Exhibit ‘F’

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DEFENDANTS’ ORIGINAL ANSWER AND DEFENSES PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SANDRA GUERRA,

Plaintiff,

v.

HUMANA and HUMANA GOVERNMENT 

BUSINESS, INC. d/b/a HUMANA,

Defendants.

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CIVIL ACTION NO. 5:21-cv-0882___________

DEFENDANTS’ ORIGINAL ANSWER AND DEFENSES

TO THE HONORABLE JUDGE OF SAID COURT:

Defendants Humana Inc.1(“Humana”) and Humana Government Business, Inc. (“HGB”)

file this Original Answer and Defenses to Plaintiff’s Original Petition (“Petition”) filed in the 150th

District Court of Bexar County, Texas, by Plaintiff Sandra Guerra (“Plaintiff”) and subsequently

removed to this Court. The numbered paragraphs below correspond to the numbered paragraphs

in Plaintiff’s Petition to the extent possible. Defendants deny each and every allegation set forth

in Plaintiff’s Petition except as specifically admitted, qualified, explained, clarified, or otherwise

pleaded below, and specifically answer as follows:

I.

DISCOVERY CONTROL PLAN

1.01 This case is filed pursuant to Section 190.4 (Level 3) of the Texas Rules of Civil Procedure.

 

1

“Humana” is a trade name only. Defendants presume Plaintiff’s intention is to name “Humana Inc.” as a Defendant,

albeit an improper Defendant as Plaintiff was employed by Humana Government Business, Inc.

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RESPONSE: Defendants admit Plaintiff filed this lawsuit in the 150th Judicial District Court of 

Bexar County, Texas, pursuant to Section 190.4 of the Texas Rules of Civil Procedure but deny 

the applicability of the Texas Rules of Civil Procedure following Defendants’ removal of the case 

to this Court.

II.

PARTIES

2.01 Plaintiff, SANDRA GUERRA, (hereinafter “Dr. Guerra” or “Plaintiff’) is a resident of San 

Antonio, Bexar County, Texas.

RESPONSE: Defendants admit that Plaintiff resided in San Antonio, Bexar County, Texas, 

during her employment with HGB. Defendants are without information or knowledge sufficient 

to admit or deny Plaintiff’s allegation regarding her current residency, and therefore, deny the 

same.

2.02 Defendant, HUMANA (hereinafter referred to as “Humana” or “Employer” or 

“Defendant”) is a foreign corporation that does business in the State of Texas and can be served 

with process by serving:

Jennifer Starr

Humana Government Business, Inc.

500 W. Main St.

Louisville, KY 40202

RESPONSE: Defendants admit that “Humana Inc.” is a foreign corporation doing business in 

the State of Texas. Defendants deny that “Humana” employed Plaintiff. Defendants deny Jennifer 

Starr being the registered agent for service of process for Humana Inc. 

2.03 Defendant, HUMANA GOVERNMENT BUSINESS, INC. d/b/a HUMANA, is a foreign 

corporation that does business in the State of Texas, and may be served in its assumed name 

pursuant to Tex. R. Civ. Pro. 28 as follows:

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Corporation Service Company

211 E. 7th Street, Suite 620

Austin, Texas 78701-3218

RESPONSE: Defendants deny HGB doing business as “Humana.” Defendants admit that HGB 

is a foreign corporation that does business in the State of Texas as Humana Military and admit 

they accepted service of process.

III.

JURISDICTION & VENUE

3.01 The incident made the basis of this lawsuit occurred in San Antonio, Bexar County, Texas. 

As such, jurisdiction and venue are proper in Bexar County.

RESPONSE: Defendants admit that jurisdiction and venue are proper in this Court and Division.

3.02 Plaintiff seeks to recover all of her damages in an amount which the jury determines to be 

just and appropriate, based on the jury’s discretion and judgment in its role as the trier of fact. In 

order to comply with the Supreme Court’s requirement to state the range of damages, pursuant to 

Texas Rule of Civil Procedure 47(c), Plaintiff pleads that she anticipates (at this time) that the 

amount of damages she will request the jury to assess at trial will be more than $250,000.00 but 

not more than $1 million.

RESPONSE: Defendants deny Plaintiff’s allegations in Paragraph 3.02 of the Petition, including 

her entitlement to recovery of any damages whatsoever.

