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

Case 1:04-cv-01185-WDM-PAC

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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 Corporation, POSTGRADUATE INSTITUTE FOR MEDICINE, INC., a member of the Jobson Education Group, a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation, Defendants.

ANSWER TO PLAINTIFF'S AMENDED COMPLAINT AND JURY DEMAND FROM DEFENDANTS JOBSON PUBLISHING, LLC AND POSTGRADUATE INSTITUTE FOR MEDICINE, INC.

Defendants Jobson Publishing, LLC ("Jobson") and Postgraduate Institute for Medicine, Inc. ("PIM"),1 by and through their attorneys, Hall & Evans, L.L.C., and by way of Answer to Plaintiff's Amended Complaint and Jury Demand (the "Amended Complaint"), admit, deny, and aver as follows:

Although Plaintiff also names as a Defendant the International Center for Postgraduate Medical Education ("ICPME"), Defendants note that ICPME is not an independent legal entity and is not capable of being sued. The undersigned counsel did not waive service on behalf of ICPME, and to their knowledge ICPME has not been served in compliance with the Federal Rules of Civil Procedure. This Answer is filed solely on behalf of Jobson and PIM, and not on behalf of ICPME.

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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. JURISDICTION AND VENUE 1. Defendants deny that jurisdiction is properly invoked under each of the statutes

referenced in Paragraph 1 of the Amended Complaint, but admit that this Court has jurisdiction over this matter. 2. Defendants admit that venue is proper in this Court to the extent alleged in

Paragraph 2 of the Amended Complaint but deny all other allegations found therein. 3. Complaint. PARTIES 4. Defendants are without sufficient information to form a belief as to the truth of Defendants admit the allegations contained in Paragraph 3 of the Amended

the allegations contained in Paragraph 4 of the Amended Complaint, and therefore deny the same. 5. Complaint. 6. Complaint. Defendants deny the allegations contained in Paragraph 6 of the Amended Defendants admit the allegations contained in Paragraph 5 of the Amended

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7. Complaint. 8.

Defendants deny the allegations contained in Paragraph 7 of the Amended

Defendants admit that Jobson and PIM are "employers" within the meaning of

Title VII, 42 U.S.C. §2000e(b), but deny that ICPME is an "employer" within the meaning of Title VII, to the extent alleged in Paragraph 8 of the Amended Complaint. Defendants deny all other allegations in said Paragraph. 9. Defendants state and object that the allegations contained in Paragraph 9 of the

Amended Complaint call for a legal conclusion and not a fact that can be admitted or denied by Defendants. To any extent the allegations contained in paragraph 9 are construed as requiring a response from Defendants, all such allegations are denied. 10. Defendants admit that Plaintiff was employed by Jobson but deny that Plaintiff

was employed by PIM or ICPME, to the extent alleged by Paragraph 10 of the Amended Complaint. Defendants admit that Plaintiff was terminated by Jobson, but state that the effective date of his termination was August 31, 2003. FACTUAL ALLEGATIONS AND CLAIMS FOR RELIEF 11. Complaint. 12. Defendants admit that Plaintiff received positive work evaluations while Defendants admit the allegations contained in Paragraph 11 of the Amended

employed with Jobson, to the extent alleged by Paragraph 12 of the Amended Complaint, but deny all other allegations in said Paragraph.

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13.

Defendants admit that Plaintiff received positive work evaluations while

employed with Jobson, to the extent alleged by Paragraph 13 of the Amended Complaint, but deny all other allegations in said Paragraph. 14. Defendants admit that Jobson purchased PIM in 1999, and purchased another

entity in 2000 whose name was changed to ICPME in 2001, to the extent alleged in Paragraph 14 of the Amended Complaint. Defendants admit that in 2003, Jobson merged ICPME into PIM, with the merged offices to be located at a new location, to the extent alleged in Paragraph 14 of the Amended Complaint. Defendants note that Plaintiff was terminated during the course of this consolidation as his position became redundant, and he never worked in the consolidated office. 15. Complaint. 16. Complaint. 17. Defendants deny that they displayed Christian symbols in the workplace, to the Defendants deny the allegations contained in Paragraph 16 of the Amended Defendants deny the allegations contained in Paragraph 15 of the Amended

extent alleged by Paragraph 17 of the Amended Complaint. Defendants admit that Dennis Graber, the former Director of Operations for ICPME, possessed a picture of Jesus in his office, but deny this action is attributable to Defendants or that an employee's display of religious symbols in his own office constitutes the promotion of religion on the part of any employer. Defendants deny all other allegations contained in Paragraph 17 of the Amended Complaint. 18. Defendants deny that they displayed any items in Dennis Graber's office, and

state that they are without sufficient information to form a belief as to what additional items

