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LEXSEE 2003 U.S. DIST. CT. PLEADINGS 3030 View U.S. District Court Opinion View Original Source Image of This Document
SUSAN STOCKING, for herself and all other similarly situated, Plaintiff, v. AT&T CORP., Defendant.
Case No. 03-0421-CV-W-HFS UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
MISSOURI, WESTERN DIVISION 2003 U.S. Dist. Ct. Pleadings 3030; 2004 U.S. Dist. Ct. Pleadings LEXIS 9181
January 23, 2004 Complaint
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [**1] Sylvester "Sly" James, Jr. MO # 33617, Michael J. Mohlman KS # 19084, The Sly James Firm Trial Lawyers, P.C., 802 Broadway, 7th Floor, Kansas City, MO 64105, 816-472-6800, 816-472-6805 facsimile and Rex A. Sharp KS # 12350, Gunderson, Sharp & Rhein, P.C., 4121 W. 83rd St., Ste. 256, Prairie Village, KS 66208, 913-901-0500, 913-901-0419 facsimile and Rick D. Holtsclaw MO # 32866, Holtsclaw & Kendall, LC, 312 West 8th Street, Kansas City, MO 64105, 816-221-2555, 816-221-8763 facsimile. ATTORNEYS FOR PLAINTIFFS. TITLE: FIRST AMENDED CLASS ACTION COMPLAINT TEXT: [*1] Plaintiff Susan Stocking brings this case on behalf of herself and all other women employed by AT&T Corp. ("AT&T") who have been discriminated against by their employer, AT&T, and its affiliated companies, and would show the Court as follows: I. Jurisdiction, Venue, and Parties
1. Plaintiff Susan Stocking is a citizen of the state of Missouri, was employed by Defendant, and has filed an EEOC complaint and obtained the right to sue. See attached Decision (attached as "Exhibit A") and right-to-sue letter (attached as "Exhibit B").
2. AT&T employs Plaintiff and thousands [**2] of other women like her. AT&T is a citizen of the states of New

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York where it is incorporated and of New Jersey where its principal place of business is located; and can be served with service of process at The Corporation Company, Inc., 515 S. Kansas Ave., Topeka, KS 66603.
3. Aetna Insurance Company ("Health Insurer") was a health insurer for Plaintiff and/or AT&T.
[*2] 4. Venue is proper in this Court as Defendant does business in this judicial district and has offered or provided health insurance to its employees in this judicial district. 28 U.S.C. § 1391 (b) and (c); 42 U.S.C. § 2000e 5(f)(3).
5. This Court has subject matter jurisdiction based on federal question jurisdiction, 28 U.S.C. § 1331, and 42 U.S.C. § 2000e - 5(f)(3).
A. Summary of Claims
6. Prescription medication related to reproduction is routinely covered for men, but not for women. Prescription contraception, which is used only by women, is a basic prescription medication related to reproduction; specifically, it prevents pregnancy for women who wish to do so by reversible means. Plaintiff, on [**3] behalf of herself and all others similarly situated, brings this class action against AT&T for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) for offering and/or providing health insurance that does not cover prescription contraceptives for women related to reproduction while covering sex-related prescription medication for men, such as Viagra.
7. AT&T's exclusion of prescription contraception has an adverse disparate impact on Ms. Stocking and other members of the proposed class. Because prescription contraceptives are available for use only by women, AT&T's failure to provide coverage for prescription contraception forces its female employees to choose between paying their own out-of-pocket prescription costs, or bearing the physical, emotional and financial costs of an unplanned pregnancy.
8. As a result of AT&T decision to exclude contraceptives from its benefits plan, Ms. Stocking and other members of the proposed class are being discriminated against in the [*3] terms and conditions of employment, [**4] which includes receipt of benefits under fringe benefit programs, because of their potential for pregnancy. This violates Title VII.
B. Plaintiff Susan Stocking
9. Plaintiff Susan Stocking has been employed by AT&T on a full-time basis since June 12, 1995. As part of the terms and conditions of her employment, Ms. Stocking receives health insurance coverage, including coverage of prescription drugs and devices. Ms. Stocking sues on her own behalf and as a representative of the proposed class of employees who are discriminated against by the exclusion of contraception from AT&T's benefit plan.
10. Ms. Stocking was, at all times relevant to this cause of action, a woman of childbearing age who was concerned with the prevention of an unwanted or unplanned pregnancy. Ms. Stocking requested that her prescription health care benefit provide or reimburse her for the cost of birth control. Her requests were denied. Subsequently, Ms. Stocking learned that men were provided and received plan coverage of a full range of conditions that can be treated through prescription medication.
11. On August 26, 2002, Ms. Stocking filed a charge with the EEOC at its Kansas City Area Office [**5] in Kansas City, Kansas alleging that AT&T's failure to provide her with health insurance coverage for prescription contraceptives constitutes unlawful discrimination on the basis of sex.
12. As a result, Ms. Stocking received a decision and a right-to-sue letter from the EEOC (copies of which are attached hereto as "Exhibit A" and Exhibit B").

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[*4] 13. On November 29, 2002, the EEOC issued a "Determination" to Plaintiff Susan Stocking, in which it considered AT&T's benefit plan and concluded that:
"...it is the Commission's position that the pre-July 2002 exclusion violates both Title VII and the PDA, since the statutes cover prescription contraceptives regardless of their intended purpose. Prescription contraceptives are available only for women. As a result, Respondent's pre-July 2002 policy is, by definition, a sex-based exclusion...It appears that Respondent's current plan uniquely classifies contraceptives used for birth control purposes by requiring their acquisition solely by mail. This also represents a sex-based distinction and violates the statutes. Coverage for prescription contraceptives must be afforded in the same manner as if the woman, or any employee, [**6] sought other preventive or health maintenance services.
14. AT&T's refusal to provide the same benefits to both men and women has caused an economic hardship on Ms. Stocking and other members of the proposed class that male employees are not required to endure.
II. AT&T's Health Plan
15. As terms and conditions of their employment, AT&T offered Ms. Stocking the opportunity to enroll in one of three health plans (Plan). The three options were: Post of Service (POS) option; Traditional Indemnity option (PPO); and Health Maintenance Organization (HMO). The POS offered the highest level of benefits. The PPO option was only offered to those employees who lived outside the POS service area, but allowed selection of physicians and reimbursement after the deductible was met. The HMO option generally had no deductibles to meet, a small co-payment but required participants to see a doctor in the HMO network.
16. Regular full-time occupational employees are eligible for coverage at the company's expense on the first day of the month in which the employee attains six months of Net Certified Service with AT&T. Regular full-time employees are not required to contribute to receive [**7] Plan benefits, but with the HMO option, they may be required to do so.
[*5] 17. Ms. Stocking elected to take advantage of the PPO option.
18. The Plan also provides for a Prescription Drug Benefit Plan which was administered by Merck-Medco (Drug Plan). The Drug Plan provided drug benefits to participants in the POS and PPO options. In general, the Drug Plan covered all drugs provided by a pharmacist at the physician's order unless specifically excluded. The Drug Plan specifically excluded "[a]ny drugs or medications used solely for birth control, including oral contraceptives, jellies, foams, devices, implants or injections."
19. Despite covering other preventative medical services and prescriptions, neither the Plan nor the Drug Plan provided for prescription drugs and/or devices used by plaintiffs and other women similarly situated to prevent pregnancy.
20. If plaintiff became pregnant, however, the Plan would have covered the costs of either an abortion or continuing the pregnancy to term - whichever she chose to do.
III. Harm to Ms. Stocking and Other Class Members
21. As a direct and proximate result of the AT&T Plan's failure to cover contraception [**8] to prevent pregnancy, Ms. Stocking and other proposed members of the class were required to pay for their monthly or periodic contraceptives on an out-of-pocket basis, or risk unintended pregnancy. Like many healthy women of reproductive age, contraception is the only prescription drug Ms. Stocking used on a regular and consistent basis.
22. On information and belief, AT&T employs hundreds of women of reproductive age who use prescription contraception.

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23. If contraception were treated on an equal basis with other prescriptions under the Plan and the Drug Plan, Ms. Stocking and other proposed class members would have paid a low co-pay, or no co-pay at all, for generic or brand-name, 34 day supply, of contraception.
[*6] IV. Factual Framework
24. For over thirty years of their lives, women have the biological potential for pregnancy. Contraception is a drug or device that prevents pregnancy. Without contraception, the average woman would be expected to have between 12 and 15 pregnancies in her lifetime. In any given year, 85 out of 100 sexually active women of reproductive age who do not use contraception will become pregnant. Most American women want only two [**9] children. To achieve that goal, the typical American woman spends roughly three decades - or about 75% of her reproductive life - trying to avoid unintended pregnancy. Of the 60.2 million women of reproductive age, 64% currently use contraception. Ninety-four percent of American women use contraception at some point during their reproductive years. Among all women aged 20-44 who have ever had sexual intercourse, 85% have used prescription oral contraceptives.
25. The Food and Drug Administration (FDA) has approved five methods of reversible prescription contraception: oral contraception; Norplant; Depo-Provera; intra-uterine device ("IUD"); and the diaphragm. Only women can use these methods of prescription contraception. Other forms of contraception are sold over the counter (OTC) and thus generally are not covered by health insurance. The OTC methods include the male condom and five female methods: spermicidal foam, jelly, film, suppositories and the female condom. All methods work either by preventing fertilization of a woman's ovum or by preventing implantation of the blastocyst in the uterine wall.
26. Women bear all of the physical burdens of pregnancy, which are quite substantial. [**10] Pregnancy itself can put a woman's life at risk. Ectopic pregnancy is the deadliest complication in the early stages of pregnancy. The three deadliest complications of full-term pregnancy are hemorrhage, hypertension and thrombosis. In the United States today, for every 100,000 births, [*7] 8-22 women (depending on their county of residence) die as a result of pregnancy-related complications.
27. Pregnancy also poses non-life threatening health risks for women. The morbidity rate during pregnancy is quite high. Twenty-two percent of all pregnant women are hospitalized before delivery because of various complications. Pre-term labor is one of the most common reasons women are hospitalized before delivery. In such instances, the medical interventions a woman must undergo often include long-term bed rest and administration of various drugs, some of which have significant side effects for the woman.
28. The more pregnancies she bears, the greater the likelihood a woman will suffer one or more of the myriad life and/or health-threatening complications of pregnancy. Women who experience a large number of pregnancies are known to be at far greater risk for certain permanent health [**11] problems such as uterine prolapse (downward displacement of the uterus so that some or all of the uterus comes outside of the vagina), rectocele (hernial protrusion of the rectum into the vagina), cystocele (hernial protrusion of the urinary bladder through the vaginal wall), pelvic floor disorders and varicose veins.
29. For women with pre-existing medical conditions, even one pregnancy can pose grave health risks. Preexisting medical conditions that are exacerbated by pregnancy include: certain blood diseases, including sickle-cell disease; heart disease; cancer; endocrine disorders such as diabetes; diseases of the nervous system such as epilepsy; kidney and liver diseases; connective tissue disorders such as systemic lupus erythematosus and rheumatoid arthritis; chronic hypertension; respiratory disease including asthma and pneumonia; and HIV present in the blood stream.
30. Unintended pregnancy poses far greater health risks to women and children than does intended pregnancy. The medical risks of unintended pregnancy are well documented. In [*8] general, women who become pregnant unexpectedly are less likely to receive adequate pre-natal care and thus have less opportunity [**12] to manage pre-existing medical conditions and other risks during pregnancy. For instance, unintended pregnancy is quite

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dangerous, and may even be deadly, for women with hypertension or diabetes. These conditions are best managed when medical care is begun before conception. In addition, women who become pregnant unexpectedly forego the opportunity to receive pre-conception counseling to improve the health of the fetus and are more likely to have low birth weight babies and experience a higher rate of neonatal mortality.
31. Unintended pregnancy is both frequent and widespread in the United States. Forty-nine percent of all pregnancies in the United States are unintended. Among Western Nations, the United States has one of the highest rates of unintended pregnancy. Unintended pregnancy affects all segments of society. Four out of ten pregnancies among married women are unintended. Low-income women and unmarried women experience even higher rates of unintended pregnancy.
32. Contraception enables women to plan their pregnancies and time the spacing between pregnancies. The shorter the interval between her pregnancies, the greater the likelihood a woman will experience pre-term labor, [**13] depression and other health problems. Recognizing that contraception is central to the health and well-being of women and their children, the Center for Disease Control and Prevention has recognized that "[s]maller families and longer birth intervals have contributed to the better health of infants, children, and women, and have improved the social and economic role of women."
33. Furthermore, even in an otherwise healthy woman, pregnancy poses medical risks that are significantly greater than the risks of using contraception. In any given year, the average risk of death from pregnancy is 1 in 11,000 while the risk of death from contraception is much less: 1 in 63,000 for non-smoking oral contraceptive users; 1 in 100,000 for IUD users; and no risk of death for diaphragm users.
[*9] 34. Due to the wide variation in effectiveness, cost, and medical appropriateness of available forms of contraception, choice of contraceptive method is essential to successful pregnancy prevention. Other factors that contribute to what type of contraception a woman chooses to use are whether the woman intends to delay, space, or entirely prevent future childbearing.
35. Women with medical conditions [**14] that require pregnancy avoidance, in particular, require a full range of contraceptive options because their medical conditions often preclude the use of one or more contraceptive methods. For example, birth control pills are medically contraindicated for smokers over age 35 and women who are at risk of cardiovascular problems, such as stroke, heart attack, blood clots, and hypertension, as well as women who have, or are at risk of, depression or hepatic adenomas.
36. For all of the above reasons, a recent study by the Institute of Medicine recommends improving contraceptive coverage in health plans in order to reduce the number of unintended pregnancies and to improve health outcomes for women and children. Similarly, the United States Department of Health and Human Services has adopted the goal of improving pregnancy planning and spacing and preventing unintended pregnancy. Moreover, the Guidelines for Women's Health Care published by the American College of Obstetricians and Gynecologists (ACOG), which represents 38,000 physicians in this country, advises that "prevention of unwanted pregnancy" and "contraceptive options" be discussed with all women over the age of 13 during routine [**15] primary care assessments. In sum, contraception is basic to women's health and well-being.
37. The physical burdens of pregnancy increase the risk of interruption to a woman's education, career and professional development opportunities. The ability to control her biological [*10] potential for pregnancy is central to a woman's ability to participate in the workplace on an equal basis with men.
38. Inadequate insurance coverage of contraception has substantial adverse economic consequences for the 67% of American women of reproductive age who rely on employer-sponsored health insurance coverage. These women pay 68% more in out-of-pocket expenditures for health care services than men, and reproductive health services account for much of that difference.

