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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`RICHMOND DIVISION
`
`
`WINIFRED MIDKIFF, on behalf of herself and
`all others similarly situated,
`
`
`Plaintiffs,
`
` v.
`
`THE ANTHEM COMPANIES, INC., ANTHEM
`HEALTH PLANS OF VIRGINIA, INC. d/b/a
`ANTHEM BLUE CROSS AND BLUE SHIELD,
`and AMERIGROUP CORPORATION,
`
`
`Defendants.
`
`
`
`
`Case No. 3:22-cv-00417
`
`
`COLLECTIVE ACTION
`COMPLAINT
`
`
`
`
`
`PRELIMINARY STATEMENT
`
`This is a collective action brought by individual and representative Plaintiff
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`1.
`
`Winifred Midkiff (“Plaintiff”), on behalf of herself and all others similarly situated (the “putative
`
`FLSA Collective”), to recover overtime pay from The Anthem Companies, Inc., and two other
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`subsidiaries of Anthem, Anthem Health Plans of Virginia, Inc. d/b/a Anthem Blue Cross and Blue
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`Shield and AMERIGROUP Corporation (collectively, “Anthem” or “Defendants”).
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`2.
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`Plaintiff brings this action on behalf of herself and all similarly situated individuals
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`for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”).
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`3.
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`Plaintiff’s claim is asserted as a state-wide collective action under the FLSA,
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`29 U.S.C. § 216(b).
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`4.
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`The putative “FLSA Collective” is made up of all persons who are or have been
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`employed by Defendants in Virginia as Medical Management Nurses, Utilization Management
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`Nurses, Utilization Review Nurses, Nurse Reviewers, Nurse Reviewer Associates, or other similar
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`1
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`
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`positions who were paid a salary and treated as exempt from overtime laws, and whose primary
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`job was to perform medical necessity reviews during the applicable statutory period.
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`5.
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`Plaintiff and those similarly situated routinely work more than forty (40) hours in a
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`workweek but are not paid an overtime premium for their overtime hours.
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`JURISDICTION AND VENUE
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`This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 to hear this
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`6.
`
`Complaint and to adjudicate these claims because this action is brought under the FLSA.
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`7.
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`Venue is proper in the United States District Court for the Eastern District of
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`Virginia pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions giving
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`rise to the claims occurred in this district.
`
`PARTIES
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`Defendant The Anthem Companies, Inc. is a foreign limited liability company with
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`8.
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`its principal place of business located at 220 Virginia Ave., Indianapolis, Indiana, 46204, United
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`States.
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`9.
`
`Defendant Anthem Health Plans of Virginia, Inc. is a Virginia corporation with its
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`principal place of business located at 2015 Staples Mill Rd., Richmond, VA, 23230-3108, United
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`States. The Anthem Health Plans of Virginia, Inc. does business under the fictitious name of
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`Anthem Blue Cross and Blue Shield.
`
`10.
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`Anthem Health Plans of Virginia, Inc., is a managed healthcare and insurance
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`company.
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`11.
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`Defendant AMERIGROUP Corporation is a Delaware corporation with its
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`principal place of business located at 4425 Corporation Ln., Virginia Beach, VA, 23462-3103,
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`United States.
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`
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`2
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`
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`12.
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`13.
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`14.
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`AMERIGROUP Corporation is a managed healthcare company.
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`Defendants are all subsidiaries of Anthem, Inc.
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`Anthem operates office locations in multiple states around the country, including
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`an office located in Chesapeake, Virginia.
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`15.
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`Plaintiff’s paystubs list The Anthem Companies, Inc. and its principal place of
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`business address as her employer.
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`16.
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`Upon information and belief, other similarly situated individuals’ paystubs list The
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`Anthem Companies, Inc. and its principal place of business address as their employer.
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`17.
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`Anthem is a multi-line health insurance company that provides managed care
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`programs and related services.
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`18.
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`According to its website, Anthem provides healthcare benefits to more than 74
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`million members nationwide and serves one in eight Americans through their affiliated medical
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`care coverage plans.
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`19.
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`Anthem operates in interstate commerce by, among other things, offering and
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`selling a wide array of products and services, including but not limited to, preferred provider
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`organizations, consumer-driven health plans,
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`traditional
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`indemnity, health maintenance
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`organizations, point-of-service, ACA public exchange and off-exchange products, administrative
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`services, Bluecard, Medicare plans, individual plans, Medicaid plans and other state-sponsored
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`programs, pharmacy products, life insurance, disability products, radiology benefit management,
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`personal health care guidance, dental, vision services and products, and Medicare administrative
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`operations to customers and consumers in multiple states across the country, including Virginia.
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`20.
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`Upon information and belief, Anthem’s gross annual sales made, or business done
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`has been in excess of $500,000.00 at all relevant times.
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`
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`3
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`21.
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`At all relevant times, Defendants are, and have been, “employers” 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. § 203(d).
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`22.
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`23.