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Dennis Graber displayed in his office, and therefore deny the allegations contained in Paragraph 18 of the Amended Complaint. 19. Complaint. 20. Complaint. 21. Complaint. 22. Complaint. 23. Complaint. 24. Complaint. 25. Complaint. 26. Defendants are without sufficient information to form a belief as to the truth of Defendants deny the allegations contained in Paragraph 25 of the Amended Defendants deny the allegations contained in Paragraph 24 of the Amended Defendants deny the allegations contained in Paragraph 23 of the Amended Defendants deny the allegations contained in Paragraph 22 of the Amended Defendants deny the allegations contained in Paragraph 21 of the Amended Defendants deny the allegations contained in Paragraph 20 of the Amended Defendants deny the allegations contained in Paragraph 19 of the Amended

the allegations contained in Paragraph 26 of the Amended Complaint, and therefore deny the same. 27. Defendants admit to understanding that there was something said in the nature of

the statement attributed to an employee of Defendants as described in Paragraph 17 of the Amended Complaint, but deny that any such statement was meant as a "warning," deny that any

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such statement was said with any intent to defame Jewish people, and deny that any such statement was an action of the Defendants. Defendants note their understanding that this

statement was not directed towards Plaintiff or even said in his presence. 28. Defendants admit that one other person in addition to Plaintiff was upset about the

statement described in Paragraph 27 of the Amended Complaint and complained to Jobson's Human Resources Vice President, Lorraine Orlando, but deny that this person believed this statement to constitute open hostility towards Plaintiff, who was not even present when the statement was made. Defendants deny all other allegations contained in Paragraph 28 of the Amended Complaint. 29. Defendants are without sufficient information to determine what other employees

said to Plaintiff, and therefore deny the same, but Defendants admit that Plaintiff and one other person reported the statement described in Paragraph 27 of the Amended Complaint to Ms. Orlando. Defendants note that Ms. Orlando immediately informed the speaker that such

statements were inappropriate and would not be tolerated by Jobson. Defendants deny all other allegations contained in Paragraph 29 of the Amended Complaint. 30. Complaint. 31. Complaint. 32. Complaint. Defendants deny the allegations contained in Paragraph 32 of the Amended Defendants deny the allegations contained in Paragraph 31 of the Amended Defendants deny the allegations contained in Paragraph 30 of the Ameded

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33.

Defendants admit that on one occasion Plaintiff approached Ms. Orlando to

discuss his concerns with the upcoming merger and his complaints that the management was not sufficiently receptive to his ideas, to the extent that this could be considered as alleged in Paragraph 33 of the Amended Complaint. During that discussion, Plaintiff also mentioned the statement described in Paragraph 27. Plaintiff raised none of the other complaints of religious or race discrimination contained in his Complaint with Ms. Orlando or any other member of Defendants' management teams, 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 believe he was being subjected to a hostile work environment. Defendants deny all other allegations contained in Paragraph 33 of the Amended Complaint. 34. In response to Paragraph 34 of the Amended Complaint, Defendants incorporate

their response to Paragraph 33 of the Amended Complaint. 35. Complaint. 36. Defendants are without sufficient information to form a belief as to the truth of Defendants deny the allegations contained in Paragraph 35 of the Amended

the allegations contained in Paragraph 36 of the Amended Complaint, and therefore deny the same. 37. Defendants admit 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 ICPME and PIM, that information regarding church activities was being made available in the workplace at PIM, and that a staff member had been praying in the office, to any extent such allegations are contained in Paragraph 37 of the

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Amended Complaint.

Defendants deny all other allegations contained in said Paragraph.

