IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

RICARDO WRIGHT, BERYL ) 

JACKSON, TRACEY MARTIN, ) 

CALVIN FLUKER, LISA ) 

PITCHFORD, KIMBERLY LOVE, ) 

RESHANDA BROWN, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION NO.: 

 ) 2:06cv785-MHT 

U.S. FOODSERVICE, INC. and ) 

U.S. FOODSERVICE, INC. - ) 

MONTGOMERY DIVISION, ) 

 ) 

 Defendants. ) 

DEFENDANT’S ANSWER TO SECOND AMENDED COMPLAINT

Defendant U.S. Foodservice, Inc.1

 submits its Answer to Plaintiffs’ Second 

Amended Complaint2

 as follows: 

1. Paragraph 1 of the Complaint states legal conclusions rather than 

allegations of fact, which require no response. Defendant admits that Plaintiffs 

have brought this action under Title VII of the Civil Rights Act of 1964, as 

amended (“Title VII”), and 42 U.S.C. § 1981, and that jurisdiction in this Court is 

 

1

 Plaintiffs also named “U.S. Foodservice, Inc. – Montgomery Division” as a defendant. 

However, no such legal entity exists. 

2

 The parties have agreed that this Answer will also serve as the response to plaintiffs’ Amended 

Complaint. 

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proper pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). Defendant 

denies the remaining allegations of Paragraph 1. 

2. Defendant admits upon information and belief that Plaintiff Ricardo 

Wright is an African-American male, a citizen of the United States, and a resident 

of the State of Alabama. Defendant further admits that Plaintiff Wright has been 

employed by Defendant since September 1, 1997. Defendant denies the remaining 

allegations of Paragraph 2 of the Complaint. 

3. Defendant admits upon information and belief that Plaintiff Tracey 

Martin is an African-American female, a citizen of the United States, and a 

resident of the State of Alabama. Defendant further admits that Plaintiff Martin 

has been employed by Defendant since August 28, 1997. Defendant denies the 

remaining allegations of Paragraph 3 of the Complaint. 

4. Defendant admits upon information and belief that Plaintiff Kimberly 

Love is an African-American female, a citizen of the United States, and a resident 

of the State of Alabama. Defendant further admits that Plaintiff Love has been 

employed by Defendant since July of 2000. Defendant denies the remaining 

allegations of Paragraph 4 of the Complaint. 

5. Defendant admits upon information and belief that Plaintiff Calvin 

Fluker is an African-American male, a citizen of the United States, and a resident 

of the State of Alabama. Defendant further admits that Plaintiff Fluker was 

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employed by Defendant from June 20, 1996 to January 27, 1998, and since July 

13, 1998. Defendant denies the remaining allegations of Paragraph 5 of the 

Complaint. 

6. Defendant admits upon information and belief that Plaintiff Beryl 

Jackson is an African-American female, a citizen of the United States, and a 

resident of the State of Alabama. Defendant further admits that Plaintiff Jackson 

has been employed by Defendant since January 29, 1990. Defendant denies the 

remaining allegations of Paragraph 6 of the Complaint. 

7. Defendant admits upon information and belief that Plaintiff Lisa 

Pitchford is an African-American female, a citizen of the United States, and a 

resident of the State of Alabama. Defendant further admits that Plaintiff Pitchford 

has been employed by Defendant since July 28, 1998. Defendant denies the 

remaining allegations of Paragraph 7 of the Complaint. 

8. Defendant admits upon information and belief that Plaintiff Reshanda 

Brown is an African-American female, a citizen of the United States, and a 

resident of the State of Alabama. Defendant denies the remaining allegations of 

Paragraph 8 of the Complaint. 

9. Admitted. However, defendant denies that it has violated Title VII or 

42 U.S.C. Section 1981. 

10. Defendant denies the allegations of Paragraph 10. 

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11. Defendant admits that Plaintiff Wright filed Charge Number 130-

2004-03433 with the EEOC on July 1, 2004, and he filed a supplement to this 

Charge on September 27, 2004. Defendant further admits that the EEOC issued a 

Notice of Right to Sue, dated June 5, 2006. 

