Free Answer to Complaint - District Court of California - California

Case 5:08-cv-01769-JW

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ROBERT J. WILGER, Bar No. 168402 LITTLER MENDELSON A Professional Corporation 50 West San Fernando Street, 15th Floor San Jose, CA 95113.2303 Telephone: 408.998.4150 Fax: 408.288.5686 rwilger(g).littler.com Attorneys for Defendant HSBC TECHNOLOGY & SERVICES (U.S.A.) INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PRASAD SHANKAR, Plaintiff,
v.

Case No. CV 08 1769WHA ANSWER OF DEFENDANT HSBC TECHNOLOGY & SERVICES (U.S.A.) INC. TO PLAINTIFF'S EMPLOYMENT DISCRIMINATION COMPLAINT

HSBC, INC. and DOES 1 to 50, Defendants.

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Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant HSBC Technology & Services (U.S.A.) Inc., erroneously sued as HSBC, Inc., hereby answers the Employment Discrimination Complaint ("Complaint") filed by Plaintiff Prasad Shankar as follows: 1. Answering Paragraph 1 of the Complaint, Defendant is without sufficient

knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained in Paragraph 1 of the Complaint. 2. Answering Paragraph 2 of the Complaint, Defendant denies that "HSBC,

Inc." was Plaintiffs employer or is a legal entity that can be sued. Defendant admits that Plaintiff worked at 1441 Schilling Place in Salinas, California. 3. Answering Paragraph 3 of the Complaint, Defendant admits that Plaintiff

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LITTLER MENDELSON A PROFESSIONAL CORPORATION
15lti Floor Son Joso. CA 95113 2303 408998 4150

purports to bring this case under Title VII of the Civil Rights Act of 1964 for employment
Case No. CV08 1769WHA DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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discrimination, which gives the Court jurisdiction pursuant 42 U.S.C. section 2000e-5. Defendant also admits that Plaintiff purports to seek equitable relief under 42 U.S.C. section 2000e-5(g). Defendant denies that venue is proper in the San Francisco Division because the events or omissions which gave rise to Plaintiffs claims arose in Monterey County so that the case should be assigned to the San Jose Division of this Court pursuant to Civil Local Rule of Court 3-2. 4. Answering Paragraph 4 of the Complaint, Defendant admits that Plaintiff

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purports to bring his lawsuit based upon the termination of his employment, alleged harassment and alleged retaliation. Defendant admits that Plaintiff began his employment with Defendant on April 10, 2000, and was notified on July 11, 2007, of his termination from his employment with Defendant. Except as so specifically admitted, Defendant denies the remaining allegations contained in Paragraph 4 of the Complaint. 5. Answering Paragraph 5 of the Complaint, Defendant denies the allegations

contained in Paragraph 5 of the Complaint. 6. Answering Paragraph 6 of the Complaint, Defendant admits that Plaintiff was

notified on July 11, 2007, of the termination of his employment with Defendant. Defendant also admits that Plaintiff went on a leave of absence starting September 23, 2005. In addition, Defendant admits that Plaintiff filed charges of discrimination and workers' compensation claims against Defendant. Except as so specifically admitted, Defendant denies the allegations contained in

Paragraph 6 of the Complaint. 7. Answering Paragraph 7 of the Complaint, Defendant denies the allegations

contained in Paragraph 7 of the Complaint. 8. Answering Paragraph 8 of the Complaint, Defendant admits that Plaintiff filed

a Charge of Discrimination with the Federal Equal Employment Opportunity Commission. Except as so specifically admitted, Defendant denies the remaining allegations contained in Paragraph 8 of the Complaint. 9. Answering Paragraph 9 of the Complaint, Defendant is informed and believes

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LITTLER MENDELSON
50 Wesi San Foinnndo Si root I5lh Floor San Joso CA 95113 2303 408 998 4150

and on that basis admits that the Equal Employment Opportunity Commission issued a Notice of Right to Sue letter on March 11, 2008. Except as'so specifically admitted, Defendant denies the'
2. Case No. CV 08 1769 WHA

DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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remaining allegations contained in Paragraph 9 of the Complaint. 10. Answering Paragraph 10 of the Complaint, Defendant admits that Plaintiffs

purports to demand a jury for all claims for which a jury is permitted. 11. Answering Paragraph 11 of the Complaint, Defendant denies the allegations

contained in Paragraph 11 of the Complaint. AFFIRMATIVE DEFENSES AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That Plaintiffs Complaint, fails to allege facts sufficient to constitute any cause of action or to set forth a claim upon which relief can be granted. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: Defendant is informed and believes that Plaintiffs claims are barred by the applicable statutes of limitations, including but not limited to, the limitations period contained in 42 U.S.C. section 2000e-5(e)(l). AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That Plaintiff is barred in equity from recovering on his Complaint, or on any claim contained therein, under the doctrine of unclean hands. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That Plaintiff is estopped to assert his claims due to his own conduct, acts, or omissions and is precluded from recovering against Defendant on any purported claims for relief contained in the Complaint. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That Plaintiff has failed to exhaust his administrative remedies, the exhaustion of which is a condition precedent to the maintenance of those causes of action.
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LITTLER MENDELSON A PROFESSIONAL CORPORMION 50 Wosl San Folnando Sliool 15th Floor Sun Joio-CA 9 5 I I 3 2303 408998 4150

DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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AS A SIXTH SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: Plaintiffs claims are barred, in whole or in part, by Plaintiffs unreasonable failure to take advantage of preventative and corrective opportunities, including but not limited to antiharassment and non-discrimination policies, and to otherwise avoid harm as that expression is used in the United States Supreme Court decisions in Burlington Industries, Inc., v Ellerth, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1198). Plaintiff was employed by an equal opportunity employer that communicated to employees policies and procedures to prevent harassment and discrimination, and further have and had an effective procedure, which was communicated to employees, for employees to come forward with complaints and if appropriate, to take prompt effective corrective action. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That all actions with regard to Plaintiff (1) were made for legitimate, nondiscriminatory business reasons, (2) were based on reasonable factors, and (3) were a just and proper exercise of management discretion undertaken for a fair and honest reason, not prohibited by law. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: Defendant has acquired evidence of wrongdoing by Plaintiff and the wrongdoing would have materially affected the terms and conditions of Plaintiff s employment or would have resulted in Plaintiff either being demoted, disciplined, or terminated, such after-acquired evidence shall bar Plaintiffs claim on liability or damages or shall reduce such claim or damages as provided
by law.

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AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, Defendant alleges: That to the extent that Plaintiff claims that he has suffered emotional distress damages due to Defendant's alleged conduct, Defendant alleges that the court lacks jurisdiction of this matter, as Plaintiffs claims are barred by the exclusive remedy provision of the California Workers'
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LITTLER MENDELSON A PROFESSION CORPORATION 15lh Floor San Jose, CA 95113 2303 408998 4150

DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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LITTLER MENDELSON A PROFESSIONAL CORPORATION I5lh Floor San Joso. CA 95113 2303 406 398 4150

Compensation Act, California Labor Code sections 3200, et. seq. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, DEFENDANT alleges: That the Complaint fails to state a claim for attorneys' fees under 42 U.S.C. section 2000e-5(k), or any other basis. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, DEFENDANT alleges: That Plaintiff's damages, if any, are barred to the extent that Plaintiff has failed to mitigate damages, and any recovery of damages, if any there be, should be reduced in the amount by which Plaintiff should have mitigated those alleged damages. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO EACH AND EVERY CLAIM SET FORTH IN THE COMPLAINT, DEFENDANT alleges: Venue is improper in the San Francisco Division of the Court because the events or omissions which gave rise to Plaintiffs claims arose in Monterey County so that the case should be assigned to the San Jose Division of this Court pursuant to Civil Local Rule of Court 3-2. WHEREFORE, Defendant prays judgment against Plaintiff as follows: 1. For an order dismissing Plaintiffs claims with prejudice, and entering

judgment in favor of Defendant and against Plaintiff; 2. For all reasonable costs and attorneys' fees incurred by Defendant in

connection with the defense of this matter; and

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Case No. CV 08 1769 WHA

DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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3.

For such other and further relief as the Court in the exercise of its discretion

deems just and proper.

Dated: May 21,2008

ROBERT J. WILGER LITTLER MENDELSON A Professional Corporation Attorneys for Defendant HSBC TECHNOLOGY & SERVICES (U.S.A.) INC.
Firmwide:85230880.1 023404.1053

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LITTLER MENDELSON A PROFESSIONAL CORPORATION SO West San Fernando Slieel 15lh Floor San Jose. CA 95113 2303 408 998 4150

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Case No. CV 08 1769 WHA

DBF HSBC TECH & SERVICE (USA) INC.'S ANS TO PLF'S EMPLOYMENT DISCRIMINATION COMPLAINT

Case 5:08-cv-01769-JW

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PROOF OF SERVICE BY MAIL I am employed in Santa Clara County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 50 West San Fernando Street, 15th Floor, San Jose, California 95113.2303. I am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. On May 21, 2008,1 placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): ANSWER OF DEFENDANT HSBC TECHNOLOGY & SERVICES (U.S.A.) INC. TO PLAINTIFF'S EMPLOYMENT DISCRIMINATION COMPLAINT in a sealed envelope, postage fully paid, addressed as follows: Prasad Shankar 2701 East Brookshire, Apt. 201 Sioux Falls, SD 57103 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 21, 2008, at San Jose, California.

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LAj2-^-~v m^A, Jan M. ©aeden

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LITTLER MENDELSON 15ih Floor
San Josa CA 95113 2303 408 998 4150

PROOF OF SERVICE