UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-cv-23584-DPG

TRACELEY BOOTLE, 

 Plaintiff, 

v. 

AMERICAN BANKERS LIFE ASSURANCE 

COMPANY OF FLORIDA, 

 Defendant. 

______________________________________/ 

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES 

TO PLAINTIFF’S FIRST AMENDED COMPLAINT 

Defendant American Bankers Life Assurance Company of Florida (“ABLAC” or 

“Defendant”), through undersigned counsel, answers Plaintiff’s First Amended Complaint (“Am. 

Complaint”) (ECF No. 26) by denying each and every allegation contained in the First Amended 

Complaint that is not expressly admitted below, and by responding to the individually numbered 

paragraphs of the First Amended Complaint as follows: 

GENERAL ALLEGATIONS1

1. ABLAC admits only that Plaintiff purports to bring this action for damages. 

ABLAC admits that jurisdiction in the United States District Court for the Southern District of 

Florida is the appropriate jurisdiction for the claims asserted in the Am. Complaint. 

 1

 The section headings in the First Amended Complaint are used in this Answer for 

organization and convenience only and are not to be construed as an admission by ABLAC as to 

any factual inference contained in the First Amended Complaint. Any allegations or inferences 

contained in the First Amended Complaint’s headings are expressly denied.

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2. ABLAC admits the allegations of paragraph 2 based solely on the date of birth 

stated in Plaintiff’s charge of age discrimination filed with the Equal Employment Opportunity 

Commission. ABLAC lacks information sufficient to admit or deny the Plaintiff’s date of birth 

without further investigation. 

3. ABLAC lacks information sufficient to admit or deny the Plaintiff’s place of 

residence without further investigation. ABLAC admits that Plaintiff was employed by ABLAC 

in Miami, Dade-County, Florida. 

4. Admitted. 

5. Admitted. 

6. Admitted. 

7. ABLAC admits only that venue is proper within Miami-Dade County, Florida. 

ABLAC denies the remaining allegations in paragraph 7. 

8. ABLAC admits only that jurisdiction for alleged violations of the Fair Labor 

Standards Act (“FLSA”) is conferred on the United States District Court for the Southern District 

of Florida. ABLAC denies that it violated the FLSA and further denies that Plaintiff has any viable 

claims against ABLAC. 

9. ABLAC admits that Plaintiff filed a timely claim for alleged age discrimination 

with the Equal Employment Opportunity Commission. 

10. ABLAC admits only that the conditions precedent for filing a claim of age 

discrimination have been met. ABLAC denies the remaining allegations in paragraph 10. 

11. Admitted. 

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12. ABLAC lacks information sufficient to admit or deny whether Plaintiff suffered a 

lapse in insurance coverage without further investigation. The remaining allegations of paragraph 

12 are denied. 

13. Denied. The Plan Administrator of the group health plan benefits is Assurant, Inc. 

14. ABLAC lacks information sufficient to admit or deny whether Plaintiff suffered a 

lapse in insurance coverage and paid for medical visits and medications without further 

investigation. The remaining allegations of paragraph 14 are denied. 

FACTUAL ALLEGATIONS 

15. Denied. 

16. Admitted. 

17. Denied. 

18. ABLAC admits only that Plaintiff was in a class of persons protected under the 

Florida Civil Rights Act as someone above the age of forty (40) during the relevant time period. 

The remaining allegations of paragraph 18 are denied. 

19. ABLAC lacks information sufficient to admit or deny whether Plaintiff’s manager 

and team lead were outside of Plaintiff’s protected class during the relevant time period without 

further investigation. The remaining allegations of paragraph 19 are denied. 

20. Denied. 

21. ABLAC denies that Plaintiff was “exposed” to adverse treatment and, 

consequently, denies the allegation regarding similarly-situated employees. 

22. ABLAC admits only that Plaintiff was given a written warning for poor 

performance. The remaining allegations of paragraph 22 are denied. 

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23. ABLAC admits only that Plaintiff was given a written warning for poor 

performance. The document speaks for itself. The remaining allegations of paragraph 23 are 

denied. 

24. ABLAC admits only that Plaintiff was given a written warning for poor 

performance and that Plaintiff was terminated on February 6, 2020. The document speaks for 

itself. The remaining allegations of paragraph 24 are denied. 

25. ABLAC lacks information sufficient to admit or deny whether Plaintiff inquired 

about COBRA Notice and Coverage on the date of her termination without further investigation. 