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`Plaintiff Winifred Midkiff is an adult resident of Amelia County, Virginia.
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`Defendants employed Plaintiff as a Medical Management Nurse II from
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`approximately June 2014 to July 2017. Plaintiff’s claims were tolled when she opted-in to Laura
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`Canaday, et al. v. The Anthem Companies, Inc., case number 1:19-cv-01084-STA-jay on August
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`19, 2019.
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`24.
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`Plaintiff reported to Defendants’ Chesapeake, Virginia office for several weeks in
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`June 2014. Plaintiff then worked from her home in Amelia Court House, Virginia until the end of
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`her employment in July 2017.
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`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
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`At all times relevant herein, Defendants operated a willful scheme to deprive
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`25.
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`Plaintiff and others similarly situated of overtime compensation.
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`26.
`
`Plaintiff and the similarly situated individuals work or worked as Medical
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`Management Nurses, Utilization Management Nurses, Utilization Review Nurses, Nurse
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`Reviewers, Nurse Reviewer Associates, or in similar job titles, and were primarily responsible for
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`performing medical necessity reviews for Defendants.
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`27.
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`In conducting medical necessity reviews, Plaintiff and the other similarly situated
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`individuals’ primary job duty is non-exempt work consisting of reviewing medical authorization
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`requests submitted by healthcare providers against pre-determined guidelines and criteria for
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`insurance coverage and payment purposes.
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`
`
`4
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`
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`28.
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`Plaintiff and the similarly situated individuals are or were paid a salary with no
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`overtime pay.
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`29.
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`Plaintiff and the other similarly situated individuals are or were treated as exempt
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`from overtime laws, including the FLSA.
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`30.
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`Defendants suffered and permitted Plaintiff and the other similarly situated
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`individuals to work more than forty (40) hours per week without overtime pay.
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`31.
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`For example, between September 11, 2016, and September 17, 2016, Plaintiff
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`estimates that she worked approximately 52-55 hours and did not receive overtime pay for her
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`overtime hours.
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`32.
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`Defendants have been aware, or should have been aware, that Plaintiff and the other
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`similarly situated individuals performed non-exempt work that required payment of overtime
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`compensation. Defendants also required Plaintiff and the similarly situated individuals to work
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`long hours, including overtime hours, to complete all of their job responsibilities and meet
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`Defendants’ productivity standards.
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`33.
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`Defendants knew that Plaintiff and the other similarly situated individuals worked
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`unpaid overtime hours because Plaintiff and others complained about their long hours and the
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`workload. Specifically, when Plaintiff told her supervisor that she was working long hours, her
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`supervisor responded that her hands were tied and that Plaintiff should be more efficient with her
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`time.
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`34.
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`Although Defendants had a legal obligation to do so, Defendants did not make,
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`keep, or preserve adequate or accurate records of the hours worked by Plaintiff and the other
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`similarly situated individuals.
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`5
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`FLSA COLLECTIVE ACTION ALLEGATIONS
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`35.
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`Plaintiff restates and incorporates by reference the above paragraphs as if fully set
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`forth herein.
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`36.
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`37.
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`Plaintiff brings Count I individually and on behalf of the putative FLSA Collective.
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`Plaintiff files this action on behalf of herself and all other similarly situated
`
`individuals. The putative FLSA Collective is defined as follows:
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`All persons who worked as Medical Management Nurses, Utilization Management
`Nurses, Utilization Review Nurses, Nurse Reviewers, Nurse Reviewer Associates,
`or in similar job titles who were paid a salary and treated as exempt from overtime
`laws and were primarily responsible for performing medical necessity reviews for
`Defendants in Virginia at any time since three years prior to the filing of this
`Complaint through judgment.
`
`Plaintiff has consented in writing to be a part of this action pursuant to
`
`38.
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`29 U.S.C. § 216(b). Plaintiff’s signed consent form is attached hereto as Exhibit A. In addition,
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`to date, three (3) other individuals have consented in writing to be a part of this action. Their
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`consent forms are attached as Exhibit B.
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`39.
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`As this case proceeds, it is likely that other individuals will file consent forms and
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`join as “opt-in” plaintiffs.
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`40.
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`During the applicable statutory period, Plaintiff and the other similarly situated
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`individuals routinely worked in excess of forty (40) hours in a workweek without receiving
`
`overtime compensation for their overtime hours worked.
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`41.
`
`Defendants willfully engaged in a pattern of violating the FLSA, as described in
`
`this Complaint in ways including, but not limited to, requiring Plaintiff and the other similarly
`
`situated individuals to work excessive hours and failing to pay them overtime compensation.
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`42.
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`Defendants are liable under the FLSA for failing to properly compensate Plaintiff
`
`and the putative FLSA Collective. Accordingly, notice should be sent to the putative FLSA
`
`
`
`6
`
`
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`Collective. There are numerous similarly situated current and former employees of Defendants
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`who have suffered from Defendants’ practice of denying overtime pay, and who would benefit
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`from the issuance of court-supervised notice of this lawsuit and the opportunity to join. Those
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`similarly situated employees are known to Defendants and are readily identifiable through their
`
`records.
