IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

GREGORY SCOTT, 

 Plaintiff, 

vs. 

NORMENT SECURITY GROUP, 

INC., 

 Defendant. 

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CASE NO.: 2:06-CV-00654-VPM 

JURY TRIAL REQUESTED 

DEFENDANT NORMENT SECURITY GROUP, INC’S ANSWER 

TO PLAINTIFF GREGORY SCOTT’S COMPLAINT

COMES NOW the Defendant, Norment Security Group, Inc., and responds to Plaintiff’s 

Complaint as follows: 

1. Admitted. 

2. Admitted. 

3. Admitted. 

4. Except to the extent that the commission of any unlawful practice is denied, admitted. 

5. Admitted. 

6. Admitted. 

7. Denied. 

8. It is admitted that the Plaintiff complained about being written up for his admitted 

violations of Defendant’s safety rules and asserted that others were also violating these rules. 

It is denied that he claimed any disparity in the enforcement of the rules was based on race. 

Defendant did not reassign any employee as a result of Plaintiff’s complaint. 

9. Denied. 

10. It is admitted that Plaintiff was discharged. Otherwise, this allegation is denied. 

11. Denied. 

12. Denied. 

13. The filing of an EEOC charge is admitted. Otherwise, this allegation is denied. 

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14. Defendant incorporates its prior answers. 

15. Denied. 

16. Defendant incorporates its prior answers. 

17. Denied. 

18. Defendant incorporates its prior answers. 

19. Denied. 

AFFIRMATIVE AND ADDITIONAL DEFENSES

1. Plaintiff’s claims are barred to the extent that he seeks to base his claims on 

events occurring outside the applicable statutes of limitations. 

2. Plaintiff’s Title VII claims are barred by a failure to exhaust his administrative 

remedies to the extent that any allegations were not raised in the charges of discrimination he

filed with the EEOC. 

3. Plaintiff’s Title VII claims are barred to the extent that Plaintiff filed the

complaint more than 90 days after he received notice of right to sue from the EEOC. 

4. All or part of Plaintiff’s punitive damages claims are barred because Defendant 

has made good faith efforts to comply with Title VII and all applicable anti-discrimination laws

and did not act with malice or reckless indifference to Plaintiff’s federally- protected rights. 

5. Plaintiff’s claims for damages are barred to the extent that he failed to make 

reasonable efforts to mitigate his damages. 

6. Any award of punitive damages and/or damages for mental anguish or emotional 

distress would violate the constitutional safeguards provided under the Constitution of the United 

States and of the various states, including the Constitution of the State of Alabama. 

7. Any award of punitive damages and/or damages for mental anguish or emotional 

distress to Plaintiff would violate the constitutional safeguards provided under the Constitution 

of the United States and the Constitution of the State of Alabama in that the determination of 

such damages under the applicable state law is vague, is not based on any objective standards, 

and is not rationally related to legitimate government interests. 

8. Plaintiff’s claims for punitive damages violate the separation of powers 

requirement of the constitutions of the various states, by allowing courts and juries, rather than a 

legislature, to determine what conduct constitutes punishable conduct and the amount of

punishment therefore. 

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9. Plaintiff’s claims for punitive damages violate the Fourth, Fifth, Sixth, Seventh, 

Eighth, and Fourteenth Amendments of the Constitution of the United States and Article I, §§ 1, 

2, 6, 11, 13, 15, 22 and 35 of the Constitution of Alabama, and is improper under the statutes, 

common law, public policies and applicable rules of the State of Alabama, on the following 

grounds: 

(a) It is a violation of the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment of the United States Constitution to impose punitive 

damages, which are penal in nature, against a civil defendant upon Plaintiff’s

satisfying a burden of proof which is less than the “beyond a reasonable doubt” 

burden of proof required in criminal cases; 

(b) The procedures pursuant to which punitive damages are awarded and the 

guidelines given to jurors are vague and ambiguous and fail to provide specific 

standards on the determination of whether to award punitive damages or specific 

standards as to a constitutionally reasonable limit on the amount of any award 

against defendant, which thereby violates the Due Process Clause of the

Fourteenth Amendment of the United States Constitution;

(c) The procedures pursuant to which punitive damages are awarded are 

vague and ambiguous and fail to provide specific standards for the amount of the 

award of punitive damages which allows jurors broad, unlimited and undefined 

power to make determinations based on passion, personal beliefs and/or 

uninformed ideas of what the law permits, rather than what the law requires; 

