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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, KATHRYN LANE, 

and AHMIR MURPHY 

Plaintiffs, 

v. CASE NO. 4:20-cv-0020-MW-CAS 

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES and 

PEDRO ALLENDE, in his official 

Capacity as Secretary of the Florida 

Department of Management Services. 

Defendants. 

________________________________ /

DEFENDANTS’ SUPPLEMENTAL BRIEF ON DAMAGES

Defendants, FLORIDA DEPARTMENT OF MANAGEMENT SERVICES,

and PEDRO ALLENDE in his official capacity as Secretary of the Florida 

Department of Management Services (collectively, “Defendants”), by and through 

undersigned counsel, hereby respond to the Court’s Order for supplemental briefing 

(Doc. 179, 181) regarding available relief and the effect of the Eleventh Circuit’s 

decision to vacate the Lange decision pending en banc review.

I. This Court should reconsider its ruling on summary judgment and stay 

further action pending rehearing in Lange. 

On August 1, 2024, this Court granted Plaintiffs’ motion for partial summary 

judgment in part, finding liability against DMS under Title VII. (Doc. 177 p. 16.) The 

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Court’s rationale, and basis for denying DMS’ motion for summary judgment (Doc. 

126), hinged upon the Eleventh Circuit’s holding in Lange v. Houston Cnty., 101 

F.4th 793 (11th Cir. 2024). The Court expressly referenced Lange 17 times in its

Order and found that the exclusion was facially discriminatory as a matter of law “in 

light of Lange” (Doc. 177 p. 16), which the Court was bound to follow at the time it 

filed the August 8, 2024, Order. (Doc. 177 p. 14.)

On August 15, 2024, the Eleventh Circuit granted a petition to rehear Lange

en banc, and simultaneously vacated the panel opinion relied on by this Court in 

granting Plaintiffs’ motion for summary judgment. Lange v. Houston Cnty., Georgia, 

110 F.4th 1254 (11th Cir. 2024). A vacated opinion has “no legal effect whatsoever” 

and “cannot be considered to express the views of [the court].” United States v. Sigma 

Intern., Inc., 300 F.3d 1278, 1280 (11th Cir. 2002). Plaintiffs agree. (Doc. 182 p. 27.) 

This Court did more than “give the vacated opinion persuasive value.” (Doc. 

182 p. 27.) Due to the controlling nature of Lange at the time, the Court’s ruling was 

completely based on Lange. But Lange is no longer controlling. As such, this Court 

should reconsider its ruling on summary judgment without reliance on Lange. 

While the Court could adopt the underlying rationale of Lange, which 

primarily relied on the panel’s interpretation of Bostock v. Clayton Cnty., Ga., 590 

U.S. 644 (2020), this rationale has seemingly been rejected by a majority of the 

judges in active service on the Eleventh Circuit, which is the likely reason the Lange 

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opinion was vacated. We also know that the Eleventh Circuit denied the petition for 

rehearing en banc in Eknes-Tucker, the related equal protection case which found that 

medical conditions uniquely impacting transgender persons are not facially 

discriminatory based on sex. See Eknes-Tucker v. Governor of Alabama, 114 F.4th 

1241 (11th Cir. 2024) denying petition for rehearing of Eknes-Tucker v. Governor of 

Alabama, 80 F.4th 1205 (11th Cir. 2023). In light of the continued validity of the 

Eleventh Circuit’s rationale in Eknes-Tucker and its potential relevance to the 

outcome in Lange, it seems inevitable that the Eleventh Circuit will ultimately reach 

a different conclusion in Lange than was previously reached in the now-vacated panel 

opinion, and if that an en banc Lange opinion aligns with the Eleventh Circuit’s 

holding in Eknes-Tucker, it will be controlling and thus binding on the outcome of 

this case.

Lange is directly applicable to this action, as both cases involve Title VII 

challenges to employer health plan exclusions for gender reassignment services.

(Doc. 177 p. 13.) The eventual en banc holding in Lange will be controlling. Until 

the Eleventh Circuit reaches its final conclusion, it would be a waste of judicial 

resources, time and money to proceed with a jury trial on damages, as it is clear the 

applicable standards may change, warning judgment in favor of Defendants and 

against Plaintiffs, or at least a new trial on liability (to consider the issue of intent to 

discriminate because of biological sex). Therefore, Defendants respectfully request 

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this Court to stay the case until the Eleventh Court reaches an en banc opinion in 

Lange, and then reconsider its ruling on summary judgment in light of the new Lange

opinion.

II. Permanent injunctive relief is improper because there would be no 

personal benefit to Plaintiffs.

