HARRISBURG – Some claims and one defendant have been dismissed from litigation between a transgender male state employee and a Pennsylvania-affiliated health care provider, one which he claimed discriminated against him and denied him insurance coverage for his gender/sex-affirming surgery.
John Doe first 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, received hormone therapy and that his treatment providers believed that a bilateral mastectomy was 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, 2020, 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.
After an amended complaint was brought by the plaintiff on July 13, 2020, this was followed by a July 27, 2020 motion to dismiss from the defense.
“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 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.”
Doe filed a brief in opposition to the dismissal motion on Aug. 10 and argued that 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 stated.
“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.”
After an earlier version of the complaint was partially dismissed in March 2021, a second amended complaint was then filed.
UPDATE
U.S. District Court for the Middle District of Pennsylvania Judge Christopher C. Conner issued a memorandum on Jan. 26, which dismissed the PEBTF’s Board of Trustees and individual trustees as defendants and dismissed the PHRA, Section 1983 and Pennsylvania constitutional claims from the suit, while retaining the Title VII civil rights and ADA claims.
“At the outset, we dispose of Doe’s claims pursuant to 42 U.S.C. Section 1983 (Counts X, XI, XII), and the state constitutional claims (Counts XIII, XIV) against the PEBTF defendants. After the PEBTF defendants moved to dismiss these claims, Doe failed to respond to or acknowledge this portion of the motion. We issued a show-cause order directing Doe to respond, and Doe filed a response agreeing not to oppose the dismissal of Counts X through XIV,” Conner said.
“We are further persuaded that PEBTF is a proper Title VII defendant by case law in other circuits determining that boards with power delegated by the state are suable entities under Title VII. In sum, Doe has alleged plausible Title VII and ADA claims against PEBTF as an entity created by the Commonwealth, partially comprised of Commonwealth-appointed members, and sanctioned by the Commonwealth to establish and modify the healthcare policies for Commonwealth employees. Doe’s allegations provide a sufficient basis on which we could find PEBTF liable under these employment statutes.”
Conner explained the PHRA claims, however, would be dismissed.
“We incorporate our Title VII and ADA Darden analysis, to conclude that PEBTF may not be liable under the PHRA as Doe’s employer. And in contrast to his Title VII agency theory, Doe cannot state a claim for PHRA liability based on PEBTF’s alleged agency relationship with the Commonwealth because binding Third Circuit case law does not permit agency liability under the PHRA,” Conner stated.
“Furthermore, Doe has alleged no facts that would indicate PEBTF, its board, or any of its trustees exercised supervisory power over his employment. We therefore conclude Doe fails to state a claim for aiding-and-abetting liability against the PEBTF trustees pursuant to the PHRA. We will dismiss Doe’s PHRA claims against the PEBTF defendants (Counts III, IV, V, VI) without leave to amend.”
Doe seeks injunctive and monetary relief, a trial by jury and all other just relief.
The plaintiff is represented by Robert H. Graff, Justin F. 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, Brian Casal and Heather Z. Steele of Fisher & Phillips in Philadelphia, plus Douglas Cameron, Catherine S. Ryan, Chalyn Galligan and Meredith Shippee of Reed Smith, in Pittsburgh and Chicago, Ill.
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