MEMORANDUM OPINION AND ORDER
SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE.
Plaintiff Charlize Marie Baker ("Baker") — who alleges that she "has a welldocumented history of suffering from Gender Dysphoria," Compl. at 4, "formerly referred to as Gender Identity Disorder," id. at 4 n.2 — brings this action against defendants Aetna Life Insurance Company ("Aetna") and L-3 Communications Integrated Systems, LP ("L-3"),
In 2011 Baker began the process of gender transition from male to female. She legally changed her name,
Baker filed this lawsuit against Aetna and L-3, seeking to recover on three claims. In count one, she alleges that Aetna and L-3 discriminated against her based on her gender identity, in violation of § 1557 of the ACA, 42 U.S.C. § 18116. In count two, she asserts that Aetna wrongfully denied benefits to her under the STD Plan, in violation of ERISA. She also pleads in the alternative a claim for a good faith extension of existing law, alleging that the court should hold that Aetna's denial of benefits under the STD Plan was an act of discrimination based on gender identity, in violation of ERISA. And in count three, Baker avers that Aetna and L-3 discriminated against her based on her sex/gender, in violation of Title VII.
Aetna and L-3 move under Rule 12(b)(6) to dismiss Baker's discrimination claims alleged in counts one and three, and Aetna moves to dismiss count two to the extent that count asserts a discrimination claim. Baker opposes both motions.
Under Rule 12(b)(6), the court evaluates the pleadings by "accept[ing] `all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive defendants' motion, Baker's pleadings must allege enough facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
Aetna and L-3 both move to dismiss count one, in which Baker alleges that they discriminated against her on the basis of her gender identity, in violation of § 1557 of the ACA.
Baker alleges that Aetna, as agent of L-3, denied her healthcare benefits solely on the basis of her gender identity. She asserts that Aetna and L-3 violated § 1557 of the ACA, which is made applicable to federal contractors and subcontractors by Executive Order 13672. Section 1557 provides:
42 U.S.C. § 18116(a).
Aetna and L-3 move to dismiss this claim on several grounds, but the court may assume arguendo that none has merit except one: that § 1557 does not confer a claim for gender identity discrimination.
Baker is unable to point to any controlling precedent that recognizes a cause of action under § 1557 for discrimination based on gender identity. Baker relies on a Notice of Proposed Rulemaking that would prohibit denial of health services on the basis of gender identity or gender assigned at birth. See P. 2/26/16 Resp. to Aetna Partial Mot. to Dis. 11 (citing Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,204 (Sept. 8, 2015) (to be codified at 45 C.F.R. pt. 92)). But the effective date of part 92 is either July 18, 2016 or January 1, 2017, depending on what the part requires. See 45
Baker alleges in her complaint that Executive Order 13672 prohibits federal contractors and subcontractors from discriminating on the basis of gender identity, and she asserts that Aetna and L-3 are federal contractors. In her responses to defendants' motions, however, she attempts to refute defendants' contention that she is relying too heavily on the Executive Order by contending that "Section 1557's prohibition on gender identity discrimination is not reliant on EO 13672." P. 2/26/16 Resp. to Aetna Partial Mot. to Dis. 13. She maintains that when the ACA was enacted in 2010, gender stereotyping had long been held to be unlawful under Title VII (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). And she posits that "[t]he `effect' of E.O. 13672 seems to be little more than to clarify the issue left somewhat ambiguous in Section 1557 that discrimination against transgender persons under this law is prohibited." P. 2/26/16 Resp. to Aetna Partial Mot. to Dis. 14.
There are two fallacies with this position. First, the Fifth Circuit has not extended Hopkins' Title VII reasoning to apply to any statute referenced in § 1557. See Texas v. United States, 201 F.Supp.3d 810, 831-33, 2016 WL 4426495, at *13-15 (N.D. Tex.2016) (O'Connor, J.) (rejecting proposition that "Title IX and Title VII should be construed broadly to protect any person, including transgendered persons, from discrimination" (internal quotations omitted)), appeal docketed, No. 16-11534 (5th Cir. Oct. 21, 2016). Second, Baker is relying on an Executive Order to clarify what she characterizes as a "somewhat ambiguous" legislative act.
