9 10 company with a nondiscrimination policy to solve the problem; and Olson said she was calling
11 after work, on her personal cell, “I’ve been advised not to talk to you because it could cost me

12 my job and my livelihood of working here”; and she said nothing could be done by the diversity

13 council.

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63. In July 2013 after being requested, United Healthcare sent Michael Hall a written

15 denial letter with a benefit booklet and pointed to the definition of eligible dependents in the

16 booklet.
17 64.
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As shown in Exhibit A, the booklet relied on by United Healthcare stated that a

19 “wife” or “husband” is covered and does exclude spouses in a legal same-sex marriage.

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65. The BNSF policy to limit coverage to opposite sex marriages violates the plan’s

21 plain meaning: Elijah is Michael’s husband, and should be covered under the plan.

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66. Michael Hall has appealed the denial of coverage to United Healthcare with

23 repeated pleas to end the discrimination and denial of coverage, but it and BNSF have failed to
24 properly respond, and have refused and failed to provide the coverage. 25

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67. To this date BNSF has not responded to the July 8th and July 10th e mails sent to 1 2 CEO Rose or other upper management, unless the threatening call made by Marx is a response.

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68. Elijah Hall has the human immunodeficiency virus, a slowly replicating retrovirus

4 that may cause acquired immunodeficiency syndrome.

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69. On information and belief, defendant BNSF and United Healthcare know this.

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70. Elijah Hall’s monthly medication costs are about $2,400.

7 71. BNSF’s gender based discrimination is forcing the Halls to lose benefits worth
8 $2,400 a month. Their economic damages grow monthly and are estimated at some $24,000 to
9

10 date.

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72. The gender based discrimination also causes the Halls emotional distress which

12 could adversely affect Elijah Hall’s medical condition which also causes great emotional distress

13 for the legally married couple.

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KEY FACTS REGARDING THE GARRANDS

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73. Amie Garrand has been employed at BNSF for about 12.5 years. She has been

16 an engineer and is currently a conductor. She is in the NW Division which is operated out of
17 Seattle in King County.
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74. Amie Garrand has several times requested that BNSF or United Healthcare cover

20 the health care costs of her spouse, Carol Garrand, including costs the couple incurred relating to

21 birth of a son by Carol after the marriage in 2013. BNSF has failed and refused to cover the

22 spousal health care costs, including through communications from United Healthcare, citing its

23 policy that marriage is one man one woman. 24

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75. This is discrimination based on Amie’s sex as BNSF provides spousal health care 1 2 coverage to male conductors or employees who are married to females and here is not providing 3 the spousal benefit to Amie Garrand because she is female and not male.

4

76. Amie Garrand called the BNSF Hotline, Legal Department and HR on June 26

5 and 28, 2013, seeking coverage for her spouse Carol and protesting the discriminatory refusal to

6 cover her spouse and got no positive response.
7 77. On June 28, 2013, Garrand spoke with BNSF Human Resources representative
8 Ray Scott, who said they know about the issue and their lawyers were looking into it. This did
9
10 not resolve anything.

11

78. On July 9, 2013 at 2:22 p.m. she called United Healthcare and again asked to add

12 her wife Carol to the health plan and the representative told her no, because BNSF does not

13 recognize same-sex marriage.

14

79. On July 18, 2013 Amie Garrand called an employee named Katrina with BNSF

15 who would not recognize her wife Carol or provide the coverage.
16 80. On July 19, 2013at 3:30 p.m. Amie Garrand called an employee named Monica
17 at United Healthcare, who denied the coverage saying the benefit book states same sex marriage
18
19 does not qualify as a dependent.

20

81. This was untrue; the benefit book or plan states “Your wife” is covered and does

21 not state “wife” excludes a same-sex wife.

22

82. Monica then said BNSF won’t let United Healthcare add Carol Garrand so Amie

23 Garrand then talked with Felicia in the resolution department, who said she would send a denial
24 of benefits letter. 25

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83. On July 29, 2013 at 11:50 am Amie Garrand called BNSF Human Resources and 1 2 spoke with Bob Apetz, who said BNSF would not cover a same-sex-married wife; Apetz was 3 hostile and rude.

4

83. Amie Garrand asked for his supervisor and left a message for supervisor Pat

5 Pitsch who called Garrand July 31, 2013 at 2:25 p.m., saying BNSF would not provide the

6 coverage and would not even consider coverage until 2015; Garrand told her this was blatant

7 discrimination, and that the policy to not cover spouses was illegal; Pitsch said BNSF could do
8 nothing.
9

10

84. In July 2013 Amie Garrand asked her own terminal superintendent, Chris

11 Delargey, to look into the issue and one month later he said he had no information for her; she

12 protested the discrimination saying it would be “easier for me to get a sex change operation” than

13 it would be for her to get the spousal benefit for her legal wife under the BNSF policy of not

14 recognizing same sex marriage.

15

85. On August 29, 2013 Amie Garrand called United Healthcare to put her spouse

16 Carol on the insurance, and they again refused saying BNSF does not recognize same-sex
17 marriage spouses, as dependents.
18

19

86. On September 23, 2013 at 2:57 p.m. Amie Garrand called United Healthcare,

20 citing new Department of Labor guidelines covered same-sex marriages and saying hers should

21 be regarded just like any other marriage; the representative again refused to add the spouse.

22

87. On September 23, 2013 at 3:58 p.m. Amie Garrand called Pat Pitsch with BNSF

23 Human Resources and left a message regarding the new DOL guidelines noting recognition of

24 legal same-sex marriages. Pitsch called back on September 24, 2013 at 7:22 a.m. and left a
25 message saying those rules did not apply to BNSF.
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88. On September 29, 2013at 11:43 a.m. Amie Garrand called United Healthcare to 1 2 add her new infant son to coverage and her wife, Carol. They added the infant son but refused to 3 cover Carol saying again BNSF only recognizes marriage as one man one woman.

4

89. On September 30, 2013 Amie Garrand called United Healthcare seeking to add

5 the spouse and again was refused. On November 4, 2013, she called again, asking to add the

6 spouse, and was again refused. On November 21, 2013 at 4:55 p.m. Garrand again called United
7 Healthcare and spoke with an employee named Monica who said she remembered the last time
8 Garrand spoke with her. Garrand asked to add the wife and Monica said “no,” nothing had
9
10 changed, and she was not allowed to add the spouse because it is a same-sex marriage.

11

90. The letter United Healthcare sent to Amie Garrand quoted the benefits plan but

12 the portion quoted stated that the booklet’s page 16 describing “eligible dependents” includes

13 “Your wife or husband.” This language includes Amie’s wife, Carol. There was no language in

14 the benefits booklet excluding same sex wives or husbands.

15

91. BNSF is denying coverage for Carol Garrand because Amie Garrand is female; if

16 Amie were male, BNSF would provide the coverage -- as it does to many thousands of male
17 employees with female spouses.
18

19

92. At times BNSF or United Healthcare told Garrand that a collective bargaining

20 agreement forces them to deny coverage for Carol Garrand. This was not true factually or

21 legally. The benefits plan said “Your wife or husband” is an eligible dependent and in any event

22 excluding same-sex spouses is illegal pay discrimination based on the sex of the employee.

23 Union contracts are not a legal way to excuse or justify discrimination.

24 CAUSES OF ACTION
25 93. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.
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94. The denial of equal pay in the form of spousal health care benefits which BNSF is 1 2 not paying or causing to be paid to Michael Hall respecting his husband Elijah based on 3 Michael’s sex violates the Equal Pay Act, 29 USC §206(d)(1). The denial of equal pay in the

4 form of spousal health care benefits which BNSF is not paying or causing to be paid to Amie

5 Garrand regarding her wife Carol based on Amie’s sex violates the Equal Pay Act, 29 USC
6 §206(d)(1). 7
95. BNSF is an employer within the meaning of the Act, with employees within the 8
meaning of the Act, including engineers or conductors such as Hall and Garrand. It has female 9 10 engineers and conductors married to males for whom BNSF provides the benefit and male
11 engineers and conductors married to females to whom BNSF provides the benefit.

12

96. BNSF was and is an establishment directly engaged in interstate or

13 foreign commerce or production of goods including handling goods and has and has had

14 employees such as Hall and Garrand directly engaged in interstate and foreign commerce
15 and handling or production of goods moving in interstate or foreign commerce. 16
97. BNSF, Hall and Garrand and other engineers at BNSF directly use 17
instrumentalities of interstate commerce and were engaged directly in interstate 18 19 commerce, i.e., driving or moving trains across parts the national BNSF railway in
20 Washington State, containing goods or trains or cars sent from or to various States or

21 nations, in a flow of interstate and international commerce.

22

98. BNSF employed Hall and also female engineers or conductors or

23 employees in an establishment in jobs requiring substantially equal skill, effort and

24 responsibility and performed under similar working conditions, surroundings and
25 hazards. BNSF employed Garrand and also male engineers and conductors or employees
26

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in an establishment in jobs requiring substantially equal skill, effort and responsibility 1 2 and performed under similar working conditions, surroundings and hazards.

3

99. The establishment is the entire 28-State BNSF railway (or, alternatively is

4 the NW Division or subdivisions or yards where Michael Hall or Amie Garrand work).

5

100. In said establishment(s), BNSF discriminated between plaintiff Michael

6 Hall, a male, and other employees who were female, who performed equal work on jobs
7 requiring equal skill, effort and responsibility and which are performed under similar
8 working conditions, by paying said females married to males spousal health benefits
9
10 while not paying males married to males the same benefit, including Hall. In said

11 establishment(s), BNSF discriminated between plaintiff Amie Garrand, a female, and

12 other employees who were male, who performed equal work on jobs requiring equal

13 skill, effort and responsibility and which are performed under similar working

14 conditions, by paying said males married to females spousal health benefits while not
15 paying females married to females the same benefit, including Amie Garrand. 16
101. Nationwide BNSF has thousands of engineers or conductors. The NW 17
Division has some 800 engineers and the Auburn Triangle route has some 35 engineers 18 19 and 35 conductors or 70 trainmen. In each part of the Railway, there are female
20 employees who are married to males, and who receive spousal health coverage; and male

21 employees married to females who receive spousal health coverage; while BNSF denies

22 the same benefit to males married to males, like the Halls, or females married to females,

23 like the Garrands.

24

102. This discrimination in pay rates or benefits was pursuant to BNSF policy and

25 direction; was repeatedly ratified by BNSF, including its law and HR departments; and was not
26

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justified by any seniority or merit system, or system which measures earnings by quantity or 1 2 quality of production; or a differential based on any other factor other than sex. The policy of 3 “marriage is one man one woman” is not a distinction based on seniority or merit systems, or a

4 system which measures earnings by quantity or quality of production; and is a differential based

5 on the sex of the employee vis-a-vis his or her spouse.

6

103. BNSF policy would be to pay the benefit to Michael Hall if he were female, not

7 male; and it would be to pay the benefit to Amie Garrand if she were male and not female. The
8 discrimination was and is based on sex.
9

10

104. Said discrimination and unequal pay caused and proximately caused plaintiffs to

11 suffer legal damages including economic loss, and emotional distress and pain and suffering.

12 The economic loss of the Halls is estimated at $2,400 per month or some $24,000 to date; the

13 economic loss to the Garrands is estimated as the cost of the birth of Carol and Amie’s son,

14 estimated as thousands of dollars. Amounts will be proven at trial.

15

105. The benefits not paid to plaintiffs are “wages” under the Equal Pay Act and 29

16 CFR § 1620.10 and 1620.11.
17 106. The discrimination by BNSF complained of herein violates the Equal Pay Act
18

19 §206(d)(1), §215(a)(1) and (2) and §216(b).

20

107. The discrimination by BNSF complained of herein violates 29 CFR § 1620.11(b)

21 providing “It is unlawful for an employer to discriminate between men and women performing

22 equal work with regard to fringe benefits”; and subsection (d), providing that “It is unlawful for

23 an employer to make available benefits for the spouses or families of employees of one gender

24 where the same benefits are not made available for the spouses or families of opposite gender
25 employees.”
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108. BNSF is liable to Hall and Garrand in the amount of the unpaid benefits, plus “an 1 2 additional equal amount as liquidated damages,” and reasonable attorneys’ fees, and costs of the 3 action, under 29 USC § 216(b).

