Free Answer to Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware limited liability company, f/k/a Jobson Publishing Acquisition, LLC, f/k/a Jobson Publishing, L.L.C.; and XJP, LLC, a Delaware limited liability company, f/k/a Jobson Publishing, L.L.C., Defendants.

ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT FROM DEFENDANT XJP, LLC Defendant XJP, LLC ("XJP"),1 by and through its attorneys, Hall & Evans, L.L.C., and by way of Answer to Plaintiff's Second Amended Complaint (the "Amended Complaint"), admits, denies, and avers as follows: INTRODUCTION The introductory paragraph of the Amended Complaint merely provides an overview of the lawsuit, but to any extent this paragraph can be read as containing any allegations, they are denied.

By separate pleading, Defendant Jobson Publishing, LLC is filing a Motion to Dismiss Plaintiff's Second Amended Complaint. This Answer is filed solely on behalf of XJP.

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JURISDICTION AND VENUE 1. 2. Defendant admits that this Court has jurisdiction over this matter. Defendant admits that venue is proper in this Court. PARTIES 3. Defendant is without sufficient information to form a belief as to the truth of the

allegations contained in Paragraph 3 of the Amended Complaint, and therefore denies the same. 4. Defendant is without sufficient information to form a belief as to the truth of the

allegations contained in Paragraph 4 of the Amended Complaint, and therefore denies the same. 5. Complaint. 6. Defendants admit that Jobson Publishing, LLC has continuously employed at Defendant admits the allegations contained in Paragraph 5 of the Amended

least fifteen employees since its creation, but deny that it is the successor in interest to Jobson Publishing L.L.C. 7. Defendant admits that XJP is the present name of Jobson Publishing L.L.C., the

entity that employed Plaintiff, to the extent alleged Paragraph 7 of the Amended Complaint, but denies all other allegations found therein. 8. Defendant states and objects that the allegations contained in Paragraph 8 of the

Amended Complaint call for a legal conclusion and not a fact that can be admitted or denied by Defendants. To any extent that any response to Paragraph 8 is required of Defendant, the allegations of that paragraph are denied.

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FACTUAL ALLEGATIONS 9. Defendant admits the allegations contained in Paragraph 9 of the Amended

Complaint, with the exception that the proper name of Plaintiff's employer, referred to by Plaintiff as Jobson Publishing, L.L.C., was Jobson Publishing L.L.C. 10. Defendant admits that Plaintiff received positive work evaluations while

employed with Jobson Publishing L.L.C., to the extent alleged by Paragraph 10 of the Amended Complaint, but deny all other allegations in said Paragraph. 11. Defendant admits that Plaintiff received positive work evaluations while

employed with Jobson, to the extent alleged by Paragraph 11 of the Amended Complaint, but denies all other allegations in said Paragraph. 12. Complaint. 13. Complaint. 14. Complaint. 15. Defendant denies that Jobson Publishing L.L.C. displayed Christian symbols in Defendant denies the allegations contained in Paragraph 14 of the Amended Defendant denies the allegations contained in Paragraph 13 of the Amended Defendant denies the allegations contained in Paragraph 12 of the Amended

the workplace, to the extent alleged by Paragraph 15 of the Amended Complaint. Defendant admits that Dennis Graber, the former Director of Operations for the International Center for Postgraduate Medical Education ("ICPME"), possessed a picture of Jesus in his office, but denies this action is attributable to Jobson Publishing L.L.C. or that an employee's display of religious symbols in his own office constitutes the promotion of religion on the part of any

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employer. Defendant denies all other allegations contained in Paragraph 15 of the Amended Complaint. 16. Defendant denies that Jobson Publishing L.L.C. displayed any items in Dennis

Graber's office, and states that it is without sufficient information to form a belief as to any further allegations in that paragraph, requiring that all remaining allegations found in Paragraph 16 of the Amended Complaint be denied. 17. Complaint. 18. Complaint. 19. Complaint. 20. Complaint. 21. Complaint. 22. Complaint. 23. Complaint. 24. Defendant is without sufficient information to form a belief as to the truth of the Defendant denies the allegations contained in Paragraph 23 of the Amended Defendant denies the allegations contained in Paragraph 22 of the Amended Defendant denies the allegations contained in Paragraph 21 of the Amended Defendant denies the allegations contained in Paragraph 20 of the Amended Defendant denies the allegations contained in Paragraph 19 of the Amended Defendant denies the allegations contained in Paragraph 18 of the Amended Defendant denies the allegations contained in Paragraph 17 of the Amended

allegations contained in Paragraph 24 of the Amended Complaint, and therefore denies the same.