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V. Statutory Framework
39. Title VII provides that: "It shall be an unlawful employment practice for an employer to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(1).
40. In 1978, Congress enacted the Pregnancy Discrimination Act ("PDA") which provides [**16] that the term "because of sex" in Title VII includes, but is not limited to, "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The PDA further states that "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." Id. Thus, Title VII specifically mandates that employers may not single out employees for disadvantageous treatment based on "pregnancy, childbirth, or related medical conditions."
41. Contraception is "pregnancy-related" within the meaning of the PDA because it is medical treatment that provides women with the ability to control their biological potential for pregnancy. Exclusion of contraception from a health plan is sex discrimination in violation of the PDA because it treats women differently on the basis of their potential to become pregnant. The [*11] exclusion of contraception from the Health Plan is, therefore, sex discrimination on its face in violation of [**17] Title VII, as amended by the PDA.
42. The exclusion of contraception from the Health Plan also has an adverse disparate impact on women in violation of Title VII because it forces them either to pay for prescription contraceptives out of pocket, despite having prescription insurance coverage, or to bear the physical, emotional and financial burdens of unplanned pregnancy. Defendant's policy of excluding contraceptive coverage cannot be justified as job-related and consistent with business necessity.
VI. Class Action Allegations
43. The proposed class of plaintiffs in this case consists of:
All female employees of AT&T Corp. covered or offered to be covered by health insurance who used prescription contraceptives from August , to the present (hereinafter, Plaintiff Class).
44. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(a). Plaintiff is informed and believes that the class is so numerous that joinder of all members is impracticable. AT&T employs thousands of people across the nation, a large percentage of whom are women, who participate in the AT&T health and drug plans. Given the number of qualifying employees and [**18] the well-documented utilization rates for prescription contraceptive drugs and devices, plaintiff is informed and believes that the class consists of at least 100 persons.
45. Commonality is met. Plaintiff class members have common issues of law:
(i) whether the failure to provide coverage for female prescription contraceptives a violation of Title VII and/or the PDA by disparate treatment or disparate impact;
(ii) whether AT&T violated Title VII and/or PDA;
(iii) whether Health Insurer violated Title VII and/or PDA;
[*12] (iv) the measure of damages for Plaintiffs who obtain contraceptives anyway; and

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(v) the measure of damages for Plaintiffs who did not obtain contraceptives.
The common factual issues are:
(i) Did Defendants provide and/or offer health insurance that did not provide coverage for prescription contraceptives for women;
(ii) did Defendants cause damages to Plaintiff Class as a result;
(iii) what amount of damages resulted from the discrimination to the Plaintiff Class;
(iv) whether equitable relief, such as an injunction, should be awarded by the Court.
46. The claims of the representative party are typical [**19] of the claims of the class. Ms. Stocking was enrolled in AT&T's health and drug plans during the class period. Like every other member of the class, Ms. Stocking has been denied benefits of her employment based on a pregnancy-related medical condition. Furthermore, the AT&T contraception exclusion has had an adverse disparate impact on her, as it has on other female employees of AT&T.
47. Plaintiff is an adequate class representative for the Plaintiff Class and Plaintiff's counsel are experienced in prosecuting nationwide class actions and in federal court litigation. Ms. Stocking has exhausted administrative remedies on behalf of herself and the class.
48. The common questions of fact or law will predominate over any individual issues as every class member would have the same law applicable to its claims for liability and for damages and the same common questions of fact would have to be presented each time a class member brought suit against Defendants.
49. A nationwide class action is superior to any other method to adjudicate the claims of all members of the Plaintiff Class.
[*13] 50. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(b)(2) [**20] because AT&T has acted or refused to act on grounds generally applicable to the class, thereby making compensation, declaratory, injunctive and other equitable relief appropriate for the class as a whole.
VII. Claims
A. Violation of Title VII
51. By providing or offering discriminatory health insurance to its employees, AT&T violates Title VII by disparate treatment since the benefit plan for health insurance is discriminatory on its face and by disparate impact because the health insurance excludes coverage for benefits that are uniquely designed for women. As a direct and proximate result of Defendant's violation of Title VII, Plaintiff and other AT&T female employees have suffered damages by paying for prescription contraceptives and are entitled to injunctive relief to prevent further discrimination.
B. Violation of Pregnancy Discrimination Act
52. In addition to violating Title VII, Defendants have also violated the PDA by disparate treatment and/or disparate impact, causing proximate damages to Plaintiff and entitling her to injunctive relief.
VIII. Prayer for Relief
53. On behalf of herself and all other persons similarly [**21] situated, Plaintiff Susan Stocking seeks the following relief:

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(a) That an order be entered certifying the Class pursuant to Fed. R. Civ. P. 23(b)(2) and/or (b)(3).
[*14] (b) That a declaratory judgment be entered declaring that AT&T has violated the civil rights of Ms. Stocking and the Class she represents as guaranteed by 42 U.S.C. § 2000e.
(c) That a permanent injunction be entered prohibiting AT&T from engaging in the illegal and discriminatory conduct alleged herein.
(d) That the Court award equitable relief to Ms. Stocking and the Class in the form of damages and incidental monetary relief.
(e) That the Court award Ms. Stocking and the Class their attorneys' fees and costs pursuant to 42 U.S.C. § 2000e-5(k).
(f) That the Court award such other and further relief as it deems just and proper under the circumstances.
WHEREFORE, Plaintiff prays that the Court certify this case as a class action, approve an appropriate class notice, require Defendants to provide the class notice in accordance with their regular distribution of paychecks or health insurance information, and upon the trial [**22] of this case award the Plaintiff Class damages, attorneys' fees, pre-judgment and post-judgment interest, equitable relief such as an injunction, and costs.
ATTORNEYS' LIEN CLAIMED.
JURY TRIAL DEMANDED.
[*15] Respectfully submitted,
/s Sylvester "Sly" James, Jr. MO # 33617 Michael J. Mohlman KS # 19084 The Sly James Firm Trial Lawyers, P.C. 802 Broadway, 7th Floor Kansas City, MO 64105 816-472-6800 816-472-6805 facsimile
and
Rex A. Sharp KS # 12350 Gunderson, Sharp & Rhein, P.C. 4121 W. 83rd St., Ste. 256 Prairie Village, KS 66208 913-901-0500 913-901-0419 facsimile
and
Rick D. Holtsclaw MO # 32866

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Holtsclaw & Kendall, LC 312 West 8th Street Kansas City, MO 64105 816-221-2555 816-221-8763 facsimile
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was mailed, via U.S. Mail, postage prepaid, this 23rd day of January, 2004, to:
Laura M. Franze Marcia Nelson Jackson AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4675
and
Brian N. Woolley LATHROP & GAGE, L.C. 2345 [**23] Grand Blvd., Suite 2800 Kansas City, Missouri 64108-2684
ATTORNEYS FOR DEFENDANT AT&T CORP.
/s Sylvester James, Jr. Attorney for Plaintiffs
[SEE EXHIBIT A IN ORIGINAL]
[SEE EXHIBIT B IN ORIGINAL]

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 </s> 436 F.Supp.2d 1014 (2006)
Susan STOCKING, Plaintiff, v.
AT & T CORPORATION, Defendant.
No. 03-00421CV-W-HFS.
United States District Court, W.D. Missouri, Western Division.
June 7, 2006.
1015 *1015 Rex A. Sharp, Gunderson Sharp & Walke, LLP, Prairie Village, KS, Rick D. Holtsclaw, Defeo, Holtsclaw, Kendall, LLC, Sylvester James, Jr., The Sly James Firm, Trial Lawyers PC, Kansas City, MO, for Plaintiff.
Brian N. Woolley, Lathrop & Gage, L.C., Kansas City, MO, Laura M. Franze, Marcia Nelson Jackson, Akin, Gump, Strauss, Hauer & Feld, LLP, Dallas, TX, for Defendant.
MEMORANDUM AND ORDER
SACHS, District Judge.
As stated in a prior ruling (Doc. 55) plaintiff Susan Stocking has received an EEOC determination that defendant's health care program she had selected contained a restriction that violated her rights as an employee, under Title VII and the Pregnancy Discrimination Act. 42 U.S.C. § 2000e et seq. and 2000e(k). Pursuant to a collective bargaining agreement in effect until July 1, 2002, there was no coverage for contraceptives prescribed for birth control. Such contraceptives thereafter became available for mail-order acquisition under that program.
Plaintiff initially sought damages for her past expenditures for prescribed contraceptives and also an injunction against the new mail-order limitations. Class certification was sought. It was denied without prejudice in the prior ruling because plaintiff was not personally opposed to the mailorder system, and had discontinued her contraceptive use. Plaintiff now limits her complaint to the damage claim (amounting to roughly $1 per day) and renews her request for class certification. Cross-motions for summary judgment on the merits have been filed. Defendant also vigorously contests class certification. The essential facts are not in dispute.
Oral argument and supplemental briefing have recently occurred. For reasons stated below, I will grant plaintiff Stocking summary judgment on the merits but for a limited damage period as advocated by defendant; that is, 300 days before filing of the charge. I will certify a class, with plaintiff as the class representative, for female employees of defendant with similar health insurance who purchased prescribed contraceptives for birth control during the period from October 31, 2001, through the month of June, 2002. Some qualified claimants, like plaintiff herself, will not be entitled to damages for the entire period.
Procedurally it would have been preferable to make a class action determination somewhat earlier. That did not occur because of what I concluded was a false start by plaintiff. Now that the class issues and motions going to the merits are ripe for ruling, I believe I should deal with the merits first, which will help place the request for class certification in clear focus.
1016 *1016 I.
Before 2002 AT & T offered plans covering prescribed contraceptives for management employees, but only on a mail-order basis. Certain elective programs, such as an HMO option that was available to non-management personnel like plaintiff, also covered prescribed contraceptives. As stated in my earlier ruling, use of the HMO option would apparently have imposed limitations on health coverage that plaintiff did not want, so she was not interested in submitting to that plan in order to get coverage for prescribed contraceptives. Plaintiff discontinued

