Case 3:16-cv-00657-DPJ-FKB Document 11 Filed 11/07/16 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KIMBERLY V. BRACEY
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:16-cv-00657-DPJ-FKB

CITY OF JACKSON, MISSISSIPPI, ET AL.

DEFENDANTS

MUNICIPAL DEFENDANTS ANSWER AND AFFIRMATIVE DEFENSES TO

PLAINTIFFS FIRST AMENDED COMPLAINT
COMES NOW, Defendant, City of Jackson, Mississippi (referred to herein as
Municipal Defendant), by and through counsel, and respectfully submits this Answer and
Affirmative Defenses to Plaintiffs First Amended Complaint (the Complaint) and, in support
hereof, would show unto the Court the following:
FIRST AFFIRMATIVE DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
Municipal Defendant pleads all applicable statutes of limitations.
THIRD AFFIRMATIVE DEFENSE
Punitive damages cannot be assessed against Municipal Defendant.
FOURTH AFFIRMATIVE DEFENSE
While denying that Plaintiff is entitled to punitive damages, Municipal Defendant
affirmatively pleads that an award of punitive damages in an amount in excess of that proportion
permitted by the laws of the United States would violate the Due Process protections of the U.S.
Constitution. Further, Mississippi laws and procedures governing punitive damages are violative
of the Sixth Amendment, Eighth Amendment, the Due Process Clause and Equal Protection

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Clause of the Fourteenth Amendment, and other provisions of the United States Constitution and
Article III, Section 14 and other provisions of the Constitution of the State of Mississippi.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs alleged injuries were not caused by a policy or custom of the City of Jackson,
Mississippi. Thus, there can be no municipal liability with respect to Plaintiffs constitutional
claims brought through 42 U.S.C. 1983.
SIXTH AFFIRMATIVE DEFENSE
Municipal Defendant asserts the right to rely upon any after-acquired evidence.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff lacks standing under Title VII to pursue claims which are beyond the scope of
her EEOC charge.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs Title VII claims should be dismissed to the extent she has failed to exhaust her
administrative remedies.
NINTH AFFIRMATIVE DEFENSE
Municipal Defendant exercised reasonable care to prevent and promptly correct harassing
behavior in the workplace and Plaintiff unreasonably failed to take advantage of any preventative
or corrective opportunities provided by Municipal Defendant or to otherwise avoid harm.
Municipal Defendant relies on Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and related case law in support of this affirmative
defense.
TENTH AFFIRMATIVE DEFENSE
Municipal Defendant affirmatively avers that Plaintiff cannot establish a prima facie case
of discrimination, harassment, hostile work environment and/or retaliation under federal law.

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ELEVENTH AFFIRMATIVE DEFENSE

Municipal Defendant affirmatively avers that all actions taken by it in connection with
Plaintiff and/or her employment were taken for legitimate, non-discriminatory and nonretaliatory reasons.
TWELFTH AFFIRMATIVE DEFENSE
Municipal Defendant affirmatively denies Plaintiff sustained any damages as alleged in
her Complaint.
THIRTEENTH AFFIRMATIVE DEFENSE
Even if Plaintiff sustained damages, which is specifically denied, Municipal Defendant
avers that Plaintiff failed to make reasonable efforts to mitigate her damages.
FOURTEENTH AFFIRMATIVE DEFENSE
Municipal Defendant affirmatively avers that Plaintiff is not entitled to any compensatory
damages, punitive damages or costs related to this lawsuit.
FIFTEENTH AFFIRMATIVE DEFENSE
Municipal Defendant affirmatively avers that Plaintiffs alleged damages under Title VII
and 42 U.S.C. 2000e are limited by 42 U.S.C. 1981a.
SIXTEENTH AFFIRMATIVE DEFENSE
Municipal Defendant affirmatively asserts all other available defenses, limitations, and
conditions afforded under Title VII.
SEVENTEENTH AFFIRMATIVE DEFENSE
It does not appear Plaintiff has brought a claim under state law. However, out of an
abundance of caution, Municipal Defendant pleads all applicable provisions of the Mississippi
Tort Claims Act, Miss. Code Ann. 11-46-1, et seq., including, but not limited to, all applicable

