2:13-cv-02160 #8

Case 2:13-cv-02160-RSM Document 8 Filed 03/26/14 Page 1 of 31
1 2 3 4 5 6 7 8 9 10 Plaintiffs, 11 12 13 14 Defendant. 15 16 17 18 19 20 21 refuses and fails to pay for the spousal health care costs of its employee, locomotive 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 1 Cleveland Stockmeyer PLLC
8056 Sunnyside Ave. N. Seattle, WA 98103 (206) 419-4385
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICHAEL HALL, and ELIJAH UBER a/k/a Elijah Hall, and their marital community; and AMIE GARRAND and CAROL GARRAND and their marital community, No. 2:13-cv-02160
vs. BNSF RAILWAY CO., a Delaware corporation,
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
COME NOW the plaintiffs and through counsel allege as follows: INTRODUCTION 1. This is a claim under the federal Equal Pay Act 29 USC 206(d)(1), 216 and
related sections, for sex based discrimination by defendant BNSF Railway Co. (BNSF), which
engineer/plaintiff Michael Hall, who is married to Elijah Uber (also known as Elijah Hall) who is also male. The failure to pay is based on sex because BNSF does pay for spousal health needs 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 Elijahs health needs because Michael Hall is male -- and not female -married to a male (Elijah). The denial of the same benefit to employee Michael Hall because he is male and not female is discrimination in pay or benefits based on sex that is per se illegal. Similarly, BNSF denies spousal health care coverage to its employee conductor Amie Garrand solely because she is a female married to a female (Carol Garrand) and not a male married to a female. BNSF commonly pays the benefit to employees who are males, who are married to female spouses. The denial of the spousal health care benefits to Amie Garrand because she is female and not male is discrimination in pay and benefits based on sex, and this discrimination is
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 2 Cleveland Stockmeyer PLLC
illegal under the Equal Pay Act. This is also a complaint for declaratory relief, and for benefits and/or compensatory and punitive damages, penalties, fees, and costs, as applicable, under the Washington State Law Against Discrimination (WLAD), for discrimination based on sex, and sexual orientation; under Title VII of the federal anti-discrimination laws, for discrimination based on sex; and under ERISA for ERISA benefits, declaratory relief, and fees and costs. 2. BNSFs stated policy and reason for not paying the benefits is marriage is
between one man and one woman -- but BNSF does not get to judge what marriage is. That the denial of equal pay is based on this BNSF policy only shows BNSF is discriminating based on the sex of the employee. 3. The Halls and the Garrands sue to compel BNSF to provide Michael Hall and
Amie Garrand the spousal health care benefit and also to compel BNSF to provide this benefit to all other employees similarly situated, i.e., BNSF engineers, conductors or other employees who were married in other states with legal same sex marriage and who have been denied the benefit based on the sex of the BNSF employee. The plaintiffs here also seek all damages and liquidated
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damages allowed under the statute, fees and costs, and injunctive relief to prevent future similar violations of the Equal Pay Act. . 4. On information and belief, there are numerous or hundreds of other BNSF
employees or engineers or conductors in legal same sex marriages who are similarly situated and who are being denied spousal health care benefits based on the sex of the employee in the states where BNSF operates that have legal same sex marriage (Washington, Minnesota, Iowa, Illinois and California, Illinois, and New Mexico) (or who had legal marriages in any state or jurisdictions with same sex marriage and who work anywhere for BNSF).
9 10 11 12 13 14 15 16 State on January 21, 2013. Amie Garrand and Carol Garrand are females who are residents of 17 18 19 20 21 22 23 24 25 in King County, Washington. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 3 Cleveland Stockmeyer PLLC
PARTIES, JURISDICTION, VENUE 5. 6. Plaintiff incorporates and re-alleges herein all other allegations of this complaint. This case arises under 29 USC 206 and 216 and related sections and federal
question jurisdiction is present in this Court under 28 USC 1331. 7. Michael Hall and Elijah Uber (also known as Elijah Hall and referred to herein as
Elijah Hall) are males residing in Pierce County, Washington who legally married in Washington
Clark County, Washington who were legally married in Washington State on February 17, 2013. Michael Hall and Amie Garrand are BNSF employees. 8. BNSF is a Delaware corporation doing business in Washington State and in
Seattle city limits and in this judicial District and is subject to personal jurisdiction here. BNSFs principal place of business in Washington State is in Seattle in King County where it has offices. A BNSF supervisor told Michael Hall his fight for the benefits would be long and bumpy (i.e., BNSF would deny the benefit) from the BNSF terminal where Hall works in Seattle
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9.
Venue is proper in the Western District of Washington under 28 USC 1391
because plaintiffs reside in this district, a substantial part of the events or omissions giving rise to the claim occurred in this district where BNSF management offices exist, and BNSF resides in this judicial district since it does business here and has its principal place of business in the State here, and has contacts here sufficient to subject it to personal jurisdiction if this district were a separate State; and because this is the district with which BNSF has the most significant contacts in this State, and its principal place of business, having its NW Division headquarters in Seattle, in King County Washington. The Seattle court is also proper under the local rules because all
9 10 11 12 13 14 15 16 a railway that comprises 32,000 miles of track in 28 States on which freight cars, locomotives 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 4 Cleveland Stockmeyer PLLC
defendants reside here and have their principal place of business here and or a substantial part of the events or omissions giving rise to the claim occurred here, including the Seattle terminal supervisors call to Hall denying the benefit and promising a long and bumpy fight to get it. KEY FACTS REGARDING THE HALLS 10. 11. Plaintiffs incorporate and re-allege herein all other allegations of this complaint. BNSF is one of the larger railroads in the United States, moving goods by train on
and trains are sent throughout the railway system from one location to another nationwide. 12. 13. The entire BNSF railway constitutes one enterprise under the Equal Pay Act. BNSF has some 13 divisions which are groupings of employees; the freight and
cars and trains go from division to division, but not the employees. 14. The NW Division includes the part of the railway in Northern California, Oregon,
Idaho, Washington, Idaho and Montana. 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
Occidental Avenue South in Seattle, plus other management offices at 1000 Second Avenue suite 3700, Seattle, and terminal yards in Seattle, including the one where the supervisor called Michael Hall, and BNSF has its principal place of business in the State of Washington in Seattle, in King County Washington. 17. BNSF manages the entire railway train operation from Forth Worth, Texas.
Employees are managed out of the divisions. 18. Michael Hall was employed by BNSF starting in November 2010 and by 2013 he
9 10 11 12 13 14 15 16 to Vancouver, Washington; and the next day north to Auburn or Seattle. 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 5 Cleveland Stockmeyer PLLC
was working as a locomotive engineer; he chose to work for BNSF in part due to its stated antidiscrimination policy which bars discrimination based on sex and sexual orientation and other things. 19. In 2013 Michael Hall worked in the Interbay Yard in Seattle and other BNSF
locations in Seattle, and also drove mile long trains on three-day runs, from Auburn over Stampede Pass and through the Yakima Canyon to Pasco; the next day along the Columbia River
20.
Typically Michael Halls trains included empties or grain or coal cars, or Z trains
which are high priority container double stack trains carrying semi-trailers with freight, like Fed Ex or UPS freight, grain or coal; much of this freight arrived or was destined for the Port of Seattle terminals in Seattle. 21. In 2013, and other recent years, BNSF has had married employees who were
opposite sex married; and, increasingly, some who were same-sex legally married as same=sex marriage has become legal in certain states and jurisdictions.
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22.
BNSF pays spousal health coverage throughout its enterprise where a male
employee is married to a female spouse and where a female employee is married to a male spouse. 23. Starting in early 2013, Michael Hall repeatedly requested that BNSF cover
Elijahs health care costs. 24. Michael Hall has provided documentation of marriage required by BNSF or its
authorized agent for health care benefits, United Healthcare. 25. BNSF has failed and refused to cover the health care costs of Michael Halls legal
9 10 11 12 13 14 15 16 concerning their male spouses, including many locomotive engineers who are female. 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 6 Cleveland Stockmeyer PLLC
spouse, Elijah Hall. 26. 27. This failure to pay is based solely on the fact Michael is male. If Michael Hall were female, married to a male, BNSF would pay him the spousal
health coverage benefits as it does to all employees who are female married to male spouses, or males married to female spouses. 28. BNSF pays in its enterprise many female employees the health care benefits
29.
BNSF has directly and through its apparent and authorized agent United
Healthcare stated its reason for not covering Elijah is it has a policy that marriage is one man, one woman; although Michael Hall and Elijah Hall have explained many times this definition of marriage is not the law in Washington state, and Elijah is the spouse and husband of Michael Hall, factually, and legally. 30. The one man/one woman definition of spouse used by BNSF to limit its liability
to cover spousal health benefits amounts to a BNSF policy to discriminate against Michael Hall
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simply because he is male; under this policy, if he were a female married to Elijah, the benefit would be paid. 31. Early in 2013 Michael Hall provided certified copies of his marriage certificate
and other documentation to United Healthcare who explained to him he did not qualify for spousal benefits because BNSF Railway says that marriage is between one man and one woman. 32. United Healthcare was possessed of actual and apparent authority to deal with
Michael Hall and other employees, for BNSF, on such coverage issues and to speak for BNSF as to the reasons for denying coverage.
9 10 11 12 13 14 15 16 the US Supreme Court in United States v. Windsor, 570 U.S. __ (2013). 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 7 Cleveland Stockmeyer PLLC
33.
BNSF had directed Michael Hall and other employees to look to United
Healthcare for coverage questions, and payment of the benefits. 34. United Healthcare repeated to Michael or Elijah that BNSF policy is marriage is
one man and one woman, i.e., it was BNSF policy that required the servicer United Healthcare to deny coverage to Michael Hall for his spouse Elijah. 35. In June 2013, a federal law called Defense of Marriage Act was struck down by
36.
Michael and Elijah again sought the benefit; United Healthcare told Michael Hall
that BNSF tells them marriage is between one man and one woman; another employee of United Healthcare told Michael Hall that he worked for the BNSF Railway, and cannot do anything unless told by BNSF Railway to do so; Michael Hall then spoke to a supervisor at United Healthcare called Christy but she never called back despite promising to do so. 37. 38. In a later call United Healthcare referred the Halls to the BNSF law department. They called the law department in Fort Worth, Texas, in June 2013.
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39.
On June 26, 2013 the law department promised Elijah Hall they would look into it
and call back but it failed to do so. Elijah called the law department on June 27, 2013 and spoke to a law department employee named Tina who cut off his explanation and request to be covered, saying we do it on our own time. Elijah Hall told her coverage was legally required and she is not above the law. Tina referred Elijah Hall to another female employee (name unknown), who immediately said Hall had the wrong number when he mentioned same sex marriage. He called back and got Cathy who put him off claiming she would take his number and call back. No one called him back.
9 10 11 12 13 14 15 16 relevant pages of the plan are attached hereto as Exhibit A. 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 8 Cleveland Stockmeyer PLLC
40.
Elijah Hall called United Healthcare again, whose representative refused to give