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25.

Defendant admits to understanding that there was something said in the nature of

the statement attributed to an employee of Jobson Publishing L.L.C. as described in Paragraph 25 of the Amended Complaint, but deny that any such statement was meant as a "warning," deny that any such statement was said with any intent to defame Jewish people, and deny that any such statement was an action of Jobson Publishing L.L.C. Defendant notes its understanding that this statement was not directed towards Plaintiff or even said in his presence. 26. Defendant admits that one other person in addition to Plaintiff was upset about the

statement described in Paragraph 25 of the Amended Complaint and complained to Jobson Publishing L.L.C.'s Human Resources Vice President, Lorraine Orlando, to the extent alleged by that paragraph, but denies that this person believed this statement to constitute open hostility towards Plaintiff, who was not even present when the statement was made. Defendant denies all other allegations contained in Paragraph 26 of the Amended Complaint. 27. Defendant is without sufficient information to determine what other Jobson

Publishing L.L.C. employees said to Plaintiff, and therefore denies the same. Defendant admits that Plaintiff and one other person reported the statement described in Paragraph 25 of the Amended Complaint to Ms. Orlando. Defendant notes that Ms. Orlando immediately informed the speaker that such statements were inappropriate and would not be tolerated by Jobson Publishing L.L.C. Defendant denies all other allegations contained in Paragraph 27 of the Amended Complaint. 28. Complaint. Defendant denies the allegations contained in Paragraph 28 of the Amended

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29. Complaint. 30.

Defendant denies the allegations contained in Paragraph 29 of the Amended

Defendant admits that on one occasion Plaintiff approached Ms. Orlando to

discuss his concerns with an upcoming merger within the company and his complaints that the management was not sufficiently receptive to his ideas, to the extent that this is alleged in Paragraph 30 of the Amended Complaint. During that discussion, Plaintiff also mentioned the statement described in Paragraph 25. Plaintiff raised none of the other complaints of religious or race discrimination contained in his Amended Complaint with Ms. Orlando or any other member of Jobson Publishing L.L.C.'s management team, never made any claim that he was specifically the target of any form of religious or race discrimination, and never gave any indication that he believed he was being subjected to a hostile work environment. Defendant denies all other allegations contained in Paragraph 30 of the Amended Complaint. 31. Defendant admits that Lorraine Orlando is the Vice President of Human

Resources for Jobson Publishing, LLC, but denies that Jobson is the successor in interest of Jobson Publishing L.L.C. 32. Complaint. 33. Defendant is without sufficient information to form a belief as to the truth of the Defendant denies the allegations contained in Paragraph 32 of the Amended

allegations contained in Paragraph 33 of the Amended Complaint, and therefore denies the same. 34. Defendant admits that in June of 2003, three ICPME staff members called Ms.

Orlando to express concern that members of a particular church might receive preferential treatment in promotions following the merger of two company departments, that information

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regarding church activities was being made available in the workplace in one of the departments, and that a staff member had been praying in the office, to any extent such allegations are contained in Paragraph 34 of the Amended Complaint. Defendant denies all other allegations contained in said Paragraph. Defendant further notes that Plaintiff was not one of these staff members who made such complaint, and that these concerns were immediately addressed by Jobson Publishing L.L.C. and considered by the staff members involved to have been resolved. Defendant further notes that none of these staff members were terminated during the consolidation of two Jobson Publishing, L.L.C. departments. 35. Complaint. 36. Complaint. 37. Defendant admits that Jobson Publishing L.L.C. did not conduct any follow up Defendant denies the allegations contained in Paragraph 36 of the Amended Defendant denies the allegations contained in Paragraph 35 of the Amended

interviews with Plaintiff, to the extent alleged in Paragraph 37 of the Amended Complaint, because they believed the matter of the isolated comment described in Paragraph 25 to have been resolved, and Plaintiff never gave any indication that Ms. Orlando's activities in investigating and addressing that complaint were insufficient or that he had any other complaints relating to religious or race issues. Defendant admits that Jobson Publishing L.L.C. did not provide further EEO training following the complaints described above but state affirmatively that the company's equal employment opportunity policy was set out in the employee handbook provided to all employees.

