Lange v. Houston County, Georgia, CIVIL ACTION NO. 5:19-cv-392 (MTT)

• Court: United States District Courts. 11th Circuit. Middle District of Georgia
• Writing for the Court: MARC T. TREADWELL, CHIEF JUDGE
• Citation: 499 F.Supp.3d 1258
• Decision Date: 30 October 2020
• Docket Number: CIVIL ACTION NO. 5:19-cv-392 (MTT)
• Parties: Anna LANGE, Plaintiff, v. HOUSTON COUNTY, GEORGIA, et al., Defendants.

499 F.Supp.3d 1258

Anna LANGE, Plaintiff,
v.
HOUSTON COUNTY, GEORGIA, et al., Defendants.

CIVIL ACTION NO. 5:19-cv-392 (MTT)

United States District Court, M.D. Georgia, Macon Division.

Signed October 30, 2020

499 F.Supp.3d 1263

Kenneth E. Barton, III, Michael Devlin Cooper, Cooper, Barton & Cooper, LLP, Macon, GA, Alejandra Caraballo, David Brown, Jill K. Grant, Mary Eaton, Noah E. Lewis, Noah Ethan Lewis, Wesley Powell, New York, NY, Kevin Barry, Hamden, CT, Sarah Matlack Wastler, Washington, DC, for Plaintiff.

Sharon P. Morgan, Patrick L. Lail, Richard Read Gignilliat, Elarbee, Thompson LLP, Atlanta, GA, for Defendant Georgia Houston County.

Sharon P. Morgan, Elarbee, Thompson LLP, Atlanta, GA, for Defendant Sheriff Cullen Talton.

ORDER

MARC T. TREADWELL, CHIEF JUDGE

Plaintiff Anna Lange brought this action challenging a provision in an employee healthcare plan that excludes coverage for "sex change surgery." The Defendants moved to dismiss all claims, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, Defendant Sheriff Talton's motion to dismiss on sovereign immunity grounds (Doc. 61) is DENIED , and the Defendants’ motion to dismiss for failure to state a claim (Doc. 62) is GRANTED in part and DENIED in part .

I. BACKGROUND

Plaintiff Anna Lange is a Deputy Sheriff at the Houston County Sheriff's Office, where she has worked since 2006. Doc. 56 ¶ 2. In 2017, Lange was diagnosed by her healthcare provider with gender dysphoria, which, she alleges, is "defined in the American Psychiatric Association's authoritative treatise, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"), as a condition characterized by a marked incongruence between one's gender

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assigned at birth and one's internal sense or experience of gender, which results in clinically significant distress." Id. ¶¶ 61, 49. As treatment for her gender dysphoria, Lange has begun using a female name and female pronouns, started wearing typical women's clothing, started receiving hormone therapy, and started identifying as female to her family, friends, employers, and coworkers. Id. at 61-65. In April 2018, Lange received feminizing chest surgery, and she now seeks feminizing genital surgery. Id. at 66-69. She alleges she seeks feminizing genital surgery on the advice of her endocrinologist, two psychologists, and a surgeon. Id. ¶ 69.

Lange receives healthcare benefits¹ as an employment benefit of her job at the Houston County Sheriff's Office. She alleges that the Sheriff's Office and Houston County "have entered into an arrangement under which Sheriff Talton has delegated to Houston County the obligation to provide the Sheriff's Office employees with fringe benefits and other essential employer functions." Id. ¶ 72. In other words, Sheriff's Office employees are allowed to participate in the County's health plan. The County's health plan is funded by the County and employee contributions. The Plan is administered by Anthem Blue Cross and Blue Shield. One does not stray from the record to infer that Anthem has expertise and experience in the drafting and administration of health plans and that the County sought Anthem's assistance, to some degree, because of that expertise and experience.

The Plan generally covers medically necessary treatment and services. Id. ¶ 79. Lange alleges that Anthem, since at least 2006, "has generally recognized the medical necessity of sex reassignment surgeries in its medical policy on Gender Reassignment Surgery." Id. ¶ 88. However, Houston County's Plan excludes coverage for "Sex Change—Services and supplies for a sex change and/or the reversal of a sex change" and "Sex Change Drugs—Drugs for sex change surgery." Id. ¶ 81. Lange alleges that Exclusion was adopted by the County, against Anthem's advice, for the purpose of discriminating against transgender employees. Id. ¶¶ 4-5.