her name, and who said marriage is between one man and one woman. Elijah Hall explained that same sex legal marriage is valid and made him the legal spouse so coverage should be provided. He asked where in the health care plan does it state marriage is one man, one woman. 41. The representative falsely said the plan so provides, but in fact the plan booklet
states any husband or wife is covered without limiting this to opposite-sex marriage. Copies of
42.
The representative became rude and said that BNSF had sent them a memo after
the Supreme Court ruling overturning DOMA, and then said, let me read it to you. She began reading a BNSF letter to United Healthcare directing United Healthcare to deny all spousal benefits for all same sex marriages in all areas where BNSF operates and has employees. 43. Elijah Hall asked her name and she refused to give it, and though Hall got to talk
to a supervisor named Vanessa, she did not resolve the issue. 44. Michael Hall also called BNSF HR who refused to do anything.
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45.
One BNSF HR representative on June 27, 2013 stated that BNSF was above the
law, because they did not have to follow the federal laws. 46. On July 8, 2013 at 10:24 AM, Elijah Hall sent an e-mail concerning the request to
be covered to BNSF upper management including Chairman/CEO Matthew K. Rose; President and COO Carl Ice; Executive Vice President, Law and Secretary, Roger Nober; Kristen Smith; Vice President and Chief Human Resources Officer Riz Chand; Vice President and General Counsel Charles Shewmake; and Vice President and General Counsel, Regulatory Richard Weicher. A true and correct copy of this e mail is attached as Exhibit B hereto.
47.
Elijah Hall in this email protested the ILLEGAL actions of BNSF Railway and
their refusal to provide LEGAL spousal benefits to legally married same sex couples. He stated, BNSF Railway AND United Healthcare have discriminated us. . . .Their health guide DOES NOT state that spouse is 1 man 1 woman, or someone of the opposite sex.couples in state[s] that recognize same-sex marriage will now be able to receive the same benefits as heterosexual couples . . . .Large businesses that operate in multiple states will have to keep track of who lives under what jurisdiction. 48. Elijah Hall also said I have dealt with enough pain and suffering, headaches, etc.
from their discrimination and again requested coverage noting the legal marriage. 49. Elijah Hall had in fact had headaches and much pain and suffering due to the
discrimination, as did Michael Hall. 50. managers. No one got back to Elijah Hall in response to the July 8 email to top BNSF
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51.
Elijah Hall called United Healthcare July 8, 2013 and spoke to Cynthia Gray, who
said she could not talk because she was busy. When he explained that United had denied coverage three times Gray hung up on him. 52. In July 2013, Elijah Hall asked Debbie Trabold of United Healthcare to provide
him with a copy of the letter in which BNSF told United Healthcare to deny spousal benefits to same sex couples, but she refused to do so. 53. On July 10, 2013 both Michael and Elijah Hall called Pat Pitsch of BNSF
Railway HR and discussed their legal marriage, request for benefits and BNSFs denial thereof. 9 10 11 12 13 14 15 16 BNSF Railway for allowing this discrimination and ILLEGAL actions to go on this long. For a 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 10 Cleveland Stockmeyer PLLC
In response, she said there was nothing BNSF could do and stated that BNSF law department had said BNSF did not have to provide the coverage for same sex spouses. 54. She also said no change would be made until 2014, then changed that to 2015,
and did not resolve the issue. 55. On July 10, 2013 at 12:52 p.m., Elijah Hall again e mailed CEO Rose and the
other BNSF managers he contacted on July 8th, stating SHAME SHAME SHAME on you,
company that prides themselves for being a company built around diversity, and having a diversity department, YOU SURE DO DISCRIMINATE! 56. The e mail also stated I spoke with Pat Pritsch, Director of BNSF Medical
Benefits, BNSF Railway, and she more or less stated that BNSF Railway was indeed above the law. A true and correct copy of this e mail is attached hereto as Exhibit C. 57. 58. BNSF is not above the law. On July 10, 2013 at 12:16 p.m. Michael called Marie Olson, Director of
Administration of Transportation for BNSFs NW Division, and she called back at 2:16 p.m.
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from her personal cell phone at 406-390-0633; Michael discussed the issue, that he was being discriminated against in the denial of coverage, and since Olson she was on the diversity council, he wanted her to help him not be discriminated against. She said she would look into the issue. 59. On July 10, 2013, in the evening, a BNSF supervisor named Benjamin Marx, the
terminal manager in Seattle, Washington, called Michael Hall at his home while he was off duty, which was highly unusual and Marx was not someone Michael dealt with normally. 60. Marx demanded to know if Michael Hall was making all these calls to everyone;
Hall told him he was worried he be fired; Marx using a threatening tone told Michael Hall that he 9 10 11 12 13 14 15 16 cell, saying she had been too busy to get back to him; Michael Hall explained he was legally 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 11 Cleveland Stockmeyer PLLC
was brave to take on BNSF and that it was going to be a long and bumpy battle. Michael and Elijah Hall felt intimidated by this threatening call but continued to seek coverage. 61. On July 15, 2013 at 12:00 p.m. Michael Hall called Marie Olsons personal cell
and left a message; he got no call back, and called again on July 16, 2013 at 6:24 p.m. and left her another message. 62. On July 17, 2013 at 5:01 p.m. Marie Olson called Michael Hall from her personal
married and his Elijah should be covered and that BNSF was refusing to cover this benefit because it is a same sex marriage and they had been told the denial is because BNSF policy is marriage is one man one woman; Michael Hall asked her as a member of diversity council in a company with a nondiscrimination policy to solve the problem; and Olson said she was calling after work, on her personal cell, Ive been advised not to talk to you because it could cost me my job and my livelihood of working here; and she said nothing could be done by the diversity council.
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63.
In July 2013 after being requested, United Healthcare sent Michael Hall a written
denial letter with a benefit booklet and pointed to the definition of eligible dependents in the booklet. 64. As shown in Exhibit A, the booklet relied on by United Healthcare stated that a
wife or husband is covered and does exclude spouses in a legal same-sex marriage. 65. The BNSF policy to limit coverage to opposite sex marriages violates the plans
plain meaning: Elijah is Michaels husband, and should be covered under the plan. 66. Michael Hall has appealed the denial of coverage to United Healthcare with
9 10 11 12 13 14 15 16 69. 17 18 19 20 21 22 23 24 25 KEY FACTS REGARDING THE GARRANDS 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 12 Cleveland Stockmeyer PLLC
repeated pleas to end the discrimination and denial of coverage, but it and BNSF have failed to properly respond, and have refused and failed to provide the coverage. 67. To this date BNSF has not responded to the July 8th and July 10th e mails sent to
CEO Rose or other upper management, unless the threatening call made by Marx is a response. 68. Elijah Hall has the human immunodeficiency virus, a slowly replicating retrovirus
that may cause acquired immunodeficiency syndrome. On information and belief, defendant BNSF and United Healthcare know this. Elijah Halls monthly medication costs are about $2,400. BNSFs gender based discrimination is forcing the Halls to lose benefits worth
70. 71.
$2,400 a month. Their economic damages grow monthly and are estimated at some $24,000 to date. 72. The gender based discrimination also causes the Halls emotional distress which
could adversely affect Elijah Halls medical condition which also causes great emotional distress for the legally married couple.
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73.
Amie Garrand has been employed at BNSF for about 12.5 years. She has been
an engineer and is currently a conductor. She is in the NW Division which is operated out of Seattle in King County. 74. Amie Garrand has several times requested that BNSF or United Healthcare cover
the health care costs of her spouse, Carol Garrand, including costs the couple incurred relating to birth of a son by Carol after the marriage in 2013. BNSF has failed and refused to cover the spousal health care costs, including through communications from United Healthcare, citing its policy that marriage is one man one woman.
9 10 11 12 13 14 15 16 77. 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 13 Cleveland Stockmeyer PLLC
75.
This is discrimination based on Amies sex as BNSF provides spousal health care
coverage to male conductors or employees who are married to females and here is not providing the spousal benefit to Amie Garrand because she is female and not male. 76. Amie Garrand called the BNSF Hotline, Legal Department and HR on June 26
and 28, 2013, seeking coverage for her spouse Carol and protesting the discriminatory refusal to cover her spouse and got no positive response. On June 28, 2013, Garrand spoke with BNSF Human Resources representative
Ray Scott, who said they know about the issue and their lawyers were looking into it. This did not resolve anything. 78. On July 9, 2013 at 2:22 p.m. she called United Healthcare and again asked to add
her wife Carol to the health plan and the representative told her no, because BNSF does not recognize same-sex marriage. 79. On July 18, 2013 Amie Garrand called an employee named Katrina with BNSF
who would not recognize her wife Carol or provide the coverage.
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80.
On July 19, 2013at 3:30 p.m. Amie Garrand called an employee named Monica
at United Healthcare, who denied the coverage saying the benefit book states same sex marriage does not qualify as a dependent. 81. This was untrue; the benefit book or plan states Your wife is covered and does
not state wife excludes a same-sex wife. 82. Monica then said BNSF wont let United Healthcare add Carol Garrand so Amie
Garrand then talked with Felicia in the resolution department, who said she would send a denial of benefits letter.
9 10 11 12 13 14 15 16 discrimination, and that the policy to not cover spouses was illegal; Pitsch said BNSF could do 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 14 Cleveland Stockmeyer PLLC
83.
On July 29, 2013 at 11:50 am Amie Garrand called BNSF Human Resources and
spoke with Bob Apetz, who said BNSF would not cover a same-sex-married wife; Apetz was hostile and rude. 83. Amie Garrand asked for his supervisor and left a message for supervisor Pat
Pitsch who called Garrand July 31, 2013 at 2:25 p.m., saying BNSF would not provide the coverage and would not even consider coverage until 2015; Garrand told her this was blatant
nothing. 84. In July 2013 Amie Garrand asked her own terminal superintendent, Chris
Delargey, to look into the issue and one month later he said he had no information for her; she protested the discrimination saying it would be easier for me to get a sex change operation than it would be for her to get the spousal benefit for her legal wife under the BNSF policy of not recognizing same sex marriage.
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85.
On August 29, 2013 Amie Garrand called United Healthcare to put her spouse
Carol on the insurance, and they again refused saying BNSF does not recognize same-sex marriage spouses, as dependents. 86. On September 23, 2013 at 2:57 p.m. Amie Garrand called United Healthcare,
citing new Department of Labor guidelines covered same-sex marriages and saying hers should be regarded just like any other marriage; the representative again refused to add the spouse. 87. On September 23, 2013 at 3:58 p.m. Amie Garrand called Pat Pitsch with BNSF
Human Resources and left a message regarding the new DOL guidelines noting recognition of 9 10 11 12 13 14 15 16 the spouse and again was refused. On November 4, 2013, she called again, asking to add the 17 18 19 20 21 22 23 24 25 the benefits booklet excluding same sex wives or husbands. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 15 Cleveland Stockmeyer PLLC
legal same-sex marriages. Pitsch called back on September 24, 2013 at 7:22 a.m. and left a message saying those rules did not apply to BNSF. 88. On September 29, 2013at 11:43 a.m. Amie Garrand called United Healthcare to
add her new infant son to coverage and her wife, Carol. They added the infant son but refused to cover Carol saying again BNSF only recognizes marriage as one man one woman. 89. On September 30, 2013 Amie Garrand called United Healthcare seeking to add
spouse, and was again refused. On November 21, 2013 at 4:55 p.m. Garrand again called United Healthcare and spoke with an employee named Monica who said she remembered the last time Garrand spoke with her. Garrand asked to add the wife and Monica said no, nothing had changed, and she was not allowed to add the spouse because it is a same-sex marriage. 90. The letter United Healthcare sent to Amie Garrand quoted the benefits plan but
