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3907196v.11
UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
EQUAL EMPLOYMENT )OPPORTUNITY COMMISSION, )
)Plaintiff, ) Civil Action No.
) 1:16-CV-00118v. )
) ANSWERMISSION HOSPITAL, INC., )
)Defendant. )
____________________________________)
Mission
llows:
Complaint, Mission denies that it failed to accommodate the religious beliefs of
Bolella, Mitchell, Robinson or any other similarly situated employee or otherwise
discriminated against any employee because of their respective religions. Instead,
each of the aforementioned individuals knew about the flu shot/exemption request
deadline well in advance of the deadline yet chose to ignore it by failing to get
vaccinated for the flu or otherwise submitting a timely request for an exemption.
Except as expressly admitted, any factual allegations contained in the preamble to
3907196v.12
JURISDICTION AND VENUE
1. Mission admits that Plaintiff seeks to invoke the jurisdiction of this Court
pursuant to the statutes cited in paragraph 1. Mission further admits that the EEOC
is a federal governmental agency, that it is charged with the administration,
interpretation and enforcement of Title VII and that it is authorized to institute civil
actions subject to the terms and provisions of that statute. Except as expressly
admitted, Mission denies the allegations contained in paragraph 1.
2. Mission denies that it committed any unlawful employment practices but
admits that the actions complained of took place within the jurisdiction of the
United States District Court for the Western District of North Carolina.
PARTIES
3. Mission admits the allegations contained in paragraph 3.
4. Mission admits the allegations contained in paragraph 4.
5. Mission admits the allegations contained in paragraph 5.
STATEMENT OF CLAIMS
6. Mission admits that more than thirty days prior to the institution of this
lawsuit, Bolella, Mitchell and Robinson each filed a charge with the EEOC
alleging violations of Title VII. Except as expressly admitted, Mission denies the
allegations contained in paragraph 6.
7. Mission admits that the Letter of Determination speaks for itself and is the
best evidence of its contents and that the EEOC invited Mission to conciliation.
Except as expressly admitted, Mission denies the allegations contained in
paragraph 7.
3907196v.13
8. Mission admits that on September 17, 2014, the EEOC issued a Letter of
Determination to Mission finding NO probable cause to believe that Title VII was
violated with respect to Robinson. Mission further admits that 454 days later, the
EEOC reversed course and issued a Letter of Determination
which speaks for itself and is the best evidence of its contents. Mission further
admits that EEOC invited Mission to conciliation. Except as expressly admitted,
Mission denies the allegations contained in paragraph 8.
9. Mission admits that it communicated with the EEOC on several occasions to
try to determine the legal basis for
failed to provide any meaningful information regarding same. Except as expressly
admitted, Mission denies the allegations contained in paragraph 9.
10. Mission admits the allegations contained in paragraph 10.
11. Mission admits the allegations contained in paragraph 11.
12. Mission admits the allegations contained in paragraph 12.
13. Mission admits the allegations contained in paragraph 13.
14. Mission admits the allegations contained in paragraph 14.
15. Mission admits the allegations contained in paragraph 15 and admits further
that its September exemption request deadline is heavily advertised each year to all
Mission employees well in advance of that deadline.
16. Mission admits the allegations contained in paragraph 16.
17. Mission admits the allegations contained in paragraph 17.
18. Mission denies the allegations contained in paragraph 18.
19. Mission admits that it hired Bolella on May 9, 2012 with a start date for
employment of May 21, 2012. Mission further admits that Bolella was hired to be
a pre-school teacher at the Mission Child Development Center which is operated as
3907196v.14
vaccination requirements on May 9, 2012. Except as expressly admitted, Mission
denies the allegations contained in paragraph 19.
20. Mission is without information and belief as to whether Bolella is a
practicing member of the Church of the Nazarene. Except as expressly admitted,
Mission denies the allegations contained in paragraph 20.
21. Mission admits that Plaintiff was vaccinated for the flu and against hepatitis
and tetanus while employed by Mission. Mission is without information sufficient
to form a belief as to whether Bolella had not received an immunization or
vaccination since childhood. Mission admits that Bolella voluntarily received a flu
vaccination on May 14, 2012 after specifically agreeing that she understood the
risks and benefits of the vaccine and that she had had the chance to have her
questions about the vaccine answered to her satisfaction. Mission further admits
that her voluntary acceptance of the flu vaccine occurred after she was informed in
sufficient to form
requirements. Furthermore, given that the Church of the Nazarene has no
published prohibition on being vaccinated for the flu and, in fact, hosts flu
vaccination clinics all over the United States, Mission is without information to
of same. Except as expressly admitted, Mission denies the allegations contained in
paragraph 21.
