By Frost McGahey
Investigative Reporter
Dan Otero, CEO of HMS[Editor's Note: Names of victims have been changed to protect their privacy.]

CEO Dan Otero and HMS were named in a lawsuit filed by Philadelphia Insurance Company alleging insurance fraud. The basis for the suit was that Otero was allegedly guilty of two sexual harassment claims in the same policy year. In the next article the details of that will be covered.

The second sexual harassment claim was filed by Dr. Linda Garcia.

Garcia was a dentistry practitioner and started working at HMS in July 2012. On April 15, 2015, Garcia was promoted to the position of Chief Dental Officer for HMS and held that position until October 2017, when she alleges she was constructively discharged by HMS.

Garcia alleges that shortly after Otero was hired in February 2016, he targeted and sexually harassed her by offensively touching her, staring at her in a sexual way, hugging her against her will, and treating her like a sexual object.

Garcia also alleges that Otero had a pattern and practice of requiring her to meet with him alone with no other person present.

In May of 2016, Garcia alleges that after enduring months of harassment and differential treatment based on her gender, she reported to HMS's then COO, Ms. Hathaway, that she felt uncomfortable meeting with Otero alone in the frequent meetings he insisted on having with Garcia.

After Garcia reported the sexual harassment and discrimination to HMS, she alleges that HMS and Otero took a series of actions against her in retaliation for her reporting his sexual harassment.

One example: May 2016, Garcia alleges that Otero placed requirements on her, which he did not place on other similarly situated male employees, such as requiring her to provide him with pro forma analyses, estimated costs and profits to be generated by the projects that Garcia proposed be implemented by HMS. He also delayed and refused to provide her with needed staff.

In September of 2016, Garcia told Otero that she did not want to meet alone with him and that she did not want him to embrace her in any manner. His only response was to ask Garcia if she was trying to undermine him.

On February 14, 2017, Garcia told Otero that she was tired of being treated by him differently from similarly situated male employees because of her gender. His response was to tell her that he had to write what she said down in order to protect himself.

Two weeks later, an investigator hired by HMS interviewed Garcia about the complaint filed by Ms. Hathaway ( HMS CEO's First Sexual Harassment Lawsuit), Garcia alleges that she told the investigator about the details of the harassment she experienced at the hands of Otero, her attempts to report the harassment within HMS, and her understanding that prior complaints against him had gone unaddressed by HMS. After she characterized Otero's actions as those of a sexual harasser, she alleges she was told by the investigator that she should choose her words more carefully.

Two weeks after that investigation, Garcia alleges that Otero initiated a series of retaliatory actions against her, including opening numerous investigations.

In the first weeks of March 2017, Otero told Garcia that she was under investigation for alleged fraudulent billing within the dental clinic. This investigation did not yield any evidence to support the allegations, and no action was taken by HMS against Garcia.

This was the first of four investigations of Garcia which occurred after she spoke with the investigator hired by HMS.

Prior to reporting and opposing discrimination, Garcia said that she was not reprimanded in writing and had received excellent performance evaluations from her previous supervisors.

In mid-June 2017, Garcia was instructed to complete an incident report for her treatment of a patient with a partial denture stuck in her throat but refused because such reports are only required when there is an adverse outcome on a patient and said patient had a successful outcome.

On June 23, 2017, August 9, 2017, and October 25, 2017, Garcia filed complaints of gender discrimination, hostile work environment and retaliation with the New Mexico Human Rights Bureau.

Less than a month after Garcia filed her first charge of discrimination, HMS and Otero initiated another investigation of an allegation that she bullied an employee.

On July 27, 2017, Garcia met with Ms. Cathy Diaz [presently HMS Chief People Officer] to discuss the alleged bullying and Ms. Diaz attempted to require she sign a non-disclosure agreement. She refused and tried to report Otero's sexual harassment.

On August 1, 2017, Garcia was disciplined for the first time and given a written reprimand. On that same day, HMS accused her of violating HIPPA and disclosing confidential patient information to unauthorized parties.

On August 29, 2017, after Garcia filed her second charge of discrimination, HMS placed her on paid administrative leave until October 2, 2017, for, among other things, being non-compliant in the investigation of the patient with lodged partial in her throat.

On October 2, 2017, HMS delivered a second written warning and performance improvement plan to Garcia, which required, among other things, that Otero would evaluate her, and required her to meet more frequently with him. Garcia refused to sign either document, refused to return from leave, and HMS accepted her resignation effective October 3, 2017.

On November 10, 2017, Garcia filed a complaint against HMS in the Sixth Judicial District Court of New Mexico State Court alleging four cases of action: (1) termination in violation of the New Mexico Human Rights Act (NMHRA); (2) harassment in violation of the NMHRA; (3) retaliation in violation of the NMHRA (participation clause); and (4) retaliation in violation of the NMHRA.

The Garcia Lawsuit is currently in active litigation.

In the next article, the details of the insurance fraud lawsuit against Otero and HMS will be detailed.