IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDE DISTRICT OF ALABAMA 

EASTERN DIVISION (OPELIKA) 

ELIZABETH LYNNE HUTCHINSON ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CIVIL ACTION NO. 

3:06-cv-00700-WHA 

THE PHENIX CITY BOARD OF ) 

EDUCATION AND LARRY E. DICHIARA ) 

 ) 

 Defendants ) 

ANSWER AND DEFENSES OF DEFENDANTS 

PHENIX CITY BOARD OF EDUCATION AND LARRY E. DICHIARA TO 

PLAINTIFF’S AMENDED COMPLAINT

 COME NOW the above-named Defendants, Phenix City Board of Education 

(hereinafter referred to as PCBOE and/or Defendant) and Larry E. DiChiara (hereinafter 

referred to as DiChiara and/or Defendant) to answer the Amended Complaint; to deny the 

allegations of discrimination and retaliation and to set forth their defenses: 

 FIRST DEFENSE

Responding to the numbered paragraphs of the complaint in order, these 

Defendants state: 

 I. INTRODUCTION

1. Defendants deny Plaintiff’s allegations as to alleged unlawful discrimination on 

the basis of race; subjecting Plaintiff to a racially hostile environment and retaliation. 

2. Admitted. 

II. JURISDICTION

 3. Defendants admit that Plaintiff seeks to invoke the jurisdiction of this Court 

pursuant to cited authority. 

 4. Denied. 

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III. PARTIES

 5. Defendants admit that the Plaintiff is a white, female, but is without 

knowledge or information to form a belief as to her current residency and status as a 

citizen of the United States of America. Defendants admit that Plaintiff had been 

employed by Defendant PCBOE prior to her non-renewal. 

6. Admitted as to sentences 1, 2 and 3. Defendants admit that DiChiara is an 

employee of PCBOE, but denies that he is its agent. 

7. DiChiara admits that he is an employee of PCBOE and the Superintendent of 

the Phenix City Public Schools. Defendants deny that DiChiara is the employer of 

Plaintiff, and deny that he is the agent of PCBOE. 

IV. STATEMENT OF FACTS

8. Defendants have otherwise responded to these allegations. 

9. Denied. 

10. Admitted. 

11. Admitted. 

 12. Defendants admit that Plaintiff was assigned to South Girard Junior High 

School, but deny that she had “tenure” if that is Plaintiff’s intention by the use of the 

word. 

 13. Admitted. 

 14. Denied. 

15. Denied. 

16. Denied. 

17. Denied. 

18. Denied. 

19. Denied. 

20. Denied. 

21. Denied. 

22. Denied. 

23. Denied. 

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V. CAUSES OF ACTION

24. Defendants have otherwise responded to these allegations. 

 A. CLAIM ONE – RACE DISCRIMINTAION IN VIOLATION OF 

TITLE VII

25. Defendants have otherwise responded to these allegations. 

26. Denied. 

27. Denied. 

28. Denied. 

29. Denied. 

30. Denied. 

31. Denied. 

32. Denied. 

33. Denied. 

34. Denied. 

B. CLAIM TWO – RACE DISCRIMINATION IN VIOLATION OF 42 U.S.C. 

§1981, BY AND THROUGH 42 U.S.C. §1983

35. Defendants have otherwise responded to these allegations. 

36. Denied. 

37. Denied. 

38. Denied. 

39. Denied. 

40. Denied. 

41. Denied. 

42. Denied. 

43. Denied. 

44. Denied. 

C. CLAIM THREE – RACE DISCRIMINATION IN VIOLATION OF THE 

EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF 

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THE UNITED STATES CONSTITUTION, BY AND THROUGH 42 U.S.C. 

§1983

45. Defendants have otherwise responded to these allegations. 

46. Denied. 

47. Denied. 

48. Denied. 

49. Denied. 

50. Denied. 

51. Denied. 

52. Denied. 

53. Denied. 

54. Denied. 

D. CLAIM FOUR – RETALIATION IN VIOLATION OF TITLE VII

55. Defendants have otherwise responded to these allegations. 

56. Denied. 

57. Denied. 

58. Denied. 

59. Denied. 

60. Denied. 

61. Denied. 

62. Denied. 

63. Denied. 

E. CLAIM FIVE – RETALIATION IN VIOLATION OF RACE 

DISCRIMINATION IN VIOLATION OF 42 U.S.C.§1981, BY AND 

THROUGH 42 U.S.C. §1983

64. Defendants have otherwise responded to these allegations. 

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65. Denied. 

