Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 1 of 20
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`LEE LITIGATION GROUP, PLLC
`C.K. Lee (CL 4086)
`Anne Seelig (AS 3976)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: (212) 465-1188
`Fax: (212) 465-1181
`Attorneys for Plaintiff, FLSA Collective
`Plaintiff and the Class
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`EUGENIA CAICEDO,
`on behalf of herself, Nationwide FLSA Collective Plaintiffs
`and the Class,
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`Plaintiff,
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`v.
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`Case No.:
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`CLASS AND COLLECTIVE
`ACTION COMPLAINT
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`THE ANTHEM COMPANIES, INC.
`f/k/a THE WELLPOINT COMPANIES, INC. ,
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`Defendant.
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`Plaintiff EUGENIA CAICEDO (“Plaintiff”), on behalf of herself and others similarly
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`situated, by and through her undersigned attorneys, hereby files this Class and Collective
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`Action Complaint against Defendant, THE ANTHEM COMPANIES, INC. f/k/a THE
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`WELLPOINT COMPANIES, INC. (“Defendant”), and states as follows:
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`1
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 2 of 20
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`INTRODUCTION
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`1.
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`Plaintiff CAICEDO alleges, pursuant to the Fair Labor Standards Act, as
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`amended, 29 U.S.C. §§ 201 et seq. (“FLSA”), that she and others similarly situated are entitled to
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`recover from Defendant: (1) unpaid overtime compensation, (2) liquidated damages and (3)
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`attorneys’ fees and costs.
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`2.
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`Plaintiff CAICEDO also alleges, pursuant to the New York Labor Law
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`(“NYLL”), that she and others similarly situated are entitled to recover from Defendant: (1)
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`unpaid overtime compensation, (2) statutory penalties, (3) liquidated damages and (4) attorneys’
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`fees and costs.
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`3.
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`Plaintiff CAICEDO further alleges that she and others similarly situated were
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`deprived of their statutory rights as a result of Defendant’s unlawful discrimination practices
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`pursuant to the New York State Human Rights Law, New York Executive Law § 296
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`(“NYSHRL”), New York City Human Rights Law and the Administrative Code of the City of
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`New York § 8-107 (“NYCHRL”), and brings this action against Defendant to recover (1)
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`economic damages (2) compensatory damages for emotional distress, (3) punitive damages and
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`(4) attorneys’ fees and costs.
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`4.
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`Plaintiff EUGENIA CAICEDO alleges an individual claim pursuant to the Family
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`and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq, in that she was denied a proper
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`opportunity for leave to take care of her medical and was retaliated against rather for taking leave
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`to deal with medical issues. Plaintiff seeks all applicable remedies under the law, including (1)
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`compensatory damages, (2) punitive damages, (3) back pay, (4) front pay, and (5) attorneys’ fees
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`and costs.
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`2
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 3 of 20
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`JURISDICTION AND VENUE
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`Defendant is subject to personal jurisdiction in this judicial district.
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`This Court has subject matter jurisdiction over this controversy pursuant to 29
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`5.
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`6.
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`U.S.C. § 216(b), 28 U.S.C. §§ 1331, 1337 and 1343, and has supplemental jurisdiction over
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`Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
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`7.
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`8.
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`Venue is proper in the Southern District pursuant to 28 U.S.C. § 1391.
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`This Court is empowered to issue a declaratory judgement pursuant to 28 U.S.C.
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`§§ 2201 and 2202.
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`PARTIES
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`9.
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`10.
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`Plaintiff EUGENIA CAICEDO is a resident of Queens County, New York.
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`Defendant THE ANTHEM COMPANIES, INC. is a foreign business corporation
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`operating in New York and organized under the laws of Indiana. Its principal executive office is
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`located at 120 Monument Circle, Indianapolis, IN, 46204, and its address for service of process
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`purposes is c/o CT Corporation System, 111 Eighth Avenue, New York, NY 10011. Defendant
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`THE ANTHEM COMPANIES, INC. is registered to conduct business in New York and
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`formerly operated under the name THE WELLPOINT COMPANIES, INC.
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`11.