22.
deadline, submitted an untimely request for an exemption on November 19, 2013
almost two months after the deadline.
3907196v.15
23. Mission admits that Bolella sought an exemption for what she described
were moral reasons. Except as expressly admitted, Mission denies the allegations
contained in paragraph 23.
24. influenza exemption request because
it was untimely pursuant to the policy. Except as expressly admitted, Mission
denies the allegations contained in paragraph 24.
25. influenza exemption request because
it was untimely pursuant to the policy. Except as expressly admitted, Mission
denies the allegations contained in paragraph 25.
26. Mission admits the allegations contained in paragraph 26.
27. Mission admits Bolella was suspended because she failed to obtain a timely
on requirement or otherwise receive the flu
vaccine by midnight on December 1, 2013. Except as expressly admitted, Mission
denies the allegations contained in paragraph 27.
28. Mission admits that Bolella was informed that she had to comply with
Missi
contained in paragraph 28.
29. Mission denies the allegations contained in paragraph 29 in that Bolella has
ion Policy.
30. Mission denies the allegations contained in paragraph 30 in that Bolella has
31. Mission admits that Plaintiff failed to submit a timely request for an
exempt
receive a flu vaccination.
32. Mission denies the allegations contained in paragraph 32.
33. Mission admits that Bolella brought about her own termination by failing to
comply with a deadline which she clearly knew about and which did not impact in
3907196v.16
any way her religious beliefs. Except as expressly admitted, Mission denies the
allegations contained in paragraph 33.
34. Mission denies that Bolella was forced to resign since she was solely
responsible for her failure to comply with a deadline which she clearly knew about
and which did not impact in any way her religious beliefs. Except as expressly
admitted, Mission denies the allegations contained in paragraph 34.
35. Mission admits the allegations contained in paragraph 35.
36. Mission is without information and belief as to whether or not Mitchell has
had vaccinations or immunization since childhood through present and therefore
denies such. Mission admits that Mitchell purports to be a Christian, albeit of
unknown denomination, if any, and that she has stated that she believes that her
body is a temple and that it is wrong to put vaccines in her body. Except as
expressly admitted, Mission denies the allegations contained in paragraph 36.
37. Mission admits that Mitchell, with full knowledge of the September deadline
to request a religious exemption, requested an exemption on or about November
26, 2014, nearly three months after the deadline.
38. Mission admits the allegations contained in paragraph 38.
39.
untimely pursuant to the policy. Except as expressly admitted, Mission denies the
allegations contained in paragraph 39.
40. ion request because it was
untimely pursuant to the policy. Except as expressly admitted, Mission denies the
allegations contained in paragraph 40.
41. Mission admits that on or around December 8, 2014,
ger that Mitchell would have to get a flu shot
or be removed from payroll. Except as expressly admitted, Mission denies the
allegations contained in paragraph 41.
3907196v.17
42.
Policy and as a result she was unable to continue working for Mission although she
has been and remains eligible for rehire. Except as expressly admitted, Mission
denies the allegations contained in paragraph 42.
43. Mission admits the allegations contained in paragraph 43.
44. Mission admits that Mitchell brought about her own termination by failing to
comply with a deadline which she clearly knew about and which did not impact in
any way her religious beliefs but denies that the termination was on December 9,
2014. Except as expressly admitted, Mission denies the allegations contained in
paragraph 44.
45. Mission admits that Mitchell brought about her own termination by failing to
comply with a deadline which she clearly knew about and which did not impact in
any way her religious beliefs. Except as expressly admitted, Mission denies the
allegations contained in paragraph 45.
46. Mission admits that Robinson was hired as a Psychiatric Technician on
March 29, 2013. Except as expressly admitted, Mission denies the allegations
contained in paragraph 46.
47. Mission is without information sufficient to form a belief as to the
allegations contained in paragraph 47 so the same are denied.
48.
nonsensical document taken from the Internet that was captioned Declaration of
Vaccination Exemption. Except as expressly admitted, Mission denies the
allegations contained in paragraph 48.
49.
nonsensical document taken from the Internet that was captioned Declaration of
Vaccination Exemption and that he failed to request an exemption in a timely
3907196v.18
manner in accordance with Mission policy. Except as expressly admitted, Mission
denies the allegations contained in paragraph 49.
50. Mission admits that Robinson provided a nonsensical document taken from
the Internet that was captioned Declaration of Vaccination Exemption. Except as
expressly admitted, Mission denies the allegations contained in paragraph 50.
51.
untimely. Except as expressly admitted, Mission denies the allegations contained
in paragraph 51.