4

109. BNSF is also liable to the same extent to other employees in its establishment

5 who are similarly situated and suffer similar discrimination and who consent to be plaintiffs in

6 this action. This includes similarly situated engineers or conductors, or other employees of

7 BNSF, who were married legally in same sex marriages who are denied the benefit based on the
8 one man one woman policy.
9

10

110. On information and belief, this group may include hundreds or thousands of

11 same-sex-married BNSF employees who are being denied equal pay for equal work via the

12 denial of the spousal health care benefits based on the sex of the BNSF employee vis-à-vis the

13 sex of his or her legally married spouse.

14

111. The suit under the Equal Pay Act is ripe now and plaintiffs are suing under that

15 Act because those claims are ripe. The plaintiffs intend to amend this suit as soon as practicable
16 to add claims under other acts, for denied ERISA benefits, and for other discrimination under
17 federal and state laws, when such other claims become ripe or actionable following certain
18
19 agencies’ issuance of denial letters or other responses to plaintiff’s complaints made or to be

20 made and/or following United Healthcare’s formal resolution of internal appeals.

21

PRAYER FOR RELIEF

22

NOW, THEREFORE, plaintiffs pray for the following relief:

23

1. For a judgment in an amount for actual and liquidated damages, to be proven at

24 the time of trial; plus costs, attorneys’ fees, pre and post judgment interest, and any punitive
25 damages as allowed by law;
26

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2. For a judgment and order enjoining defendants from continuing the 1 2 discrimination complained of herein, and decreeing BNSF shall pay the benefit sought herein 3 to any legal wife or any legal husband, regardless of the sex of the BNSF employee; and

4

3. For such other relief as the Court may deem equitable and proper.

5

DATED this 3d day of December, 2013.

6

CLEVELAND STOCKMEYER PLLC

7

8

By:___/s/ Cleveland Stockmeyer _____

Cleveland Stockmeyer WSBA # 21636

9

8056 Sunnyside Ave. N

Seattle, WA 98103

10

(206) 419-4385

11

Email: cleve@clevelandstockmeyer.com Attorney for Plaintiffs

12

13 BADGLEY MULLINS TURNER PLLC

14

By: s/ Duncan C. Turner

Duncan C. Turner, WSBA # 20597 15

16

4750 Columbia Center 701 Fifth Avenue

17

Seattle, Washington, 98104

Telephone: (206) 621-6566

18

Email: duncanturner@badgleymullins.com

19

Attorney for Plaintiffs

20

21

22

23

24

25

26
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1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 MICHAEL HALL, and ELIJAH UBER

8

a/k/a Elijah Hall, and their marital community; and AMIE GARRAND and

9 CAROL GARRAND and their marital community,

10 Plaintiffs,
11

12

vs.

13 BNSF RAILWAY CO., a Delaware corporation,
14 Defendant.
15

16

No. 2:13-cv-02160
FIRST AMENDED INDIVIDUAL AND COLLECTIVE COMPLAINT FOR NONPAYMENT OF WAGES UNDER EQUAL PAY ACT, STATE AND FEDERAL DISCRIMINATION CLAIMS AND ERISA BENEFITS AND DECLARATORY JUDGMENT CLAIMS

17

COME NOW the plaintiffs and through counsel allege as follows:

18

INTRODUCTION

19

1. This is a claim under the federal Equal Pay Act 29 USC §206(d)(1), §216 and

20 related sections, for sex based discrimination by defendant BNSF Railway Co. (BNSF), which
21 refuses and fails to pay for the spousal health care costs of its employee, locomotive
22
engineer/plaintiff Michael Hall, who is married to Elijah Uber (also known as Elijah Hall) who is 23

24 also male. The failure to pay is based on sex because BNSF does pay for spousal health needs

25 for employees, and locomotive engineers, if the employee is a female married to a male spouse,

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but does not pay for Elijah’s health needs because Michael Hall is male -- and not female -1 2 married to a male (Elijah). The denial of the same benefit to employee Michael Hall because he 3 is male and not female is discrimination in pay or benefits based on sex that is per se illegal.

4 Similarly, BNSF denies spousal health care coverage to its employee conductor Amie Garrand

5 solely because she is a female married to a female (Carol Garrand) and not a male married to a
6 female. BNSF commonly pays the benefit to employees who are males, who are married to 7
female spouses. The denial of the spousal health care benefits to Amie Garrand because she is 8
female and not male is discrimination in pay and benefits based on sex, and this discrimination is 9 10 illegal under the Equal Pay Act. This is also a complaint for declaratory relief, and for benefits
11 and/or compensatory and punitive damages, penalties, fees, and costs, as applicable, under the

12 Washington State Law Against Discrimination (WLAD), for discrimination based on sex, and

13 sexual orientation; under Title VII of the federal anti-discrimination laws, for discrimination

14 based on sex; and under ERISA for ERISA benefits, declaratory relief, and fees and costs.

15

2. BNSF’s stated policy and reason for not paying the benefits is “marriage is

16 between one man and one woman” -- but BNSF does not get to judge what marriage is. That the
17 denial of equal pay is based on this BNSF policy only shows BNSF is discriminating based on
18

19 the sex of the employee.

20

3. The Halls and the Garrands sue to compel BNSF to provide Michael Hall and

21 Amie Garrand the spousal health care benefit and also to compel BNSF to provide this benefit to

22 all other employees similarly situated, i.e., BNSF engineers, conductors or other employees who

23 were married in other states with legal same sex marriage and who have been denied the benefit
24 based on the sex of the BNSF employee. The plaintiffs here also seek all damages and liquidated 25

26
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damages allowed under the statute, fees and costs, and injunctive relief to prevent future similar 1 2 violations of the Equal Pay Act. .

3

4. On information and belief, there are numerous or hundreds of other BNSF

4 employees or engineers or conductors in legal same sex marriages who are similarly situated and

5 who are being denied spousal health care benefits based on the sex of the employee in the states

6 where BNSF operates that have legal same sex marriage (Washington, Minnesota, Iowa, Illinois

7 and California, Illinois, and New Mexico) (or who had legal marriages in any state or
8 jurisdictions with same sex marriage and who work anywhere for BNSF).
9

10

PARTIES, JURISDICTION, VENUE

11

5. Plaintiff incorporates and re-alleges herein all other allegations of this complaint.

12

6. This case arises under 29 USC §206 and 216 and related sections and federal

13 question jurisdiction is present in this Court under 28 USC § 1331.

14

7. Michael Hall and Elijah Uber (also known as Elijah Hall and referred to herein as

15 Elijah Hall) are males residing in Pierce County, Washington who legally married in Washington
16 State on January 21, 2013. Amie Garrand and Carol Garrand are females who are residents of
17 Clark County, Washington who were legally married in Washington State on February 17, 2013.
18
19 Michael Hall and Amie Garrand are BNSF employees.

20

8. BNSF is a Delaware corporation doing business in Washington State and in

21 Seattle city limits and in this judicial District and is subject to personal jurisdiction here.

22 BNSF’s principal place of business in Washington State is in Seattle in King County where it has

23 offices. A BNSF supervisor told Michael Hall his fight for the benefits would be long and

24 bumpy (i.e., BNSF would deny the benefit) from the BNSF terminal where Hall works in Seattle
25 in King County, Washington.
26

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9. Venue is proper in the Western District of Washington under 28 USC § 1391 1 2 because plaintiffs reside in this district, a substantial part of the events or omissions giving rise to 3 the claim occurred in this district where BNSF management offices exist, and BNSF resides in

4 this judicial district since it does business here and has its principal place of business in the State

5 here, and has contacts here sufficient to subject it to personal jurisdiction if this district were a
6 separate State; and because this is the district with which BNSF has the most significant contacts 7
in this State, and its principal place of business, having its NW Division headquarters in Seattle, 8
in King County Washington. The Seattle court is also proper under the local rules because all 9 10 defendants reside here and have their principal place of business here and or a substantial part of
11 the events or omissions giving rise to the claim occurred here, including the Seattle terminal

12 supervisor’s call to Hall denying the benefit and promising a long and bumpy fight to get it.

13

KEY FACTS REGARDING THE HALLS

14

10. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.

15

11. BNSF is one of the larger railroads in the United States, moving goods by train on

16 a railway that comprises 32,000 miles of track in 28 States on which freight cars, locomotives
17 and trains are sent throughout the railway system from one location to another nationwide.
18

19

12. The entire BNSF railway constitutes one enterprise under the Equal Pay Act.

20

13. BNSF has some 13 divisions which are groupings of employees; the freight and

21 cars and trains go from division to division, but not the employees.

22

14. The NW Division includes the part of the railway in Northern California, Oregon,

23 Idaho, Washington, Idaho and Montana.

24

15. Michael Hall and Amie Garrand are employed in the NW Division.

25

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16. BNSF manages the employees in the NW Division out of its offices at 2454 1 2 Occidental Avenue South in Seattle, plus other management offices at 1000 Second Avenue suite 3 3700, Seattle, and terminal yards in Seattle, including the one where the supervisor called

4 Michael Hall, and BNSF has its principal place of business in the State of Washington in Seattle,

5 in King County Washington.

6

17. BNSF manages the entire railway train operation from Forth Worth, Texas.

7 Employees are managed out of the divisions.
8 18. Michael Hall was employed by BNSF starting in November 2010 and by 2013 he
9

10 was working as a locomotive engineer; he chose to work for BNSF in part due to its stated

11 antidiscrimination policy which bars discrimination based on sex and sexual orientation and

12 other things.

13

19. In 2013 Michael Hall worked in the Interbay Yard in Seattle and other BNSF

14 locations in Seattle, and also drove mile long trains on three-day runs, from Auburn over
15 Stampede Pass and through the Yakima Canyon to Pasco; the next day along the Columbia River 16
to Vancouver, Washington; and the next day north to Auburn or Seattle. 17
20. Typically Michael Hall’s trains included empties or grain or coal cars, or Z trains 18 19 which are high priority container double stack trains carrying semi-trailers with freight, like Fed
20 Ex or UPS freight, grain or coal; much of this freight arrived or was destined for the Port of

21 Seattle terminals in Seattle.

22

21. In 2013, and other recent years, BNSF has had married employees who were

23 opposite sex married; and, increasingly, some who were same-sex legally married as same=sex
24 marriage has become legal in certain states and jurisdictions. 25

26
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22. BNSF pays spousal health coverage throughout its enterprise where a male 1 2 employee is married to a female spouse and where a female employee is married to a male 3 spouse.

4

23. Starting in early 2013, Michael Hall repeatedly requested that BNSF cover

5 Elijah’s health care costs.

6

24. Michael Hall has provided documentation of marriage required by BNSF or its

7 authorized agent for health care benefits, United Healthcare.
8 25. BNSF has failed and refused to cover the health care costs of Michael Hall’s legal
9

10 spouse, Elijah Hall.

11

26. This failure to pay is based solely on the fact Michael is male.

12

27. If Michael Hall were female, married to a male, BNSF would pay him the spousal

13 health coverage benefits as it does to all employees who are female married to male spouses, or

14 males married to female spouses.

15

28. BNSF pays in its enterprise many female employees the health care benefits

16 concerning their male spouses, including many locomotive engineers who are female.
17 29. BNSF has directly and through its apparent and authorized agent United
18

19 Healthcare stated its reason for not covering Elijah is it has a “policy” that “marriage is one man,

20 one woman”; although Michael Hall and Elijah Hall have explained many times this definition of

21 marriage is not the law in Washington state, and Elijah is the spouse and husband of Michael

22 Hall, factually, and legally.

23

30. The one man/one woman definition of spouse used by BNSF to limit its liability

24 to cover spousal health benefits amounts to a BNSF policy to discriminate against Michael Hall 25

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simply because he is male; under this policy, if he were a female married to Elijah, the benefit 1 2 would be paid.

3

31. Early in 2013 Michael Hall provided certified copies of his marriage certificate

4 and other documentation to United Healthcare who explained to him he did not qualify for

5 spousal benefits because BNSF Railway says that marriage is between one man and one woman.

6

32. United Healthcare was possessed of actual and apparent authority to deal with

7 Michael Hall and other employees, for BNSF, on such coverage issues and to speak for BNSF as
8 to the reasons for denying coverage.
9

10

33. BNSF had directed Michael Hall and other employees to look to United

11 Healthcare for coverage questions, and payment of the benefits.

12

34. United Healthcare repeated to Michael or Elijah that BNSF policy is marriage is

13 one man and one woman, i.e., it was BNSF policy that required the servicer United Healthcare to

14 deny coverage to Michael Hall for his spouse Elijah.

