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

1 2 3 4

Georgia A. Staton, #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 602-263-1752 [email protected] Attorneys for Defendants

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 v. 10 11 12 13 Defendants. 14 Defendants Pinal County and Sheriff Roger Vanderpool, by and through 15 undersigned counsel, for their Answer to Plaintiffs' Complaint, admit, deny and allege 16 as follows: 17 1.
P.L.C.

Robert Gant and Betty Gant, Husband and Wife, Plaintiffs, Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations I-X; and XYZ Partnerships I-X,

NO. CV 03-2077-PHX-EHC

DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Defendants deny each and every allegation not otherwise admitted
85012 263-1700 800

18 19 20

or pled to.

AVENUE LAW

2. 21 3. 22 23

In answering Paragraph 1 of Plaintiffs' First Amended Complaint,

Defendants admit same. In answering Paragraph 2 of Plaintiffs' First Amended Complaint,

Defendants admit that Roger Vanderpool was the Sheriff of Pinal County at all times relevant to Plaintiffs' Complaint. 24 4. 25 Defendants admit same. 26 In answering Paragraph 3 of Plaintiffs' First Amended Complaint,

Case 2:03-cv-02077-EHC

Document 59

Filed 08/08/2005

Page 1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

5.

In answering Paragraphs 4 and 5 of Plaintiffs' First Amended

Complaint, said paragraphs refer to fictitiously named Defendants. No answer is required and none is given. To the extent that Paragraphs 4 and 5 attempt to assert a claim against these answering Defendants, Defendants deny same. 6. In answering Paragraph 6 of Plaintiffs' First Amended Complaint,

Defendants deny same insofar as said paragraph suggests that these Defendants caused any events giving rise to a cause of action. 7. In answering Paragraph 7 of Plaintiffs' First Amended Complaint,

Defendants admit only that this Court has subject matter jurisdiction over the allegations contained in Plaintiffs' First Amended Complaint. 8. In answering Paragraph 8 of Plaintiffs' First Amended Complaint,

Defendants deny that Plaintiff properly or timely served Notices of Claims pursuant to A.R.S. § 12-821.01. 9. In answering Paragraph 9 of Plaintiffs' First Amended Complaint,

Defendants only acknowledge that Plaintiffs have asserted various causes of action. To the extent that Paragraph 9 alleges that these Defendants violated any federal right or engaged in any civil wrongs under Arizona state law, Defendants deny same.
P.L.C.
85012 263-1700

FACTS COMMON TO ALL CAUSES OF ACTION
AVENUE LAW 800

10.

In answering Paragraph 10 of Plaintiffs' First Amended Complaint,

Defendants admit that Plaintiff worked at the Pinal County Sheriff's Office and has held various positions and ranks within the Sheriff's Office. Defendants further admit that Plaintiff was terminated on or about February 8, 2002. 11. In answering Paragraphs 11, 12 and 13 of Plaintiffs' First

Amended Complaint, Defendants admit that Plaintiff filed a lawsuit and that an out of

2 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 2 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Court settlement was reached on or about August 9, 2002, the terms of which speak for themselves. 12. Defendants deny same. 13. In answering Paragraph 15 of Plaintiffs' First Amended Complaint, In answering Paragraph 14 of Plaintiffs' First Amended Complaint,

Defendants admit only that Plaintiff has been assigned to a position within the Pinal County Sheriff's Office that is commensurate with the needs of the Department. Defendants deny all remaining allegations contained therein. 14. Defendants deny same. 15. In answering Paragraph 17 of Plaintiffs' First Amended Complaint, In answering Paragraph 16 of Plaintiffs' First Amended Complaint,

Defendants admit only that an announcement was made by Pinal County that an opening for the position of lieutenant was available. Defendants deny that Plaintiff met the qualifications for the position. 16. Defendants deny same. 17.
P.L.C.
85012 263-1700 AVENUE LAW

In answering Paragraph 18 of Plaintiffs' First Amended Complaint,

In answering Paragraph 19 of Plaintiff's First Amended Complaint,

18 19 20 21 22 23 24 25 26

Defendants admit only that Plaintiff applied for promotion from Corporal to Sergeant
800

and took the written test administered by Human Resources. Defendants admit that Plaintiff received a passing score on the test. Defendants deny the remaining allegations. 18. In answering Paragraph 20 of Plaintiffs' First Amended Complaint,

Defendants admit only that an email was sent indicating the test would be readministered because an incorrect test had been administered in error. 19. In answering Paragraph 21 of Plaintiffs' First Amended Complaint,

Defendants admit only that the test was readministered and that Plaintiff refused to take

3 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

it. Defendants do not have sufficient information to admit or deny the remaining allegations, and therefore, deny same. 20. In answering Paragraph 22 of Plaintiffs' First Amended Complaint,

Defendants admit same. 21. Defendants deny same. COUNT ONE (Alleged Breach of 29 USC § 621-634 ­ Age Discrimination) 22. In answering Paragraph 24 of Plaintiffs' First Amended Complaint, In answering Paragraph 23 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 - 23 as if fully set forth herein. 23. In answering Paragraphs 25, 26, 27 and 28 of Plaintiffs' First

Amended Complaint, Defendants deny same. COUNT TWO (Alleged Breach of 42 USC § 2000e ­ Race Discrimination) 24. In answering Paragraph 29 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses given to Paragraphs 1 - 28 of
P.L.C.
85012 263-1700 AVENUE LAW

Plaintiffs' First Amended Complaint as if fully set forth herein.
800

25.

In answering Paragraphs 30, 31, 32 and 33 of Plaintiffs' First

Amended Complaint, Defendants deny same. COUNT THREE (Alleged Breach of 42 USC § 1983) 26. In answering Paragraph 34 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 - 33 of Plaintiffs' First Amended Complaint as if fully set forth herein.

