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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KENNY WORTHEN,

Plaintiff, ELECTRONICALLY FILED

-against- Civil Case No.: 7:07 Civ. 3381

 CLB/GAY

CARPENTER & SMITH, INC.,

Defendant.

ANSWER

As and for its Answer to Plaintiff’s April 26, 2007 Complaint in the above-captioned action,

Defendant, Carpenter & Smith, Inc. (hereinafter “CSI”), by and through its counsel, Girvin &

Ferlazzo, P.C., responds as follows:

1. Denies all allegations, statements, and inferences contained in paragraph “1” of the

Complaint herein.

2. As to the allegations contained in paragraph “2” of the Complaint herein: admits that

Plaintiff Kenny Worthen is a black male and represented himself as such when he was hired by CSI;

and denies all remaining allegations, statements, and inferences contained therein.

3. As to the allegations contained in paragraph “3” of the Complaint herein: admits that

CSI is a duly formed corporation which maintains an office and operations center based in Monroe,

New York; refers all questions of law raised therein to the Court; and denies all remaining

allegations, statements, and inferences contained therein.

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4. As to the allegations contained in paragraph “4” of the Complaint herein: admits

Plaintiff purports to invoke this Court’s jurisdiction; refers all questions of law raised therein to the

Court; and denies all remaining factual allegations, statements and inferences contained therein.

5. As to the allegations contained in paragraph “5” of the Complaint herein: admits that

the EEOC has not issued a “Right to Sue” Notice; and denies knowledge or information sufficient

to form a belief as to the remaining allegations, statements, and inferences contained therein.

6. As to the allegations contained in paragraph “6” of the Complaint herein: admits

Plaintiff purports to invoke this Court’s jurisdiction; refers all questions of law raised therein to the

Court; and denies all factual allegations, statements and inferences contained therein.

7. As to the allegations contained in paragraph “7” of the Complaint herein: admits that

Plaintiff began his employment with CSI in August 2006; admits that Plaintiff’s job duties included

the delivery of oil to CSI’s customers; admits that another African-American individual was

employed by CSI during the time Plaintiff was employed by CSI; and denies all remaining factual

allegations, statements, and inferences contained therein.

8. Denies all allegations, statements, and inferences contained in paragraph “8” of the

Complaint herein.

9. Denies all allegations, statements, and inferences contained in paragraph “9” of the

Complaint herein.

10. Denies all allegations, statements, and inferences contained in paragraph “10” of the

Complaint herein.

11. Denies all allegations, statements, and inferences contained in paragraph “11” of the

Complaint herein.

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12. Denies all allegations, statements, and inferences contained in paragraph “12” of the

Complaint herein.

13. Denies all allegations, statements, and inferences contained in paragraph “13” of the

Complaint herein.

14. Denies all allegations, statements, and inferences contained in paragraph “14” of the

Complaint herein.

15. Denies all allegations, statements, and inferences contained in paragraph “15” of the

Complaint herein.

16. Denies all allegations, statements, and inferences contained in paragraph “16” of the

Complaint herein.

17. Denies all allegations, statements, and inferences contained in paragraph “17” of the

Complaint herein.

18. Denies all allegations, statements, and inferences contained in paragraph “18” of the

Complaint herein.

19. Denies all allegations, statements, and inferences contained in paragraph “19” of the

Complaint herein.

20. Denies all allegations, statements, and inferences contained in paragraph “20” of the

Complaint herein.

21. Denies all allegations, statements, and inferences contained in paragraph “21” of the

Complaint herein.

22. Denies all allegations, statements, and inferences contained in paragraph “22” of the

Complaint herein.

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23. As to the allegations contained in or incorporated into paragraph “23” of the

Complaint herein, Defendant incorporates by reference their responses to paragraph “1” through

“22” of the Complaint.

24. Denies all allegations, statements, and inferences contained in paragraph “24”

of the Complaint herein.

25. Denies all allegations, statements, and inferences contained in paragraph “25”

of the Complaint herein.

26. Denies all allegations, claims, statements, prayers for relief, and inferences

contained in the “WHEREFORE paragraph” of the Complaint herein, including subparagraphs “a”

through “f” thereunder.

27. Denies any and all other allegations, statements, and inferences contained in the

Complaint herein, which are not specifically addressed by the foregoing paragraphs.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

28. Some or all of the allegations contained in the Complaint herein fail to state a

claim upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

29. Plaintiff’s claims are barred in whole or in part by his failure to satisfy conditions

precedent to commencing the instant action and/or his failure to exhaust administrative remedies.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

30. Defendant has not deprived Plaintiff of any rights, privileges, or immunities secured

under the Constitution or the Laws of the United States.

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

31. Defendant did not possess actual or constructive knowledge of the alleged racially

hostile environment Plaintiff alleges he was subjected to.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

32. Defendant did not possess actual or constructive knowledge of any unlawful

harassment or discrimination directed toward Plaintiff.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

33. Plaintiff was not subjected to any adverse employment action by Defendant.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

34. This Court lacks subject matter jurisdiction over Plaintiff’s purported claims and/or

Plaintiff is precluded from commencing this action based upon his forum selection, including but

not limited to the Equal Employment Opportunity Commission and New York State Division of

Human Rights.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

35. Some or all of the claims asserted by Plaintiff are barred by virtue of his failure to

mitigate his damages, if any.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

36. To the extent that Plaintiff is entitled to any relief, which Defendant denies, such

relief must be reduced and/or limited by the After-Acquired Evidence Doctrine.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

37. Plaintiff’s claims of harassment are barred by his unreasonable failure to utilize

internal complaint procedures available to him.

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WHEREFORE, Defendant requests that the Complaint be dismissed and for such other and

further relief in Defendant’s favor as the Court deems appropriate.

DATED: June 25, 2007

GIRVIN & FERLAZZO, P.C.

By: /S/ Gregg T. Johnson 

Gregg T. Johnson

Bar Roll No.: (GJ3348)

Attorneys for Defendant

Office and P.O. Address

20 Corporate Woods Blvd.

Albany, New York 12211

Tel: 518-462-0300

Fax: 518-462-5037

Email: gtj@girvinlaw.com

jhc@girvinlaw.com

TO: Stephen Bergstein

Bar Roll No.: SB6810

BERGSTEIN & ULLRICH, LLP

Attorneys for Plaintiff

15 Railroad Avenue

Chester, New York 10918

Tel: 845-469-1277

Fax: 845-469-5904

Email: steve@tbulaw.com

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