DEFENDANT’S ORIGINAL ANSWER AND DEFENS ES PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KELLEY STREICHERT,

Plaintiff,

v.

CHILDREN’S HEALTH CLINICAL 

OPERATIONS D/B/A CHILDREN’S 

MEDICAL CENTER OF DALLAS,

Defendant.

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CIVIL ACTION NO. 3:22-cv-01171-B

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S

FIRST AMENDED COMPLAINT

Defendant Children’s Health System of Texas, incorrectly identified as Children’s Health

Clinical Operations d/b/a Children’s Medical Center of Dallas (“Defendant”) files its Original

Answer to Plaintiff’s First Amended Complaint (“Complaint”) and respectfully states the

following:

A. PLAINTIFF’S FIRST AMENDED COMPLAINT

I.

Introduction

1.01 Defendant admits Plaintiff worked for Defendant for approximately 17 years, and

that Defendant terminated Plaintiff’s employment on November 24, 2021. Defendant denies the

remaining allegations in paragraph 1.01 of the Complaint, and denies it is liable to Plaintiff.

II.

Parties

2.1 Defendant is without sufficient information to admit or deny the allegations in

paragraph 2.1 of the Complaint, and for this reason, Defendant denies the allegations.

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2.2 Defendant admits the allegations in paragraph 2.2 of the Complaint.

III.

Jurisdiction and Venue

3.1 Defendant admits the allegations in paragraph 3.1 of the Complaint.

3.2 Defendant does not dispute that the Court has jurisdiction over this matter.

3.3 Defendant does not dispute that venue is proper.

IV.

Background Facts

4.1 Defendant admits the allegations in paragraph 4.1 of the Complaint.

4.2 Defendant is without sufficient information to admit or deny the allegations in

paragraph 4.2 of the Complaint, and for this reason, Defendant denies the allegations.

4.3 Defendant admits that the COVID-19 pandemic began in the United States in early

2020.

4.4 Defendant admits that it adopted a COVID-19 vaccine policy in August, 2021 and

required all employees to receive the vaccine by October 1, 2021, subject to certain exemptions.

Defendant denies that Plaintiff “promptly filed a request for an exemption.” Defendant admits

Plaintiff submitted an exemption to the vaccine mandate based on religious grounds after the

original deadline as requested by Defendant, and after she sent an email to Defendant stating that

she did not “want[] to take the vaccine because [she] want[s] to start trying to have another baby

in the next few months.”

4.5 Defendant denies Plaintiff’s request for an exemption was “timely,” as explained

in paragraph 4.4 above. Defendant admits it denied Plaintiff’s request for a religious exemption to

its COVID-19 vaccine policy.

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4.6 Defendant denies the allegations in paragraph 4.6 of the Complaint, as Defendant

did not have a COVID-19 vaccine policy appeals process.

4.7 Defendant denies the allegations in paragraph 4.7 of the Complaint, as Defendant

did not have a COVID-19 vaccine policy appeals process.

4.8 Defendant admits Plaintiff applies for an Operating Room Periop Support

Technician position, but denies Plaintiff was “fully qualified” as she did not meet Defendant’s

vaccine or exemption requirement. Defendant is without sufficient information to admit or deny if

Plaintiff “would have allowed [her]to better provide for her family,” and for this reason, Defendant

denies the allegation.

4.9 Defendant admits that Plaintiff did not receive the Operating Room Periop Support

Technician position and that Defendant denied her exemption request. Defendant denies the

remainder of the allegations in paragraph 4.9 in the Complaint.

4.10 Defendant admits that on October 11, 2021 Governor Greg Abbott issued Executive

Order No. GA-40, which prohibited entities in Texas from compelling receipt of a COVID-19

vaccine by an individual. Defendant further admits that in response to this Order, Defendant

temporarily ceased its vaccine mandate efforts. Defendant denies the remainder of the allegations

in Paragraph 4.10 in the Complaint.

4.11 Defendant admits that on October 12, 2021, Plaintiff sent an email to Defendant.

Defendant denies the remaining allegations in paragraph 4.11 of the Complaint.

4.12 Defendant denies the allegations in paragraph 4.12 of the Complaint.

4.13 Defendant admits it sent all employees an email that included the quoted language

in paragraph 4.13 of the Complaint, and further admits Plaintiff worked her last shift at Defendant

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on November 20, 2021. Defendant denies Plaintiff “did not check her email on November 22, 2021

and November 23, 2021.”

4.14 Defendant admits it terminated Plaintiff’s employment effective November 24,

2021, that a member of Defendant’s human resources department called Plaintiff to inform her of

this decision, and that Plaintiff alleged that she filed an “appeal” to Defendant’s denial of her

exemption request. Defendant is without sufficient information to admit or deny the remaining

allegations in paragraph 4.14 of the Complaint, and for this reason, Defendant denies the

allegations.

V.

