UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Deanna Richert, Civil File No. 09-cv-00763 (ADM/JJK) Plaintiff, v. ANSWER National Arbitration Forum, LLC, and Dispute Management Services, LLC, d/b/a Forthright, Defendants. Defendants National Arbitration Forum, LLC ( NAF ) and Dispute Management Services, LLC, d/b/a Forthright ( Forthright ) (collectively referred to as Defendants ), deny that they engaged in any unlawful conduct whatsoever and state that Plaintiff s Complaint is ill-founded and without merit as alleged in the following Answer. Defendants, for their Answer to Plaintiff s Complaint, admit, deny, and state as follows: 1. State that the allegations contained in paragraph 1 of the Complaint summarize Plaintiff s opinion as to the nature and theory of her case, and further state no response to those allegations is required. To the extent a response to those allegations is required, state as follows: Defendants admit that Plaintiff purports to assert claims for declaratory and injunctive relief and seeks monetary damages under various state and federal statutes. Denies that Plaintiff is entitled to any relief whatsoever. Defendants deny any remaining allegations contained in paragraph 1 of the Complaint. 2. In response to the allegations contained in paragraph 2 of the Complaint, admit only that Plaintiff seeks to invoke this Court s jurisdiction pursuant to the
provisions of 28 U.S.C. 1331, 42 U.S.C. 2000e-5(f)(3), 29 U.S.C. 626, 28 U.S.C. 1332(a), and 28 U.S.C. 1367. Deny and all remaining allegations contained in paragraph 2 of the Complaint. 3. In response to the allegations contained in paragraph 3 of the Complaint, state that Plaintiff was hired by National Arbitration Forum, Inc. on or about January 13, 2003 as a Case Coordinator. State that National Arbitration Forum, Inc. was an alternative dispute resolution services administrator until on or about June 27, 2007, when it became a holding company. State that Forthright was spun off from National Arbitration Forum, Inc., and is affiliated with NAF. State that Plaintiff was employed by Forthright from on or about June 27, 2007 until her termination in 2008. Deny the remaining allegations contained in paragraph 3 of the Complaint. 4. In response to the allegations contained in paragraph 4 of the Complaint, state that NAF is an alternative dispute resolution services administrator which recruits, trains, and maintains a pool of independent neutrals. State that Forthright is a transaction processing company and an authorized administrator for NAF. Admit that the headquarters of NAF and Forthright is located at 6465 Wayzata Boulevard, St. Louis Park, Minnesota. Deny the remaining allegations contained in paragraph 4 of the Complaint. 5. In response to the allegations contained in paragraph 5 of the Complaint, state that, beginning in 2005, Plaintiff held the position of Code Department Manager with the primary responsibility of establishing and implementing new mediation programs and projects with California staff. Plaintiff retained that title until on or about 2
March 12, 2008, retroactive until January 1, 2008, when she was promoted and her title became Department Manager. Admit that, while employed in the Code Department Manager position, she reported to a Senior Vice President. Deny the remaining allegations contained in paragraph 5 of the Complaint. 6. In response to the allegations contained in paragraph 6 of the Complaint, state that, on or about July 22, 2008, Plaintiff was informed that her employment with Forthright was going to be terminated because her position was being eliminated. Deny the remaining allegations contained in paragraph 6 of the Complaint. 7. In response to the allegations contained in paragraph 7 of the Complaint, admit that Plaintiff is a female who is over the age of 40. State that the remaining allegations contained in paragraph 7 of the Complaint purport to set forth legal conclusions to which no responsive pleading is required, and deny any and all of the remaining allegations contained in paragraph 7 of the Complaint that are not conclusions of law. 8. In response to the allegations contained in paragraph 8 of the Complaint, state that, at the time of her termination, Plaintiff was employed by Forthright in a Department Manager position. Admit that she was qualified for that position. Deny the remaining allegations contained in paragraph 8 of the Complaint. 9. In response to the allegations contained in paragraph 9 of the Complaint, state that Plaintiff s employment with Forthright was terminated. Denies the remaining allegations contained in paragraph 9 of the Complaint. 3