When a court finds intentional discrimination that violates Title VII, it “may

enjoin the respondent from engaging in such unlawful employment practice....” 42 

U.S.C. § 2000e-5(g)(1) (emphasis added). Thus, the court has the discretion to enjoin 

the unlawful conduct and order appropriate affirmative relief when such an injunction 

is necessary to make the victims of discrimination whole. Albemarle Paper Co. v. 

Moody, 422 U.S. 405 (1975); U.S. EEOC v. Massey Yardley Chrysler Plymouth, Inc., 

117 F. 3d 1244, 1251 (11th Cir. 1999).

The scope of a permanent injunction under Title VII may not be overly broad 

and more importantly, should not be granted where there will be no personal benefit 

to the plaintiff. E.g., Carmichael v. Birmingham Saw Works, 738 F. 2d 1126, 1136 

(11th Cir. 1984) (affirming the district court’s denial of injunctive relief to a 

successful Title VII plaintiff); Meyer v. Brown & Root Const. Co., 661 F.2d 369, 374 

(5th Cir. 1981) (portion of judgment granting injunctive relief reversed because 

injunctive relief not needed for just disposition of the case); see also, Gregory v. 

Litton Systems, Inc., 472 F. 2d 631, 634 (9th Cir. 1972); Muller v. United States Steel 

Corp., 509 F. 2d 923, 93 (10th Cir.), cert. denied, 423 U.S. 825 (1975). 

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Although injunctive relief granted in a non-class, individual action may 

incidentally benefit persons not before court, the line of cases cited by Plaintiffs for 

this proposition does not deal with the situation here when the injunctive relief being 

sought does not personally benefit the individual plaintiffs. Carmichael, 738 F. 2d at 

1136. Rather, a court’s authority to grant injunctive relief benefitting non-parties 

other than the plaintiff is limited by the requirement that “the class benefitted by the 

injunction must include the plaintiff. Otherwise, the injunctive relief is unnecessary 

to the ‘just disposition of the action.”’ Id. (quoting Meyer, 661 F. 2d at 374); see also, 

Rau v. Apple-Rio Management Co., Inc., 85 F. Supp. 2d 1344, 1352 (N.D. Ga. 1999) 

(citing Carmichael and finding that the injunctive relief requested by plaintiff “must 

be denied.”).

In this regard, the Eleventh Circuit has repeatedly held that in a Title VII case,

a permanent injunction is inappropriate when the plaintiff cannot benefit personally 

from the injunctive relief. In Carmichael, a black, former employee successfully 

proved that the employer engaged in discriminatory wage disparity in violation of 

Title VII by starting the employee in the repair shop at a lower wage than was paid 

to white employees. Id. at 1129. However, the trial court denied the plaintiff’s request 

for injunctive relief since the plaintiff was no longer employed by defendant and had 

not sought reinstatement. Id. The Eleventh Circuit affirmed the trial court’s denial of 

injunctive relief and held that it “would be inappropriate in this case. The plaintiff 

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does not seek reinstatement and has shown no other way in which he would benefit 

personally from the [injunctive] relief requested.” Id. at 1136. (Emphasis added).

More recently, in the unpublished opinion of Furcron v. Mail Centers Plus, 

LLC, 774 Fed. Appx. 592 (11th Cir. 2019), the Court stated that the Carmichael 

holding was binding and then vacated the district court’s equitable relief order under 

Title VII as an abuse of discretion. The Furcron Court pointed out that the plaintiff 

was relying on “non-controlling cases to argue that, in some circumstances, a court 

may fashion relief that will not personally benefit the plaintiff” and held that “because 

she [the plaintiff] is no longer [the defendant’s] employee, she would not personally 

benefit from any additional managerial training; therefore, such relief was 

inappropriate.” Id. at 596.

In addition, in Dybczak v. Tuskegee Institute, 737 F. 2d 1524, 1527 (11th Cir. 

1984), cert. denied, 469 U.S. 1211 (1985), the Eleventh Circuit cited and expressly 

quoted the opinions in Gregory v. Litton Systems, Inc., supra, and Meyer v. Brown & 

Root Const. Co., supra, to affirm the district court’s denial of injunctive relief, 

holding that:

From these precedents, we conclude that in a suit brought in the 

plaintiff’s individual capacity, injunctive relief benefiting nonparties is 

not required if it in no way relates to the vindication of the plaintiff’s 

rights. Accordingly, we hold that the district court did not err in refusing 

to enjoin the Institute’s alleged adherence to a policy favoring blacks in 

faculty hiring. 