26. ABLAC lacks information sufficient to admit or deny whether Plaintiff was 

informed that she would be receiving her COBRA Notice via U.S. mail without further 

investigation. The remaining allegations of paragraph 26 are denied. 

27. Denied. 

28. ABLAC lacks information sufficient to admit or deny the allegations of paragraph 

28 without further investigation. ABLAC admits only that Plaintiff was classified as an exempt 

employee and was not entitled to overtime compensation. 

29. ABLAC admits only that Plaintiff was classified as an exempt employee and was 

not entitled to overtime compensation. 

30. Paragraph 30 states a legal conclusion to which no response is required. 

31. Paragraph 31 states a legal conclusion and/or Plaintiff’s opinion of fact to which no 

response is required. 

32. Paragraph 32 states a legal conclusion to which no response is required. 

33. Paragraph 33 states a legal conclusion to which no response is required. 

34. Paragraph 34 states a legal conclusion to which no response is required. 

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35. Paragraph 35 states a legal conclusion to which no response is required. 

36. Denied. 

37. ABLAC denies that it failed to send Plaintiff a COBRA notice. ABLAC is without 

knowledge as to the remaining allegations in paragraph 37 and therefore denies same. 

38. ABLAC denies that it failed to send Plaintiff a COBRA notice and that Plaintiff 

could not make an informed decision about health insurance. ABLAC is without knowledge as 

to the remaining allegations in paragraph 38 and therefore denies same. 

39. ABLAC denies that it failed to send Plaintiff a COBRA notice and that Plaintiff 

could not make an informed decision about health insurance. ABLAC is without knowledge as to 

the remaining allegations in paragraph 39 and therefore denies same. 

40. ABLAC admits only that Plaintiff was a plan participant and was eligible to receive 

COBRA benefits at the time of Plaintiff’s termination until the end of her maximum COBRA 

continuation period. 

41. Denied. 

42. Denied. 

COUNT I 

AGE DISCRIMINATION IN VIOLATION OF THE FLORIDA CIVIL RIGHTS ACT 

43. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

44. Admitted. 

45. Denied. 

46. Denied. 

47. Denied. 

48. Denied. 

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49. Paragraph 49 states a legal conclusion to which no response is required. ABLAC 

denies that it has violated the FCRA and further denies that Plaintiff has any viable claims against 

ABLAC. 

50. Denied. 

51. Denied. 

52. Denied. 

53. Denied. 

54. Denied. 

55. Denied. 

56. Denied. 

57. ABLAC is without knowledge as to the allegations in Paragraph 57 and therefore 

denies same. ABLAC further denies any knowledge of who the “him” referenced in paragraph 57 

refers to. 

58. ABLAC is without knowledge as to the remaining allegations in Paragraph 58 and 

therefore denies same. 

COUNT II 

FAILURE TO PAY WAGES IN VIOLATION OF THE FLSA

59. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

60. ABLAC admits only that Plaintiff purports to bring an action for alleged violations 

of the FLSA. ABLAC denies that it has violated the FLSA and further denies that Plaintiff has 

any viable claims against ABLAC. 

61. Admitted. 

62. Admitted. 

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63. Admitted. 

64. ABLAC admits only that Plaintiff seeks to recover alleged unpaid wages for a 

period dating 3 years from the filing of the Am. Complaint, but denies that Plaintiff’s FLSA claim 

is timely or that application of a 3-year limitations period is appropriate. 

65. Denied. 

COUNT III 

FAILURE TO PROVIDE TIMELY NOTICE OF CONTINUING 

COVERAGE IN VIOLATION OF SECTION 502 OF ERISA AND 

29 U.S.C. §§ 1132, 1163(a)(1), (2) and (4), 1166(a) AND 29 C.F.R. §2590.606-4 

66. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

67. Paragraph 67 states a legal conclusion to which no response is required. 

68. Denied. 

69. Denied. 

70. Paragraph 70 states a legal conclusion to which no response is required. 

71. ABLAC admits that it is in the Court’s discretion to award Plaintiff the statutory 

rate under the pertinent statutes, but denies that Plaintiff’s COBRA claim will allow Plaintiff to 

recover such statutory damages. 

72. Denied. 

73. ABLAC admits only that Plaintiff was a plan participant and was eligible to receive 

COBRA benefits at the time of Plaintiff’s termination until the end of her maximum COBRA 

continuation period. The remaining allegations of paragraph 73 are denied. 