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`Defendant operates a healthcare enterprise that provides programs and services to
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`uninsured and underinsured individuals. Defendant maintains offices and hires employees
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`throughout the entire United States, including offices in California (18), Georgia (1), Maine (1),
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`New Hampshire (1), Virginia (9), Colorado (2), Indiana (3), Missouri (4), New York (4),
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`Wisconsin (5), Connecticut (1), Kentucky (2), Nevada (2), Ohio (9)
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`3
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 4 of 20
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`12.
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`The Anthem Offices (the “Offices”) share common central management, Human
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`Resources team, central payroll (as evidenced on Plaintiff’s pay stub, see Exhibit A), and central
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`marketing team.
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`a) Each Office location is engaged in the same business of providing insurance sales
`services.
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`b) All the Offices share the same trade name "Anthem" with the same logo and are
`marketed jointly on one (1) common website: (https://anthem.com/). See Exhibit
`B.
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`c) The Offices within New York State are commonly owned and operated by THE
`ANTHEM COMPANIES, INC. See Exhibit C.
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`d) All offices share the common “Individual & Family” Webpage, “Medicare”
`Webpage, “Medicaid” Webpage, “For Employers” Webpage, “For Producers”
`Webpage, “For Providers” Webpage, corporate office address, email address and
`a 1-800 number. See Exhibit D.
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`e) Job openings of Anthem in multiple states were posted on the same Webpage for
`prospective employees to apply. See also Exhibit E for the “Careers” Webpage.
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`f) All Offices share common social media accounts, including: Facebook, located at
`https://www.facebook.com/AnthemBlueCrossBlueShield/; and Twitter, located at
`https://twitter.com/antheminc?lang=en. See Exhibit F.
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`13.
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`At all relevant times, the Defendant was and continues to be an “enterprise
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`engaged in commerce” within the meaning of the FLSA and NYLL and the regulations
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`thereunder.
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`14.
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`At all relevant times, the Defendant was an employer that employs four (4) or
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`more “employees” within the meaning of the NYSHRL and NYCHRL, and is an “employer” and
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`“person” within the meaning of Section 15(a) of the FLSA and Section 215 of the NYLL.
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`15.
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`At all relevant times, the work performed by Plaintiff, Nationwide FLSA
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`Collective Plaintiffs and Class Members was directly essential to the business operated by
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`Defendant.
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`4
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 5 of 20
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`NATIONWIDE FLSA COLLECTIVE ACTION ALLEGATIONS
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`16.
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`Plaintiff CAICEDO brings claims for relief as a collective action pursuant to the
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`FLSA, 29 U.S.C. § 216(b), on behalf of all non-managerial employees, who engaged or
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`facilitated in the enrollment and/or recertification of clients (including but not limited to all non-
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`managerial Retention Associates, Facilitated Enrollers, Medicaid Representatives outside of New
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`York City, and all Sales Representative, Field Sales Representative, and Inside Sales
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`Representative employees within New York City and throughout the United States) employed by
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`Defendant on or after the date that is six (6) years before the filing of the Complaint in this case
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`as defined herein (“Nationwide FLSA Collective Plaintiffs”).
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`17.
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`At all relevant times, Plaintiff CAICEDO and Nationwide FLSA Collective
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`Plaintiffs are and have been similarly situated, have had substantially similar job requirements
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`and pay provisions, and are and have been subjected to Defendant’s decisions, policies, plans,
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`programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure
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`and refusal to pay them the proper overtime compensation at the rate of one and one half times
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`the regular hourly rate for work in excess of forty (40) hours per workweek and improperly
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`classifying non-exempt employees as exempt. The claims of Plaintiff CAICEDO stated herein
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`are essentially the same as those of Nationwide FLSA Collective Plaintiffs.
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`18.
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`The claims for relief are properly brought under and maintained as an opt-in
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`collective action pursuant to the FLSA, 29 U.S.C. § 216(b). The Nationwide FLSA Collective
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`Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this
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`action, their names and addresses are readily available from Defendant. Notice can be provided
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`to the Nationwide FLSA Collective Plaintiffs via first class mail to the last address known to
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`Defendant.
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`5
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 6 of 20
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`RULE 23 CLASS ALLEGATIONS
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`19.