Baker's complaint does not allege a recognized cause of action for discrimination under § 1557 of the ACA, and she has therefore failed to state a claim on which relief can be granted. Accordingly, count one of Baker's complaint is dismissed with prejudice as to Aetna and L-3.
Aetna moves to dismiss count two to the extent Baker alleges a claim for discrimination.
In count two, Baker alleges an alternative claim to her ERISA claim, seeking "a good faith extension of existing law and ask[ing] the Court to find that this denial was also an act of discrimination based on her Gender Identity." Compl. 19. She asserts that she is protected from discrimination based on gender identity in the administration of healthcare benefits under § 1557 of the ACA, but does not enjoy similar protections under ERISA. Baker alleges that because "it is virtually impossible for an ERISA plan offered by an employer or administered by a health insurance company that is a governmental contractor to exist that is not also subject to ACA Section 1557," Compl. 19, she pleads "for a good faith extension of existing law that the discrimination by Defendants based on her Gender Identity is also discrimination in violation of ERISA in this context and that ERISA must be read to include the prohibition of discrimination based on Gender Identity," id.
The court dismisses Baker's alternative claim for two reasons. First, as Baker acknowledges, this claim is not currently recognized. It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide. Second, Baker appears to predicate this claim on protections that she maintains are found in § 1557 of the ACA. The court has concluded above that § 1557 does not provide a cause of action for discrimination based on gender identity. Therefore, Baker cannot rely on § 1557 to support conferring such a right of action under ERISA.
Aetna and L-3 move to dismiss count three, in which Baker alleges that Aetna and L-3 discriminated against her on the basis of her sex/gender, in violation of Title VII.
Aetna maintains, inter alia, that it was not Baker's employer and cannot be held liable under Title VII.
In several places in her complaint, Baker alleges that Aetna was L-3's "agent." E.g., Compl. 2. She asserts that "Aetna is... liable to [her] as her `employer' (an agent of the employer) with respect to this cause of action pursuant to EEOC Compliance Manual, Section 2, Section III.B.2[.]" Id. In her response to Aetna's motion to dismiss, Baker contends that Aetna's position is misplaced in light of cases that hold that an agent of the plaintiff's employer can be held liable under Title VII.
In the Fifth Circuit, to recover under Title VII, a plaintiff must have an employment relationship with the defendant. See Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1159 (5th Cir. 1986) (holding that employer-employee relationship is required in Title VII case). Employer status under Title VII can be established under the "single employer" test, see Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983), or the "hybrid economic realities/common law control" test, see Deal v. State Farm County Mutual Insurance Co. of Texas, 5 F.3d 117, 118-19 (5th Cir. 1993). Baker's complaint does not attempt to allege that Aetna was her employer under either test. She relies instead on the premise that Aetna was L-3's "agent." Baker cites in her complaint and in her response brief the Equal Employment Opportunity Commission ("EEOC") Compliance Manual. But the EEOC Compliance Manual does not have the force of law. See AT & T Co. v. EEOC, 270 F.3d 973, 975-76 (D.C. Cir. 2001) ("The Commission has not inflicted any injury ... merely by expressing its view of the law — a view that has force only to the extent the agency can persuade a court to the same conclusion.... [T]he EEOC Compliance Manual does not affect the regulated community."). And this circuit recognizes an agency theory of employer liability only if the alleged agent had authority "with respect to employment practices." Deal, 5 F.3d at 119. In this case, the agency authority that Baker alleges Aetna had — to approve or deny benefit claims — does not satisfy either the single employer test or the hybrid economic realities/common law control test.
Baker has not stated a claim upon which relief can be granted against Aetna, because she has not plausibly pleaded that Aetna was her employer. Accordingly, the court dismisses count three with prejudice as to Aetna.
L-3 contends that Baker's Title VII claim should be dismissed because she does not allege that she suffered an adverse employment action based on her gender.
Accordingly, the court denies L-3's motion to dismiss count three.
* * *
For the reasons stated, the court grants Aetna's partial motion to dismiss, and it grants in part and denies in part L-3's motion to dismiss. Baker's ERISA claim (other than her alternative discrimination claim) remains against Aetna, and her Title VII claim remains against L-3.