It is not yet known when the County first adopted the Exclusion. Lange alleges that Anthem initially informed her and her surgeon that her surgery would be covered by the Plan. Id. ¶ 92. But shortly after that, on November 26, 2018, Anthem, now citing the Exclusion, denied preauthorization for the surgery. Id. ¶ 94. Apparently, the Exclusion was in fact in effect in 2018 because Lange alleges the County "renew[ed]" the Exclusion for the 2019 plan year on December 12, 2018. Id. ¶ 98. On January 16, 2019, Lange's attorney wrote the Board in an effort "to engage in a dialogue about modifying or eliminating the exclusion." Id. ¶ 101. Lange alleges the Defendants, rather than engaging in dialogue, "reaffirmed their commitment to discriminate against Sgt. Lange because she is a transgender woman seeking transition-related health care as treatment for her gender dysphoria." Id. ¶ 102. That conclusory allegation apparently is based in part on a letter the County sent to Anthem on February 13, 2019 "reaffirming Houston County's decision to adopt the Exclusion and agreeing to be responsible for any legal consequences of that decision." Id. Lange alleges that Anthem required that indemnification for the consequences of the "unlawful" exclusion as a

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condition of retaining the Exclusion. Id. at n.10.

On February 19, 2019, Sgt. Lange appeared at a public meeting of the Board to request relief from the Exclusion. Id. ¶ 103. According to Lange, the County's attorney "directed the Board and its staff not to explain their reason for the denial and not to speak about it with anyone." Id. On April 19, 2019, the County renewed the Plan and retained the Exclusion. After Lange filed this action, she alleges the Board again decided to retain the Exclusion for the 2020 plan year. Lange alleges that the "most recent version" of Anthem's plan renewal documentation "recites that the Exclusion is unlawful but will be preserved if the [renewal] box is checked [by the County]." Id. ¶ 96.

In her initial Complaint, Lange, for some reason, did not sue her actual employer, Sheriff Talton in his official capacity. (Distinguishing between the Sheriff in his individual capacity and the Sheriff in his official capacity is particularly important here. Accordingly, this Order, when addressing the Sheriff in his official capacity, refers to the Sheriff's Office.) Rather, she sued the County; the County Board of Commissioners; the individual members of the Board of Commissioners; Barry Holland, Houston County's Director of Administration; and Kenneth Carter, the County's Director of Personnel. Doc. 56 ¶¶ 1-2.² The Defendants moved to dismiss, arguing the County is not Lange's employer. Taking the hint, Lange amended her complaint to add claims against the Sheriff's Office and the Sheriff in his individual capacity. Docs. 29; 56. In her amended complaint, she generally alleges the adoption and maintenance of the Exclusion violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; Title I and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ; the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ; the Equal Protection Clause of the U.S. Constitution; and the Equal Protection guarantee of the Georgia Constitution.

II. MOTION TO DISMISS STANDARD

A. Standard under Rule 12(b)(1)

"[T]he Eleventh Amendment's ultimate guarantee is that nonconsenting states may not be sued by private individuals in federal court. Because the Eleventh Amendment represents a constitutional limitation on the federal judicial power established in Article III, federal courts lack jurisdiction to entertain claims that are barred by the Eleventh Amendment." McClendon v. Georgia Dep't of Cmty. Health , 261 F.3d 1252, 1256 (11th Cir. 2001) (quotation marks and citations omitted). In unpublished guidance, the Eleventh Circuit has stated that "a dismissal on sovereign immunity grounds should be pursuant to Rule 12(b)(1) because no subject-matter jurisdiction exists." Thomas v. U.S. Postal Serv. , 364 F. App'x 600, 601 n.3 (11th Cir. 2010). When "the existence of subject matter jurisdiction is inextricably intertwined with material facts affecting the merits of the claim, a district court must be guided by the standard for summary judgment motions[.]" Bennett v. United States , 102 F.3d 486, 488 n.1 (11th Cir. 1996). Here, the jurisdictional issue is not inextricably intertwined with facts affecting the merits of the claim, so the Court analyses the motion under Rule 12(b)(1). The Court addresses the sovereign-immunity defenses first.

499 F.Supp.3d 1266

"A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack." Stalley v. Orlando Reg'l Heathcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008) (citation omitted). "A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1232-33 (quotation marks and citation omitted). A factual attack, however, "challenges the...