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Case 2:17-cv-00404-KG-SMV Document 25 Filed 09/07/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO NORA CANDELARIA, KIMANI SINGLETON, and all others similarly situated under 29 USC § 216(b), Plaintiff, v.

Civil Action No. 2:17-cv-00404-KG-SMV

HEALTH CARE SERVICE CORPORATION,

FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

Defendant. FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT Named Plaintiffs Nora Candelaria and Kimani Singleton bring this collective and class action individually, on behalf of those similarly situated, and on behalf of the respective Rule 23 Class Members, and in support show the court the following: NATURE OF SUIT 1.

This is an opt-in collective action brought pursuant to the Fair Labor Standards

Act, 29 U.S.C. § 201, et seq, and a Rule 23, opt-out class action brought pursuant to the New Mexico Minimum Wage Act, N.M. Stat. Ann. §50-4-19, et seq. (“New Mexico Law” or “NM Wage Law”) and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. (“Illinois Law” or “IL Wage Law”) (collectively, “State Wage Law”). 2.

Defendant Health Care Service Corporation (“HCSC” or “Defendant”) is the

fourth largest health insurer in the country and operates through its Blue Cross Blue Shield Divisions in Illinois, Montana, New Mexico, Oklahoma, and Texas (collectively, “BCBS

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States”).1 HCSC administers health insurance plans for nearly 15 million people in these states, including more than 8.2 million members in Illinois, 297,000 members in Montana, 463,000 members in New Mexico, 768,000 members in Oklahoma, and 4.9 million members in Texas.2 HCSC processes approximately 888,000 member claims per day and 230,800,000 member claims annually.3 3.

Defendant employs individuals to perform “medical management”4 (sometimes

referred to as “care management”) work, which includes both “utilization management” and “case management” functions, to attempt to reduce overall costs of care through detection, prevention, early prevention, and care coordination. For purposes of this lawsuit, Plaintiffs will refer to “Medical Management Employees” or “MMEs” despite Defendant not utilizing this term as a specific job title for its employees. The primary job duties of MMEs include communicating with and gathering data from members to document members’ medical circumstances in Defendant’s computer system (“Data Collection”); inputting member data into Defendant’s computer system (“Data Entry”); using established guidelines to maximize utilization of plan resources through application of predetermined criteria (“Care Utilization”); providing information to members and providers regarding plan benefits and resources to address members healthcare needs (“Plan Education”); and working with members and providers to set up medical care (“Care Coordination”) (collectively, “Non-Exempt Work”).

1

http://www.hcsc.com/who-we-are (last visited August 23, 2017). http://www.hcsc.com/who-we-are/statistics (last visited August 23, 2017). 3 Id. 4 The term “medical management” refers to a general category of work, which is also commonly referred to as “care management.” 2

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4.

Defendant misclassified MMEs as exempt from overtime, paid them on a salary

basis, and refused to pay them overtime despite regularly working over 40 hours per workweek. THE PARTIES 5.

Plaintiff Nora Candelaria (“Candelaria”) has worked as a MME for Defendant in

New Mexico over the last two years and worked over 40 hours in one or more workweeks during that time period. Defendant referred to Candelaria’s position in multiple ways during her employment, including referencing her job title as “care coordinator” and “member care coordinator.” She has already filed her consent to participate with the Court. 6.

Plaintiff Kimani Singleton (“Singleton”) has worked as a MME for Defendant in

Illinois over the last two years and worked over 40 hours in one or more workweeks during that time period. Defendant referred to Singleton’s position in multiple ways during her employment, including referencing her job title as “care coordinator” and “case manager.” She has already filed her consent to participate with the Court. 7.

Plaintiffs bring this action individually and on behalf of those similarly situated

similarly situated (“FLSA Class Members”) pursuant to the FLSA. The FLSA Class Members consist of Defendant’s current and former non-supervisory MMEs who were paid a salary, who worked more than 40 hours in one or more workweeks over the past three years and whose job duties include Data Collection, Data Entry, Care Utilization, Plan Education, Care Coordination, or other similar duties. This definition specifically includes, without limitation, such job titles as “care coordinator,” “member care coordinator,” “case manager,” “medical management specialist,” “UM/CM coordinator,” “behavioral health coordinator,” “medical social worker,” “utilization review nurse,” “care management specialist,” and other job titles performing similar duties. FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

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8.