the portion quoted stated that the booklets page 16 describing eligible dependents includes Your wife or husband. This language includes Amies wife, Carol. There was no language in
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91.
BNSF is denying coverage for Carol Garrand because Amie Garrand is female; if
Amie were male, BNSF would provide the coverage -- as it does to many thousands of male employees with female spouses. 92. At times BNSF or United Healthcare told Garrand that a collective bargaining
agreement forces them to deny coverage for Carol Garrand. This was not true factually or legally. The benefits plan said Your wife or husband is an eligible dependent and in any event excluding same-sex spouses is illegal pay discrimination based on the sex of the employee. Union contracts are not a legal way to excuse or justify discrimination.
9 10 11 12 13 14 15 16 collective bargaining agreements currently in effect, but the Plan Administrators, listed below, 17 18 19 20 21 22 23 24 25 by the plan. The Garrands received similar treatment. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 16 Cleveland Stockmeyer PLLC
SUPPLEMENTAL FACTS AFTER DEC. 3, 2013 AND OTHER KEY FACTS 92.1 Following the filing of this complaint in federal court on December 3, 2013,
BNSF sent or caused to be sent the Halls and on information and belief, all employees, a document dated and sent December 23, 2013. The document stated as follows: Effective January 1, 2014 the Plans that are listed below will provide dependent coverage to covered railroad employees same-sex spouses. This is not a benefit that is required by law or under the
have determined to voluntarily provide this benefit in light of recent changes in the law that allow married same-sex couples to access the same Federal tax benefits provided to married opposite-sex couples. The latter stated the change applied to the Railroad Employees National Health and Welfare Plan, a plan covering the plaintiffs, herein, with the administrator thereof being the Joint Plan committee. 92.2 At the same time the Halls received a health coverage card listing Elijah T. Hall
as a covered dependent and since January 1, Eli Halls health care coverage has been provided
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92.3
Also on December 23, 2013, United Health Care sent the Halls a letter responding
to one of his several appeal letters regarding adding your husband to your medical insurance policy. The letter went on to state that United had considered all the supporting information received, but UnitedHealthcare has no jurisdiction over who can be added to your policy. We provide administrative and claim payment services only. All issues related to who may or not [sic] be added to your policy are made entirely by your employer. [This referred to BNSF.] We apologize if our previous responses were inadequate and/or incorrect. An actual appeal with the Central Escalation Unit [of United] cannot be conducted on a member who is not on your policy.
9 10 11 12 13 14 15 16 letter amounted to denial of appeal avenues at United, for the Halls and Garrands. 17 18 19 20 21 22 23 24 25 couples; but BNSF still has not covered them for the period up to January 1, 2014, and has on 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 17 Cleveland Stockmeyer PLLC
The issue regarding adding your husband to your policy can only be handled by your employer. Our records indicate that as of January 1, 2014, your husband Elijah Hall is a covered dependent on your plan. Please accept our sincere apology for your frustration as we worked to resolve your issue. The letter went on to note that Coverage is subject to the exclusions, limitations and other terms of your Summary Plan Description and You have the right to file civil action under section 502(a) of ERISA after you have exhausted all of your appeal rights. In effect, this
92. 4
On information and belief, the United Healthcare letter quoted above accurately
stated that the employer, BNSF, was in charge of making the decision regarding whether or not a same sex spouse including Eli Hall or Carol Garrand was to be covered under the terms of the plan; and as a result, on information and belief, BNSF is acting as the plan administrator or fiduciary and has denied coverage to plaintiffs. 92.5 Besides changing the practice to cover Eli starting January 1, 2014, BNSF also
changed its practice to cover Carol Garrand and on information and belief, other same sex
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information and belief told the plan to not cover the same sex spouses health care costs for prior to January 2014. Although the same sex couples are being covered in a de facto sense, at present, this comes with the statement that this is not a legal requirement and this practice can change at BNSFs whim and leaves plaintiffs insecure and without a solid benefit as a matter of right. BNSF and its agent United Health Care could revoke what they claim to provide now as a matter of grace, but not right; this renders the benefit insecure and constitutes ongoing discrimination and denial of equal pay based on sex and sexual orientation and causes plaintiffs to have distress and uncertainty. Benefits provided as a matter of grace are not secure and may
9 10 11 12 13 14 15 16 present controversy between the plaintiffs and others similarly situated, and BNSF, concerning 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 18 Cleveland Stockmeyer PLLC
perhaps be withdrawn just when a large health care cost is incurred. 92.6 There remains a failure and refusal to pay the spousal benefit to plaintiffs the
Halls and Garrands for medical costs occurring up to January 1, 2014 and ongoing and future denial of paying the benefit in a secure fashion as a matter of obligation, not grace. 92.7 On information and belief, despite the de facto change in practice, BNSF is still
taking the legal position the spousal benefit need not be provided legally and there is an ongoing
whether this benefit is legally required. 92.8 On or about July 18, 2013, the Halls had complained to the Washington State
Human Rights Commission about denial of the spousal benefit regarding Elis health care costs; and this triggered an Equal Employment Opportunity complaint or case to be opened as well. 92.9. On February 26, 2014, the EEOC issued its right to sue letter to the Halls,
providing them a 90 day window in which to sue BNSF under Title VII and their claim under the federal anti-discrimination laws became ripe and actionable. By suing under Title VII in this first amended complaint, the Halls Title VII claim is ripe and timely.
1 2 3 4 5 6 7 8 form of spousal health care benefits which BNSF was not paying or causing to be paid to Amie 9 10 11 12 13 14 15 16 96. 17 18 19 20 21 22 23 24 25 nations, in a flow of interstate and international commerce. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 19 Cleveland Stockmeyer PLLC
CAUSES OF ACTION FIRST CAUSE OF ACTION: FEDERAL EQUAL PAY ACT CLAIMS 93. 94. Plaintiffs incorporate and re-allege herein all other allegations of this complaint. The denial of equal pay in the form of spousal health care benefits which BNSF
was not paying or causing to be paid to Michael Hall respecting his husband Elijah based on Michaels sex violates the Equal Pay Act, 29 USC 206(d)(1). The denial of equal pay in the
Garrand regarding her wife Carol based on Amies sex violates the Equal Pay Act, 29 USC 206(d)(1). 95. BNSF is an employer within the meaning of the Act, with employees within the
meaning of the Act, including engineers or conductors such as Hall and Garrand. It has female engineers and conductors married to males for whom BNSF provides the benefit and male engineers and conductors married to females to whom BNSF provides the benefit. BNSF was and is an establishment directly engaged in interstate or
foreign commerce or production of goods including handling goods and has and has had employees such as Hall and Garrand directly engaged in interstate and foreign commerce and handling or production of goods moving in interstate or foreign commerce. 97. BNSF, Hall and Garrand and other engineers at BNSF directly use
instrumentalities of interstate commerce and were engaged directly in interstate commerce, i.e., driving or moving trains across parts the national BNSF railway in Washington State, containing goods or trains or cars sent from or to various States or
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98.
BNSF employed Hall and also female engineers or conductors or
employees in an establishment in jobs requiring substantially equal skill, effort and responsibility and performed under similar working conditions, surroundings and hazards. BNSF employed Garrand and also male engineers and conductors or employees in an establishment in jobs requiring substantially equal skill, effort and responsibility and performed under similar working conditions, surroundings and hazards. 99. The establishment is the entire 28-State BNSF railway (or, alternatively is
the NW Division or subdivisions or yards where Michael Hall or Amie Garrand work). 9 10 11 12 13 14 15 16 other employees who were male, who performed equal work on jobs requiring equal 17 18 19 20 21 22 23 24 25 and 35 conductors or 70 trainmen. In each part of the Railway, there are female 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 20 Cleveland Stockmeyer PLLC
100.
In said establishment(s), BNSF discriminated between plaintiff Michael
Hall, a male, and other employees who were female, who performed equal work on jobs requiring equal skill, effort and responsibility and which are performed under similar working conditions, by paying said females married to males spousal health benefits while not paying males married to males the same benefit, including Hall. In said establishment(s), BNSF discriminated between plaintiff Amie Garrand, a female, and
skill, effort and responsibility and which are performed under similar working conditions, by paying said males married to females spousal health benefits while not paying females married to females the same benefit, including Amie Garrand. The ongoing denial that they are entitled as a matter of right to the benefit is also ongoing denial of equal pay in that the benefit is not secure. 101. Nationwide BNSF has thousands of engineers or conductors. The NW
Division has some 800 engineers and the Auburn Triangle route has some 35 engineers
1 2 3 4 5 6 7 8
employees who are married to males, and who receive spousal health coverage; and male employees married to females who receive spousal health coverage; while BNSF denies the same benefit to males married to males, like the Halls, or females married to females, like the Garrands. 102. This discrimination in pay rates or benefits was pursuant to BNSF policy and
direction; was repeatedly ratified by BNSF, including its law and HR departments; and was not justified by any seniority or merit system, or system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. The letters dated
9 10 11 12 13 14 15 16 male; and it would be to pay the benefit to Amie Garrand if she were male and not female. The 17 18 19 20 21 22 23 24 25 CFR 1620.10 and 1620.11. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 21 Cleveland Stockmeyer PLLC
Dec. 23, 2013 from BNSF and United Health care confirm and state correctly that BNSF itself decided to make the discrimination based on sex complained of herein. The policy of marriage is one man one woman is not a distinction based on seniority or merit systems, or a system which measures earnings by quantity or quality of production; and is a differential based on the sex of the employee vis-a-vis his or her spouse. 103. BNSF policy would be to pay the benefit to Michael Hall if he were female, not
discrimination was and is based on sex. 104. Said discrimination and unequal pay caused and proximately caused plaintiffs to
suffer legal damages including economic loss, and emotional distress and pain and suffering. The economic loss of the Halls is estimated at $2,400 per month or some $24,000 to the end of 2013; the economic loss to the Garrands is estimated as the cost of the birth of Carol and Amies son, estimated as thousands of dollars to the end of 2013. Amounts will be proven at trial. 105. The benefits not paid to plaintiffs are wages under the Equal Pay Act and 29
1 2 3 4 5 6 7 8
106.
The discrimination by BNSF complained of herein violates the Equal Pay Act
206(d)(1), 215(a)(1) and (2) and 216(b). The ongoing refusal to recognize the benefit as legally required constitutes and ongoing threat of violation of the EPA. 107. The discrimination by BNSF complained of herein violates 29 CFR 1620.11(b)
providing It is unlawful for an employer to discriminate between men and women performing equal work with regard to fringe benefits; and subsection (d), providing that It is unlawful for an employer to make available benefits for the spouses or families of employees of one gender where the same benefits are not made available for the spouses or families of opposite gender