12. Defendant admits that Plaintiff Martin filed Charge Number 130-

2005-02792 with the EEOC on February 28, 2005, and she filed Charge Number 

420-2006-012273

 with the EEOC on March 8, 2006. Defendant further admits that 

the EEOC issued a Notice of Right to Sue for Charge Number 420-2006-01227, 

dated June 12, 2006. 

13. Defendant admits that Plaintiff Love filed Charge Number 130-2005-

03471 with the EEOC on March 28, 2005. Defendant further admits that the 

EEOC issued a Notice of Right to Sue, dated June 12, 2006. 

14. Defendant admits that Plaintiff Fluker filed Charge Number 130-

2004-02802 with the Equal Employment Opportunity Commission (“EEOC”) on 

May 10, 2004, and he filed a supplement to this Charge on October 8, 2004. 

Defendant further admits that the EEOC issued a Notice of Right to Sue, dated July 

18, 2006. 

 

3

 Although they have different numbers, Charge Number 420-2006-01227 notes that it is a 

supplement to Charge Number 130-2005-02792. 

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15. Defendant admits that Plaintiff Jackson filed Charge Number 130-

2005-02895 with the EEOC on March 2, 2005. Defendant further admits that the 

EEOC issued a Notice of Right to Sue, dated June 12, 2006. 

16. Defendant admits that Plaintiff Pitchford filed Charge Number 130-

2005-02476 with the EEOC on February 28, 2005, and she filed Charge Number 

130-2005-067814

 with the EEOC on September 15, 2005. Defendant further 

admits that the EEOC issued Notices of Right to Sue, dated June 12, 2006, for both 

Charges. 

17. Defendant admits that the EEOC issued a Determination on 

September 14, 2005, regarding employee Fluker’s charge, and further admits that 

the Determination contains the language quoted in Paragraph 17 of the Complaint. 

Defendant denies the remaining allegations of Paragraph 17 of the Complaint. 

18. Defendant denies the allegations of Paragraph 18. 

19. Defendant admits the allegations of Paragraph 19. 

20. Defendant admits that Plaintiff Wright was promoted to a salaried 

Territory Manager position, which is a sales position, on or about November 1, 

1998. Defendant denies the remaining allegations of Paragraph 20. 

 

4

 Although they have different numbers, Charge Number 130-2005-06781 notes that it is a 

supplement to Charge Number 130-2005-02476 

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21. Defendant admits that Plaintiff Wright’s resume indicates that he was 

a Customer Service Manager with Compass Bank from 1994-1996. Defendant 

denies the remaining allegations of Paragraph 21. 

22. Defendant admits that, on June 1, 2000, Plaintiff Wright transitioned 

to a combination of salary and commission. Defendant denies the remaining 

allegations of Paragraph 22. 

23. Defendant admits that the position of Territory Manager is a 

commissioned sales position. Defendant further admits that Plaintiff Wright was 

transitioned to a combination of salary and commission on June 1, 2000, and 

Plaintiff Wright was placed on Defendant’s standard commission plan, wherein 

compensation is based solely on commission, on January 1, 2001. Defendant 

denies the remaining allegations of Paragraph 23. 

24. Defendant denies the allegations of Paragraph 24. 

25. Defendant denies the allegations of Paragraph 25. 

26. Defendant denies the allegations of Paragraph 26. 

27. Defendant denies the allegations of Paragraph 27. 

28. Defendant denies the allegations of Paragraph 28. 

29. Defendant denies the allegations of Paragraph 29. 

30. Defendant denies the allegations of Paragraph 30. 

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31. Defendant admits that it has posted hourly positions for years and 

began posting exempt positions that were grade 9 or higher in or about 2004. 

