Garza et al v. Cherokee Healthcare Services

Western District of Texas, txwd-5:2019-cv-00353

ANSWER to [17] Amended Complaint by Cherokee Healthcare Services.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CYNTHIA GARZA, ELSA TOSCANO § NORMA BEXAR-MOLINE, TERESA § VILLANUEVA, AND SAN JUANA § GOMEZ, INDIVIDUALLY AND ON § BEHALF OF ALL THOSE SIMILARLY§ SITUATED § § Plaintiff, § § v. § CIVIL ACTION NO. 5:19-cv-353-FB § CHEROKEE HEALTHCARE SERVICES § § Defendant. § DEFENDANT'S ANSWER Defendant, Cherokee Nation Healthcare Services, LLC ("CNHS") by and through its attorneys, McAfee & Taft A Professional Corporation and Schmoyer Reinhard LLP, hereby answers the Class and Collective Action Complaint filed by Plaintiffs Cynthia Garza, Elsa Toscano, Norma Bexar-Moline, Teresa Villanueva, and San Juana Gomez ("Plaintiffs"). Each paragraph below corresponds to the respective numbered paragraph in Plaintiffs' Complaint. 1. Nature of Suit. 1.1 CNHS admits that Plaintiffs purport to bring a lawsuit to recover alleged unpaid overtime wages and other damages under the Fair Labor Standards Act ("FLSA"). CNHS denies any violation of the FLSA. 2. Parties. 2.1 Upon information and belief, CNHS admits that Plaintiff Garza resides in the 1 Western District of Texas. CNHS admits the remaining allegations contained in Paragraph 2.1 of the Complaint. 2.2 CNHS admits the allegations contained in Paragraph 2.2 of the Complaint. 2.3 CNHS admits the allegations contained in Paragraph 2.3 of the Complaint. 2.4 CNHS admits the allegations contained in Paragraph 2.4 of the Complaint. 2.5 CNHS admits the allegations contained in Paragraph 2.5 of the Complaint. 2.6 CNHS denies the allegations contained in Paragraph 2.6 of the Complaint. 2.7 CNHS admits the allegations contained in Paragraph 2.7 of the Complaint but denies any violation of the FLSA. 3. Jurisdiction and Venue 3.1 CNHS admits venue is proper in this Court but denies any events occurred in violation of the FLSA. 3.2 CNHS admits there is personal jurisdiction is proper in this Court for the current plaintiffs only. 3.3 CNHS admits that the Court has federal question jurisdiction as set forth in 28 U.S.C. § 1331 and Plaintiffs bring claims pursuant to the FLSA, 29 U.S.C. § 201 et seq., as amended. CNHS is a triable corporation created by the Cherokee Nation and any participation in this lawsuit does not waive the Cherokee Nation's sovereign immunity. 4. Coverage. 4.1 CNHS admits the allegations contained in Paragraph 4.1 of the Complaint. 4.2 CNHS admits the allegations contained in Paragraph 4.2 of the Complaint. 2 4.3 CNHS admits the allegations contained in Paragraph 4.3 of the Complaint. 4.4 CNHS admits the allegations contained in Paragraph 4.1 of the Complaint. 4.5 CNHS denies that it provides healthcare services on a multi-state basis. CNHS admits the remaining allegations contained in Paragraph 4.5 of the Complaint. 4.6 CNHS admits the allegations contained in Paragraph 4.6 of the Complaint. 4.7 CNHS admits the allegations contained in Paragraph 4.7 of the Complaint. 5. Factual Allegations. 5.1 CNHS denies the allegations contained in Paragraph 5.1 of the Complaint. 5.2 CNHS admits that Plaintiffs worked for CNHS remotely coding medical charts on a BAMC contract but denies the remaining allegations of paragraph 5.2. 5.3. CNHS denies that the allegations in Paragraph 5.3 are job descriptions for the Plaintiffs. 5.4 Paragraph 5.4 is a legal conclusion to which CNHS is not required to respond. 5.5 CNHS denies the allegations contained in Paragraph 5.5 of the Complaint. 5.6 CNHS admits that Plaintiffs performed medical coding work but denies the duties could not alternatively be considered exempt from the FLSA. 5.7 CNHS denies the allegations contained in Paragraph 5.7 of the Complaint. 5.8 CNHS denies the allegations contained in Paragraph 5.8 of the Complaint. 5.9 CNHS denies the allegations contained in Paragraph 5.9 of the Complaint. 5.10 CNHS denies the allegations contained in Paragraph 5.10 of the Complaint. 3 5.11 CNHS denies the allegations contained in Paragraph 5.11 of the Complaint. 5.12 CNHS denies the allegations contained in Paragraph 5.12 of the Complaint. 5.13 CNHS denies the allegations contained in Paragraph 5.13 of the Complaint. 6. Collective Action Allegations. 6.1 The responses to the allegations in Paragraph 5 are incorporated herein. 6.2 CNHS denies the allegations contained in Paragraph 6.2 of the Complaint. 6.3 CNHS denies the allegations contained in Paragraph 6.3 of the Complaint. 6.4 CNHS denies any class is proper and therefore denies the allegations in Paragraph 6.4. 6.5 CNHS denies the allegations contained in Paragraph 6.5 of the Complaint. 6.6 CNHS denies the allegations contained in Paragraph 6.6 of the Complaint. 6.7 CNHS denies the allegations contained in Paragraph 6.7 of the Complaint. 6.8 CNHS denies the allegations contained in Paragraph 6.8 of the Complaint. 6.9 CNHS denies the allegations contained in Paragraph 6.9 of the Complaint. 6.10 CNHS denies the allegations contained in Paragraph 6.10 of the Complaint. 6.11 CNHS admits that Plaintiffs purport to bring this on behalf of similarly situated employees but denies there are any similarly situated employees or that the Court would have jurisdiction over any similarly situated employees. 