See also, Wallace v. Dunn Const. Co., Inc., 62 F.3d. 374, 380 (11th Cir. 1995) 

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(holding that if plaintiff prevailed on her Title VII claims, injunctive relief would not 

be appropriate because she was no longer employed with the defendant company).

As this Court found in its Order on Cross-Motions for Summary Judgment, it 

is undisputed that Plaintiffs Claire and Murphy are no longer employed by the State 

of Florida. (Doc. 177 at p. 2.) Accordingly, they are no longer participants in the State 

Health Plan (“Plan”). Therefore, similar to their respective claim for prospective 

relief under equal protection, any injunctive relief under Title VII would be 

inappropriate since they would not benefit personally from the permanent injunctive 

relief being requested.

Moreover, in its Order on Cross-Motions for Summary Judgment, the Court 

found, without dispute, that the basis of the denials of coverage for Plaintiff Lane’s 

requested facial feminization surgery included the Plan’s cosmetic procedure 

exclusion, an exclusion not being challenged by Lane’s amended complaint in this 

action. (Doc. 177 p. 2-3.) Thus, as the Court stated, based on the cosmetic procedure 

exclusion, it “could not order injunctive relief that would redress Ms. Lane’s injury 

[pursuant to her Equal Protection claim] as her desired medical procedure would 

continue to be excluded from coverage under the unchallenged cosmetic procedures 

exclusion.” (Doc. 177 p. 2-3.) Similarly, a permanent injunction on Lane’s Title VII 

claim would be inappropriate since the unchallenged cosmetic procedures exclusion 

regarding the benefits sought would still be applicable to her requested relief, and 

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thus, Lane would not benefit personally from the permanent injunctive relief being 

requested by Plaintiffs. Furthermore, the purported ongoing nature of the alleged 

violations does not make injunctive relief mandatory, when none of the Plaintiffs will 

benefit from the requested injunctive relief.

II. Eleventh Amendment immunity precludes Plaintiffs from recovering 

money damages in this case. 

Congress may abrogate the states' Eleventh Amendment immunity when it 

both unequivocally intends to do so and “act[s] pursuant to a valid grant of 

constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). It 

has long been held that Title VII derives its authority to apply to the states from 

Section 1 and Section 5 of the Fourteenth Amendment. See Fitpatrick v., Bitzer, 427 

U.S. 445 (1976). The Supreme Court is responsible for establishing the substance of 

constitutional guarantees, not Congress. City of Bourne v. Flores, 521 U.S 507, 519–

524 (1997). Accordingly, the Supreme Court found when Congress passed legislation 

authorized by Section 5, the legislation must exhibit “congruence and proportionality 

between the injury to be prevented or remedied and the means adopted to that end” 

to not reach beyond the scope of Section 1's actual guarantees. Id. at 520. “The 

appropriateness of remedial measures must be considered in light of the evil 

presented. Strong measures appropriate to address one harm may be an unwarranted 

response to another, lesser one.” Id., at 530 (citing South Carolina v. Katzenbach, 

383 U.S. 301, 308, (1966)).

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The Supreme Court acknowledged that “Congress is the final authority as to 

desirable public policy, but in order to authorize private individuals to recover money 

damages against the States, there must be a pattern of discrimination by the States 

which violates the Fourteenth Amendment, and the remedy imposed by Congress 

must be congruent and proportional to the targeted violation.” Board of Trustees of 

University of Alabama v. Garrett, 531 U.S. 356, 371-376 (2001) (recognizing that 

Congress identified that “American society has tended to isolate and segregate 

individuals with disabilities” but nonetheless found money damages under Title I of 

the ADA to be an incongruent remedy because the great majority of evidence used to 

support Congress’ findings were not activities of states.) 

Fundamentally, legislation enacted under Section 5 of the Fourteenth 

Amendment must be targeted at “conduct transgressing the Fourteenth Amendment's 

substantive provisions.” Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. 

Sav. Bank, 527 U.S. 627, 639 (1999) “Whether a congressional Act passed under 

Section 5 can impose monetary liability upon States requires an assessment of both 

the evil or wrong that Congress intended to remedy, and the means Congress adopted 

to address that evil.” Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 36 

(2012). (quoting City of Boerne v. Flores, 521 U.S. 507 (1997)). (Internal quotations 

omitted.)

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In an employment discrimination context, the congruence and proportionality 

analysis requires a court to 1) determine the metes and bounds of the constitutional 

right at issue; and 2) examine whether Congress identified a history and pattern of 

unconstitutional employment discrimination against the particular group in question. 

