UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:20-cv-80993-WPD

TIMOTHY O’BRYAN

Plaintiff,

vs. 

JOE TAYLOR RESTORATION, INC., a Florida

Corporation, AARON GETTY, individually, 

KAREN RADEWICZ, individually, and

GLENDA GALARZA, individually, 

Defendants.

 /

DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES

Defendants, JOE TAYLOR RESTORATION, a Florida for profit corporation, AARON 

GETTY, individually, KAREN RADEWICZ, individually, and GLENDA GALARZA, 

individually (hereinafter collectively referred to as “Defendants”), by and through undersigned 

counsel, hereby file their Answer and Affirmative Defenses to Plaintiff’s, TIMOTHY O’BRYAN

(hereinafter referred to as “Plaintiff”), Complaint, as follows: 

Defendants deny each and every allegation of Plaintiff’s Complaint not expressly or 

otherwise admitted below. Defendants also specifically reserve the right to assert any additional 

affirmative defenses in matters of avoidance that may be disclosed during the course of additional 

investigation and discovery. Defendants’ Answer to each of the specifically enumerated 

paragraphs of Plaintiff’s Complaint is as follows:

Introduction

1. Defendants admit that Plaintiff purports to bring claims for damages under the 

Family and Medical Leave Act, 29 U.S.C. 2601-2654 (“FMLA”), as temporarily modified 

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pursuant to the Families First Coronavirus Response Act (“FFCRA”), Public Law 116-127, but 

deny any such claims exist and further deny the allegations, inferences and legal conclusions 

contained in Paragraph 1 of Plaintiff’s Complaint and demand strict proof thereof.

JURISDICTION AND VENUE

2. Defendants do not contest jurisdiction or venue but deny Plaintiff is entitled to such 

relief and further deny the allegations, inferences and legal conclusions contained in Paragraph 2

of Plaintiff’s Complaint and demand strict proof thereof.

PARTIES

3. Defendants deny for want of knowledge the allegations, inferences and legal 

conclusions contained in Paragraph 3 of Plaintiff’s Complaint and demand strict proof thereof.

4. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 4 of Plaintiff’s Complaint and demand strict proof thereof.

5. Defendants admit J the allegations contained in Paragraph 5 of Plaintiff’s 

Complaint.

6. Defendants admit Getty is JTR’s vice president, but deny the allegations, inferences 

and legal conclusions contained in Paragraph 6 of Plaintiff’s Complaint and demand strict proof 

thereof.

7. Defendants admit that Radewicz is JTR’s the director of operations, but deny the 

allegations, inferences and legal conclusions contained in Paragraph 7 of Plaintiff’s Complaint and 

demand strict proof thereof.

8. Defendants admit Galarza is one of JTR’s supervisors, but deny the allegations, 

inferences and legal conclusions contained in Paragraph 8 of Plaintiff’s Complaint and demand 

strict proof thereof.

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STATEMENT OF FACTS

9. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 9 of Plaintiff’s Complaint and demand strict proof thereof.

10. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 10 of Plaintiff’s Complaint and demand strict proof thereof.

11. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 11 of Plaintiff’s Complaint and demand strict proof thereof.

12. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 12 of Plaintiff’s Complaint and demand strict proof thereof. 

13. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 13 of Plaintiff’s Complaint and demand strict proof thereof. 

14. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 14 of Plaintiff’s Complaint and demand strict proof thereof.

15. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 15 of Plaintiff’s Complaint and demand strict proof thereof.

16. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 16 of Plaintiff’s Complaint and demand strict proof thereof.

17. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 17 of Plaintiff’s Complaint and demand strict proof thereof.

18. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 18 of Plaintiff’s Complaint and demand strict proof thereof.

COUNT I

19. Defendants reaffirm and readopt their responses to paragraphs 1 through 18 as if 

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fully set forth herein. 

20. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 20 of Plaintiff’s Complaint and demand strict proof thereof.

21. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 21 of Plaintiff’s Complaint and demand strict proof thereof.

22. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 22 of Plaintiff’s Complaint and demand strict proof thereof.

23. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 23 of Plaintiff’s Complaint and demand strict proof thereof.

Defendants deny Plaintiff is entitled to any of the relief or damages in the prayer for relief

and demand strict proof thereof. 

COUNT II

24. Defendants re-adopt and re-affirm each and every response as stated in Paragraphs 

1 through 18 above as if fully set forth herein. 

25. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 25 of Plaintiff’s Complaint and demand strict proof thereof.

26. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 26 of Plaintiff’s Complaint and demand strict proof thereof.

27. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 27 of Plaintiff’s Complaint and demand strict proof thereof.

28. Defendants deny the allegations, inferences and legal conclusions contained in 

Paragraph 28 of Plaintiff’s Complaint and demand strict proof thereof.

29. Defendants deny the allegations, inferences and legal conclusions contained in

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Paragraph 29 of Plaintiff’s Complaint and demand strict proof thereof.

Defendants deny Plaintiff is entitled to any of the relief or damages in the prayer for relief,

and demand strict proof thereof. 

AFFIRMATIVE DEFENSES

30. As and for their First Affirmative Defense, Defendants state Plaintiff cannot 

evidence any facts which would give rise to a claim for damages.

31. As and for their Second Affirmative Defense, Defendants state Plaintiff has failed 

to comply with his statutory duty to mitigate or reasonably attempt to mitigate his claim for 

damages, his entitlement to which is expressly denied.

32. As and for their Third Affirmative Defense, Defendants state Plaintiff has failed to 

allege and/or cannot evidence any action or conduct by the Defendant which is suggestive of illegal 

retaliation.

33. As and for their Fourth Affirmative Defense, Defendants state to the extent Plaintiff 

alleges that an employee of the Defendant acted in a retaliatory manner, such conduct, if it 

occurred, was outside the course and scope of the employee’s employment and/or not condoned 

by the Defendants and/or undertaken without the knowledge or consent of the Defendants, and 

accordingly, Defendants may not be liable therefore.

34. As and for their Fifth Affirmative Defense, Defendants state Plaintiff’s Complaint 

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

35. As and for their Sixth Affirmative Defense, Defendants state Plaintiff’s claims are

barred on the grounds that he has not suffered any damages.

36. As and for their Seventh Affirmative Defense, Defendants state Plaintiff’s claims

are barred on the grounds any harm that he might have suffered is exclusively attributable to a 

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third-party or himself, but not to Defendants.

37. As and for their Eighth Affirmative Defense, Defendants state Plaintiff’s claims are

barred on the grounds Defendants based all employment decisions concerning Plaintiff solely on 

legitimate, non-retaliatory business reasons unrelated to any alleged statutorily protected 

expression.

38. As and for their Ninth Affirmative Defense, Defendants state Plaintiff’s claims are

barred on the grounds that Defendants did not in any way interfere with or retaliate against Plaintiff 

with respect to the compensation, terms, conditions, or privileges of Plaintiff’s employment 

because of any alleged statutorily protected expression.

39. As and for their Tenth Affirmative Defense, Defendants states Plaintiff’s alleged 

statutorily protected expression neither was made in good faith nor with objective reasonableness.

40. As and for their Eleventh Affirmative Defense, Defendants state any adverse 

employment action which the Plaintiff alleges was retaliatory was not causally connected to any

alleged statutorily protected expression.

41. As and for their Twelfth Affirmative Defense, Defendants state Plaintiff’s claims 

are barred, in whole or in part, because assuming, arguendo, retaliatory reasons were a factor in 

any employment decision involving Plaintiff, Defendants would have made the same employment 

decisions with regard to Plaintiff for legitimate, non-retaliatory business reasons (poor 

performance).

42. As and for their Thirteenth Affirmative Defense, Defendants state Plaintiff’s claims 

are barred, in whole or in part, because Plaintiff is estopped by his own conduct to claim any right 

to damages or other monetary relief from Defendants.