prescribed contraceptives several months after October, 2001, and now relies on a single purchase for $101.07 for a three-month supply. Defendant has calculated her potential recovery, after a co-pay deduction, of only $68.07.
Because of the class action potential, given that defendant AT & T is a large employer, the small claim here has been strenuously litigated by both sides.
Prior to July, 2002, the exclusion of prescribed contraceptives apparently was treated as a cost-saving device for what the parties to the collective bargaining agreement considered to be nonessential medical treatment. This disregards the sex-related circumstance that the limitation of prescribed contraceptives applies to women only, under current availability conditions, and also disregards the importance of pregnancy or freedom from that condition for women, for health conditions, narrowly defined, and otherwise.
I will not fully rehearse the legal issues because that has been done by several district judges. As least one case is on appeal. I now understand that two unpublished decisions favor defendant employer, but their treatment is rather summary or does not discuss contrary authority, which I now find quite compelling. Alexander v. American Airlines, 2002 WL 731815 (N.D.Tex.); Cummins v. State of Illinois, unreported, Case No.2002-CV-4201-JPG (S.D.Ill., Aug. 30, 2005). Three more fully reasoned and published decisions favor plaintiff on the discrimination claim. Erickson v. Bartell Drug. Co., 141 F.Supp.2d 1266 (W.D.Wash.2001); Cooley v. Daimler-Chrysler Corp., 281 F.Supp.2d 979 (E.D.Mo.2003); In re Union Pacific R.R. Employment Practices Litigation, 378 F.Supp.2d 1139 (D.Neb.2005). A sixth decision rejects the Pregnancy Act claim but allows the case to go forward on a Title VII sex discrimination claim. Wright v. DaimlerChrysler Corp., unreported, Case No. 4:03 CV 1873 CDP (E.D.Mo. Jan. 10, 2005).[1]
In my initial reaction to the issues in this case, I noted some skepticism as to the merits because both men and women use contraceptives, just as both men and women may seek treatment for infertility. The same observation appears in Alexander and Cummins. There is controlling appellate authority that the denial to a woman of fertility treatment cannot give rise to a sound claim for discrimination because of sex, either under Title VII or the Pregnancy Discrimination Act. Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir.1996). This ruling was distinguished in Cooley and Union Pacific, but has been relied on as a bar to PDA claims regarding prescription contraceptives in Cummins and Wright.
1017 *1017 The most thorough consideration of the differences between denying prescription contraceptives to women and men is found in Judge Smith Camp's opinion in Union Pacific. There, in addition to the fact that there are no current prescription contraceptives for men, it was explained that contraception, in preventing paternity, has a major social significance for men but avoidance of pregnancy has both social and physical significance for women. The Circuit in Krauel noted the distinction by stating that "potential pregnancy, unlike fertility, is a medical condition that is sexrelated because only women can become pregnant." 95 F.3d at 680.
It seems worth mentioning that Judge Perry, in Wright, departed from her colleague's ruling in Cooley, based on a rationale going back to Krauel. I am persuaded by Union Pacific, and conclude that we do have a sound Pregnancy Discrimination Act claim here, as well as a soundly alleged Title VII claim (a conclusion consistent with that of Judge Perry in Wright).[2]
II.
Defendant contends this entire case is time-barred because the denial of prescription contraceptives was contained in a collective bargaining agreement that it made in 1998, long before the charge was filed here in 2002, and plaintiff did not file a charge although she had notice of the particular restriction at least by January, 2000. AT & T seeks to distinguish the contrary ruling on timeliness in a very recent Eighth Circuit case where women firefighters successfully complained of being required to use specialized clothing designed for men and facilities discrimination that had a long history, but continued into the 300-day period before the charge was filed. Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir.2006).

Wedow accepts guidance from National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which greatly modifies pre-existing law regarding so-called continuing violations. The concept was severely restricted, being now only clearly available in hostile work environment cases. Morgan effectively preserves many claims previously rejected on timeliness grounds, but at the same time greatly restricts the period for which damages are available. See Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), reaffirmed in Morgan and relied on in Wedow.
It is clear, under Wedow, that timely claims can be filed where there are specifically discriminatory working conditions, benefits, wages and the like that may have had a long history but continue into the 300-day period for filing charges. Defendant's principal argument to the contrary in this case is that it took no direct action during the immediate pre-charge period, such as issuing a discriminatory payroll check. But there was no requirement of recent direct action in Wedow. Other situations of discrimination occur that do not require current employer action. Continued inaction suffices in situations like this. One might also suggest that issuance of a discriminatory 1018 paycheck is not the wrong complained of, but rather the failure to *1018 make greater payments. That is essentially what occurred here.
Plaintiff bought and paid for prescription contraceptives on at least one occasion for which a timely charge could be filed. She sought no reimbursement from defendant or the insurance company in question. That would clearly have been a futile act, as defendant acknowledges. A claimant is generally not required to engage in a futile act to preserve a right. Failure to exhaust available remedies is not presented as a defense this case. The analogy to Wedow seems unmistakable, and I will deny defendant's motion for summary judgment, except as to the damage period.
III.
The parties in their motions ask for different rulings on the period open to plaintiff (and her class, if certified). Defendant contends that plaintiff is time-barred from claiming expenses of prescription drugs incurred before the 300-day period allowed in Missouri for making charges of discrimination. Thus, she would have no claim for the time after she stopped using contraceptives and no claim for any uncompensated expenditures before October 31, 2001. Plaintiff argues that there was a continuing wrong during the entire period of the collective bargaining agreement.
I agree with defendant in its contention that remediable wrongs occurred from time to time when plaintiff made purchases under the discriminatory agreement, but only to the extent such purchases occurred within 300 days of filing the charge.
A recent application of the principle involved occurred in Wedow v. City of Kansas City, Mo., supra. In that case a jury found that women firefighters had been forced to use ill-fitting, cumbersome, and somewhat disabling and potentially dangerous clothing of the type suitable for and supplied to male firefighters. Plaintiffs had also been supplied discriminatory rest-room facilities. Although the discriminatory policies long pre-dated the filing of charges, the complainants were confined to damages occurring during the 300-day limitations period. The Court of Appeals found the claims "akin to the line of cases stemming from Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)(holding that each week's paycheck that delivers less on a discriminatory basis is a separate Title VII violation)." 442 F.3d at 671. This has sometimes been referred to as a "serial violation." The Court also relied on the most recent Supreme Court handling of the issue of "continuing violations". National Railroad Passenger Corp. v. Morgan, supra. In using hostile work environment claims as rare examples of continuing violations the Supreme Court emphasized how rarely the concept could be used to avoid the short limitation period created by Congress. Absent the narrow range of cases that fall within a "continuing violation" concept, the Supreme Court emphasized that a "discrete . . . discriminatory act `occurred' on the day that it `happened'. A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it." 536 U.S. at 110, 122 S.Ct. 2061. (emphasis added). In rejecting further frequent use of the "continuing violation" theory, the Court referred to the EEOC's advocacy of the concept of "certain serial violations and systemic violations" that would allow a longer period of recovery. The Court stated that such

interpretive guidelines must yield to the Supreme Court's role as a final authority. 536 U.S. at 110-1, n. 6, 122 S.Ct. 2061. Advocacy by plaintiff of these concepts after the Morgan decision is thus unsound.
1019 Plaintiff now acknowledges (Doc. 122) that Morgan eliminated the possibility *1019 of using serial violations to avoid the 300 day limitation on recoveries. She claims however, that "systemic violations" can still be used. In the previously quoted footnote, the Morgan opinion put both categories in the same basket. Moreover, the violation here, as in Wedow, was clearly of a serial nature, dependent on repeated purchases, even though "systemic" in the sense that employer policies of general application originated the discriminatory conduct. Where, as here, the violation of rights can be broken down into a series of discrete acts, a common source, through company-wide or "systemic policy", does not preserve old claims. See Davidson v. America Online, Inc., 337 F.3d 1179, 1184-6 (10th Cir.2003).
Plaintiff contends the continuing violation theory is still usable in post-Morgan cases involving discriminatory salary contentions and cites Tademe v. Saint Cloud State University, 328 F.3d 982, 989 (8th Cir.2003). That case uses Bazemore language, however, and notes that the claim of discrimination was timely because the charge was filed within 300 days of the last discriminatory pay-checks. There was no occasion to rule or comment on the question of a 300-day cutoff for damages because the Circuit sustained summary judgment for defendant on the merits. Thus Tademe cannot be cited as contrary to the result in Wedow.[3]
Being unable to cite cases decided after Morgan in support of a contention that recovery can be had for events earlier than the 300 days allowed for filing charges, plaintiff falls back on a different statute of limitations than the one governing the filing of charges. Civil actions by a person aggrieved by employment discrimination may be filed under 42 U.S.C. § 2000e-5(f), which contains no periodic cutoff language for remedies. Another subsection relating to injunctions and equitable relief does contain the following: "Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission". 42 U.S.C. § 2000e-5(g)(1). Plaintiff contends the statutory language in itself frees her from the restrictions advocated by defendant.
As stated by the First Circuit some years before Morgan, "By allowing for the possibility of recovering back pay for over a year prior to the 300 day filing period, `Congress must have envisioned continuing remediable violations that existed prior to the running of the period.'" Sabree v. United Bhd. Of Carpenters and Joiners, 921 F.2d 396, 401 (1st Cir.1990). Even more compelling, as a pre-Morgan citation, is an opinion by Judge Loken for our Circuit. Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164 (8th Cir. en banc 1995). In that case, on allegations that gender discrimination tainted the plaintiff's rate of pay, the Court ruled that "relief back to the beginning of the limitations period strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past" 66 F.3d at 168. A charge was filed in November, 1992 concerning a continuing pay discrimination practice dating back to 1986. It is my understanding of the opinion that it would allow back pay recovery to November, 1990.
1020 If there is conflicting language in Title VII, it seems clear that Morgan resolves *1020 the conflict in favor of the shortened recovery period, despite the oddity in drafting that affects remedial relief in injunction cases. While the parties and I do not find substantial appellate court discussion of the issue, the plain language of Justice Thomas in Morgan effectively "eviscerates the continuing violation doctrine outside of hostile environment claims", as contended by the successful defendant in Lewis v. Norfolk Southern Corp., 271 F.Supp.2d 807, 813 (E.D.Va.2003). If the Ashley "reasonable balance" is to be reinstated it will require legislation.
Therefore partial summary judgment will be entered in favor of defendant, limiting plaintiff's remedy to uncompensated expenditures for prescription contraceptives subsequent to October 31, 2001.
IV.
Having given up her earlier claim for injunctive relief, plaintiff now seek designation of a class of female employees of defendant seeking damages under Rule 23(b)(3), F.R.Civ.Proc. She needs a finding that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for adjudication of the controversy. As in all class actions there must be satisfaction of the elements of Rule 23(a), which include numerosity making

joinder impracticable, questions of law or fact in common, typicality of the claims of the plaintiff as proposed representative, and assurance to the court that plaintiff as a representative would fairly and adequately protect the interests of the class.
Plaintiff's deposition has been taken, with excerpts supplied to the court by counsel. During the course of litigation I have become somewhat familiar with the performance of counsel in this variety of litigation. Defendant basically questions the thoroughness of the record on the class action elements and seeks denial of a class action because members of the class would have so many individualized histories that it would allegedly be very burdensome to develop damage claims with any precision or uniformity.
Starting with plaintiff, her motivation is asserted to be the establishment of the rights of women employees of AT & T to nondiscrimination in health care benefits. While arguably much of this interest has become satisfied, as of July, 2002, I am not charged with appraising a claim of overzealous prosecution of litigation which might currently be categorized as an effort to obtain rather nominal damages for a previous violation of rights. The main thing for me to guard against is personal venality or an effort to use the class for personal benefit. That is not inferable and is not claimed by defendant.
Counsel are deemed to be skillful and experienced enough to serve as class counsel, and that is also not a subject of challenge by defendant.
In light of the small damage claim available to each member of the class, it is realistically certain that only a class action could feasibly result in an adjudication of the rights here at stake. The superiority of a class action proceeding is the dominant factor in my determination.
Defendant challenges the showing of numerosity, but I can almost take judicial notice that this is not a serious issue. The basic question to be decided is whether I should require joinder rather than create a class, and that would only be a close question if we were dealing with several dozen or fewer prospective members of that class. That is the significance of numerosity. A distinction needs to be made between prospective class members and 1021 likely class members. I cannot predict with any confidence that more than several dozen *1021 individuals would choose to remain in the class, given the small stakes and the nuisance involved in reconstructing or remembering medical history enough to specify it under oath. But the question is whether an unmanageable number of persons are prospective members of the class. Compare Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986).
With a very large company like AT & T I must assume a very considerable number of women of child-bearing age would be in non-management positions and would be using birth control, either by relying on a male partner or by themselves. The need for prescription contraceptives for many women would be a matter I can accept as a matter of judicial notice. Even if a large number of employees elected HMOs, where prescription contraceptives were available, it is fair to assume there are a significant number of individuals similarly situated with plaintiff. If the number throughout the country is at least 100-500 that would, in my judgment, be vastly more than would satisfy the numerosity requirement and it seems almost frivolous to question that such figures exist. While the burden is on plaintiff, defendant could doubtless make a good estimate and perhaps has done so. The question is less technical, and more susceptible to ruling as a matter of common knowledge, than the numerical issue in Yong Soon Oh v. AT & T Corp. 224 F.R.D. 357 (D.N.J.2004).
For present purposes I accept numerosity. Common questions exist, and will define the class that would be created. Plaintiffs claims are clearly typical, except for her discontinuance of contraceptives mid-point in the 300 day period. This would create a problem of fairness in using this representative if the members of the class were thereby denied the right to claim damages through the month of June, 2002. Defendant suggests no authorities that would terminate the rights of members simply because plaintiff changed her practice. Members of the class, for better or worse, use their own experiences to establish damages. Members of the class, although personally dilatory in pursuing their $1 a day entitlement, are of course able to use plaintiffs charge to get them into court. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Although that may have given defendant the idea that claimants would be dependent on plaintiffs rights to damages I am satisfied this concept relates only to filing procedure. Because Albemarle allows class members to benefit from plaintiffs standing, plaintiff contends they should not be limited by residing in a state with a 180-day filing requirement.

