HARRISBURG – A transgender male state employee responds that federal laws preclude a Pennsylvania-affiliated health care provider from discriminating against him and denying insurance coverage for his gender/sex-affirming surgery.
John Doe filed a complaint Dec. 23, 2019, in the U.S. District Court for the Middle District of Pennsylvania against the Commonwealth of Pennsylvania, the Department of Human Services, Pennsylvania Employees Benefit Trust Fund and others alleging violation of the Civil Rights Act of 1964, the Americans with Disabilities Act and other claims.
The suit stated that Doe, who was diagnosed with gender dysphoria, is currently receiving hormone therapy and that his treatment providers believe that a bilateral mastectomy is a medically necessary treatment for his gender dysphoria.
According to Doe’s complaint, the Highmark Health Insurance Company defendants are “the third-party administrators of the Commonwealth of Pennsylvania’s employer-sponsored health plan that offers health insurance plans to Commonwealth of Pennsylvania employees including Doe.”
As the third-party administrator, Doe claimed that the Highmark defendants, “exercised significant control over an important aspect of the employment relationship” and “acted as the agent of the Commonwealth defendants such that an agency relationship between the two entities existed.”
Specifically, Doe alleged that the Highmark defendants are subject to liability for employment and disability discrimination, as a result of denying insurance coverage for Doe’s gender reassignment surgery, according to the terms of the Commonwealth’s health insurance plan.
On June 29, counsel for defendant Highmark filed an answer to Doe’s complaint, seeking for it to be dismissed for failure to state a claim and other reasons, with prejudice.
“In Counts I, II, III and V, Doe fails to state a plausible employment discrimination claim against the Highmark defendants in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Pennsylvania Human Relations Act,” defense counsel member Mariah P. McGrogan said.
“Specifically, Doe’s employment discrimination claims fail because the Highmark defendants were not Doe’s employer and, therefore, he cannot state claims against them under Title VII, the ADA or the PHRA.”
McGrogan additionally argued that Doe’s Title VII, ADA and PHRA claims should be dismissed for the separate reason that he had failed to exhaust his administrative remedies as to the Highmark defendants, as is required by those statutes.
“Finally, Counts VIII and IX of Doe’s complaint should be dismissed against the Highmark defendants because they are time-barred. Specifically, Doe’s Section 1557 of the Affordable Care Act claims are barred by a two-year statute of limitations, which expired in February 2019 – 10 months prior to the filing of this complaint,” McGrogan stated.
UPDATE
Doe filed a brief in opposition to the dismissal motion on Aug. 10.
“Defendants are incorrect that Highmark cannot be held liable here for its own involvement – its own discriminatory acts – simply because defendants argue Highmark did not control the work performance or conduct, and did not require participation in its health plan,” per the plaintiff’s brief.
“These are very particular arguments for exclusion which are not consistent with (1) The broad language of Title VII; (2) The U.S. Supreme Court’s pronouncement on the issue, for example, in Los Angeles Water & Power v. Manhart; (3) Several district and Circuit court decisions, including reported and precedential cases within this jurisdiction, on the issue; (4) Including Tovar v. Essentia Health, which is a recent reported Circuit court decision which is persuasive regarding the question at hand.”
According to the plaintiff, the Affordable Care Act precluded the defendant from taking part in any discriminatory conduct.
“At the time of the alleged discrimination in this case, Highmark was legally obligated not to discriminate based on gender identity as plainly set forth under Section 1557 of the Affordable Care Act, or the ACA non-discrimination rule. But for Highmark’s involvement here the Plaintiff would not have suffered as alleged in the complaint by being denied coverage by the Highmark Defendants on account of discrimination,” the brief states.
“This brings Highmark into the sphere here such that it cannot be said Highmark was wholly uninvolved for purposes of liability for its own discrimination. Highmark can be held liable for its own involvement – its own discrimination – under Title VII, the Pennsylvania Human Relations Act, and the Americans with Disabilities Act. Highmark can also be held liable, alternatively, under an agency theory.”
Doe seeks injunctive and monetary relief, a trial by jury and all other just relief.
The plaintiff is represented by Justin Robinette and Graham F. Baird of The Law Offices of Eric Shore, in Philadelphia.
The defendants are represented by Caleb Curtis Enerson of the Pennsylvania Attorney General’s Office in Harrisburg, plus Douglas Cameron, Catherine S. Ryan and Mariah H. McGrogan of Reed Smith, in Pittsburgh.
U.S. District Court for the Middle District of Pennsylvania case 1:19-cv-02193
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com