Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02435-PSF-PAC (Consolidated with 04-cv-00639-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

and Consolidated Civil Action No. 04-cv-00639-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, ED SANCHEZ, RAYMOND DELUNA, and E. THORSLAND, JR., Defendants. ________________________________________________________________________ DEFENDANT'S AMENDED ANSWER TO SECOND AMENDED COMPLAINT

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Comes now the defendant, Anthony J. Principi, Secretary, Department of Veterans Affairs, and in answer to the individually-numbered paragraphs of plaintiff Lillian F. Sandle's Second Amended Complaint filed on November 9, 2005, admits, denies, and responds as follows: 1. The unnumbered paragraph on page 1 contains characterizations of this

lawsuit to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein. 2. The first sentence of Paragraph 1 contains characterizations of this lawsuit

to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein. Defendant denies the allegations contained in the second and third sentences of paragraph 1. 3. 4. 5. Defendant admits the allegations contained in paragraph 2. Defendant admits the allegations contained in paragraph 3. Paragraph 4 contains characterizations of this lawsuit and statements of law

to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein. 6. Paragraph 5 contains characterizations of this lawsuit and statements of law

to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein.

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7.

Paragraph 6 contains statements of law to which no response is deemed

required, but to the extent that any response is deemed required, defendant denies the averments contained therein. 8. With respect to the allegations contained in paragraph 7, defendant admits

that Ms. Sandle was a Registered Nurse and that she was formerly employed with the VA, beginning in 1982. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that Ms. Sandle is a Registered Nurse at the present time, but to the extent that any response is deemed required, defendant denies the averment. 9. 10. Defendant admits the allegations contained in paragraph 8. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 9, but to the extent that any response is deemed required, defendant denies the averments contained therein. 11. 12. 13. Defendant admits the allegations contained in paragraph 10. Defendant admits the allegations contained in paragraph 11. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 12, but to the extent that any response is deemed required, defendant denies the averments contained therein. 14. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 13, but to the extent that any response is deemed

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required, defendant denies the averments contained therein. 15. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 14, but to the extent that any response is deemed required, defendant denies the averments contained therein. 16. With respect to the allegations contained in paragraph 15, defendant admits

that in 1987 plaintiff was placed "in various light duty positions within the VAMC" "due to the physical restrictions resulting from her back injury." Defendant denies all other allegations in this paragraph. 17. 18. 19. 20. 21. Defendant admits the allegations contained in paragraph 16. Defendant denies the allegations contained in paragraph 17. Defendant denies the allegations contained in paragraph 18. Defendant denies the allegations contained in paragraph 19. With respect to the allegations contained in paragraph 20, defendant admits

that Martha Weeks issued a Proficiency Report to plaintiff signed on May 28, 1987. Defendant denies that the Proficiency Report was "well within the satisfactory range." 22. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 21, but to the extent that any response is deemed required, defendant denies the averments contained therein. 23. Defendant lacks knowledge sufficient to form a belief as to the truth of the

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averments contained in paragraph 22, but to the extent that any response is deemed required, defendant denies the averments contained therein. 24. 25. Defendant denies the allegations contained in paragraph 23. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 24, but to the extent that any response is deemed required, defendant denies the averments contained therein. 26. 27. Defendant denies the allegations contained in paragraph 25. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 26, but to the extent that any response is deemed required, defendant denies the averments contained therein. 28. 29. Defendant denies the allegations contained in paragraph 27. With respect to the allegations contained in paragraph 28, defendant denies

that plaintiff "contacted an EEOC counselor" on September 18, 1987. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff "filed" a Complaint of Employment Discrimination on September 18, 1987, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 28, those allegations appear to refer to a Complaint of Employment Discrimination dated September 18, 1987. Defendant submits that the Complaint of Employment Discrimination speaks for itself and is the best