15

35. In June 2013, a federal law called “Defense of Marriage Act” was struck down by

16 the US Supreme Court in United States v. Windsor, 570 U.S. __ (2013).
17 36. Michael and Elijah again sought the benefit; United Healthcare told Michael Hall
18

19 that BNSF tells them marriage is between one man and one woman; another employee of United

20 Healthcare told Michael Hall that he worked for the BNSF Railway, and cannot do anything

21 unless told by BNSF Railway to do so; Michael Hall then spoke to a supervisor at United

22 Healthcare called Christy but she never called back despite promising to do so.

23

37. In a later call United Healthcare referred the Halls to the BNSF law department.

24

38. They called the law department in Fort Worth, Texas, in June 2013.

25

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39. On June 26, 2013 the law department promised Elijah Hall they would look into it 1 2 and call back but it failed to do so. Elijah called the law department on June 27, 2013 and spoke 3 to a law department employee named Tina who cut off his explanation and request to be covered,

4 saying “we do it on our own time.” Elijah Hall told her coverage was legally required and she is

5 not above the law. Tina referred Elijah Hall to another female employee (name unknown), who

6 immediately said Hall had the “wrong number” when he mentioned same sex marriage. He

7 called back and got “Cathy” who put him off claiming she would take his number and call back.
8 No one called him back.
9

10

40. Elijah Hall called United Healthcare again, whose representative refused to give

11 her name, and who said marriage is between one man and one woman. Elijah Hall explained

12 that same sex legal marriage is valid and made him the legal spouse so coverage should be

13 provided. He asked where in the health care plan does it state marriage is one man, one woman.

14

41. The representative falsely said the plan so provides, but in fact the plan booklet

15 states any husband or wife is covered without limiting this to opposite-sex marriage. Copies of
16 relevant pages of the plan are attached hereto as Exhibit A.
17 42. The representative became rude and said that BNSF had sent them a memo after
18
19 the Supreme Court ruling overturning DOMA, and then said, “let me read it to you.” She began

20 reading a BNSF letter to United Healthcare directing United Healthcare to deny all spousal

21 benefits for all same sex marriages in all areas where BNSF operates and has employees.

22

43. Elijah Hall asked her name and she refused to give it, and though Hall got to talk

23 to a supervisor named Vanessa, she did not resolve the issue.

24

44. Michael Hall also called BNSF HR who refused to do anything.

25

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45. One BNSF HR representative on June 27, 2013 stated that BNSF was above the 1 2 law, because they did not have to follow the federal laws.

3

46. On July 8, 2013 at 10:24 AM, Elijah Hall sent an e-mail concerning the request to

4 be covered to BNSF upper management including Chairman/CEO Matthew K. Rose; President

5 and COO Carl Ice; Executive Vice President, Law and Secretary, Roger Nober; Kristen Smith;

6 Vice President and Chief Human Resources Officer Riz Chand; Vice President and General

7 Counsel Charles Shewmake; and Vice President and General Counsel, Regulatory Richard
8 Weicher. A true and correct copy of this e mail is attached as Exhibit B hereto.
9

10

47. Elijah Hall in this email protested the “ILLEGAL actions of BNSF Railway and

11 their refusal to provide LEGAL spousal benefits” to legally married same sex couples. He

12 stated, “BNSF Railway AND United Healthcare have discriminated us. . . .Their health guide

13 DOES NOT state that spouse is 1 man 1 woman, or someone of the opposite sex….couples in

14 state[s] that recognize same-sex marriage will now be able to receive the same benefits as

15 heterosexual couples . . . .Large businesses that operate in multiple states will have to keep
16 track of who lives under what jurisdiction. ”
17 48. Elijah Hall also said “I have dealt with enough pain and suffering, headaches, etc.
18
19 from their discrimination” and again requested coverage noting the legal marriage.

20

49. Elijah Hall had in fact had headaches and much pain and suffering due to the

21 discrimination, as did Michael Hall.

22

50. No one got back to Elijah Hall in response to the July 8 email to top BNSF

23 managers. 24

25

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51. Elijah Hall called United Healthcare July 8, 2013 and spoke to Cynthia Gray, who 1 2 said she could not talk because she was “busy.” When he explained that United had denied 3 coverage three times Gray hung up on him.

4

52. In July 2013, Elijah Hall asked Debbie Trabold of United Healthcare to provide

5 him with a copy of the letter in which BNSF told United Healthcare to deny spousal benefits to
6 same sex couples, but she refused to do so. 7
53. On July 10, 2013 both Michael and Elijah Hall called Pat Pitsch of BNSF 8
Railway HR and discussed their legal marriage, request for benefits and BNSF’s denial thereof. 9 10 In response, she said there was “nothing” BNSF could do and stated that BNSF law department
11 had said BNSF did not have to provide the coverage for same sex spouses.

12

54. She also said no change would be made until 2014, then changed that to 2015,

13 and did not resolve the issue.

14

55. On July 10, 2013 at 12:52 p.m., Elijah Hall again e mailed CEO Rose and the

15 other BNSF managers he contacted on July 8th, stating “SHAME SHAME SHAME on you,
16 BNSF Railway for allowing this discrimination and ILLEGAL actions to go on this long. For a
17 company that prides themselves for being a company built around diversity, and having a
18
19 diversity department, YOU SURE DO DISCRIMINATE!”

20

56. The e mail also stated “I spoke with Pat Pritsch, Director of BNSF Medical

21 Benefits, BNSF Railway, and she more or less stated that BNSF Railway was indeed above the

22 law.” A true and correct copy of this e mail is attached hereto as Exhibit C.

23

57. BNSF is not above the law.

24

58. On July 10, 2013 at 12:16 p.m. Michael called Marie Olson, Director of

25 Administration of Transportation for BNSF’s NW Division, and she called back at 2:16 p.m.
26

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from her personal cell phone at 406-390-0633; Michael discussed the issue, that he was being 1 2 discriminated against in the denial of coverage, and since Olson she was on the diversity council, 3 he wanted her to help him not be discriminated against. She said she would look into the issue.

4

59. On July 10, 2013, in the evening, a BNSF supervisor named Benjamin Marx, the

5 terminal manager in Seattle, Washington, called Michael Hall at his home while he was off duty,
6 which was highly unusual and Marx was not someone Michael dealt with normally. 7
60. Marx demanded to know if Michael Hall was making all these calls to everyone; 8
Hall told him he was worried he be fired; Marx using a threatening tone told Michael Hall that he 9 10 was “brave” to “take on” BNSF and that it was going to be a “long and bumpy battle.” Michael
11 and Elijah Hall felt intimidated by this threatening call but continued to seek coverage.

12

61. On July 15, 2013 at 12:00 p.m. Michael Hall called Marie Olson’s personal cell

13 and left a message; he got no call back, and called again on July 16, 2013 at 6:24 p.m. and left

14 her another message.

15

62. On July 17, 2013 at 5:01 p.m. Marie Olson called Michael Hall from her personal

16 cell, saying she had been too busy to get back to him; Michael Hall explained he was legally
17 married and his Elijah should be covered and that BNSF was refusing to cover this benefit
18

19 because it is a same sex marriage and they had been told the denial is because BNSF policy is

20 marriage is one man one woman; Michael Hall asked her as a member of diversity council in a

21 company with a nondiscrimination policy to solve the problem; and Olson said she was calling

22 after work, on her personal cell, “I’ve been advised not to talk to you because it could cost me

23 my job and my livelihood of working here”; and she said nothing could be done by the diversity
24 council. 25

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63. In July 2013 after being requested, United Healthcare sent Michael Hall a written 1 2 denial letter with a benefit booklet and pointed to the definition of eligible dependents in the 3 booklet.

4

64. As shown in Exhibit A, the booklet relied on by United Healthcare stated that a

5 “wife” or “husband” is covered and does exclude spouses in a legal same-sex marriage.

6

65. The BNSF policy to limit coverage to opposite sex marriages violates the plan’s

7 plain meaning: Elijah is Michael’s husband, and should be covered under the plan.
8 66. Michael Hall has appealed the denial of coverage to United Healthcare with
9

10 repeated pleas to end the discrimination and denial of coverage, but it and BNSF have failed to

11 properly respond, and have refused and failed to provide the coverage.

12

67. To this date BNSF has not responded to the July 8th and July 10th e mails sent to

13 CEO Rose or other upper management, unless the threatening call made by Marx is a response.

14

68. Elijah Hall has the human immunodeficiency virus, a slowly replicating retrovirus

15 that may cause acquired immunodeficiency syndrome.

16 69. On information and belief, defendant BNSF and United Healthcare know this.
17 70. Elijah Hall’s monthly medication costs are about $2,400.
18

19

71. BNSF’s gender based discrimination is forcing the Halls to lose benefits worth

20 $2,400 a month. Their economic damages grow monthly and are estimated at some $24,000 to

21 date.

22

72. The gender based discrimination also causes the Halls emotional distress which

23 could adversely affect Elijah Hall’s medical condition which also causes great emotional distress

24 for the legally married couple.
25 KEY FACTS REGARDING THE GARRANDS
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73. Amie Garrand has been employed at BNSF for about 12.5 years. She has been 1 2 an engineer and is currently a conductor. She is in the NW Division which is operated out of 3 Seattle in King County.

4

74. Amie Garrand has several times requested that BNSF or United Healthcare cover

5 the health care costs of her spouse, Carol Garrand, including costs the couple incurred relating to

6 birth of a son by Carol after the marriage in 2013. BNSF has failed and refused to cover the

7 spousal health care costs, including through communications from United Healthcare, citing its
8 policy that marriage is one man one woman.
9

10

75. This is discrimination based on Amie’s sex as BNSF provides spousal health care

11 coverage to male conductors or employees who are married to females and here is not providing

12 the spousal benefit to Amie Garrand because she is female and not male.

13

76. Amie Garrand called the BNSF Hotline, Legal Department and HR on June 26

14 and 28, 2013, seeking coverage for her spouse Carol and protesting the discriminatory refusal to

15 cover her spouse and got no positive response.
16 77. On June 28, 2013, Garrand spoke with BNSF Human Resources representative
17 Ray Scott, who said they know about the issue and their lawyers were looking into it. This did
18
19 not resolve anything.

20

78. On July 9, 2013 at 2:22 p.m. she called United Healthcare and again asked to add

21 her wife Carol to the health plan and the representative told her no, because BNSF does not

22 recognize same-sex marriage.

23

79. On July 18, 2013 Amie Garrand called an employee named Katrina with BNSF

24 who would not recognize her wife Carol or provide the coverage. 25

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80. On July 19, 2013at 3:30 p.m. Amie Garrand called an employee named Monica 1 2 at United Healthcare, who denied the coverage saying the benefit book states same sex marriage 3 does not qualify as a dependent.

4

81. This was untrue; the benefit book or plan states “Your wife” is covered and does

5 not state “wife” excludes a same-sex wife.

6

82. Monica then said BNSF won’t let United Healthcare add Carol Garrand so Amie

7 Garrand then talked with Felicia in the resolution department, who said she would send a denial
8 of benefits letter.
9

10

83. On July 29, 2013 at 11:50 am Amie Garrand called BNSF Human Resources and

11 spoke with Bob Apetz, who said BNSF would not cover a same-sex-married wife; Apetz was

12 hostile and rude.

13

83. Amie Garrand asked for his supervisor and left a message for supervisor Pat

14 Pitsch who called Garrand July 31, 2013 at 2:25 p.m., saying BNSF would not provide the

15 coverage and would not even consider coverage until 2015; Garrand told her this was blatant

16 discrimination, and that the policy to not cover spouses was illegal; Pitsch said BNSF could do
17 nothing.
18

19

84. In July 2013 Amie Garrand asked her own terminal superintendent, Chris

20 Delargey, to look into the issue and one month later he said he had no information for her; she

21 protested the discrimination saying it would be “easier for me to get a sex change operation” than

22 it would be for her to get the spousal benefit for her legal wife under the BNSF policy of not

23 recognizing same sex marriage. 24

25

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85. On August 29, 2013 Amie Garrand called United Healthcare to put her spouse 1 2 Carol on the insurance, and they again refused saying BNSF does not recognize same-sex 3 marriage spouses, as dependents.

4

86. On September 23, 2013 at 2:57 p.m. Amie Garrand called United Healthcare,

5 citing new Department of Labor guidelines covered same-sex marriages and saying hers should
6 be regarded just like any other marriage; the representative again refused to add the spouse. 7
87. On September 23, 2013 at 3:58 p.m. Amie Garrand called Pat Pitsch with BNSF 8
Human Resources and left a message regarding the new DOL guidelines noting recognition of 9 10 legal same-sex marriages. Pitsch called back on September 24, 2013 at 7:22 a.m. and left a
11 message saying those rules did not apply to BNSF.