See Garrett, 531 U.S. at 368; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89 (2000) 

(finding that Congress never identified any pattern of age discrimination by the states 

that rose to the level of constitutional violation to sufficiently abrogate sovereign 

immunity under Section 5 of the ADA); Panzardi-Santiago v. Univ of Puerto Rico, 

200 F. Supp 2d 1, 9-10 (D.P.R. 2002) (summarizing cases on the issue of abrogation 

of Eleventh Amendment immunity through Section 5 of the Fourteenth Amendment). 

See also, Dupree v. Owens, 92 F.4th 999 (11th Cir. 2024).

1 Garrett demonstrates that 

an acknowledgment of such history by Congress in enacting prophylactic legislation 

without substantive evidence of discriminatory state activity is insufficient to impose 

monetary liability on the states. 

1 The Eleventh Circuit conducts a similar three step inquiry in the ADA context: (1) 

identify which right Congress “sought to enforce when it enacted the ADA”; (2) 

examine whether a demonstrated record of unconstitutional discrimination existed to 

support Congress’ decision that preventative legislation was warranted; and (3) 

determine whether the ADA provision at issue is an appropriate response to the 

history of mistreatment. Nat'l Ass'n of the Deaf v. Florida, 980 F.3d 763, 771 (11th 

Cir. 2020) (quoting Ass'n for Disabled Ams., Inc. v. Fla. Int'l Univ., 405 F.3d 954, 

957 (11th Cir. 2005)). In Dupree, the underlying analysis of the legislative record for 

documented patterns of state discrimination was largely the same as Garrett. Dupree, 

92 F.4th at 1007. 

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While Title VII aims to protect the right to be free from sex-based 

discrimination in the workplace, the United States Supreme Court previously refuted 

the notion that exclusionary classifications on the basis of medical condition 

constitutes sex-based discrimination, absent a showing of pretext for invidious 

discrimination on the basis of sex in both an equal protection and Title VII context. 

See Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974); See also, Gen. Elec. Co. v. 

Gilbert, 429 U.S. 125, 135 (1976). The Court has been consistent in this position for 

nearly 40 years; “[t]he regulation of a medical procedure that only one sex can 

undergo does not trigger heightened constitutional scrutiny unless the regulation is a 

‘mere pretex[t] designed to effect an invidious discrimination against members of one 

sex or the other.” Dobbs v. Jackson Women’s Health Organization, 597 U.S. 236-

237 (2022). (alteration in original) (quoting Geduldig, 417 U.S. at 496 n. 20; see 

also, Id. at 236-237 (recognizing that “the ‘goal of preventing abortion’ does not 

constitute ‘invidiously discriminatory animus’ against women” (quoting Bray v. 

Alexandria Women's Health Clinic, 506 U.S. 263, 273–74, (1993)).

During the legislative process to enact Title VII, the 88th Congress engaged in 

minimal discussion regarding sex discrimination to any degree that could constitute 

identification of a history and pattern of unconstitutional or irrational employment 

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discrimination based on sex as it is understood today.2 That changed in 1978 when 

Congress passed the Pregnancy Discrimination Act wherein substantive debate 

occurred with regard to what truly constitutes sex based discrimination toward 

women, and (men).3 The 95th Congress expressly expanded the definition of 

discrimination “because of sex” to include “pregnancy, childbirth, and other related 

medical conditions” in consideration of evidence demonstrating stereotypical 

discrimination toward pregnant women’s propensity to return to the workforce after 

giving birth in light of state insurance policies.4

By contrast, Plaintiff points to no pattern of discrimination by states towards 

transgender individuals or those afflicted with gender dysphoria as an evil to be 

2 Sex was added to the Civil Rights Act by House Amendment. Congressional 

discussions in relation to the amendment between both the House and Senate were 

brief in comparison to the whole legislative record on Title VII. House members 

raised concerns regarding the preferential treatment of black women in employment 

at the expense of white women on account of Title VII’s ban of discrimination on the 

basis of race. There was a concern that without ‘sex’ Title VII would result in 

detrimental effects on white women’s competitiveness for the same employment 

positions. 110 Cong. Rec. 2577-2583 (1964).

3 124 Cong. Rec. 21435-21442; 36817-36819 (1978).

4 124 Cong. Rec. 21441-21442 (1978). (Compare remarks of Rep. Goldwater and 

Rep. Tsongas). The principal case discussed by the 95th Congress was General 

Electric Co v. Gilbert, which dealt with a private employer disability insurance plan. 