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statutes of limitations, all exemptions from liability, all jurisdictional prerequisites to suit and no
right to a jury trial.
EIGHTEENTH AFFIRMATIVE DEFENSE
Any alleged wrongdoing committed against Plaintiff by any City employee was
committed outside the course of scope of the employees employment.
NINETEENTH AFFIRMATIVE DEFENSE
Plaintiff gave Municipal Defendant consent to conduct the alleged interceptions of her
email communications within the meaning of the Electronic Communications Privacy Act and
authorized Municipal Defendant to access her email communications within the meaning of the
Stored Communications Act.
TWENTIETH AFFIRMATIVE DEFENSE
Municipal Defendant is a provider of a wire or electronic communication service, whose
facilities are used in conjunction with such a service, within the meaning of the Electronic
Communications Privacy Act. The alleged interceptions of Plaintiffs email communications
occurred in the normal course of the Municipal Defendants employees employment while they
were engaged in an activity necessary to the rendition of the service and the protection of the
rights and property of the Municipal Defendant in the facilities and the provision of the service.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Municipal Defendant is a provider of a wire or electronic communication service, whose
facilities are used in conjunction with such a service, within the meaning of the Electronic
Communications Privacy Act and the Stored Communications Act, and therefore the Municipal
Defendant is authorized to access electronic communications stored on its facilities.

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TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiffs desktop computer and Municipal Defendants computer network are not
included in the definition of a device or apparatus which can be used to intercept
communications because they are equipment and facilities Plaintiff used in the ordinary course
of Municipal Defendants business. Consequently, they do not fall within the scope of the
Electronic Communications Privacy Act.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs desktop computer is not a facility within the meaning of the Stored
Communications Act.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Municipal Defendant reserves the right to amend this Answer to assert additional
affirmative defenses that become applicable to Plaintiffs claims through further investigation
and discovery.
ANSWER
Municipal Defendant denies the allegations contained in the first unnumbered paragraph
of Plaintiffs Complaint beginning COMES NOW the Plaintiff, except to admit that
Plaintiffs Complaint has been brought against Municipal Defendant. All remaining allegations
contained in this unnumbered paragraph are denied.
1.

Municipal Defendant is without sufficient information to admit or deny the

allegations contained in Paragraph 1 of Plaintiffs Complaint and, therefore, denies the same.
2.

Municipal Defendant admits the allegations contained in Paragraph 2 of

Plaintiffs Complaint.
3.

Municipal Defendant denies the allegations contained in Paragraph 3 of Plaintiffs

Complaint.

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4.

The allegations contained in Paragraph 4 of Plaintiffs Complaint are not directed

at Municipal Defendant and, therefore, require no response from this Defendant. However, to
the extent these allegations are construed as requiring a response from Municipal Defendant, the
same are denied.
JURISDICTION AND VENUE
5.

Municipal Defendant admits the allegations contained in Paragraph 5 of

Plaintiffs Complaint.
6.

Municipal Defendant admits this Court has jurisdiction over Municipal Defendant

and this action. Municipal Defendant further admits venue is proper in this Court. All remaining
allegations contained in Paragraph 6 of Plaintiffs Complaint are denied, except to admit Plaintiff
has attached her purported EEOC Charge as Exhibit A to the Complaint and the EEOCs
purported Dismissal and Notice of Rights as Exhibit B to the Complaint.
STATEMENT OF THE FACTS
7.

Municipal Defendant denies the allegations contained in Paragraph 7 of Plaintiffs

Complaint.
8.

Municipal Defendant denies the allegations contained in Paragraph 8 of Plaintiffs

Complaint.
9.

Municipal Defendant denies the allegations contained in Paragraph 9 of Plaintiffs

Complaint.
10.

Municipal Defendant is without sufficient information to admit or deny the

allegations contained in Paragraph 10 of Plaintiffs Complaint and, therefore, denies the same.
11.

Municipal Defendant denies the allegations contained in Paragraph 11 of

Plaintiffs Complaint.
12.

Municipal Defendant denies the allegations contained in Paragraph 12 of

Plaintiffs Complaint.
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13.

Municipal Defendant denies the allegations contained in Paragraph 13 of

Plaintiffs Complaint.
14.

Municipal Defendant denies the allegations contained in Paragraph 14 of

Plaintiffs Complaint.
15.

Municipal Defendant denies the allegations contained in Paragraph 15 of

Plaintiffs Complaint.
16.

Municipal Defendant denies the allegations contained in Paragraph 16 of

Plaintiffs Complaint.
17.

Municipal Defendant denies the allegations contained in Paragraph 17 of

Plaintiffs Complaint.
18.

Municipal Defendant denies the allegations contained in Paragraph 18 of

Plaintiffs Complaint.
19.

Municipal Defendant denies the allegations contained in Paragraph 19 of

Plaintiffs Complaint.
20.