The weight of authority, however, seems to limit damages for class members living in non-deferral States to injury incurred during the 180 day period prior to filing of a charge on which those claimants can rely. See, e.g., Church v. Consolidated Freightways, Inc., 137 F.R.D. 294, 309-10 (N.D.Cal.1991) Although I am thus presently inclined to accept defendant's contention as to the controlling time periods, that does not affect class certification or class description. The class description should be inclusive, in my judgment, for the sake of simplicity, with damage limitations for individual claimants to be determined later (if the parties consider that worth the trouble). Just as claimants who, like plaintiff, may have discontinued use of prescription contraceptives during the time-frame established by the charge, and may thus be restricted to a limitation on recoveries, those claimants living in the handful of non-deferral States would simply have a damage limitation imposed. In any event, defendant's contention about non-deferral States would not affect class certification but would at most, favor use of a subclass.
1022 *1022 None of the issues mentioned in Rule 23(b)(3) or 23(a) create problems for creation of a class other than the one defendant emphasizes; that is, the many different histories that individuals in the class are likely to present. Even that issue is, in my judgment, nearly frivolous, in light of the very small sum of money anyone can claim, and the practical strictures that both sides will feel in pursuing and debating such differences. I cannot imagine defendant spending half a day of time in specific discovery or in challenging some individual claim. This might result in some vulnerability to false claims, which is also not an issue before me, but would probably be dealt with through sworn documents relating to claims.[4] The experience in the Union Pacific case, as evidenced in the opinions, confirms my view that the parties, in the interest of practicality, could probably agree on a settlement alternative for individuals that would likely dispose of the bulk of claims. Administrative proceedings have been devised in the railroad case that could simplify things here. Defendant does not adequately respond to that experience, except to say that it was initiated "under a completely different class action standard." This has no bearing on the processing of damage claims. In other words, management of the class action should not predictably be very burden-some-unless one simply resents the expense of litigation.
A class will therefore be certified, with Susan Stocking as representative of the class.
It is therefore ORDERED that plaintiff's motion for summary judgment as to liability is GRANTED, defendant's motion for summary judgment is DENIED, except that it is GRANTED in limiting damages to the period from October 31, 2001 to July 2, 2002, and plaintiff's renewed motion for class certification is GRANTED.
The parties are directed to negotiate a plan for further proceedings pursuant to these rulings and to propose an agreed order or series of specific orders within thirty days of this date.[5] If unable to agree plaintiff shall file her proposed order(s) on that day and defendant shall file objections and counter proposals within seven days there after. SO ORDERED.
[1] Years ago it was customary to disregard or devalue unpublished trial court decisions because almost anything can be out there, and there is suspicion that counsel will skew their disclosures to favor their clients-although suppression of adverse authority would be unethical. Published decisions continue to have more weight, in general, because they reflect the significance attached to them by the author.
[2] I acknowledge that conceptually the Title VII claims seems more obviously appropriate than the PDA claim, because the avoidance of pregnancy was somewhat outside the target area of the PDA. Union Pacific makes a persuasive showing, however, that the language of the Pregnancy Act can fairly be read to reach the current subject. The sufficiency of Title VII without the PDA amendment is accepted in Wright, but the problem there is with earlier Supreme Court cases. Unless and until the Circuit speaks differently, I accept Union Pacific on the PDA and Wright on Title VII. We likely will have an appellate ruling before this case is in final judgment.
[3] See another post-Morgan case where a claimant abandoned at oral argument her contention that she could recover in a discriminatory compensation case for a period outside the 300-day charge filing period. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1025 (7th Cir.2003). Taking another tack, plaintiff seeks to distinguish "wage discrimination cases" from this one. Reply Brief, Doc. 109, page 13, note 18. Such cases are, however, closer to this case than a hostile work environment case would be. Wedow is an example.

[4] A questionnaire can be worked out that would deal with all issues that might eliminate claims-such as contraceptive users for medical necessity (which was always covered by the program) rather than simply birth control. [5] The parties may of course preserve objections to the above rulings.
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 </s> U.S. ex rel. Camillo v. Ancilla Systems, Inc., 233 F.R.D. 520 (2005)

233 F.R.D. 520 United States District Court,
S.D. Illinois.
UNITED STATES of America, ex rel., Anthony J. CAMILLO and Anthony Camillo, Individually, Plaintiff, v. ANCILLA SYSTEMS, INC., et al., Defendants.
No. 03-24-DRH. | Nov. 7, 2005.
Attorneys and Law Firms
*521 David B. Honig, Hall, Render et al., Indianapolis, IN, Andrew J. Martone, Bobroff, Hesse et al., Clayton, MO, for Defendants.
Robert L. Simpkins, Assistant U.S. Attorney-Fairview Heights, Fairview Heights, IL, for United States of America, Plaintiff.
Opinion

ORDER

PROUD, United States Magistrate Judge.
Before the Court is plaintiff Camillo’s motion to compel defendant Kenneth Hall Regional Hospital to produce documents in response to plaintiff’s requests for production Nos. 18 and 19, propounded on or about February 3, 2005. (Doc. 108). The documents at issue are billing and refund records which the hospital contends reveal confidential medical information of non-party patients. The hospital is willing to produce the records provided the records are subject to a protective order meeting the requirements of the Health Insurance Portability and Accountability Act (HIPAA) (see 45 C.F.R. § 164.512).1 (Doc. 121).

1

HIPAA protects “protected health information” from

disclosure. “Protected health information” means

individually identifiable health information that is

maintained and/or transmitted in any form or medium.

45 C.F.R. § 160.103.

The protective order proposed by the hospital and rejected by plaintiff would redact virtually all identifying information, including addresses, all elements of dates except the year (including birth, admission and discharge dates), phone numbers, e-mail addresses, Social Security

numbers, account numbers, medical record numbers and health plan beneficiary numbers. (Doc. 121, Exhibit B, ¶ 5). The parties themselves are free to characterize documents as “confidential” or “confidential-counsel only.” (Doc. 121, Exhibit B, ¶ 3). “Confidential-counsel only” documents are not to be shown to plaintiff Anthony Camillo, although his counsel is permitted to view the materials. (Doc. 121, Exhibit B, ¶ 6(b)). If such documents are to be shown to consulting experts, an executed non-disclosure form identifying the expert must be presented to the hospital in advance. (Doc. 121, Exhibit B, ¶ 8).
Plaintiff contends that the aforementioned redactions would prevent cross-referencing other documents. Plaintiff notes that the parties agree that the documents will be used only for purposes of this litigation. Plaintiff also feels hamstrung by the “confidential- *522 counsel only” designation, which would preclude the relator himself, who is familiar with Medicare billing practices, from participating in this litigation. Plaintiff further objects to having to reveal experts whose identities may not be required to be revealed under the Federal Rules of Civil Procedure.
The hospital counters that Illinois law is stricter than HIPAA privacy provisions with respect to non-party patient information and do not permit disclosure of records in this situation, and that comity should compel adherence to the Illinois law. See 735 ILCS § 5/8-802 and 45 C.F.R. § 160.203(b). The redaction provisions are aimed at satisfying the Illinois law, not HIPAA. With respect to plaintiff’s need to cross-reference documents, the hospital contends that the issue in this case is alleged double-billing to medicare and nursing homes, which has nothing to do with individual patient accounts, so patient privacy should prevail. The hospital asserts that plaintiff/relator Camillo has a history of falsifying forms and forging signatures, which indicates great potential for misuse of protected information. Lastly, the hospital reasserts its initial objection to the relevance and scope of plaintiff’s request for production No. 18, regarding billing information.
Federal Rule of Civil Procedure 26(b)(1) permits the discovery of any matter relevant to the subject matter of the pending action, so long as the sought after information is not privileged, even if inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The Supreme Court has interpreted relevance broadly to include any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Discovery may be had from any person, provided that the person from whom discovery is sought is not subjected to
1

U.S. ex rel. Camillo v. Ancilla Systems, Inc., 233 F.R.D. 520 (2005)

annoyance, embarrassment, oppression, or undue burden or expense. See Fed.R.Civ.P. 26(c), 30(b), 34, and 45. Accordingly, in a situation such as this, the interests of the plaintiff and the non-party patients must be balanced.
[1] The Fifth Amended Complaint alleges that the defendant hospital and its parent company violated the False Claims Act, 31 U.S.C. 3729 et seq., by bundling chemical profile tests when billing nursing homes and unbundling those charges when billing Medicare, double billing in various manners, and submitting multiple and excessive bills. (Doc. 122). Although the hospital correctly observes that this action is not about individual patients, plaintiff obviously needs to be able to compare and cross-reference documents in order to pinpoint which bills and refunds support the alleged fraudulent activity. Because names, account numbers, etc., can be manipulated to conceal improper activities, plaintiff needs to be able to cross-reference multiple identifiers to identify which bills and refunds are properly the subject of this action. Therefore, the Court finds plaintiff’s requests for production Nos. 18 and 19 relevant
[2] [3] HIPAA permits protected health information to be revealed in response to a discovery request, if the parties agree to a protective order and have presented it to the Court, or have asked the Court for a protective order. 45 C.F.R. § 164.512(e)(1). The protective order should prohibit the use or disclosure of the protected health information for any purpose other than the litigation, and require the return or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. Id. The HIPAA provisions do not create a privilege against production or admission of evidence; they merely create a procedure for obtaining protected medical record in litigation. Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 925-926 (7th Cir.2004); see also Fed.R.Evid. 501. By all accounts, the parties agree to abide by the HIPAA requirements. However, the defendant hospital wants plaintiff to also comply with the more stringent requirements of Illinois law, which would not permit the disclosure of identifying information in this situation. See 735 ILCS 5/8-802.
The Court of Appeals for the Seventh Circuit ruled in Northwestern Memorial Hospital v. Ashcroft that a more restrictive state law cannot be used in a federal-question *523 action such as this to hamstring the enforcement of federal law. 362 F.3d at 925. Because Illinois law would, at a minimum, redact the identifying information needed to analyze the hospital’s billing practices, any interest in comity must fall by the wayside. Accordingly, paragraph 5 of the protective order proposed by the hospital is unacceptable. (Doc. 121, Exhibit B, ¶ 5).
[4] Turning to the “confidential-counsel only” provision of the protective order proposed by the hospital (Doc. 121, Exhibit B, ¶ 6(b)), the Court first takes issue with the fact

that the hospital is given free rein to, in effect, characterize information as privileged or afforded additional protections. The determination of good cause cannot be left to the parties, that is the Court’s prerogative. Fed.R.Civ.P.26(c). Furthermore, the hospital has failed to show cause for restricting the plaintiff/relator’s access to the billing and refund documentation. Any fears of spoliation of evidence should be allayed by the very fact that the hospital remains in possession of the original records. There is absolutely no reason to believe that the plaintiff/relator will abuse the HIPAA-protected documents. Therefore, paragraph 6(b) of the protective order proposed by the hospital is entirely unacceptable. (Doc. 121, Exhibit B, ¶ 6(b)).
[5] The Court agrees that it is appropriate to have those permitted access to HIPAA-protected documents execute a non-disclosure form. However, the hospital has failed to show sufficient cause for requiring advance authorization from the hospital, especially insofar as plaintiff would be forced to reveal experts or consultants plaintiff would otherwise not be required to reveal. There is no reason not to trust plaintiff’s counsel to ensure that non-disclosure forms are executed and logged, and confidentiality maintained. Therefore, paragraph 8 of the protective order proposed by the hospital is unacceptable in the aforementioned respects. (Doc. 121, Exhibit B, ¶ 8).
IT IS THEREFORE ORDERED that, for the aforestated reasons, plaintiff Camillo’s motion to compel defendant Kenneth Hall Regional Hospital to produce documents in response to plaintiff’s requests for production Nos. 18 and 19, propounded on or about February 3, 2005, (Doc. 108) is GRANTED.
IT IS FURTHER ORDERED that, on or before November 18, 2005, the parties shall execute a HIPAA qualified protective order in compliance with the rulings contained within this order; a motion for entry of said protective order shall be immediately filed and the executed protective order submitted to the Court at <cippd@ilsd.uscourts.gov> for final review and approval.
IT IS FURTHER ORDERED that defendant Kenneth Hall Regional Hospital shall have seven calendar days from the date the Court files the approved protective order to produce the requested HIPAA-protected documents to plaintiff.
IT IS SO ORDERED.
Parallel Citations
Med & Med GD (CCH) P 301,767
	
  
2

U.S. ex rel. Camillo v. Ancilla Systems, Inc., 233 F.R.D. 520 (2005) 3

 </s> Stocking v. AT&T Corp., Not Reported in F.Supp.2d (2007)

2007 WL 3071825 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri,
Western Division.
Susan STOCKING, Plaintiff, v.
AT & T CORPORATION, Defendant.
No. 03-0421-CV-W-HFS. | Oct. 22, 2007.
Attorneys and Law Firms
Rex A. Sharp, Gunderson Sharp & Walke, LLP, Prairie Village, KS, Rick D. Holtsclaw, Holtsclaw & Kendall, LC, Sylvester James, Jr., The Sly James Firm, Trial Lawyers PC, Kansas City, MO, for Plaintiff.
Brian N. Woolley, Lathrop & Gage, L.C., David V. Kenner, Levy And Craig, PC, Kansas City, MO, Laura M. Franze, Marcia Nelson Jackson, Akin, Gump, Strauss, Hauer & Feld, LLP, Dallas, TX, Terry Fromson, Women’s Law Project, Philadelphia, PA, for Defendant.
Opinion
MEMORANDUM AND ORDER
HOWARD F. SACHS, United States District Judge.
*1 This case concerns alleged sex discrimination in the employer’s denial of health care costs for prescription contraceptives (prior to a change in the program in 2002). It now comes back to me for reconsideration. The Court of Appeals has rejected the challenge to a similar program. In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (2007). In partial reliance on the district court’s ruling in Union Pacific, I granted summary judgment to the plaintiff here and created a class for determination of compensation. Stocking v. AT & T Corporation, 436 F.Supp.2d 1014 (W.D.Mo.2006).
Defendant now moves for reconsideration. Doc. 151. Opposition has been filed (Doc. 153) and a reply has been received. Doc. 154. Both sides seek oral argument. Having concluded that defendant is clearly entitled to prevail, based on the appellate decision, it is not necessary to explore multiple issues posed by the parties or to hear argument.
Plaintiff now limits her contention to an issue of disparate

impact, not expressly discussed by the Court of Appeals. Because I conclude that was no discrimination, under the majority ruling above, the case falls in any event. Definition of the main issue seems controlling. If treated as a discrimination claim in compensating for prescription contraceptives, a form of health care exclusively used by women, plaintiff and her class would seem to have a sound case. If treated as a blanket denial of funding for all contraceptives, whether used by men or women, the discrimination case fails. The policy was facially neutral and neutral in fact. No one was repaid for such expenses. The majority of the panel characterized the question in the latter manner (479 F.3d at 943-5), and I necessarily adopt that view on remand. See also Krauel litigation discussion in the Reply Brief, pp 4-5, Doc. 154.1

1

I am not prepared to reopen litigation for some sort of

study of male and female contraception expenses.