74. Denied. 

75. ABLAC admits that ABLAC employees were provided a health insurance plan 

sponsored and administered by Assurant, Inc. 

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76. Denied. The Plan Administrator of the group health plan benefits is Assurant, Inc. 

The remaining allegations of Paragraph 76 state a legal conclusion to which no response is 

required. 

77. Denied. 

78. Denied. 

79. Denied. 

80. Denied. 

81. ABLAC denies that the COBRA notices that were sent to the Plaintiff were either 

confusing or misleading. 

82. Denied. 

83. ABLAC denies the introductory allegations of paragraph 83. ABLAC further 

denies the remaining allegations of paragraph 83 as incomprehensible. 

84. Denied. 

85. Denied. 

86. Denied. 

87. Denied. 

88. Denied. 

89. ABLAC is without knowledge as to the allegations in paragraph 89 and therefore 

denies same. ABLAC further objects to paragraph 89 to the extent it states a legal conclusion 

and/or Plaintiff’s opinion of fact to which no response is required. 

90. ABLAC is without knowledge as to the allegations in paragraph 90 and therefore 

denies same. 

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91. ABLAC is without knowledge as to the allegations in paragraph 91 and therefore 

denies same. 

92. Denied. 

93. Denied. 

94. ABLAC denies that it has violated the COBRA and further denies that Plaintiff has 

any viable claims against ABLAC. 

95. Paragraph 95 states a legal conclusion to which no response is required. 

96. Denied. 

97. Denied. 

98. Denied. 

99. Denied. Paragraph 99 is also denied to the extent it states a legal conclusion to 

which no response is required. ABLAC denies that it has violated the COBRA and further denies 

that Plaintiff has any viable claims against ABLAC. 

100. Denied. 

COUNT IV 

FAILURE TO PROVIDE THE ADDRESS TO WHICH PAYMENTS 

SHOULD BE SENT IN VIOLATION OF 29 C.F.R. § 2590.606-4(b)(4)(xii) 

101. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

102. Denied. Paragraph 102 is also denied to the extent it states a legal conclusion to 

which no response is required. ABLAC denies that it has violated the COBRA election notice 

requirements and further denies that Plaintiff has any viable claims against ABLAC. 

103. Denied. 

104. Denied. 

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105. Denied. 

106. Denied. Paragraph 106 is also denied to the extent it states a legal conclusion to 

which no response is required. ABLAC denies that it has violated the COBRA election notice 

requirements and further denies that Plaintiff has any viable claims against ABLAC. 

107. Denied. 

COUNT V 

FAILURE TO INCLUDE EXPLANATORY 

INFORMATION IN VIOLATION OF 29 C.F.R. § 2590.606-4(b)(4)(vi) 

108. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

109. Denied. 

110. Denied. 

COUNT VI 

FAILURE TO PROVIDE COBRA NOTICE WRITTEN IN A MANNER 

CALCULATED “TO BE UNDERSTOOD BY THE AVERAGE 

PLAN PARTICIPANT” IN VIOLATION OF 29 C.F.R. §2590.606-4(b)(4) 

111. ABLAC repeats and incorporates its responses to paragraphs 1-42 as if set forth 

herein. 

112. Denied. 

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to state a cause of action against ABLAC for violation of the 

Florida Civil Rights Act of 1992. 

2. All actions taken by ABLAC with regard to Plaintiff were based on legitimate and 

non-retaliatory business factors and not related to any impermissible intent or criteria. ABLAC 

terminated Plaintiff due to repeated, well-documented performance issues. 

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3. Plaintiff fails to state a cause of action against ABLAC pursuant to the Fair Labor 

Standards Act (FLSA). 

4. Plaintiff’s FLSA claim is barred by the applicable statute of limitations. Plaintiff’s 

claim is governed by a two-year limitations period, and suit was filed after the expiration of the 

limitations period. 

5. Any alleged violation of the FLSA by Defendant was not willful, and therefore a 

three-year limitations period is inapplicable. 

6. Plaintiff’s FLSA claim is barred by the fact that Plaintiff did not work over 40 hours 

per week for Defendants. 

