Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:10-CV-24337 JOSE RABEIRO Plaintiff, v. SAFELITE GROUP, INC. Defendant. / ANSWER TO PLAINTIFF S FIRST AMENDED COMPLAINT COMES NOW Defendant, Safelite Group, Inc. ( Defendant ), by and through counsel, for its Answer to the First Amended Amended Complaint filed by Plaintiff Jose Rabeiro ( Plaintiff ), and states as follows: 1. The allegations contained in Paragraph 1 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 1 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 1 of the Amended Defendant admits that in filing this action Plaintiff has sought damages from Defendant pursuant to the Florida Civil Rights Act ( FCRA ), the Americans with Disabilities Act ( ADA ), the Age Discrimination in Employment Act ( ADAA ), and the Age Discrimination in Employment Act ( ADEA ). Defendant denies that Plaintiff is entitled to any relief whatsoever under the FCRA, the ADA, the ADAA, or the ADEA. 2. Defendant admits the allegations contained in Paragraph 2 of the Amended
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 2 of 15 3. Defendant admits the allegations contained in Paragraph 3 of the Amended 4. Defendant admits the allegations contained in Paragraph 4 of the Amended 5. Upon information and belief, Defendant admits the allegations contained in Paragraph 5 of the Amended 6. In response to Paragraph 6 of the Amended Complaint, Defendant states that Plaintiff was employed by Defendant from April 2, 2001 until May 18, 2009. Defendant denies all remaining allegations contained in Paragraph 6 of the Amended 7. In response to Paragraph 7 of the Amended Complaint, Defendant states that at the time of Plaintiff s discharge it had employed 20 or more employees for 20 or more weeks in the current and preceding years. Defendant denies the remaining allegations contained in Paragraph 7 of the Amended 8. Defendant admits the allegations contained in Paragraph 8 of the Amended 9. The allegations contained in Paragraph 9 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 9 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 9 of the Amended Defendant admits that in filing this action Plaintiff has sought damages from Defendant pursuant to the FCRA, the ADA, the ADAA, and the ADEA. Defendant denies that Plaintiff is entitled to any relief whatsoever under the FCRA, the ADA, the ADAA, or the ADEA. 10. Defendant denies the allegations contained in Paragraph 10 of the Amended 2
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 3 of 15 11. Defendant lacks sufficient information to form a belief as to the truth or accuracy of the allegations contained in Paragraph 11 of the Amended Complaint and accordingly denies the same. 12. Defendant lacks sufficient information to form a belief as to the truth or accuracy of the allegations contained in Paragraph 12 of the Amended Complaint and accordingly denies the same. 13. Defendant lacks sufficient information to form a belief as to the truth or accuracy of the allegations contained in Paragraph 13 of the Amended Complaint and accordingly denies the same. 14. Defendant lacks sufficient information to form a belief as to the truth or accuracy of the allegations contained in Paragraph 14 of the Amended Complaint and accordingly denies the same. 15. Defendant denies the allegations contained in Paragraph 15 of the Amended 16. In response to Paragraph 16 of the Amended Complaint, Defendant states that Plaintiff was employed as a driver and warehouse worker from April 2, 2001 until May 18, 2009. Defendant denies all remaining allegations contained in Paragraph 16 of the Amended 17. Upon information and belief, Defendant admits the allegations contained in Paragraph 17 of the Amended 18. Defendant lacks sufficient information to form a belief as to the truth or accuracy of the allegations contained in Paragraph 18 of the Amended Complaint and accordingly denies the same. 3
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 4 of 15 19. Defendant denies the allegations contained in Paragraph 19 of the Amended 20. Defendant denies the allegations contained in Paragraph 20 of the Amended 21. In response to Paragraph 21 of the Amended Complaint, Defendant states that it was aware that Plaintiff had undergone dialysis treatment. Defendant denies all remaining allegations contained in Paragraph 21. 22. Defendant denies the allegations contained in Paragraph 22 of the Amended 23. In response to Paragraph 23 of the Amended Complaint, Defendant states that Plaintiff was disciplined on multiple occasions prior to the termination of his employment. Defendant denies all remaining allegations contained in Paragraph 23. 24. Defendant denies the allegations contained in Paragraph 24 of the Amended 25. Defendant denies the allegations contained in Paragraph 25 of the Amended 26. Defendant denies the allegations contained in Paragraph 26 of the Amended 27. Defendant denies the allegations contained in Paragraph 27 of the Amended 28. Defendant denies the allegations contained in Paragraph 28 of the Amended 4
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 5 of 15 29. Defendant denies the allegations contained in Paragraph 29 of the Amended 30. Defendant denies the allegations contained in Paragraph 30 of the Amended 31. Defendant denies the allegations contained in Paragraph 31 of the Amended 32. In response to Paragraph 32 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 31 as if fully restated herein. 33. The allegations contained in Paragraph 33 constitute statements and conclusions of law to which no response is required, inasmuch as the language of the FCRA speaks for itself. To the extent that Paragraph 33 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 33 of the Amended 34. Defendant denies the allegations contained in Paragraph 34 of the Amended 35. Defendant denies the allegations contained in Paragraph 35 of the Amended 36. Defendant denies the allegations contained in Paragraph 36 of the Amended 37. Defendant denies the allegations contained in Paragraph 37 of the Amended 38. In response to Paragraph 38 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 5
