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October 18, 1999


The opinion of the court was delivered by: Castillo, District Judge.


Sharon Swarensky Bilow, an attorney representing herself, sues her former employer, the law firm of Much Shelist Freed Denenberg Ament & Eiger, P.C. ("the Firm"), alleging various claims under ERISA, 29 U.S.C. § 1001 et seq., and Title VII, 42 U.S.C. § 2000e et seq. She also presents several pendant state law claims for relief. At base, Bilow contends that the Firm owes her money for employee benefits it wrongfully denied to her, and that it fired her because she is a woman or in retaliation for her various complaints about the Firm. The Firm has filed a motion to dismiss arguing, essentially, that Bilow has pled herself out of court.*fn1 In many respects, we agree: Bilow's complaint fails to state a claim under ERISA, and shows that she is not entitled to relief for sex discrimination in the administration of employee benefits or retaliation for complaining about discrimination in that context. On the other hand, Bilow has adequately alleged a cause of action for sex discrimination in working conditions and retaliation for complaining about those conditions. Therefore, we grant in part and deny in part the Firm's motion to dismiss.


Because the case is before us on a motion to dismiss, we assume the truth of Bilow's allegations and base our recital of the facts on those contained in her complaint. (R. 12, Second Am.Compl.) However, we relate only those facts pertinent to Bilow's federal actions and omit any reference to the tangle of extraneous facts contained in the complaint.

In 1982, Bilow went to work at the Firm as an associate. Three years later, the Firm promoted her to income partner; Bilow was the first female to hold that position. At that time, the Firm provided health insurance for its employees and their families. In 1989, the Firm stopped paying the cost of health insurance for the dependents of employees, but gave partners who had premiums deducted from their paychecks an annual increase.*fn2 In other words, the Firm continued paying premiums directly to the insurance provider for its employees, but required employees to pay for dependent care coverage; then, if the employee was a partner, the Firm would "gross up" the partners' pay check from its general fund. This policy applied to Bilow because she purchased health insurance coverage for her husband and children.

She immediately informed Anthony Valiulis, an equity partner, of the problem. He in turn referred her complaint to Steven Schwartz, an equity partner who was on the Firm's management committee. Schwartz responded that the Firm no longer reimbursed dependant coverage when the dependent could obtain health insurance from an independent source.

Valiulis forwarded Schwartz's response to Bilow, who, according to the complaint, did nothing for six weeks. (See Second Am.Compl. at ¶ 36 ("Plaintiff waited patiently for approximately six weeks for defendant [sic] to remedy the deficiency in plaintiff's [sic] compensation or, at a minimum, to discuss the matter with plaintiff [sic].").) Then, on April 29, she sent a memorandum to the Firm's management committee:

    It has been approximately six weeks since the firm
  has acknowledged that my salary has never been
  "grossed up" for the medical insurance deducted from
  my salary. Given the criminal liability attached to
  this failure to pay, which dates back to 1986 and
  continues to the present, I do not understand the
  firm's apparent nonchalance. No one has even
  discussed the status of the matter with me.
    Please let me know when I can expect to receive an

(Second Am.Compl.Ex. H.) The management committee responded to Bilow's memo on May 18 with a memo of it own. (Second Am.Compl.Ex. I.) The Firm stated that Bilow's gross-up had been paid in full through 1992, and that she had received a $2,000 gross-up in 1993 (while the automatic gross-up was being phased out), but that she had not received any further gross-ups because "we assumed you were among those partners whose spouses had dependent coverage." The memo concluded: "Please advise for the period 1993 to date whether or not your spouse had dependent coverage at his place of employment."

On May 18, Bilow met with Michael Shelist, an equity partner and head of the management committee. She told him that her husband did not receive health insurance from his employer, and that all along she had had health insurance premiums for her dependents deducted from her paychecks. Shelist asked Bilow to reduce to writing her contention and to provide information regarding any other health insurance coverage, even if not provided by Bilow's husband's employer. Although Bilow complained that Shelist had no right to make such a demand, she complied with his request on May 27. (Second Am. Compl.Ex. J.)

Meanwhile, on the work front, Bilow's primary responsibility was a large class action lawsuit from which the Firm expected to earn a substantial contingency fee. In fact, Bilow claims that for the six years proceeding her termination, she "had been working almost full-time on the $57 million contingent fee class action."*fn3 (Second Am.Compl. at ¶ 49.) The case, Brouwer v. Rochwarger, arose out of "one of the largest, if not the largest bankruptcy [sic] ever filed in Indianapolis," (Second Am.Compl. at ¶ 97), involved "hundreds of thousands of documents," (id. at ¶ 98), and required the class to prove a complex RICO conspiracy, (id.). The Brouwer defendants hired Ernst & Young, which assigned four lawyers to try the case and hired several expert witnesses. Bilow, on the other hand, was required to try the case "essentially single-handedly," (id. at ¶ 102), in Indianapolis with local counsel, who allegedly "was incapable of providing significant assistance," (id.).

On March 10, 1998, Bilow met with Shelist and Michael Hyman, another member of the Firm's management committee. She voiced concerns about her ability to try "an extremely complex class action involving civil RICO, technical accounting issues and various issues of bankruptcy law." (Id. at ¶ 74.) She told Shelist and Hyman about the quality of her opponents and requested the help of Christopher Stuart, an income partner who earlier had done significant work on the case. (Id. at ¶¶ 75-78.) Additionally, Bilow informed them that she would not be able to spend each night of the anticipated month-long trial in Indianapolis because her husband worked nights and she did not have alternate child care arrangements. (Id. at ¶¶ 80, 84.) Shelist and Hyman, however, refused to assign anyone else to help her litigate the case, (id. at ¶¶ 79, 86); she "told them that what they were asking of her was impossible and that even were they to fire her, she could not [do it]," (id. at ¶ 86).

Bilow maintains that no male partner, income or equity, was ever required to litigate such a complex and lucrative case alone. (Second Am.Compl. at ¶¶ 104-15.) Additionally, she alleges that male partners often received "large amounts of staff on short notice," (id. at ¶ 112), and that female attorneys were regularly required to litigate cases with which they had no prior involvement, (id. at ¶¶ 109, 110).

Immediately after the March 10 meeting, the Firm conducted a survey of its partners. Bilow completed the survey on March 20. (Second Am.Compl.Ex. AA.) In response to a request to list her "three most significant concerns about the firm," Bilow first complained about her compensation and then "[t]hat there is a ruling class at the firm and a ruled class and all the women in the firm are in the ruled class." (Id. Ex. AA, Survey, question # 6.) (She did not report a third concern.) The surveys were not anonymous.

On June 1, 1998 — about two months after Bilow completed the survey, and only three days after her most recent run-in with Shelist over the gross-up — Shelist and David Brown, an equity partner on the management committee, informed Bilow that her employment would be terminated. (Second Am.Compl. at ¶¶ 48-49.) They told her that the Firm "did not have enough work to keep all of its senior litigators busy," (id. at ¶ 123), even though, Bilow alleges, the Firm had plenty of litigation work, (id. at ¶¶ 50-52).

On November 20, 1998, Bilow filed a discrimination charge with the EEOC. In her EEOC charge, Bilow claimed that "[the Firm] took away [her] health insurance salary gross up as a result of sex discrimination," (EEOC Charge ¶ 6); "[the Firm's] real reason for terminating [her] was to retaliate for [her] claim for the health insurance gross up," (id. at ¶ 12); and "[the Firm] discriminated against [her] by requiring her to try an extremely complex $57 million class ...

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