Municipal Defendant denies the allegations contained in Paragraph 20 of

Plaintiffs Complaint.
21.

Municipal Defendant denies the allegations contained in Paragraph 21 of

Plaintiffs Complaint.
22.

Municipal Defendant denies the allegations contained in Paragraph 22 of

Plaintiffs Complaint.
23.

Municipal Defendant denies the allegations contained in Paragraph 23 of

Plaintiffs Complaint.
24.

Municipal Defendant denies the allegations contained in Paragraph 24 of

Plaintiffs Complaint.
25.

Municipal Defendant denies the allegations contained in Paragraph 25 of

Plaintiffs Complaint.
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26.

Municipal Defendant denies the allegations contained in Paragraph 26 of

Plaintiffs Complaint.
CAUSES OF ACTION
COUNT I VIOLATION OF TITLE VII SEXUAL HARASSMENT AND THE 14TH
AMENDMENT THROUGH 1983 EQUAL PROTECTION
27.

Municipal Defendant re-alleges and incorporates by reference its responses to

Paragraphs 1 through 26 of the Complaint in response to Paragraph 27 of the Complaint.

28.

Municipal Defendant denies the allegations contained in Paragraph 28 of

Plaintiffs Complaint.
29.

Municipal Defendant denies the allegations contained in Paragraph 29 of

Plaintiffs Complaint.
COUNT II VIOLATIONS OF TITLE VII AND THE 14TH AMENDMENT
THROUGH 1983 RETALIATION
30.

Municipal Defendant re-alleges and incorporates by reference its responses to

Paragraphs 1 through 29 of the Complaint in response to Paragraph 30 of the Complaint.

31.

Municipal Defendant denies the allegations contained in Paragraph 31 of

Plaintiffs Complaint.
32.

Municipal Defendant denies the allegations contained in Paragraph 32 of

Plaintiffs Complaint.
COUNT III VIOLATION OF THE ELECTRONIC COMMUNICATIONS PRIVACY
ACT AND THE STORAGE COMMUNICATIONS ACT
33.

Municipal Defendant re-alleges and incorporates by reference its responses to

Paragraphs 1 through 32 of the Complaint in response to Paragraph 33 of the Complaint.

34.

Municipal Defendant denies the allegations contained in Paragraph 34 of

Plaintiffs Complaint.
35.

Municipal Defendant denies the allegations contained in Paragraph 35 of

Plaintiffs Complaint.

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36.

Municipal Defendant denies the allegations contained in Paragraph 36 of

Plaintiffs Complaint.
PRAYER FOR RELIEF
37.

Municipal Defendant denies the allegations contained in the last unnumbered

paragraph of Plaintiffs Complaint beginning WHEREFORE, PREMISES CONSIDERED,

inclusive of the allegations contained in sub-paragraphs (1) through (7).
WHEREFORE, PREMISES CONSIDERED, Municipal Defendant, City of Jackson,
Mississippi, respectfully requests this Court dismiss Plaintiffs Complaint and award Municipal
Defendant costs and any other relief that is warranted or that the Court deems proper.
THIS, the 7th day of November, 2016.
Respectfully submitted,
PHELPS DUNBAR, LLP
BY: /s/ LaToya C. Merritt
LaToya C. Merritt, MB # 100054
W. Thomas Siler, Jr., MB #6791
Jason T. Marsh, MB #102986
4270 I-55 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: merrittl@phelps.com
silert@phelps.com
marshj@phelps.com
ATTORNEYS FOR MUNICIPAL
DEFENDANT

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CERTIFICATE OF SERVICE
I, JASON T. MARSH, do hereby certify that on November 7, 2016 I electronically filed
the above and foregoing MUNICIPAL DEFENDANTS ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFFS FIRST AMENDED COMPLAINT with the Clerk of the Court
using the CM/ECF system which sent notification of such filing to the following counsel of
record:

Nick Norris, Esq.

Louis H. Watson, Jr., Esq.
WATSON & NORRIS, PLLC
1880 Lakeland Drive, Suite G
Jackson MS 39216
(601) 968-0000
nick@watsonnorris.com
louis@watsonnorris.com
ATTORNEYS FOR PLAINTIFF
Mary Judith Barnett, Esq.
M. JUDITH BARNETT, P.A.
1911 Dunbarton Drive
Jackson MS 39216
(601) 981-4450
mjbarnettpa@yahoo.com
ATTORNEY FOR DEFENDANT, MAYOR
TONY YARBER

/s/ LaToya C. Merritt

LATOYA C. MERRITT

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