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`Plaintiff CAICEDO brings claims for relief pursuant to the Federal Rules of Civil
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`Procedure (“F.R.C.P.”) Rule 23, on behalf of all non-managerial employees who engaged or
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`facilitated in the enrollment and/or recertification of clients (including but not limited to all non-
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`managerial Retention Associates, Facilitated Enrollers, Medicaid Representatives outside of New
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`York City, and all Sales Representative, Field Sales Representative, and Inside Sales
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`Representative employees within New York City and throughout the United States) employed by
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`Defendant on or after the date that is six (6) years before the filing of the Complaint in this case
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`as defined herein (the “Class Period”).
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`20.
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`All said persons, including Plaintiff CAICEDO, are referred to herein as the
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`“Class” or “Class Members.” The Class Members are readily ascertainable. The number and
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`identity of the Class Members are determinable from the records of Defendant. The hours
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`assigned and worked, the position held, and the rates of pay for each Class Member are also
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`determinable from Defendant’s records. For purposes of notice and other purposes related to this
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`action, their names and addresses are readily available from Defendant. Notice can be provided
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`by means permissible under F.R.C.P. 23.
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`21.
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`The proposed Class is so numerous that a joinder of all members is impracticable,
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`and the disposition of their claims as a class will benefit the parties and the Court. Although the
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`precise number of such persons is unknown, the facts on which the calculation of that number
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`are presently within the sole control of Defendant, there is no doubt that there are more than forty
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`(40) members of the Class.
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`22.
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`Plaintiff’s claims are typical of those claims, which could be alleged by any
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`member of the Class, and the relief sought is typical of the relief, which would be sought by each
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 7 of 20
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`member of the Class in separate actions. All the Class Members were subject to the same
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`corporate practices of Defendant, as alleged herein, of improperly classifying non-exempt
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`employees as exempt, failing to pay overtime compensation, failing to provide proper wage
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`statements, and failing to provide proper wage and hour notices. Defendant’s corporate-wide
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`policies and practices affected all Class Members similarly, and Defendant benefited from the
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`same type of unfair and/or wrongful acts as to each Class Member. Plaintiff and other Class
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`Members sustained similar losses, injuries and damages arising from the same unlawful policies,
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`practices and procedures.
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`23.
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`Plaintiff is able to fairly and adequately protect the interests of the Class and has
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`no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced
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`and competent in both class action litigation and employment litigation and have previously
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`represented Plaintiff in wage and hour cases.
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`24.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of the controversy – particularly in the context of the wage and hour litigation
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`where individual Class Members lack the financial resources to vigorously prosecute a lawsuit
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`against a corporate defendant. Class action treatment will permit a large number of similarly
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`situated persons to prosecute common claims in a single forum simultaneously, efficiently, and
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`without the unnecessary duplication of efforts and expense that numerous individual actions
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`engender. Because losses, injuries and damages suffered by each of the individual Class
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`Members are small in the sense pertinent to a class action analysis, the expenses and burden of
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`individual litigation would make it extremely difficult or impossible for the individual Class
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`Members to redress the wrongs done to them. On the other hand, important public interests will
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`be served by addressing the matter as a class action. The adjudication of individual litigation
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 8 of 20
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`claims would result in a great expenditure of Court and public resources; however, treating the
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`claims as a class action would result in a significant saving of these costs. The prosecution of
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`separate actions by individual members of the Class would create a risk of inconsistent and/or
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`varying adjudications with respect to the individual members of the Class, establishing
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`incompatible standards of conduct for Defendant and resulting in the impairment of Class
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`Members’ rights and the disposition of their interests through actions to which they were not
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`parties. The issues in this action can be decided by means of common, class-wide proof. In
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`addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently
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`manage this action as a class action.
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`25.
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`Defendant and other employers throughout the United States violate state labor
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`laws. Current employees are often afraid to assert their rights out of fear of direct or indirect
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`retaliation. Former employees are fearful of bringing claims because doing so can harm their
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`employment, future employment, and future efforts to secure employment. Class actions provide
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`Class Members who are not named in the Complaint a degree of anonymity, which allows for the
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`vindication of their rights while eliminating or reducing these risks.
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`26.
