W.A. Griffin, MD v. Verizon Communications Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 20, 2018
• Docket: 17-14761
• Status: Unpublished

Opinion

Case: 17-14761 Date Filed: 08/20/2018 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14761 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-00080-AT

W.A. GRIFFIN, MD,

Plaintiff-Appellant,

versus

VERIZON COMMUNICATIONS INC., ANTHEM INSURANCE COMPANIES, INC.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(August 20, 2018)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 17-14761 Date Filed: 08/20/2018 Page: 2 of 11

Dr. W. A. Griffin, proceeding pro se, appeals the dismissal of her claim of

discrimination in the administration of health care benefits. After careful

consideration, we affirm.

I.

Griffin is a dermatologist, and in 2013 she treated two employees of Verizon

Communications, Inc. The employees assigned their rights under Verizon’s

healthcare plan to Griffin. Griffin pursued ERISA claims on the patients’ behalf

and then sued Verizon in federal court for benefits under the health plan. Verizon

moved to dismiss because the health plan had an anti-assignment provision,

meaning the assignment to Griffin was invalid. The district court dismissed the

case on that ground, and a panel of this Court affirmed. See Griffin v. Verizon

Commc’ns, Inc., 641 F. App’x 869, 871, 872–74 (11th Cir. 2016) (per curiam)

(unpublished).

In 2016, Griffin brought this lawsuit against Verizon, alleging that Verizon

selectively enforces the anti-assignment provision in its health plan against female

and minority healthcare providers. Her claim of discrimination was based on

Griffin’s search of docket filings in five federal cases.1 Griffin alleged that each of

1 The cases were: (1) Cohen v. Anthem Insurance Co., No. 3:15-cv-03675-FLW-DEA (D.N.J.); (2) The Loft Chiropractic, P.C. v. Empire Healthchoice Assurance, Inc., No. 1:12-cv- 07272-PKC (S.D.N.Y.); (3) Patient Care Associates LLC v. Verizon Communications, Inc., No. 2:12-cv-03750-CCC-JAD (D.N.J.); (4) Community Chiropractic of Country Club, PLLC v. Empire Healthchoice Assurance, Inc., No. 1:12-cv-05485-PKC (S.D.N.Y.); and (5) Neurological Surgery, P.C. v. Verizon Communications, Inc., No. 2:15-cv-04074-ADS-GRB (E.D.N.Y.).

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these cases was brought by a Caucasian male healthcare provider suing Verizon for

health benefits, and that despite the presence of an anti-assignment provision in all

of Verizon’s health plans, Verizon did not enforce the anti-assignment provision

against these providers. This contrasted with how Verizon treated her, an African-

American female healthcare provider. Griffin brought her claim under Section

1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116, which

prohibits health plan providers who receive federal funds from discriminating

based on sex or race.

Verizon moved to dismiss Griffin’s complaint, noting that no court in this

circuit has determined whether Section 1557 affords a private right of action.

Verizon went on to argue that even if it did, its health plan does not receive the

requisite federal funding for Section 1557 to apply. Griffin then amended her

complaint. Verizon again moved to dismiss on the grounds that its health plan was

not subject to Section 1557. Griffin responded that Verizon’s health plan did

receive federal funds, and she moved for leave to file a second amended complaint

so she could add “additional exhibits that clarify precisely how ‘parts’ of the

Verizon plan received federal financial assistance.”

The district court allowed Griffin to file her second amended complaint.

Griffin later filed a corrected version of the second amended complaint that added

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Anthem Insurance Companies, Inc. as a defendant. Anthem is Verizon’s claim

agent for claims arising out of the health plan.

Verizon and Anthem moved to dismiss Griffin’s second amended complaint.

Verizon again argued that its health plan was not subject to Section 1557, but it

also argued that the examples relied on by Griffin showed no discrimination.

According to Verizon, because it raised “the issue of the anti-assignment provision

or asserted a lack of standing as a defense” in the cases Griffin pointed to as

evidence of its favor to Caucasian male providers, she failed to allege facts

showing discrimination. Verizon attached docket reports and the underlying

filings from those cases showing either that Verizon did assert a defense of anti-

assignment, or that it asserted the plaintiff lacked standing.2

In response, Griffin pointed to language from Verizon’s response to a

motion to remand in one of the cases, where Verizon argued the alleged

assignment was sufficient for the case to remain in federal court. She offered no

arguments concerning the other four cases. However, she did add a sixth case

purporting to demonstrate discrimination: Shuriz Hishmeh, M.D., PLLC v.