7. Plaintiff’s FLSA claim is barred because Plaintiff is a non-exempt employee who 

qualifies for the administrative exemption set forth in 29 C.F.R. § 541.200 et seq. and/or the 

executive exemption pursuant to 29 C.F.R. § 541.100 et seq. The Plaintiff’s primary duty was the 

performance of office of non-manual work directly related to the management or general business 

operations of ABLAC, which included the exercise of discretion and independent judgment with 

respect to matters of significance. Plaintiff customarily and routinely directed the work of her 

direct reports. 

8. If Defendant is found to have violated Plaintiff’s rights, which Defendant denies, 

such violation was not done with malice or reckless indifference to the rights of Plaintiff, but in 

good faith, for good cause, and based on a reasonable belief that Defendant was and is in 

compliance with all applicable wage and compensation requirements, or in good faith conformity 

with written interpretations of the Department of Labor Wage Hour division. Any claims for 

liquidated damages are, therefore, without merit. 

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9. Plaintiff is barred and estopped from asserting claims for overtime pay as she never 

provided notice or made ABLAC aware that she ever worked overtime or was improperly 

classified as an exempt employee, and ABLAC was not aware nor did it have constructive 

knowledge that Plaintiff worked overtime. 

10. Plaintiff’s COBRA claims are barred because the Am. Complaint fails to state 

claims against ABLAC upon which relief may be granted. 

11. Plaintiff’s COBRA claims are barred, in whole or in part, by her lack of Article III 

standing. 

12. Plaintiff’s COBRA claims are barred, in whole or in part, by her lack of standing 

under the Employee Retirement Income Security Act of 1974 (“ERISA”). 

13. Plaintiff’s COBRA claims are barred, in whole or in part, by the applicable statute 

of limitations. 

14. Plaintiff’s claims are barred by the doctrine of waiver because Plaintiff admits that 

ABLAC notified Plaintiff that information regarding her COBRA continuation coverage would be 

mailed to her, but she failed to contact ABLAC or the plan administrator about the Notice after 

allegedly not receiving such Notice. 

15. Plaintiff’s claims are barred by the doctrine of laches because Plaintiff has 

unreasonably delayed the filing of her original complaint by waiting over two-and-a-half years 

before doing so. 

16. Plaintiff’s claims are barred because ABLAC’s COBRA Notice is drafted to be 

understandable to the average participant and thus, complies with the COBRA notice 

requirements. 

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17. Plaintiff’s claims are barred because ABLAC’s COBRA Notice appropriately 

modified and supplemented the Department of Labor’s Model COBRA Election Notice, thus 

satisfying the notice content requirements. 

18. Plaintiff’s claims are barred because any informational injury that Plaintiff alleges 

does not establish an injury-in-fact that is traceable to ABLAC or Assurant, Inc. 

19. Plaintiff’s claims are barred because any purported technical deficiencies in the 

COBRA Notice at issue did not prevent Plaintiff from making a meaningful choice to elect or 

decline continuation coverage as a matter of law. 

20. Neither Plaintiff nor anyone else suffered a loss as a result of the actions or inactions 

of ABLAC. 

21. Plaintiff’s claims are barred, in whole or in part, by her failure to mitigate damages. 

22. ABLAC is entitled to its attorneys’ fees and costs for defending Plaintiff’s claims 

because Plaintiff’s claims have no basis in fact and are frivolous. 

ABLAC reserves the right to plead any additional defenses or affirmative defenses that 

may be revealed during the course of the litigation. 

 WHEREFORE, Defendant denies that Plaintiff is entitled to any relief in this cause, and 

respectfully requests that the Court enter judgment for American Bankers Life Assurance 

Company of Florida, as well as award the Defendant its attorneys’ fees and costs, to the extent 

permitted by law. 

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Dated: December 29, 2022 Respectfully submitted,

/s/ Irma Reboso Solares 

Irma Reboso Solares (FL Bar No. 797073) 

isolares@carltonfields.com 

Sean W. Hughes (FL Bar No. 1038714) 

shughes@carltonfields.com 

CARLTON FIELDS, P.A. 

2 MiamiCentral, Suite 1200 

700 NW 1st Avenue 

Miami, Florida 33136 

Telephone: 305 530-0050 

Facsimile: 305 530-0055 

Attorneys for Defendant American Bankers Life 

Assurance Company of Florida

 

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CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of December, 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF, which will generate a Notice of Electronic 

Filing to all parties in the case who are registered users of the CM/ECF system. 

/s/ Irma Reboso Solares 

131570668 

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