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38. Complaint. 39.

Defendant denies the allegations contained in Paragraph 38 of the Amended

Defendant admits that Plaintiff's position was eliminated by Jobson Publishing

L.L.C. in the process of consolidating two departments, but deny that such termination had anything to do with his discussion with Ms. Orlando, to the extent alleged by Paragraph 39 of the Amended Complaint. Defendant denies all other allegations contained in Paragraph 39 of the Amended Complaint. 40. Complaint. 41. Complaint. 42. Complaint. 43. Complaint. 44. Complaint. 45. Defendant admits that on April 1, 2005, Jobson Publishing L.L.C. sold certain of Defendant denies the allegations contained in Paragraph 44 of the Amended Defendant denies the allegations contained in Paragraph 43 of the Amended Defendant denies the allegations contained in Paragraph 42 of the Amended Defendant denies the allegations contained in Paragraph 41 of the Amended Defendant denies the allegations contained in Paragraph 40 of the Amended

its assets to Jobson Publishing Acquisition, LLC, and that on May 25, 2005, Jobson Publishing Acquisition, LLC changed its name to Jobson Publishing, LLC. Defendant denies that Jobson Publishing, LLC is a successor in interest to Jobson Publishing L.L.C., and denies all other allegations contained in Paragraph 45 of the Amended Complaint.

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46.

Defendant admits that Jobson Publishing, LLC does substantially the same

business that Jobson Publishing L.L.C. did when Plaintiff was employed with Jobson Publishing L.L.C., but denies that Jobson Publishing, LLC assumed any liability for this lawsuit upon the purchase of assets from Jobson Publishing L.L.C. 47. Defendant admits that on May 25, 2005, Jobson Publishing L.L.C. changed its

name to XJP, LLC. Defendant denies all other allegations contained in Paragraph 47 of the Amended Complaint. 48. In response to Paragraph 48 of the Amended Complaint, Defendant admits that

Jobson Publishing, LLC and XJP had notice of this lawsuit at the time of the April 1, 2005 purchase agreement, as this lawsuit is expressly excluded from the liabilities assumed by Jobson Publishing, LLC on the purchase of certain assets of Jobson Publishing L.L.C. CONDITIONS PRECEDENT 49. Complaint. 50. Complaint. 51. With respect to the allegations contained in Paragraph 51 of the Amended Defendant admits the allegations contained in Paragraph 50 of the Amended Defendant admits the allegations contained in Paragraph 49 of the Amended

Complaint, Defendant admits that Plaintiff exhausted his administrative remedies with respect to XJP, but denies that Plaintiff exhausted his administrative remedies with respect to Jobson Publishing, LLC. 52. In response to Paragraph 52 of the Amended Complaint, Defendant incorporates

their responses to Paragraphs 1 through 51 of the Amended Complaint.

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CLAIMS FOR RELIEF Claim I: Religious Harassment in Violation of Title VII of the Civil Rights Act of 1961, as Amended in 1991 53. In response to Paragraph 53 of the Amended Complaint, Defendant incorporates

their responses to Paragraphs 1 through 53 of the Amended Complaint. 54. Defendant is without sufficient information to form a belief as to the truth of the

allegations contained in Paragraph 54 of the Amended Complaint, and therefore denies the same. 55. Defendant states and objects that the allegations contained in Paragraph 55 of the