3.03 Based on section 3.02, Plaintiff anticipates she will be entitled to recover punitive damages 

in this case. Punitive damages are recoverable for willful violations of the Texas Human Rights 

Act. See Tex. Lab. Code 21.2585 (d). The termination of Dr. Guerra, a long-term Humana 

employee, was an adverse employment action motivated by malice and/or reckless indifference to 

Dr. Guerra’s state-created rights under the Texas Human Rights Act as more fully shown below.

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RESPONSE: Defendants deny acting unlawfully or with malice or reckless indifference to 

Plaintiff’s rights under state (or federal) law as HGB terminated Plaintiff for a legitimate, nondiscriminatory reason unrelated to her gender, color, or national origin, namely, her admitted 

violation of Humana’s Harassment Policy, which prohibits any form of harassment regardless of 

whether such harassment rises to the level of violating the law, and its Critical Offenses policy, 

which identifies harassment as conduct warranting immediate termination. Defendants deny all 

remaining allegations in Paragraph 3.03 of the Petition, including her entitlement to any damages 

whatsoever.

IV.

[ALLEGED] EXHAUSTION OF ADMINISTRATIVE REMEDIES

4.01 Plaintiff timely filed a Charge of Discrimination with the Texas Workforce Commission 

Civil Rights Division on or about July 21, 2020. See Exhibit A.

RESPONSE: Defendants admit that Plaintiff filed a charge of discrimination with the Texas 

Workforce Commission-Civil Rights Division (“TWC-CRD”) on or about July 21, 2020, and that 

Exhibit A appears to be a copy of the charge Plaintiff filed. Defendants deny all remaining 

allegations in Paragraph 4.01 of the Petition.

4.02 On or about July 8, 2021, Plaintiff received the Dismissal and Notice of Right to File a 

Civil Action from the Texas Workforce Commission Civil Rights Division. See Exhibit B.

RESPONSE: Defendants admit that Exhibit B appears to be a copy of the Dismissal and Notice 

of Right to File a Civil Action issued by the TWC-CRD with a date of July 8, 2021. Defendants 

are without information or knowledge sufficient to admit or deny Plaintiff’s allegation as to when 

she received Exhibit B, and therefore, deny the same.

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V.

[PLAINTIFF’S] FACTUAL ALLEGATIONS

5.01 Plaintiff, Sandra Guerra, is a medical doctor (“Dr. Guerra”).

RESPONSE: Defendants admit the allegation in Paragraph 5.01 of the Petition.

5.02 She is a United States citizen of Mexican-American descent.

RESPONSE: Defendants admit that, at the time of her hire with HGB, Plaintiff provided proof 

of her U.S. citizenship and she identified herself as being Hispanic/Latino. Defendants are without 

information or knowledge sufficient to admit or deny Plaintiff’s allegation that she is of MexicanAmerican descent and therefore, deny the same.

5.03 Defendant hired Dr. Guerra in 2012.

RESPONSE: Defendants admit that HGB hired Plaintiff in 2012.

5.04 When last employed by Defendant, Dr. Guerra’s title was Vice-President/Chief Medical 

Officer.

RESPONSE: Defendants admit that when last employed by HGB, Plaintiff’s title was Vice 

President, Chief Medical Officer.

5.05 Dr. Guerra was employed by Defendant for over 8 years.

RESPONSE: Defendants admit that Plaintiff was employed with HGB from October 2012 to 

February 18, 2020.

5.06 Plaintiff was terminated for a false reason, falsely accused by (“Matthew Stiner”) a

subordinate of harassment.

RESPONSE: Defendants admit that Plaintiff’s direct report, Matthew Stiner, made an internal 

complaint that Plaintiff had sent him sexually explicit text messages and made otherwise 

inappropriate comments. HGB substantiated these allegations through a review of the text 

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messages at issue and by Plaintiff’s own admissions during the course of an internal investigation. 

Plaintiff’s text messages to Mr. Stiner included the following: 

 Stiner: “I might have to get off at 10AM”; Plaintiff: “Sexually? I’m in a conference.”

 Plaintiff: “Are your boxers too tight?”

 Stiner: “...I went to bed early”; Plaintiff: “Alone?”; Stiner: “My flight left at 6AM this 

morning and I don’t know why the hell I picked that flight”; Plaintiff: “I hope the clothes 

were on your body.”

