IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

ELISHA JAMES ) 

 )

 Plaintiff, ) 

 )

vs. ) Civil Action No.: 2:06cv-768-ID 

 )

THERMASYS CORPORATION ) 

 )

 Defendant. ) 

ANSWER TO AMENDED COMPLAINT

 COMES NOW, ThermaSys, Corporation (hereinafter “ThermaSys”) and answers 

Plaintiff’s Amended Complaint as follows: 

I. NATURE OF THE ACTION 

1 (a) (b). ThermaSys admits only that Plaintiff seeks to evoke the various statutes 

enumerated in paragraph 1 of the Complaint, but denies all remaining allegations in that

paragraph. In further answer to paragraph 1, ThermaSys states that Plaintiff has never been 

moved from his position as a welder, although he was temporarily reassigned to work as a tube

mill operator on nightshift for legitimate, nondiscriminatory, non-pretextual reasons related to

seasonal demand for ThermaSys’ products. Plaintiff’s temporary assignment on second shift 

lasted less than one (1) week. Plaintiff worked a total of 7.5 hours on 2nd shift and was absent for 

the remaining 2 days of his assignment. ThermaSys states further that (Cell Leaders) are hourly 

paid production workers, not supervisors and receive no extra pay or benefits. Plaintiff was 

replaced as Cell Leader because of chronic absenteeism. ThermaSys needed a Cell Leader who

could be relied on to attend work and participate in production planning meetings. Plaintiff has

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not been paid less than similarly situated Caucasian welders and has not been subjected to the 

slurs he alleges. All remaining allegations of paragraph 1 are denied. 

II. JURISDICTION AND VENUE 

2. Defendant admits only that this Court has federal question subject matter 

jurisdiction. The remaining allegations of paragraph 2 of the Complaint are denied. 

3. ThermaSys admits that venue is proper. 

III. THE PARTIES 

4. The allegations contained in paragraph 4 are admitted. 

5. ThermaSys admits the allegations of paragraph 5 with the exception of Plaintiff’s

reference to the actions he complains of. ThermaSys denies that the alleged actions Plaintiff 

complains of occurred. 

6. ThermaSys admits only that Plaintiff filed a Charge of Discrimination with the 

EEOC, that the EEOC found no cause to support Plaintiff’s allegations and that the EEOC 

issued a statutory notice of Plaintiff’s right to sue. The remaining allegations of paragraph 6 of 

the Complaint are denied and ThermaSys specifically denies that Plaintiff has properly exhausted 

his administrative remedies by filing a timely charge or by the timely filing of this lawsuit. 

V. ALLEGATIONS OF FACT 

7. ThermaSys admits only that Elisha James is an African American and a member

of a protected class. The remaining allegations contained in paragraph 7 are denied. 

8. ThermaSys admits that it hired Plaintiff on or about June 24, 2002 and that he was 

initially hired as a welder. The remaining allegations contained in paragraph 8 are denied. 

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9. ThermaSys is without sufficient information to determine the truthfulness of the 

allegations contained in paragraph 9 of the Complaint; therefore, they are denied pending

verification in discovery. 

10. The allegations in paragraph 10 are denied. In further answer to paragraph 10, 

ThermaSys acknowledges that Plaintiff did complain about wage discrimination, but not on the

basis of race. One of the comparators identified by Plaintiff as being paid more than he, is 

African American. All remaining allegations contained in paragraph 10 of the Complaint are 

denied. 

11. The allegations contained in paragraph 11 are denied. 

All allegations in paragraphs 1-11 of the Complaint are denied except as specifically 

admitted above. 

VI. FIRST FEDERAL CAUSE OF ACTION 

Employment Discrimination: Title VII, Civil Rights Act of 1964 

as Amended, 42 U.S.C. §2000, et seq. 

12. The allegations contained in paragraph 12 are denied. 

13. The allegations contained in paragraph 13 are denied. 

14. The allegations contained in paragraph 14 are denied. 

All allegations contained in paragraphs 1-14 of the Complaint including the ad damnum

clause in Plaintiff’s First Federal Cause of Action are denied except as specifically admitted 

above. 

VII. SECOND FEDERAL CAUSE OF ACTION 

Violation of 42 U.S.C. §1981 and §1981(a)

15. The allegations contained in paragraph 15 are denied. 

16. The allegations contained in paragraph 16 are denied. 

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All allegations contained in paragraphs 1-16 of the Complaint, including the ad damnum

in Plaintiff’s Second Federal Cause of Action are denied, except as specifically admitted

hereinabove. 

VIII. THIRD FEDERAL CAUSE OF ACTION 

Retaliation 

17. ThermaSys admits only that Plaintiff filed a Charge of Discrimination with the 

EEOC. The remaining allegations of paragraph 17 of the Complaint are denied. In further 

answer to paragraph 17, ThermaSys states that Plaintiff had to be replaced as Cell Leader for

legitimate business reasons relating to his chronic absenteeism. 

18. The allegations contained in paragraph 18 of the Complaint are denied. 

19. The allegations contained in paragraph 19 of the Complaint are denied. 

20. The allegations contained in paragraph 20 of the Complaint are denied. 

21. The allegations contained in paragraph 21 of the Complaint are denied. 

All allegations contained in paragraphs 1-21 of the Complaint are denied with the 

exception of those specifically admitted above. 

ThermaSys denies that it has wronged Plaintiff in any way and denies that he is entitled 

to any of the relief he requests in his Prayer for Relief. 