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addressed by Title VII, its subsequent amendments, or its remedial scheme. Put 

plainly, it does not exist.5

 

Likewise, nothing in the text of the Pregnancy Discrimination Act or the 

congressional record related to that Act, reflects that Congress contemplated gender 

dysphoria or conditions and medical treatments related to gender dysphoria when 

including such a clause or contemplating sex-stereotyping. Further, Plaintiffs have 

failed to demonstrate that the Plan exclusion was mere pretext for invidious 

discrimination on the basis of biological sex. 

The Supreme Court’s principal analysis on money damages in Garrett, was 

reaffirmed once more in Coleman v. Court of Appeals of Maryland, 566 U.S. 30 

(2012). In Coleman, the Supreme Court recognized that Congress relied on welldocumented evidence to identify a history and unconstitutional pattern of 

discrimination on the basis of sex in the administration of family leave policies by 

states when enacting the FMLA. Id. at 36. However, the United States Supreme 

Court’s review of the legislative record demonstrated the family-care provision of the 

FMLA remedied the evils of “pervasive sex-role stereotypes that care for family 

5 The last two amendments to Title VII were the Civil Rights Act of 1991 and the 

Lilly Ledbetter Fair Pay Act of 2009. The congressional records of the respective 

Congresses that enacted these amendments do not reflect any identification of a 

pattern or history of discrimination towards individuals experiencing gender 

dysphoria or of transgender status by the states by way of sex-stereotyping or 

otherwise. 

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members is women’s work” in light of well documented patterns of sex-based 

discrimination in state run family leave policies. Id. at 36-37. By contrast, the Court 

found that the FMLA’s self-care provision did not address the aforementioned evil 

due to a lack of evidence of facially discriminatory self-care policies by the states in 

violation of Section 1 of the Fourteenth Amendment. Id. at 38. 

Substantive Congressional findings of discrimination by the states is a lynchpin 

for abrogation of Eleventh Amendment immunity for money damages.6 While Title 

VII may otherwise provide a party access to money damages under 42 U.S.C. § 

1981(b)(1), the Supreme Court has long been clear that if Congress endeavors to 

provide individuals access to money damages against state governments through 

Section 1 and 5 of the Fourteenth Amendment, it requires the existence of a specific 

pre-requisite: Congress’ identification of a history and pattern of unconstitutional 

employment discrimination against a particular group in enacting the relevant 

legislation at issue. See Coleman, 566 US at 36-38; See Garrett, 531 U.S. at 368; See

Kimel 528 U.S. at 82-84; see Florida Prepaid Postsecondary Educ. Expense Bd. v. 

Coll. Sav. Bank, 527 U.S. 627, 642-648 (1999).

6 “Without widespread evidence of sex discrimination or sex stereotyping in the 

administration of sick leave, it is apparent that the congressional purpose in enacting 

the self-care provision is unrelated to these supposed wrongs. The legislative history 

of the self-care provision revealed a concern for the economic burdens on the 

employee and the employee's family resulting from illness-related job loss and a 

concern for discrimination on the basis of illness, not sex.” Coleman, 566 U.S. at 38. 

(citing See, S. Rep. No. 103–3, pp. 11–12 (1993)).

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Title VII is not immune to this congruence and proportionality requirement in 

light of the Eleventh Amendment. See In re Employment Discrimination Litig. 

Against State of Ala., 198 F.3d 1305, 1320-1324 (11th Cir. 1999) (conducting review 

of legislative history for a documented history or pattern of racial discrimination by 

the states during the enactment of the 1972 Title VII amendments to determine 

abrogation of Eleventh Amendment Immunity). As such, Plaintiffs are not entitled to 

money damages under Title VII for their claims of sex discrimination by way of 

Defendant’s Plan exclusions on the basis of medical conditions, as medical condition 

exclusions do not violate the equal protection clause, and Congress has not found 

sex-based discrimination by way of medical conditions and treatments related to 

gender dysphoria sufficient to meet the congruence and proportionality requirement.

III. Lane’s claim for facial feminization was lawfully denied under the nondiscriminatory cosmetic exclusion, precluding an award of damages. 

a. The same decision defense cuts off compensatory and injunctive 

relief.

Section 2000e–5(g)(2)(B) of Title VII provides that if an employer can 

demonstrate it “would have taken the same action in the absence of the impermissible 

motivating factor, the court ... shall not award damages” or certain equitable relief. 

42 U.S.C. § 2000e–5(g)(2)(B). This defense is also available under § 1983; however, 

under § 1983 the defense serves as a complete bar to liability. See Quigg v. Thomas 

Cnty. Sch. Dist., 814 F.3d 1227, 1242 (11th Cir. 2016). This Court has already applied 

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the same-decision defense to dismiss Plaintiff Lane’s equal protection claim. (Doc. 

