EEOC v. Blockbuster Inc.

Filing 40

ANSWER to 35 Amended Complaint by Blockbuster Inc.. (Attachments: # 1 Redline)(Quamie, Lexer)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
)
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
BLOCKBUSTER INC.,
)
)
Defendant.
)
)

Civil Action No.: 8:07-CV-02612

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT BLOCKBUSTER INC.
Defendant Blockbuster Inc. (“Blockbuster” or “Defendant”), by and through its attorneys,
Morgan, Lewis & Bockius LLP, for its Answer and Affirmative Defenses to the Amended
Complaint of Plaintiff, United States Equal Employment Opportunity Commission (“EEOC”)
states the following:
NATURE OF THE ACTION
Defendant admits that Plaintiff purports to bring this action under Title VII of the Civil
Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, but Defendant
denies that facts exist that would entitle Plaintiff to maintain the claims advanced or to obtain the
relief sought.
JURISDICTION AND VENUE
1.

Defendant admits that Plaintiff purports to invoke this Court’s jurisdiction

pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Defendant admits that Plaintiff
purports to further invoke this Court’s jurisdiction pursuant to Section 706(f)(1) and (3) of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”),

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Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, and Section 709(c) of Title VII,
42 U.S.C. § 2000e-8(c) but Defendant denies that facts exist that would entitle Plaintiff to
maintain the claims advanced or to obtain the relief sought.
2.

Defendant admits that Plaintiff purports the practices alleged to be unlawful were

committed within the jurisdiction of the United States District Court for the District of Maryland,
Southern Division, but Defendant denies that facts exist that would entitle Plaintiff to maintain
the claims advanced or to obtain the relief sought.
PARTIES
3.

Defendant admits that Plaintiff is an agency of the United States of America

charged with the administration, interpretation, and enforcement of Title VII, and purports to
bring this action under the express authorization of § 706(f)(1), (3) of Title VII, 42 U.S.C. §
2000e-5(f)(1) and (3), and Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c) but Defendant
denies that facts exist that would entitle Plaintiff to maintain the claims advanced or to obtain the
relief sought.
4.

Defendant admits the allegations in paragraph 4 of the Amended Complaint.

5.

Defendant admits the allegations in paragraph 5 of the Amended Complaint.
STATEMENT OF CLAIMS

6.

Defendant admits that Lolita Gonzales and Dolores Gonzales (“Charging

Parties”) filed charges of discrimination with the Commission alleging violations of Title VII by
Defendant. Defendant denies the remaining allegations in paragraph 6 of the Amended
Complaint.
7.

Defendant denies the allegations in paragraph 7 of the Amended Complaint.

8.

Defendant denies the allegations in paragraph 8 of the Amended Complaint.

9.

Defendant denies the allegations in paragraph 9 of the Amended Complaint.

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10.

Defendant denies the allegations in paragraph 10 of the Amended Complaint.

11.

Defendant denies the allegations in paragraph 11 of the Amended Complaint.

12.

Defendant denies the allegations in paragraph 12 of the Amended Complaint.

13.

Defendant denies the allegations in paragraph 13 of the Amended Complaint.

14.

Defendant denies the allegations in paragraph 14 of the Amended Complaint.

15.

Defendant denies the allegations in paragraph 15 of the Amended Complaint.

16.

Defendant denies the allegations in paragraph 16 of the Amended Complaint.

17.

Defendant denies the allegations in paragraph 17 of the Amended Complaint.

18.

Defendant denies the allegations in paragraph 18 of the Amended Complaint.

19.

Defendant denies the allegations in paragraph 19 of the Amended Complaint.

20.

Defendant denies the allegations in paragraph 20 of the Amended Complaint.

21.

Defendant denies the allegations in paragraph 21 of the Amended Complaint.

22.

Defendant denies the allegations in paragraph 22 of the Amended Complaint.

23.

Defendant denies the allegations in paragraph 23 of the Amended Complaint.

24.

Defendant denies the allegations in paragraph 24 of the Amended Complaint.

25.

Defendant denies the allegations in paragraph 25 of the Amended Complaint.

Defendant further denies every allegation, whether express or implied, that is not
unequivocally or specifically admitted in the Answer.
PRAYER FOR RELIEF
Defendant denies that the EEOC, Charging Parties, or any of the purported putative class
members are entitled to the relief requested in paragraphs A. through I. of the Prayer for Relief,
or to any relief whatsoever.

