PHILADELPHIA – After the City of Philadelphia was granted a temporary dismissal of litigation from a transgender Philadelphia firefighter, who said she was blocked from gaining insurance benefits to pay for her gender-affirmation surgeries and subsequently became suicidal, the plaintiff filed an amended complaint.
Jane Doe first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 31 versus the City of Philadelphia, Independence Blue Cross and entities comprising the Philadelphia Firefighters’ & Paramedics’ Union, I.A.F.F., Local 22. All parties are of Philadelphia.
(An amended version of the complaint filed on March 12 would officially list the union as a defendant, and dismiss entities referring to it which were named in the original version.)
The plaintiff is a Battalion Chief who has worked for the City of Philadelphia for nearly three decades, and alleges that she has been intentionally discriminated against on the basis of her transgender identity.
The complaint claimed that the defendants operate a categorical plan exclusion for gender-affirming care and treatment. This includes facial feminization surgery (FFS), for transgender women suffering from gender dysphoria.
Despite previous lawsuits and a federal district court decision stating that such procedures should be considered medically necessary and covered services, Independence Blue Cross refused to provide coverage for Doe’s FFS. The plaintiff alleged that this refusal was based on societal norms, rather than her self-identified gender.
Doe further claimed that she was forced to face unnecessary obstacles to secure coverage for her medically-necessary gender-affirming care and treatment. As a result of not being able to undergo FFS, Doe said she experienced difficulty functioning at work and in public due to being constantly misgendered. She also contemplated suicide, according to the suit.
The City motioned to dismiss the case on April 9, alleging that Doe’s claims were not properly pled, among other arguments.
“Plaintiff’s amended complaint is intentionally vague. Rather than properly alleging the conduct that occurred, plaintiff uses the collective term ‘defendants’ throughout her amended complaint in order to prevent a clear understanding of which defendant participated in the conduct described in the amended complaint. The amended complaint asserts claims against three separate defendants: the City, the Union and IBC. Each of these defendants is a separate entity with different roles and obligations to plaintiff. Notwithstanding this fact, plaintiff improperly lumps them together as ‘defendants’ and pleads virtually all of their material allegations and claims against them collectively, in ‘group’ fashion, without differentiating among them in any way, or properly pleading the acts or omissions each party is claimed to have committed,” per the dismissal motion, in part.
“In an effort to muddy waters, the plaintiff intentionally fails to distinguish which defendant performed what conduct in order to bring employment discrimination claims against an insurance company and in order to bring ACA claims against an employer. The actual conduct alleged against the City specifically is fairly minimal. In the ‘Material Facts’ section of the amended complaint, after stating that plaintiff is employed by the City and came out as a transgender woman while working for the City, the only other factual averment about the City is that it provides healthcare benefits to plaintiff. Almost every other allegation in the material facts section of the amended complaint refers to the ‘defendants’ – a collective group. Importantly, plaintiff does not allege that these ‘defendants’ were acting jointly or in tandem. Indeed, in certain instances, based on an appreciation that no one at the City or the Union would hold the title, ‘claims representative’, it is clear the use of ‘defendants’ actually refers only to IBC. In one paragraph, plaintiff switches back and forth in a single paragraph regarding whether she is referencing a particular defendant or the entire group of defendants. Plaintiff fails to meet the requirement to describe the ‘personal involvement of any defendant’ in such instance even where it is clear from the allegations in the amended complaint that information to differentiate between defendants is available.”
UPDATE
On May 15, U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone granted the City’s dismissal motion without prejudice, in a memorandum opinion.
“Doe alleges in her amended complaint that she exhausted ‘all applicable administrative remedies,’ but the only exhibit attached thereto is a right to sue letter from the Equal Employment Opportunity Commission. The City argues that this filing does not suffice to exhaust her claims under the Philadelphia Fair Practices Ordinance…this is not the case, so the Court will not dismiss the amended complaint’s allegations of violations of the PFPO on this ground. In that the City does not dispute that Doe’s PFPO claims fall within the scope of her EEOC complaint, the rule from Higgins v. MetLife, Inc. forecloses the City’s argument that her failure to ‘assert any acts that indicate that she invoked the procedures of the Philadelphia Commission’ requires that her claims arising under the PFPO be dismissed. She filed a complaint with the EEOC and received a right to sue letter. That was sufficient to exhaust her PFPO claims even though she did not cross-file with the Pennsylvania Human Relations Commission or the Philadelphia Commission. The City’s motion will be denied on this ground,” Beetlestone said.
“The entirety of Doe’s amended complaint, however, fails to identify which of the three defendants committed which alleged wrongful acts with sufficient specificity to survive dismissal. Here, Doe levies most of her allegations against defendants as a whole, without identifying the conduct for which the City specifically is responsible. The only non-conclusory allegations against the City are that: (1) it employed Doe; (2) as her employer, the City was ‘responsible for the provision of benefits to [her] including employer-sponsored healthcare benefits;’ (3) the City funded that plan; and, (4) ‘it is believed and therefore averred that’ the City, along with the other defendants ‘exercised extensive control over benefits,’ including health insurance. The key allegations relating to defendants’ liability – that they denied Doe health insurance coverage for treatments necessary to treat her gender dysphoria and misapplied her policy’s cosmetic surgery exclusion in doing so – do not distinguish between the conduct of the City, Independence Blue Cross and Local 22. The amended complaint therefore does not plead facts sufficient to show that Doe is plausibly entitled to relief from the City.”
Beetlestone continued that the amended complaint “does not describe joint action by all three defendants.”
“In sum, because the amended complaint does not sufficiently differentiate between the defendants in this case, the Court will grant the City’s motion to dismiss. The Court will grant leave to amend so that Doe can identify which of the defendants are responsible for which parts of the alleged misconduct in this case,” Beetlestone said.
An amended complaint was then filed on May 18.
For counts of violating Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Philadelphia Fair Practices Ordinance, the Affordable Care Act, the Employee Retirement Income Security Act, the plaintiff is seeking compensatory and punitive damages against the defendants as well as coverage for future medical expenses related to FFS, hair transplant, and other related procedures.
The plaintiff is represented by Justin F. Robinette in Philadelphia.
Defendant City of Philadelphia is represented by Marjorie M. Obod of Dilworth Paxson and Nicole S. Morris of the City of Philadelphia Solicitor’s Office, defendant Independence Blue Cross is represented by Joe H. Tucker Jr. and Nancy Fisher of Tucker Law Group and defendant Philadelphia Firefighters’ & Paramedics’ Union, I.A.F.F., Local 22 is represented by John R. Bielski and Joseph Salamon of Willig, Williams & Davidson, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00468
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com