177 p. 2-3.)

Because most Title VII cases involve employment termination, the case law 

speaks to the same decision defense barring back-pay and the injunction relief of

reinstatement or front-pay. See DeBose v. Univ. of S. Florida Bd. of Trustees, 8:15-

CV-2787-EAK-AEP, 2019 WL 3469085, at *1 (M.D. Fla. Mar. 5, 2019). In this case, 

the comparative relief would be the processing of Lane’s claim for medical 

treatments. Much as a plaintiff who would have been fired for a legitimate reason but 

for the discriminatory motive cannot be reinstated and is not entitled to back-pay, 

Lane is not entitled to the medical treatments at issue – and any relief flowing 

therefrom – because such treatments are excluded by the Plan’s cosmetic exclusion, 

regardless of the exclusion for gender reassignment services. (Doc. 118-19 43:10-18; 

Doc. 118-19 Ex. 4.)

b. Defendants sufficiently raised the same decision defense. 

Contrary to Plaintiffs’ assertions, Defendants adequately raised the same 

decision defense. As a threshold matter, this is a somewhat unusual Title VII case, in 

that it does not involve discrete decisions to take typical adverse employment actions. 

The same decision defense applies to an intent analysis in the mixed-motive context, 

and here, Plaintiffs asserted the exclusion was facially discriminatory and that 

evidence of intent was not required. Nevertheless, Defendants have always 

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maintained that both the decision to implement the exclusion and the separate 

decision to deny coverage of Lane’s claim for facial feminization were made for 

“legitimate, non-discriminatory reasons,” and that “each and every decision made by 

Defendants was based on legitimate business reasons and were not in any way based 

on, or the result of, discriminatory intent.” (Doc. 57 p. 23.) This was expressly stated 

in Defendants’ affirmative defenses. 

Admittedly, the undersigned did not use the term of art “same decision.” 

However, the legitimate, non-discriminatory reason defense encompasses the 

concept that Lane’s coverage was denied for a non-discriminatory reason – the 

cosmetic exclusion. As this Court pointed out (Doc. 177 p. 3 n.1), Defendants raised 

the fact that Lane’s facial feminization surgery is barred as cosmetic three years ago 

in their motions for summary judgment. (Doc. 125 p. 26-27; Doc. 126 p. 15-16.)

Plaintiffs expressly addressed this argument in their responses. (Doc. 136 p. 27-30; 

Doc. 127 p. 2, 34-37.)

While Defendants maintain that the concept of same decision was raised in the 

Answer, this Court certainly has the discretion to consider affirmative defenses raised 

for the first time at summary judgment, in the absence of prejudice or bad faith. See

Ahmad v. Furlong, 435 F. 3d 1196 (10th Cir. 2006) (qualified immunity defense not 

clearly raised as affirmative defense was permitted since there was no surprise or 

unfair prejudice and there was sufficient notice to Plaintiff because issue was raised 

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in motion for summary judgment and was addressed by Plaintiff.). See also, McNulty 

v. Sandoval Cnty., 222 Fed. Appx. 770, 774 (10th Cir. 2007); McGinest v. GTE Serv. 

Corp., 247 Fed. Appx. 72, 75 (9th Cir. 2007). 

Federal courts have afforded substantial leeway to parties who do not expressly 

raise all defenses or affirmative defenses in responsive pleadings. Sweet v. Sec'y, 

Dep't of Corrections, 467 F.3d 1311, 1321 n. 4 (11th Cir.2006) (“[O]ur cases 

interpreting [Rule 8(c) ] ... support a liberal approach to waiver where the failure to 

raise an affirmative defense has not prejudiced the plaintiff.”) “Neglect to 

affirmatively plead [an affirmative defense] is simply noncompliance with a 

technicality and does not constitute a waiver where there is no claim of surprise.” 

Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B Aug. 1981). In the Eleventh 

Circuit, if the failure to raise an affirmative defense does not prejudice the plaintiff, 

it is not error for the trial court to hear evidence on the issue.” Hassan v. U.S. Postal 

Serv., 842 F.2d 260, 263 (11th Cir.1988). See also, Proctor v. Fluor Enters., Inc., 494 

F.3d 1337, 1350 (11th Cir.2007); Sweet v. Sec'y, Dep't of Corrections, 467 F.3d 1311, 

1321 n. 4 (11th Cir.2006).

