IN THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF PENNSYLVANIA 

DONNA HEATER, : NO. 2:05-CV-04545 

 : 

 Plaintiff :

: 

 v. :

: 

KIDSPEACE, :

 : HON. BERLE M. SCHILLER

Defendant : 

DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT

WITH AFFIRMATIVE DEFENSES

AND NOW, comes Defendant, KidsPeace, by and through its attorneys, 

Heimbach, Spitko & Heckman, and hereby files the within Answer to Plaintiff’s 

Complaint with Affirmative Defenses and states as follows: 

1. Admitted. Upon information and belief. 

 2. Admitted. 

3. Admitted. 

4. Denied as stated. 

5. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. For further answer, Plaintiff’s Complaint fails to specify what 

“position” to which she is referring in this paragraph and it is therefore denied. 

6. Denied as stated. 

7. Denied as stated. 

8. Denied. It is specifically denied that Ms. Ambrogi harassed Plaintiff in 

any manner whatsoever.

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9. Denied. It is specifically denied that Ms. Ambrogi had an age-based 

vendetta towards Plaintiff. 

10. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Ms. Ambrogi retaliated against Plaintiff in any manner whatsoever. 

11. Denied. It is specifically denied that Ms. Ambrogi retaliated against 

Plaintiff in any manner whatsoever. 

12. Denied as stated. 

13. Denied as stated. 

14. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

15. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

16. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

17. Denied as stated. 

18. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

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19. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of Plaintiff’s beliefs 

averred in this paragraph and strict proof is demanded at time of trial. 

20. Denied. 

21. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of Plaintiff’s beliefs 

averred in this paragraph and strict proof is demanded at time of trial. 

22. Denied as stated. 

23. Denied as stated. 

24. Admitted in part/denied in part. It is admitted only that in July, 2002, 

Plaintiff was given a final written warning. The remaining averments of this paragraph 

are specifically denied. 

25. Denied. It is specifically denied that Plaintiff was given very restrictive 

procedures to perform her job. 

26. Admitted in part/denied in part. It is admitted only that Plaintiff did not 

perform to expectations. It is specifically denied that procedures were made more 

difficult to attain or that they were changed daily. 

27. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of Plaintiff’s beliefs 

averred in this paragraph and strict proof is demanded at time of trial. 

28. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

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29. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. To the extent an answer is 

required, it is specifically denied that Plaintiff was set up for termination in any manner 

whatsoever and it is specifically denied that she was not provided with necessary and 

complete work tools required for her job. 

30. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of Plaintiff’s beliefs 

averred in this paragraph and strict proof is demanded at time of trial. 

31. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial.

32. Denied. 

33. Denied. 

34. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

35. Denied. It is specifically denied that Plaintiff’s performance was always 

good and it is also denied that her discharge was not based upon legitimate performance 

reasons. 

36. Denied. It is specifically denied that Kemmerer replaced Plaintiff. 

 37. Admitted.

38. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

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39. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph as they pertain to Plaintiff’s beliefs and strict proof is demanded at time of 

trial. 

40. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Plaintiff was harassed and terminated because of her purported disability. It is also 

denied that she was retaliated against in any way for having sought an accommodation 

for her purported disability. 

41. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph that are based upon Plaintiff’s beliefs and strict proof is demanded at time 

of trial. To the extent a response is required, it is specifically denied that Plaintiff’s age 

was a factor in her termination. 

42. Admitted. 

43. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

44. It is admitted only that Plaintiff has attached Exhibit “A” to her 

Complaint. 

45. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

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46. Admitted. 

COUNT I 

VIOLATION OF AGE DISCRIMINATION IN EMPLOYMENT 

ACT OF 197, 29 U.S.C. SECTION 621, et seq 

PLAINTIFF v. KIDSPEACE

47. Answering Defendant incorporates by reference paragraphs 1 through 46, 

above, as if the same were set forth fully at length herein. 

48. Admitted, upon information and belief. 

49. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant violated the ADEA in any manner whatsoever. 

50. Denied. It is specifically denied that Plaintiff’s job performance equaled 

or exceeded the standards established for her position. 

51. Denied. It is specifically denied that Defendant had an illegal 

discriminatory motive for terminating Plaintiff. It is also denied that her work 

performance was satisfactory. 

52. Denied. It is specifically denied that Kemmerer replaced Plaintiff. 

53. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

54. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at trial. 

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WHEREFORE, Answering Defendant respectfully requests that this Honorable 

Court enter judgment in its favor and against Plaintiff, together with all reasonable 

interest, attorneys’ fees and costs. 

COUNT II

VIOLATION OF AMERICANS WITH DISABILITITES ACT, 

42 U.S.C. SECTION 12101, et seq

PLAINTIFF v. KIDSPEACE

55. Answering Defendant incorporates by reference paragraphs 1 through 54, 

above, as if the same were set forth fully at length herein. 

56. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Plaintiff had a serious health condition and/or that Defendant was aware of Plaintiff’s 

purported serious health condition. 

57. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

58. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

59. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

60. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

61. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

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62. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

63. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant discriminated against Plaintiff in any manner because of her purported 

disability. 

64. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant regarded Plaintiff as being disabled. 

65. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. For further answer, it is 

specifically denied that Defendant engaged in any illegal conduct with respect to the 

Plaintiff. 

66. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant acted maliciously, wantonly and/or willfully with respect to the Plaintiff in 

any manner whatsoever.