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evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Complaint of Employment Discrimination, defendant denies those allegations. 30. 31. Defendant denies the allegations contained in paragraph 29. Defendant denies the allegations contained in paragraph 30. Defendant did

not "alleg[e] that Ms. Sandle was responsible for taking the missing narcotics." 32. With respect to the allegations contained in paragraph 31, defendant denies

that defendant accused plaintiff "of refusing to assist an LPN with a patient." Defendant admits that a patient accused plaintiff of refusing to assist an LPN in transferring the patient onto a commode. 33. 34. Defendant denies the allegations contained in paragraph 32. The allegations contained in paragraph 33 refer to a letter. Defendant

submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. Defendant admits that the letter is dated October 8, 1987. Defendant denies all other allegations in this paragraph. 35. 36. Defendant denies the allegations contained in paragraph 34. With respect to the allegations contained in paragraph 35, defendant admits

that Ms. Weeks placed plaintiff on a performance plan. Defendant lacks knowledge

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sufficient to form a belief as to the truth of the averment that plaintiff was placed on the performance plan on or about October 10, 1987, but to the extent that any response is deemed required, defendant denies the averment. 37. With respect to the allegations contained in paragraph 36, defendant lacks

knowledge sufficient to form a belief as to the truth of the averment that plaintiff was "required" to participate in weekly conferences, but to the extent that any response is deemed required, defendant denies the averment. Defendant admits that it was the usual practice at the Denver VAMC to conduct weekly conferences with nurses on performance plans. 38. With respect to the allegations contained in paragraph 37, defendant admits

that plaintiff made one or more requests for a class, training or a transfer. Defendant denies all other allegations in said paragraph. 39. The allegations contained in paragraph 38 refer to a memorandum.

Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. 40. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averment in paragraph 39 that plaintiff "wrote a letter to Ms. Sheldon on or about October 19, 1987", but to the extent that any response is deemed required, defendant denies that

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averment. With respect to the remaining allegations contained in paragraph 39, those allegations refer to the letter written by plaintiff. Defendant submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. 41. The allegations contained in paragraph 40 appear to refer to a one-page

memorandum dated October 21, 1987, from the Chief, Nursing Service to the plaintiff. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. 42. With respect to the allegations contained in paragraph 41, defendant admits

that "[o]n or about November 2, 1987, Ms. Sandle met with Ms. Sheldon and Emma Sneed in Ms. Sheldon's office." Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in said paragraph, but to the extent that any response is deemed required, defendant denies the averments contained therein. 43. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 42, but to the extent that any response is deemed required, defendant denies the averments contained therein. 44. Defendant denies the allegations contained in paragraph 43.

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45.

With respect to the allegations contained in paragraph 44, defendant admits

that Ms. Weeks prepared a memorandum indicating that, on or about November 4, 1987, "Ms. Sandle stated that she could not return to work until the 10th, due to [a] recurrent back problem" and that plaintiff requested LWOP through the 10th. Defendant further admits that in Ms. Weeks memorandum she indicates she "[i]nformed her to bring in the physician's statement. . . ." Defendant denies all other allegations contained in said paragraph. 46. With respect to the allegations contained in paragraph 45, defendant admits

that Ms. Weeks prepared a memorandum dated November 11, 1987 which stated that "Ms. Sandle reported to work with a physician statement restricting her to 10 lbs lifting." Defendant further admits that Ms. Weeks' November 11, 1987 memorandum states: "Informed her that we could not accommodate her restriction. . . ." With respect to the remaining allegations contained in this paragraph, defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. 47. With respect to the allegations contained in paragraph 46, defendant denies

that plaintiff "contacted an EEOC counselor" on or about December 23, 1987. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff

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"filed" a Complaint of Employment Discrimination on or about December 23, 1987, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 46, those allegations appear to refer to a Complaint of Employment Discrimination dated December 23, 1987. Defendant submits that the Complaint of Employment Discrimination speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the alleged Complaint of Employment Discrimination, defendant denies those allegations. 48. With respect to the allegations contained in paragraph 47, defendant lacks

knowledge sufficient to form a belief as to the truth of those allegations, but to the extent that any response is deemed required, defendant denies the allegations contained therein. 49. With respect to the allegations contained in paragraph 48, defendant lacks

knowledge sufficient to form a belief as to the truth of those allegations, but to the extent that any response is deemed required, defendant denies the allegations contained therein. 50. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averment in paragraph 49 that a Report of Investigation was "issued" in "May 1989", but to the extent that any response is deemed required, defendant denies that averment. With respect to the remaining allegations contained in paragraph 49, those allegations appear to refer to a Report of Investigation. Defendant submits that any such Report of