AFFIRMATIVE DEFENSES

FIRST DEFENSE 

The statute of limitations bars some or all of Plaintiff’s claims against ThermaSys. 

SECOND DEFENSE

The claims in this complaint may not be brought pursuant to 42 U.S.C. § 2000e unless 

and until Plaintiff establishes timely and proper satisfaction of the administrative prerequisites to 

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the institution and maintenance of an action under such statutes as to Defendant. To the extent

that Plaintiff raises claims not made the subject of the EEOC charge he relies upon in the

Complaint, or alternatively, not made the subject of a timely signed, verified EEOC charge naming

Defendant as a respondent, or raises claims that arose more than 180 days before the filing of a 

EEOC charge, those claims are barred by the failure to satisfy the statutory prerequisites to suit.

Any and all claims not raised in a lawsuit timely-filed within ninety days of Plaintiff’s receipt of

a Notice of Rights letter from the EEOC may not be litigated in this action. 

THIRD DEFENSE 

Some or all of Plaintiff’s claims fail to state claims for which relief can be granted. 

FOURTH DEFENSE

There are no similarly situated employees of a different race who have been 

treated differently than has Plaintiff with respect to pay or otherwise. 

FIFTH DEFENSE 

Plaintiff has failed to mitigate his damages, if any. 

SIXTH DEFENSE 

All employment decisions made by ThermaSys respecting Plaintiff were made for 

legitimate, non-discriminatory, non-pretextual business reasons. ThermaSys denies that 

Plaintiff’s race was a substantial contributing factor in any material decision regarding his

employment. 

SEVENTH DEFENSE

 Assuming arguendo that Plaintiff provides some evidence that he contends establishes

that an adverse or retaliatory employment action taken against him was motivated in part by race

ThermaSys claims the Price Waterhouse/Mt. Healthy defense because it would have treated 

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Plaintiff the same in all respects for other legitimate non-discriminatory, non-retaliatory, nonpretextual reasons. Some or all of the decisions and/or employment actions challenged as 

discriminatory in the Complaint would have been taken even if the Plaintiff had not been in a 

protected class of individuals. Where an employer in a “mixed motive” case proves that it would

have made the same decision absent the alleged bias it has a complete defense from liability

under Title VII. See, e.g., Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir.

2001). 

EIGHTH DEFENSE 

Plaintiff is estopped and lacks clean hands to seek the equitable relief he requests due to 

violation of ThermaSys’ employee conduct and work rules including, but not limited to, poor 

performance and excessive absenteeism. 

NINTH DEFENSE 

ThermaSys states that it did not intentionally, willfully or maliciously violate any statute 

or law relied upon in the Complaint. To the extent that Plaintiff’s claims against ThermaSys rest

on conduct that was innocent or without malice or without reckless indifference to Plaintiff’s rights,

punitive damages are not recoverable. 

TENTH DEFENSE

The amount of damages that Plaintiff might recover from ThermaSys under Title VII is 

subject to the damage limitations in 42 U.S.C. § 1981(a)(B)(3). 

ELEVENTH DEFENSE 

 An award of punitive damages in this case is not appropriate.

TWELFTH DEFENSE 

To the extent that Plaintiff’s claims are fraudulently brought, they are barred.

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THIRTEENTH DEFENSE 

To the extent that Plaintiff’s claims have been waived, they are barred. 

FOURTEENTH DEFENSE 

To the extent that Plaintiff might have been guilty of conduct, as yet unknown to

ThermaSys which conduct would have prevented Plaintiff’s employment or caused discharge, he is

barred from seeking some or all damages.

FIFTEENTH DEFENSE 

Plaintiff complains about decisions made by different decision-makers. 

SIXTEENTH DEFENSE 

The doctrine of laches bars some or all of Plaintiff’s claims. 

SEVENTEENTH DEFENSE 

Defendant pleads judicial estoppel and lack of standing as to Plaintiff’s claims. 

EIGHTEENTH DEFENSE 

ThermaSys pleads the “same actor” defense. 

NINETEENTH DEFENSE 

ThermaSys maintained an effective policy against race discrimination and Plaintiff 

unreasonably failed to avail himself of the protections afforded by such policy.

TWENTIETH DEFENSE 

Plaintiff is not entitled to recover any compensatory damages or punitive damages herein, 

and any allegations with respect thereto should be stricken, because Plaintiff has failed to plead 

facts sufficient to support such damages. 

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TWENTY-FIRST DEFENSE 

 With respect to all of Plaintiff’s claims, Defendant pleads, in the alternative and without 

waiving any other defense, that the acts of ThermaSys were privileged under the law including, 

but not limited to, under the employment-at-will doctrine. 

TWENTY-SECOND DEFENSE 

ThermaSys reserves the right to assert other defenses as discovery proceeds. 

s/Henry C. Barnett, Jr. 

HENRY C. BARNETT, JR. (BAR037) 

ATTORNEY FOR DEFENDANT 

OF COUNSEL: 

CAPELL & HOWARD, P. C. 

150 South Perry Street (36104) 

Post Office Box 2069 

Montgomery, AL 36102-3069 

(334) 241-8000 

(334) 323-8888

CERTIFICATE OF SERVICE

 I hereby certify that I have served the foregoing document on the following parties or 

attorney via CM/ECF, on this the 27th day of September, 2006: 

Amardo Wesley Pitters 

A. WESLEY PITTERS, P.C. 

1145 South Perry Street 

P.O. Box 1973 

Montgomery, Alabama 36102-1973 

awpitters@pitterslawfirm.com

Henry C. Barnett, Jr. 

OF COUNSEL 

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