12

88. On September 29, 2013at 11:43 a.m. Amie Garrand called United Healthcare to

13 add her new infant son to coverage and her wife, Carol. They added the infant son but refused to

14 cover Carol saying again BNSF only recognizes marriage as one man one woman.

15

89. On September 30, 2013 Amie Garrand called United Healthcare seeking to add

16 the spouse and again was refused. On November 4, 2013, she called again, asking to add the
17 spouse, and was again refused. On November 21, 2013 at 4:55 p.m. Garrand again called United
18

19 Healthcare and spoke with an employee named Monica who said she remembered the last time

20 Garrand spoke with her. Garrand asked to add the wife and Monica said “no,” nothing had

21 changed, and she was not allowed to add the spouse because it is a same-sex marriage.

22

90. The letter United Healthcare sent to Amie Garrand quoted the benefits plan but

23 the portion quoted stated that the booklet’s page 16 describing “eligible dependents” includes

24 “Your wife or husband.” This language includes Amie’s wife, Carol. There was no language in
25 the benefits booklet excluding same sex wives or husbands.
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91. BNSF is denying coverage for Carol Garrand because Amie Garrand is female; if 1 2 Amie were male, BNSF would provide the coverage -- as it does to many thousands of male 3 employees with female spouses.

4

92. At times BNSF or United Healthcare told Garrand that a collective bargaining

5 agreement forces them to deny coverage for Carol Garrand. This was not true factually or

6 legally. The benefits plan said “Your wife or husband” is an eligible dependent and in any event
7 excluding same-sex spouses is illegal pay discrimination based on the sex of the employee.
8 Union contracts are not a legal way to excuse or justify discrimination.
9
10 SUPPLEMENTAL FACTS AFTER DEC. 3, 2013 AND OTHER KEY FACTS

11

92.1 Following the filing of this complaint in federal court on December 3, 2013,

12 BNSF sent or caused to be sent the Halls and on information and belief, all employees, a

13 document dated and sent December 23, 2013. The document stated as follows: “Effective

14 January 1, 2014 the Plans that are listed below will provide dependent coverage to covered
15 railroad employees’ same-sex spouses. This is not a benefit that is required by law or under the 16
collective bargaining agreements currently in effect, but the Plan Administrators, listed below, 17
have determined to voluntarily provide this benefit in light of recent changes in the law that 18 19 allow married same-sex couples to access the same Federal tax benefits provided to married
20 opposite-sex couples.” The latter stated the change applied to the Railroad Employees National

21 Health and Welfare Plan, a plan covering the plaintiffs, herein, with the administrator thereof

22 being the Joint Plan committee.

23

92.2 At the same time the Halls received a health coverage card listing Elijah T. Hall

24 as a covered dependent and since January 1, Eli Hall’s health care coverage has been provided
25 by the plan. The Garrands received similar treatment.
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92.3 Also on December 23, 2013, United Health Care sent the Halls a letter responding 1 2 to one of his several appeal letters regarding adding “your husband to your medical insurance 3 policy.” The letter went on to state that United had considered all the supporting information

4 received, but “UnitedHealthcare has no jurisdiction over who can be added to your policy. We

5 provide administrative and claim payment services only. All issues related to who may or not
6 [sic] be added to your policy are made entirely by your employer. [This referred to BNSF.] We 7
apologize if our previous responses were inadequate and/or incorrect. An actual appeal with the 8
Central Escalation Unit [of United] cannot be conducted on a member who is not on your policy. 9 10 The issue regarding adding your husband to your policy can only be handled by your employer.
11 Our records indicate that as of January 1, 2014, your husband Elijah Hall is a covered dependent

12 on your plan. Please accept our sincere apology for your frustration as we worked to resolve

13 your issue.” The letter went on to note that “Coverage is subject to the exclusions, limitations

14 and other terms of your Summary Plan Description” and “You have the right to file civil action
15 under section 502(a) of ERISA after you have exhausted all of your appeal rights.” In effect, this 16
letter amounted to denial of appeal avenues at United, for the Halls and Garrands. 17
92. 4 On information and belief, the United Healthcare letter quoted above accurately 18 19 stated that the employer, BNSF, was in charge of making the decision regarding whether or not a
20 same sex spouse including Eli Hall or Carol Garrand was to be covered under the terms of the

21 plan; and as a result, on information and belief, BNSF is acting as the plan administrator or

22 fiduciary and has denied coverage to plaintiffs.

23

92.5 Besides changing the practice to cover Eli starting January 1, 2014, BNSF also

24 changed its practice to cover Carol Garrand and on information and belief, other same sex
25 couples; but BNSF still has not covered them for the period up to January 1, 2014, and has on
26

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information and belief told the plan to not cover the same sex spouses’ health care costs for prior 1 2 to January 2014. Although the same sex couples are being covered in a de facto sense, at 3 present, this comes with the statement that this is not a legal requirement and this practice can

4 change at BNSF’s whim and leaves plaintiffs insecure and without a solid benefit as a matter of

5 right. BNSF and its agent United Health Care could revoke what they claim to provide now as a

6 matter of grace, but not right; this renders the benefit insecure and constitutes ongoing
7 discrimination and denial of equal pay based on sex and sexual orientation and causes plaintiffs
8 to have distress and uncertainty. Benefits provided as a matter of grace are not secure and may
9
10 perhaps be withdrawn just when a large health care cost is incurred.

11

92.6 There remains a failure and refusal to pay the spousal benefit to plaintiffs the

12 Halls and Garrands for medical costs occurring up to January 1, 2014 and ongoing and future

13 denial of paying the benefit in a secure fashion as a matter of obligation, not grace.

14

92.7 On information and belief, despite the de facto change in practice, BNSF is still

15 taking the legal position the spousal benefit need not be provided legally and there is an ongoing

16 present controversy between the plaintiffs and others similarly situated, and BNSF, concerning
17 whether this benefit is legally required.
18

19

92.8 On or about July 18, 2013, the Halls had complained to the Washington State

20 Human Rights Commission about denial of the spousal benefit regarding Eli’s health care costs;

21 and this triggered an Equal Employment Opportunity complaint or case to be opened as well.

22

92.9. On February 26, 2014, the EEOC issued its right to sue letter to the Halls,

23 providing them a 90 day window in which to sue BNSF under Title VII and their claim under the

24 federal anti-discrimination laws became ripe and actionable. By suing under Title VII in this
25 first amended complaint, the Halls’ Title VII claim is ripe and timely.
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1

2

CAUSES OF ACTION

3

FIRST CAUSE OF ACTION: FEDERAL EQUAL PAY ACT CLAIMS

4

93. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.

5

94. The denial of equal pay in the form of spousal health care benefits which BNSF

6 was not paying or causing to be paid to Michael Hall respecting his husband Elijah based on
7 Michael’s sex violates the Equal Pay Act, 29 USC §206(d)(1). The denial of equal pay in the
8 form of spousal health care benefits which BNSF was not paying or causing to be paid to Amie
9
10 Garrand regarding her wife Carol based on Amie’s sex violates the Equal Pay Act, 29 USC

11 §206(d)(1).

12

95. BNSF is an employer within the meaning of the Act, with employees within the

13 meaning of the Act, including engineers or conductors such as Hall and Garrand. It has female

14 engineers and conductors married to males for whom BNSF provides the benefit and male
15 engineers and conductors married to females to whom BNSF provides the benefit. 16
96. BNSF was and is an establishment directly engaged in interstate or 17
foreign commerce or production of goods including handling goods and has and has had 18 19 employees such as Hall and Garrand directly engaged in interstate and foreign commerce
20 and handling or production of goods moving in interstate or foreign commerce.

21

97. BNSF, Hall and Garrand and other engineers at BNSF directly use

22 instrumentalities of interstate commerce and were engaged directly in interstate

23 commerce, i.e., driving or moving trains across parts the national BNSF railway in

24 Washington State, containing goods or trains or cars sent from or to various States or
25 nations, in a flow of interstate and international commerce.
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98. BNSF employed Hall and also female engineers or conductors or 1 2 employees in an establishment in jobs requiring substantially equal skill, effort and 3 responsibility and performed under similar working conditions, surroundings and

4 hazards. BNSF employed Garrand and also male engineers and conductors or employees

5 in an establishment in jobs requiring substantially equal skill, effort and responsibility

6 and performed under similar working conditions, surroundings and hazards.

7 99. The establishment is the entire 28-State BNSF railway (or, alternatively is
8 the NW Division or subdivisions or yards where Michael Hall or Amie Garrand work).
9

10

100. In said establishment(s), BNSF discriminated between plaintiff Michael

11 Hall, a male, and other employees who were female, who performed equal work on jobs

12 requiring equal skill, effort and responsibility and which are performed under similar

13 working conditions, by paying said females married to males spousal health benefits

14 while not paying males married to males the same benefit, including Hall. In said
15 establishment(s), BNSF discriminated between plaintiff Amie Garrand, a female, and 16
other employees who were male, who performed equal work on jobs requiring equal 17
skill, effort and responsibility and which are performed under similar working 18 19 conditions, by paying said males married to females spousal health benefits while not
20 paying females married to females the same benefit, including Amie Garrand. The

21 ongoing denial that they are entitled as a matter of right to the benefit is also ongoing

22 denial of equal pay in that the benefit is not secure.

23

101. Nationwide BNSF has thousands of engineers or conductors. The NW

24 Division has some 800 engineers and the Auburn Triangle route has some 35 engineers
25 and 35 conductors or 70 trainmen. In each part of the Railway, there are female
26

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employees who are married to males, and who receive spousal health coverage; and male 1 2 employees married to females who receive spousal health coverage; while BNSF denies 3 the same benefit to males married to males, like the Halls, or females married to females,

4 like the Garrands.

5

102. This discrimination in pay rates or benefits was pursuant to BNSF policy and

6 direction; was repeatedly ratified by BNSF, including its law and HR departments; and was not
7 justified by any seniority or merit system, or system which measures earnings by quantity or
8 quality of production; or a differential based on any other factor other than sex. The letters dated
9
10 Dec. 23, 2013 from BNSF and United Health care confirm and state correctly that BNSF itself

11 decided to make the discrimination based on sex complained of herein. The policy of “marriage

12 is one man one woman” is not a distinction based on seniority or merit systems, or a system

13 which measures earnings by quantity or quality of production; and is a differential based on the

14 sex of the employee vis-a-vis his or her spouse.

15

103. BNSF policy would be to pay the benefit to Michael Hall if he were female, not

16 male; and it would be to pay the benefit to Amie Garrand if she were male and not female. The
17 discrimination was and is based on sex.
18

19

104. Said discrimination and unequal pay caused and proximately caused plaintiffs to

20 suffer legal damages including economic loss, and emotional distress and pain and suffering.

21 The economic loss of the Halls is estimated at $2,400 per month or some $24,000 to the end of

22 2013; the economic loss to the Garrands is estimated as the cost of the birth of Carol and Amie’s

23 son, estimated as thousands of dollars to the end of 2013. Amounts will be proven at trial.

24

105. The benefits not paid to plaintiffs are “wages” under the Equal Pay Act and 29

25 CFR § 1620.10 and 1620.11.
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106. The discrimination by BNSF complained of herein violates the Equal Pay Act 1 2 §206(d)(1), §215(a)(1) and (2) and §216(b). The ongoing refusal to recognize the benefit as 3 legally required constitutes and ongoing threat of violation of the EPA.

4

107. The discrimination by BNSF complained of herein violates 29 CFR § 1620.11(b)

5 providing “It is unlawful for an employer to discriminate between men and women performing

6 equal work with regard to fringe benefits”; and subsection (d), providing that “It is unlawful for
7 an employer to make available benefits for the spouses or families of employees of one gender
8 where the same benefits are not made available for the spouses or families of opposite gender
9
10 employees.”

11

108. BNSF is liable to Hall and Garrand in the amount of the unpaid benefits, plus “an

12 additional equal amount as liquidated damages,” and reasonable attorneys’ fees, and costs of the

13 action, under 29 USC § 216(b). Plaintiffs also are entitled to a declaratory judgment under the

14 EPA that providing the same sex spousal health care benefit is required under that law such that

15 its position taken in the Dec. 23, 2013 letter is incorrect legally; this will make the benefit secure

16 and make it a real benefit, not something given as a matter of grace, or changeable policy by
17 BNSF.
18

19

109. BNSF is also liable to the same extent to other employees in its establishment

20 who are similarly situated and suffer similar discrimination and who consent to be plaintiffs in

21 this action. This includes similarly situated engineers or conductors, or other employees of

22 BNSF, who were married legally in same sex marriages who are denied the benefit based on the

23 one man one woman policy.