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 6 of 15 39. In response to Paragraph 39 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 39 of the Amended 40. In response to Paragraph 40 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 39 as if fully restated herein. 41. The allegations contained in Paragraph 41 constitute statements and conclusions of law to which no response is required, inasmuch as the language of the FCRA speaks for itself. To the extent that Paragraph 41 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 41 the Amended 42. Defendant denies the allegations contained in Paragraph 42 if the Amended 43. Defendant denies the allegations contained in Paragraph 43 of the Amended 44. Defendant denies the allegations contained in Paragraph 44 of the Amended 45. Defendant denies the allegations contained in Paragraph 45 of the Amended 46. In response to Paragraph 46 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 6
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 7 of 15 47. In response to Paragraph 47 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 47 of the Amended 48. In response to Paragraph 48 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 47 as if fully restated herein. 49. The allegations contained in Paragraph 49 constitute statements and conclusions of law to which no response is required, inasmuch as the language of the FCRA speaks for itself. To the extent that Paragraph 49 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 49 the Amended 50. The allegations contained in Paragraph 50 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 50 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 50 of the Amended 51. Defendant denies the allegations contained in Paragraph 51 of the Amended 52. Defendant denies the allegations contained in Paragraph 52 of the Amended 53. Defendant denies the allegations contained in Paragraph 53 of the Amended 54. Defendant denies the allegations contained in Paragraph 54 of the Amended 7
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 8 of 15 55. Defendant denies the allegations contained in Paragraph 55 of the Amended 56. In response to Paragraph 56 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 57. In response to Paragraph 57 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 57 of the Amended 58. In response to Paragraph 58 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 57 as if fully restated herein. 59. The allegations contained in Paragraph 59 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 59 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 59 of the Amended 60. Defendant denies the allegations contained in Paragraph 60 of the Amended 61. Defendant denies the allegations contained in Paragraph 61 of the Amended 62. Defendant denies the allegations contained in Paragraph 62 of the Amended 63. Defendant denies the allegations contained in Paragraph 63 of the Amended 8
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 9 of 15 64. In response to Paragraph 64 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 65. In response to Paragraph 65 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 65 of the Amended 66. In response to Paragraph 66 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 65 as if fully restated herein. 67. The allegations contained in Paragraph 67 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 67 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 67 of the Amended 68. Defendant denies the allegations contained in Paragraph 68 of the Amended 69. Defendant denies the allegations contained in Paragraph 69 of the Amended 70. Defendant denies the allegations contained in Paragraph 70 of the Amended 71. Defendant denies the allegations contained in Paragraph 71 of the Amended 9
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 10 of 15 72. In response to Paragraph 72 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 73. In response to Paragraph 73 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 73 of the Amended 74. In response to Paragraph 74 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 73 as if fully restated herein. 75. The allegations contained in Paragraph 75 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 75 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 75 of the Amended 76. The allegations contained in Paragraph 76 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 76 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 76 of the Amended 77. Defendant denies the allegations contained in Paragraph 77 of the Amended 78. Defendant denies the allegations contained in Paragraph 78 of the Amended 79. Defendant denies the allegations contained in Paragraph 79 of the Amended 10
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 11 of 15 80. Defendant denies the allegations contained in Paragraph 80 of the Amended 81. Defendant denies the allegations contained in Paragraph 81 of the Amended 82. In response to Paragraph 82 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 83. In response to Paragraph 83 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 83 of the Amended 84. In response to Paragraph 84 of the Amended Complaint, Defendant restates its responses to Paragraphs 1 through 83 as if fully restated herein. 85. The allegations contained in Paragraph 85 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 85 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 85 of the Amended 86. The allegations contained in Paragraph 86 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 86 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 86 of the Amended 87. Defendant denies the allegations contained in Paragraph 87 of the Amended 11