Defendants admit that HGB terminated Plaintiff for a legitimate, non-discriminatory reason 

unrelated to her gender, color, or national origin, namely, her admitted violation of Humana’s 

Harassment and Critical Offenses policies. Defendants deny the remaining allegations in 

Paragraph 5.06 of the Petition.

5.07 Coincidentally, Matthew Stiner, a white male, was written-up/reprimanded by Dr. Guerra 

just several days before he first raised false allegations of harassment against Dr. Guerra.

RESPONSE: Defendants admit that Mr. Stiner is male and admit that Mr. Stiner identified 

himself as being Caucasian. Defendants admit that Plaintiff administered disciplinary action to 

Mr. Stiner on February 4, 2020. Defendants admit that Mr. Stiner made an internal complaint on 

or about February 7, 2020, that Plaintiff had sent him sexually explicit text messages and made 

otherwise inappropriate comments. HGB substantiated these allegations through a review of the 

text messages at issue and by Plaintiff’s own admissions during the course of an internal 

investigation. Defendants deny all remaining allegations in Paragraph 5.07 of the Petition.

5.08 The false allegations lodged by Matthew Stiner against Dr. Guerra were retaliatory.

RESPONSE: Defendants deny the allegations in Paragraph 5.08 of the Petition.

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5.09 Dr. Guerra had no negative human resources complaints or violations.

RESPONSE: Defendants deny the allegations in Paragraph 5.09 of the Petition.

5.10 In fact, her work performance was evaluated as excellent by her supervisors.

RESPONSE: Defendants deny the allegations in Paragraph 5.10 of the Petition.

5.11 Unlike Dr. Guerra, white male executives were treated more fairly by Defendant.

RESPONSE: Defendants deny the allegations in Paragraph 5.11 of the Petition.

5.12 Eric Lisle, Vice President of Humana, sexually harassed females. Mr. Lisle was given the 

option to voluntarily separate rather than face an adverse personnel action.

RESPONSE: Defendants deny the allegations in Paragraph 5.12 of the Petition. 

5.13 Phil White, Chief Operating Officer for Humana was laterally transferred despite poor 

work performance. Mr. White did not suffer an adverse personnel action.

RESPONSE: Defendants deny the allegations in Paragraph 5.13 of the Petition.

5.14 Neil Mullany [sic], Vice President/Chief Operating Officer for Humana, over paid and 

under paid providers. Humana was penalized in the millions of dollars. Mr. Mullany [sic] did not 

suffer any adverse employment action based on penalties in the millions of dollars. 

RESPONSE: Defendants deny the allegations in Paragraph 5.14 of the Petition.

5.15 Alan Wheatly [sic], Senior Vice President of Humana, engaged in sexual 

harassment/relations with a subordinate and was later beaten up by the woman’s husband in front 

of the Humana tower in Louisville, Kentucky. Mr. Wheatly [sic] suffered no adverse personnel 

action. In fact, he was promoted.

RESPONSE: Defendants deny the allegations in Paragraph 5.15 of the Petition.

5.16 Dr. Guerra was replaced by white males. Dr. Guerra’s job duties were split between Robert 

Johnson and Joseph Kennedy.

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RESPONSE: Defendants admit that Robert Johnson and Joseph Kennedy are men who were 

employed by HGB at the time of Guerra’s termination, who have both identified as being 

Caucasian, and who assumed Plaintiff’s former job duties in addition to their own, until HGB hired 

Dr. Alefiyah Mesiwala, who assumed management of the medical directors previously supervised 

by Plaintiff. Defendants deny that Plaintiff was replaced following her termination. 

5.17 Dr. Guerra’s termination was pretextual.

RESPONSE: Defendants deny the allegation in Paragraph 5.17 of the Petition.

5.18 Defendant’s motivation for terminating Dr. Guerra, on February 18 2020, was motivated

by unlawful discrimination (color, national origin and sex) in violation of Chapter 21 of the Texas 

Labor Code.

RESPONSE: Defendants admit that HGB terminated Plaintiff’s employment on February 18, 

2020, for a legitimate, non-discriminatory reason unrelated to her gender, color, or national origin, 

namely, her admitted violation of Humana’s Harassment and Critical Offenses policies. 

Defendants deny the remaining allegations in Paragraph 5.18 of the Petition.

VI.