(d) The procedures pursuant to which punitive damages are awarded result in 

the imposition of different penalties for the same or similar acts and, thus, violate 

the Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution;

(e) The procedures pursuant to which punitive damages are awarded permit

the imposition of punitive damages in excess of the maximum criminal fine for 

the same or similar conduct, which thereby infringes on the Due Process Clause 

of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the 

Fourteenth Amendment of the United States Constitution;

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(f) Any award of punitive damages to Plaintiff would violate the SelfIncrimination Clause of the Fifth Amendment of the United States Constitution,

because punitive damages are penal in nature, yet a defendant may be compelled

to disclose potentially incriminating documents and evidence; 

(g) Plaintiff’s attempt to impose punitive or extra contractual damages on

defendant on the basis of the conduct of others violates the Fifth, Eighth, and 

Fourteenth Amendments of the United States Constitution;

(h) Any award of punitive damages to Plaintiff would violate the procedural 

safeguards provided to defendant under the Sixth Amendment of the United 

States Constitution in that punitive damages are penal in nature, and 

consequently, a defendant in a case in which punitive damages are sought should 

be entitled to the same procedural safeguards accorded to a defendant in a 

criminal proceeding. Since Alabama law and procedures which allow the 

imposition of punitive damages do not afford civil defendant the same protections 

afforded criminal defendant, awards of punitive damages result in an arbitrary

deprivation of property in violation of the Constitution. 

(i) Plaintiff’s Complaint, to the extent that it seeks exemplary or punitive

damages, violates defendant’s rights to protection from “excessive fines” as 

provided in the Eighth Amendment of the United States Constitution; 

(j) Plaintiff’s Complaint, to the extent that it seeks exemplary or punitive

damages, violates defendant’s right to substantive due process as provided in the 

Fifth and Fourteenth Amendments of the United States Constitution and as 

provided in the Constitution of the various states; 

(k) Plaintiff’s claims for punitive damages violate equal protection as

guaranteed by the Fourteenth Amendment to the United States Constitution. 

Punitive damage awards discriminate against defendant in that the protections of

criminal trials and the limiting of the amount of punitive damages awardable may 

be granted to some classes of defendant under certain states' law, but may be 

denied to these defendant and others similarly situated. 

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(l) Any award of punitive damages would violate defendant’s right to trial by

jury in violation of the Seventh Amendment to the Constitution of the United 

States. 

10. Plaintiff’s claims for multiple and/or punitive damages and/or damages for mental 

anguish/emotional distress violate due process as guaranteed by the Fifth and Fourteenth 

Amendment to the United States Constitution, in that: 

a) there is no requirement that punitive damages be reasonably proportionate 

to any element of compensatory damages and/or to any legitimate interest to be

advanced by the State; 

b) there is no requirement that punitive damages be reasonably proportionate 

to the act or omission sought to be punished; 

c) review of punitive damage awards for excessiveness without objective

proportionality requirements and other objective requirements is wholly personal 

and subjective; 

d) punitive damages instructions insufficiently inform the jury as to the

nature and purpose of punitive damages and the instructions are not saved by a

post trial review at the trial and/or appellate levels; 

e) the preponderance of the evidence standard of proof, where applicable, is

not high enough to satisfy due process where a defendant faces a punitive damage

award; 

f) the criteria for an award of punitive damages and/or damages for mental 

anguish/emotional distress are impermissibly vague and uncertain; 

g) the criteria for review of an award of punitive damages and/or damages for

mental anguish/emotional distress on appeal are impermissibly vague and 

uncertain; 

h) there are no meaningful standards provided by law for the imposition of 

punitive damages and therefore defendant has not been provided fair notice in 

advance of conduct that could result in punitive damages and/or the potential size 

of any award as a result of the alleged conduct; and 

i) the jury is instructed that punitive damages are permitted to set an example 

to deter others and/or otherwise relate to the conduct of others or the conduct of a 

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defendant outside the scope of this litigation, subjecting a defendant to potential 

for multiple penalties for the same conduct, and/or to penalties for the conduct of 

others. 