Defendant further admits that Plaintiff Wright interviewed for a District Sales 

Manager position in November 2005. Defendant denies the remaining allegations 

of Paragraph 31. 

32. Defendant denies the allegations of Paragraph 32. 

33. Defendant admits that Plaintiff Wright filed Charge Number 130-

2004-03433 with the EEOC on July 1, 2004, and he filed a supplement to this 

Charge on September 27, 2004. 

34. Defendant denies the allegations of Paragraph 34. 

35. Defendant denies the allegations of Paragraph 35. 

36. Defendant admits that, on January 29, 1990, Plaintiff Jackson began 

working for defendant, and further admits that, in July of 1996, she was promoted 

to a salaried Territory Manager position. Defendant denies the remaining 

allegations of Paragraph 36. 

37. Defendant admits that the position of Territory Manager is a 

commissioned sales position. Defendant further admits that in July 1996, Plaintiff 

Jackson was promoted to a salaried Territory Manager, and effective February 1, 

1998, she was placed on defendant’s standard commission plan, wherein 

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compensation is based solely on commission. Defendant denies the remaining 

allegations of Paragraph 37. 

38. Defendant denies the allegations of Paragraph 38. 

39. Defendant admits that Todd Hanson and Angela Wood are white. 

Defendant denies the remaining allegations of Paragraph 39. 

40. Defendant denies the allegations of Paragraph 40. 

41. Defendant admits that Kathy Crittenden requested that the John Knox 

Manor account be serviced by Elizabeth Cronic. Defendant further admits that 

Cronic is a white female. Defendant further admits that it transferred the account 

to Cronic. Defendant further admits that it provided Plaintiff Jackson with 1 

percent of sales generated by the account for a period of one year. Defendant 

denies the remaining allegations of Paragraph 41. 

42. Defendant denies the allegations of Paragraph 42. 

43. Defendant denies the allegations of Paragraph 43. 

44. Defendant denies the allegations of Paragraph 44. 

45. Defendant denies the allegations of Paragraph 45. 

46. Defendant admits that Plaintiff Fluker began working for defendant 

on June 20, 1996, and further admits that he is presently employed as a Chain 

Account Executive with defendant. Defendant denies the remaining allegations of 

Paragraph 46 of the Complaint. 

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47. Defendant admits that, on or about April 30, 2004, Danny Mims left a 

derogatory comment not directed at Plaintiff Fluker, but that could be heard on 

Plaintiff Fluker’s voice mail. Defendant further admits that on or about February 

18, 2005, Mims was recognized as Montgomery’s top President’s Cup candidate, 

based on current year’s growth over the previous year in both sales and gross 

profit. Defendant denies the remaining allegations of Paragraph 47. 

48. Defendant denies the allegations of Paragraph 48. 

49. Defendant admits that Phyllis Jones referred to Brazil nuts as “nigger 

toes.” Defendant denies the remaining allegations of Paragraph 49. 

50. Defendant denies the allegations of Paragraph 50. 

51. Defendant admits that Delmus Ward, a white male, retired from U.S. 

Foodservice on or about January 2, 2001. Defendant denies the remaining 

allegations of Paragraph 51. 

52. Defendant admits that it has posted hourly positions for years and 

began posting exempt positions that were grade 9 or higher in or about 2004. 

Defendant denies the remaining allegations of Paragraph 52. 

53. Defendant admits that Plaintiff Fluker was placed on a Performance 

Improvement Plan on or about March 10, 2006. Defendant denies the remaining 

allegations of Paragraph 53.

54. Defendant denies the allegations of Paragraph 54. 

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55. Defendant denies the allegations of Paragraph 55. 

56. Defendant admits that Plaintiff Pitchford began working for defendant 

on July 28, 1998, as an Accounts Payable Clerk. 