52. Mission admits that Robinson, with full knowledge of the September
deadline to request a religious exemption, requested an exemption on or about
December 12, 2013.
53. Mission denies the allegations contained in paragraph 53.
54. sole exemption request because it
was untimely. Except as expressly admitted, Mission denies the allegations
contained in paragraph 54.
55. Mission admits that it sole exemption request because it
was untimely. Except as expressly admitted, Mission denies the allegations
contained in paragraph 55.
56. sole exemption request because it
was untimely. Except as expressly admitted, Mission denies the allegations
contained in paragraph 56.
57. Mission admits that Robinson was informed that he had to comply with the
Staff Immunization Policy. Except as expressly admitted, Mission denies the
allegations contained in paragraph 57.
58.
Policy and as a result he was unable to continue working for Mission although he
3907196v.19
has been and remains eligible for rehire. Except as expressly admitted, Mission
denies the allegations contained in paragraph 58.
59. Mission admits the allegations contained in paragraph 59.
60. Mission admits that Robinson brought about his own termination by failing
to comply with a deadline which he clearly knew about and which did not impact
in any way his religious beliefs. Except as expressly admitted, Mission denies the
allegations contained in paragraph 60.
61. Mission admits that Robinson brought about his own termination by failing
to comply with a deadline which he clearly knew about and which did not impact
in any way his religious beliefs. Except as expressly admitted, Mission denies the
allegations contained in paragraph 61.
62. Mission denies that it failed to accommodate any similarly situated
employees. Mission admits that it offered, as an accommodation, an exemption
from the flu vaccination requirements which certain employees failed to take
advantage of in a timely manner pursuant to the policy. Except as expressly
admitted, Mission denies the allegations contained in paragraph 62.
63. Mission is without information sufficient to answer this allegation in that
employees failed to avail themselves in timely manner of Miss
exemption process. Except as expressly admitted, Mission denies the allegations
contained in paragraph 63.
64. Mission is without information sufficient to answer this allegation in that
is but does admit that some
exemption process. Except as expressly admitted, Mission denies the allegations
contained in paragraph 64.
3907196v.110
65. Mission is without information sufficient to answer this allegation in that
exemption process. Except as expressly admitted, Mission denies the allegations
contained in paragraph 65.
66.
by failing to comply with a deadline about which they clearly knew and which did
not impact in any way their religious beliefs. Except as expressly admitted,
Mission denies the allegations contained in paragraph 66.
67. Mission is without information sufficient to form a belief as to the
allegations contained in paragraph 67 so the same are denied.
68. Mission denies the allegations contained in paragraph 68.
69. Mission denies the allegations contained in paragraph 69.
70. Mission is without information and belief as to whether Kouns is a Daoist or
a vegan. Except as expressly admitted, Mission denies the allegations contained in
paragraph 70.
71. Mission denies the allegations contained in paragraph 71.
72. Mission admits that Kouns submitted a form likely taken from the Internet
that addressed exemptions from vaccine requirements for school children in North
Carolina. Except as expressly admitted, Mission denies the allegations contained in
paragraph 72.
73. Mission denies that Kouns submitted a request for a religious exemption but
admits that she did submit a form seeking exemption from vaccination
requirements for school children. Except as expressly admitted, Mission denies the
allegations contained in paragraph 73.
74.
Policy and as a result she was unable to continue working for Mission although she
3907196v.111
has been and remains eligible for rehire. Except as expressly admitted, Mission
denies the allegations contained in paragraph 74.
75. Mission is without information sufficient to form a belief as to the
allegations contained in paragraph 75 and therefore the same are denied.
76. Mission is without information sufficient to form a belief as to the
allegations contained in paragraph 76 and therefore the same are denied.
77. Mission is without information sufficient to form a belief as to the
allegations contained in paragraph 77 and therefore the same are denied.
78. Mission admits that Kouns brought about her own termination by failing to
comply with a deadline which she clearly knew about and which would not have
impacted in any way her newly claimed religious beliefs. Except as expressly
admitted, Mission denies the allegations contained in paragraph 78.
79. Mission admits that Kouns brought about her own termination by failing to
comply with a deadline which she clearly knew about and which would not have
impacted in any way her newly claimed religious beliefs. Except as expressly
admitted, Mission denies the allegations contained in paragraph 79.
80. Mission denies the allegations contained in paragraph 80.
81. Mission denies the allegations contained in paragraph 81.
82. Mission denies the allegations contained in paragraph 82.
83. Mission denies the allegations contained in paragraph 83.
FIRST DEFENSE
The Complaint of the Plaintiff fails to state a claim against Mission upon which
relief can be granted by this Court.