I agree with the pertinent portions of defendant’s argument presented in Doc. 151.
It may be useful to mention some reservations about portions of defendant’s briefing that may be a form of overkill. Defendant argues that, in any event, the claim made is out of time, under the current ruling by the Supreme Court in Ledbetter v. Goodyear Tire and Rubber Co., 127 S.Ct. 2162 (2007). That case may not be pertinent to a disparate impact theory because turning on a conclusion that there was no showing or inference of discriminatory animus in the application of an earlier program to the plaintiff during the limited period before discrimination charges were filed. Since an impact case does not require discriminatory animus one doubts that Ledbetter can be invoked.
Quoting from an opinion by Judge (now Justice) Kennedy, defendant contends that disparate impact cases are confined to the “job selection process” and not to other issues such as benefits. AFSCME v. Washington, 770 F.2d 1401, 1406 (9th Cir.1985). In several other Circuits, but not the Eighth, this narrowing of impact relief has been cited. Judge Posner has observed that the denial of relief in comparable worth cases conflicts with the theory that disparate impact can be pursued in a logical manner to impose statutory liability. See, e.g. Davidson v. Board of Governors, 920 F.2d 441, 445-6 (7th Cir.1990). Because of inconsistency in theories, it would seem (without further sorting out of cases) that disparate impact might be confined to the “job selection process” or that the comparable worth cases could be confined to that issue-or some intermediate line-drawing could occur. I need not deal with that here.2

1

Stocking v. AT&T Corp., Not Reported in F.Supp.2d (2007)

2

I also need not deal with a contention in the Reply Brief

that disparate impact cases cannot produce

compensatory damages. Kolstad v. American Dental

Association, 527 U.S. 526, 534 (1999).

*2 Concluding that the opinion of the Court of Appeals, as applied here, requires a judgment for defendant, it is

hereby ORDERED that judgment should be entered in favor of defendant and that the prior ruling in favor of plaintiff and her class (Doc. 126) is hereby vacated.
	
  

2

 </s> CLOSED, EAPADMIN, PHV
U.S. District Court United States District Court for the Western District of Missouri (Kansas City)
CIVIL DOCKET FOR CASE #: 4:03−cv−00421−HFS

Stocking et al v. ATTCorporation Assigned to: District Judge Howard F. Sachs Case in other court: 8th Circuit Court of Appeals, 06−03071
USDC District of Kansas, 03−02028−CM Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/12/2003 Date Terminated: 10/22/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Jane Lund for herself and all others similarly situated TERMINATED: 12/11/2003

represented by Rex A Sharp Gunderson Sharp &Walke, LLP 5301 W. 75th Street Prairie Village, KS 66208 (913) 901−0500 Fax: 913−901−0419 Email: rsharp@midwest−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick D. Holtsclaw Holtsclaw &Kendall, LC 2029 Wyandotte Ste. 100 Kansas City, MO 64108 (816) 221−2555 Fax: (816) 221−2508 Email: rick@holtsclaw−kendall.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvester James, Jr. The Sly James Firm, Trial Lawyers PC 802 Broadway 7th Floor Kansas City, MO 64105 816−472−6800 Fax: 816−472−6805 Email: sly@slyjamesfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Susan Stocking for herself and all others similarly situated

represented by Rex A Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rick D. Holtsclaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvester James, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Defendant ATTCorporation

Amicus Women's Law Project

Date Filed #

Docket Text

represented by Brian N. Woolley Lathrop &Gage, L.C. 2345 Grand Blvd. Suite 2500 Kansas City, MO 64108 (816)292−2000 Fax: (816)292−2001 Email: bwoolley@lathropgage.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura M. Franze Akin, Gump, Strauss, Hauer &Feld, LLP 1700 Pacific Avenue Suite 4100 Dallas, TX 75201 (214) 969−2779 Fax: (214) 969−4343 Email: lfranze@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Nelson Jackson Akin, Gump, Strauss, Hauer &Feld, LLP 1700 Pacific Avenue Suite 4100 Dallas, TX 75201 (214) 969−4250 Fax: (214) 969−4343 Email: mjackson@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Terry Fromson Women's Law Project 125 S. 9th Street Suite 300 Philadelphia, PA 19107 (215)928−9801 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David V. Kenner Levy and Craig, PC−KCMO 1301 Oak Street Kansas City, MO 64106 (816) 460−1822 Fax: (816) 382−6622 Email: dkenner@levycraig.com ATTORNEY TO BE NOTICED
Stacey I. Young 219East End Ave Apt 1 Pittsburgh, PA 15221 678−596−1976 TERMINATED: 10/09/2007

05/12/2003
05/14/2003 05/27/2003 06/02/2003 06/02/2003 06/02/2003 09/02/2003 09/02/2003
09/15/2003
09/16/2003 09/16/2003 09/22/2003 10/22/2003 10/30/2003
11/07/2003 11/10/2003

20 CASE TRANSFERRED IN from District of Kansas; Case Number 03−2028−CM. Original file with documents numbered 1−19, certified copy of transfer order and docket sheet received. filed by Rex A Sharp on behalf of Jane Lund, Susan Stocking. (Attachments: # 1 Docket Sheet# 2 Civil Cover Sheet)(Henson, Tanya) (Entered: 05/14/2003)
21 Notice of EAPADMIN was mailed to all parties. (Henson, Tanya) (Entered: 05/14/2003)
22 ANSWER to Complaint Answer of Defendant ATTCorporation to Plaintiffs' Original Class Action Complaint filed by Brian N. Woolley on behalf of Defendant ATTCorporation.(Woolley, Brian) (Entered: 05/27/2003)
23 DISCLOSURE OF CORPORATE INTERESTS Defendant's Certificate of Interest filed by Brian N. Woolley on behalf of Defendant ATTCorporation.(Woolley, Brian) (Entered: 06/02/2003)
24 Motion and Order to appear pro hac vice granting appearance of Attorney Marcia Nelson Jackson for ATTCorporationFee paid; receipt number 207009. (Beard, Melanie) (Entered: 06/03/2003)
25 Motion and Order to appear pro hac vice granting appearance of Attorney Laura M. Franze for ATTCorporationFee paid; receipt number 207008. (Beard, Melanie) (Entered: 06/03/2003)
26 MOTION to certify class filed by Rex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 9/17/2003 (Sharp, Rex) Modified on 9/3/2004 to terminate pending deadlines (Beard, Melanie). (Entered: 09/02/2003)
27 SUGGESTIONS in support re 26 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiffs Jane Lund, Susan Stocking. (Attachments: # 1 Index # 2 Exhibit A# 3 Exhibit B)(Related document(s) 26 ) (Sharp, Rex) (Entered: 09/02/2003)
28 Joint MOTION for extension of time to file response/reply as to 26 MOTION to certify class, 27 Suggestions in Support of Motion filed by Brian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 9/30/2003 (Related document(s) 26 , 27 ) (Woolley, Brian) (Entered: 09/15/2003)
29 NOTICE OF PRETRIAL PROCEDURE signed by Judge Howard F. Sachs on 9/16/2003. The parties shall file a Proposed Scheduling Order by 10/22/2003. (Moritz, Julie) (Entered: 09/16/2003)
30 ORDER granting the parties' joint motion for extension of time to respond to plaintiffs' motion for class certification (Doc. 28) signed by Judge Howard F. Sachs on 9/16/2003. See Order for details. (Moritz, Julie) (Entered: 09/16/2003)
31 ORDER DEEMING MOTION MOOT. Signed by Michael J. Beck, Clerk of the Panel on 9/22/03. (Kee, Georgia) (Entered: 09/30/2003)
32 Joint PROPOSED SCHEDULING ORDER Report of Parties' Planning Meeting, and Discovery Plan by ATTCorporation. (Woolley, Brian) (Entered: 10/22/2003)
33 SCHEDULING ORDER signed by Judge Howard F. Sachs on 10/30/2003. Discovery is due by 4/30/2004. Dispositive Motions are due by 5/25/2004. Because of the class certification issue it is premature to schedule a trial date. (Moritz, Julie) (Entered: 10/30/2003)
34 MOTION to dismiss case Without Prejudice as to Plaintiff Jane Lund filed by Sylvester James Jr. on behalf of Jane Lund Suggestions in opposition/response due by 11/24/2003 (James, Sylvester) (Entered: 11/07/2003)
35 MOTION for extension of time to file response/reply as to 26 MOTION to certify class Defendant's Unopposed Motion for Further Extension of Time in Which to File Opposition to Plaintiffs' Motion for Class Certification filed by Brian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 11/25/2003 (Related document(s) 26 ) (Woolley, Brian) (Entered: 11/10/2003)

12/03/2003 12/05/2003 12/11/2003 01/15/2004 01/23/2004 02/05/2004 02/06/2004 03/31/2004 04/02/2004 04/21/2004 04/22/2004 04/23/2004
04/26/2004 05/19/2004
05/20/2004

36 ORDER granting defendant's (Doc. 35) motion for extension of time signed by Judge Howard F. Sachs on 12/3/2003. See Order for details. (Moritz, Julie) (Entered: 12/03/2003)
37 MOTION to amend/correct 20 Case Transferred In − District Transfer, filed by Sylvester James Jr. on behalf of Jane Lund, Susan Stocking Suggestions in opposition/response due by 12/22/2003 (Attachments: # 1 # 2 # 3)(Related document(s) 20 ) (James, Sylvester) (Entered: 12/05/2003)
38 ORDER signed by Judge Howard F. Sachs on 12/11/2003. Plaintiff Lund's motion to dismiss without prejudice her separate claims and cause of action against defendant is granted. This action will proceed based on plaintiff Stocking's claims against defendant. (Moritz, Julie) (Entered: 12/11/2003)
39 ORDER granting plaintiff Susan Stocking's (Doc. 37) motion for leave to file her first amended class action complaint signed by Judge Howard F. Sachs on 1/15/2004. Stocking is to file her first amended class action complaint within 7 days of the date of this order. (Moritz, Julie) (Entered: 01/15/2004)
40 AMENDED COMPLAINT against ATTCorporation Service due by 5/24/2004, filed by Sylvester James Jr. on behalf of Susan Stocking. (Attachments: # 1 Exhibit # 2 Exhibit)(James, Sylvester) (Entered: 01/23/2004)
41 PROPOSED SCHEDULING ORDER First Amended by ATTCorporation. (Woolley, Brian) (Entered: 02/05/2004)
42 Defendant ATs ANSWER to Amended Complaint (Plaintiff's First Amended Class Action Complaint) filed by Brian N. Woolley on behalf of Defendant ATTCorporation.(Woolley, Brian) (Entered: 02/06/2004)
43 MOTION to clarify Defendant's Unopposed Motion to Clarify and Set Dates Certain for Response and Reply to Stocking's Motion for Class Certification filed by Brian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/15/2004 (Woolley, Brian) (Entered: 03/31/2004)
44 ORDER granting defendant's (Doc. 43) motion to clarify signed by Judge Howard F. Sachs on 4/2/2004. Defendant shall file its suggestions in opposition to plaintiff Stocking's motion for class certification by 4/23/2004. (Moritz, Julie) (Entered: 04/02/2004)
45 MOTION for leave to file excess pages Defendant's Motion for Leave to Exceed Page Limit filed by Brian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 5/6/2004 (Woolley, Brian) (Entered: 04/21/2004)
46 ORDER granting defendant's (Doc. 45) motion for leave to file excess pages signed by Judge Howard F. Sachs on 4/22/2004. (Moritz, Julie) (Entered: 04/22/2004)
47 SUGGESTIONS in opposition re 26 MOTION to certify class Defendant's Suggestions in Opposition to Plaintiff Susan Stocking's Motion for Class Certification filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply Suggestions due by 5/10/2004. (Related document(s) 26 ) (Woolley, Brian) Additional attachment(s) added on 4/26/2004 (Kee, Georgia). Modified on 4/26/2004 to acknowledge receipt of exhibits in Clerk's Office in 4/23/04(Beard, Melanie). (Entered: 04/23/2004)
***Remark: Document #48 (Notice Regarding Exhibit Attachment) has been deleted as a separate entry, but added as an attachment to document #47 (Kee, Georgia) (Entered: 04/26/2004)
48 MOTION for leave to file Plaintiff's Reply Brief in Support of Class Certification Out of Time filed by Rex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 6/3/2004 (Attachments: # 1 Appendix Plaintiff's Reply Brief in Support of Class Certification# 2 Exhibit Exhibit A to Reply Brief# 3 Exhibit Exhibit B to Reply Brief)(Sharp, Rex) (Entered: 05/19/2004)
49 ORDER granting plaintiff's (Doc. 48) motion for leave to file her reply suggestions signed by Judge Howard F. Sachs on 5/20/2004. Plaintiff shall file within 7 days of the date of this order. (Moritz, Julie) (Entered: 05/20/2004)

