EXHIBIT A 

Civil Action No. 5:20-cv-00102

Case 5:20-cv-00102-FB-HJB Document 1-1 Filed 01/28/20 Page 1 of 24


Defendant’s Original Answer to Plaintiff’s Original Petition 1

CAUSE NO. 2019CI26068

AURELIANO PALOMO, § IN THE DISTRICT COURT

§

Plaintiff, §

§

v. § 150TH JUDICIAL DISTRICT

§

FLOWERS BAKING COMPANY §

OF SAN ANTONIO, §

§

Defendant. § BEXAR COUNTY, TEXAS

DEFENDANT’S ORIGINAL ANSWER

TO PLAINTIFF’S ORIGINAL PETITION

Defendant Flowers Baking Company of San Antonio, LLC, (“Defendant”), misidentified

as Flowers Baking Company of San Antonio, files this Original Answer to Plaintiff Aureliano 

Palomo’s Original Petition, respectfully showing to the Court as follows:

I.

GENERAL DENIAL

Pursuant Texas Rule of Civil Procedure 92, Defendant generally and specifically denies 

each and every allegation contained in Plaintiff’s Original Petition and any amendment or 

supplement thereto, and demands strict proof thereof. With respect to any claim by Plaintiff for 

punitive damages, Defendant demands strict proof thereof by clear and convincing evidence.

II.

VERIFIED DENIAL

Subject to and without waiving the foregoing General Denial, or in the alternative, but only 

to the extent necessary to protect its rights, Defendant files this verified denial pursuant to Rule 

93(4) on the basis that there is a defect in parties. Plaintiff incorrectly named Defendant as 

“Flowers Baking Company of San Antonio” instead of the property entity, Flowers Baking 

FILED

1/24/2020 9:44 AM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Luis Herrera

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Defendant’s Original Answer to Plaintiff’s Original Petition 2

Company of San Antonio, LLC. Defendant, through its counsel, has attached a verified denial 

pursuant to Rules 14 and 93 of the Texas Rules of Civil Procedure.

III.

DEFENSES

Defendant asserts the following affirmative and other defenses without assuming any 

burdens of production, persuasion, or proof that are not legally assigned to Defendant and are 

Plaintiff’s burden to prove. 

1. Plaintiff’s claims are barred, in whole or in part, to the extent that such claims 

exceed the scope of, or are inconsistent with, Plaintiff’s charge of discrimination filed with the 

Equal Employment Opportunity Commission (“EEOC”) and the Texas Workforce Commission –

Civil Rights Division (“TWC-CRD”).

2. Plaintiff’s claims are barred to the extent that he has failed to exhaust his 

administrative remedies. 

3. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of 

limitations to the extent that they were not presented to the EEOC and/or TWC-CRD in a timely 

fashion and to the extent that they did not occur within the time frames prescribed by law.

4. Plaintiff’s claims are not actionable because the challenged employment practices 

were justified by legitimate, non-discriminatory, non-retaliatory, and non-pretextual business 

reasons unrelated to Plaintiff’s sex/gender (male), age, and/or any protected activity allegedly 

engaged by Plaintiff.

5. Defendant would have taken the same employment actions with respect to Plaintiff, 

even in the absence of the discriminatory and/or retaliatory motives alleged by Plaintiff.

6. Defendant has in place a clear and well disseminated policy against discrimination

and harassment, and a reasonable and available procedure for handling complaints of violations 

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Defendant’s Original Answer to Plaintiff’s Original Petition 3

thereof, which provides for prompt and effective responsive action. To the extent Plaintiff failed 

to take advantage of the preventive or corrective opportunities provided by Defendant, or to 

otherwise avoid harm, Plaintiff’s claims of alleged discrimination are barred.

7. If any improper, illegal, or discriminatory act was taken by any Defendant 

employee against Plaintiff, it was outside the course and scope of that employee’s employment, 

contrary to Defendant’s policies, and was not ratified, confirmed, or approved by Defendant. Thus, 

any such actions cannot be attributed or imputed to Defendant.

8. Defendant did not commit any act with malice or reckless indifference to Plaintiff’s 

legally protected rights, nor did Defendant approve, authorize, ratify, or have actual knowledge of 

any such acts.

9. To the extent applicable, and pending discovery, Plaintiff’s alleged damages are 

limited or barred by the after-acquired evidence doctrine.

10. Plaintiff’s damage claims are barred, in whole or in part, to the extent Plaintiff seeks

to recover damages in excess of the type and amounts allowed or provided by law.

11. Plaintiff’s damages are capped pursuant to Texas Labor Code § 21.2585 and Texas 

Civil Practice & Remedies Code § 41.008.

12. Without conceding that Plaintiff has suffered any damages because of any alleged 

wrongdoing by Defendant, Defendant pleads the due process limitations on punitive/exemplary 

damages outlined by the Supreme Court in its opinion in State Farm Mut. Auto. Ins. Co. v. 

Campbell, 538 U.S. 408 (2003).

13. Plaintiff is barred from recovering damages to the extent he has failed to mitigate 

his damages, including the failure of Plaintiff to accept work or to exercise diligence in seeking 

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Defendant’s Original Answer to Plaintiff’s Original Petition 4

employment. To the extent Plaintiff has mitigated his damages, Defendant is entitled to offset those 

amounts she has earned.

14. To the extent applicable, and pending discovery, Plaintiff’s pre-existing emotional, 

psychological, and physical condition prior to the alleged act(s) of misconduct was such that 

Defendant did not proximately cause or contribute in any manner to Plaintiff’s alleged injuries or 

damages, and Defendant may not be held liable for any such alleged injuries or damages.

15. Defendant cannot be vicariously liable for punitive damages in light of its good 

faith efforts to comply with the anti-discrimination statutes at issue in this case. See Kolstad v. 

American Dental Ass’n, 527 U.S. 526 (1999).

Defendant specifically reserves the right to assert additional defenses, claims, 

counterclaims, cross-claims, and/or causes that may become appropriate based upon investigation 

or other discovery that may occur during the course of litigation.

IV.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that 

Plaintiff takes nothing, that this Court dismiss Plaintiff’s Original Petition with prejudice, and that 

Defendant be awarded its costs, attorneys’ fees, and any other relief to which Defendant may be 

entitled.

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Defendant’s Original Answer to Plaintiff’s Original Petition 5

Respectfully submitted,

/s/ Tiffany Cox Stacy

Tiffany Cox Stacy

State Bar No. 24050734

tiffany.cox@ogletree.com

José E. Galvan

State Bar No. 24083039

jose.galvan@ogletree.com

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

112 East Pecan Street, Suite 2700

San Antonio, Texas 78205

210.354.1300 (Tel.)

210.277.2702 (Fax)

ATTORNEYS FOR DEFENDANT

FLOWERS BAKING COMPANY

OF SAN ANTONIO, LLC

CERTIFICATE OF SERVICE

I hereby certify that on this 24

th day of January, 2020 I electronically filed the foregoing 

with the Clerk of the Court, which will send notification of such filing to the following: 

Alfonso Kennard, Jr.

Daniel J. Salas

Kennard Law P.C.

2603 Augusta Drive, 14th Floor

Houston, Texas 77057

/s/ Tiffany Cox Stacy

Tiffany Cox Stacy / José E. Galvan

701226.000050

41549870.1

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