43. As and for their Fourteenth Affirmative Defense, Defendants state Plaintiff’s 

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claims are barred, in whole or in part, by the doctrine of unclean hands. 

44. As and for their Fifteenth Affirmative Defense, Defendants state Plaintiff’s claims 

are barred and/or potential damages should be reduced, in whole or in part, pursuant to the afteracquired evidence doctrine to the extent such evidence demonstrates Plaintiff’s employment would 

have been terminated for legitimate, non-retaliatory reasons.

45. As and for their Sixteenth Affirmative Defense, Defendants state Plaintiff’s claims 

for relief are barred, in whole or in part, to the extent Plaintiff seeks damages not permitted under 

the applicable law or that are in excess of the limits imposed by applicable law.

46. As and for their Seventeenth Affirmative Defense, Defendants state Plaintiff’s 

claims for damages (if any) must be reduced by all amounts that were earned or which reasonably 

could have been earned by Plaintiff or for income from non-collateral or other sources.

47. As and for their Eighteenth Affirmative Defense, Defendants state Plaintiff’s 

alleged claims for emotional distress damages are barred in their entirety or subject to 

apportionment to the extent such damages were caused, in whole or in part, by sources other than 

the alleged actions or Defendants.

48. As and for their Nineteenth Affirmative Defense, Defendants state Plaintiff’s 

claims as to the individual Defendants are barred as none are employers under the Act.

49. Defendant reserves the right to assert additional affirmative defenses that may be 

learned or disclosed through the discovery process.

DEMAND FOR COSTS AND ATTORNEY’S FEES

Defendants are entitled to an award of costs and attorney’s fees incurred in defense of 

O’Bryan’s claims because the claims have been brought in bad faith. See, e.g., Kreager v. Solomon 

Case 9:20-cv-80993-WPD Document 6 Entered on FLSD Docket 07/20/2020 Page 7 of 9
& Flanagan, P.A., 775 F.2d 1541 (11th Cir. 1985) and Turlington v. Atlanta Gas Light Co., 135 

F.3d 1428 (11th Cir. 1998). 

WHEREFORE, having fully answered Plaintiff’s Complaint, Defendants pray this 

Honorable Court dismiss with prejudice Plaintiff’s claims in full, tax costs against Plaintiff and in 

favor of Defendants, and reserve jurisdiction to consider a timely filed motion for attorneys’ fees 

on the authority of, inter alia, Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541 (11th Cir. 

1985).

Dated: July 20, 2020 Respectfully submitted,

Boca Raton, FL

s/ Daniel R. Levine

DANIEL R. LEVINE, ESQ.

Florida Bar No. 0057861

E-mail: DRL@PBL-Law.com

PADULA BENNARDO LEVINE, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on July 20, 2020, I electronically filed the foregoing document with 

the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served 

this day on all counsel of record identified on the Service List below via transmission of Notices 

of Electronic Filing generated by CM/ECF.

s/ Daniel R. Levine

DANIEL R. LEVINE, ESQ.

SERVICE LIST

Timothy O’Bryan v. Joe Taylor Restoration, Inc., et al.

Case No. 9:20-cv-80993-WPD

United States District Court, Southern District of Florida

Chad E. Levy, Esquire

E-Mail: chad@levylevylaw.com

Law Offices of Levy & Levy, P.A.

1000 Sawgrass Corporate Parkway, Suite 588

Sunrise, FL 33323

Counsel for Plaintiffs

Telephone: (954) 763-5722

Facsimile: (954) 763-5723

Via CM/ECF

Daniel R. Levine, Esquire

E-Mail: DRL@PBL-Law.com

Padula Bennardo Levine, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Counsel for Defendants

Via CM/ECF

David M. Cozad, Esquire

E-Mail: david@levylevylaw.com

Law Offices of Levy & Levy, P.A.

1000 Sawgrass Corporate Parkway, Suite 588

Sunrise, FL 33323

Counsel for Plaintiffs

Telephone: (954) 763-5722

Facsimile: (954) 763-5723

Via CM/ECF

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