Defendants further note that Plaintiff was not one of these staff members who made such complaint, and that these concerns were immediately addressed by Jobson and considered by the staff members involved to have been resolved. 38. Complaint. 39. Complaint. 40. Defendants admit that they did not conduct any follow up interviews with Defendants deny the allegations contained in Paragraph 39 of the Amended Defendants deny the allegations contained in Paragraph 38 of the Amended

Plaintiff, to the extent alleged in Paragraph 40 of the Amended Complaint, because they believed the matter of the isolated comment described in Paragraph 27 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. Defendants admit they did not provide further EEO training following the complaints described above but state affirmatively that the Jobson equal employment opportunity policy was set out in the employee handbook provided to all employees. 41. Complaint. 42. Defendants admit that Plaintiff was terminated, but deny that such termination Defendants deny the allegations contained in Paragraph 41 of the Amended

had anything to do with his discussion with Ms. Orlando, to the extent alleged by Paragraph 42 of the Amended Complaint. Defendants deny all other allegations contained in Paragraph 42 of the Amended Complaint.

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43. Complaint. 44. Complaint. 45. Complaint. 46. Complaint. 47. Complaint. 48. Complaint. 49. Complaint. 50. Complaint. 51. Complaint. 52.

Defendants deny the allegations contained in Paragraph 43 of the Amended

Defendants deny the allegations contained in Paragraph 44 of the Amended

Defendants deny the allegations contained in Paragraph 45 of the Amended

Defendants deny the allegations contained in Paragraph 46 of the Amended

Defendants deny the allegations contained in Paragraph 47 of the Amended

Defendants deny the allegations contained in Paragraph 48 of the Amended

Defendants deny the allegations contained in Paragraph 49 of the Amended

Defendants deny the allegations contained in Paragraph 50 of the Amended

Defendants deny the allegations contained in Paragraph 51 of the Amended

Defendants deny that Plaintiff states any claim under the listed statutes. PRAYER FOR RELIEF

Defendants deny that Plaintiff is entitled to any of the requested relief.

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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 Defendants. 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 Defendants 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 Defendants' employees, for legitimate business reasons, for the purpose of serving Defendants and in the good faith belief that Defendants' employees acted in compliance with 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, Defendants and their 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. The facts alleged by Plaintiff do not rise to the level of a hostile work

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6.

Defendants' employees are entitled to express their own religious beliefs, and the

display of religious symbols in an employee's own office does not violate the rights of any other employee. 7. Defendants possessed good and sufficient cause for all actions taken in relation to

Plaintiff's employment. 8. Any actions taken by Defendant in relation to Plaintiff were taken for legitimate

non-discriminatory business reasons. 9. Defendants 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. Defendant never breached any duty owed Plaintiff at any time in the course of his

employment with Defendant. 11. Upon information and belief, Plaintiff obtained a new job prior to the expiration

of his severance pay at a higher wage than he was paid by Jobson, and therefore suffered no damages for lost wages. 12. Some or all of the damages, if any, alleged by Plaintiff were caused by the actions

of third parties, or circumstances over which Defendants had no right of control or actual control. 13. Upon information and belief, Plaintiffs 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

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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

Defendants' attention and offered Defendants no opportunity to address his purported concerns. 17. Plaintiff failed to exhaust his administrative remedies with respect to some of his

claims and with respect to some of the Defendants. 18. 19. ICPME is a division of Jobson and is not a separate entity capable of being sued. Plaintiff does not have standing to allege any violation of the rights of any

employee other than himself. 20. Plaintiff does not have standing to allege discrimination against members of a

religion of which he is not a member. 21. employer. 22. 23. Plaintiff's claims for injunctive relief against his former employer are moot. Some or all of Plaintiff's claims are frivolous and groundless and without a basis Plaintiff does not have standing to pursue injunctive relief against a former

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

additional defenses and affirmative defenses, or to delete defenses and affirmative defenses that become non-applicable, upon completion of additional discovery.

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JURY DEMAND Defendant hereby requests a trial by jury on all issues so triable. WHEREFORE, having fully answered Plaintiff's Amended Complaint, Defendants Jobson Publishing, LLC and Postgraduate Institute for Medicine, Inc. pray for dismissal of same, with prejudice, that Defendants be allowed to recover their costs in defense of this matter, and for such other relief as this Court deems just and proper. Dated this 12th day of October 2005. 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 12th day of October, 2005, I electronically filed the foregoing ANSWER TO PLAINTIFF'S AMENDED COMPLAINT AND JURY DEMAND FROM DEFENDANTS JOBSON PUBLISHING, LLC AND POSTGRADUATE INSTITUTE FOR MEDICINE, INC. with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Julie M. Schmidt Ari Krichiver Nantiya Ruan Laura L. Rovner Student Law Office University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 [email protected] [email protected] Kimberlie K. Ryan The Ryan Law Firm, LLC 283 Columbine Street, #157 Denver, CO 80206 [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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