57. Defendant admits that, on March 8, 2005, Plaintiff Pitchford 

submitted a bid for the position of Administrative Assistant, but later asked that her 

name be withdrawn from consideration. Defendant further admits that Plaintiff 

Pitchford was offered and accepted a Sales Trainee position on June 2, 2005. 

Defendant denies the remaining allegations of Paragraph 57. 

58. Defendant denies the allegations of Paragraph 58. 

59. Defendant denies the allegations of Paragraph 59. 

60. Defendant denies the allegations of Paragraph 60. 

61. Defendant admits the allegations of Paragraph 61. 

62. Defendant admits that it has posted hourly positions for years and 

began posting exempt positions that were grade 9 or higher in or about 2004. 

Defendant further admits that anyone with the requisite experience to be a 

Territory Manager can approach the sales team directly for consideration as well. 

Defendant further admits that, on July 9, 2004 and May 17, 2005, Sales Trainee 

positions5

 were posted, but Plaintiff Love did not submit bids either time and did 

 

5

 Sales Trainee positions must be successfully completed prior to becoming a Territory Manager 

for anyone who does not have substantial foodservice or sales experience. 

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not express an interest in the positions. Defendant denies the remaining allegations 

of Paragraph 62. 

63. Defendant denies the allegations of Paragraph 63. 

64. Defendant admits that Plaintiff Love’s request to attend a tax seminar 

was denied because the seminar requested was not relevant to her current position. 

Defendant denies the remaining allegations of Paragraph 64. 

65. Defendant admits that, although Mr. Watts and Ms. Thomas had a 

conversation about removing the degree requirement, the decision was made to 

maintain the degree requirement in the posting sent to the State of Alabama. 

Defendant further admits that both the internal and external posting required a 

college degree, and Mr. Sartain, who was selected for the position, has a college 

degree. Defendant further admits that Sartain is a white male. Defendant denies 

the remaining allegations of Paragraph 65. 

66. Defendant admits that Plaintiff Love is not charged with handling 

C.O.D. check approvals because she has a greater level of responsibility and 

already knows how to review files and to do check approvals. Defendant further 

admits that Ms. Clayton has been charged with handling C.O.D. check approvals 

so that she can receive training in this task, which Plaintiff Love does not need. 

Defendant denies the remaining allegations of Paragraph 66. 

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67. Defendant admits that Plaintiff Love applied for the position of credit 

manager in approximately October 2005. Defendant further admits that Charles 

Wallace, a white male, was selected to fill that position. Defendant further admits 

that Wallace moved back to Montgomery from Florida. Defendant denies the 

remaining allegations of Paragraph 67. 

68. Defendant denies the allegations of Paragraph 68. 

69. Defendant admits that Plaintiff Martin began working for defendant, 

as an employee, on August 28, 1997, as an Accounts Receivable Clerk in the 

Accounting Department. 

70. Defendant admits that, in October of 1997, Plaintiff Martin was 

offered a Finance Trainee position, but she declined the same. Defendant further 

admits that, on April 28, 2003, Plaintiff Martin bid on an SPL Coordinator position 

in the Finance Department, but later asked that her name be withdrawn from 

consideration. Defendant admits that Mr. Huebner was selected for an Assistant 

Controller position. Defendant denies the remaining allegations of Paragraph 70. 

71. Defendant admits that, on January 27, 2005, Plaintiff Martin 

completed a Job Posting Request for a Credit Manager position in the Finance 

Department. Defendant further admits that Al Sartain (white male) was selected 

for the position. Defendant denies the remaining allegations of Paragraph 71. 

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72. Defendant admits that it has posted hourly positions for years and 

began posting exempt positions that were grade 9 or higher in or about 2004. 

Defendant denies the remaining allegations of Paragraph 72. 

73. Defendant admits that, although Plaintiff Martin submitted a Job 

Posting Request for an Accounts Receivable Supervisor position, she was given a 

choice between that position and an Accountant position. Defendant further 

admits that Plaintiff chose the Accountant position and accepted the same. 