WHEREFORE, Answering Defendant respectfully requests that this Honorable 

Court enter judgment in its favor and against Plaintiff, together with all reasonable 

interest, attorneys’ fees and costs. 

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COUNT III

UNLAWFUL RETALIATION

67. Answering Defendant incorporates by reference paragraphs 1 through 66, 

above, as if the same were set forth fully at length herein. 

68. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Plaintiff engaged in any protected activity. 

69. Admitted in part/denied in part. It is admitted only that Plaintiff filed a 

charge of discrimination with the EEOC. The remaining averments of this paragraph are 

denied. 

70. Denied. It is specifically denied that Plaintiff was terminated after she 

filed a charge of discrimination with the EEOC. 

71. Denied. After reasonable investigation, Answering Defendant is without 

knowledge or information sufficient to form a belief as to the truth of the averments of 

this paragraph and strict proof is demanded at time of trial. 

72. Denied. The averments of this paragraph constitute conclusion of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant acted maliciously, wantonly and/or willfully, in any respect toward Plaintiff.

WHEREFORE, Answering Defendant respectfully requests that this Honorable 

Court enter judgment in its favor and against Plaintiff, together with all reasonable 

interest, attorneys’ fees and costs. 

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COUNT IV 

VIOLATION OF THE PENNSYLVANIA HUMAN RELATIONS ACT, 

43 P.S. SECTION 951, et seq.

73. Answering Defendant incorporates by reference paragraphs 1 through 72, 

above, as if the same were set forth fully at length herein. 

74. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. To the extent a response is required, it is specifically denied that 

Defendant violated the Pennsylvania Human Relations Act in any manner whatsoever.

75. Denied. The averments of this paragraph constitute conclusions of law 

requiring no response. 

WHEREFORE, Answering Defendant respectfully requests that this Honorable 

Court enter judgment in its favor and against Plaintiff, together with all reasonable 

interest, attorneys’ fees and costs. 

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

Plaintiff’s Complaint and each count thereof fails to state a claim upon which 

relief may be granted. 

SECOND AFFIRMATIVE DEFENSE

Plaintiff’s causes of action may be barred by the doctrines of waiver, estoppel 

and/or laches. 

THIRD AFFIRMATIVE DEFENSE

Plaintiff is barred from pursuing the allegations in this Complaint because she 

failed in whole or in part to satisfy the conditions precedent to jurisdiction. 

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FOURTH AFFIRMATIVE DEFENSE

Plaintiff is barred from pursuing the allegations in this Complaint because she 

failed in whole or in part to satisfy the conditions subsequent to jurisdiction. 

FIFTH AFFIRMATIVE DEFENSE

Plaintiff has failed to allege a prima facie case of violation of age discrimination. 

SIXTH AFFIRMATIVE DEFENSE

Plaintiff has failed to allege a prima facie case of disability discrimination. 

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff has failed to allege a prima facie of retaliation. 

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff may have failed to exhaust her administrative remedies with respect to 

any claim that she was discriminated against. 

NINTH AFFIRMATIVE DEFENSE

This Court is without jurisdiction as to those matters occurring outside the 

applicable statute of limitations. 

TENTH AFFIRMATIVE DEFENSE

Defendant acted at all times for lawful, legitimate non-discriminatory reasons. 

ELEVENTH AFFIRMATIVE DEFENSE

Plaintiff has failed to sufficiently allege that Defendant’s legitimate reasons for its 

actions were pretextual. 

TWELFTH AFFIRMATIVE DEFENSE

Plaintiff’s claims may be barred by the doctrine of unclean hands because of her 

own misconduct. 

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THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff may have failed to mitigate her purported damages. 

FOURTEENTH AFFIRMATIVE DEFENSE

The ADEA does not provide Plaintiff with the right to compensatory and/or 

punitive damages. 

FIFTEENTH AFFIRMATIVE DEFENSE

The ADA does not provide for compensatory and/or punitive damages for claims

of retaliation. 

 WHEREFORE, Answering Defendant respectfully requests that this Honorable 

Court enter judgment in its favor and against Plaintiff together with all reasonable costs, 

attorneys’ fees and costs.

 Respectfully submitted, 

 HEIMBACH, SPITKO & HECKMAN 

 By /s/ SMH4099 

 Sean M. Hart, Esquire 

 I.D. No. 82084 

 535 Hamilton St., Suite 200 

 Allentown, PA 18101 

 (610) 821-7000 

 Attorneys for Defendant,

 KidsPeace 

Date: October 19, 2005 

N:\Documents\KidsPeace\000010 Heater Litigation\Answer to Plainiff's Complaint w-affirmative defenses.doc

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CERTIFICATE OF SERVICE

I, Sean M. hart, Esquire, attorney for Defendant, KidsPeace, certify that on this 

19th day of October, 2005, service of a true and complete copy of the above and 

foregoing Defendant’s Answer to Plaintiff’s Complaint with Affirmative Defenses was 

made upon each party or attorney of record herein via first class mail properly addressed 

as follows: 

 Donald P. Russo, Esquire 

 117 East Broad Street 

 P.O. Box 1890 

 Bethlehem, PA 18016-1890 

 Counsel for Plaintiff 

 HEIMBACH, SPITKO & HECKMAN 

 By /s/ 4099 

 Sean M. Hart 

 

 

 

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