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`There are questions of law and fact common to the Class which predominate over
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`any questions affecting only individual Class Members, including:
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`(a) Whether Defendant employed Plaintiff and Class Members within the
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`meaning of the state labor laws;
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`(b) What are and were the policies, practices, programs, procedures, protocols
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`and plans of Defendant regarding the types of work and labor for which
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`Defendant did not pay the Class Members properly;
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`(c) At what common rate, or rates subject to common methods of calculation,
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`was and are Defendant required to pay Plaintiff and Class Members for their
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`work;
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`(d) Whether Defendant properly notified Plaintiff and Class Members of their
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`pay rates;
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`(e) Whether Defendant paid Plaintiff and Class Members the proper overtime
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`compensation;
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`(f) Whether Defendant misclassified Plaintiff and Class Members as exempt
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`from overtime;
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`(g) Whether Defendant provided proper wage statements to Plaintiff and Class
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`Members; and
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`(h) Whether Defendant provided proper wage and hour notices to Plaintiff and
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`Class Members.
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`STATEMENT OF FACTS
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`27.
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`In or about June 1996, Defendant hired Plaintiff EUGENIA CAICEDO to work
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`as a Field Sales Representative in Anthem’s Medicare Department.
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`28.
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`In this position, Plaintiff CAICEDO called existing and potential new clients to
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`gather additional information that was missing from the clients’ applications or that was required
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`by the government for Medicare and long-term care services. She was assigned regions of the
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`country to focus her client calls to complete her work. In September 2018, at the end of her
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`employment, Defendant paid Plaintiff CAICEDO about $75,000.00 per year plus commission to
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`perform these duties.
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`29.
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`Plaintiff has a quota for signing up customers. To meet her production quota, she
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`needed to sign up at least forty-five (45) members a month, during the open enrollment period,
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`between October 15 and December 7 of each year. During the rest of the year, she had to sign up
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`twelve (12) additional members per month. The progress of meeting these quotas was reviewed
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`every three months. In order to meet these quotas throughout the year, Plaintiff CAICEDO
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`typically had to work 70 hours per week, with approximately 30 hours overtime per week. She
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`worked from home to complete this additional work.
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`30.
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`Deborah Younger was Plaintiff’s manager. She continuously told Plaintiff to
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`“take classes to fix her accent.” The harassment lasted her entire employment period on at least a
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`monthly basis.
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`31.
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`Plaintiff’s manager, Deborah Younger, also made comments about the age of
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`candidates for employment at their workplace. While in a process of doing interviews, Deborah
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`Younger told Plaintiff, “This candidate is good, but he’s aging. We can’t hire old people; they
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`have no energy.” Many candidates were not hired on these grounds. Plaintiff feared, as she was,
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`older than many of the other employees, she was at risk of her job because of her age and that
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`Defendants would be seeking any excuse to terminate her.
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`32.
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`In or about September 2018, Plaintiff CAICEDO took a leave of absence for
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`medical purposes for 30 days. Plaintiff’s manager, Deborah Younger, would call her by phone
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`during her leave absence. The frequency of these calls were about twice a week. When plaintiff
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`objected, Younger would reply: “Are you dead? I don’t care if you’re sick. Come back ASAP.”
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`Plaintiff called the human resources department of Anthem to complain about these calls. An
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`individual from Human Resources reprimanded Younger for this behavior.
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`33.
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`In retaliation for her complaint, when Plaintiff returned to work, Younger
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`assigned Plaintiff regions of the country to make calls that were remote areas. Among employees
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`of Anthem, it was well known that these were more difficult areas to sign up members and
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`hardly generated any sales. Plaintiff believes this was done in order to make her face
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`consequences for not meeting her quotas when she was on medical leave, and for complaining
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`about Deborah Younger for making Plaintiff come back to work when she was out for medical
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`leave. . Eventually, Plaintiff did face such consequences because of her low sales as a result of
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`working solely on remote areas as assigned. She was then fired in or about September 2018. Her
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`termination was also discriminatory because other people who didn’t meet quotas were not so
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`quickly summarily fired; but because of her age and retaliation against her, Plaintiff faced
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`insurmountable odds to keep her job.
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`34.
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`Throughout her employment with Defendant, Plaintiff regularly worked more
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`than forty (40) hours per week. Due to company pressure to produce and because it was not
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`possible to meet her required quota during the scheduled hours from 9 am to 5 pm, 5 days a
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`week, she had no choice but to engage in sales activities with clients on the phone after hours,
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`including on weekends. Although she was working overtime, she was never paid overtime.