24

110. On information and belief, this group may include hundreds or thousands of

25 same-sex-married BNSF employees who are being denied equal pay for equal work via the
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denial of the spousal health care benefits based on the sex of the BNSF employee vis-à-vis the 1 2 sex of his or her legally married spouse.

3

111. The suit under the Equal Pay Act is ripe now and plaintiffs sued under that Act

4 because those claims were ripe last December. Although the Dec. 23, 2013 letter stopped certain

5 damages from accruing going forward as of January 1, 2014 it did not remedy or pay plaintiffs

6 for the past discrimination occurring in 2013, and the position the benefits are not legally
7 required constitutes an ongoing present controversy between the parties as to whether the benefit
8 is legally required under the Equal Pay Act and further amounts to a threat of denial of the
9
10 benefits at BNSF’s discretion which is unequal pay itself and continuing discrimination.

11

SECOND CAUSE OF ACTION:

12

DISPARATE TREATMENT UNDER TITLE VII

13

112. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.

14

113. This action under Title VII is allowed under 42 USC §2000e-5(f)(1) allowing a

15 civil action to remedy an unlawful practice in employment under Title VII within 90 days after
16 notice by the EEOC of the right to sue and plaintiff Michael Hall seeks declaratory and
17 injunctive relief, backpay of the benefit and compensatory damages under this section. The Title
18
19 VII claim is timely under the 90 day window. Jurisdiction and venue are appropriate in this

20 Court under 42 USC §2000-e-5(f)(3), providing jurisdiction to hear Title VII civil actions in each

21 United State district court, and because this is the judicial district in the State in which the

22 unlawful employer practice occurred. BNSF has over 14 employees each work day in 20 or

23 more weeks in the current year or preceding year prior to the unlawful acts described herein, and

24 is an employer under 42 USC §2000e-2b. BNSF also has had more than 500 employees in each
25 of the work days in 20 or more weeks in the current or preceding year under 42 USC §1981a.
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1

2

114. 42 U.S.C. § 2000e et seq., provides that “[i]t shall be an unlawful employment

3 practice ... to discriminate against any individual with respect to his compensation, terms,

4 conditions, or privileges of employment because of ... sex[.]” BNSF’s denial of spousal health

5 care benefits to the same sex married persons it employs including Michael Hall violates the
6 above mentioned section because the spousal health benefit is part of compensation and is a 7
material part of the terms and conditions of employment; and the denial of the benefit is because 8
of Michael Hall’s sex. Michael Hall is a male properly performing his job, who experienced 9 10 adverse employment action in the denial of the spousal health benefit, due to his sex, where
11 similarly situated females were treated more favorably by getting the benefit. If Michael Hall

12 were female, the benefit would be provided; BNSF provides it to female employees who are

13 married to males but denied it to Hall who is married to a male. BNSF is using a forbidden

14 criterion, sex, to deny a material benefit to Michael Hall as a matter of policy. The denial here is

15 also violative of Title VII because it is based on gender nonconforming conduct. BNSF had the
16 specific intent to discriminate based on sex under its declared facially discriminatory policy --
17 marriage is between one man and one woman. BNSF’s discrimination was also malicious,
18
19 reckless or oppressive.

20

115. While BNSF ordered that the benefit be provided starting January 1, 2014 this

21 effort to mitigate its damages for its violation of Title VII did not remedy the discrimination

22 occurring prior to that date. The ongoing position that the benefit is not legally required also

23 constitutes continued and ongoing discrimination based on sex. A benefit that is not legally

24 required is not the same as a benefit that is legally required.
25 116. The discrimination caused Hall to proximately suffer damages.
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117. The statement on Dec. 23, 2013 that the benefit is not legally required creates an 1 2 ongoing present controversy between Hall and BNSF about whether Title VII allows denial of 3 this benefit based on sex.

4

118. Plaintiff Michael Hall is entitled to compensatory and punitive damages, fees and

5 costs for the violation of 42 USC §2000e et seq. and also to a declaration under Title VII that
6 BNSF is legally required to provide the benefit. Under this section plaintiff Hall seeks all 7
compensatory and punitive damages available including front pay, emotional distress and other 8
damages, to the maximum extent allowed in this section. Plaintiffs allege that the unlawful 9 10 practices engaged in by BNSF were engaged in intentionally, and with malice or with reckless
11 indifference to the federally protected rights within the meaning of 42 USC §1981a(b). Plaintiff

12 Hall also seeks fees and costs under 42 USC §2000e-5(k).

13

THIRD CAUSE OF ACTION:

14

DISPARATE TREATMENT DISCRIMINATION UNDER WLAD

15

16

119. Plaintiffs incorporate and re-allege herein all other allegations of this complaint.

17

120. RCW 49.60.030(1) recognizes the “right to be free from discrimination because

18 of” sex and or sexual orientation and this right includes (a) “the right to obtain and hold

19 employment without discrimination.” Subsection (2) of this section provides a civil remedy for

20 violations of this right including an order to “enjoin further violations, or to recover the actual

21 damages sustained by the person, or both, together with the cost of suit including reasonable

22 attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States

23 Civil Rights Act of 1964 as amended.” RCW 49.60.180(3) further specifies that it is an unfair

24 practice for any employer “[t]o discriminate against any person in compensation or in other

25

26
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1 terms or conditions of employment because of age, sex, marital status, sexual orientation, race,”

2 and other protected statuses. This law applies to BNSF as it is an employer under the WLAD.

3

121. BNSF denied Michael Hall and Amie Garrand the spousal health care benefit for

4 the period ending January 1, 2014. This violated the foregoing sections of the WLAD. The

5 denial was based on sex, and also on sexual orientation. The benefit would have been provided

6 to Michael Hall but for his sex. The benefit would have been provided to Amie Garrand but for

7 her sex. In each case others similarly situated of the opposite sex were paid the benefit. Michael

8 Hall is a gay man and Amie Garrand is a lesbian woman and the spousal benefits were also

9 denied to each due to their sexual orientation; BNSF stated, “marriage is one man, one woman.”

10 If each were of the opposite gender they would not have been denied the benefit; if each were

11 heterosexual and not homosexual, they would not have been denied the benefit.

12 In respect to each plaintiff employed by BNSF there was disparate treatment based on sex, and

13 sexual orientation. As of January 1, 2014, the position that the benefit is not legally required

14 constitutes ongoing discrimination based on sex, and sexual orientation.

15

122. Said discrimination is disparate treatment based on sex, and sexual orientation

16 under the WLAD and caused and proximately caused and is causing damage to Michael Hall and

17 Amie Garrand. The ongoing claim that the disparate treatment is legally permissible constitutes

18 ongoing discrimination which causes damages to plaintiffs. proximately This also creates a

19 present controversy of importance between plaintiffs and BNSF. Plaintiffs Michael Hall and

20 Amie Garrand are entitled to recover compensatory and punitive damages, fees and costs under

21 the WLAD, and to a declaratory judgment that BNSF must pay the benefit, legally and not as a

22 matter of grace, and its past and present and ongoing position that the benefit legally need not be

23 paid, violates the WLAD and the civil right to be free of discrimination based on sex, and sexual

24 orientation.

25 FIFTH CAUSE OF ACTION: ERISA CLAIMS
26

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123. Plaintiffs incorporate and re-allege herein all other allegations of this complaint. 1

2

124. The Employee Retirement Income Security Act 29, USC § 1132(a)(1) and (3)

3 provides that a participant or beneficiary of a employee benefit plan may sue “to recover benefits

4 due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to

5 clarify his rights to future benefits under the terms of the plan” or to obtain an order or judgment
6 to enjoin any act or practice which violates any provision of ERISA or the plan or other 7
appropriate equitable relief to redress such violations or enforce provisions of ERISA or terms of 8
the plan. 9

10

125. The 2013 denial of the spousal health benefit to plan participant Michael Hall and

11 beneficiary Elijah Hall and to plan participant Amie Garrand and beneficiary Carol Garrand

12 violated the terms of the plan which provided that the benefit was to be paid to the employee’s

13 “wife or husband.” This violates ERISA. The denial of benefits was deliberate, intentional and

14 malicious and constitutes an abuse of discretion or was an arbitrary and capricious denial of

15 rights under the plan. The ongoing position that the benefit need not legally be paid constitutes

16 an ongoing violation of the plan and ERISA.

17

126. The plan is a separate legal entity, see 29 USC 132(d)(1), but on information and

18 belief BNSF caused the denial of benefits and violation of the terms of the plan and/or is acting

19 as the administrator or fiduciary operating the plan responsible for such denials. BNSF may be

20 sued directly in its individual capacity with a money judgment to be entered against it rather than

21 the plan, under 29 USC §1132(d)(2).

22

127. Jurisdiction and venue are proper in this Court. 29 USC 1132(e)(1) provides the

23 district courts of the United States with exclusive jurisdiction of civil actions under ERISA by a

24 plan participant or beneficiary. 20 USC § 1132(e)(2) provides such actions may be brought in

25 the “district where the plan is administered, where the breach took place, or where a defendant

26
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1 resides or may be found, and process may be served in any other district where a defendant

2 resides or may be found.” On information and belief, the Western District of Washington is a

3 district where the breach took place, or where BNSF resides or may be found.

4

128. The Halls appealed the denial of ERISA benefits repeatedly to United. The

5 December 23, 2013 letters from United amounted to a final denial of any internal appeals the

6 Halls had. In the United letter, they were told no appeal in fact ever could have been made to

7 United or the plan as the matter was in the hands of BNSF. The Halls have exhausted any

8 remedies or BNSF has acted to make them pointless. Amie Garrand is a participant and Carol

9 Garrand is a beneficiary. The Garrands received the same letter the Halls received from BNSF.

10 The Garrands are in the same position as the Halls; they were told by United they would not get

11 the benefit, and now they received the same letters in December 2013 the Halls got. Any appeal

12 to the plan by them is futile or pointless as the matter is in hands of BNSF which has made its

13 general decision about these benefits, and United is indicating it will not hear any appeal. The

14 Garrands have exhausted any remedies or are excused from doing so.

15

130. Plaintiffs were proximately damaged by the denial of benefits in violation of the

16 plan. While BNSF is paying the benefits going forward post January 1, 2014, this does not

17 remedy the past denial of benefits. Also, the BNSF position that they are not legally required

18 creates an ongoing threat of denial of benefits which is a present denial of the certainty of the

19 benefit being paid in the future which violates the plan. It also creates dispute between plaintiffs

20 and BNSF concerning the plan as to which a declaration of rights is appropriate.

21

131. Plaintiffs are entitled under ERISA to an order awarding them the unpaid benefits

22 they should have been paid for 2013 health care costs; award of costs and attorneys fees for this

23 action; and an order declaring that under the plan the spousal health benefit is legally required

24 under the plan to same sex couples legally married, and enjoining BNSF to not deny the benefit

25

26
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1 in the future, to cease the legal position the benefit is not required and to cease directing the plan

2 in this regard or cease interfering in the plan’s provision of such benefits.