9 10 11 12 13 14 15 16 and make it a real benefit, not something given as a matter of grace, or changeable policy by 17 18 19 20 21 22 23 24 25 same-sex-married BNSF employees who are being denied equal pay for equal work via the 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 22 Cleveland Stockmeyer PLLC
employees. 108. BNSF is liable to Hall and Garrand in the amount of the unpaid benefits, plus an
additional equal amount as liquidated damages, and reasonable attorneys fees, and costs of the action, under 29 USC 216(b). Plaintiffs also are entitled to a declaratory judgment under the EPA that providing the same sex spousal health care benefit is required under that law such that its position taken in the Dec. 23, 2013 letter is incorrect legally; this will make the benefit secure
BNSF. 109. BNSF is also liable to the same extent to other employees in its establishment
who are similarly situated and suffer similar discrimination and who consent to be plaintiffs in this action. This includes similarly situated engineers or conductors, or other employees of BNSF, who were married legally in same sex marriages who are denied the benefit based on the one man one woman policy. 110. On information and belief, this group may include hundreds or thousands of
1 2 3 4 5 6 7 8
denial of the spousal health care benefits based on the sex of the BNSF employee vis--vis the sex of his or her legally married spouse. 111. The suit under the Equal Pay Act is ripe now and plaintiffs sued under that Act
because those claims were ripe last December. Although the Dec. 23, 2013 letter stopped certain damages from accruing going forward as of January 1, 2014 it did not remedy or pay plaintiffs for the past discrimination occurring in 2013, and the position the benefits are not legally required constitutes an ongoing present controversy between the parties as to whether the benefit is legally required under the Equal Pay Act and further amounts to a threat of denial of the
9 10 11 12 13 14 15 16 notice by the EEOC of the right to sue and plaintiff Michael Hall seeks declaratory and 17 18 19 20 21 22 23 24 25 of the work days in 20 or more weeks in the current or preceding year under 42 USC 1981a. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 23 Cleveland Stockmeyer PLLC
benefits at BNSFs discretion which is unequal pay itself and continuing discrimination. SECOND CAUSE OF ACTION: DISPARATE TREATMENT UNDER TITLE VII 112. 113. Plaintiffs incorporate and re-allege herein all other allegations of this complaint. This action under Title VII is allowed under 42 USC 2000e-5(f)(1) allowing a
civil action to remedy an unlawful practice in employment under Title VII within 90 days after
injunctive relief, backpay of the benefit and compensatory damages under this section. The Title VII claim is timely under the 90 day window. Jurisdiction and venue are appropriate in this Court under 42 USC 2000-e-5(f)(3), providing jurisdiction to hear Title VII civil actions in each United State district court, and because this is the judicial district in the State in which the unlawful employer practice occurred. BNSF has over 14 employees each work day in 20 or more weeks in the current year or preceding year prior to the unlawful acts described herein, and is an employer under 42 USC 2000e-2b. BNSF also has had more than 500 employees in each
1 2 3 4 5 6 7 8 of Michael Halls sex. Michael Hall is a male properly performing his job, who experienced 9 10 11 12 13 14 15 16 specific intent to discriminate based on sex under its declared facially discriminatory policy -17 18 19 20 21 22 23 24 25 116. 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 24 Cleveland Stockmeyer PLLC
114.
42 U.S.C. 2000e et seq., provides that [i]t shall be an unlawful employment
practice ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of ... sex[.] BNSFs denial of spousal health care benefits to the same sex married persons it employs including Michael Hall violates the above mentioned section because the spousal health benefit is part of compensation and is a material part of the terms and conditions of employment; and the denial of the benefit is because
adverse employment action in the denial of the spousal health benefit, due to his sex, where similarly situated females were treated more favorably by getting the benefit. If Michael Hall were female, the benefit would be provided; BNSF provides it to female employees who are married to males but denied it to Hall who is married to a male. BNSF is using a forbidden criterion, sex, to deny a material benefit to Michael Hall as a matter of policy. The denial here is also violative of Title VII because it is based on gender nonconforming conduct. BNSF had the
marriage is between one man and one woman. BNSFs discrimination was also malicious, reckless or oppressive. 115. While BNSF ordered that the benefit be provided starting January 1, 2014 this
effort to mitigate its damages for its violation of Title VII did not remedy the discrimination occurring prior to that date. The ongoing position that the benefit is not legally required also constitutes continued and ongoing discrimination based on sex. A benefit that is not legally required is not the same as a benefit that is legally required. The discrimination caused Hall to proximately suffer damages.
1 2 3 4 5 6 7 8
117.
The statement on Dec. 23, 2013 that the benefit is not legally required creates an
ongoing present controversy between Hall and BNSF about whether Title VII allows denial of this benefit based on sex. 118. Plaintiff Michael Hall is entitled to compensatory and punitive damages, fees and
costs for the violation of 42 USC 2000e et seq. and also to a declaration under Title VII that BNSF is legally required to provide the benefit. Under this section plaintiff Hall seeks all compensatory and punitive damages available including front pay, emotional distress and other damages, to the maximum extent allowed in this section. Plaintiffs allege that the unlawful
practices engaged in by BNSF were engaged in intentionally, and with malice or with reckless indifference to the federally protected rights within the meaning of 42 USC 1981a(b). Plaintiff Hall also seeks fees and costs under 42 USC 2000e-5(k). THIRD CAUSE OF ACTION: DISPARATE TREATMENT DISCRIMINATION UNDER WLAD 119. 120. Plaintiffs incorporate and re-allege herein all other allegations of this complaint. RCW 49.60.030(1) recognizes the right to be free from discrimination because
of sex and or sexual orientation and this right includes (a) the right to obtain and hold employment without discrimination. Subsection (2) of this section provides a civil remedy for violations of this right including an order to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended. RCW 49.60.180(3) further specifies that it is an unfair practice for any employer [t]o discriminate against any person in compensation or in other
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
terms or conditions of employment because of age, sex, marital status, sexual orientation, race, and other protected statuses. This law applies to BNSF as it is an employer under the WLAD. 121. BNSF denied Michael Hall and Amie Garrand the spousal health care benefit for the period ending January 1, 2014. This violated the foregoing sections of the WLAD. The denial was based on sex, and also on sexual orientation. The benefit would have been provided to Michael Hall but for his sex. The benefit would have been provided to Amie Garrand but for her sex. In each case others similarly situated of the opposite sex were paid the benefit. Michael Hall is a gay man and Amie Garrand is a lesbian woman and the spousal benefits were also denied to each due to their sexual orientation; BNSF stated, marriage is one man, one woman. If each were of the opposite gender they would not have been denied the benefit; if each were heterosexual and not homosexual, they would not have been denied the benefit. In respect to each plaintiff employed by BNSF there was disparate treatment based on sex, and sexual orientation. As of January 1, 2014, the position that the benefit is not legally required constitutes ongoing discrimination based on sex, and sexual orientation. 122. Said discrimination is disparate treatment based on sex, and sexual orientation
under the WLAD and caused and proximately caused and is causing damage to Michael Hall and Amie Garrand. The ongoing claim that the disparate treatment is legally permissible constitutes ongoing discrimination which causes damages to plaintiffs. proximately This also creates a present controversy of importance between plaintiffs and BNSF. Plaintiffs Michael Hall and Amie Garrand are entitled to recover compensatory and punitive damages, fees and costs under the WLAD, and to a declaratory judgment that BNSF must pay the benefit, legally and not as a matter of grace, and its past and present and ongoing position that the benefit legally need not be paid, violates the WLAD and the civil right to be free of discrimination based on sex, and sexual orientation. FIFTH CAUSE OF ACTION: ERISA CLAIMS FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 26 Cleveland Stockmeyer PLLC
1 2 3 4 5 6 7 8
123. 124.
Plaintiffs incorporate and re-allege herein all other allegations of this complaint. The Employee Retirement Income Security Act 29, USC 1132(a)(1) and (3)
provides that a participant or beneficiary of a employee benefit plan may sue to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan or to obtain an order or judgment to enjoin any act or practice which violates any provision of ERISA or the plan or other appropriate equitable relief to redress such violations or enforce provisions of ERISA or terms of the plan.
125. The 2013 denial of the spousal health benefit to plan participant Michael Hall and beneficiary Elijah Hall and to plan participant Amie Garrand and beneficiary Carol Garrand violated the terms of the plan which provided that the benefit was to be paid to the employees wife or husband. This violates ERISA. The denial of benefits was deliberate, intentional and malicious and constitutes an abuse of discretion or was an arbitrary and capricious denial of rights under the plan. The ongoing position that the benefit need not legally be paid constitutes an ongoing violation of the plan and ERISA. 126. The plan is a separate legal entity, see 29 USC 132(d)(1), but on information and
belief BNSF caused the denial of benefits and violation of the terms of the plan and/or is acting as the administrator or fiduciary operating the plan responsible for such denials. BNSF may be sued directly in its individual capacity with a money judgment to be entered against it rather than the plan, under 29 USC 1132(d)(2). 127. Jurisdiction and venue are proper in this Court. 29 USC 1132(e)(1) provides the
district courts of the United States with exclusive jurisdiction of civil actions under ERISA by a plan participant or beneficiary. 20 USC 1132(e)(2) provides such actions may be brought in the district where the plan is administered, where the breach took place, or where a defendant
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
resides or may be found, and process may be served in any other district where a defendant resides or may be found. On information and belief, the Western District of Washington is a district where the breach took place, or where BNSF resides or may be found. 128. The Halls appealed the denial of ERISA benefits repeatedly to United. The
December 23, 2013 letters from United amounted to a final denial of any internal appeals the Halls had. In the United letter, they were told no appeal in fact ever could have been made to United or the plan as the matter was in the hands of BNSF. The Halls have exhausted any remedies or BNSF has acted to make them pointless. Amie Garrand is a participant and Carol Garrand is a beneficiary. The Garrands received the same letter the Halls received from BNSF. The Garrands are in the same position as the Halls; they were told by United they would not get the benefit, and now they received the same letters in December 2013 the Halls got. Any appeal to the plan by them is futile or pointless as the matter is in hands of BNSF which has made its general decision about these benefits, and United is indicating it will not hear any appeal. The Garrands have exhausted any remedies or are excused from doing so. 130. Plaintiffs were proximately damaged by the denial of benefits in violation of the
plan. While BNSF is paying the benefits going forward post January 1, 2014, this does not remedy the past denial of benefits. Also, the BNSF position that they are not legally required creates an ongoing threat of denial of benefits which is a present denial of the certainty of the benefit being paid in the future which violates the plan. It also creates dispute between plaintiffs and BNSF concerning the plan as to which a declaration of rights is appropriate. 131. Plaintiffs are entitled under ERISA to an order awarding them the unpaid benefits
they should have been paid for 2013 health care costs; award of costs and attorneys fees for this action; and an order declaring that under the plan the spousal health benefit is legally required under the plan to same sex couples legally married, and enjoining BNSF to not deny the benefit
FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 28
Cleveland Stockmeyer PLLC