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Investigation speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Report of Investigation, defendant denies those allegations. 51. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 50, but to the extent that any response is deemed required, defendant denies the averments contained therein. 52. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 51, but to the extent that any response is deemed required, defendant denies the averments contained therein. 53. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 52, but to the extent that any response is deemed required, defendant denies the averments contained therein. 54. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 53, but to the extent that any response is deemed required, defendant denies the averments contained therein. 55. With respect to the allegations contained in paragraph 54, defendant admits

that plaintiff returned to duty in July of 1989. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in this paragraph, but to the extent that any response is deemed required, defendant denies the averments contained therein.

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56.

Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments contained in paragraph 55, but to the extent that any response is deemed required, defendant denies the averments contained therein. 57. With respect to the allegations contained in paragraph 56, defendant admits

that plaintiff's request for "critical care" course training and her request to be transferred out of the NHCU were received by defendant. Defendant further admits that Judith L Wilson prepared a memorandum regarding these requests, which stated, in part: "I declined to accept you into the critical care course scheduled for October 10, 1989. This decision was made after reviewing your last proficiency dated May 1987, and considering that you have not worked in nursing for almost two years. Your request for transfer will be considered after areas noted for improvement in your last proficiency have been demonstrated and documented." Defendant denies all other allegations in this paragraph. 58. With respect to the allegations contained in paragraph 57, defendant admits

that Ms. Weeks submitted a memorandum to plaintiff, dated September 8, 1989, which provided that plaintiff's "Nursing Education, ward, off shift and weekend orientation is complete" and that plaintiff's "90 day time period to improve performance begins Friday, September 15th." Defendant denies all other allegations in said paragraph. 59. 60. Defendant admits the allegations contained in paragraph 58. With respect to the allegations contained in paragraph 59, those allegations

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refer to a letter. Defendant submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment regarding the date the letter was sent to the VAMC, but to the extent that any response is deemed required, defendant denies the averment. 61. With respect to the allegations contained in paragraph 60, those allegations

refer to a letter. Defendant submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment regarding the date the letter was sent to the VAMC, but to the extent that any response is deemed required, defendant denies the averment. 62. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averment regarding the allegations in paragraph 61, but to the extent that any response is deemed required, defendant denies the allegations contained therein. 63. With respect to the allegations contained in paragraph 62, those allegations

refer to a memorandum. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are

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inconsistent with or contradicted by the memorandum, defendant denies those allegations. Defendant admits that the memorandum is dated September 25, 1989. 64. With respect to the allegations contained in paragraph 63, defendant lacks

knowledge sufficient to form a belief as to the truth of the averment in that paragraph that the letter was written "on or about September 26, 1989", but to the extent that any response is deemed required, defendant denies that averment. With respect to the remaining allegations contained in paragraph 63, those allegations refer to the letter. Defendant submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. 65. With respect to the allegations contained in paragraph 64, those allegations

refer to a memorandum. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. Defendant admits that the memorandum is dated October 3, 1989. 66. With respect to the allegations contained in paragraph 65, those allegations

refer to a memorandum. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations.

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67. 68.

Defendant denies the allegations contained in paragraph 66. With respect to the allegations contained in paragraph 67, those allegations

appear to refer to a memorandum, letter or written document of some sort. Defendant submits that the document referred to in this paragraph speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the document, defendant denies those allegations. 69. 70. Defendant denies the allegations contained in paragraph 68. With respect to the allegations contained in paragraph 69, those allegations

refer to a written document. Defendant submits that the document referred to in this paragraph speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the document, defendant denies those allegations. 71. With respect to the allegations contained in paragraph 70, those allegations

refer to a memorandum. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. Defendant admits that the memorandum is dated October 31, 1989. 72. 73. Defendant denies the allegations contained in paragraph 71 With respect to the allegations contained in paragraph 72, defendant denies