3

4

5

6

PRAYER FOR RELIEF

7

NOW, THEREFORE, plaintiffs pray for the following relief:

8

1. For a judgment in an amount for actual and liquidated damages, to be proven at

9 the time of trial; plus costs, attorneys’ fees, pre and post judgment interest, and any punitive
10 damages as allowed by law;
11

12

2. For a judgment and order enjoining defendant from continuing the

13 discrimination and denial of plan benefits complained of herein, and decreeing BNSF shall pay

14 the benefit sought herein to any legal wife or any legal husband, regardless of the sex of the

15 BNSF employee or his or her sexual orientation or status as same sex married; and BNSF shall

16 direct and cause the plan to pay said benefits as a matter of right, and cease interfering with

17 payment of said benefits, and

18 3. For such other relief as the Court may deem equitable and proper.
19 DATED this 26th day of March 2014.
20

21

CLEVELAND STOCKMEYER PLLC

22

By:___/s/ Cleveland Stockmeyer _____

23

Cleveland Stockmeyer WSBA # 21636

8056 Sunnyside Ave. N

24

Seattle, WA 98103

(206) 419-4385

25

Email: cleve@clevelandstockmeyer.com

Attorney for Plaintiffs 26

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Case 2:13-cv-02160-RSM Document 8 Filed 03/26/14 Page 30 of 31

1

2

BADGLEY MULLINS TURNER PLLC

3

By: s/ Duncan C. Turner

Duncan C. Turner, WSBA # 20597

4

4750 Columbia Center

5

701 Fifth Avenue

Seattle, Washington, 98104

6

Telephone: (206) 621-6566

7

Email: duncanturner@badgleymullins.com

8

Attorney for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

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21

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23

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Case 2:13-cv-02160-RSM Document 8 Filed 03/26/14 Page 31 of 31

1

DECLARATION OF SERVICE

2

3

LISALOU GOGAL states and declares under penalty of perjury as follows:

4

I hereby certify that on this day, I served the foregoing on the defendant, by mailing to its

5 registered agents for service of process by depositing same in the US mail, postage prepaid,

6 addressed to: 7

8 CT Corporation

9

505 Union Ave. SE Suite 120

Olympia, WA 98501

10

11

12 I declare under penalty of perjury that the foregoing is true and correct.
13

14 EXECUTED on this __26___ day of March, 2014, at Seattle, King County, Washington.

15

16

____/s/ LisaLou Gogal_________ LisaLou Gogal

17

18

19

20

21

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FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 31

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 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8

)

MICHAEL HALL, and ELIJAH UBER 9 a/k/a Elijah Hall, and their marital

) CASE NO. C13-2160 RSM )

10 community; and AMIE GARRAND and )

CAROL GARRAND and their marital

) ORDER DENYING IN PART AND

11 community,

) GRANTING IN PART DEFENDANT’S

12 Plaintiffs,

) MOTION TO DISMISS )

13

)

v.

)

14

)

15 BNSF RAILWAY COMPANY, a

)

Delaware Corporation,

)

16

)

Defendant.

)

17

18

I. INTRODUCTION

19

This m atter com es before the Court on De fendant’s Motion to Dism iss under Federal

20
Rules of Civil Procedure 12(b )(6) and/or 12(b)(1). (Dkt. #16). Defe ndant argues that,
21
accepting all factual allegation s as true, Plainti ffs’ claims fail on the merits for a num ber of
22

23 reasons, but prim arily because federal law does not provide protection against discrimination

24 on the basis of sexual orientat ion. Plaintiffs respond that Defendant has m isconstrued and
25
mischaracterized th eir claim s, and they ha ve dem onstrated on the face of the Am ended
26
Complaint that they have valid federal and st ate claim s based on sex discrim ination. Dkt .
27
28 #20. Am icus curiae Lam bda Legal Defense joins Plaintiffs’ opposition to the motion

ORDER PAGE - 1

pertaining to the Title VII and EPA claim s f or sim ilar re asons. For the reason s set f orth
1
2 below, the Court agree s in par t with Plai ntiffs and DENI ES IN PART and GRANTS IN

3 PART Defendant’s motion to dismiss.

4

II. BACKGROUND

5
BNSF Northwest Divis ion employees Michael Hall and A mie Garrand lega lly married
6

their respective same-sex partners in Washington State in 2013. Collectively, Mr. Hall and Ms.
7

8 Garrand and their spouses are the Plaintiffs in th is matter. When Mr. Hall m arried his partner,

9 Elijah Uber, he (Hall) s ought health benefits for him (Uber) under his employer’s h ealth plan.
10
Defendant denied coverage on th e basis that its p lan defined marriage as between one m an and
11
one woman and therefore provided coverage only for spouses of the opposite sex. After getting
12
13 married, Am ie Garrand sought health care covera ge for her partner, Carol Garrand, as well.
14 Defendant denied coverage for Carol for the same reasons. Defendant has since voluntarily

15 provided coverage for sam e-sex spouses, effect ive January 1, 2014, and Pl aintiffs do not deny

16
that they have received health benefits since that date.
17
Plaintiffs now assert claim s under the Equal Pay Act (“EPA”), the Em
18

ployment

19 Retirement Incom e Security Act (“ ERISA”), and W ashington’s Law Against Dis crimination

20 (“WLAD”) based on Defendant’s fa ilure to cover same sex spouses in the time period between

21 the dates of their m arriage and January of 2014. Dkt. #8. Defenda nt Michael Hall also asserts
22
a claim under Title VII of the Civil Rights Ac t of 1964 (“Title VII”) on the basis of sex
23
discrimination.1 Id. On this motion, Defendant seeks to dismiss the Amended Complaint in its
24
25 entirety.

26

27 1 Amie Garrand has not asserted such a claim only because she has not yet received a right-to28 sue le tter f rom the EEOC, but sta tes that she m ay assert such a claim once that letter is
provided. Dkt. #20 at 2, fn. 1.
ORDER PAGE - 2

III. DISCUSSION
1

2

A. Standards of Review

3

1. Motion to Dismiss for Failure to State a Claim Under Rule 12(b)(6)

4

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

5
12(b)(6), all allegations of m aterial fact m ust be accepted as true and construed in the ligh t
6

most favorable to the nonm oving party. Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337-38
7

8 (9th Cir. 19 96). However, th e cou rt is no t re quired to accept as tru e a “legal conclusion

9 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
10
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Com plaint “must contain sufficient factual
11
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This
12
13 requirement is met when the Plain tiff “pleads fact ual content that allows the court to draw the
14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. Absent facial

15 plausibility, Plaintiff’s claim must be dismissed. Twombly, 550 U.S. at 570.
16
Thought the Court limits its Rule 12(b)(6) review to allegations of material fact set forth
17
in the complaint, the Court may consider documents for which it has taken judicial notice. See
18
19 F.R.E. 201; Swartz v. KPMG LLP , 476 F.3d 756, 763 (9th Cir. 2007 ). Here, the Court has

20 taken judicial notice of and considers herein Defendant’s Summary Plan Description (“SPD”)

21 and other documents attached to or referenced in the Am ended Complaint. Dkts. #8, Ex. 1 and
22
#17, Exs. 1-4. The Cour t may properly take judici al notice of docum ents such as these whose
23
authenticity is not con tested and which Plainti ffs have relied on in their Am ended Complaint.2
24
25 Swartz, 476 F.3d at 763; Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal

26 quotations and alterations omitted).
27 2 The Court also considers the Declaration of A. Kenneth Gradia and the Exhibits thereto to the 28 extent they provide jurisdictional evidence in support of Defendant’s 12(b)(1) motion. Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
ORDER PAGE - 3

2. Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
1

2

Federal courts are courts of limited jurisdiction. Gunn v. Minton, __ U.S. __, 133 S. Ct.

3 1059, 1064 (2013) (citation om itted). As such, this Court is to presu me “that a cause lies

4 outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
5
asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am ., 511 U.S. 375, 377, 114 S.
6
Ct. 1673 (1994) (citations omitted); see also Robinson v. United States , 586 F.3d 683, 685 (9th
7
8 Cir. 2009); Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). A Rule

9 12(b)(1) m otion to dism iss for lack of subject matter ju risdiction m ay be eithe r “f acial” o r
10
“factual.” See Safe Air for Ever yone, 373 F.3d at 1039. A facial attack on subject m atter
11
jurisdiction is based on the asse rtion that th e allega tions contained in the complain t a re
12
13 insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the

14 challenger disputes the truth of the allegatio ns that, by them selves, would otherwise invoke

15 federal jurisdiction.’” Pride v. Correa , 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe

16
Air for Everyone, 373 F.3d at 1039)). Defendant asserts a facial challeng e to certain claim s in
17
the Amended Complaint under 12(b)(1).
18

19

B. Mr. Hall’s Title VII Claim

20

Michael Hall alleges that Defendant violated Title VII by discriminating against him on

21 the basis of his sex. Dkt. #8 at ¶ ¶ 112-116. S pecifically, Mr. Hall alleges that he “is a m ale
22
properly performing his job, who ex perienced adverse em ployment action in the denial of the
23
spousal health benefit, due to his sex, where sim ilarly situat ed fem ales were treated m ore
24
25 favorably by getting the benefit. If Michael Hall we re female, the b enefit would b e provided;

26 BNSF provides it to fem ale employees who are m arried to m ales but deni ed it to Hall who is
27
married t o a ma le.” Id. at ¶ 114. Defendant argues that th is claim fails as a m atter of law
28

ORDER PAGE - 4

because Mr. Hall is really allegi ng a claim of discrim ination ba sed on his sexu al o rientation,
1
2 not his sex, which cannot be m aintained u nder Title VII. Dkt. #16 at 9-11. W hile

3 acknowledging that it is often diffi cult to distinguish sex discrimination claims made by people

4 identifying as hom osexual from those claim s based solely on alleged sexual orientation
5
discrimination, the Court disagrees with Defendant’s interpretation of the instant claims.
6
As an initial matter, Mr. Hall’s Amended Complaint sets forth, inter alia, the following
7
8 factual allegations, which clearly frame his Title VII claim as one based on sex:

9

¶ 7. Michael Hall and Elijah Uber (also known as Elijah H all and referred

10

to here in as Elijah Hall) are m ales resid ing in Pierce Coun ty, Washington

who legally married in Washington State on January 21, 2013. . . . Michael

11

Hall . . . [is a] BNSF employee[].

12

22. BNSF pays spousal health covera ge throughout its en terprise where a

13

male employee is married to a female spouse and where a female employee

is married to a male spouse.

14

23. Starting in early 2013, Michael Hall repeatedly requ ested that BNSF

15

cover Elijah’s health care costs.

16
24. Michael Hall has provided docum entation of m arriage required by

17

BNSF or its authorized agent for health care benefits, United Healthcare.

18

25. BNSF has failed and refused to cove r the health care costs of Michael

19

Hall’s legal spouse, Elijah Hall.

20

26. This failure to pay is based solely on the fact Michael is male.

21

27. If Michael Hall were fe male, married to a m ale, BNSF would pay him

22

the spousal health coverage benefits as it does to all em ployees who are

female married to male spouses, or males married to female spouses.

23

28. BNSF pays in its enterprise m any fe male em ployees the health care

24

benefits concerning their m ale spouses, including m any locom otive

25

engineers who are female.

26

29. BNSF has directly and through its appa rent and authorized agent United

Healthcare stated its reason for not cove ring Elijah is it has a “policy ” that
27
“marriage is one m an, one woman”; although Michael Hall and Elijah Hall

28

have explained m any tim es this defin ition of m arriage is not the law in

ORDER PAGE - 5

Washington state, and Elijah is the spouse and husband of Michael H all,

1

factually, and legally.

2

30. The one man/one woman definition of spouse used by BNSF to lim it its

3

liability to cover spous al health benefits am ounts to a BNSF policy to

discriminate agains t M ichael Hall s imply because he is m ale; und er th is

4

policy, if he were a female married to Elijah, the benefit would be paid.

5
Dkt. #8 at ¶ ¶ 7 and 22-30.
6

Defendant tries desp erately to ca st th ese a llegations so lely in ter ms of sexual
7

8 orientation, emphasizing that Pl aintiffs are com paring “only homosexual men to heterosexual

9 women (and vice versa).” Dkt. #16 at 11 (em phasis in original). This reading not only ignores
10
the plain language of the Am ended Com plaint, it im properly restricts th e class of em ployees
11
affected by the policy at is sue in w hich Plaint iff Michae l Hall is a mem ber. But a ca reful
12
13 reading of the Amended Complaint, construed in favor of the Plaintiff as the non-moving party,

14 demonstrates that Plaintiff alleges dispar ate treatm ent based on his sex, not his sexual

15 orientation, specifically that he (as a m ale w ho m arried a m ale) was treated differently in
16
comparison to his female coworkers who also married males.
17
Ninth Circuit Judge Stephen Reinhardt, writ ing for the Ninth Circuit Judicial Council,
18
19 concluded the sam e in a nearly identical disput e involving the denial of benefits to the sam e-

20 sex partner of a m ale federal public defender. In re Levens on, 537 F.3d 925 (9th Cir. 2009).

21 Judge Reinhardt explained:

22

As I stated in my previous order, the denial of Levenson’s request that Sears

23

be m ade a beneficiary of his federa l benefits violated the EDR Plan’s

prohibition on discrimination based on se x or sexual orientation. Levenson

24

was unable to m ake his spouse a benefi ciary of his federal benefits due

25

solely to his spouse’s sex . If Sear s were fe male, or if Levenson himself

were female, Levenson would be able to add Sears as a beneficiary. Thus,

26

the denial of benefits at issue here was sex-based and constitutes a violation

of the EDR Plan’s prohibition of sex discrimination.
27

28

ORDER PAGE - 6

Id. at 929 (em phasis added). W hile Judge Reinha rdt found alternatively that the denial of
1
2 benefits to Mr. Levenson’s partner had also constituted discrim ination based on sexual

3 orientation, he specifically recognized the primary sex-based discrimination claim.