05/21/2004 05/26/2004
06/17/2004 06/17/2004 07/29/2004 09/03/2004 11/08/2004 01/10/2005 01/20/2005 01/26/2005 02/10/2005 02/11/2005
02/11/2005 02/11/2005

50 REPLY SUGGESTIONS to motion re 26 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiffs Jane Lund, Susan Stocking. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 26 ) (Sharp, Rex) (Entered: 05/21/2004)
51 MOTION for leave to file /Defendant ATTCorp.'s Unopposed Motion for Leave to File a Sur−Reply in Opposition to Plaintiff's Motion for Class Certification filed by Brian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 6/10/2004 (Attachments: # 1 Exhibit)(Woolley, Brian) (Entered: 05/26/2004)
52 ORDER granting defendant's (Doc. 51) motion for leave to file its sur−reply brief in opposition to plaintiff's motion for class certification within 7 days of the date of this Order signed by Judge Howard F. Sachs on 6/17/2004. (Moritz, Julie) (Entered: 06/17/2004)
53 REPLY SUGGESTIONS to motion re 26 MOTION to certify class Defendant's Sur−Reply in Further Support of Opposition to Plaintiff's Motion for Class Certification filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Related document(s) 26 ) (Woolley, Brian) (Entered: 06/17/2004)
54 Second PROPOSED SCHEDULING ORDER Amended by ATTCorporation. (Woolley, Brian) (Entered: 07/29/2004)
55 MEMORANDUM AND ORDER DENYING CLASS CERTIFICATION WITHOUT PREJUDICE signed by Judge Howard F. Sachs on 9/3/2004. (Moritz, Julie) (Entered: 09/03/2004)
56 AMENDED SCHEDULING ORDER signed by Judge Howard F. Sachs on 11/8/2004. Discovery should be completed by 2/14/2005. Dispositive motions to be filed by 3/11/2005.Because of poential class action issues, it is premature to set a trial date for either action.(Moritz, Julie) (Entered: 11/08/2004)
57 CERTIFICATE OF SERVICE by all plaintiffs Service of First Set of Interrogatories and First Set of Requests for Documents to Defendant ATTCorporation filed by Rex A Sharp on behalf of Plaintiffs Jane Lund, Susan Stocking.(Sharp, Rex) (Entered: 01/10/2005)
58 NOTICE to take deposition of 30(b)(6) Designate filed by Rex A Sharp on behalf of Plaintiffs Jane Lund, Susan Stocking. (Attachments: # 1 Exhibit A)(Sharp, Rex) (Entered: 01/20/2005)
59 MOTION for extension of time to complete discovery filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 2/10/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 01/26/2005)
60 MOTION for leave to file excess pages filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 2/25/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 02/10/2005)
61 MOTION to compel ATfiled byRex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 2/28/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A: Notice of 30(b)(6) Deposition# 2 Exhibit B: ATs Objections to Deposition Notice)(Sharp, Rex) (Entered: 02/11/2005)
62 MOTION for extension of time of Amended Scheduling Order Deadlines filed byRex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 2/28/2005 unless otherwise directed by the court (Sharp, Rex) (Entered: 02/11/2005)
63 MOTION for extension of time to complete discovery filed byRex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 2/28/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A: Interrogatories to Defendant AT2 Exhibit B: Request for Production to Defendant ATRex) (Entered: 02/11/2005)

02/14/2005 02/14/2005 02/14/2005 02/14/2005 02/17/2005 02/17/2005 02/28/2005
02/28/2005
03/04/2005 03/11/2005 03/11/2005 03/11/2005

64 ORDER granting the defendant's (Doc. 59) motion for extension of time in Case No. 03−0421 signed by Judge Howard F. Sachs on 2/14/2005. Discovery deadline is extended to 2/17/2005. The defendant's (Doc. 60) motion for leave to exceed the page limit in Case No. 03−0421 is also granted. (Moritz, Julie) (Entered: 02/14/2005)
65 CERTIFICATE OF SERVICE by Susan Stocking on Defendant's First Interrogatories filed by Sylvester James, Jr on behalf of Plaintiff Susan Stocking.(James, Sylvester) (Entered: 02/14/2005)
66 MOTION for summary judgment and Supporting Suggestions filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 3/21/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Woolley, Brian) Modified on 7/31/2006 to terminate motion deadlines (Beard, Melanie). (Entered: 02/14/2005)
67 CERTIFICATE OF SERVICE by ATTCorporation filed by Brian N. Woolley on behalf of Defendant ATTCorporation.(Woolley, Brian) (Entered: 02/14/2005)
68 CERTIFICATE OF SERVICE by Susan Stocking of Supplemental Answers to Defendant's Interrogatories #2 and #3 filed by Sylvester James, Jr on behalf of Plaintiff Susan Stocking.(James, Sylvester) (Entered: 02/17/2005)
69 MOTION to compel Responses to First Set of Interroagatories and First Set of Requests for Production of Documents filed byRex A Sharp on behalf of all plaintiffs Suggestions in opposition/response due by 3/4/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit A (Part 1 of 2)# 2 Exhibit Exhibit A (Part 2 of 2))(Sharp, Rex) (Entered: 02/17/2005)
70 SUGGESTIONS in opposition re 62 MOTION for extension of time of Amended Scheduling Order Deadlines, 63 MOTION for extension of time to complete discovery Defendant ATTCorp's Combined Suggestions in Opposition to Plaintiff's Motion to Enlarge Deadlines in Amended Scheduling Order and Motion for Leave to Serve Discovery Out of Time filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 3/15/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Related document(s) 62 , 63 ) (Woolley, Brian) (Entered: 02/28/2005)
71 SUGGESTIONS in opposition re 61 MOTION to compel ATDefendant ATTCorp.'s Suggestions in Opposition to Plaintiff's Motion For Order Compelling Production of ATTOfficial(s) and Documents Pursuant to Notice of 30(b)(6) Deposition filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 3/15/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Related document(s) 61 ) (Woolley, Brian) (Entered: 02/28/2005)
72 SUGGESTIONS in opposition re 69 MOTION to compel Responses to First Set of Interroagatories and First Set of Requests for Production of Documents filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 3/21/2005 unless otherwise directed by the court (Related document(s) 69 ) (Woolley, Brian) (Entered: 03/04/2005)
73 SUGGESTIONS in opposition to motion for summary judgment re 66 MOTION for summary judgment and Supporting Suggestions and Plaintiff's Cross−Motion for Summary Judgment filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 3/28/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 66 ) (Sharp, Rex) (Entered: 03/11/2005)
74 MOTION to certify class filed byRex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 3/28/2005 unless otherwise directed by the court (Sharp, Rex) Modified on 7/31/2006 to terminate motion deadlines (Beard, Melanie). (Entered: 03/11/2005)
DELETED DOCUMENT(S) SUGGESTIONS in support re 74 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # Exhibit Excerpt from Susan Stocking's Deposition)(Related

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document(s) 74 ) (Sharp, Rex) Modified on 3/14/2005 to delete the main document, which was filed in error (Beard, Melanie). (Entered: 03/11/2005)
76 SUGGESTIONS in support re 74 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # 1 Appendix Excerpt from Susan Stocking's Deposition)(Related document(s) 74 ) (Sharp, Rex) (Entered: 03/11/2005)
97 CROSS MOTION for summary judgment filed by Rex A Sharp on behalf of Susan Stocking. Suggestions in opposition/response due by 4/13/2005 unless otherwise directed by the court. This document is being filed to establish a response deadline. The original cross motion is contained in document #73, SUGGESTIONS in opposition to motion for summary judgment re 66 MOTION for summary judgment.(Jones, Robin) Modified on 7/31/2006 to terminate motion deadlines(Beard, Melanie). (Entered: 04/14/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 3/11/05 as Suggestions in Support of Motion to Certfiy Class. A document (#75) has been deleted from the entry. If necessary, counsel has been contacted and asked to refile a corrected document. This is a text entry only − no document is attached. (Beard, Melanie) (Entered: 03/14/2005)
77 MOTION to withdraw document 63 MOTION for extension of time to complete discovery filed byRex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 3/30/2005 unless otherwise directed by the court (Related document(s) 63 ) (Sharp, Rex) (Entered: 03/15/2005)
78 REPLY SUGGESTIONS to motion re 62 MOTION for extension of time of Amended Scheduling Order Deadlines filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 62 ) (Sharp, Rex) (Entered: 03/15/2005)
79 REPLY SUGGESTIONS to motion re 61 MOTION to compel ATto Produce Officials and Documents Pursuant to 30 (b)(6) filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 61 ) (Sharp, Rex) (Entered: 03/15/2005)
80 REPLY SUGGESTIONS to motion re 69 MOTION to compel Responses to First Set of Interroagatories and First Set of Requests for Production of Documents filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 69 ) (Sharp, Rex) (Entered: 03/16/2005)
81 MOTION for extension of time Defendant's Motion for Extension of Time in which to File Opposition to Plaintiffs' Second Motion for Class Certification filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/6/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 03/22/2005)
82 MOTION for extension of time Defendant ATTCorp.'s Motion to File Limited Surreply Brief in Further Response to Plaintiffs' Multiple Discovery Motions and Motion to Enlarge Deadlines filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/6/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 03/22/2005)
83 SUGGESTIONS in opposition re 81 MOTION for extension of time Defendant's Motion for Extension of Time in which to File Opposition to Plaintiffs' Second Motion for Class Certification filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 4/7/2005 unless otherwise directed by the court (Related document(s) 81 ) (Sharp, Rex) (Entered: 03/23/2005)
84 SUGGESTIONS in opposition re 82 MOTION for extension of time Defendant ATTCorp.'s Motion to File Limited Surreply Brief in Further Response to Plaintiffs' Multiple Discovery Motions and Motion to Enlarge Deadlines filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 4/7/2005 unless otherwise directed by the court (Related document(s) 82 ) (Sharp, Rex) (Entered: 03/23/2005)

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DELETED DOCUMENT: Reply MOTION for leave to file Surreply and for Extension to Respond to Class Certification Motion filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/8/2005 unless otherwise directed by the court (Woolley, Brian) Modified on 3/28/2005 to delete the main document, as it was filed in error and to terminate the document deadlines. (Beard, Melanie). (Entered: 03/24/2005)
86 REPLY SUGGESTIONS to motion re 85 Reply MOTION for leave to file Surreply and for Extension to Respond to Class Certification Motion in Further Support filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Related document(s) 85 ) (Woolley, Brian) (Entered: 03/25/2005)
87 REPLY SUGGESTIONS to motion re 85 Reply MOTION for leave to file Surreply and for Extension to Respond to Class Certification Motion / Defendant ATTCorp.'s Reply in Further Support of Motion for Extension in Which to Respond to Plaintiff's Second Motion for Class Certification filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Related document(s) 85 ) (Woolley, Brian) (Entered: 03/25/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 3/24/05 as Reply Motion for Leave to File Surreply. A document has been deleted from the entry. The document has been refiled as docment # 86 and #87 If necessary, counsel has been contacted and asked to refile a corrected document. This is a text entry only − no document is attached. (Beard, Melanie) (Entered: 03/28/2005)
88 MOTION for leave to file excess pages for Response to Motion for Class Certification filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/12/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 03/28/2005)
89 MOTION for leave to file excess pages for Reply Suggestions in Support of Motion for Summary Judgment filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/12/2005 unless otherwise directed by the court (Woolley, Brian) (Entered: 03/28/2005)
90 SUGGESTIONS in opposition re 74 MOTION to certify class Defendant ATTCorp.'s Suggestions in Opposition to Plaintiff's Second Motion For Class Certification filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 4/12/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A)(Related document(s) 74 ) (Woolley, Brian) (Entered: 03/28/2005)
DELETED DOCUMENT: SUGGESTIONS in support re 66 MOTION for summary judgment and Supporting Suggestions Reply Suggestions in Further Support of Defendant ATTCorp.'s Motion for Summary Judgment filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Related document(s) 66 ) (Woolley, Brian) Modified on 3/30/2005 to delete the main document, which was filed in error (Beard, Melanie). (Entered: 03/29/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 3/29/05 as Suggestions in Support of Motion. A document (#91) has been deleted from the entry. Counsel has been contacted and asked to refile a corrected document. This is a text entry only − no document is attached. (Beard, Melanie) (Entered: 03/30/2005)
91 MOTION for leave to file Reply Suggestions in Support of Motion for Summary Judgment Out of Time filed byBrian N. Woolley on behalf of ATTCorporation Suggestions in opposition/response due by 4/14/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit 1)(Woolley, Brian) (Entered: 03/30/2005)
92 MOTION for extension of time of Scheduling Order filed byRex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 4/19/2005 unless otherwise directed by the court (Sharp, Rex) (Entered: 04/04/2005)
93 REPLY SUGGESTIONS to motion re 82 MOTION for extension of time Defendant ATTCorp.'s Motion to File Limited Surreply Brief in Further Response to Plaintiffs' Multiple Discovery Motions and Motion to Enlarge

