ASHEVILLE DIVISION EQUAL EMPLOYMENT ) OPPORTUNITY ... · ASHEVILLE DIVISION EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, )) ... is a federal governmental ... Mission is without information

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

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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.



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.

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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







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.



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,


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.

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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


25. influenza exemption request because

it was untimely pursuant to the policy. Except as expressly admitted, Mission



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


28. Mission admits that Bolella was informed that she had to comply with

Missi


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.


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

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any way her religious beliefs. Except as expressly admitted, Mission denies the


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



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.


39.

untimely pursuant to the policy. Except as expressly admitted, Mission denies the


40. ion request because it was

untimely pursuant to the policy. Except as expressly admitted, Mission denies the


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


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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



44. Mission admits that Mitchell brought about her own termination by failing to


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


any way her religious beliefs. Except as expressly admitted, Mission denies the


46. Mission admits that Robinson was hired as a Psychiatric Technician on

March 29, 2013. Except as expressly admitted, Mission denies the allegations


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


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


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.


54. sole exemption request because it

was untimely. Except as expressly admitted, Mission denies the allegations


55. Mission admits that it sole exemption request because it



56. sole exemption request because it



57. Mission admits that Robinson was informed that he had to comply with the

Staff Immunization Policy. Except as expressly admitted, Mission denies the


58.

Policy and as a result he was unable to continue working for Mission although he

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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


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


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


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



is but does admit that some



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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,



allegations contained in paragraph 67 so the same are denied.



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.


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


74.

Policy and as a result she was unable to continue working for Mission although she

3907196v.111




allegations contained in paragraph 75 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


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






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.

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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.

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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

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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) [email protected]

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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 [email protected] 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) [email protected]

Documents

ASHEVILLE DIVISION EQUAL EMPLOYMENT ) OPPORTUNITY ... · ASHEVILLE DIVISION EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, )) ... is a federal governmental ... Mission is without information