Binkley v. Safeway, Inc.

Filing 7

ANSWER to Complaint AND ADDITIONAL DEFENSES by Safeway, Inc..(Hurley, Daniel)

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Honorable Thomas S. Zilly

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Cynthia Binkley, an individual,
Plaintiff,

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v.

Case No. 2:11-cv-00904-TSZ
ANSWER AND ADDITIONAL
DEFENSES OF SAFEWAY INC.

Safeway Inc., a Delaware Corporation,
Defendant.

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ANSWER
Defendant Safeway Inc. (“Safeway”), in answer to the Complaint for Damages for

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Employment Discrimination and Wrongful Termination (“Complaint”) brought by Cynthia

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Binkley (“Plaintiff”), admits, denies, and alleges as follows:

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I.
1.1

JURISDICTION AND VENUE

In response to Paragraph 1.1, Safeway affirmatively states that the Court had

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subject matter jurisdiction over Plaintiff’s claims when this matter was removed to federal

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court. Plaintiff’s allegations in Paragraph 1.1 contain legal conclusions that do not require a

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response. To the extent any further response is required, Safeway denies the allegations in

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Paragraph 1.1.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 1
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

1.2

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In response to Paragraph 1.2, Safeway admits, based on information and belief,

that Plaintiff resides in King County, Washington.

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1.3

Safeway admits the allegations in Paragraph 1.3.

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1.4

In response to Paragraph 1.4, Safeway admits that Plaintiff has worked for

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Safeway in King County, Washington. Safeway otherwise denies the allegations in Paragraph

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1.4.
II.

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2.1

BACKGROUND FACTS

In response to Paragraph 2.1, Safeway admits, based on information and belief,

that Plaintiff is a female and over the age of 40 years. Paragraph 2.1 otherwise contains legal

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conclusions that do not require a response. To the extent any further response is required,

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Safeway denies the remainder of the allegations in Paragraph 2.1.

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2.2

In response to Paragraph 2.2, Safeway admits that it hired Plaintiff on or about

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January 7, 2007 as a Second Assistant Store Manager at Safeway’s Coal Creek Parkway store.

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Safeway otherwise denies the allegations in Paragraph 2.2.

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2.3

In response to Paragraph 2.3, Safeway admits that on or about June 8, 2008,

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Plaintiff’s employment position with Safeway changed from Second Assistant Store Manager

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to Food Clerk. Safeway otherwise denies the allegations in Paragraph 2.3.

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2.4

Safeway denies the allegations in Paragraph 2.4.

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2.5

Safeway denies the allegations in Paragraph 2.5.

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2.6

In response to Paragraph 2.6, Safeway admits that, on or about July 16, 2007,

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Plaintiff reported to Safeway that she experienced a fall and resulting injury while working

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for Safeway on that date. Safeway is without knowledge or information sufficient to form a

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belief as to the existence or extent of any injury sustained by Plaintiff as a result of this fall

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and therefore otherwise denies the allegations in Paragraph 2.6

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2.7

Safeway admits the allegations in Paragraph 2.7.

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2.8

Safeway denies the allegations in Paragraph 2.8.

ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 2
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

2.9

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Paragraph 2.9 contains legal conclusions that do not require a response.

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Moreover, Safeway is unable to determine what specific “job” Plaintiff intended to refer to in

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Paragraph 2.9. Safeway therefore lacks sufficient knowledge or information to form a belief

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as to the truth of Plaintiff’s allegations in Paragraph 2.9. To the extent any response is

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required, Safeway denies the allegations in Paragraph 2.9.

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2.10

Safeway denies the allegations in Paragraph 2.10.

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2.11

Paragraph 2.11 contains legal conclusions that do not require a response.

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Moreover, Safeway is unable to determine what specific “job” Plaintiff intended to refer to in

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Paragraph 2.9. Safeway therefore lacks sufficient knowledge or information to form a belief

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as to the truth of Plaintiff’s allegations in Paragraph 2.11. Thus, to the extent any response is

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required, Safeway denies the allegations in Paragraph 2.11.
2.12

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Paragraph 2.12 contains legal conclusions that do not require a response. To

the extent any response is required, Safeway denies the allegations in Paragraph 2.12.
2.13

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In response to Paragraph 2.13, Safeway is unable to determine in what specific

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employment position Plaintiff alleges she was “replaced.” Safeway therefore lacks sufficient

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knowledge or information to form a belief as to the truth of Plaintiff’s allegations in

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Paragraph 2.13. Thus, to the extent any response is required, Safeway denies the allegations

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in Paragraph 2.13.

