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

Case 1:04-cv-00687-PSF-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0687-PSF-BNB MARY JO LAIRD, Plaintiff, v. GUNNISON COUNTY, a County of the State of Colorado, acting through the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, JOHN DEVORE, and PEGGY MARTIN, in their individual capacities, Defendants. ______________________________________________________________________________ ANSWER TO THIRD AMENDED COMPLAINT AND JURY DEMAND ______________________________________________________________________________ Defendants, GUNNISON COUNTY, acting through the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, JOHN DeVORE, and PEGGY MARTIN, by their attorney, ERIC M. ZIPORIN, ESQ. and pursuant to Fed.R.Civ.P. 8 and 12, hereby answer and respond to Plaintiff's Third Amended Complaint and Jury Demand (hereinafter "Plaintiff's Complaint") as follows: ANSWER 1. 2. Defendants admit the allegations set forth in paragraph 5 of Plaintiff's Complaint. Defendants deny the allegations set forth in paragraphs 11, 14, 15, 18, 19, 22, 23,

25, 26, 28, 29, 30, 31, 32, 33, 35, 36, 37, and 38 of Plaintiff's Complaint.

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3.

With respect to the allegations set forth in paragraphs 1 and 2 of Plaintiff's

Complaint, such are strictly legal assertions as opposed to factual allegations and therefore do not require a response from Defendants. 4. With respect to the allegations set forth in paragraph 3 of Plaintiff's Complaint,

Defendants admit that Plaintiff was employed with Gunnison County from 1988 through September 30, 2002, and was last employed as Branch Librarian for the Crested Butte Library, a division of the Gunnison Library. However, Defendants are without sufficient information to form a belief as to the veracity of the remaining allegations within said paragraph and, as such, deny same. 5. With respect to the allegations set forth in paragraph 4 of Plaintiff's Complaint,

Defendants admit that the Board of County Commissioners of the County of Gunnison is the governing body for Defendant County of Gunnison and that Gunnison County is a county of the State of Colorado. paragraph. 6. With respect to the allegations set forth in paragraph 6 of Plaintiff's Complaint, However, Defendants deny the remaining allegations set forth in said

Defendant DeVore admits that at all relevant times as alleged in Plaintiff's Complaint, he was acting either as the County Manager or Chief Executive Officer of the County of Gunnison. However, with regard to the remaining allegations set forth in said paragraph, such are legal assertions as opposed to factual allegations and therefore do not require a response from Defendants. To the extent that the remaining allegations in this paragraph are factual in nature, Defendant DeVore is without sufficient information to form a belief as to the veracity of same and, as such, denies same.

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7.

With respect to the allegations set forth in paragraph 7 of Plaintiff's Complaint,

Defendant Martin admits that at all relevant times as alleged in Plaintiff's Complaint, she was acting as the Library Director for the County of Gunnison and at the behest of the Board of Trustees for the Gunnison County Public Library. However, with regard to the remaining allegations set forth in said paragraph, such are legal assertions as opposed to factual allegations and therefore do not require a response from Defendants. To the extent that the remaining allegations are factual in nature, Defendant Martin is without sufficient information to form a belief as to the veracity of same and, as such, denies same. 8. With respect to the allegations set forth in paragraph 8 of Plaintiff's Complaint,

Defendants admit that Plaintiff was a good employee throughout her tenure with Gunnison County and appeared to be loyal and dedicated. Defendants further admit that as a result of her competent and efficient work, Plaintiff received pay increases, commendations, and for the most part, favorable performance reviews before being laid off due to a reduction in work force (her position of Branch Librarian being eliminated). allegations in said paragraph. 9. With respect to the allegations set forth in paragraph 9 of Plaintiff's Complaint, However, Defendants deny the remaining

Defendants admit that prior to and at the time of Plaintiff being laid off from Gunnison County due to a reduction in work force (her position of Branch Librarian being eliminated), the County had in effect "Personnel Policies" which were applicable to all Gunnison County employees. However, Defendants deny the remaining allegations in said paragraph. 10. With respect to the allegations set forth in paragraph 10 of Plaintiff's Complaint,

such are for the most part incomplete portions of the Gunnison Personnel Policies as opposed to