1 2 3 4 5 6 7 8 9 10
in the future, to cease the legal position the benefit is not required and to cease directing the plan in this regard or cease interfering in the plans provision of such benefits.
PRAYER FOR RELIEF NOW, THEREFORE, plaintiffs pray for the following relief: 1. For a judgment in an amount for actual and liquidated damages, to be proven at
the time of trial; plus costs, attorneys fees, pre and post judgment interest, and any punitive damages as allowed by law;
11 12 13 14 15 16 17 18 3. 19 20 21 22 23 24 25 26 DATED this 26th day of March 2014. CLEVELAND STOCKMEYER PLLC By:___/s/ Cleveland Stockmeyer _____ Cleveland Stockmeyer WSBA # 21636 8056 Sunnyside Ave. N Seattle, WA 98103 (206) 419-4385 Email: cleve@clevelandstockmeyer.com Attorney for Plaintiffs FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 29 Cleveland Stockmeyer PLLC
2.
For a judgment and order enjoining defendant from continuing the
discrimination and denial of plan benefits complained of herein, and decreeing BNSF shall pay the benefit sought herein to any legal wife or any legal husband, regardless of the sex of the BNSF employee or his or her sexual orientation or status as same sex married; and BNSF shall direct and cause the plan to pay said benefits as a matter of right, and cease interfering with payment of said benefits, and For such other relief as the Court may deem equitable and proper.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 30 Cleveland Stockmeyer PLLC
BADGLEY MULLINS TURNER PLLC By: s/ Duncan C. Turner Duncan C. Turner, WSBA # 20597 4750 Columbia Center 701 Fifth Avenue Seattle, Washington, 98104 Telephone: (206) 621-6566 Email: duncanturner@badgleymullins.com Attorney for Plaintiffs
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
DECLARATION OF SERVICE
LISALOU GOGAL states and declares under penalty of perjury as follows: I hereby certify that on this day, I served the foregoing on the defendant, by mailing to its registered agents for service of process by depositing same in the US mail, postage prepaid, addressed to:
CT Corporation 505 Union Ave. SE Suite 120 Olympia, WA 98501
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on this __26___ day of March, 2014, at Seattle, King County, Washington.
____/s/ LisaLou Gogal_________ LisaLou Gogal
FIRST AMENDED COMPLAINT UNDER EQUAL PAY ACT, FEDERAL AND STATE DISCRIMINATION LAWS AND ERISA - 31
Cleveland Stockmeyer PLLC

Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 1 of 15
Exhibit A
I IMPORTANT NOTICE
This booklet describes the Health Care Benefits provided for U.S. residents under the National Railway Carriers and United Transportation Union Health and Welfare Plan ("Plan") for employees covered by a collective bargaining agreement with a participating employer that provides for the Plan benefits this booklet describes. Other benefits provided by the Plan are described in a separate booklet entitled Life Insurance Benefits for U.S. Employees and Retirees and Accidental Death and Dismemberment Insurance Benefits for U.S. Employees. If you are employed by a participating railroad that does not engage in national collective bargaining and has not yet adopted the terms of the most recent national collective bargaining agreements, this booklet does not apply to you. You can obtain a copy of the booklet that applies to you by contacting the company that administers your benefits. The Plan is maintained pursuant to collective bargaining agreements between certain freight railroads and the United Transportation Union (the "UTU") that provide for the Plan benefits this booklet describes. * * * * Because certain employees sometimes work in train service and sometimes in engine service, the Plan has been designed to avoid movement back and forth during each calendar year - and the hardships they may cause to the employee and the employees dependents - between eligibility under the Plan and eligibility under The Railroad Employees National Health and Welfare Plan. Thus, the Plan provides that the following employees of participating railroads who work under a collective bargaining agreement with either the UTU or the Brotherhood of Locomotive Engineers and Trainmen ("BLET") are eligible for Plan coverage during a given calendar year: employees as to whom UnitedHealthcare has been advised, before the last Friday in August of the prior calendar year, had earnings from train service in
1
UnitedHealthcare's records indicate that, as of the last Friday in August of the prior calendar year, you had last worked under a collective bargaining agreement with the UTU, but this provision applies only if, before the last Friday in August of the prior calendar year, UnitedHealthcare had not received advice with respect to your earnings in train and engine service during the twelve-month period ending June 30 of the prior calendar year; or
You were hired after the last Friday in August of the prior calendar year under a UTU agreement and did not first work under a collections bargaining agreement with the BLET; or If you dont come within any of the groups described above and, after the last Friday in August of the prior calendar year, you moved to a position covered by a UTU agreement and as of the date of the move you had not last worked under a BLET agreement.
Eligible Employees of hospital association railroads, who must look to their hospital association for their health care benefits, have limited Employee Health Care Benefits under the Plan (see pages 37 through 46 for details). A person who is a living donor of an organ or tissue to a Covered Family Member will be considered a Covered Family Member for purposes of the Plan's Health Care Benefits, but such Benefits will be paid to that person only for Eligible Expenses in connection with the donation of an organ or tissue to a Covered Family Member under the benefit program (CHCB or MMCP) in which the Covered Family Member receiving the organ or tissue is enrolled.
Eligible Dependents
Your Eligible Dependents are: Your wife or husband. Your unmarried children under 19. Your unmarried children between 19 and 25 who:
16
Care furnished mainly to train or assist in personal hygiene or other activities of daily living, rather than to provide medical treatment; or, Care that can safely and adequately be provided by persons who do not have the technical skills of a covered health care professional.
Care that meets one of the conditions above is custodial care regardless of any of the following: Who recommends, provides or directs the care. Where the care is provided. Whether or not the patient can be or is being trained to care for himself/herself.
Eligible Dependent
An individual described under the heading "Eligible Dependents" on pages 16 through 17 of this booklet.
Eligible Employee
An individual described under the heading Employees" on pages 15 through 16 of this booklet. "Eligible
Eligible Expenses
The actual cost to you of the Reasonable Charges for Covered Health Services or for Prescription Drugs that are covered under the MPSB.
Emergency
For purposes of the CHCB and MMCP, the sudden onset of a medical condition manifesting itself by acute symptoms, including severe pain, which are severe enough that the lack of immediate medical attention could reasonably be expected to result in any of the following: The patient's health would be placed in serious jeopardy. Bodily function would be seriously impaired. There would be serious dysfunction of a bodily organ or part.
122
Exhibit B
Print
Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 6 of 15 Page 1 of I
Subject:
BNSF Discrimination and ILLEGAL actions Eli (eliu 1 9TStayahoo.com