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2.14

In response to Paragraph 2.14, Safeway admits to maintaining and distributing

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to employees various written policies and procedures, including those designed to prevent

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unlawful discrimination in the workplace. However, Safeway is unable to determine what

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specific type of “discrimination” Plaintiff intended to refer to in Paragraph 2.14. As a result,

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except as otherwise admitted above, Safeway lacks sufficient knowledge or information to

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form a belief as to the truth of Plaintiff’s allegations in Paragraph 2.14, and thus denies the

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same.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 3
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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2.15

In response to Paragraph 2.15, Safeway admits that it provided various written

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policies and procedures to Plaintiff. Safeway is otherwise without sufficient knowledge or

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information to form a belief as to the truth of the allegations in Paragraph 2.15, and thus

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denies the same.

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2.16

In response to Paragraph 2.16, Safeway admits that it generally expects its

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employees to comply with the policies and procedures that it provides to them. Given the

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broad and generalized nature of Plaintiff’s allegations in Paragraph 2.16, however, Safeway is

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otherwise without sufficient knowledge or information to form a belief as to the truth of those

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allegations and therefore, except as admitted above, denies the same.

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2.17

III.

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Safeway denies the allegations in Paragraph 2.17.
CLAIMS AND CAUSES OF ACTION

A. CLAIM FOR DISCRIMINATION
3.1

Paragraph 3.1 contains legal conclusions that do not require a response. To the

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extent any response is required, Safeway denies the allegations in Paragraph 3.1.

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B. CLAIMS FOR WRONGFUL TERMINATION—BREACH OF EMPLOYMENT
CONTACT AND/OR EMPLOYMENT POLICY

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3.2

Paragraph 3.2 contains legal conclusions that do not require a response. To the

extent any response is required, Safeway denies the allegations in Paragraph 3.2.
3.3

Paragraph 3.3 contains legal conclusions that do not require a response. To the

extent any response is required, Safeway denies the allegations in Paragraph 3.3.
3.4

Paragraph 3.4 contains legal conclusions that do not require a response. To the

extent any response is required, Safeway denies the allegations in Paragraph 3.4.
C. CLAIM FOR FAILURE TO ACCOMMODATE
3.5

Paragraph 3.5 contains legal conclusions that do not require a response. To the

extent any response is required, Safeway denies the allegations in Paragraph 3.5.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 4
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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3.6

Paragraph 3.6 contains legal conclusions that do not require a response. To the

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extent any response is required, Safeway denies the allegations in Paragraph 3.6.

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D. CLAIM FOR RETALIATION

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3.7

Paragraph 3.7 contains legal conclusions that do not require a response. To the

extent any response is required, Safeway denies the allegations in Paragraph 3.7.
IV.

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4.1

DAMAGES

Paragraph 4.1 (include subparts 4.1.1 through 4.1.4) sets forth Plaintiff’s

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alleged damages and does not require a response. To the extent any response is required,

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Safeway denies engaging in any unlawful conduct alleged in the Complaint and thus denies

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each and every assertion in Paragraph 4.1 regarding Plaintiff’s alleged damages.
V.

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REQUEST FOR RELIEF

Plaintiff’s Request for Relief does not require a response. To the extent any response

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is required, Safeway denies that Plaintiff is entitled to the relief requested in the Complaint

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(including without limitation Section V and its subparts 1 through 6) or to any relief

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whatsoever.

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ADDITIONAL DEFENSES

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By way of further answer and defense, Safeway states:

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1.

The Complaint fails to state a claim upon which relief may be granted.

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2.

Plaintiff’s claims are barred in whole or in part by applicable statutes of

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limitations or limitations periods.
3.

Plaintiff’s claims are barred in whole or in part pursuant to the doctrines of

waiver, laches, estoppel, accord and satisfaction, and settlement and release.
4.

Plaintiff’s claims are barred, in whole or in part, by her own negligent or

intentional acts or her contributory negligence or her comparative fault.
5.