4

Other federal courts have reached sim ilar conclusions. In Heller v. Colum bia

5
Edgewater Country Club , 195 F. Supp.2d 1212 (D. Or. 2002), a lesbian sued her em ployer
6

alleging a discriminatory termination of employment under Title VII. S pecifically, she alleged
7

8 that, after learning the plaintiff was a lesbian, th e plaintiff’s supervisor began subjecting her to

9 harassing comments about her sexual orientation. Heller, 195 F. Supp.2d at 1217-1219. The
10
supervisor ultim ately term inated the plain tiff after she com plained about the harassing
11
behavior. After the plaintiff sued, the em ployer m oved for summ ary j udgment arguing that
12
13 Title VII was inapplicable because the claim was based on sexual orientation discrimination not

14 sex discrimination. Id. at 1222. The Court disagreed, explaining:

15

Nothing in Title VII suggests that Congress intended to confine the benefits

16

of that statute to heterosexual em ployees alone. Rather, Con gress intended

that all Am ericans should have an opportunity to participate in the

17

economic life of the na tion. . . . . A ju ry could find that [the supervisor]

would not have acted as she (allegedly ) did if P laintiff were a m an dating a

18

woman, instead of a wom an dating a wom an. If that is so, then Pla intiff

19

was discriminated against because of her gender.

20 Id. at 1222-23.

21 Likewise,

in Foray v. Bell Atlan tic, 56 F. Supp.2d 327, 329 (S.D.N.Y. 1999), the

22
employee plain tiff alleged that an em ployee be nefits policy designe d t o pr ovide c ertain
23
employees in sa me-sex relationships with cove rage equivalent to that enjoyed by m arried
24

25 employees was actually unlawful discrim ination against him on the basis of sex under Title

26 VII. Plaintiff (a heterosexual m ale) alleged that the em ployer had di scriminated against hi m
27
because “all things being equal, if [the plaintiff’ s] gender were female, he would be entitled to
28

ORDER PAGE - 7

claim his dom estic partner as an eligible depe ndant under the benefits plan.” The defendant
1
2 employer moved to dism iss the claim under Rule 12(b)(6). The court ul timately dismissed the

3 Title VII claim, but not because there was any question as to whether the Complaint alleged sex

4 discrimination or sexual orientation discrim ination. Id. at 329-30. Indeed, both the Equal
5
Employment Opportun ity Comm ission and th e C ourt appear to have accepted the Title VII
6
claim as one based on sex, not sexual orientation. Id.
7

8

While the Court m akes no comment with respect to the va lidity of Plaintiff Hall’s Title

9 VII cla im in the ins tant m atter, it does f ind th at Plaintiff has satisfie d the in itial burden of

10
stating a claim that is p lausible on its face. Accordingly, the Court denies Defendant’s motion

11
to dismiss the Title VII claim.
12

13

C. Plaintiffs’ Equal Pay Act Claim

14

Defendant next m oves to dism iss Plainti ffs’ EPA claim s for essentially the sam e

15 reasons it has m oved to dism iss Mr. Hall’s Titl e VII claim . Dkt. #16 at 12-13. Significantly,
16
Defendant has also acknowledged that “the E qual Pay Act’s substan tive protections are a
17
subset of Title VII’s, an d as to sex discrim ination, they are co-exten sive.” Dkt. #16 at 12.
18
19 Accordingly, for the sam e reasons set forth abo ve, the Court finds that Plaintiffs have satisfied

20 their initial burden of stating an EPA claim that is plausible on its face, and de nies Defendants’

21 motion to dismiss those claims.
22
D. ERISA Preemption
23
Defendant next argues that Plaintiffs’ cl aims under the WLAD shoul d be dism issed
24
25 because they are preempted by Section 514(a) of ERISA, which provides that ERISA shall

26 “supersede any and all State laws insofar as th ey may now or hereafter relate to any em ployee
27
benefit plan. . . .” Dkt. #16 at 14 (quoting 29 U. S.C. § 1144(a)). Defendant notes that “the
28

ORDER PAGE - 8

ERISA preemption analysis for a state antidisc rimination law turns on ‘whether employm ent
1
2 practices [that] are unlawful under a broad state law . . . are prohibite d by Title VII. If they are

3 not, the state law will b e superseded. . . .’” Dkt. #16 at 1 5 (quoting Shaw v. Delta Air Lines ,

4 463 U.S. 85, 105-06 (1983)). Defendant then engages in the three part analysis for determining
5
ERISA preemption and argues that because the conduct is n ot prohibited under Title VII and
6
the EPA, the state law claim s must be preem pted. Dkt. #16 at 15-16. However, Defendant’s
7
8 arguments are based on its faulty assertions that Plaintiffs do not have valid sex discrim ination

9 claims under Title VII or the EPA. As discusse d above, this Court finds that Plaintiffs have

10
met their initial burden of m aking plausible Title VII and EPA claim s. Accordingly, the Court

11
also declines to dismiss Plaintiffs’ WLAD claims as preempted at this stage of the matter.
12

13

E. Claims Subject to RLA Arbitration

14

Defendant next moves to dismiss the Fifth Cause of Action in the Am ended Complaint

15 on the b asis that it is su bject to arbitration under the Railway Labor Ac t (“RLA”). Under th e
16
Fifth Cause of Action, Plaintiffs assert claims for benefits un der ERISA. Dkt. #8 at ¶ ¶ 123-
17
131. Defendant alleges that this cause of action constitutes a dispute over the interpretation and
18
19 application of the term s of a collec tively-bargained health plan, jurisdiction over which lies

20 exclusively with an arbitrator pu rsuant to the R LA. Dkt. #16 at 17-20. Plaintiffs agree that

21 disputes roo ted firm ly in collective bargai ning agreem ent term s, both m ajor and m inor, fall
22
within the exclusive jurisdiction of an arbitrator. However, Pl aintiffs respond that their ERISA
23
claims have three bases independent from and out side of the term s of the plan at issue, and
24
25 therefore proper jurisdiction lies w ithin this Court. Dkt. #20 at 17-20. The Court is not

26 persuaded by Plaintiffs.
27

28

ORDER PAGE - 9

A review of Plaintiffs’ ERISA claims as alleged in the First Amended Complaint’s Fifth
1
2 Cause of Action reveals the following basis for the claims:

3

The 2013 denial of the spousal health benefit to plan participant Michael

Hall and beneficiary Elijah Hall and to p lan participant Amie Garrand and

4

beneficiary Carol Garrand violated th e term s of the plan which provided

5

that the benefit was to be paid to the em ployee’s “wife or husband.” This

violates ER ISA. The denial of bene fits was delibe rate, intentional a nd

6

malicious and constitutes an abuse of discretion or was an arbitrary and

capricious d enial of rig hts under the plan. The ongoing position that the

7

benefit need not legally be paid cons titutes an ongoing violation of the plan

8

and ERISA.

9 Dkt. #8 at ¶ 125 (em phasis added). The rem ainder of the allegations related to this cause of
10
action pertain to jurisdiction and alleged damages. See Dkt. #8 at ¶ ¶ 123-131. While Plaintiffs
11
now try to characterize the claim s as alleg ing interference, breach of fiduciary duty, or a
12
13 violation of the Equal Protection Clause, there are no such allegations set forth in support of the

14 Fifth Cause of Action. Nowhere under the Fifth Cause of Action do Plain tiffs discuss alleged

15 interference with vested rights, who held a fiduciary duty and how it was breached, or how the
16
facts in the Am ended Com plaint s upport an Equal Protection Claim . Id. Accordingly, the
17
Court agrees with Defe ndant that jurisdicti on over the Fifth Cause of Action, as currently
18
19 alleged, lies with an arb itrator and not this Court, and therefore the claim is dism issed for lack

20 of jurisdcition.

21

F. Plaintiffs’ Prospective Claims

22
Finally, Defendant m oves to di smiss Pl aintiffs’ cl aims for prospective relief as m oot
23

based on the fact that it now provides health be nefits for same-sex spouses effective January 1,
24

25 2014. (Dkt. #16 at 21-23). Defenda nt further assert s that the cessation of such benefits is not

26 likely to reoccur because the changes to the pl an were made through collective bargaining with
27
the unions that represent the railroads’ employees and Defendant is prohibited from unilaterally
28

ORDER PAGE - 10

changing the coverage ex cept through the collective bargaining process. Id. Defendants
1
2 appear to m isconstrue P laintiffs’ claim fo r prospective relief. Plaintiffs seek, inter alia , a n

3 Order determ ining whe ther health benefits for same-sex spouses in states where sa me-sex

4 marriage is legal are m andated und er current la w and directing Defendant to provide health
5
benefits to such sam e-sex spouses as a m atter of right in the future. Because Plain tiffs have
6
alleged plausible federal and state claim s as discussed above, the Court cannot find at this tim e
7
8 that the ir c laims f or such prospe ctive re lief are m oot. Accordingly, the Court denies

9 Defendant’s motion to dismiss Plaintiff’s prospective claims.
10
IV. CONCLUSION
11
Having reviewed the relevant pleadings, the de clarations and exhibi ts attached there to,
12
13 and the remainder of the record, the Court hereby ORDERS:

14

1) Defendant’s Motion to Dism iss (Dkt. #16) is GRANTED IN PART and DENIED

15

IN PART as set forth above.

16
2) Plaintiff’s Fifth Cause of Action is DISMISSED for la ck of jurisdiction. The
17
remainder of Plaintiffs’ claims survive Defendant’s motion to dismiss.
18

19

DATED this 22 day of September 2014.

20

21 22

A

23

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

ORDER PAGE - 11

 
 Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 1 of 6
CLOSED,JURYDEMAND
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:13−cv−02160−RSM

Hall et al v. BNSF Railway Company Assigned to: Judge Ricardo S Martinez Cause: 15:2(a) Fair Labor Standards Act
Plaintiff Michael Hall
Plaintiff Elijah Uber and their marital community also known as Elijah Hall Plaintiff Amie Garrand
Plaintiff Carol Garrand and their marital community,

Date Filed: 12/03/2013 Date Terminated: 02/25/2015 Jury Demand: Defendant Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question
represented by Duncan Calvert Turner BADGLEY MULLINS TURNER PLLC 19929 BALLINGER WAY NE, STE 200 SEATTLE, WA 98155 206−621−6566 Email: dturner@badgleymullins.com ATTORNEY TO BE NOTICED
Cleveland Stockmeyer CLEVELAND STOCKMEYER (SEATTLE) 8056 SUNNYSIDE AVE N SEATTLE, WA 98103 206−419−4385 Email: cleve@clevelandstockmeyer.com ATTORNEY TO BE NOTICED
represented by Cleveland Stockmeyer (See above for address) ATTORNEY TO BE NOTICED
represented by Cleveland Stockmeyer (See above for address) ATTORNEY TO BE NOTICED
represented by Cleveland Stockmeyer (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
BNSF Railway Company a Delaware coropration

represented by Donald Munro JONES DAY (DC) 51 LOUISIANA AVE NW WASHINGTON, DC 20001−2113 202−879−3922 Email: dmunro@jonesday.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley P Scarp MONTGOMERY SCARP PLLC

Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 2 of 6

1218 3RD AVENUE STE 2700 SEATTLE, WA 98101 206−625−1801 Fax: 206−625−1807 Email: brad@montgomeryscarp.com ATTORNEY TO BE NOTICED

Elizabeth A. Findley MONTGOMERY SCARP PLLC 1218 3RD AVENUE STE 2700 SEATTLE, WA 98101 206−625−1801 Email: liz@montgomeryscarp.com ATTORNEY TO BE NOTICED

Jeremy H Rogers SMITH FREED &EBERHARD, P.C. (WA) 705 SECOND AVENUE, SUITE 1700 SEATTLE, WA 98104 206−576−7575 Fax: 206−576−7580 Email: jrogers@smithfreed.com TERMINATED: 09/12/2014

Amicus
Lambda Legal Defense and Education Fund Inc amicus curiae

represented by Gregory R. Nevins LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC 730 PEACHTREE STREET NE, STE 1070 ATLANTA, GA 30308 404−897−1880 Email: gnevins@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer C Pizer LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC 4221 WILSHIRE BLVD., STE 280 LOS ANGELES, CA 90010 213−382−7600 Email: jpizer@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer S Divine MILLER NASH GRAHAM &DUNN LLP 2801 ALASKAN WAY, SUITE 300 SEATTLE, WA 98121−1128 206−624−8300 Email: jennifer.divine@millernash.com ATTORNEY TO BE NOTICED