04/06/2005 04/12/2005 04/12/2005 04/13/2005
04/13/2005 04/14/2005
04/20/2005 04/20/2005 04/20/2005
04/20/2005

Deadlines filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 82 ) (Sharp, Rex) (Entered: 04/06/2005)
94 REPLY SUGGESTIONS to motion re 81 MOTION for extension of time Defendant's Motion for Extension of Time in which to File Opposition to Plaintiffs' Second Motion for Class Certification filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 81 ) (Sharp, Rex) (Entered: 04/06/2005)
95 MOTION for leave to file excess pages for Reply in Support of Plaintiffs' Motion for Class Certification filed byRex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 4/27/2005 unless otherwise directed by the court (Sharp, Rex) (Entered: 04/12/2005)
DELETED DOCUMENT: REPLY SUGGESTIONS to motion re 74 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # Exhibit A# Appendix B# Exhibit C# Exhibit D# Appendix E# Exhibit F# Exhibit G)(Related document(s) 74 ) (Sharp, Rex) Modified on 4/13/2005 to delete main document and attachments, as leave of Court was not granted to file (Beard, Melanie). (Entered: 04/12/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 4/12/05 as REPLY SUGGESTIONS to motion re 74 MOTION to certify class. A document (#96)has been deleted from the entry. DELETED PER ADMINISTRATIVE PROCEDURES REGARDING MOTIONS FOR LEAVE TO FILE. COUNSEL SHOULD NOT FILE DOCUMENT UNTIL THE COURT GRANTS LEAVE. This is a text entry only − no document is attached. (Beard, Melanie) (Entered: 04/13/2005)
96 SUGGESTIONS in opposition to motion for summary judgment re 97 CROSS MOTION for Summary Judgment filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 4/28/2005 unless otherwise directed by the court (Related document(s) 97 ) (Woolley, Brian) Modified on 4/14/2005 to correct document link and event title (Jones, Robin). (Entered: 04/13/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on April 13, 2005, as Document 96 Suggestion in Opposition to motion for summary judgment re 74 MOTION to certify class. The event was retitled to read Suggestions in opposition to motion for summary judgment re 97 Cross motion for summary judgment. The reply suggestions deadline will remain the same (April 28, 2005). This is a text entry only − no document is attached. (Jones, Robin) (Entered: 04/14/2005)
98 MOTION for leave to file Brief Amici Curiae filed byDavid V. Kenner on behalf of Women's Law Project Suggestions in opposition/response due by 5/5/2005 unless otherwise directed by the court (Kenner, David) (Entered: 04/20/2005)
99 SUGGESTIONS in support re 98 MOTION for leave to file Brief Amici Curiae filed by David V. Kenner on behalf of Amicus Women's Law Project. (Related document(s) 98 ) (Kenner, David) (Entered: 04/20/2005)
DELETED DOCUMENT−#100 SUGGESTIONS in opposition re 66 MOTION for summary judgment and Supporting Suggestions Brief of Amici Curiae filed by David V. Kenner on behalf of Amicus Women's Law Project. Reply suggestions due by 5/5/2005 unless otherwise directed by the court (Related document(s) 66 ) (Kenner, David) Modified on to delete the main document which was filed on 4/20/2005, without leave of court (Beard, Melanie). (Entered: 04/20/2005)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 4/20/05 as SUGGESTIONS in opposition re 66 MOTION for summary judgment and Supporting Suggestions Brief of Amici Curiae filed by David V. Kenner on behalf of Amicus Women's Law Project. A document has been deleted from the entry (#100). DELETED PER ADMINISTRATIVE PROCEDURES REGARDING DOCUMENTS FOR LEAVE TO FILE. This is a text entry only − no document is attached. (Beard, Melanie) (Entered:

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04/20/2005)
100 ORDER granting defendant's motion for leave to file out of time its reply brief in support of its motion for summary judgment. Signed by Judge Howard F. Sachs on 4/20/2005. (Moritz, Julie) (Entered: 04/20/2005)
101 REPLY SUGGESTIONS to motion re 66 MOTION for summary judgment and Supporting Suggestions Reply in Further Support of Defendant ATTCorp.'s Motion for Summary Judgment filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Related document(s) 66 ) (Woolley, Brian) (Entered: 04/20/2005)
102 Amicus Curiae APPEARANCE entered by David V. Kenner on behalf of Women's Law Project. (Kenner, David) (Entered: 04/20/2005)
103 Motion and Order to appear pro hac vice granting appearance of Attorney Stacey I. Young for Women's Law Project Fee paid; receipt number 229904. (Revis, Christi) (Entered: 04/27/2005)
104 MOTION for leave to file excess pages filed byRex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 5/13/2005 unless otherwise directed by the court (Attachments: # 1 Appendix Reply Suggestions in Support of Plaintiffs' Cross Motion for Summary Judgment or for Partial Summary Judgment for the Class on Liability)(Sharp, Rex) (Entered: 04/28/2005)
105 SUGGESTIONS in opposition re 98 MOTION for leave to file Brief Amici Curiae filed by Brian N. Woolley on behalf of Defendant ATTCorporation. Reply suggestions due by 5/18/2005 unless otherwise directed by the court (Related document(s) 98 ) (Woolley, Brian) (Entered: 05/03/2005)
106 REPLY SUGGESTIONS to motion re 98 MOTION for leave to file Brief Amici Curiae filed by David V. Kenner on behalf of Amicus Women's Law Project. (Attachments: # 1 Exhibit A, Part 1# 2 Exhibit A, Part 2)(Related document(s) 98 ) (Kenner, David) (Entered: 05/06/2005)
107 ORDER withdrawing plaintiffs' 63 motion for extension of time to complete discovery, granting plaintiffs' 77 motion to withdraw document, finding as moot defendant's 81 motion for extension of time, finding as moot defendant's 88 motion for leave to file excess pages, granting defendant's 89 motion for leave to file excess pages, granting plaintiffs' 95 motion for leave to file excess pages and granting plaintiffs' 104 motion for leave to file excess pages signed by Judge Howard F. Sachs on 5/25/2005. (Moritz, Julie) (Entered: 05/25/2005)
108 REPLY SUGGESTIONS to motion re 74 MOTION to certify class filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Related document(s) 74 ) (Sharp, Rex) (Entered: 05/25/2005)
109 REPLY SUGGESTIONS to motion re 97 MOTION for summary judgment filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 97 ) (Sharp, Rex) (Entered: 05/25/2005)
110 SUPPLEMENT al Authority In Support of Plaintiff's Motions for Class Certification and Summary Judgment. (Attachments: # 1 Exhibit Order Granting Partial Summary Judgment to Plaintiffs in Union Pacific Litigation)(Related document(s) 74 , 97 ) (Sharp, Rex) (Entered: 07/25/2005)
111 ORDER denying 61 motion to compel, denying 69 motion to compel. Signed by Judge Howard F. Sachs on 9/26/05. (Beard, Melanie) (Entered: 09/26/2005)
112 ORDER denying 62 motion for extension of time. Signed by Judge Howard F. Sachs on 9/28/05. (Beard, Melanie) (Entered: 09/28/2005)
113 SUPPLEMENT Authority in Support of Plaintiff's Motions for Class Certification and Summary Judgment. (Attachments: # 1 Exhibit A)(Related document(s) 74 , 97 ) (Sharp, Rex) (Entered: 10/17/2005)

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114 SUPPLEMENT Authority In Support of Plaintiff's Motions for Class Certification and Summary Judgment. (Attachments: # 1 Exhibit A)(Related document(s) 74 , 97 ) (Sharp, Rex) (Entered: 10/17/2005)
115 Amended SUPPLEMENT Authority In Support of Plaintiff's Motions for Class Certification and Summary Judgment. (Attachments: # 1 Exhibit A)(Related document(s) 74 , 97 ) (Sharp, Rex) (Entered: 10/18/2005)
116 NOTICE of change of address by Rick D. Holtsclaw (Holtsclaw, Rick) (Entered: 10/18/2005)
117 Proposed MOTION for hearing on Motions for Summary Judgment Prior to COnsideration of Plaintiff's Second Motion for Class Certification filed byLaura M. Franze on behalf of ATTCorporation Suggestions in opposition/response due by 2/13/2006 unless otherwise directed by the court (Franze, Laura) (Entered: 01/27/2006)
118 SUGGESTIONS in opposition re 117 Proposed MOTION for hearing on Motions for Summary Judgment Prior to COnsideration of Plaintiff's Second Motion for Class Certification filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 2/13/2006 unless otherwise directed by the court (Related document(s) 117 ) (Sharp, Rex) (Entered: 01/27/2006)
119 ORDER denying motions for extension of time regarding discovery issues (Docs. 82 &92), granting plaintiff's motion to file an amicus curiae brief (Doc. 98) and denying defendant's motion to set a hearing for oral argument (Doc. 117) signed by Judge Howard F. Sachs on 3/28/2006. The court will hear oral argument on the parties' cross motions for summary judgment and plaintiff's second motion for class certification at 10 a.m. on Tuesday, May 9, 2006. (Moritz, Julie) (Entered: 03/28/2006)
120 Minute Entry for proceedings held before Judge Howard F. Sachs : ORAL ARGUMENT held on 5/9/06. (Court Reporter Debbie Haney.) (Beard, Melanie) (Entered: 05/10/2006)
121 Motion to allow Terry Fromson to appear pro hac vice (Pro Hac fee $50 receipt number 241601) filed by David V. Kenner on behalf of Women's Law Project (Baldwin, Joella) (Entered: 05/22/2006)
ORDER granting 121 motion to appear pro hac vice approved by Clerk of Court. Attorney Terry Fromson for Women's Law Project allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. (Baldwin, Joella) (Entered: 05/22/2006)
122 SUPPLEMENT Brief Regarding Class Certification and Summary Judgment on Liability. (Related document(s) 74 , 97 ) (Sharp, Rex) (Entered: 05/23/2006)
123 SUGGESTIONS in support re 66 MOTION for summary judgment and Supporting Suggestions Defendant's Post−Oral Argument Supplemental Briefing in Further Support of its Motion for Summary Judgment and Opposition to Class Certification filed by Brian N. Woolley on behalf of Defendant ATTCorporation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Related document(s) 66 ) (Woolley, Brian) (Entered: 05/23/2006)
The document originally filed on 6/5/06 as document no. 124, MEMORANDUM AND ORDER signed by Judge Howard F. Sachs on 6/5/2006. (Moritz, Julie), has been DELETED per chambers. Chambers will refile an amended document. Modified on 6/7/2006 (Carr, Lori). (Entered: 06/05/2006)
125 ORDER signed by Judge Howard F. Sachs on 6/6/2006. The case number for the Alexander case (Doc. 124 p. 3) should start with the number 2002 and the second sentence in the final paragraph on page 4 should be deleted.(Moritz, Julie) (Entered: 06/06/2006)
NOTICE OF DOCKET MODIFICATION. The document originally filed on 6/5/06 as document no. 124, MEMORANDUM AND ORDER signed by Judge