10. Deny the allegations contained in paragraph 10 and each subparagraph of paragraph 10 of the Complaint. 11. Deny the allegations contained in paragraph 11 of the Complaint. 12. Deny the allegations contained in paragraph 12 of the Complaint. 13. Deny the allegations contained in paragraph 13 of the Complaint. 14. Deny the allegations contained in paragraph 14 of the Complaint. 15. In response to the allegations contained in paragraph 15 of the Complaint, admit that Plaintiff filed a charge of age and sex discrimination and retaliation with the Equal Employment Opportunity Commission ( EEOC ) which was cross-filed with the Minnesota Department of Human Rights. State that the claims made in that charge of discrimination are ill-founded and without merit. Admit that, following Plaintiff s attorney s request and without investigation of the claims on the merits, the EEOC issued a Dismissal and Notice of Right to Sue. Admit that Plaintiff commenced this lawsuit within 90 days of her receipt of that Dismissal and Notice of Right to Sue. Deny any and all remaining allegations contained in paragraph 15 of the Complaint. 16. In response to the allegations contained in paragraph 16 of the Complaint, incorporate by reference paragraphs 1 through 15 above, as if fully set forth herein. 17. In response to the allegations contained in paragraph 17 of the Complaint, state that, on or about December 18, 2006, Plaintiff signed a document entitled National Arbitration Forum Procedures Agreement. State that that document speaks for itself. Deny any and all remaining allegations contained in paragraph 17 of the Complaint. 4
18. In response to the allegations contained in paragraph 18 of the Complaint, admit that, on or about February 16, 2009, counsel for Defendants wrote to counsel for Plaintiff informing him that Plaintiff was obligated to submit any claims she wished to bring to arbitration as she had agreed to do in the National Arbitration Forum Procedures Agreement she signed. State that they lack information sufficient to form a belief as to the truth of the allegations contained in the last sentence of paragraph 18 of the Complaint, and therefore deny those allegations. Deny any and all remaining allegations contained in paragraph 18 of the Complaint. 19. Deny the allegations contained in paragraph 19 of the Complaint. 20. Deny the allegations contained in paragraph 20 of the Complaint. 21. Deny the allegations contained in paragraph 21 and each subparagraph of paragraph 21 of the Complaint. 22. Deny the allegations contained in paragraph 22 of the Complaint. 23. Deny the allegations contained in paragraph 23 of the Complaint. 24. Deny the allegations contained in paragraph 24 of the Complaint. 25. In response to the allegations contained in paragraph 25 of the Complaint, incorporate by reference paragraphs 1 through 24 above, as if fully set forth herein. 26. In response to the allegations contained in paragraph 26 of the Complaint, state that the National Arbitration Forum Procedures Agreement speaks for itself. Admit that the Forum Code of Procedure is referenced on NAF s website. State that NAF s arbitrators are neutral. Deny the remaining allegations contained in paragraph 26 of the Complaint. 5
27. Deny the allegations contained in paragraph 27 of the Complaint. 28. Deny the allegations contained in paragraph 28 of the Complaint. 29. Deny the allegations contained in paragraph 29 of the Complaint. 30. In response to the allegations contained in paragraph 30 of the Complaint, incorporate by reference paragraphs 1 through 29 above, as if fully set forth herein. 31. Deny the allegations contained in paragraph 31 of the Complaint. 32. Deny the allegations contained in paragraph 32 of the Complaint. 33. In response to the allegations contained in paragraph 33 of the Complaint, incorporate by reference paragraphs 1 through 32 above, as if fully set forth herein. 34. Deny the allegations contained in paragraph 34 of the Complaint. 35. Deny the allegations contained in paragraph 35 of the Complaint. 36. In response to the allegations contained in paragraph 36 of the Complaint, incorporate by reference paragraphs 1 through 35 above, as if fully set forth herein. 37. Deny the allegations contained in paragraph 37 of the Complaint. 38. Deny the allegations contained in paragraph 38 of the Complaint. 39. In response to the allegations contained in paragraph 39 of the Complaint, deny that Plaintiff is entitled to any relief whatsoever. 40. In response to the allegations contained in paragraph 40 of the Complaint, incorporate by reference paragraphs 1 through 39 above, as if fully set forth herein. 41. Deny the allegations contained in paragraph 41 of the Complaint. 42. Deny the allegations contained in paragraph 42 of the Complaint. 43. Deny the allegations contained in paragraph 43 of the Complaint. 6
44. In response to the allegations contained in paragraph 44 of the Complaint, incorporate by reference paragraphs 1 through 43 above, as if fully set forth herein. 45. Deny the allegations contained in paragraph 45 of the Complaint. 46. Deny the allegations contained in paragraph 46 of the Complaint. 47. In response to the allegations contained in paragraph 47 of the Complaint, incorporate by reference paragraphs 1 through 46 above, as if fully set forth herein. 48. Deny the allegations contained in paragraph 48 of the Complaint. 49. Deny the allegations contained in paragraph 49 of the Complaint. 50. In response to the allegations contained in paragraph 50 of the Complaint, incorporate by reference paragraphs 1 through 49 above, as if fully set forth herein. 51. Deny the allegations contained in paragraph 51 of the Complaint. 52. Deny the allegations contained in paragraph 52 of the Complaint. 53. In response to the allegations contained in paragraph 53 of the Complaint, incorporate by reference paragraphs 1 through 52 above, as if fully set forth herein. 54. Deny the allegations contained in paragraph 54 of the Complaint. 55. Deny the allegations contained in paragraph 55 of the Complaint. 56. Deny the allegations contained in paragraph 56 of the Complaint. 57. In response to the allegations contained in paragraph 57 of the Complaint, incorporate by reference paragraphs 1 through 56 above, as if fully set forth herein. 58. Deny the allegations contained in paragraph 58 of the Complaint. 59. Deny the allegations contained in paragraph 59 of the Complaint. 7