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`43.
`
`Plaintiff Midkiff and the individuals with consent forms attached at Exhibit B were
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`previously opt-in Plaintiffs in the FLSA collective action in the U.S. District Court for the Western
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`District of Tennessee titled Laura Canaday, et al. v. The Anthem Companies, Inc., case number
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`1:19-cv-01084-STA-jay. The Canaday court limited the scope of the conditionally certified
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`collective to individuals who worked for The Anthem Companies, Inc. within the state of
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`Tennessee.
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`CAUSES OF ACTION
`
`COUNT I – VIOLATION OF THE FAIR LABOR STANDARDS ACT
`FAILURE TO PAY OVERTIME
`(On Behalf of Plaintiff and the Putative FLSA Collective)
`
`Plaintiff restates and incorporates by reference the above paragraphs as if fully set
`
`44.
`
`forth herein.
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`45.
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`The FLSA, 29 U.S.C. § 207, requires employers to pay non-exempt employees
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`one and one-half times the regular rate of pay for all hours worked over forty (40) hours per
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`workweek.
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`46.
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`Defendants suffered and permitted Plaintiff and the other similarly situated
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`individuals to routinely work more than forty (40) hours in a workweek without overtime
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`compensation.
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`
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`7
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`47.
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`Defendants’ actions, policies, and practices described above violate the FLSA’s
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`overtime requirement by regularly and repeatedly failing to compensate Plaintiff and the other
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`similarly situated individuals their required overtime compensation.
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`48.
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`As the direct and proximate result of Defendants’ unlawful conduct, Plaintiff and
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`the other similarly situated individuals have suffered and will continue to suffer a loss of income
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`and other damages. Plaintiff and the other similarly situated individuals are entitled to liquidated
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`damages and attorneys’ fees and costs incurred in connection with this claim.
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`49.
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`By failing to accurately record, report, and/or preserve records of hours worked
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`by Plaintiff and the other similarly situated individuals, Defendants have failed to make, keep, and
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`preserve records with respect to each of their employees sufficient to determine their wages, hours,
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`and other conditions and practices of employment, in violation of the FLSA, 29 U.S.C. § 201, et
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`seq.
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`50.
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`The foregoing conduct, as alleged, constitutes a willful violation of the FLSA
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`within the meaning of 29 U.S.C. § 255(a). Defendants knew or showed reckless disregard for the
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`fact that their compensation practices were in violation of these laws.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, on behalf of herself and the putative FLSA Collective, prays for
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`judgment against Defendants as follows:
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`A.
`
`B.
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`C.
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`Designation of this action as a collective action on behalf of Plaintiff and
`those similarly situated, and prompt issuance of notice pursuant to 29 U.S.C.
`§ 216(b) to all those similarly situated, apprising them of the pendency of
`this action and permitting them to assert timely FLSA claims in this action
`by filing individual consent forms;
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`A finding that Plaintiff and the putative FLSA Collective are non-exempt
`employees entitled to protection under the FLSA;
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`A finding that Defendants violated the overtime provisions of the FLSA;
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`8
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`Respectfully Submitted,
`Winifred Midkiff, individually
`and on behalf of all others similarly situated
`
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`Judgment against Defendants in the amount of Plaintiff’s and the putative
`FLSA Collective’s unpaid back wages at the applicable overtime rates;
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`An award of all damages, liquidated damages, pre-judgment interest and
`post-judgment interest;
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`An award of attorneys’ fees and costs incurred in prosecuting this action;
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`Leave to add additional plaintiffs and/or state law claims by motion, the
`filing of written consent forms, or any other method approved by the Court;
`and
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`D.
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`E.
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`F.
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`G.
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`H.
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`For such other and further relief, in the law or equity, as this Court may deem
`appropriate and just.
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`DATED: June 3, 2022
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`By: /s/ Zev H. Antell___________
`
`Harris D. Butler (VSB No. 26483)
`
`Craig J. Curwood (VSB No. 43975)
`
`Zev H. Antell (VSB No. 74634)
`BUTLER CURWOOD, PLC
`140 Virginia Street, Suite 302
`Richmond, VA 23219
`Telephone: (804) 648-4848
`Fax: (804) 237-0413
`harris@butlercurwood.com
`craig@butlercurwood.com
`zev@butlercurwood.com
`
`NICHOLS KASTER, PLLP
`Rachhana T. Srey, MN Bar No. 340133*
`Caitlin Opperman, MN Bar No. 0399978*
`4700 IDS Center, 80 South Eighth Street
`Minneapolis, MN 55402
`Telephone: (612) 256-3200
`Facsimile: (612) 338-4878
`srey@nka.com
`copperman@nka.com
`* Pro hac vice forthcoming
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`Attorneys for Plaintiff
`and the Putative FLSA Collective
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`
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`9
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