[ALLEGED] CAUSES OF ACTION

6.01 Texas Labor Code Chapter 21. Plaintiff asserts that Defendant violated Chapter 21 of the 

Texas Labor Code in that her termination was motivated by unlawful discrimination.

RESPONSE: Defendants deny the allegations in Paragraph 6.01 of the Petition.

6.02 Plaintiff seeks compensatory under Chapter § 21.2585 of the Texas Labor Code. 

Furthermore, Plaintiff seeks costs, attorney’s fees, including compensation for reasonable expert 

fees, under Chapter § 21.259 of the Texas Labor Code.

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RESPONSE: Defendants deny the allegations in Paragraph 6.02 of the Petition, including 

Plaintiff’s entitlement to any damages whatsoever.

6.03 Plaintiff asserts claims under the Texas Labor Code exclusively. Plaintiff does not assert 

claims under federal statute, the code of federal regulations or the United States constitution.

RESPONSE: Defendants admit that Plaintiff advances claims under the Texas Labor Code and 

not under federal law, but Defendants deny violation of any law.

VII.

CONTROLLING AUTHORITY

7.01 An employer commits an unlawful employment practice if because of race, color, 

disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in

any other manner against an individual in connection with compensation or the terms, conditions, 

or privileges or employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a 

manner that would deprive or tend to deprive an individual of any employment opportunity or 

adversely affect in any other manner the status of an employee.

RESPONSE: The allegations in Paragraph 7.01, including subparts (1) and (2), constitute 

statements of law that Defendants are neither required to admit or deny. To the extent a response 

is required, Defendants deny the allegations, including any violation of the law.

VIII.

[ALLEGED] DAMAGES 

8.01 As a result of acts and/or omissions as set forth above, Plaintiff sustained the following 

damages, including but not limited to:

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(a) Back Pay;

(b) Interest on back pay;

(c) Compensatory damages, including future pecuniary losses, emotional pain, 

suffering, inconvenience, mental anguish, loss of enjoyment of life, and other 

nonpecuniary losses;

(d) Punitive damages;

(e) Front Pay;

(f) Interest on Front Pay;

(g) Pre-judgment interest;

(h) Post-judgment interest;

(i) Cost of court/suit;

(j) Reasonable expert fees; and

(k) Attorney’s fees.

RESPONSE: Defendants deny the allegations in Paragraph 8.01, including subparts (a) – (k), and 

deny Plaintiff’s entitlement to any damages whatsoever.

IX.

JURY DEMAND 

9.01 Plaintiff demands a trial by jury herein.

RESPONSE: Defendants admit Plaintiff has demanded a jury trial.

X.

NUMBER OF EMPLOYEES

10.01 Defendant employs more than 500 employees.

RESPONSE: Defendants admit that Plaintiff’s former employer, HGB, employs more than 500 

employees.

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XI.

EXHIBITS 

11.01 Plaintiff attaches the following exhibits to her Original Petition:

EXHIBIT A Employment Discrimination Complaint Form;

EXHIBIT B Dismissal and Notice of Right to File a Civil Action; and

EXHIBIT C Plaintiff’s First Set of Discovery Requests (Interrogatories, Requests for 

Production, Requests for Admission & Requests for Disclosure) to 

Defendant.

RESPONSE: Defendants admit that the Petition included Exhibits A-C, purporting to be the 

documents described above. Defendants deny any obligation to respond to the discovery 

requests attached to the Petition as Exhibit C.

XII.

[PLAINTIFF’S] PRAYER

12.01 WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant, HUMANA,

be cited to appear and answer in this cause, and that upon final trial hereof, Plaintiff recovers 

judgment against Defendant for her actual damages in amounts within the jurisdictional limits of 

this Court, for all damages respectively sustained by her as set forth above together with prejudgment interest thereon at the maximum legal or equitable rate; for post-judgment interest on 

the amount of the judgment at the maximum rate allowed by law; for recovery of costs of court; 

and for such other and further relief, at law or in equity, to which she may show herself justly 

entitled.

RESPONSE: Defendants deny the allegations set forth in Plaintiff’s Prayer and deny Plaintiff’s 

entitlement to any of the relief requested therein.

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XIII.

DEFENDANTS’ DEFENSES

Without assuming any burden of proof that would otherwise rest with Plaintiff, Defendants

assert the following defenses, including affirmative defenses, as follows:

1. To the extent Plaintiff’s claims exceed the scope of or are inconsistent with the

charge of discrimination she filed with the EEOC and the TWC-CRD, they are barred by her failure

to exhaust administrative remedies.

2. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of

limitations to the extent that they were not presented to the TWC-CRD in a timely-filed charge of

discrimination.

3. Plaintiff’s claims are not actionable because the challenged employment practices

are justified by legitimate, non-discriminatory, and non-pretextual business reasons unrelated to

Plaintiff’s gender, national origin, or color. HGB terminated Plaintiff for her admitted violation

of Humana’s Harassment and Critical Offenses policies. In particular, Plaintiff’s direct

subordinate made an internal complaint that Plaintiff had sent him sexually explicit text messages

and made otherwise inappropriate comments. The subordinate provided HGB with a copy of the

text messages, and Plaintiff admitted to her behavior and comments.

4. At all times, Defendants’ actions were lawful, justified, and made in good faith.

5. HGB would have made the same employment decision with regard to Plaintiff even

in the absence of any alleged impermissible discriminatory intent, and such motive is denied.

6. Defendants have in place a clear and well disseminated policy against

discrimination, and a reasonable and available procedure for handling complaints of violations

thereof, which provides for prompt and effective responsive action. To the extent Plaintiff failed

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to take advantage of the preventive or corrective opportunities provided by Defendants, or to

otherwise avoid harm, Plaintiff’s claims of alleged discrimination are barred.

7. Pending discovery, and without conceding Plaintiff has suffered any damages

because of any alleged acts or omissions by Defendants, Plaintiff’s alleged damages are limited or

barred by the after-acquired evidence doctrine.

8. Pending discovery, and without conceding Plaintiff has suffered any damages

because of any alleged acts or omissions by Defendants, Plaintiff has failed to mitigate any

damages she may claim to have suffered as a result of any alleged actions by Defendants. 

Alternatively, any damages claimed to have been suffered by Plaintiff should be reduced by

whatever income or economic benefits she has earned or received since her separation of

employment with HGB.

9. Without conceding Plaintiff has suffered any damages because of any alleged

wrongdoing by Defendants, Plaintiff’s claims for compensatory and punitive/exemplary damages

are capped or limited by applicable law, including Chapter 41 of the Texas Civil Practice and

Remedies Code and Texas Labor Code § 21.2585.

10. Defendants did not commit any act with malice or reckless indifference to

Plaintiff’s legally protected rights, nor did Defendants approve, authorize, ratify, or have actual

knowledge of any such acts.

11. If any improper, illegal, or discriminatory act was taken by any of Defendants’

employees against Plaintiff (which Defendants deny), it was outside the course and scope of that

employee’s employment, contrary to Defendants’ policies, and was not ratified, confirmed, or

approved by Defendants. Thus, any such actions cannot be attributed or imputed to Defendants.

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12. Defendants cannot be vicariously liable for punitive damages in light of their good

faith efforts to comply with the anti-discrimination statutes at issue in this case. See Kolstad v.

American Dental Ass’n, 527 U.S. 526 (1999).

13. Without conceding Plaintiff has suffered any damages because of any alleged

wrongdoing by Defendants, Defendants plead the due process limitations on punitive and

exemplary damages outlined by the Supreme Court in its opinion in State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408 (2003).

Defendants specifically reserve the right to assert any other appropriate defenses, including

affirmative defenses, to Plaintiff’s claims as the need for such defenses becomes known.

WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff’s Original

Petition with prejudice and that Defendants be awarded Defendants’ costs, attorneys’ fees incurred

in this action, and award it any such other relief that this Court deems just and proper.

Respectfully submitted,

 /s/ Tiffany Cox Stacy

Tiffany Cox Stacy

Texas Bar No. 24050734

tiffany.cox@ogletree.com

Brandon E. Strey

State Bar No. 24084969

brandon.strey@ogletree.com

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

112 E. Pecan Street, Suite 2700

San Antonio, Texas 78205

Telephone: 210.354.1300

Fax: 210.277.2702

ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of September, 2021 I electronically filed the foregoing

with the Clerk of the Court and will serve a copy of same to the following:

Mauro F. Ruiz

RUIZ LAW FIRM, P.L.L.C.

118 West Pecan Blvd.

McAllen, Texas 78501

mruiz@mruizlaw.com

/s/ Tiffany Cox Stacy

Tiffany Cox Stacy

48603741.1

301006.000176

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