In re Union Pacific R.R. Employment Practices Lit.

• Decision Date: 22 July 2005
• Docket Number: No. 8:03CV437.,8:03CV437.
• Citation: 378 F.Supp.2d 1139
• Parties: In re UNION PACIFIC RAILROAD EMPLOYMENT PRACTICES LITIGATION
• Court: U.S. District Court — District of Nebraska

378 F.Supp.2d 1139

In re UNION PACIFIC RAILROAD EMPLOYMENT PRACTICES LITIGATION

No. 8:03CV437.

United States District Court, D. Nebraska.

July 22, 2005.

Barbara C. Frankland, Rex A. Sharp, Gunderson, Sharp Law Firm, Prairie Village, KS, Claire Cordon, T. David Copley, Keller, Rohrback Law Firm, Kelly S. Reese, Roberta N. Riley, Planned Parenthood of Western Washington, Seattle, WA, Rick D. Holtsclaw, Holtsclaw, Kendall Law Firm, Sylvester James, Jr., Sly James Law Firm, Kansas City, MO, Stephen L. Brischetto, Portland, OR, Michael L. Schleich, Fraser, Stryker Law Firm, Omaha, NE, for Plaintiffs.

Donald J. Munro, Jeffrey D. Fox, Thomas J. Mikula, Goodwin, Procter Law Firm, Washington, DC, Emi Murphy Donis, Bullard, Smith Law Firm, Jeffry S. Garrett, Paul B. George, Foster, Pepper Law Firm, Portland, OR, J. Randall Call, James A. Boevers, John S. Chindlund, Prince, Yeates Law Firm, Salt Lake City, UT, Brenda J. Council, Whitner Law Firm, Brian J. McGrath, Lamson, Dugan Law Firm, William T. Oakes, Stinson, Morrison Law Firm, Mary C. Gryva, Frank, Gryva Law Firm, Omaha, NE, Stacey I. Young, Women's Law Project, Pittsburgh, PA, for Defendants.

MEMORANDUM AND ORDER

SMITH CAMP, District Judge.

This matter is before the Court on the Plaintiffs' Motion for Partial Summary Judgment on First Claim for Relief. (Filing No. 182). The Plaintiffs submitted briefs (Filing Nos. 117 and 201) and exhibits (Filing Nos. 118, 183, and 201) in support of their motion, and the Defendant submitted, under seal, a brief (Filing No. 193) and exhibits (Filing No. 194) in opposition. The Court has also considered the brief of Amici Curiae (Filing No. 198). For the reasons stated below, the Plaintiffs' Motion for Partial Summary Judgment will be granted.

FACTS

The Plaintiff class that has been certified for purposes of this class-action multi-district litigation is: "All females employed by Union Pacific Railroad Company after February 9, 2001, enrolled in one of the Agreement Plans who used prescription contraception, at least in part for the purpose of preventing pregnancy, without insurance reimbursement from said Plan." (Filing No. 180, p. 13). The First Claim for Relief on which the representatives of the Plaintiff class ("Plaintiffs") seek summary judgment alleges that the Defendant, Union Pacific Railroad Company ("Union Pacific"), has discriminated against the Plaintiffs by providing health insurance benefits that selectively exclude all Federal Drug Administration ("FDA") approved prescription contraception, in violation of 42 U.S.C. § 2000e et seq. ("Title VII") as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) ("PDA").¹

There are no genuine issues of material fact. The Plaintiffs submitted their statement of facts in compliance NECivR 56.1(a), and the Defendant, Union Pacific Railroad Company ("Union Pacific") has not contested those facts, although Union Pacific has taken issue with some of the inferences the Plaintiffs have drawn from those facts. Accordingly, the Plaintiffs' statement of material facts is "deemed admitted." NECivR 56.1(b)(1)(emphasis in original). Union Pacific presented its own "counter-statement of undisputed material facts," and the Plaintiffs have not contested those facts in their Reply Brief.

Union Pacific, an employer subject to Title VII, has approximately 48,000 employees.² Of those, approximately 1,300 are females covered by collective bargaining agreements ("agreement employees").³ Union Pacific estimates that 450 agreement employees are females of child-bearing age.⁴ Union Pacific provides health insurance benefits to its male and female agreement employees through five different plans ("Plans").⁵

The Plans provide coverage for a variety of prescription drugs, including drugs that the Plaintiffs describe as "preventive," such as blood-pressure and cholesterol lowering prescription drugs to prevent heart disease; hormone replacement therapy to prevent osteoporosis; immunizations to prevent diseases such as influenza and tetanus; drugs to prevent the contraction of contagious diseases and disease-progression in HIV-positive patients; drugs used exclusively by males to prevent benign prostatic hypertrophy; and drugs used exclusively by males for erectile dysfunction.⁶ The Plans also cover a variety of medical services that the Plaintiffs describe as preventive, including routine physical exams, cancer screening tests; smoking cessation treatment; and yearly dental exams and teeth cleaning.⁷

The Plans have exclusions and limitations related to fertility, infertility and family planning, such as exclusions for sterilization procedures and for procedures that facilitate pregnancy.⁸ The Plans also exclude coverage for prescription contraception to prevent pregnancy.⁹ All six available methods of prescription contraception are used exclusively by women: oral contraceptives ("the pill"); intrauterine devices ("IUD"); Depo Provera injections; barrier methods (diaphragm and cervical cap); the contraceptive patch; and the contraceptive ring.¹⁰ Coverage is available for prescription contraceptives through the Plans only if ordered for a "non-contraceptive purpose," such as the treatment of skin diseases or menstrual disorders.¹¹

STANDARD OF REVIEW

Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25, 106 S.Ct. 2548.

In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. 1348.

"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).

Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

ANALYSIS

Statutory Framework

Title VII, at 42 U.S.C. § 2000e-2(a), provides:

It shall be an unlawful employment practice for an employer — (1)... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ...; or (2) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex....

The PDA, at 42 U.S.C. § 2000e(k), provides:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This sub-section shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

Congress enacted the PDA in 1978 to overrule the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), holding that an employer's denial of coverage for pregnancy-related conditions in an otherwise comprehensive health insurance plan did not violate Title VII. In the subsequent case of Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 678-79, n. 17, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), the United States Supreme Court acknowledged that the legislative history of the PDA demonstrates that Congress viewed the dissenting opinions in Gilbert as expressing the true principle and meaning of Title VII. The Newport News Court observed that the Gilbert dissents were grounded in the belief that a company's insurance plan that treated employees differently based on their risk of pregnancy, as well as the actual condition of pregnancy, discriminated on the basis of sex in violation of Title VII. Newport News, 462 U.S. at 678, 103 S.Ct. 2622, citing Gilbert, 429 U.S. at 160, 97 S.Ct. 401 (Brennan, J., dissenting) and 429 U.S. at 161-62 n. 5, 97 S.Ct. 401 (Stevens, J., dissenting). Similarly, in ...