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`Similarly, Nationwide FLSA Collective Plaintiffs and Class Members regularly worked over
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`forty (40) hours per week but Defendant failed to pay them the required overtime premium
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`compensation.
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`35.
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`Defendant knowingly and willfully operated its business with a policy of not
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`paying either the FLSA overtime rate (of time and one-half) or the state overtime rate (of time
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`and one-half) to Plaintiff, Nationwide FLSA Collective Plaintiffs and Class Members for all
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`hours worked in excess of forty (40) hours per week by improperly misclassifying them as
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`exempt.
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`36.
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`Defendant knowingly and willfully operated its business with a policy of not
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`providing wage statements to Plaintiff, Nationwide FLSA Collective Plaintiffs and Class
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`Members that list the accurate rates of pay and regular and overtime hours worked per week, as
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`required by the NYLL and applicable state labor laws.
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`37.
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`Defendant knowingly and willfully operated its business with a policy of not
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`providing wage and hour notices that list the accurate rates of pay and regular and overtime
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`hours worked per week to Plaintiff, Nationwide FLSA Collective Plaintiffs and Class Members,
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`in violation of the state wage and hour law.
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`38.
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`Plaintiff retained Lee Litigation Group, PLLC to represent Plaintiff, Nationwide
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`FLSA Collective Plaintiffs and Class Members in this litigation and has agreed to pay the firm a
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`reasonable fee for its services.
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`STATEMENT OF CLAIM
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`COUNT I
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`VIOLATION OF THE FAIR LABOR STANDARDS ACT
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`ON BEHALF OF PLAINTIFFS AND NATIONWIDE FLSA COLLECTIVE
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`PLAINTIFFS
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`39.
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`Plaintiff realleges and reavers by reference all allegations in the preceding
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`paragraphs of this class and collective action Complaint as if fully set forth herein.
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`40.
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`At all relevant times, Defendant was and continues to be an employer engaged in
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`interstate commerce and/or the production of goods for commerce within the meaning of the
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`FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiff and Nationwide FLSA Collective
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`12
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`Plaintiffs are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and
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`207(a).
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`41.
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`At all relevant times, Defendant employed Plaintiff and Nationwide FLSA
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`Collective Plaintiffs within the meaning of the FLSA.
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`42.
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`43.
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`At all relevant times, Defendant had gross annual revenues in excess of $500,000.
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`At all relevant times, Defendant had a policy and practice of failing to pay
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`overtime compensation at the statutory rate of time and one-half to Plaintiff and Nationwide
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`FLSA Collective Plaintiffs for their hours worked in excess of forty (40) hours per workweek.
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`44.
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`Defendant knew of and/or showed a willful disregard for the provisions of the
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`FLSA as evidenced by its failure to compensate Plaintiff and Nationwide FLSA Collective
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`Plaintiffs at the statutory overtime premium of time and one-half for their hours worked in
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`excess of forty (40) hours per week when Defendant knew or should have known such was due.
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`45.
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`Defendant failed to properly disclose or apprise Plaintiff and Nationwide FLSA
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`Collective Plaintiffs of their rights under the FLSA.
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`46.
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`As a direct and proximate result of Defendant’s willful disregard of the FLSA,
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`Plaintiff and Nationwide FLSA Collective Plaintiffs are entitled to liquidated (i.e. double)
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`damages pursuant to the FLSA.
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`47.
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`Due to the intentional, willful and unlawful acts of Defendant, Plaintiff and
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`Nationwide FLSA Collective Plaintiffs suffered damages in an amount not presently
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`ascertainable of unpaid overtime compensation, plus an equal amount as liquidated damages.
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`48.
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`Records, if any, concerning the number of hours worked by Plaintiff and
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`Nationwide FLSA Collective Plaintiffs and the actual compensation paid to Plaintiff and
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`Nationwide FLSA Collective Plaintiffs are in the possession and custody of Defendant. Plaintiff
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`intends to obtain these records by appropriate discovery proceedings to be taken promptly in this
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`case and, if necessary, will then seek leave of Court to amend this Complaint to set forth the
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`precise amount due.
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`49.
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`Plaintiff and Nationwide FLSA Collective Plaintiffs are entitled to an award of
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`their reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b).