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that plaintiff "contacted an EEOC counselor" on November 29, 1989. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff "filed" a Complaint of Employment Discrimination on September 18, 1987, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 72, those allegations appear to refer to a Complaint of Employment Discrimination which contains the date "11/29/89." Defendant submits that this Complaint of Employment Discrimination speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Complaint of Employment Discrimination, defendant denies those allegations. . 74. With respect to the allegations contained in paragraph 73, defendant lacks

knowledge sufficient to form a belief as to the truth of the averment in that paragraph that the document was written "on or about March 19, 1990", but to the extent that any response is deemed required, defendant denies that averment. With respect to the remaining allegations contained in paragraph 74, those allegations refer to the document. Defendant submits that the document speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the document, defendant denies those allegations. 75. With respect to the allegations contained in paragraph 74, defendant admits

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that it submitted to plaintiff a proficiency report that was signed by Martha Weeks on March 26, 1990, and that the report indicated that it covered the period from "05-02-87" to "11-14-89." With respect to the remaining allegations contained in paragraph 74, those allegations refer to the proficiency report. Defendant submits that the proficiency report speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the proficiency report, defendant denies those allegations. 76. With respect to the allegations contained in paragraph 75, defendant lacks

knowledge sufficient to form a belief as to the truth of the averment in that paragraph that the memorandum was written "on or about April 2, 1990", but to the extent that any response is deemed required, defendant denies that averment. Defendant admits that the memorandum is dated April 2, 1990. With respect to the remaining allegations contained in paragraph 75, those allegations refer to the memorandum. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. 77. Defendant denies the allegations contained in paragraph 76. Defendant

admits that Sheldon Rogers, M.D., "signed" a document on April 27, 1990 entitled "Work Restriction Evaluation" concerning plaintiff.

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78. 79.

Defendant denies the allegations contained in paragraph 77. With respect to the allegations contained in paragraph 78, defendant denies

that plaintiff "contacted an EEOC counselor" on June 6, 1990. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff "filed" a Complaint of Employment Discrimination on June 6, 1990, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 78, those allegations appear to refer to a Complaint of Employment Discrimination dated "6/6/1990." Defendant submits that the Complaint of Employment Discrimination speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Complaint of Employment Discrimination, defendant denies those allegations. 80. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments in paragraph 79, but to the extent that any response is deemed required, defendant denies the averments contained therein. 81. Because defendant lacks knowledge sufficient to form a belief as to the

truth of the averments in paragraph 79, defendant cannot respond at this time to the allegations in paragraph 80, but to the extent that any response is deemed required, defendant denies the allegations contained therein.

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82.

With respect to the allegations contained in paragraph 81, those allegations

refer to a letter dated October 31, 1989, from Rebecca Newsom Williams to plaintiff. Defendant submits that the letter speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the letter, defendant denies those allegations. 83. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments in paragraph 82, but to the extent that any response is deemed required, defendant denies the averments contained therein. 84. With respect to the allegations contained in paragraph 83, defendant lacks

knowledge sufficient to form a belief as to the truth of those averments, but to the extent that any response is deemed required, defendant denies the averments contained therein. 85. 86. Defendant admits the allegations contained in paragraph 84. With respect to the allegations contained in paragraph 85, defendant admits

that the Physical Standards Board met on April 2, 1991, and defendant further admits that the Board recommended a special physical examination of plaintiff. Defendant denies all other allegations in said paragraph. 87. 88. 89. Defendant admits the allegations contained in paragraph 86. Defendant admits the allegations contained in paragraph 87. With respect to the allegations contained in paragraph 88, those allegations

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refer to Dr. Oboler's memorandum dated May 17, 1991. Defendant submits that the memorandum speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the memorandum, defendant denies those allegations. 90. With respect to the allegations contained in paragraph 89, those allegations

appear to refer to a document dated June 4, 1991 and entitled "Board Action." Defendant submits that the document speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the document, defendant denies those allegations. 91. With respect to the allegations contained in paragraph 90, those allegations

refer to the Notice of Separation. Defendant submits that the Notice of Separation speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Notice of Separation, defendant denies those allegations. 92. Defendant denies the allegations contained in paragraph 91. Defendant

admits that a "Notice of Separation" was issued to Ms. Sandle dated June 13, 1991, informing her that she "will be separated [because she had been] determined to be physically incapable of performing the duties of the position [of] Staff Nurse." 93. With respect to the allegations contained in paragraph 92, defendant denies