The facts of this case have always included the cosmetic exclusion. Lane was 

on notice that her pursuit of facial feminization surgery was denied under both the 

gender-affirming surgical care exclusion and the cosmetic exclusion. See (Doc 118-

19, Lane Dep. 43 13-18; 110:20-25.) Lane’s counsel also deposed DMS employees 

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and third-party administrators on the issue of the cosmetic exclusion, its relationship 

with the gender dysphoria, and the procedures in assessing coverage determinations 

based on diagnosis and medical necessity. (Doc.118-13, Fillyaw Dep. 102:13-

103:123, 108:19-110:25; Doc. 118-9, Stokes Dep. 28:18-29:15; Doc 118-10, 

Thomas-Brown Dep. 61:19-64:19, 95:11-96:21; Doc 118-14, Jackson Dep. 12:4-23, 

62:9; Doc. 118-3, Frost Dep. 22:15-26:24, 39:15-43:9, 64:10-65:24.) During the 

aforementioned depositions, the parties were repeatedly notified by these witnesses 

that the cosmetic exclusion was equally applicable to Plaintiff Lane’s facial 

feminization procedure. And as previously mentioned, Defendants raised the samedecision defense, albeit inartfully, in its original motions for summary judgment,7 and 

Lane directly responded to DMS’s arguments regarding the cosmetic surgery 

exclusions precluding Lane’s facial feminization surgery.8

7 In its motions for summary judgment, counsel for DMS referred to the cosmetic 

surgery exclusion as a separate, facially neutral and additional reason Plaintiff’ 

Lane’s challenge of the Plan exclusion fails on grounds of sex discrimination. (Doc. 

125, p. 26.) Further, DMS identified its entitlement to relief under Title VII to include 

the exclusion of facial feminization surgery as cosmetic and a separate facially neutral 

exclusion. (Doc. 126, p. 2, 15-16.) 

8 Plaintiffs directly responded to DMS’s arguments in their response to its summary 

judgment motion regarding the facial neutrality and applicability of the cosmetic 

exclusion. Plaintiff argued the cosmetic exclusion was not separate, neutral, or 

distinct from the gender affirming care exclusion, but rather another component of 

the Plan exclusions scheme to discriminate on the basis of sex by denying coverage 

for conditions unique to transgender employees because of a purported lack of 

consideration for the ‘medical necessity’ of potential gender affirming surgical 

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If the Court orders the Plan to re-consider Lane’s claim for facial feminization 

without considering the gender reassignment exclusion, Lane’s claim would still be 

denied. This fact has been repeatedly asserted throughout discovery and at summary 

judgment. Therefore, this Court should allow Defendants to utilize the same decision 

defense at trial.9

V. If non-economic damages are recoverable, Plaintiffs are only entitled to 

garden-variety pain and suffering damage and should be precluded from 

calling health care providers to testify about such damages as trial. 

Plaintiffs have expressly disclaimed any emotional damages other than gardenvariety pain and suffering. In response to discovery requests regarding the identities 

of health care providers, Plaintiffs stated: “I am only seeking garden-variety 

emotional distress, non-pecuniary compensatory damages and am therefore not 

treatments. (Doc. 136, p. 27-28; Doc. 137 p. 34-37.) In other words, Plaintiffs argued 

the cosmetic exclusion was not distinct enough to constitute an alternative basis for 

which the “same decision” would have been rendered, but rather an additional 

component of Defendant’s purported facially discriminatory Plan exclusion in an 

effort to thwart such a defense. DMS expressly countered this argument by pointing 

to Plaintiff Lane’s misstatements of the record regarding how medical necessity is 

considered in light of the coverage exclusions and sex neutral diagnostic criteria to 

qualify for coverage exceptions under the cosmetic exclusion. (Doc. 140 p. 13-15.)

9 Arguably, this Court has already found that there is no factual dispute as to the 

applicability of the same decision defense. (Doc. 177 p. 2 finding that “without 

dispute, after Ms. Lane appealed the denial of her prior-authorization request for 

facial feminization surgery, the appeal panel denied coverage under both the 

challenged coverage exclusion and the plan’s cosmetic procedure exclusion. . . . . 

Thus, this Court could not order injunctive relief that would redress Ms. Lane’s 

injury, as her desired medical procedure would continue to be excluded from 

coverage under the unchallenged cosmetic procedures exclusion.”)

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contending that I have experienced ‘any adverse physical, mental, emotional, 

psychological, and/or psychiatric conditions which [I] contend resulted from 

Defendant’s actions.’” (Doc. 118-19 75:23-76:11.) Plaintiff Claire also objected to 

discovery regarding the identify of health care providers who diagnosed them with 

gender dysphoria and all Plaintiffs objected to the disclosure of psychotherapy notes. 