11. Plaintiff’s claims for punitive damages are in contravention of Defendant’s rights

under each of the following constitutional provisions: 

(a) Article I, § 8 of the United States Constitution, as an impermissible burden 

on interstate commerce, as an unlawful state regulation of interstate commerce 

and/or to the extent such an award punishes acts or omissions alleged to have 

occurred outside of this state; 

(b) the Contracts Clause of Article I, § 10 of the United States Constitution;

(c) the Due Process Clause of the Fifth and Fourteenth Amendments to the 

United States Constitution; 

(d) the Equal Protection Clause under the laws afforded by the Fourteenth 

Amendment to the United States Constitution;

(e) the constitutional prohibition against vague and overbroad laws; 

12. With respect to Plaintiff’ demand for punitive damages, defendant specifically 

incorporates by reference any and all standards or limitations regarding the determination, 

review and/or enforceability of punitive damage awards which arose in BMW of No. America v. 

Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Cooper Industries, Inc., v. 

Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); and in 

State Farm Mut. Auto. Ins. Co., v. Campbell, 123 S.Ct. 1513 (2003). 

13. Plaintiff’s claims for the recovery of punitive damages are barred by Ala. Code § 

6-11-20 (1993) et seq. 

14. Plaintiff’s claims for the recovery of punitive damages are barred by Ala. Code § 

6-11-27 

(1993). 

15. An award of punitive damages in this case, if any, may not exceed the 

$250,000.00 cap set forth in Ala. Code § 6-11-21 (Supp. 1987); see Goodyear Tire & Rubber 

Co., v. Vinson, 749 So. 2d 393 (Ala. 1999) (“All parties litigating in the courts of this State 

should now be on notice that this Court is willing to reconsider the Henderson [,infra,] ruling that 

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the punitive damages cap of § 6-11-21 Ala. Code 1975 is unconstitutional; see Oliver v. Towns, 

770 So. 2d 1059 (Ala. 2000) ("[W]e question whether Henderson [v. Ala. Power Co.], 627 So. 

2d 878 (Ala. 1993), remains good law.") (citing BMW of No. America, Inc. v. Gore, 517 U.S. 559 

(1996); Henderson, 627 So. 2d at 894 (Maddox, J., concurring in part; dissenting in part); 

Henderson, 627 So. 2d at 903 (Houston, J., dissenting); and Pacific Mut. Life lns. Co. v. Haslip, 

499 U.S. 1, 20 n.9 (1991)). In declaring § 6-11-21 unconstitutional in Henderson, the Alabama 

Supreme Court acted beyond the scope of its powers and violated the separation of powers

clauses of the United States Constitution and the Alabama Constitution. Accordingly, the Court's 

action in Henderson was without effect, and Alabama Code § 6-11-21 applies in this case. 

16. While this defendant denies that it is liable for any conduct that would support an 

award of punitive damages in this case, this defendant pleads the applicable legislative cap and 

all pertinent provisions contained in Alabama Code § 6-11-21 (Supp. 1999). 

17. The imposition of punitive damages against any of the Defendant in this case 

would violate the Defendant’s due process rights as guaranteed by the United States

Constitution, because the award of punitive damages is excessive in light of the following 

criteria: (1) the degree of reprehensibility of the defendant’s alleged wrongful conduct; (2) the 

disparity between the harm or potential harm and the punitive damage award; and (3) the

difference between the punitive damage award and the civil penalties authorized or imposed in 

other cases. 

18. Imposition of punitive damages against this defendant would have a chilling

effect upon the defendant’s right to open access to the courts of this state, in violation of the 

United States Constitution and the Alabama Constitution, separately and severally. 

19. Plaintiff’s claims for punitive damages violate the rights of defendant to due 

process and equal protection of the laws as guaranteed by the Constitution of the United States

and the Alabama Constitution, in that the procedures for post-trial review of such damages set 

forth in Hammond v. City of Gadsden and Green Oil Company v. Hornsby are unconstitutionally 

vague and inadequate in their failure to provide a clearly defined standard for courts to apply in 

the review of such damages; fail to provide an adequate review as to the issue of the need to 

deter, whether deterrence has been accomplished and whether punishment is appropriate; such

procedures provide inadequate review and a vague standard regarding the relationship of such 

damages to the harm done; neither procedure addresses or cures the lack of guidelines provided 

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juries in the assessment of such damages; that under Hammond and Green Oil, courts may take 

certain factors into consideration which lack predictable and objective standards of review and 

result in an inconsistent application of the factors and unpredictable and inconsistent results; and 

Hammond and Green Oil fail to provide definite and meaningful constraints on jury discretion in 

awarding such damages. 