Plaintiff’s claims are barred, in whole or in part, by the exclusive remedy

provisions of the Washington Industrial Insurance Act.
ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 5
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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6.

Plaintiff’s claims are preempted or exclusively governed, in whole or in part,

by Section 301 of the Labor Relations Management Act and/or other federal labor law.
7.

Some or all of Plaintiff’s claims are required to be resolved through grievance

or arbitration procedures.
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Plaintiff’s claims are barred, in whole or in part, due to Plaintiff’s failure to

exhaust administrative and contractual remedies.
9.

Any claims for attorney’s fees may be waived, in whole or in part, by the

relevant bargaining agreement.
10.

Plaintiff’s discrimination and retaliation claims are barred, because any actions

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taken by Safeway were taken for legitimate and lawful business reasons, unrelated to

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Plaintiff’s sex, age, alleged disability, worker’s compensation claim or alleged requests for

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workplace accommodations.

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Plaintiff’s discrimination and retaliation claims are barred, in whole or in part,

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because Plaintiff did not suffer any tangible adverse employment action as a result of her sex,

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age, alleged disability, worker’s compensation claim or any alleged request for a workplace

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accommodation.

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12.

Plaintiff’s failure to accommodate claim is barred, in whole or in part, because

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Plaintiff was not a qualified individual, Safeway did not fail to provide a reasonable

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accommodation of any alleged disability, and/or no reasonable accommodation could be

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made without imposing an undue hardship on Safeway.

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13.

An award of attorney’s fees pursuant to RCW 49.48.030 is not justified

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because Safeway has paid Plaintiff appropriate wages legally due for any compensable work

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and Plaintiff has not been terminated.

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14.

If and to the extent the Court finds that Plaintiff is entitled to damages,

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Plaintiff’s claim for damages may be barred, in whole or in part, due to a failure to mitigate

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her damages.
ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 6
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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15.

If and to the extent the Court finds that Plaintiff is entitled to damages,

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Safeway is entitled to an offset against such damages for all amounts that were earned or

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which reasonably could have been earned by Plaintiff or for income from non-collateral

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sources.

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16.

To the extent Plaintiff claims that she was wrongfully denied benefits under

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any retirement or health and welfare plan, Plaintiff’s claims are preempted by the Employee

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Retirement Income Security Act, 29 U.S.C. § 1001, et seq.

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17.

To the extent Plaintiff claims that she was wrongfully denied benefits under

any retirement or health and welfare plan, Plaintiff’s claims are barred, in whole or in part, by
her failure to exhaust administrative remedies.
18.

Plaintiff’s claims are barred in whole or in part by lack of consideration, lack

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of mutual assent, lack of agreement, mutual mistake, lack of reliance, failure to perform a

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condition precedent, and/or breach.

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19.

Safeway acted in good faith and did not act willfully.

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20.

Safeway specifically reserves the right to raise additional defenses, as they

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may become known through the course of further investigation and discovery.

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PRAYER

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WHEREFORE, having fully answered, Safeway prays that:

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A.

Plaintiff take nothing by the Complaint;

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B.

The Complaint be dismissed with prejudice;

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C.

Safeway be awarded its costs and reasonable attorneys’ fees as permitted by

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law; and
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Safeway be granted such other and further relief as the Court may deem just

and equitable.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 7
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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DATED this 7th day of June, 2011.

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K&L GATES LLP

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By s/ Daniel P. Hurley________
Daniel P. Hurley, WSBA #32842

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K&L Gates LLP
925 Fourth Ave., Suite 2900
Seattle, WA 98104-1158
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant Safeway Inc.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 8
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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CERTIFICATE OF SERVICE

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I hereby certify that on June 7, 2011, I caused to be electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF system which will send notification
of such filling to the following CM/ECF participant:
Patrick B. Reddy at [e-mail]
Dated this 7th day of June, 2011.

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By s/ Daniel P. Hurley________
Daniel P. Hurley, WSBA #32842

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K&L Gates LLP
925 Fourth Ave., Suite 2900
Seattle, WA 98104-1158
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant Safeway Inc.

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ANSWER AND ADDITIONAL DEFENSES OF
SAFEWAY INC. - 9
Case No. 2:11-cv-00904-TSZ

K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]