Tara Borelli LAMBDA LEGAL DEFENSE &EDUCATION FUND, INC 3325 WILSHIRE BLVD STE 1300

Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 3 of 6
LOS ANGELES, CA 90010 213−382−7600 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

Date Filed 12/03/2013
12/04/2013 12/04/2013
12/04/2013
12/04/2013 12/04/2013 12/04/2013 03/03/2014 03/13/2014 03/14/2014 03/26/2014 04/02/2014 04/02/2014 04/02/2014

# Docket Text
1 COMPLAINT FOR NONPAYMENT OF WAGES UNDER EQUAL PAY ACT against defendant(s) All Defendants (Receipt # 0981−3434097) Attorney Cleveland Stockmeyer added to party Amie Garrand(pty:pla), Attorney Cleveland Stockmeyer added to party Carol Garrand(pty:pla), Attorney Cleveland Stockmeyer added to party Michael Hall(pty:pla), Attorney Cleveland Stockmeyer added to party Elijah Uber(pty:pla), filed by Michael Hall, Amie Garrand, Elijah Uber, Carol Garrand. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Summons, # 4 Summons, # 5 Summons)(Stockmeyer, Cleveland) (Entered: 12/03/2013)
Judge Ricardo S Martinez added. (PM) (Entered: 12/04/2013)
NOTICE to Filer: JURY DEMAND:Pursuant to LCR 38(b) the words JURY DEMAND shall be typed in capital letters on the first page immediately below the name of the pleading to the right of the name of the cause. The Clerk has removed plaintiff's jury demand flag entered by counsel upon case opening. Counsel must now file a separate Jury Demand in order to advise the court of this request. Thank you. (PM) (Entered: 12/04/2013)
NOTICE to Filer:SUMMONS FORM INCOMPLETE ATTORNEY ADDRESS BLOCK LEFT BLANK:There is no address listed in the block for counsel. Please re−post your corrected summons(es) using the event Praecipe For A Summons under Other Documents. All summons(es) should be posted under this one event. Thank you. (PM) (Entered: 12/04/2013)
2 PRAECIPE TO ISSUE SUMMONS by Plaintiffs Amie Garrand, Carol Garrand, Michael Hall, Elijah Uber. (Stockmeyer, Cleveland) (Entered: 12/04/2013)
3 Summons issued electronically as to defendant BNSF Railway Company c/o The Corporation Trust Compant. (Attachments: # 1 Summons − BNSF Railway Co, NW Division, Seattle, # 2 Summons − BNSF Railway Co., Seattle)(PM) (Entered: 12/04/2013)
4 Summons reissued as to defendant BNSF Railway Company c/o The Corporation Trust Company (PM) (Entered: 12/04/2013)
5 NOTICE of Unavailability of counsel Cleveland Stockmeyer for Plaintiffs Amie Garrand, Carol Garrand, Michael Hall, Elijah Uber from April 14 2014 to April 24 2014. (Stockmeyer, Cleveland) (Entered: 03/03/2014)
6 PRAECIPE TO ISSUE SUMMONS by Plaintiffs Amie Garrand, Carol Garrand, Michael Hall, Elijah Uber. (Attachments: # 1 Summons)(Turner, Duncan) (Entered: 03/13/2014)
7 Summons electronically issued as to defendant(s) BNSF Railway Company. (CL) (Entered: 03/14/2014)
8 AMENDED COMPLAINT against defendant(s) All Defendants, filed by Michael Hall, Amie Garrand, Elijah Uber, Carol Garrand. (Attachments: # 1 Exhibit)(Stockmeyer, Cleveland) (Entered: 03/26/2014)
9 NOTICE of Appearance by attorney Jeremy H Rogers on behalf of Defendant BNSF Railway Company. (Rogers, Jeremy) (Entered: 04/02/2014)
10 APPLICATION OF ATTORNEY Donald J. Munro FOR LEAVE TO APPEAR PRO HAC VICE for Defendant BNSF Railway Company (Fee Paid) Receipt No. 0981−3558804. (Rogers, Jeremy) (Entered: 04/02/2014)
11 CORPORATE DISCLOSURE STATEMENT identifying Corporate Parent National Indemnity Company, Corporate Parent Burlington Northern Santa Fe, LLC, Corporate Parent Berkshire Hathaway Inc. for BNSF Railway Company.

Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 4 of 6

04/02/2014
04/10/2014 04/14/2014 04/22/2014
04/30/2014 04/30/2014
05/02/2014 05/06/2014 06/02/2014 06/04/2014 06/04/2014 06/05/2014 06/05/2014 06/06/2014 06/06/2014 06/06/2014 06/06/2014

Filed pursuant to Fed.R.Civ.P 7.1. Filed by BNSF Railway Company. (Rogers, Jeremy) (Entered: 04/02/2014)
12 ORDER re 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Donald Munro for BNSF Railway Company, by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 04/02/2014)
13 STIPULATION AND PROPOSED ORDER Extending Deadline for BNSF to File Answer by parties. (Rogers, Jeremy) (Entered: 04/10/2014)
14 STIPULATION AND ORDER extending deadline for BNSF to file answer by Judge Ricardo S Martinez. (RS) (Entered: 04/14/2014)
15 NOTICE of Change of Address/Change of Name of Attorney Duncan Calvert Turner. Filed by Plaintiffs Amie Garrand, Carol Garrand, Michael Hall, Elijah Uber. (Turner, Duncan) Modified Firm Address of Duncan Calvert on 4/25/2014 (DS). (Entered: 04/22/2014)
16 MOTION to Dismiss by Defendant BNSF Railway Company. (Attachments: # 1 Proposed Order) Noting Date 5/23/2014, (Rogers, Jeremy) (Entered: 04/30/2014)
17 DECLARATION of A. Kenneth Gradia filed by Defendant BNSF Railway Company re 16 MOTION to Dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Rogers, Jeremy) (Entered: 04/30/2014)
18 STIPULATION AND PROPOSED ORDER RE EXTENDING NOTING DATE OF BNSF MOTION TO DISMISS by parties. (Stockmeyer, Cleveland) (Entered: 05/02/2014)
19 STIPULATION AND ORDER RE−NOTING 16 MOTION to Dismiss ; Noting Date 6/6/2014, by Judge Ricardo S Martinez. (RS) (Entered: 05/06/2014)
20 RESPONSE, by Plaintiffs Amie Garrand, Carol Garrand, Michael Hall, Elijah Uber, to 16 MOTION to Dismiss . Oral Argument Requested. (Stockmeyer, Cleveland) (Entered: 06/02/2014)
21 MOTION for Extension of Time by Defendant BNSF Railway Company. (Attachments: # 1 Proposed Order) Noting Date 6/4/2014, (Rogers, Jeremy) (Entered: 06/04/2014)
22 DECLARATION of Donald J. Munro filed by Defendant BNSF Railway Company re 21 MOTION for Extension of Time (Rogers, Jeremy) (Entered: 06/04/2014)
23 PROPOSED ORDER (Unsigned) re 20 Response to Motion to Dismiss. (Turner, Duncan) (Entered: 06/05/2014)
24 ORDER granting dft's 21 Motion for Extension of Time to file reply to 16 MOTION to Dismiss : by Judge Ricardo S Martinez.(RS) (Entered: 06/05/2014)
25 NOTICE of Appearance by attorney Jennifer S Divine on behalf of Amicus Lambda Legal Defense and Education Fund Inc. (Divine, Jennifer) (Entered: 06/06/2014)
26 NOTICE of Change of Address/Change of Name of Attorney Jennifer S Divine. Filed by Amicus Lambda Legal Defense and Education Fund Inc. (Divine, Jennifer) Modified Address on 6/9/2014 (DS). (Entered: 06/06/2014)
27 APPLICATION OF ATTORNEY Jennifer C. Pizer FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Lambda Legal Defense and Education Fund Inc (Fee Paid) Receipt No. 0981−3630938. (Divine, Jennifer) (Entered: 06/06/2014)
28 APPLICATION OF ATTORNEY Gregory R. Nevins FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Lambda Legal Defense and Education Fund Inc (Fee Paid) Receipt No. 0981−3630948. (Divine, Jennifer) (Entered: 06/06/2014)

Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 5 of 6

06/06/2014 06/06/2014 06/09/2014
06/09/2014
06/13/2014 07/11/2014 09/12/2014 09/12/2014 09/22/2014 10/03/2014 10/17/2014 11/05/2014 11/28/2014 12/04/2014
01/06/2015

29 Unopposed MOTION for Leave to File Amicus Curiae Brief by Amicus Lambda Legal Defense and Education Fund Inc. (Attachments: # 1 Exhibit A − Proposed Amicus Brief of Lambda Legal, # 2 Exhibit B − Proposed Order) Noting Date 6/27/2014, (Borelli, Tara) (Entered: 06/06/2014)
30 NOTICE of Appearance by attorney Tara Borelli on behalf of Amicus Lambda Legal Defense and Education Fund Inc. (Borelli, Tara) (Entered: 06/06/2014)
31 ORDER re 27 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jennifer C Pizer for Lambda Legal Defense and Education Fund Inc, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 06/09/2014)
32 ORDER re 28 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Gregory R. Nevins for Lambda Legal Defense and Education Fund Inc, by William M. McCool. (NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d)).(No document associated with this docket entry, text only.)(DS) (Entered: 06/09/2014)
33 REPLY, filed by Defendant BNSF Railway Company, TO RESPONSE to 16 MOTION to Dismiss (Rogers, Jeremy) (Entered: 06/13/2014)
34 ORDER granting 29 Motion for Leave to File Amicus Curiae Brief by Judge Ricardo S Martinez.(MKB) (Entered: 07/11/2014)
35 NOTICE of Appearance by attorney Bradley P Scarp on behalf of Defendant BNSF Railway Company. (Scarp, Bradley) (Entered: 09/12/2014)
36 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jeremy H Rogers for Defendant BNSF Railway Company. (Rogers, Jeremy) (Entered: 09/12/2014)
37 ORDER granting in part and denying in part dft's 16 Motion to Dismiss by Judge Ricardo S Martinez.(RS) (Entered: 09/22/2014)
38 ANSWER to 8 Amended Complaint with JURY DEMAND by BNSF Railway Company.(Scarp, Bradley) (Entered: 10/03/2014)
39 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 11/28/2014, FRCP 26f Conference Deadline is 11/14/2014, Initial Disclosure Deadline is 11/21/2014, by Judge Ricardo S. Martinez. (LW) (Entered: 10/17/2014)
40 NOTICE of Appearance by attorney Elizabeth A. Findley on behalf of Defendant BNSF Railway Company. (Findley, Elizabeth) (Entered: 11/05/2014)
41 JOINT STATUS REPORT signed by all parties estimated Trial Days: 3−7. (Scarp, Bradley) (Entered: 11/28/2014)
42 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *3−7 days*. Jury Trial is set for 11/16/2015 at 9:00 AM before Judge Ricardo S. Martinez. Joinder of Parties due by 1/30/2015, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 5/20/2015, Motions due by 6/19/2015, Discovery completed by 7/20/2015, Dispositive motions due by 8/18/2015, 39.1 mediation to be completed by 10/2/2015, Motions in Limine due by 10/19/2015, Pretrial Order due by 11/4/2015, Trial briefs to be submitted by 11/12/2015, Proposed voir dire/jury instructions due by 11/12/2015, by Judge Ricardo S. Martinez. (LW) (Entered: 12/04/2014)
43 NOTICE of Change of Address/Change of Name of Attorney Jennifer S Divine. Filed by Amicus Lambda Legal Defense and Education Fund Inc. (Divine, Jennifer) Modified Firm Name &Address for Miller Nash Graham Dunn on 1/6/2015 (DS). (Entered: 01/06/2015)

Case: 2:13-cv-2160 As of: 04/06/2015 06:21 PM PDT 6 of 6

02/23/2015 02/25/2015

44 Joint Stipulated MOTION of Dismissal by Defendant BNSF Railway Company. (Attachments: # 1 Proposed Order Proposed Order of Dismissal) Noting Date 2/23/2015, (Scarp, Bradley) (Entered: 02/23/2015)
45 ORDER OF DISMISSAL by Judge Ricardo S Martinez. (RS) (Entered: 02/25/2015)