Count One

Religious Discrimination

5.1 Defendant incorporates the foregoing paragraphs as if set forth herein verbatim.

5.2 Defendant admits the allegations in paragraph 5.2 of the Complaint.

5.3 Defendant admits the allegations in paragraph 5.3 of the Complaint.

5.4 Defendant denies the allegations in paragraph 5.4 of the Complaint.

5.5 Defendant denies the allegations in paragraph 5.5 of the Complaint.

5.6 Defendant denies the allegations in paragraph 5.6 of the Complaint.

VI.

Jury Demand

6.01 Defendant does not dispute that Plaintiff demands a trial by jury.

The unnumbered paragraph under the “Jury Demand,” including subparagraphs (1)

through (12) does not require an admission or denial by Defendant. However, in the event the

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unnumbered paragraph under the “Judy Demand,” including subparagraphs (1) through (12) is

construed to include allegations, Defendant denies the allegations and denies it is liable to Plaintiff.

B. AFFIRMATIVE AND OTHER DEFENSES

Defendant sets forth its defenses, including affirmative defenses, as follows:

1. Plaintiff’s damages, if any, are barred in whole or in part by the doctrines of

estoppel, unclean hands, and/or after-acquired evidence.

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

wrongdoing by Defendant, Plaintiff has failed to mitigate or minimize the alleged damages and is

therefore barred, in whole or in part, from the recovery of damages.

3. Defendant is entitled to an offset for any earnings since Plaintiff’s employment

ended, including payments received from insurance carriers, workers’ compensation benefits, or

unemployment compensation benefits.

4. 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 common law.

5. All employment decisions made regarding or affecting Plaintiff were based upon

legitimate, non-discriminatory, and non-retaliatory reasons.

6. Plaintiff’s claims for exemplary damages are barred because the alleged acts or

omissions of Defendant, even if proven, do not rise to a level required to sustain an award of

exemplary damages and do not evidence malicious, reckless or fraudulent intent to deny Plaintiff’s

protected rights, and are not so wanton and willful as to support an award of exemplary damages.

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7. Plaintiff’s claims for exemplary damages are barred to the extent that the imposition

of exemplary damages would constitute a denial of due process under the United States

Constitution and the Constitution of the State of Texas.

8. Defendant engaged in good faith efforts to comply with all applicable laws.

Moreover, the conduct complained of by Plaintiff, if performed or carried out, was performed or

carried out in good faith based upon reasonable grounds for believing such conduct was not in

violation of state or federal law, and therefore, Plaintiff fails to state a claim for punitive or

exemplary damages.

9. With respect to some or all of Plaintiff’s claims, the Complaint fails to state a claim

upon which relief may be granted.

10. At all times during Plaintiff’s employment, Plaintiff was employed at-will and

could be discharged with or without notice and with or without cause. There were no contracts or

agreements that altered Plaintiff’s at-will employment status.

11. Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s failure to exhaust

administrative remedies.

12. Plaintiff’s claims are barred, in whole or in part, to the extent they exceed the scope

or are inconsistent with any charge(s) of discrimination Plaintiff filed with the EEOC or TWC.

13. As a result of Plaintiffʼs unreasonable delay in asserting Plaintiffʼs rights,

Defendant has suffered a good faith change of position to Defendantʼs detriment. Therefore,

whatever right Plaintiff might otherwise have had to bring a timely action against Defendant is

barred by laches.

14. If any improper, illegal, discriminatory, or retaliatory actions were taken by any of

Defendant’s employees against Plaintiff (which Defendant denies), they were outside the course

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and scope of that employee’s employment, contrary to Defendant’s policies, and were not ratified,

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

Defendant.

15. Plaintiff’s claims fail because Defendant exercised reasonable care to prevent and

remediate promptly any unlawful behavior and Plaintiff unreasonably failed to take advantage of

any preventative or corrective opportunities provided by Defendant or to avoid harm otherwise.

16. Plaintiff’s claims are barred, in whole or in part, because Defendant would have

taken the same action in the absence of any alleged impermissible motivating factor(s).

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

limitations.

18. Defendant specifically reserves the right to assert any other appropriate defenses,

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

WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiff’s

Original Complaint with prejudice, award Defendant its costs and attorneys’ fees incurred in this

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

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52063545.v1-Ogletree

Respectfully submitted,

OGLETREE, DEAKINS, NASH, SMOAK &

STEWART, P.C.

/s/ Jamie B. Ashton

Jamie B. Ashton

Texas Bar No. 24087211

jamie.ashton@ogletreedeakins.com

Janet L. Smith

Texas Bar No. 24089755

janet.smith@ogletreedeakins.com

8117 Preston Road, Suite 500

Dallas, TX 75225

Telephone: (214) 987-3800

Fax: (214) 987-3927 (Fax)

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on 30th day of June, 2022, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system, which will transmit a Notice of Electronic Filing to

counsel of record:

Nicholas A. O’Kelly

KILGORE & KILGORE, PLLC

3141 Hood Street, Suite 500

Dallas, Texas 75219

nao@kilgorelaw.com

/s/ Jamie B. Ashton

Jamie B. Ashton

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