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factual allegations and therefore do not require a response from Defendants. Nonetheless, Defendants admit that the portions cited accurately reflect language within the Personnel Policies. However, Plaintiff has failed to cite in their entirety most of the Personnel Policies referenced in said paragraph. 11. With respect to the allegations set forth in paragraph 12 of Plaintiff's Complaint,

Defendants admit that Plaintiff received notice of her being laid off due to a reduction in work force (her position of Branch Librarian being eliminated), and that said notice was dated September 18, 2002 and received by Plaintiff on September 19, 2002. However, Defendants deny the remaining allegations in said paragraph. 12. With respect to the allegations set forth in paragraph 13 of Plaintiff's Complaint,

Defendants admit that Plaintiff filed an appeal within ten (10) days of receipt of the letter informing her that she was being laid off due to a reduction in work force (her position of Branch Librarian being eliminated), and that Defendant Gunnison County did not receive Plaintiff's letter requesting an appeal until September 26, 2002. However, Defendants deny the remaining allegations in said paragraph. 13. With respect to the allegations set forth in paragraphs 17 and 21 of Plaintiff's

Complaint, such are legal assertions as opposed to factual allegations and thus do not require a response from Defendants. 14. Defendants deny the allegations realleged at paragraphs 16, 20, 24, 27, and 34 of

Plaintiff's Complaint. 15. Defendants deny all allegations not expressly admitted to herein.

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DEFENSES 1. 2. Plaintiff's Complaint fails to state any claim upon which relief can be granted. Plaintiff's claims and damages, if any, were proximately caused by the acts or

omissions of Plaintiff. 3. Plaintiff's claims and damages, if any, were proximately caused by the acts or

omissions of others over whom these Defendants neither had control nor right of control. 4. 5. 6. Plaintiff. 7. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are barred in that she did not have Plaintiff's claims are barred by the applicable statutes of limitation. Plaintiff has failed to reasonably mitigate her alleged damages. Plaintiff's alleged damages, if any, are not of the nature and extent as alleged by

a protected property interest in her employment as she was an at-will employee under Colorado law. 8. Plaintiff's claims against Defendants DeVore and Martin are barred in that these

Defendants are entitled to qualified immunity. 9. 10. Defendants' actions were not willful, wanton, or in bad faith. Plaintiff's claims are barred because at no time did she have either an express or

implied contract of employment with Gunnison County. 11. To the extent that it is later determined that either an express or implied contract

existed, Plaintiff's claims are barred by the doctrines of waiver and estoppel.

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12.

Plaintiff cannot establish an implied contract based upon the Personnel Policies

because Defendants did not demonstrate a willingness to be bound by the appeal procedures as applicable to a lay off as the result of a reduction in work force. 13. Plaintiff's claims are barred because she could not have reasonably understood

that Defendants were offering the Personnel Policies as part of the terms and conditions of her employment. 14. Plaintiff's claims are barred because Defendants complied with the Personnel

Policies as pertaining to a lay off as the result of a reduction in work force. 15. Plaintiff's claims are barred because Defendants should not reasonably have

expected Plaintiff to consider the Personnel Policies as a commitment from Defendants to apply the appeal procedures to a lay off as the result of a reduction in work force. 16. Defendants reserve the right to add such additional defenses as become apparent

upon disclosure and discovery. REQUEST FOR RELIEF WHEREFORE, having fully answered Plaintiff's Complaint, Defendants request the Court grant relief as follows: A. B. C. D. Entering judgment of dismissal in favor of Defendants and against Plaintiff; Entering judgment in favor of Defendants and against Plaintiff for attorneys' fees; Entering judgment in favor of Defendants and against Plaintiff for costs; and Such other and further relief as the Court deems just and proper. JURY DEMAND Defendants hereby demand that this case be tried to a jury pursuant to Fed.R.Civ.P. 38.

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Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin, Esq. SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 [email protected] Attorney for Defendants

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of December, 2005, I electronically filed a true and correct copy of the above and foregoing ANSWER with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Nathan Davidovich [email protected] Ronald Nemirow [email protected]

s/ Barbara A. Ortell Barbara A. Ortell E-mail: [email protected] Secretary for Attorney Eric M. Ziporin

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