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 12 of 15 88. Defendant denies the allegations contained in Paragraph 88 of the Amended 89. Defendant denies the allegations contained in Paragraph 89 of the Amended 90. Defendant denies the allegations contained in Paragraph 90 of the Amended 91. Defendant denies the allegations contained in Paragraph 91 of the Amended 92. In response to Paragraph 92 of the Amended Complaint, Defendant acknowledges that Plaintiff requests punitive damages, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief. 93. In response to Paragraph 93 of the Amended Complaint, Defendant acknowledges that Plaintiff seeks attorney fees and costs as permitted by law, but denies any and all conduct Plaintiff alleges gives rise to such a claim and denies that Plaintiff is entitled to any such relief or any of the relief requested in the WHEREFORE paragraph following Paragraph 93 of the Amended 94. The allegations contained in Paragraph 94 constitute statements and conclusions of law to which no response is required. To the extent that Paragraph 94 is deemed to contain factual allegations, Defendant denies all allegations in Paragraph 94 of the Amended 95. Defendant denies each and every allegation contained in the Amended Complaint not herein specifically admitted to be true. 12
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 13 of 15 AFFIRMATIVE OR OTHER DEFENSES 96. Plaintiff s claims fail to state a claim for which relief can be granted. 97. Plaintiff s claims may be barred by the applicable statute of limitations and/or equitable doctrine of laches. 98. Plaintiff s claims may be barred by failure to exhaust his administrative remedies. 99. Plaintiff s claims may be barred, in whole or in part, by the doctrine of waiver, estoppels, and unclean hands. 100. To the extent Plaintiff complained about any alleged unlawful discriminatory conduct, Defendant took prompt remedial measures reasonably calculated to end any alleged unlawful discrimination or harassment. 101. Plaintiff failed to mitigate his alleged damages, if any. 102. Plaintiff s claims for punitive damages are barred because the alleged acts or omissions of Defendant do not arise to the level required to sustain an award of punitive damages, do not evidence malicious, reckless, or fraudulent intent to deny Plaintiff his protected rights, and are not so wanton or willful as to support an award of punitive damages. 103. Plaintiff s claims for punitive damages are barred because of Defendant s good faith efforts to prevent discrimination and to comply with the applicable laws. 104. Plaintiff s claims for punitive damages are barred and any award of such damages would violate Defendant s rights under the United States and Florida Constitutions. 105. Plaintiff s claims are barred because any decisions and actions with respect to Plaintiff s employment were made in good faith and based upon legitimate, non-retaliatory, nondiscriminatory business reasons and no unlawful factor motivated Respondent in its decisionmaking regarding Plaintiff s employment. 13
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 14 of 15 106. Plaintiff s claims are barred because Plaintiff s disability or age were not factors in any decision made with respect to Plaintiff s employment, including the decision to terminate Plaintiff. 107. Plaintiff is not disabled within the meaning of the FCRA or the ADA. 108. Plaintiff did not request reasonable accommodation. 109. Defendant at all relevant times made a good faith effort to provide Plaintiff with reasonable accommodation, to the extent Plaintiff informed Defendant, if ever, that such accommodations were needed, and to the extent that such accommodations would not cause an undue hardship on the operation of Defendant s business. 110. Defendant respectfully reserves the right to amend or further plead any other affirmative defenses after a reasonable opportunity for discovery. WHEREFORE, Defendant demands that claims against it in the Amended Complaint be dismissed in their entirety with prejudice, that judgment be entered in its favor, and that it recover its costs and expenses, including reasonable attorneys fees, and such other and further relief as this Court deems just and appropriate. Respectfully Submitted, s/ Heather B. Brock Heather B. Brock (Florida Bar No. 0003182) Email: hbrock@fowlerwhite.com FOWLER WHITE BOGGS P.A. 1200 East Las Olas Boulevard, Suite 400 Fort Lauderdale, Florida 33301 Telephone: (954) 703-3930 Facsimile: (954) 707-4548 Local Counsel for Defendant Safelite Group, Inc. 14
Case 1:10-cv-24337-WMH Document 18 Entered on FLSD Docket 07/08/2011 Page 15 of 15 Robert A. Harris (Ohio Bar No. 0059549) Email: raharris@vorys.com Daniel J. Clark (Ohio Bar No. 0075125) Email: djclark@vorys.com VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street Columbus, OH 43215 Telephone: (614)464.8373 Facsimile: (614)719.4751 Counsel for Defendant Safelite Group, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this the 8th day of July, 2011, I filed the foregoing with the Clerk of the Court by using the CM/ECF system. I FURTHER CERTIFY that the foregoing document is being served this day via transmission of Notices of Electronic Filing generated by CM/ECF, on all counsel or parties of record on the service list below. /s/ Heather B. Brock Heather B. Brock SERVICE LIST Jeffrey M. Goodz, Esquire Florida Bar No. 0953600 Email: jgoodz@rgpattorneys.com REIMER & GEORGES-PIERRE, PLLC 11900 Biscayne Boulevard, Suite 288 North Miami, Florida 33181 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 Attorneys for Plaintiff Jose Rabeiro Heather B. Brock, Esquire Florida Bar No. 0003182 Email: hbrock@fowlerwhite.com FOWLER WHITE BOGGS P.A. 1200 East Las Olas Boulevard, Suite 400 Fort Lauderdale, Florida 33301 Telephone: (954) 703-3930 Facsimile: (954) 707-4548 Local Counsel for Defendant Safelite Group, Inc. Robert A. Harris, Esquire Ohio Bar No. 0059549 Email: raharris@vorys.com VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street Columbus, Ohio 43215 Telephone: (614) 464-8373 Facsimile: (614) 719-4751 Counsel for Defendant Safelite Group, Inc. Daniel J. Clark, Esquire Ohio Bar No. 0075125 Email: djclark@vorys.com VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street Columbus, Ohio 43215 Telephone: (614) 464-8373 Facsimile: (614) 719-4751 Counsel for Defendant Safelite Group, Inc. 15