20. The procedures pursuant to which punitive damages are awarded subject civil 

defendant to punishment for the conduct of others through vicarious liability or through nonapportionment of damages among joint tortfeasors, in violation of the Fifth and Fourteenth 

Amendments to the United States Constitution and Article 1 §§ 1 and 6 of the Alabama 

Constitution.

21. Plaintiff is not entitled to recover punitive damages because Plaintiff cannot prove 

that defendant’s conduct involved such malice, wantonness, oppression, fraud, willfulness, 

recklessness, or wickedness as amounts to criminality, which for the good of society and warning 

to the individual ought to be punished. 

22. To permit the imposition of punitive damages against this defendant on a joint 

and several liability basis is unconstitutional in that the damages are punitive in nature, yet there

is no provision under the law of Alabama for the assessment of punitive damages separately and

severally against joint tortfeasors even though the damages are predicated upon the alleged 

enormity of the wrong committed by the tortfeasor, and would violate defendant’s rights to due 

process and equal protection of the laws under the Fifth and Fourteenth Amendments to the 

Constitution of the United States, and Article I, Sections 1, 6, 13 and 22 of the Constitution of

Alabama. 

23. To permit the imposition of punitive damages against this defendant on a joint 

and several liability basis would violate defendant’s rights under the Eighth Amendment to the

Constitution of the United States and Article I, Section 15 of the Constitution of Alabama in that 

the award imposes an excessive fine against joint tortfeasors without any consideration being 

allowed to be given by the jury to the degree of culpability each defendant had, if any. 

24. The imposition of punitive damages in this case violates the double jeopardy

clause of the Fifth Amendment of the Constitution of the United States as incorporated into the 

Fourteenth Amendment of the Constitution of the United States. 

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25. Plaintiff' claims for punitive damages should not be submitted to the jury because,

under the United States Supreme Court's holding in Cooper Industries, Inc. v. Leatherman Tool 

Group, Inc., 533 U.S. 424, 121 S. Ct. 1678, 149 L.Ed. 2d 674 (2001), and the Alabama Supreme 

Court's holding in Horton Homes, Inc. v. Brooks, 832 So. 2d 44 (Ala. 2001), the issue of punitive

damages is not a question of fact to be decided by a jury. See also, Gasperini v. Center for

Humanties, Inc., 518 U.S. 415, 459, 116 S.Ct. 2211, 135 L. Ed. 2d 659 (1996). 

26. An award of mental anguish damages in this case will violate this defendant’s due 

process and equal protection rights guaranteed by the Alabama Constitution and United States 

Constitution because juries are not given any rules, standards, or guidelines upon which to rely in

calculating mental anguish or emotional distress damage awards. 

27. To award plaintiff damages for alleged mental anguish or emotional distress in the 

absence of any standards for the determination of mental anguish and/or the absence of any 

requirements for corroborating or objective evidence of mental anguish or emotional distress 

makes such an award tantamount to punitive damages. As such, this defendant avers that such an 

award in this case would violate both the United States Constitution and the Alabama 

Constitution. 

28. At the time of the filing of this Answer, discovery is not yet complete. Defendant 

reserve the right to supplement its Answer with all such other and further defenses as may be 

warranted based on information learned in discovery. 

WHEREFORE, the Defendant denies that Plaintiff is entitled to any of the relief

requested in his Complaint or any relief whatsoever and Defendant respectfully requests that

Plaintiff takes nothing by his Complaint and that Defendant be awarded its reasonable attorneys

fees and costs and such other and further relief as the Court may deem just and proper. 

Dated: August 29, 2006 

Respectfully submitted, 

s/Bruce J. Downey, III 

BRUCE J. DOWNEY, III 

ASB-9205-W86B 

DOW006 

Attorney for Defendant 

Norment Security Group, Inc. 

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OF COUNSEL: 

CAPELL & HOWARD, P.C. 

150 South Perry Street (36104) 

Post Office Box 2069 

Montgomery, Alabama 36102-2069 

Telephone: (334) 241-8000 

Facsimile: (334) 323-8888 

CERTIFICATE OF SERVICE

I hereby certify that I have on this the 29th day of August, 2006, electronically filed the 

foregoing with the Clerk of Court using the CM/ECF system which will send notification of such 

filing to the following: 

Braxton Schell, Jr., Esq. 

BRAXTON SCHELL, JR., P.C. 

1330 21st Way South, Suite 210 

Birmingham, AL 35205 

s/Bruce J. Downey, III 

OF COUNSEL 

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