A garden variety claim “should generally be limited to such emotions as 

personal humiliation and embarrassment rather than clinical diagnoses.” Sessa v. 

Reinauer Transp. Companies, LLC.,WL 8160229 *2 (M.D. Fla. June 15, 2005) citing 

Jackson v. Chubb Corp., 193 F.R.D. 216, 227 (D. N.J. 2000). Courts have described 

garden variety mental distress claims as those “that are supported only by the 

plaintiff’s testimony, described in vague terms, supported by little or no medical 

testimony, and involved such emotions as humiliation, shame, shock, and 

moodiness.” (emphasis added) Id. at *3. Mental and emotional symptoms are 

designated as “garden-variety” stress because they are not “clinically-diagnosed 

medical conditions, but rather, when taken into context, reflect the type of emotional 

effect that normally accompanies” plaintiff’s alleged cause of action. In re 3M 

Combat Arms Earplug Products Liab. Litig., 2021 WL 1088433 *1 (N.D. Fla. Mar. 

22, 2021). See also, Winstead v. Lafayette Cty. Bd. of Cty. Commissioners, 315 F.R.D. 

612, 615 (N.D. Fla. 2016). 

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Words like “anxiety” and “depression” can be used by Plaintiffs when 

describing their distress, as they have both clinical and non-clinical meanings. Id. But 

it is clear that allegations of a specific mental or psychiatric disorder with a claim of 

severe distress is outside the bounds of garden-variety pain and suffering. 

Id.; Robinson v. HD Supply, Inc., No. 2:12–cv–604, 2013 WL 3815987, at *5 

(E.D.Cal. July 19, 2013) (emotional distress not “garden-variety” where plaintiff 

alleged that he suffered from “anxiety, sleeplessness, nightmares, nervousness, 

depression, worry, loss of appetite, loss of libido, rapid weight gain, hair loss, 

headaches, nervous twitching, stress, anger, feelings of hopelessness, feelings of 

isolation, embarrassment, mental anguish, indignation, apprehension, and feelings of 

betrayal”).

While Plaintiffs may testify about their garden-variety pain and suffering 

damages, they should not be permitted to call medical treaters to do the same.

Generally, “Medical opinions are statements from physicians and psychologists or 

other acceptable medical sources that reflect judgments about the nature and severity 

of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and 

prognosis, what [the claimant] can still do despite the impairment(s), and [the 

claimant's] physical or mental restrictions.” Winschel v. Comm'r of Soc. Sec., 631 

F.3d 1176, 1179 (11th Cir. 2011).

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Plaintiffs have not produced medical records regarding their mental health 

treatment. They should not be permitted to call physicians to talk about their gardenvariety pain and suffering or to suggest that the denial of coverage at issue worsened 

their gender dysphoria. Plaintiffs may not use their past or current medical condition 

as both a “sword and a shield.” Silva v. Potter, 8:04CV2542T17EAJ, 2005 WL 

3636944, at *2 (M.D. Fla. Nov. 23, 2005). Having shut down discovery of Plaintiffs 

mental / psychiatric conditions, allowing Plaintiffs to call medical professionals to

testify regarding garden-variety pain and suffering would imply more than garden 

variety damages, and would be substantially more prejudicial than probative. For 

these reasons, Plaintiffs should be prohibited from putting forth medical testimony 

regarding their pain and suffering damages in light of their ‘garden variety’ nature.

CONCLUSION

In conclusion, Defendants ask this Court to stay the present action pending 

rehearing en banc in Lange; find that Plaintiffs are not entitled to recover economic 

or non-economic damages for the reasons set forth above; and hold that Plaintiffs are 

not entitled to injunctive relief.

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Respectfully submitted this 11th day of October 2024. 

HENRY BUCHANAN, P.A.

/s/ Miriam R. Coles

MIRIAM R. COLES

Florida Bar No. 58402

mcoles@henryblaw.com

J. STEVEN CARTER

Florida Bar No. 896152

Post Office Drawer 14079

Tallahassee, Florida 32317-4079

(850) 222-2920: Telephone

(850) 224-0034: Facsimile

Counsel for Defendants 

CERTIFICATE OF WORD COUNT

Pursuant to Local Rules 5.1 and 7.1, undersigned counsel certifies that this 

motion consists of 5544 words and is typed in Times New Roman, font size 14.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

electronically filed via the CM/ECF system which will send electronic notification to 

all counsel of record on this 11th day of October 2024.

/s/ Miriam R. Coles

ATTORNEY

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