)
From: T^. Cc: Date:
richard.weichenabnsf.com; charles.shewmake(dbnsf.com; riz.chand(dbnsf.com; matthew.rose@bnsf.com;

l<risten smithknbnsf com; roger.nobera4bnsf.com; carl.icei@bnsf.com;
eliu
1
T5ioyahoo.com;
Monday, July B, 2013 10:24 AM
To everyone concerned:
SEtr AI,L ATTACHMENTS! I have a few more answers to the ILLEGAL actions of BNSF Railway, and their refusal to provide LEGAL spousal benefits to legally married same sex couples. BNSF Railway AND United Healthcare have discriminated us, and refuse to provide the iegal beneiits to legally marrie(l couples. We finally have spoken to an attorney, and we are working with him to get letters out to BNSF Railway. Their illegal actions hzrve been dealt vu'ith long enough, and now it is time to let them, and UNITED HEALTHCARE know Lhat they are not above the 1aw. I have dealt with enough pain and sufl'ering, headaches, etc from their discrimination. I am also attaching an outiine of some of what .we have bee going through again. Their health guide DOES NOT state that spouse is 1 man and I woman, or someone of the opposite sex, it is just listed as spouse. I am also attaching the health guide.
"With DOMA gone. couples in states that rccognize same-sex maniage will now be ablc to neccivc the same beneflts as heterosexual couples. but couples in states that do not recognize same-sex marriage will not be eligible. Larqe businesses that operate in multiple states will have to keep track ofwho lives under what j-udsdje$o-n. The day's rulings are clear for people who were married and live in states that allow same-sex
marriage. Legally marr;ed same sex couples are now are eliglble for the same benefits as heteroslxual
married couples. "

F-liiah I tall
http ://us-rn96.nrai l.yahoo.conr./neo/launch'l.rand=b3oi70j6to I lp
7/3 1 /201
lbr BNSF Raihvay, and has worked fbr the company' since November20l0. His lt) is 002i309. We got marricd Jan.2l,2011, and we have been liphting BNSF Railwal ANt) United Healthcare since rle got married. b add me to his health insurance. They have point blank discriminated us. When we tried adding mc to his health plan. we were told b)'LJnited Hcalthcare, *'ho does their insurance policy, that BNSF Railway believes marriage is between I man and I *,oman, so the_v will not provide health care to legally manied same sex couples. At that time, we enailed BNSF Railrvay, and they refused to answcr. We rvaited a lbw months, and then tried to add rne
M-v husband. Michael is a locomotive engineer
llall.
again. and was told the same thing. Then on 26 June 2013. DOMA was ovenurned, by the Ljnited States Supreme Court. "With I)CrMA gone. couples in states that recognize same-sex marriage will now be able to receive the same br:nefits as heterosexual couples. but couples in states that do not recognize same-sex marriage will not be t:ligihle.
Larse businesses that ooerate in multiple states will have to keep track ofwho lives under what iurisdiction. The day's rulings are clear for people who were married and live in states that alkrw samesex marriage. Legally married same sex couples are 49ry are eligible for the same benefits as heterosexual married couples." So, we called [Jnited tlealthcare to add me to my husband's policy. arrd they acted like thel'did not know what DOMA u,as. They said they could not add me. hecause their hands were tied. and they had to listen to BNSF Railway. I then called BNSF Railway law deperrtment. and spoke to a Tina. My tirst question was when is BNSF Railway u'ay going to provide spousal benefits fbr same sex marriages? I said DOMA was overtumed. and any state that had legal gay marriages, norv have FUI,L federal benefits as well. She cut me offand said it takes time. and they will do it when thev want. I told her BNSF had enough time for thb to happen, because everyone has becn waiting months for this verdict, they should have had a plan. She was kind ofstultering and said I can transler you to labor union attomey and then acted like she could not transf'er. Ihis is getling beyond ricLiculous, BNSF RAILWAY is NO-f above the law. and needs 1o be reprimanded SEVERELY!!l I called back and l'ina translerred me to another prson, and they said I had the wrong rrumber and hung up on rnr:. I called back. and when I started talking about the spousal benefits a lady.iust hung up on me. I called back lbr the 4th time. got a Cathy, and she says you need to call HR. I told her they will not do anything, and said it is a law issue. She rvas like I can take your number and have someone callyou back. I told her
someone took mv number yesterday and was to call me back. and no one did, and I wanted ansvrers- She
said hold on. and hung up the phone. fHESE ILLEGAL AC |IONS NFIED S |OPPED
IODA\'Il'
BNSII RAILWAY IS NOT ABOVE THE LAW AND AC'|ION NEEDS TAKf]N NOWII!!!!!!!! According to the UNI'I'ED STATES Supreme Cor.rrl ruling. ALL slatcs that have legal marriage (which is l2 stales) nust have FU I-1, FEDERAL BEN EFITS. The ruling was fbr the SAM E federal benefits as heteroscxual couples. A part ofthe ruling that would pertain to BNSF Railway the most is:
I cailcd United Healthcare again. and got an employee that was verv rudc, and would not give me her narne. I flrst asked her where in the benelits guidc did it state that marriage, or spouse was I man and
woman. and she said it does not state that. The health guide DOES NO l state that a spouse or ntarriage is I rnan and I woman. it is jusl something BNSF Railway told tJnited llealthcare to do. and it is rot in tlre health guide. In Januarl, and betbre the court ruling. lJnited Healthcare was always telling us, t]NSIr told thenr marriage was between
man and
I woman. I got
a cop1.
.
of the guide, and firrwarded the p,uidc to At that point. is when that rude lady uas
1(r
telling nre. that after the t.INITED S'|ATES Suprenre Court rulrng. BNSF Railway sent them a letler
denl'these legal marriages with healthcare. She was snott\', and said" like she rvas a homophobt:. "lct rne read it to 1ou". and she got the letter. and startcd rcading it to me. I stopped her and demanded her nante. and she said snotty. no I will not give you my name. I asked her for a copy ofthat letter lhat IINISI sent. that stated to disregard the Supreme Court ruling, and she ignored me. I finally got hcr to transfer me to a
supervisor, and I got a Beth, uho then said she was not a supervisor. Beth then transl'ened me trt a Vanessa. who said she was a supervisor. but would not do anything. BNSF Railway thinks they are above the lau. and one person tiom BNSF even told us thel'were yesterday. and said thel do not have to
complv to federal laws. I have contacted the ACLLI. Washington State Insurance Commissioner, BLI')'I ofiicials(who A LL hare ignorcd the cmails). White Ilouse. State I"egislatures, Human Rights Campaign. American Bene tlts Clouncil. New York l'imes, U I'tJ olllcials. and other placcs as wcll, waiting fbr responses. I hale entrilcd places to see ifthey can ref'er lawyers to take the case as well" and not heard back yet. I have over 100
enrails I have sent.
My husband is afraid that BNSF Railway is going to retaliate, and he is going to get fired for liling thcsc cot'uplaints. This has caused a lo1 ofundue stress on our marriage. I have been caused enough grain and suflering, and they have caused me to shake so bad I break down and cry. My ncrves are shot, and I am tired of this discrimination.'l'his discrimination stops NOW. and legal action needs to be taken rLgainst BNSF Railwal !
I am cunently on medications that tt.rtal over $2400 a month. At this point. the state of Washington is paying fbr my insurancc. however. they did say that come nry renewal in Nolernber, thev woulc not bc ablc 1o provide me with insurance. reason being they would have to use my husband's income as part o1'mine. and he makes loo much lbr me to qualify for state assistance. Getting the legal spousal benellts that I anr cntitlcd to. is inrportant since it is a matter of life or death firr me to lrave this
rned ication.
-l'he
I am attaching the BNSI healthcare guide. so you can see the plan for yoursell, and that thet.' reli:r to spouse as spouse. and not I man and I woman. or somcone o1'the.rpposilc scr.
Ple'asc Helpl
1'hank 1'ou.
lr
Ii Hall
Which marriages will be considered valrd by the federal government for b,enefits purposes?
If y' ou live in a state thal respccts vour marriage: I he federal government will consider your rnarriagc valid. and you have a right to all the protections thal are required to be ofTered to spouses undcr I'e<leral la$.
What does this mean for legally married same-sex couples living in a sterte that respects their marriage?
Same-sex couples who are legally married and live in a state lhat respects their marriage should be eligible virtually right away for {he same protections, responsibilities, and access to lederal programs afforded to all other married couples. lhe federal govenrment may take some additional time to charge fbrms. train stall. and otheru ise prepare for this change. We expect turther guidance fiom the ttrderal government and will update this Q&A and the "After DOMA: What it Means lror You,'LGB'f Organization Fact Sheet Series accordirrgly. I'here are more than l,100 places in f'ederal law where a prolection or responsibility is trased on marital stalus. A fcw key examples include access lo S<x:ial Security survivors' henefits: the option to use lamily medical leave to carc lbr a spouse: the opportunitv to sponsor a foreign-born spouse fbr citizenship: and access to veterans' spousal benelits.
Does my employer have to change its pension plan before my spouse will be entitled to these protections, or will my spouse automatically be eligible?
It depends on what \'our plan documents say, and mav depcnd on which kind of benefit is at issLre. Ifyour plan, like most. simply refers to ''spouses." your employer doesn't necessarily need to change anything in order 1o include spouses ofthe same sex. Ifyour plan states that "spouse" means only different-riex couples, or is determined bl relerence to the law ofa state thal does not respect vour marriage, )/our plan documents likely need to be revised to comply with t'ederal law. But, 1,ou and your spouse should be cntitled to protections in the meantime even ifyour plan doesn't change its language-'falk with someone in your human resources department. Ifyou still have questions, contact one ofthe organizationr; listed below. or a lawyer who specializes in employee benefits.
What should I do if I am told that my plan won't cover my spouse?
Il'your employer or your retirement or health plan tclls you that your spouse will not be trcated as difl'erent-sex spouses are. it may be important to act quickly to preserve your rights. Sometinres the issuc can be cleared up with a conversalion. but you must follow the specific time linrils to appeal determinalions made try your plan. Contact one ofthc organizations listed below. or a lawyer who specializes in ernployee benefits.
II
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GAY & LESBIAN ADVOCATES & DEFENDERS
LAMBDA LEGAL
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Exhibit C
Print
Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 14 of 15 l)agc I
o1' 2
Subject:
Re: BNSF Discrimination and ILLEGAL actions Eli (eliu