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Howard F. Sachs on 6/5/2006. (Moritz, Julie), has been DELETED per chambers. Chambers will refile an amended document. This is a text entry only − no document is attached. (Carr, Lori) (Entered: 06/07/2006)
126 MEMORANDUM AND ORDER signed by Judge Howard F. Sachs on 6/7/2006. (Moritz, Julie) (Entered: 06/07/2006)
127 MOTION for certificate of appealability to Certify Order for Interlocutory Appeal filed by Marcia Nelson Jackson on behalf of ATTCorporation Suggestions in opposition/response due by 7/6/2006 unless otherwise directed by the court (Attachments: # 1 # 2 # 3)(Jackson, Marcia) (Entered: 06/21/2006)
128 MOTION to stay and Suggestions in Support filed by Marcia Nelson Jackson on behalf of ATTCorporation Suggestions in opposition/response due by 7/6/2006 unless otherwise directed by the court (Attachments: # 1 # 2)(Jackson, Marcia) (Entered: 06/21/2006)
129 SUGGESTIONS in opposition re 127 MOTION for certificate of appealability to Certify Order for Interlocutory Appeal filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 7/14/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 127 ) (Sharp, Rex) (Entered: 06/29/2006)
130 SUGGESTIONS in opposition re 128 MOTION to stay and Suggestions in Support filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 7/17/2006 unless otherwise directed by the court (Attachments: # 1 Attachment A)(Related document(s) 128 ) (Sharp, Rex) (Entered: 06/30/2006)
131 MOTION for order Proposed Orders for Notice, Opt−Out, Claim Procedure and Attorneys Fees filed by Rex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 7/20/2006 unless otherwise directed by the court (Attachments: # Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Sharp, Rex) (Entered: 07/05/2006)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 7/5/06 as Proposed Order Regarding Class Notice( Ex. A). A document has been deleted from the entry. DELETED IN COMPLIANCE WITH ADMINISTRATIVE PROCEDURES REGARDING PROPOSED ORDERS. This is a text entry only − no document is attached. (Beard, Melanie) (Entered: 07/06/2006)
132 REPLY SUGGESTIONS to motion re 128 MOTION to stay and Suggestions in Support of its Motion for Stay filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. (Related document(s) 128 ) (Jackson, Marcia) (Entered: 07/11/2006)
133 ORDER denying defendant's motion for certification (Doc. 127) and denying defendant's motion for stay regarding prosecution of the class action (Doc. 128) signed by Judge Howard F. Sachs on 7/12/2006. (Moritz, Julie) (Entered: 07/12/2006)
134 SUGGESTIONS in opposition re 131 MOTION for order Proposed Orders for Notice, Opt−Out, Claim Procedure and Attorneys Fees Counter Proposal and Objections filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. Reply suggestions due by 7/28/2006 unless otherwise directed by the court (Attachments: # 1 # 2)(Related document(s) 131 ) (Jackson, Marcia) (Entered: 07/13/2006)
135 SUGGESTIONS in support re 131 MOTION for order Proposed Orders for Notice, Opt−Out, Claim Procedure and Attorneys Fees filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 131 ) (Sharp, Rex) (Entered: 07/28/2006)
NOTICE OF INTERLOCUTORY APPEAL as to 126 Memorandum &Opinion by Susan Stocking. Filing fee $ 455, paid on 8/9/2006, receipt no. 242904. Text entry only. Appeal was filed directly with the 8th Circuit Court of Appeals. Entry made to set schedules and deadlines as directed by the Court of Appeals. (Beard,

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Melanie) Modified on 8/9/2006 to indicate filing fee paid (Jones, Robin). (Entered: 08/04/2006)
136 SUPPLEMENT Suggestions to Modify Proposed Order regarding Class Notice, Claims and Attorneys' Fees. (Related document(s) 131 ) (Sharp, Rex) (Entered: 08/03/2006)
RECEIPT number 242904 in the amount of $455.00 issued to Akin, Gump, Strauss, Hauer &Feld for August 2, 2006 NOTICE OF INTERLOCUTORY APPEAL. (Jones, Robin) (Entered: 08/09/2006)
137 NOTICE OF CROSS APPEAL by Susan Stocking. Filing fee $ 455, receipt number 1323247. (Sharp, Rex) (Entered: 08/10/2006)
138 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 137 Notice of Cross Appeal (Crespo, Wil) (Entered: 08/10/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Thu Aug 10 15:28:24 CDT 2006 (Crespo, Wil) (Entered: 08/10/2006)
139 REPLY SUGGESTIONS to motion re 131 MOTION for order Proposed Orders for Notice, Opt−Out, Claim Procedure and Attorneys Fees Response in Opposition to Plaintiff's "Reply Brief" Regarding Proposed Class Notice, Questionnaire and Claim Form filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. (Attachments: # 1 # 2)(Related document(s) 131 ) (Jackson, Marcia) (Entered: 08/11/2006)
140 MOTION to strike 139 Reply Suggestions to Motion, filed by Rex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 8/30/2006 unless otherwise directed by the court (Related document(s) 139 ) (Sharp, Rex) (Entered: 08/15/2006)
USCA Case Number from 8th Circuit Court of Appeals is 06−3071 for 137 Notice of Cross Appeal filed by Susan Stocking, no schedule available. THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Crespo, Wil) (Entered: 08/16/2006)
141 MOTION to strike 137 Notice of Cross Appeal and Suggestions in Support filed by Marcia Nelson Jackson on behalf of all defendants Suggestions in opposition/response due by 9/5/2006 unless otherwise directed by the court (Attachments: # 1)(Related document(s) 137 ) (Jackson, Marcia) (Entered: 08/18/2006)
142 SUGGESTIONS in opposition re 140 MOTION to strike 139 Reply Suggestions to Motion, filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. Reply suggestions due by 9/7/2006 unless otherwise directed by the court (Related document(s) 140 ) (Jackson, Marcia) (Entered: 08/23/2006)
143 RESPONSE to motion re 141 MOTION to strike 137 Notice of Cross Appeal and Suggestions in Support filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 9/15/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 141 ) (Sharp, Rex) (Entered: 08/31/2006)
144 TRANSCRIPT of Motions Hearing held on May 9, 2006 before Judge Howard F. Sachs. Court Reporter: Debbie Haney. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Beard, Melanie) (Entered: 09/01/2006)
***Appeals remark: Attorney's appendix (3 copies) due 10/25/06 (Crespo, Wil) (Entered: 09/07/2006)
145 MOTION to compel filed by Rex A Sharp on behalf of Susan Stocking Suggestions in opposition/response due by 10/31/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B)(Sharp, Rex) (Entered: 10/16/2006)

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146 SUGGESTIONS in opposition re 145 MOTION to compel and Request for Reasonable Attorney's Fees filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. Reply suggestions due by 11/15/2006 unless otherwise directed by the court (Attachments: # 1)(Related document(s) 145 ) (Jackson, Marcia) (Entered: 10/31/2006)
147 REPLY SUGGESTIONS to motion re 145 MOTION to compel filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. (Related document(s) 145 ) (Sharp, Rex) (Entered: 11/10/2006)
148 NOTICE of change of address by Rex A Sharp (Sharp, Rex) (Entered: 01/31/2007)
149 USCA Judgment as to Notice of Interlocutory Appeal, filed by Susan Stocking, 137 Notice of Cross Appeal filed by Susan Stocking This is a preliminary judgment of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. This case is hereby remanded to the district court for reconsideration in light of this court's decision in In Re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007). (Crespo, Wil) (Entered: 06/01/2007)
150 MANDATE of US COURT OF APPEALS as to Notice of Interlocutory Appeal, filed by Susan Stocking, 127 MOTION for certificate of appealability to Certify Order for Interlocutory Appeal filed by ATTCorporation, 137 Notice of Cross Appeal filed by Susan Stocking with mandate issued on 6/1/07. (Crespo, Wil) (Entered: 06/01/2007)
151 MOTION for reconsideration of Summary Judgment and Class Certification and Suggestions in Support filed by Marcia Nelson Jackson on behalf of ATTCorporation. Suggestions in opposition/response due by 7/12/2007 unless otherwise directed by the court. (Jackson, Marcia) (Entered: 06/27/2007)
152 MOTION for extension of time filed by Rex A Sharp on behalf of Susan Stocking. Suggestions in opposition/response due by 7/26/2007 unless otherwise directed by the court. (Sharp, Rex) (Entered: 07/09/2007)
153 SUGGESTIONS in opposition re 151 MOTION for reconsideration of Summary Judgment and Class Certification and Suggestions in Support filed by Rex A Sharp on behalf of Plaintiff Susan Stocking. Reply suggestions due by 8/10/2007 unless otherwise directed by the court (Attachments: # 1 Exhibit 1)(Related document(s) 151 ) (Sharp, Rex) (Entered: 07/26/2007)
154 REPLY SUGGESTIONS to motion re 151 MOTION for reconsideration of Summary Judgment and Class Certification and Suggestions in Support filed by Marcia Nelson Jackson on behalf of Defendant ATTCorporation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Related document(s) 151 ) (Jackson, Marcia) (Entered: 08/09/2007)
155 ORDER denying plaintiffs' motion for order (Doc. 131); denying plaintiffs' motion to strike (Doc. 140); denying defendant's motion to strike (Doc. 141); denying plaintiffs'motion to compel(Doc. 145) and granting plaintiffs' unopposed motion for extension of time (Doc. 152) signed by Judge Howard F. Sachs on 9/14/2007. (Moritz, Julie) (Entered: 09/14/2007)
156 MAIL RETURNED as undeliverable. Mail sent to Stacy I. Young, 219 East End Ave., Apt. 1, Pittsburgh, PA 15221. Atty contacted and will file a Motion to Withdraw. (Related document(s) 155 ) (Baldwin, Joella) (Entered: 09/27/2007)
158 CLERK'S JUDGMENT in favor of ATTCorporation and against Susan Stocking. (Moritz, Julie) (Entered: 10/22/2007)
160 AMENDED MEMORANDUM AND ORDER. Signed by Judge Howard F. Sachs on 10/22/07. Amended to correct the signature and file date due to clerical error.(Beard, Melanie) (Entered: 11/05/2007)
159 MEMORANDUM AND ORDER signed by Judge Howard F. Sachs on 10/22/2007. Judgment is entered in favor of defendant. The prior ruling in favor of plaintiff and her class is vacated. (Moritz, Julie) (Entered: 10/23/2007)


[CONTENT] January 23, 2004 | Plaintiff | Title VII of the Civil Rights Act | 1964 | the Pregnancy Discrimination Act | 42 | 2000e ||| 2000e(k | AT&T Corporation | the United States | District Court | the Western District | Missouri ||| AT&T | Court | AT&T ||| 2002 | 2002 ||| the U.S. District Court | Kansas | Missouri | May 12, 2003 |||  ||| two |||  ||| September 3, 2004 | Court | Sachs ||| Court |||  ||| Court |||  |||  ||| Court ||| June 7, 2006 | Court | Sachs ||| AT&T | October 31, 2001 to July 2, 2002 ||| Court | 2002 ||| 68.07 | AT&T |||  |||  |||  ||| June 1, 2007 | the United States Court of Appeals | the Eighth Circuit | the District Court | Sachs ||| The Circuit Court | the District Court | Re Union Pacific Railroad Employment Practices Litigation | 479 | 936 | 8th Cir. | 2007 ||| the District Court | June 7, 2006 ||| October 22, 2007 | the District Court | Sachs ||| the next day | October 23, 2007 [SUMMARY] On January 23, 2004, Plaintiff filed an amended complaint under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e et seq. and 2000e(k), against AT&T Corporation in the United States District Court for the Western District of Missouri.  The plaintiff, represented by private counsel, was a former AT&T employee and asked the Court for declaratory and injunctive relief, as well as damages, alleging that AT&T's health insurance policy discriminated against women.  Specifically, the plaintiff contended that the defendant's health insurance plan, which did not provide prescription contraceptives (birth control) before 2002 and only through the mail after 2002, violated female employees' civil rights.

The action originally started in the U.S. District Court for the District of Kansas, but was transferred to Missouri on May 12, 2003.  This is the date on which the docket begins.  Originally, there were two plaintiffs on the case, but one dropped out of the litigation.  Thus, a single plaintiff carried forth the case.

On September 3, 2004, the Court (Judge Sachs) denied the plaintiff's motion for class certification.  In the opinion, the Court barely discussed the requirements for a class-action lawsuit, except to point out typicality.  The plaintiff, since the suit began, had stopped taking birth control and was seeking to get pregnant.  Therefore, the Court declared that a class could not be certified without a class representative who would have an ongoing interest in the prayed-for relief.  The plaintiff wanted to recover her past expenditures on the prescribed contraceptives.  The Women's Law project came onto the case as an amicus.  After a lengthy discovery period, the Court made another ruling.

On June 7, 2006, the Court (Judge Sachs) granted the plaintiff's motion for class certification as to the damages in the complaint.  The class was comprised of female employees of AT&T, who paid for their own prescription contraception from the dates of October 31, 2001 to July 2, 2002.  The Court did not certify the claims for injunctive or declaratory relief because as of 2002, the health insurance provider covered birth control through mail order. While the cost of the plaintiff's potential recovery was relatively small, $68.07, the class action potential in the litigation, given AT&T's size made both parties fight vigorously.  According to the docket, neither side was content with this decision.  The plaintiff wanted the period of time for damages claims to be extended, and the defendant did not approve of the decision at all.  Ultimately, the plaintiffs filed an appeal.  

On June 1, 2007, the United States Court of Appeals for the Eighth Circuit issued a preliminary judgment to the District Court (Judge Sachs).  The Circuit Court advised the District Court to review the findings of another recent case, In Re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007).  This case featured a ruling that was fundamentally at odds with the decision of the District Court on June 7, 2006.

On October 22, 2007, the District Court (Judge Sachs) vacated its previous decision, and ordered a decision in favor of the defendant.  The case was closed the next day on October 23, 2007.