Verizon Communications, Inc., No. 2:16-cv-06347-JMA-SIL (E.D.N.Y.). Griffin

2 A defense based on standing gives credence to Verizon’s argument because an anti- assignment provision would deprive the plaintiff of the statutory standing needed to claim benefits under a health plan. See Physicians Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291, 1294 (11th Cir. 2004) (noting that “[h]ealthcare providers . . . [generally] lack independent standing to sue under ERISA,” but “may acquire derivative standing . . . by obtaining a written assignment from a ‘beneficiary’ or ‘participant’ of his right to payment of benefits under an ERISA-governed plan”). 4 Case: 17-14761 Date Filed: 08/20/2018 Page: 5 of 11

noted only that Hishmeh involved “another male [] provider,” but did not elaborate

on how Hishmeh fit the pattern of alleged discrimination.

The district court granted the motions to dismiss. It explained that although

no appellate court has yet explained the standard or burden of proof for a claim

under Section 1557, any claim under that statute would necessarily involve an

allegation of discrimination. The district court then took judicial notice of the

public records submitted by Verizon and found that Verizon did assert defenses

based on lack of standing or anti-assignment, which contradicted Griffin’s claims

of discrimination. The court therefore granted the motions to dismiss for failure to

state a claim.

Griffin appealed.

II.

“We review de novo the district court’s grant of a motion to dismiss under

[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim, accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam).

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint “does not need

detailed factual allegations” to show entitlement to relief, but must provide “more

than labels and conclusions” or “a formulaic recitation of the elements of a cause

of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–

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65 (2007). A complaint must contain “enough facts to state a claim to relief that is

plausible on its face.” Id. at 570, 127 S. Ct. at 1974. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). “Pro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

III.

Griffin argues the district court erred by finding she failed to allege

discrimination, and by failing to rule that Verizon’s plan was subject to Section

1557.

As the district court noted, neither this Court, nor any other circuit court, has

yet ruled on the standard necessary for bringing a claim under Section 1557.

Section 1557 prohibits discrimination or the denial of benefits from “any health

program or activity, any part of which is receiving Federal financial assistance,” on

the basis of race, color, national origin, sex, age, or disability. 3 18 U.S.C.

3 The statute does not expressly name these grounds of prohibited discrimination, but instead incorporates by reference the following anti-discrimination laws: (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (2) Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; (3) the Age Discrimination Act of 1975, 42 U.S.C. § 6101; and (4) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

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§ 18116(a). We agree with the district court that regardless of the ultimate

standard adopted, a claim under Section 1557 must include, at a minimum, an

element of discrimination.

Griffin alleged only one form of discrimination: that Verizon did not assert

an anti-assignment defense when sued by Caucasian, male healthcare providers. If

these allegations are unfounded, then she has not plausibly alleged discrimination.4

The district court analyzed this issue by looking to the documents Verizon attached

to its motion to dismiss.

Ordinarily, at the motion to dismiss stage, “the court limits its consideration

to the pleadings and exhibits attached thereto.” GSW, Inc. v. Long Cty., 999 F.2d

1508, 1510 (11th Cir. 1993). However, “a district court may consider an extrinsic

document even on Rule 12(b)(6) review if it is (1) central to the plaintiff’s claim,

and (2) its authenticity is not challenged.” U.S. ex rel. Osheroff v. Humana Inc.,

776 F.3d 805, 811 (11th Cir. 2015). Similarly, “a district court may consider

judicially noticed documents.” Id.; see also Fed. R. Evid. 201(d) (“The court may

take judicial notice at any stage of the proceeding.”). Judicial notice of “an

adjudicative fact” is appropriate when it “is not subject to reasonable dispute

because it . . . can be accurately and readily determined from sources whose

4 We assume for the purposes of this opinion, but do not decide, that an allegation of discriminatory enforcement of the anti-assignment provision during litigation qualifies as an allegation of discrimination under Section 1557.

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accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(a), (b)(2). Courts

typically take judicial notice of record documents from other judicial proceedings.

See, e.g., Lozman v. City of Riviera Beach, 713 F.3d 1066, 1075 n.9 (11th Cir.

2013); Cash Inn of Dade, Inc. v. Metropolitan Dade Cty., 938 F.2d 1239, 1243

(11th Cir. 1991).