elir.r |
1
From: To: Cc: Date:
T5Loyahoo.com)
975.lryahoo.com, richard-weichenqbnsf.com, charles.shewmakeLdbnsf com; riz.chand@bnsf.com matthew.roser@bnsf.com; kristen.smith(4bnsf.com, roger.noberf@bnsf.com; carl.icei@bnsf.com, Patricia.pitschl4bnsf.com:
eliu I 9T5iiryahoo.com;
Wednesday, July 10.2013 12:52 PM
To All Concerned: First off. I would like to state SHAME SHAME SHAME on you, BNSF Railway for allowing this discrimination and ILLEGAL actions to go on this long. For a company that prides themselves on being a company built around diversrty, and having a diversity department, YOU SURE DO DISCRIMINATEI
Also. I spoke with Pat Pitsch, Director of Medical Benefits, BNSF Railway, and she more or less stated that BNSF Railway was indeed above the law. She stated that BNSF Railway did not have to abide by the United States Supreme Court ruling She also stated that BNSF lawyers said that there was nothing in the Supreme Court ruling that says BNSF Railway must change their plan. I SUGGEST YOU BETTER READ T|IAT AGAINI!l She stated that it was a multiple employer plan, and there was nothing BNSF Railway could do MORE LIES! She said it would be done through collective bargaining, and a decision would not be made until
fall of 2015!
I let her know I was writing down her words to give to our lawyer, and she changed her words 3 tim{)s. I was reading back to her word for word, and she was like, no that is not what I am saying I told her bull, I wrote it down, and WILL BE using it. She flnally stated that she could not talk to us anymore, and was going to hang
up.
2650 Lou Menk Drive Fort Worth, TX 761 31-281i0. I told gave her that is the address I the lawyer already, and asked if there was a person lo have it go to, or if there was a different address that legal letters go to, and she refused to answer that.
I totd her a tawyer was sending a letter to
YOUR ILLEGAL ACTIONS AND DISCRIMINATION STOPS NOW!!I I SUGGEST'YOU READ VERY CAREFULLY THE FOLLOWING PASSAGES ABOUT THE NEW LA'/VSIII
"With DOMA gonc. couplcs in states that recognize same-sex nrarriage will now be able to reccive the sarne bcneflts as heterosexual couples. but couples in states that do not 1g,J1'gnizc same-se\ marriagc- u ill not bc eligible. Large busincsses that operate in multiple states will have to keep track ofwho lives urnder rlhat iurisdiction. The day's rulings are clear for people who were married and live in states that allow r;ame-sex
marriage. Legally married same sex couples are OgW are eligible for the same benefits as heterosexual married couples. "
Which marriages will be considered valid by the federal government for benefits purposes?
lf -"-ou livc in a state that respects )our marriage: lhe l'ederal governnrc|lt will consider your marrial_le valitl. and you have a right to all thc protections that are required to be ofl'ered to spouses under fcderal law.
http:/r'us-n 96.mail.yahoo.com/neo/launch'?.rand=bloi 70j6to
I Ip
7i3 r/201
Print
Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 15 of 15 Pagc 2 of' 2
What does this mean for legally married same-sex couples living in a state that respects their marriage?
Same-sex couplcs who are legalll nranied and live in a statc that respects their marriage should be eligible virtuallv right arval lbr the same proteclions. responsibilities. and access to l'ederal prograrns afforded to all other married couples. The federal govemment mav take some additional time to change fbrms, train stall. and otherwise preparc tbr this change. We expect further guidance tiom thc t'cderal govemmcnt and will update this Q&A and the "After DOMA: What it Means lror You'' I-GBl Organization Fact Shect Series accordingll, 'l here are more than 1 .100 places in f'ederal law where a protcction or rcsponsibilitv is based on mzLrital status. A ferv ke1- cxamples include access 1o Social Securin survivors' benefits: the option to use famiiv medical leavc to care fbr a spouse; the opportunity to sponsor a foreign-born spouse for citizcnship; and ac(:ess k)
veterans' spousal benelits.
Does my employer have to change its pension plan before my spouse lvill be entitled to these protections, or will my spouse automatically be eligible?
It depends on wlrat \our plan documents sal. and may depend on which kind ofbenefit is at issue. Ifyour plan. like rnost. simplv ref'ers to "spouses." your emploler docsn't neccssarily need to change anrthing in ordcr to include spouscs ofthe same sex. Ifyour plan states that "spouse'' means only diilerent-sex couplcs. or rs deterrnined by ref-erence to the la\\ ofa state that docs nLrt respect )our marriage, your plan documr:nts likely need to be revised 1o compll with tederal law. But. you and your spouse should bc entitlcd to protections in the mcantime even ilvour plan doesn't change its language. Talk with someonc in y,our hunran resounres department. lfyou still havc qucslions. contact one ofthe organizations listed belo$. or a lawyer u'ho
specializes in
enr
plovee benetits.
What should I do if I am told that my plan won't cover my spouse?
If1'our emplover or vour retirement or hcalth plan tclls you that vour spouse rvill not be treated as rlifJ'erent-sex spouses are. it mav be important to act quickh'to preserve your rights. Sometimes the issue can be cleared up with a conversatir)n- but \ou must tbllow the specific time lirnits to appeal determinations rnade bv your plan. Contact onc ol thc organizations listed belou.. or a lawver w,ho specializes in employee benefits.
I lijah t lalt
http:irus-rn96.mail.r'ahoo.com/neo/launch?.rand:bloi70i6to
lp
7/i l/2013

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Case 2:13-cv-02160-RSM Document 8 Filed 03/26/14 Page 1 of 31

vs. BNSF RAILWAY CO., a Delaware corporation,

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

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

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BNSF employed Hall and also female engineers or conductors or

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

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

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Cleveland Stockmeyer PLLC

Case 2:13-cv-02160-RSM Document 8 Filed 03/26/14 Page 29 of 31

For a judgment and order enjoining defendant from continuing the

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

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

CT Corporation 505 Union Ave. SE Suite 120 Olympia, WA 98501

____/s/ LisaLou Gogal_________ LisaLou Gogal

Cleveland Stockmeyer PLLC

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Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 6 of 15 Page 1 of I

BNSF Discrimination and ILLEGAL actions Eli (eliu 1 9TStayahoo.com

From: T^. Cc: Date:

richard.weichenabnsf.com; charles.shewmake(dbnsf.com; riz.chand(dbnsf.com; matthew.rose@bnsf.com;

Monday, July B, 2013 10:24 AM

married couples. "

http ://us-rn96.nrai l.yahoo.conr./neo/launch'l.rand=b3oi70j6to I lp

Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 7 of 15

Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 8 of 15

Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 9 of 15

What should I do if I am told that my plan won't cover my spouse?

Case 2:13-cv-02160-RSM Document 8-1 Filed 03/26/14 Page 10 of 15

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/s/ LisaLou Gogal_____ LisaLou Gogal