Plaintiff Candelaria brings this action as a Rule 23 class action pursuant to NM

Wage Law behalf of the FLSA Class Members who worked for Defendant in New Mexico for more than 40 hours in at least one workweek in the previous three years (“NM Class Members”). 9.

Plaintiff Singleton brings this action as a Rule 23 class action pursuant to IL Wage

Law on behalf of the FLSA Class Members who worked for Defendant in Illinois for more than 40 hours in at least one workweek in the previous three years (“IL Class Members”). 10.

Defendant Health Care Service Corporation is an Illinois Mutual Reserve

Company organized under the laws of Illinois. As provided above, HCSC primarily administers its health plans through its Blue Cross divisions, including Blue Cross and Blue Shield of New Mexico, Blue Cross and Blue Shield of Illinois, Blue Cross and Blue Shield of Montana, Blue Cross and Blue Shield of Oklahoma, and Blue Cross and Blue Shield of Texas. Defendant has already made its appearance in this case. JURISDICTION AND VENUE 11.

This Court has jurisdiction over Plaintiffs’ FLSA claim because the claim arises

under federal law pursuant to 29 U.S.C. § 216(b) and pursuant to 29 U.S.C. § 1331. 12.

This Court has subject matter jurisdiction over the state law claims pursuant to

28 U.S.C. § 1332(d) because this is a class action with an amount in controversy of over $5,000,000, exclusive of interest and costs, and at least one Rule 23 Class Member is a citizen from a different state than Defendant. Alternatively, the Court has supplemental jurisdiction pursuant to 28 U.S.C § 1367.

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13.

Venue is proper in the District Court pursuant to 29 U.S.C. § 1391 because the

events forming the basis of the suit occurred in this District and Plaintiff Candelaria (as well as other New Mexico employees) worked in and resides in this District.. COVERAGE FACTS 14.

At all relevant times, Defendant acted, directly or indirectly, in the interest of an

employer or joint employer with respect to Plaintiffs and the respective Class Members. 15.

At all relevant times, Defendant constituted an employer or joint employer

within the meaning of the FLSA, 29 U.S.C. § 203(d) and relevant State Wage Law. 16.

At all relevant times, Defendant has been an enterprise engaged in commerce or

in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). Plaintiffs and the Class Members specifically handled materials, including computer and other equipment, to input information into Defendant’s automated system. 17.

At all relevant times, Plaintiffs and the respective Class Members were individual

employees who were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. § 203(e)(1). FACTUAL ALLEGATIONS

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18.

Defendant has had business operations throughout the United States, including

in New Mexico and this Judicial District, over the past three years. Defendant’s gross volume of sales made or business done has exceeded $500,000.00 per year during the same time period. 19.

Plaintiff Candelaria worked as a MME for Defendant in New Mexico from

approximately September 2013 to July 2015 and worked over 40 hours in one or more workweeks during the last three years. 20.

Plaintiff Singleton worked as a MME for Defendant in Illinois from

approximately November 2012 to November 2015 and worked over 40 hours in one or more workweeks during the last three years. 21.

As MMEs, Plaintiffs’ job duties consisted of Non-Exempt Work, including Data

Collection, Data Input, Care Utilization, Plan Education, Care Coordination, and other similar work. These job duties do not involve exercising independent clinical judgment, providing traditional nursing care in a clinical setting, providing direct medical care to members, or performing work requiring advanced knowledge acquired by a prolonged course of study. Rather, Plaintiffs performed their Non-Exempt work in accordance with predetermined guidelines, criteria, and standards either remotely or from a call center. 22.

Plaintiffs each routinely worked over 40 hours per week, but Defendants failed

to pay them any overtime premium for all hours worked in excess of 40 per workweek. 23.

Instead of providing Plaintiffs with overtime pay, Defendant classified Plaintiffs

as exempt from overtime and paid them on a salary basis with no overtime pay for their many hours of overtime work. 24.

Defendant knew that Plaintiffs worked in excess of 40 hours per week.

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25.

Plaintiffs are entitled to receive overtime pay for all the hours worked in excess

of 40 per workweek. 26.