Amended Complaint call for a legal conclusion and not a fact that can be admitted or denied by Defendant. To any extent that any response to Paragraph 55 is required of Defendant, the allegations of that paragraph are denied. 56. Complaint. 57. Complaint. 58. Complaint. 59. Complaint. 60. Complaint. Defendant denies the allegations contained in Paragraph 56 of the Amended Defendant denies the allegations contained in Paragraph 56 of the Amended Defendant denies the allegations contained in Paragraph 56 of the Amended Defendant denies the allegations contained in Paragraph 57 of the Amended Defendant denies the allegations contained in Paragraph 56 of the Amended

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Claim II: Religious Discrimination Based on Disparate Treatment in Violation of Title VII 61. In response to Paragraph 61 of the Amended Complaint, Defendant incorporates

its responses to Paragraphs 1 through 60 of the Amended Complaint. 62. Defendant is without sufficient information to form a belief as to the truth of the

allegations contained in Paragraph 62 of the Amended Complaint, and therefore denies the same. 63. Defendant states and objects that the allegations contained in Paragraph 63 of the

Amended Complaint call for a legal conclusion and not a fact that can be admitted or denied by Defendant. To any extent that any response to Paragraph 63 is required of Defendant, the allegations of that paragraph are denied. 64. With respect to the allegations contained in Paragraph 64 of the Amended

Complaint, Defendant admits that Plaintiff was qualified for his job but denies that being qualified for a position guarantees an employee a right to remain in that position regardless of business considerations and economic necessities. 65. Complaint. 66. Complaint. 67. Complaint. Claim III: Retaliation in Violation of Title VII 68. In response to Paragraph 68 of the Amended Complaint, Defendant incorporates Defendant denies the allegations contained in Paragraph 67 of the Amended Defendant denies the allegations contained in Paragraph 66 of the Amended Defendant denies the allegations contained in Paragraph 65 of the Amended

its responses to Paragraphs 1 through 67 of the Amended Complaint. 11

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69. Complaint. 70. Complaint. 71. Complaint. 72. Complaint. 73. Complaint. 74. Complaint.

Defendant denies the allegations contained in Paragraph 69 of the Amended

Defendant denies the allegations contained in Paragraph 70 of the Amended

Defendant denies the allegations contained in Paragraph 71 of the Amended

Defendant denies the allegations contained in Paragraph 72 of the Amended

Defendant denies the allegations contained in Paragraph 73 of the Amended

Defendant denies the allegations contained in Paragraph 74 of the Amended

Claim IV: Violation of Right to Contract Under 42 U.S.C. §1981 75. In response to Paragraph 75 of the Amended Complaint, Defendants incorporate

their responses to Paragraphs 1 through 74 of the Amended Complaint. 76. Defendant is without sufficient information to form a belief as to the truth of the

allegations contained in Paragraph 76 of the Amended Complaint, and therefore denies the same. 77. Complaint. 78. Complaint. Defendant denies the allegations contained in Paragraph 78 of the Amended Defendant denies the allegations contained in Paragraph 77 of the Amended

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79. Complaint. 80. Complaint. 81. Complaint.

Defendant denies the allegations contained in Paragraph 79 of the Amended

Defendant denies the allegations contained in Paragraph 80 of the Amended

Defendant denies the allegations contained in Paragraph 81 of the Amended

PRAYER FOR RELIEF Defendant denies that Plaintiff is entitled to any of the requested relief. GENERAL DENIAL Defendant denies each and every allegation found in Plaintiff's Amended Complaint that is not specifically admitted herein. DEFENSES AND AFFIRMATIVE DEFENSES 1. Some or all of Plaintiff's claims fail to state a claim upon which relief may be

granted against Defendant. 2. Plaintiff's claims do not rise to the level of violations of federal law, sufficient to

state a claim under Title VII or 42 U.S.C. §1981. 3. All actions taken by Jobson Publishing L.L.C. with respect to Plaintiff's

employment were reasonable under the circumstances, taken in the course and scope of his employment, in the good faith performance of the duties of Jobson Publishing L.L.C.'s employees, for legitimate business reasons, for the purpose of serving Jobson Publishing L.L.C. and in the good faith belief that Jobson Publishing L.L.C.'s employees acted in compliance with