The documents submitted by Verizon are from the public dockets of federal

judicial proceedings. That being the case, they are not subject to reasonable

dispute, and the district court did not err by taking judicial notice of them. We will

do the same.

The documents submitted by Verizon do not support Griffin’s claim of

discrimination in the enforcement of the anti-assignment provision. Beginning

with Cohen 5—the only cited case in which Verizon and Anthem were both

parties—Griffin points to the fact that Verizon opposed a motion to remand the

case to state court by arguing that an employee’s “alleged assignment” of benefits

meant that the case could originally have been brought in federal court. However,

Verizon’s response to remand does not concede that the assignment was valid.

The case remained in federal court, and Verizon and Anthem asserted in a joint

motion for summary judgment that the claims were barred by the anti-assignment

5 Cohen v. Anthem Ins. Co, No. 3:15-cv-03675-FLW-DEA (D.N.J.).

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provision. Similarly, in Neurological Surgery, 6 Verizon’s answer expressly

asserted the plaintiff lacked standing because the plans had anti-assignment

provisions. 7

In Patient Care,8 Verizon argued in its notice of removal that the complaint

“alleges that the Plaintiff is the assignee” of a health plan beneficiary, and that was

sufficient for the claim to be governed by ERISA. However, Verizon never

acceded to the validity of the assignment. Verizon asserted in its answer that the

plaintiff lacked standing and that the claims were barred by the terms of the health

benefits plan. This case was then voluntarily dismissed before any motions were

filed.

In Loft Chiropractic9 and Community Chiropractic,10 Verizon asserted in its

answer that the plaintiffs lacked standing. While Verizon did not specify the basis

for asserting the lack of standing, an assertion of a lack of standing is consistent

with enforcement of the anti-assignment provision. See Physicians Multispecialty, 6 Neurological Surgery, P.C. v. Verizon Commc’ns, Inc., No. 2:15-cv-04074-ADS-GRB (E.D.N.Y.). 7 While Griffin’s case was before the district court, Neurological Surgery remained pending in the trial court in New York. 8 Patient Care Assocs. LLC v. Verizon Commc’ns, Inc., No. 2:12-cv-03750-CCC-JAD (D.N.J.). 9 The Loft Chiropractic, P.C. v. Empire Healthchoice Assurance, Inc., No. 1:12-cv- 07272-PKC (S.D.N.Y.). 10 Cmty. Chiropractic of Country Club, PLLC v. Empire Healthchoice Assurance, Inc., No. 1:12-cv-05485-PKC (S.D.N.Y.).

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371 F.3d at 1293–95 (holding that anti-assignment provision deprived healthcare

provider of statutory standing for ERISA claim). We do not know whether

Verizon would have followed through and argued based on the anti-assignment

provision because both cases were voluntarily dismissed before any motions were

filed. Nevertheless, our review of these cases does not show that Verizon acted

inconsistently with enforcing the anti-assignment provision. Thus, these two cases

also fail to demonstrate a discriminatory litigation strategy.

Finally, Griffin cited only to the complaint in the newly filed Hishmeh. 11 At

the time Griffin raised Hishmeh for comparison, Verizon had not yet filed a

responsive pleading. Thus there was no credible allegation that it failed to enforce

the anti-assignment provision.

In sum, half of the cases cited by Griffin show that Verizon did in fact assert

a defense based on the anti-assignment provision, and in the others Verizon made

arguments consistent with that defense at the early stages of the case. Griffin

responds by pointing to the filings in Cohen and Patient Care that addressed

whether the case belonged in federal court. However, those filings do not negate

the fact that Verizon asserted defenses based on lack of standing and the anti-

assignment provision. Griffin offers no argument for the other cases beyond

11 Shuriz Hishmeh, M.D., PLLC v. Verizon Commc’ns, Inc., No. 2:16-cv-06347-JMA- SIL (E.D.N.Y.).

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conclusory statements that it “was a smooth, easy cruise through federal court” for

those plaintiffs. But we need not credit allegations that are “vague and

conclusory.” Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

Griffin amended her complaint twice, but alleged only one form of

discrimination. Based on the record before the district court, Griffin failed to

plausibly allege that form of discrimination, and therefore the court correctly

dismissed her claims against Verizon and Anthem. 12

AFFIRMED.

12 Because Griffin failed to plausibly allege discrimination, we need not reach her argument that the district court erred by declining to find that Verizon’s health plan was subject to Section 1557.