60. In response to the allegations contained in paragraph 60 of the Complaint, admit that Plaintiff has demanded a jury trial on all issues and claims triable by a jury. Deny any and all remaining allegations contained in paragraph 60 of the Complaint. 61. Deny the allegations contained in paragraph 61 of the Complaint. 62. Deny that Plaintiff is entitled to any of the relief demanded in the Prayer for Relief of the Complaint. 63. Deny each and every other allegation contained in the Complaint not specifically and expressly admitted herein. Defendants reiterate their denial of the material allegations of the Complaint, and state that Plaintiff is not entitled to any relief whatsoever. AFFIRMATIVE AND OTHER DEFENSES 64. Plaintiff s Complaint, in whole or in part, fails to state a claim upon which relief may be granted. 65. Plaintiff s claims are subject to an agreement requiring arbitration of her claims. The National Arbitration Forum Procedures Agreement Plaintiff signed obligates her to arbitrate the claims asserted in her Complaint. Nothing in this Answer shall be taken in any way to waive or abridge Defendants rights under the National Arbitration Forum Procedures Agreement to seek mandatory and binding arbitration of Plaintiff s claims. 66. Plaintiff was never employed by NAF, and, accordingly, NAF is not a proper defendant in this action. 8
67. Some of Plaintiff s claims may be barred, in whole or in part, by her failure to comply with the jurisdictional, procedural, and administrative prequisites for filing this action, including, without limitation, her failure to timely file or properly assert charge allegations. 68. Some of the claims set forth in the Complaint are barred to the extent those claims exceed the scope of the administrative charge of discrimination filed by Plaintiff. 69. Defendants deny any discrimination or unlawful motives in their dealings with Plaintiff. However, Defendants further allege that, even if an unlawful motive were found to exist, the challenged decisions concerning Plaintiff s employment still would have been made in the absence of the unlawful motive. 70. All of Defendants and/or their agents actions with regard to Plaintiff were taken, made, and/or done in good faith for legitimate, non-discriminatory, job-related business reasons and/or were based on legitimate factors other than sex and/or age. 71. Although Defendants deny that any actionable conduct occurred, Defendants exercised reasonable care to prevent, avoid, and/or correct promptly any harmful, wrongful, or unlawful conduct toward Plaintiff. 72. Plaintiff s claims are barred, in whole or in part, because she unreasonably failed to take advantage of opportunities to prevent, mitigate, accommodate, and/or correct any conduct, problem, or complaint, including, without limitation, failing to take advantage of opportunities and procedures provided by Defendants. 9
73. Some of the claims alleged in the Complaint are not cognizable because they do not allege employment decisions or actions that amount to a material adverse change to a term or condition of employment. 74. Plaintiff is barred from recovering a remedy to the extent she engaged in misconduct, violation of company policies, or other conduct that would have resulted in her termination by, or would have precluded her from obtaining employment with, Defendants had such conduct been discovered. 75. Upon information and belief, Plaintiff has failed to mitigate her alleged damages, if any she has. 76. Plaintiff has violated Minn. Stat. 549.191 by pleading a claim for punitive damages in her original Complaint. 77. Plaintiff is not entitled to recover punitive damages because Defendants did not act with malicious or reckless indifference to Plaintiff s rights or commit any knowing, wanton, intentional, or malicious act. 78. Plaintiff is not entitled to recover liquidated damages. 79. As a separate and alternative affirmative defense, Defendants allege that the claims contained in the Complaint may be barred by any or all of the affirmative defenses contemplated by Rule 8(c) of the Federal Rules of Civil Procedure. The extent to which such claims contained in the Complaint may be barred by one or more of said affirmative defenses not specifically set out above cannot be determined at this time, and Defendants reserve their right to allege such affirmative defenses as established by the facts of this case at an appropriate time. 10
PRAYER FOR RELIEF WHEREFORE, Defendants National Arbitration Forum, LLC, and Dispute Management Services, LLC, d/b/a Forthright pray for judgment as follows: (1) dismissing Plaintiff s Complaint with prejudice; (2) awarding Defendants National Arbitration Forum, LLC, and Dispute Management Services, d/b/a Forthright their costs, disbursements, and attorneys fees incurred herein; and (3) awarding such other and further relief as this Court deems just and proper. Dated: April 28, 2009 DORSEY & WHITNEY LLP By s/ Marilyn Clark Douglas R. Christensen #0192594 Marilyn Clark #0386615 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Telephone: (612) 340-2600 christensen.doug@dorsey.com clark.marilyn@dorsey.com Attorneys for Defendants National Arbitration Forum, LLC, and Dispute Management Services, LLC, d/b/a Forthright 11