Jackson v. Birmingham, Alabama, City of et al
ANSWER to Complaint by Birmingham, Alabama, City of.(Fullerton, Frederic)
2011 Nov-23 AM 08:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CIVIL ACTION NO.
CITY OF BIRMINGHAM, et al., )
ANSWER OF DEFENDANT CITY OF BIRMINGHAM
The Defendant, the City of Birmingham (“City”), Alabama, a municipal
corporation existing under the laws of the State of Alabama, by and through its
attorney of record, in the above entitled cause and in Answer to the Complaint
heretofore filed says as follows:
The City denies each and every material allegation of the Complaint, except to
jurisdiction and venue, and demands strict proof thereof.
The Complaint fails to state a claim against the City for which the Plaintiff is
entitled to relief.
The City pleads not guilty/liable to the general issue.
The City denies that the Plaintiff was injured in the nature or to the extent
claimed and contests damages.
The City denies that the Plaintiff suffered damages as alleged in the Complaint
and that if said damages were in fact sustained, they were caused by parties
other than the City or its officers, agents or employees.
The City pleads not guilty/liable as to all material issues raised in the Complaint
and contest all damages demanded by the Plaintiff. The City denies that the
Plaintiff is due compensatory, actual or punitive damages, attorney’s fees or
costs of any type.
The City asserts the defense of immunity, whether qualified, absolute,
discretionary, functional, governmental, good faith or substantive as a complete
bar to this action.
The Plaintiff failed to mitigate its damages, though damages are denied as being
The City would plead that the Plaintiff has violated the Birmingham Public
The City has an anti-sex discrimination/hostile work environment policy which
is enforced and all employees and public are required to comply.
The City asserts that Plaintiff’s claims are time barred.
The claims of the Plaintiff are untrue and the Defendant is not guilty. The
Plaintiff does not work in a sexually hostile environment.
The Defendant asserts the statute of limitations as to claims arising under 42
U.S.C 2000 which occurred prior to 180 days prior to filing the her EEOC
The complaint fails to state a claim upon which relief may be granted under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 and Civil Rights Act
The City denies that it violated any provisions of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000 and Civil Rights Act of 1991.
The Plaintiff cannot prove a hostile work environment as she cannot show: (1)
that he or she belongs to a protected group, (2) that the employee has been
subject to unwelcome sexual harassment, such as sexual advances, requests for
sexual favors, and other conduct of a sexual nature, (3) that the harassment must
have been based on the sex of the employee, (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment, and (5) a basis for
holding the employer liable. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A.
Plaintiff’s “subjective perception” to the harassment as sufficiently severe and
pervasive to alter the terms or conditions of employment is not objectively
reasonable. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).
Plaintiff’s encounters to general vulgarity or references to sex that are
indiscriminate in nature are not actionable. Civil Rights Act of 1964, §
703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).
The City is immune from the imposition of punitive damages for an alleged
violation of Constitutional rights. Punitive damages are barred against the City
by the provisions of Code of Alabama §6-11-26, 1975, City of Newport v. Facts
Concerts, 453 U.S. 247, 101 S. Ct. 2748 (1981).
The City pleads that patrons wanting access to the internet services at the
Birmingham Public Library are required to accept the policies that they will not
violate the criminal laws of the State of Alabama and view pornographic
The City pleads that the Birmingham Public Library has used filtration software
since 1998. The Birmingham Public Library currently uses 8e6.com and
Cybrary.net to stop access to pornographic websites by patrons.
The City reserves the right to amend its Answer and raise additional defenses
which become known through the discovery process.
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II
Assistant City Attorney
City of Birmingham Law Department
600 City Hall, 710 North 20th Street
Birmingham, Alabama 35203
(205) 254-2369/(205) 254-2502 FAX
CERTIFICATE OF SERVICE
I hereby certify that on November 23, 2011 I electronically filed the foregoing
with the Clerk of the Court using the e-filing system which will send notification to the
Adam P. Morel, Esq.
517 Beacon Parkway West
Birmingham, AL. 35209
/s/Fredric L. Fullerton, II
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