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AFFIRMATIVE DEFENSES AND ADDITIONAL DEFENSES
FIRST DEFENSE
To the extent that Plaintiff failed to comply with statutory and/or jurisdictional
prerequisites for the institution of an action under the statutes it relies upon in its Amended
Complaint, its claims are barred and/or diminished.
SECOND DEFENSE
Plaintiff has failed to meet its statutory duty to conciliate in good faith prior to instituting
this action.
THIRD DEFENSE
Plaintiff’s claims under Title VII are barred to the extent that the Amended Complaint
alleges conduct that was not previously alleged in a timely administrative charge filed with the
EEOC, or that otherwise exceeds the scope of the charge of discrimination filed with the EEOC.
FOURTH DEFENSE
Plaintiff’s claims under Title VII are barred to the extent that the Amended Complaint is
based on conduct occurring more than 300 days prior to the proper filing of a charge of
discrimination with the EEOC raising such claim or claims.
FIFTH DEFENSE
Defendant denies that sex, race/national origin, or any other impermissible factor played
any role in the employment decisions to Charging Party Lolita Gonzales or Charging Party
Dolores Gonzales or any purported putative class members. Alternatively, even if some
impermissible motive had been a factor in any of those decisions, the same decisions would have
been reached for legitimate, nondiscriminatory reasons.

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SIXTH DEFENSE
Plaintiff’s claims of retaliation should be dismissed because the challenged employment
decisions are justified by legitimate, non-discriminatory, non-retaliatory and non-pretextual
business reasons and were based upon reasonable factors other than the Charging Parties’
protected status and/or their alleged protected activity, and because Plaintiff cannot show that the
Charging Parties were meeting Defendant’s legitimate expectations or show a causal connection
between any protected activity and any adverse employment action.
SEVENTH DEFENSE
At all times relevant to this action, Defendant has had in place a clear and well
disseminated policy against harassment, discrimination, or other inappropriate conduct, on the
basis of race, national origin, gender, or other protected classifications, and a reasonable and
available procedure for handling complaints, which provides for prompt and effective responsive
action.
EIGHTH DEFENSE
If any improper, illegal, or discriminatory acts were taken by an employee of Defendant
against Charging Party Lolita Gonzales, Charging Party Dolores Gonzales, or any of the
purported putative class members, it was outside the course and scope of that employee’s
employment, or an independent, intervening and or unforeseeable act, contrary to Defendant’s
policies, and was not ratified, confirmed, or approved by Defendant. Thus any such actions
cannot be attributed or imputed to Defendant.
NINTH DEFENSE
Claims of any putative class members are untimely because they did not file timely
administrative charges with the Equal Employment Opportunity Commission, and the putative
class members cannot piggyback on the charges of Plaintiffs.

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TENTH DEFENSE
Defendant is entitled to contribution and/or indemnification from Venturi Staffing
Partners, Inc. as the agency responsible for receiving and investigating complaints of the
Charging Parties and some or all of the putative class members.
ELEVENTH DEFENSE
Defendant has made a good faith effort to comply with anti-discrimination laws and
Defendant has not engaged in any alleged conduct with malice or reckless indifference to the
protected rights of any aggrieved individual, and thus neither Plaintiff, Charging Party Lolita
Gonzales, Charging Party Dolores Gonzales, nor any of the purported putative class members are
entitled to punitive damages.
TWELFTH DEFENSE
Damages sought by the EEOC for Charging Parties or any putative class members are
barred or diminished to the extent they failed to mitigate their damages.
THIRTEENTH DEFENSE
Defendant took all reasonable efforts under the circumstances to preserve relevant
investigative records until final disposition of a charge of discrimination in compliance with
Title VII and the EEOC’s Regulations set forth at 29 C.F.R. § 1602.14.
Defendant reserves the right to assert additional defenses or affirmative defenses as
established by the facts of the case.
WHEREFORE, having fully responded to Plaintiff’s Amended Complaint, Defendant
respectfully requests that the Court dismiss Plaintiff’s claim with prejudice, award Defendant its
costs and reasonable attorneys’ fees incurred in this lawsuit, and allow Defendant such other and
further relief as this Court deems proper.

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Dated: November 17, 2008
Respectfully submitted,

_/s/___Grace E. Speights_______________
Grace E. Speights (Bar No. 05254)
202-739-5189
Lexer I. Quamie (Bar No. 17229)
202-739-5955
Chaka A. Keiller (admitted pro hac vice)
207-739-5179
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
202-739-3001 (fax)
Counsel for Blockbuster Inc.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served, via ECF a copy of the foregoing Answer and
Affirmative Defenses of Defendant Blockbuster, Inc. to the Amended Complaint of Plaintiff the
Equal Employment Opportunity Commission, on the 17th day of November 2008 on the following
counsel:

Debra Michele Lawrence
Ronald L. Phillips
Equal Employment Opportunity Commission
City Crescent Building
10 South Howard Street
Third Floor
Baltimore, MD 21201
Jacqueline H. McNair
Equal Employment Opportunity Commission
801 Market Street
Penthouse Suite 1300
Philadelphia, PA 19107

/s/ Chaka A. Keiller________

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