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`COUNT II
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`VIOLATION OF THE NEW YORK LABOR LAW
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`ON BEHALF OF PLAINTIFFS AND CLASS MEMBERS
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`50.
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`Plaintiff realleges and reavers by reference all allegations in all the preceding
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`paragraphs of this class and collective action Complaint as if fully set forth herein.
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`51.
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`At all relevant times, Plaintiff and New York Class Members were employed by
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`Defendant within the meaning of the New York Labor Law §§ 2 and 651.
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`52.
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`Defendant knowingly and willfully violated Plaintiff’s and New York Class
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`Members’ rights by failing to pay them the proper overtime compensation at rates of not less
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`than one and one-half times the regular rate of pay for each hour worked in excess of forty (40)
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`hours in a workweek.
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`53.
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`Defendant knowingly and willfully failed to provide proper wage and hour
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`notices to Plaintiff and New York Class Members, as required by New York Labor Law §
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`195(1).
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`54.
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`Defendant knowingly and willfully failed to provide proper wage statements to
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`Plaintiff and New York Class Members with every wage payment, as required by New York
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`Labor Law § 195(3).
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`55.
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`Due to Defendant’s New York Labor Law violations, Plaintiff and New York
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`Class Members are entitled to recover from Defendant their unpaid overtime compensation,
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`damages for unreasonably delayed payments, statutory penalties, liquidated damages, reasonable
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`attorneys’ fees and costs and disbursements of the action, pursuant to New York Labor Law.
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`COUNT III
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`VIOLATION OF APPLICABLE STATE WAGE AND HOUR LAWS
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`56.
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`Plaintiff realleges and reavers by reference all allegations in all the preceding
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`paragraphs of this class and collective action Complaint as if fully set forth herein.
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`57.
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`At all relevant times, Plaintiff and Class Members were employed by Defendant
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`within the meaning of the applicable state wage and hour laws.
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`58.
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`Defendant knowingly and willfully violated Plaintiff’s and Class Members’ rights
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`by failing to pay them the proper overtime compensation at rates of not less than one and one-
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`half times the regular rate of pay for each hour worked in excess of forty (40) hours in a
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`workweek.
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`59.
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`Defendant knowingly and willfully failed to provide proper wage statements and
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`notices to Plaintiff and Class Members, as required under the applicable state wage and hour
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`laws.
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`60.
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`Due to Defendant’s state law violations, Plaintiff and Class Members are entitled
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`to recover from Defendant their unpaid overtime compensation, damages for unreasonably
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`delayed payments, statutory penalties, liquidated damages, reasonable attorneys’ fees and costs
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`and disbursements of the action.
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 16 of 20
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`COUNT IV
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`VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW
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`61.
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`Plaintiff realleges and reavers by reference all allegations in all the preceding
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`paragraphs of this class and collective action Complaint as if fully set forth herein.
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`62.
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`Plaintiff EUGENIA CAICEDO is an employee and a qualified person within the
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`meaning of the NYSHRL and Defendant is a covered employer under the NYSHRL.
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`63.
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`Defendant violated Plaintiff’s statutory protected rights under the NYSHRL, New
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`York Executive Law § 296, by subjecting Plaintiff to a hostile work environment.
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`64.
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`Defendant’s conduct was intentional, malicious, willful or in reckless disregard of
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`Plaintiff’s protected rights under the NYSHRL.
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`65.
`
`As a result of Defendant’s unlawful employment practices, Plaintiff CAICEDO
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`sustained injury, including economic damages, the past and future physical and emotional
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`distress and the costs of bringing this action.
`
`66.
`
`Due to Defendant’s violation under the NYSHRL, based on discrimination on the
`
`basis of age, Plaintiff CAICEDO is entitled to recover from Defendant: (1) an injunction
`
`ordering Defendant to cease its discriminatory practices as described herein; (2) back pay; and
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`(3) compensatory damages.
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`COUNT V
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`VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
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`67.
`
`Plaintiff realleges and reavers by reference all allegations in all the preceding
`
`paragraphs of this class and collective action Complaint as if fully set forth herein.
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`68.
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`Plaintiff CAICEDO is an employee and a qualified person within the meaning of
`
`the NYCHRL and Defendant is a covered employer under the NYCHRL.
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 17 of 20
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`69.