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that plaintiff "contacted an EEOC counselor" on August 28, 1991. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff "filed" a Complaint of Employment Discrimination on August 28, 1991, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 92, those allegations appear to refer to a Complaint of Employment Discrimination dated August 28, 1991. Defendant submits that the Complaint of Employment Discrimination speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent with or contradicted by the Complaint of Employment Discrimination, defendant denies those allegations. 94. With respect to the allegations contained in paragraph 93, defendant denies

that plaintiff "contacted an EEOC counselor" on September 23, 1993. Defendant lacks knowledge sufficient to form a belief as to the truth of the averment that plaintiff "filed" a Complaint of Employment Discrimination on September 30, 1991, but to the extent that any response is deemed required, defendant denies the averment. With respect to the remaining allegations contained in paragraph 93, those allegations appear to refer to a Complaint of Employment Discrimination dated September 30, 1993. Defendant submits that the Complaint of Employment Discrimination speaks for itself and is the best evidence as to its contents. To the extent the allegations in this paragraph are inconsistent

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with or contradicted by the Complaint of Employment Discrimination, defendant denies those allegations. 95. Defendant lacks knowledge sufficient to form a belief as to the truth of the

averments in paragraph 94, but to the extent that any response is deemed required, defendant denies the averments contained therein. 96. With respect to the allegations contained on paragraph 1 on page 14 of the

Second Amended Complaint, defendant repeats and incorporates by reference each and every answer to each and every allegation contained in the above paragraphs of the Complaint as though fully set forth herein. 97. With respect to the allegations contained on paragraph 2 on page 14 of the

Second Amended Complaint, defendant lacks knowledge sufficient to form a belief as to whether or not plaintiff "has a disability" at the present time "within the meaning of the Rehabilitation Act", but to the extent that any response is deemed required, defendant denies the averment. To the extent paragraph 2 on page 14 of the Second Amended Complaint may be read to allege that plaintiff "had" a disability "within the meaning of the Rehabilitation Act," defendant denies the allegation. 98. With respect to the allegations contained on paragraph 3 on page 14 of the

Second Amended Complaint, defendant denies those allegations. 99. With respect to the allegations contained on paragraph 4 on page 14 of the

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Second Amended Complaint, defendant denies those allegations. 100. With respect to the allegations contained on paragraph 5 on page 14 of the

Second Amended Complaint, defendant denies those allegations. 101. With respect to the allegations contained on paragraph 6 on page 14 of the

Second Amended Complaint, defendant denies those allegations. 102. With respect to the allegations contained on paragraph 7 on page 14 of the

Second Amended Complaint, defendant repeats and incorporates by reference each and every answer to each and every allegation contained in the above paragraphs of the Complaint as though fully set forth herein. 103. With respect to the allegations contained on paragraph 8 on pages 14-15 of

the Second Amended Complaint, that paragraph contains statements of law to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein. 104. With respect to the allegations contained on paragraph 9 on page 15 of the

Second Amended Complaint, defendant denies the allegations contained therein except to admit that plaintiff "engaged in activities protected by . . . Title VII. . . ." 105. With respect to the allegations contained on paragraph 10 on page 15 of the

Second Amended Complaint, defendant denies those allegations. 106. With respect to the allegations contained on paragraph 11 on page 15 of the

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Second Amended Complaint, defendant denies those allegations. 107. The remaining unnumbered paragraphs on page 16 of the Second Amended