4 6.12 CNHS admits that Plaintiffs seek the designation as described but denied any such designation of representatives is proper. 7. First Cause of Action: Alleged Failure to Pay Wages in Accordance with the Fair Labor Standards Act. 7.1 CNHS incorporates all response to the foregoing allegations in paragraphs 1-6, inclusive, as if fully rewritten herein. 7.2 CNHS denies the allegations contained in Paragraph 7.2 of the Complaint. 7.3 CNHS denies the allegations contained in Paragraph 7.3 of the Complaint. 7.4 CNHS denies the allegations contained in Paragraph 7.4 of the Complaint. 7.5 CNHS denies the allegations contained in Paragraph 7.5 of the Complaint. 7.6-7.6.1.9 CNHS denies that Plaintiffs are entitled to any of the relief sought. 8. Jury Demand 8.1 CNHS admits that Plaintiffs demand a jury trial. 5 DEFENSES Based upon facts known to CNHS as of the date of filing, CNHS sets forth the following defenses to the allegations of Plaintiff in his Complaint: 1. Plaintiffs fail to state a claim upon which relief can be granted. 2. Some or all of the claims of Plaintiffs and the individuals he seeks to represent are barred, in whole or in part, by all applicable statutes of limitations governing the claims advanced by Plaintiffs. 3. Plaintiffs' claims and the individuals they seeks to represent are barred, in whole or in part, because some or all of these individuals lack standing or lack jurisdiction to seek some or all of the requested relief. 4. CNHS denies liability to Plaintiffs or any putative class members under any claims or legal theories. 5. It cannot be shown that CNHS engaged in any "willful" violation as required for application of a three-year statute of limitations on claims arising under the Fair Labor Standards Act. 6. In addition, CNHS maintained a reasonable and established process to address allegations of this type, and Plaintiffs unreasonably failed to take advantage of that process. 7. The decisions and actions taken by CNHS were not willful, but were taken in good faith and based upon a reasonable belief that all such actions did not violate the Fair Labor Standards Act or other applicable laws or regulations, and should not subject it to liquidated damages. 6 8. CNHS denies liability, and alternatively asserts that CNHS acted in good faith and on reasonable grounds at all times, and thus, cannot be liable for liquidated damages under the FLSA. 9. CNHS denies the allegations in the Complaint that a collective action is appropriate for the group of employees identified in the Complaint. 10. CNHS denies that is violated the FLSA by failing to pay overtime and did not have knowledge or constructive knowledge of any hours worked in excess of 40. 11. In the alternative, the claims asserted are precluded because Plaintiffs and putative class members were exempt from the overtime requirements of the Fair Labor Standards Act. 12. In the alternative, CNHSs asserts that Plaintiff and other alleged class members were exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. In light of the duties requested of and/or performed by Plaintiffs, Plaintiffs are exempt as, without limitation, a bona fide executive and/or administrative employee. 13. The claims are precluded because Plaintiffs and putative class members were paid in accordance with the Fair Labor Standards Act. 14. The Complaint requests damages and/or remedies not recoverable by law. 15. Plaintiff has failed to adequately and/or reasonably mitigate any damages. 16. CNHS reserves the right to amend this Answer to assert any counterclaims or additional defenses, including in particular those defenses set forth in Fed. R. Civ. P. 8(c), when and if, in the course of its investigation, discovery, or preparation for trial, it becomes appropriate to assert such defenses and with appropriate leave of court. 7 PRAYER FOR RELIEF WHEREFORE, having fully answered and asserted all defenses – affirmative or otherwise - known at this time, CNHS prays the Court deny Plaintiffs the relief requested in their Complaint. CNHS prays the Court grant judgment in its favor and award to CNHS any and all relief to which it is entitled, including its reasonable costs of litigation. Respectfully submitted, /s/ Philip R. Bruce Shannon B. Schmoyer Texas Bar No. 17780250 sschmoyer@sr-llp.com SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Telephone: 210.447.8033 Facsimile: 210.447.8036 W. Kirk Turner, OBA # 13791 (admitted pro hac vice) Philip R. Bruce (admitted pro hac vice) Jacob S. Crawford (admitted pro hac vice) McAfee & Taft, A Professional Corporation Williams Center Tower II Two W. Second Street, Suite 1100 Tulsa, Oklahoma 74103 Telephone: (918) 587-0000 Facsimile: (918) 599-9317 kirk.turner@mcafeetaft.com philip.bruce@mcafeetaft.com ATTORNEYS FOR DEFENDANT CHEROKEE NATION HEALTHCARE SERVICES, LLC 8 CERTIFICATE OF SERVICE ☒ I hereby certify that on June 26, 2019, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Chris R. Miltenberger Texas Bar NO. 14171200 The Law Office of Chris R. Miltenberger, PLLC 1360 N White Chapel Suite 200 Southlake, Texas 76092-4322 Office 817-416-5060 Fax 817-416-5062 chris@crmlawpractice.com ATTONERY FOR PLAINTIFFS /s/ Philip R. Bruce Philip R. Bruce 9