4 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 4 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

27.

In answering Paragraphs 35 and 36 of Plaintiffs' First Amended

Complaint, Defendants deny same. COUNT FOUR (Alleged Breach of 42 USC § 2000e ­ Hostile Work Environment) 28. In answering Paragraph 37 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 - 36 of Plaintiffs' First Amended Complaint as if fully set forth herein. 29. In answering Paragraphs 38 of Plaintiffs' First Amended

Complaint, Defendants deny same. 30. In answering Paragraphs 39 of Plaintiffs' First Amended

Complaint, Defendants admit only that Plaintiff memorialized the alleged comments in a letter to Mike Arnold, grievance, and Charge of Discrimination. Defendants deny the remaining allegations. 31. In answering Paragraphs 40 of Plaintiffs' First Amended

Complaint, Defendants admit same. 32. In answering Paragraphs 41 of Plaintiffs' First Amended

Complaint, Defendants deny same.
P.L.C.
85012 263-1700

33.
AVENUE LAW

In answering Paragraphs 42 of Plaintiffs' First Amended
800

Complaint, Defendants deny same. 34. In answering Paragraphs 43 of Plaintiffs' First Amended

Complaint, Defendants admit only that Plaintiff applied for a promotion from Corporal to Sergeant. Defendants admit that the test was readministered because an old test and been administered in error and that Plaintiff refused to take it. Defendants do not have sufficient information to admit or deny the remaining allegations, and therefore, deny same.

5 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 5 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

35.

In answering Paragraphs 44 of Plaintiffs' First Amended

Complaint, Defendants deny same. COUNT FIVE (Arizona Civil Rights Act ­ A.R.S. § 14-1401 et seq [sic]) 36. In answering Paragraph 45 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 through 44 of Plaintiffs' First Amended Complaint as if fully set forth herein. 37. In answering Paragraphs 46 and 47 of Plaintiffs' First Amended

Complaint, Defendants deny same. COUNT SIX (Negligent Hiring/Supervision) 38. In answering Paragraph 48 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 through 47 of Plaintiffs' First Amended Complaint as if fully set forth herein. 39. In answering Paragraphs 49, 50 and 51 of Plaintiffs' First

Amended Complaint, Defendants assert that Sheriff Vanderpool is an elected official for Pinal County. He is not an "employee" as that term is used and was not "hired" by
P.L.C.
85012 263-1700 AVENUE LAW

the County. Defendants deny all remaining allegations contained therein.
800

COUNT SEVEN

(Intentional Infliction of Emotional Distress) 40. In answering Paragraph 52 of Plaintiffs' First Amended Complaint,

Defendants incorporate by reference their responses to Paragraphs 1 through 51 of Plaintiffs' First Amended Complaint as if fully set forth herein. 41. In answering Paragraphs 53 and 54 of Plaintiffs' First Amended

Complaint, Defendants deny same.

6 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 6 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
P.L.C.

AFFIRMATIVE DEFENSES As and for an affirmative defense Defendants assert: 1. Plaintiff failed to timely and properly comply with Arizona's

Notice of Claim statute all of which serves to bar Plaintiffs' state based claims. 2. Plaintiffs' First Amended Complaint and each of its counts,

separately and together, fail to state a claim upon which relief can be granted. 3. Plaintiff failed to timely and properly comply with all

administrative procedures prior to filing this Complaint all of which serves to bar Counts One, Two and Four of Plaintiffs' First Amended Complaint. 4. Plaintiffs' request for punitive damages is barred pursuant to

A.R.S. § 12-820.04 for all state based claims and as to any request against Pinal County or Sheriff Vanderpool acting in his official capacity pursuant to City of Newport v. Fact Concerts, Inc., 101 S.Ct. 2748 (1981) and A.R.S. § 12-820.04. 5. 6. 7. 8.
85012 263-1700

Release. Estoppel. Res judicata. Comparative fault by Plaintiffs as identified in A.R.S. § 12-2506. Insufficiency of service of process.
800

18 19 20 21 22 23 24 25 26

9.
AVENUE LAW

10.

Plaintiff's First Amended Complaint is barred by the statute of

limitations. 11. 12. Qualified immunity. Defendants had a valid rational reason for not promoting Plaintiff,

such reasons had nothing to do with his age or race. 13. Age and race discrimination claims brought under 42 U.S.C.

§ 1983 are preempted; ADEA and Title VII are exclusive remedies.

7 Case 2:03-cv-02077-EHC Document 59 Filed 08/08/2005 Page 7 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
P.L.C.

14. or pervasive. 15.

The alleged acts for which Plaintiff complains were not severe

The alleged acts for which Plaintiff complains did not affect the

terms and conditions of his employment. WHEREFORE, having fully answered Plaintiffs' First Amended Complaint, Defendants request that this matter be dismissed and that they be awarded their costs incurred herein and such other and further relief as the Court deems just and proper. As to all triable matters, Defendants request trial by jury. RESPECTFULLY SUBMITTED this _____ day of August, 2005. JONES, SKELTON & HOCHULI, P.L.C. By s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants ORIGINAL of the foregoing filed this 8th day of August, 2005 with: Clerk of the U.S. District Court District of Arizona COPY of the foregoing mailed this 8th day of August, 2005, to:
85012 263-1700 AVENUE LAW 800

18 19 20 21 22 23 24 25 26

Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse Suite 521 401 West Washington Street, SPC 48 Phoenix, AZ 85003-2151 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 2737 West Southern Avenue, Suite 8 Tempe, AZ 85282 Attorney for Plaintiffs 602-373-0109 s/Gwen Coon 8

Case 2:03-cv-02077-EHC

Document 59

Filed 08/08/2005

Page 8 of 8