66. Denied. 

67. Denied. 

68. Denied. 

69. Denied. 

70. Denied. 

71. Denied. 

72. Denied. 

F. CLAIM SIX – RETALIATION IN VIOLATION OF THE EQUAL 

PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE 

UNITED STATES CONSTITUTION, BY AND THROUGH 42 U.S.C. §1983

73. Defendants have otherwise responded to these allegations. 

74. Denied. 

75. Denied. 

76. Denied. 

77. Denied. 

78. Denied. 

79. Denied. 

80. Denied. 

81. Denied. 

VI. PRAYER FOR RELIEF

82. Defendants deny the Prayer for Relief set forth in paragraphs 1, 2, 3 and 4. 

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SECOND DEFENSE

 Defendants deny the material allegations of the complaint; and in particular, 

Defendants deny that they discriminated against Plaintiff because of her race or retaliated 

against her or that Defendants violated Plaintiff’s constitutional or other legal rights in 

any form or fashion. 

 Defendants deny that Plaintiff through her complaint alleges facts which would 

entitle her to relief. 

 THIRD DEFENSE

The Complaint fails to state a cause of action against these Defendants upon 

which relief can be granted. 

 

FOURTH DEFENSE

Plaintiff is not entitled to relief pursuant to Title VII of the Civil Rights Act of 

1964, or for any other federal, statutory or constitutional basis because the Plaintiff was 

non-renewed for legitimate, nondiscriminatory reasons. 

FIFTH DEFENSE

Title VII Exclusive Relief

Plaintiff’s 42 U.S.C. § 1981 claim is barred because Title VII provides the 

Plaintiff’s exclusive potential remedy. 

SIXTH DEFENSE

Failure to Present Allegation to EEOC

Plaintiff failed to present all of the allegations set forth in the complaint to the 

Equal Employment Opportunity Commission, and therefore, has failed to exhaust her 

administrative remedies as required by law and is precluded from raising such new and 

unrelated issues for the first time in this action. 

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SEVENTH DEFENSE

Failure to Mitigate Damages

Plaintiff has and continues to have the ability and opportunity to mitigate the 

damages alleged, and she has failed to mitigate her damages. Plaintiff is not entitled to 

damages as claimed. 

 EIGHTH DEFENSE

 Defendants plead the defenses of absolute, sovereign immunity, qualified 

immunity, discretionary function immunity, master-servant immunity and state agent 

immunity. 

 NINETH DEFENSE

 Defendants deny any and all averments set forth in the complaint that are not 

specifically admitted and demand strict proof thereof. 

 TENTH DEFENSE

 

Plaintiff's request for punitive damages is barred by the due process clauses of the 

 United States Constitution and amendments thereto. 

 ELEVENTH DEFENSE

 The alleged unlawful conduct occurred over 180 days before the filing of the 

 charge of discrimination and retaliation by the Plaintiff with the EEOC. 

TWELFTH DEFENSE

 Plaintiff’s claims are barred by the applicable statutes of limitation. 

THIRTEENTH DEFENSE

 Defendants took immediate and effective remedial action upon being notified by 

 Plaintiff of the alleged discrimination. 

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 FOURTEENTH DEFENSE

 Defendants did not intentionally discriminate or retaliate against Plaintiff. 

 

 WHEREFORE, having answered each allegation of the Amended Complaint 

denying all averments of discrimination or retaliation or violation of constitutional or 

other legal rights of the Plaintiff, and having responded to each allegation of the 

Amended Complaint, and having asserted affirmation defenses thereto, the Defendants 

respectfully request that judgment be entered in their favor and that Plaintiff take nothing 

by this Amended Complaint, and that Defendants have judgment for their cost of suit and 

reasonable attorney fees and any other further relief as this Court may deem proper. 

 This the 15th day of November, 2006. 

 SMITH & SMITH, P.C. 

 /s/ Sydney S. Smith 

 Attorney for Phenix City Board of Education and 

 Larry E. DiChiara 

 1503 Broad Street 

 Phenix City, Alabama 36867 

 (334) 298-2679 

 SMI 078 

 ASB-4248-t82s 

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CERTIFICATE OF SERVICE

 

 This is to certify that I have served a copy of the foregoing pleading upon counsel 

for Plaintiff by electronic filing. 

 Rocco Calamusa, Jr., Esq. 

 Benjamin J. De Gweek, Esq. 

 WIGGINS, CHILDS, QUINN & PANTAZIS, LLC 

 The Kress Building 

 301 19th Street North 

 Birmingham, AL 35203 

 

 This the 15th day of November, 2006. 

 

 /s/Sydney S. Smith 

C-06-042AnswerAmend111406 

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