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`Defendant violated Plaintiff CAICEDO’s statutory protected rights under the
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`NYCHRL, Administrative Code of the City of New York § 8-107, by subjecting Plaintiff
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`CAICEDO to a hostile work environment.
`
`70.
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`Defendant’s conduct was intentional, malicious, willful or in reckless disregard of
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`Plaintiff CAICEDO’s protected rights under the NYCHRL.
`
`71.
`
`As a result of Defendant’s unlawful employment practices, Plaintiff CAICEDO
`
`sustained injury, including economic damages, the past and future physical and emotional
`
`distress and the costs of bringing this action.
`
`72.
`
`Due to Defendant’s violation under the NYCHRL based on discrimination on the
`
`basis of age, Plaintiff CAICEDO is entitled to recover from Defendant: (1) back pay; (2)
`
`compensatory damages; (3) punitive damages; and (4) attorneys’ fees and costs.
`
`COUNT VI
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`VIOLATION OF THE FAMILY AND MEDICAL LEAVE ACT
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`73.
`
`Plaintiff EUGENIA CAICEDO realleges and reavers Paragraph 1 through 140 of
`
`this Class and Collective action Complaint as if fully set forth herein.
`
`74.
`
`The FMLA states in pertinent part: “an eligible employee shall be entitled to a
`
`total of 12 workweeks of leave during any 12-month period . . . Because of a serious health
`
`condition that makes the employee unable to perform the functions of the position of such
`
`employee.” 29 U.S. Code § 2612(a)(1)(d).
`
`75.
`
`Section 2611(11) states in pertinent part: “the term ‘serious health condition’
`
`means an illness, injury, impairment, or physical or mental condition that involves—(A)
`
`inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing
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`treatment by a health care provider.”
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 18 of 20
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`76.
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`Defendants’ actions constitute a violation of Section 2614(c)(1) of the FMLA,
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`which states: “Except as provided in paragraph (2), during any period that an eligible employee
`
`takes leave under section 2612 of this title, the employer shall maintain coverage under any
`
`"group health plan" (as defined in section 5000(b)(1) of title 26) for the duration of such leave at
`
`the level and under the conditions coverage would have been provided if the employee had
`
`continued in employment continuously for the duration of such leave.”
`
`77.
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`Defendants are subject to the FMLA as a covered employer. Defendants are a
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`covered employer because they employ 50 or more employees for each working day during each
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`of the 10 or more calendar workweeks in the year preceding their violation of Plaintiff
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`EUGENIA CAICEDO’s rights under the FMLA.
`
`78.
`
`Plaintiff EUGENIA CAICEDO is an eligible employee under the FMLA because
`
`she had worked at least 1,250 hours in the 12 months preceding the request for leave.
`
`79.
`
`Defendants willfully violated Plaintiff EUGENIA CAICEDO’s rights under the
`
`FMLA by terminating his employment benefits including health insurance, group life insurance
`
`and disability insurance.
`
`80.
`
`Plaintiff EUGENIA CAICEDO seeks all applicable remedies under the law,
`
`including compensatory damages, punitive damages, back pay, front pay, and attorney’s fees and
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`costs.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff on behalf of themselves, Nationwide FLSA Collective Plaintiffs
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`and Class Members, respectfully requests that this Court grant the following relief:
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`a. A declaratory judgment that the practices complained of herein are unlawful under
`
`the FLSA and the applicable state laws;
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`Case 1:21-cv-05642 Document 1 Filed 06/29/21 Page 19 of 20
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`b. A declaratory judgment that the practices complained of herein are unlawful under
`
`the NYSHRL and NYCHRL;
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`c. An injunction against Defendant and their officers, agents, successors, employees,
`
`representatives and any and all persons acting in concert with them as provided by
`
`law, from engaging in each of the unlawful practices, policies and patterns set forth
`
`herein;
`
`d. An award of unpaid overtime compensation due under the FLSA and the applicable
`
`state laws;
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`e. An award of statutory penalties as a result of Defendant’s failure to comply with the
`
`wage notice and wage statement requirements under the applicable state laws;
`
`f. An award of liquidated and/or punitive damages as a result of Defendant’s willful
`
`failure to pay overtime compensation, pursuant to the FLSA and/or and the
`
`applicable state laws;
`
`g. An order awarding relief for Defendant’s discriminatory conduc