Defendant willfully misclassified Plaintiffs as exempt and refused to pay them

overtime, despite (1) having awareness of the FLSA’s minimum wage and overtime requirements; (2) routinely receiving complaints from Plaintiffs and the respective Class Members regarding their pay and excessive overtime hours; (3) paying workers who performed substantially similar and non-exempt duties on an hourly/overtime eligible basis, but choosing not to pay Plaintiffs overtime. COLLECTIVE AND CLASS ALLEGATIONS 27.

Named Plaintiffs Candelaria and Singleton bring their FLSA claims as a collective

action pursuant to 29 U.S.C. § 216(b), and their respective NM Wage Law and IL Wage Law claims as a class action under Federal Rule of Civil Procedure 23. 28.

The similarly situated FLSA Class Members consist of Defendant’s current and

former non-supervisory MMEs paid on a salary basis that worked at least one hour of uncompensated overtime over the past three years whose job duties include Data Collection, Data Entry, Care Utilization, Plan Education, Care Coordination, or other similar job duties. This definition specifically includes, without limitation, such job titles as “care coordinator,” “member care coordinator,” “case manager,” “medical management specialist,” “care management specialist,” “UM/CM coordinator,” “behavioral health coordinator,” “medical social worker,” “utilization review nurse,” and other job titles performing similar duties.

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29.

Plaintiffs bring their class action on behalf of the respective IL Class Members

and NM Class Members (collectively, “Rule 23 Class Members”), which is maintainable under subsections (1), (2), (3) and (4) of Rule 23(a). 30.

The Rule 23 Class Members are so numerous that their joinder is impracticable.

While the precise number of the Rule 23 Class Members is unknown, at least 100 Rule 23 Class Members have worked at least one workweek of more than 40 hours in both New Mexico and Illinois over the past three years. 31.

Common questions of law and fact for the NM Class Members predominate over

any questions affecting any individual member, including: (1) whether Defendant violated relevant state wage law by failing to pay the Rule 23 Class Members overtime compensation for all hours worked in excess of forty in an individual workweek; (2) the proper measure of damages sustained by the Rule 23 Class Members; and (3) whether Defendant should be enjoined for such violations in the future. 32.

Plaintiffs’ claims are typical of those of the Rule 23 Class Members. Plaintiffs and

the respective Rule 23 Class Members (1) had the same primary job duties; (2) were classified as exempt from overtime; (3) worked in or out of their respective states in at least one workweek in or out of their respective states in the respective statutory periods; and (4) were denied overtime at a rate of one-and-one half times their regular rates of pay for all overtime hours worked. 33.

Plaintiffs will fairly and adequately protect the Rule 23 Class Members’ interests

and have retained counsel experienced in complex wage and hour class action litigation.

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34.

This class action is maintainable as a class action under subsection (1) of Rule

23(b) because prosecuting separate actions by individual class members across the jurisdictions in which Defendant does business would create the risk of inconsistent adjudications, resulting in incompatible standards of conduct for Defendant. 35.

This class action is maintainable as a class action under subsection (2) of Rule

23(b) because Defendant acted or refused to act on grounds generally applicable to the Rule 23 Class Members, making final injunctive and/or declaratory relief appropriate to the Rule 23 Class Members as a whole. 36.

This action is maintainable as a class action under subsection (3) of Rule 23(b)

because (1) questions or law or fact predominate over any questions affecting individual class members; and (2) a class action is superior to other methods to ensure a fair and efficient adjudication of this controversy because—in the context of wage and hour litigation— individuals lack the financial resources to vigorously prosecute lawsuits against large corporate defendants. 37.

Class litigation is also superior because it will preclude the need for unduly

duplicative litigation resulting in inconsistent judgments pertaining to Defendant’s policies and practices. 38.

This action is maintainable as a class action under subsection (4) of Rule 23(b)

with respect to particular legal and factual issues raised in this litigation. 39.

No apparent difficulties exist in managing this class action. Plaintiffs intend to

send notice to the proposed Rule 23 Class Members to the extent required by Fed. R. Civ. 23(c). COUNT I: VIOLATION OF THE FAIR LABOR STANDARDS ACT 40.

Plaintiffs incorporate all allegations previously made in this Complaint.

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41.

During the relevant period, Defendant violated and is violating the provisions of

Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206-7, and 215(a)(2), by employing Plaintiffs and other Medical Management Employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA as aforesaid, for workweeks longer than 40 hours without compensating such employees for their work in excess of forty hours per week at rates no less than one-and-a-half times the regular rates for which they were employed. 42.