Defendant admits that Diane Boggard is a white female, and she was selected for 

the Accounts Receivable Supervisor position. Defendant denies the remaining 

allegations of Paragraph 73. 

74. Defendant admits that, during the beginning of her tenure as 

Accountant, Plaintiff Martin had to train someone for her former position, and, 

therefore, she continued to perform some of the duties of her former position. 

Defendant denies the remaining allegations of Paragraph 74. 

75. Defendant denies the allegations of Paragraph 75. 

76. Defendant admits that Plaintiff Brown was working for defendant 

through a temporary agency. Defendant denies the remaining allegations of 

Paragraph 76. 

77. Defendant denies the allegations of Paragraph 77. 

78. Defendant denies the allegations of Paragraph 78. 

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79. Defendant denies the allegations of Paragraph 79. 

80. Defendant denies the allegations of Paragraph 80. 

81. Defendant denies the allegations of Paragraph 81. 

82. Defendant denies the allegations of Paragraph 82. 

83. Defendant denies the allegations of Paragraph 83. 

84. Defendant denies the allegations of Paragraph 84. 

85. Defendant denies the allegations of Paragraph 85. 

86. Defendant denies the allegations of Paragraph 86. 

COUNT I

RACE AND/OR GENDER DISCRIMINATION

87. As to paragraph 87 of the Complaint, defendant adopts and re-alleges 

Paragraphs 1-86 of its Answer. 

88. Defendant denies the allegations of Paragraph 88. 

89. Defendant denies the allegations of Paragraph 89. 

90. Defendant denies the allegations of Paragraph 90. 

91. Defendant denies the allegations of Paragraph 91. Plaintiffs’ prayer 

for relief requires neither admission nor denial. However, to the extent the prayer 

for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that plaintiffs are entitled 

to any damages or relief herein. 

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92. Defendant denies the allegations of Paragraph 92. Plaintiffs’ prayer 

for relief requires neither admission nor denial. However, to the extent the prayer 

for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that plaintiffs are entitled 

to any damages or relief herein. 

COUNT II

RACE DISCRIMINATION – HOSTILE WORK ENVIRONMENT

93. As to paragraph 93 of the Complaint, defendant adopts and re-alleges 

paragraphs 1-92 of its Answer. 

94. Defendant denies the allegations of Paragraph 94. 

95. Defendant denies the allegations of Paragraph 95. 

96. Defendant denies the allegations of Paragraph 96. 

97. Defendant denies the allegations of Paragraph 97. 

98. Defendant denies the allegations of Paragraph 98. 

99. Defendant denies the allegations of Paragraph 99. Plaintiff Fluker’s 

prayer for relief requires neither admission nor denial. However, to the extent the 

prayer for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that Plaintiff Fluker is 

entitled to any damages or relief herein. 

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100. Defendant denies the allegations of Paragraph 100. Plaintiff Fluker’s 

prayer for relief requires neither admission nor denial. However, to the extent the 

prayer for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that Plaintiff Fluker is 

entitled to any damages or relief herein. 

COUNT III

RETALIATION

101. As to paragraph 101 of the Complaint, defendant adopts and realleges Paragraphs 1-100 of its Answer. 

102. Defendant admits that some plaintiffs filed Charges of Discrimination 

with the Equal Employment Opportunity Commission. Defendant denies the 

remaining allegations of Paragraph 102. 

103. Defendant denies the allegations of Paragraph 103. 

104. Defendant denies the allegations of Paragraph 104. 

105. Defendant denies the allegations of Paragraph 105. 

106. Defendant denies the allegations of Paragraph 106. Plaintiffs’ prayer 

for relief requires neither admission nor denial. However, to the extent the prayer 

for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that plaintiffs are entitled 

to any damages or relief herein. 