Complaint consist of plaintiffs "Demand for Jury Trial" and plaintiff's "Prayer for Relief" to which no response is deemed required, but to the extent that any response is deemed required, defendant denies the averments contained therein. Any allegation in plaintiff's Second Amended Complaint that has not already been admitted, denied, or otherwise responded to is hereby denied. Defenses 1. Plaintiff failed to timely initiate this civil action, because she failed to file

her Complaint with this Court within the ninety day period of time proscribed by 42 U.S.C. § 2000e-16. 2. To the extent plaintiff raises in her Second Amended Complaint any new

claims that were not raised in her original complaint, those new claims are time-barred. 3. Plaintiff's claims are barred by the doctrine of estoppel. Plaintiff entered

into and signed a written administrative settlement agreement on April 2, 1997, resolving all issues in plaintiff's Second Amended Complaint. Pursuant to the written administrative settlement agreement, plaintiff received the amount of $50,000 and her attorney at the time received attorney's fees in the amount of $16,600. 4. Plaintiff's claims are barred by the doctrine of accord and satisfaction, due

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to the written administrative settlement agreement she entered into and signed on April 2, 1997, which resulted in payment to her of the amount of $50,000 and payment to her attorney at the time of the amount of $16,600. 5. Plaintiff's recovery in this matter, if any, should be set off to the extent she

received $50,000, and her attorney at the time received attorney's fees in the amount of $16,600, pursuant to a written settlement agreement which plaintiff signed on April 2, 1997. 6. her. 7. The defendant's actions were taken for legitimate, nondiscriminatory and Plaintiff failed to timely exhaust the administrative remedies available to

non-retaliatory reasons. 8. After-acquired evidence demonstrates that the defendant's actions were not

discriminatory or retaliatory. 9. The defendant is not liable to plaintiff on her claims under Title VII and the

Rehabilitation Act because defendant made a good-faith effort to comply with the law. 10. Defendant asserts that the actions taken against the plaintiff would have

been the same despite the existence of any impermissible factor, assuming arguendo that an impermissible factor exists in this case. 11. Plaintiff failed to mitigate her damages.

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12.

Plaintiff is not entitled to compensatory damages, because the actions

complained of occurred prior to amendment of Title VII of the Civil Rights Act of 1964. 13. the agency. 14. The defendant acted in good faith to provide plaintiff with a reasonable Plaintiff's requested accommodation(s) would pose an undue hardship upon

accommodation, and therefore she is not entitled to damages. 42 U.S.C. § 1981a. 15. The defendant is not liable for its removal decision because plaintiff posed

a direct threat to other employees or herself. 16. Defendant met its duty to engage in an interactive process regarding

accommodation of plaintiff's claimed disability. COUNTERCLAIM 1. On April 2, 1997, plaintiff and defendant entered into and signed a written

settlement agreement. Pursuant to the settlement agreement, defendant paid plaintiff $50,000 in damages, plus $16,600 in attorneys' fees, in consideration for plaintiff's releasing defendant from various claims arising from her employment. 2. Thereafter, on or about September 14, 1998, plaintiff wrote a letter to the

agency, claiming that she was coerced into signing the agreement. The agency responded. On August 2, 2000, the EEOC entered an order in plaintiff's favor, declaring that the April 2, 1997 settlement agreement was invalid.

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3.

Because the EEOC invalidated the settlement agreement, plaintiff is now

pursuing, in her Second Amended Complaint, the same claims that she previously released. 4. Although plaintiff is no longer bound by her release and is litigating the

claims which she previously released, she has never repaid to defendant the monies that defendant paid her in consideration of the release. Instead, she has retained the $50,000 settlement amount plus the $16,600 in attorneys fees which the defendant paid her in consideration of the release. Defendant has not received the benefit of its bargain. 5. If plaintiff is allowed to retain the monies she received in consideration of

the release which has been invalidated, she will be unjustly enriched at the expense of the defendant. WHEREFORE, defendant prays for relief on its counterclaim as follows: 1. For an order requiring plaintiff to repay to defendant the $66,600 which she

received in consideration of the rescinded release; and 2. For interest from April 2, 1997 to the date of judgment in the amount

allowable under the law; and 3. Such other and further relief as the Court may deem proper.

WHEREFORE, defendant prays that plaintiff take nothing by this action, for defendant's costs herein, and for such other relief that the Court deems just and proper.

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Dated this 9th day of December, 2005. WILLIAM J. LEONE United States Attorney s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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