SECOND DEFENSE
that those claims are predicted in whole or in part upon events occurring outside
the relevant period(s) of limitations.
3907196v.112
THIRD DEFENSE
Mission asserts that Bolella, Mitchell, Robinson, Kouns and any purported class
members were, at all material times, at-will employees of Mission and, therefore,
each was subject to discharge at any time, with or without cause, so long as said
discharge was not for an unlawful reason
FOURTH DEFENSE
FIFTH DEFENSE
Bolella, Mitchell, Robinson, Kouns and any purported class members failed to
exercise reasonable diligence to mitigate their damages.
SIXTH DEFENSE
Bolella, Mitchell, Robinson, Kouns and any purported class members consented
(either expressly or implicitly) to any and all actions by Mission, which are made
SEVENTH DEFENSE
EIGHTH DEFENSE
The damages sustained by Plaintiff, if any, were proximately caused and
occasioned by the acts and omissions of Bolella, Mitchell, Robinson, Kouns and
any purported class members, said acts and omissions being the sole cause of their
alleged damages. Therefore, Mission pleads the intervening acts and omissions of
Bolella, Mitchell, Robinson, Kouns and any purported class members as a
Mission.
3907196v.113
NINTH DEFENSE
claims are not the subject of timely filed charges of
discrimination, Plaint claims are barred for failure to exhaust
administrative remedies.
TENTH DEFENSE
Any and all actions taken by Mission affecting Bolella, Mitchell, Robinson, Kouns
and any purported class members were taken for reasons other than their religious
beliefs.
ELEVENTH DEFENSE
Mission terminated Bolella, Mitchell, Robinson, Kouns and any purported class
employment based on legitimate business-related grounds, not related to
their religious beliefs.
TWELVETH DEFENSE
All events which occurred more than 180 days prior to the filing of the underlying
Charges of employment discrimination with the EEOC are untimely under Title
VII and not properly assertable in this action; nor is Plaintiff entitled to relief under
Title VII in this action for any events which occurred more than 180 days prior to
the filing of the Charges of employment discrimination.
THIRTEENTH DEFENSE
Even if religion was a factor in any alleged employment action, which it was not,
and which Mission expressly denies, the same decision would have been made
without regard to such factor.
FOURTEENTH DEFENSE
decisions made as to the employment of Bolella, Mitchell, Robinson,
Kouns and any purported class members were without consideration as to any
protected category, but if it is determined that any protected category was a
motivating factor in any decision, then Mission asserts that it would have reached
3907196v.114
the same result, regardless of any protected category in which the they may lie,
based upon the facts and circumstances of the case.
FIFTEENTH DEFENSE
Plaintiff has asserted no facts which would support a claim for punitive damages
under Title VII. Therefore, Plaintiff has failed to state a claim upon which relief
can be granted under Title VII.
SIXTEENTH DEFENSE
Because no discovery has yet occurred in this action, Mission reserves the right to
assert further defenses as appropriate.
WHEREFORE, having fully answered the allegations in Complaint of
Plaintiff Equal Employment Opportunity Commission, Mission respectfully prays
that:
1. Plaintiff have and recover nothing of Mission;
2. That Plaintiff not be afforded any other form of legal or equitable
relief;
3. That the Court dismiss this action with prejudice;
4. That the costs of this action and Mission
be taxed against Plaintiff as may be allowed by law; and
5. For such other and further relief as the Court deems just and proper.
3907196v.115
This the 20th day of June, 2016.
/s/ Jonathan W. YarbroughJonathan W. YarbroughN.C. State Bar No. 21316CONSTANGY, BROOKS,SMITH & PROPHETE, LLP84 Peachtree Road, Suite 230Asheville, NC 28803Telephone: (828) 277-5137Facsimile: (828) 277-5138jyarbrough@constangy.com
3907196v.116
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed this ANSWER with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to
the following:
Stephanie M. JonesGA Bar #403598Trial AttorneyEqual Employment Opportunity CommissionCharlotte District Office129 West Trade Street, Suite 400Charlotte, NC 28202stephaniejones@eeoc.govTelephone 704-954-6471
Lynette A. BarnesNC Bar #19732Regional Attorney
Kara Gibbon HadenSupervisory Trial Attorney
This the 20th day of June, 2016.
/s/ Jonathan W. YarbroughJonathan W. YarbroughN.C. State Bar No. 21316CONSTANGY, BROOKS,SMITH & PROPHETE, LLP84 Peachtree Road, Suite 230Asheville, NC 28803Telephone: (828) 277-5137Facsimile: (828) 277-5138jyarbrough@constangy.com
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