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107. Defendant denies the allegations of Paragraph 107. Plaintiffs’ prayer 

for relief requires neither admission nor denial. However, to the extent the prayer 

for relief is construed to allege some wrongful or discriminatory act, such 

construction is hereby denied. Defendant further denies that plaintiffs are entitled 

to any damages or relief herein. 

PRAYER FOR RELIEF 

 The remainder of the Complaint contains a prayer for relief, which requires 

neither admission nor denial. To the extent the prayer for relief is construed to 

allege some wrongful or discriminatory action, said construction is denied. 

Defendant further denies that plaintiffs are entitled to any relief herein. Any 

allegation of the Complaint not heretofore admitted or denied is expressly denied. 

FIRST DEFENSE

 Plaintiffs’ Complaint fails to state a claim upon which relief may be granted 

and should be dismissed in its entirety. 

SECOND DEFENSE

 Some or all of Plaintiffs’ claims may be barred by applicable statutes of 

limitation. 

THIRD DEFENSE

Some or all of Plaintiffs’ claims may be barred by their failure to satisfy the 

administrative prerequisites of Title VII with respect to those claims. 

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FOURTH DEFENSE

All claims based on alleged violations of Title VII as to which Plaintiffs 

failed to file a charge or complaint of employment discrimination with the EEOC 

within 180 days of their occurrence are barred by Title VII and fail to state a claim 

upon which relief may be granted. 

FIFTH DEFENSE

Plaintiffs’ claims under Title VII are barred to the extent they exceed the 

scope of Plaintiffs’ charges of discrimination. 

SIXTH DEFENSE

 Defendant exercised reasonable care to prevent and correct promptly any 

allegedly harassing behavior and Plaintiffs unreasonably failed to take advantage 

of any preventive or corrective opportunities provided by Defendant or to avoid 

harm otherwise. 

SEVENTH DEFENSE

All employment actions taken with respect to Plaintiffs were done for 

legitimate, nondiscriminatory, nonretaliatory reasons, which were not pretextual. 

EIGHTH DEFENSE

To the extent that Plaintiffs’ races, genders, or complaints played any role in 

the action about which they complain, which they did not and which Defendant 

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expressly denies, the action(s) about which Plaintiffs complain would have 

occurred nonetheless. 

NINTH DEFENSE

To the extent that Plaintiffs have failed to mitigate their alleged damages, 

such failure bars and/or limits recovery of damages. 

TENTH DEFENSE

To the extent Plaintiffs seek recovery of punitive damages, Defendant has 

made good faith efforts to comply with the law thereby precluding recovery of 

such damages. 

RESERVATION OF RIGHTS

Defendant hereby reserves the right to file such additional defenses as may 

become apparent during the course of discovery. 

Wherefore, having fully answered the Complaint, Defendant requests that 

the Complaint be dismissed; and that Defendant be awarded attorneys’ fees herein, 

plus other such general and equitable relief as this Court deems just and 

appropriate. 

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Respectfully submitted, 

 /s/ Tammy L. Baker 

 Tammy L. Baker, ASB-9522-B62T 

 E-Mail: tbaker@constangy.com

 Direct Dial: 205-226-5466 

 Tamula R. Yelling, ASB-9447-E61T 

 E-Mail: tyelling@constangy.com 

 Direct Dial: 205-226-5471 

 CONSTANGY, BROOKS & SMITH, LLC 

 One Federal Place, Suite 900 

 1819 Fifth Avenue North 

 Birmingham, Alabama 35203 

 Facsimile (205) 323-7674 

ATTORNEYS FOR DEFENDANT 

U.S. FOODSERVICE, INC. 

CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2007, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system that will send notification of 

such filing to the following: 

Jon C. Goldfarb, Esq. 

Maury S. Weiner, Esq. 

Ethan R. Dettling, Esq. 

Wiggins, Childs, Quinn & Pantazis, LLC 

301 19th Street North 

Birmingham, AL 35203 

 /s/ Tammy L. Baker 

Counsel of Record 

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