Defendant acted willfully in failing to pay Plaintiffs and the FLSA Class

Members in accordance with the law. COUNT II: VIOLATION OF NM WAGE LAW 43.

Plaintiffs incorporate all allegations previously made in this Complaint.

44.

Plaintiff Candelaria and the NM Class Members are entitled to unpaid overtime

in an amount equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek pursuant to the formula outlined in N.M. Stat. Ann. § 50-422(D). 45.

During the relevant time period, Defendant violated and continues to violate

NM Wage Law by employing employees and regularly and repeatedly failing to pay them for all hours worked or overtime at a rate of at least one-and-a-half times their regular rates of pay for hours worked in excess of 40 each workweek. 46.

As a direct and proximate result of Defendant’s unlawful conduct, Plaintiff

Candelaria and the NM Class Members have suffered and will continue to suffer from a loss of income and other damages.

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47.

Plaintiff Candelaria and the NM Class Members are entitled to their unpaid

wages, an amount equal to twice their unpaid wages, prejudgment interest, all costs in bringing this action, and all attorneys’ fees accrued that are recoverable under NM Wage Law. 48.

Pursuant to N.M. Stat. Ann. 50-4-32, Plaintiff Candelaria and the NM Class

Members are entitled to recover for all violations that occurred as part of Defendant’s continued course of conduct regardless of the date on which they occurred. COUNT III: VIOLATION OF IL WAGE LAW 49.

Plaintiffs incorporate all allegations previously made in this Complaint.

50.

Plaintiff Singleton and the IL Class Members are entitled to unpaid overtime in

an amount equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek pursuant to the formula outlined in IL Wage Law. 51.

During the relevant time period, Defendant violated and continues to violate the

IL Wage Law by employing employees and regularly and repeatedly failing to pay employees for all hours worked or overtime wages of at least one-and-one-half times their regular rates of pay for hours worked over 40 each workweek. 52.

Pursuant to 820 ILCS 105/12(a), Plaintiff Singleton and the IL Class Members

are entitled to recover overtime wages for up to three years prior to the filing of this lawsuit, plus damages in an amount of two percent (2%) per month of the amount of the underpayments. RELIEF SOUGHT 53. Plaintiffs pray for judgment against Defendant as follows: (a)

An order preliminarily and permanently restraining Defendant from engaging in the aforementioned pay violations; and

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(b)

An award to Plaintiffs of the value of the hours and wages, including overtime pay, which were not properly compensated under the FLSA and applicable state law; and

(c)

Liquidated damages under the FLSA equal to the sum of the amount of wages and overtime which were not properly paid to Plaintiffs; and

(d)

An Order awarding Plaintiff Candelaria and the NM Class Members damages pursuant to N.M. Stat. Ann. 50-4-26; and

(e)

An Order awarding Plaintiff Candelaria and the NM Class Members damages for all violations, regardless of the date on which they occurred, as a result of Defendant’s continued course of conduct pursuant to N.M. Stat. Ann. 50-4-32; and

(f)

An Order awarding Plaintiff Singleton and the IL Class Members damages pursuant to the formula set forth in 820 ILCS 105/12(a); and

(g)

An award of attorneys’ fees, expenses, expert fees and costs incurred by plaintiffs in vindicating their rights under applicable federal and state law; and

(h)

A service payment to the Named Plaintiffs for services provided on behalf of the class; and

(i)

An award of pre- and post- judgment interest; and

(j)

Such other and further legal or equitable relief as this Court deems to be just and appropriate.

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Respectfully submitted, /s/ J. Derek Braziel J. DEREK BRAZIEL Co-Attorney in Charge Texas Bar No. 00793380 jdbraziel@l-b-law.com TRAVIS GASPER Texas Bar No. 24096881 gasper@l-b-law.com LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com JACK SIEGEL Co-Attorney in Charge Texas Bar No. 24070621 jack@siegellawgroup.biz SIEGEL LAW GROUP PLLC 2820 McKinnon, Suite 5009 Dallas, Texas 75201 (214) 790-4454 phone (214) 706-0834 fax www.4overtimelawyer.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on all counsel of record through the Court’s ECF system as of the date file-stamped thereon.

/s/ J. Derek Braziel J. DEREK BRAZIEL

FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

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