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applicable laws and regulations, and all such actions were based on legitimate factors, with no action taken in relation to any "protected activity" of Plaintiff or Plaintiff's race or religion. 4. At all times pertinent herein, Jobson Publishing L.L.C. and its agents, if any,

acted in accordance with all common law, statutory, constitutional and contractual obligations and without any intent to cause Plaintiff harm. 5. environment. 6. Jobson Publishing L.L.C.'s employees were entitled to express their own religious The facts alleged by Plaintiff do not rise to the level of a hostile work

beliefs, and the display of religious symbols in an employee's own office does not violate the rights of any other employee. 7. Jobson Publishing L.L.C. possessed good and sufficient cause for all actions taken

in relation to Plaintiff's employment. 8. Any actions taken by Jobson Publishing L.L.C. in relation to Plaintiff were taken

for legitimate non-discriminatory business reasons. 9. Jobson Publishing L.L.C. would have taken the same actions with respect to

Plaintiff's employment in the absence of Plaintiff's race or religion and any alleged "protected activity" of the Plaintiff. 10. Jobson Publishing L.L.C. never breached any duty owed Plaintiff at any time in

the course of his employment with Jobson Publishing L.L.C. 11. Plaintiff obtained a new job prior to the expiration of his severance and vacation

pay at a higher wage than he was paid by Jobson Publishing L.L.C., and therefore suffered no damages for lost wages.

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12.

Some or all of the damages, if any, alleged by Plaintiff were caused by the actions

of third parties, or circumstances over which Defendant had no right of control or actual control. 13. Upon information and belief, Plaintiff failed to mitigate his damages, if any, as

required by law. 14. Plaintiff's claims for punitive damages, if any, are barred, reduced, or in the

alternative, unconstitutional and violate Defendant's right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article II, Section 25 of the Colorado Constitution. 15. Plaintiff's damages, if any, are subject to offset by virtue of amounts received

from other sources. 16. Plaintiff failed to bring his claims of religious discrimination and favoritism to the

attention of Jobson Publishing L.L.C. and offered said company no opportunity to address his purported concerns. 17. Plaintiff does not have standing to allege any violation of the rights of any

employee other than himself. 18. Plaintiff does not have standing to allege discrimination against members of a

religion of which he is not a member. 19. Plaintiff's First and Second Claims for Relief do not state separate claims and

should be read as a single claim for religious discrimination in violation of Title VII. 20. Jobson Publishing, LLC did not employ Plaintiff, is not a successor in interest to

Jobson Publishing L.L.C., and bears no liability for any actions of Jobson Publishing L.L.C., and is therefore not a proper Defendant in this matter.

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21.

The purchase agreement by which Jobson Publishing, LLC purchased certain of

Jobson Publishing L.L.C.'s assets expressly disclaims the assumption of any liability arising from this lawsuit, prohibiting any claim against Jobson Publishing, LLC based upon successor liability. 22. XJP is the new name of Jobson Publishing L.L.C., the only entity that employed

Plaintiff during the time period relevant to the claims underlying this lawsuit. XJP expressly assumed any liability arising from this lawsuit, and is therefore the only proper Defendant in this matter. 23. Some or all of Plaintiff's claims are frivolous and groundless and without a basis

in law or fact entitling Defendant to attorney's fees and costs of defense of this matter in conformity with applicable law. 24. Defendant specifically reserves the right to amend its Answer to include

additional defenses and affirmative defenses, or to delete defenses and affirmative defenses that become non-applicable, upon completion of additional discovery. JURY DEMAND Defendant hereby requests a trial by jury on all issues so triable. WHEREFORE, having fully answered Plaintiff's Amended Complaint, Defendant XJP, LLC prays for dismissal of same, with prejudice, that Defendant be allowed to recover their costs in defense of this matter, and for such other relief as this Court deems just and proper.

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Dated this 13th day of February 2006. Respectfully submitted,

s/__Gillian Dale _______ Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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CERTIFICATE OF MAILING I hereby certify that on the 13th day of February, 2006, I electronically filed the foregoing ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT FROM DEFENDANT XJP, LLC with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Ari Krichiver Nantiya Ruan Laura L. Rovner Marybeth Walsh Student Law Office University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 [email protected] [email protected] [email protected] [email protected]

s/ Denise Gutierrez . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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