Case5:11-cv-03691-EJD Document7

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MIGUEL MRQUEZ, County Counsel (S.B. #184621) ROBERT M. COELHO, Lead Deputy County Counsel (S.B. #160583) OFFICE OF THE COUNTY COUNSEL 70 West Hedding, East Wing, 9th Floor San Jose, California 95110-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240 Attorneys for Defendants COUNTY OF SANTA CLARA, JAMES GLEASON, SANDRA EOVINO, AND KIMBERLY MARUFFI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

HOSETTA ZERTUCHE Plaintiff, v.

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COUNTY OF SANTA CLARA, JAMES GLEASON, SANDRA EOVINO, and KIMBERLY MARUFFI

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No. CV11-03691 ANSWER TO PLAINTIFFS COMPLAINT FOR FEDERAL CIVIL RIGHTS VIOLATION, BY DEFENDANT JAMES GLEASON [DEMAND FOR JURY TRIAL]

Defendant James Gleason (Defendant), for himself alone and separate from all other defendants, for an answer to Plaintiffs Complaint on file herein, admits, denies, and alleges as follows: JURISDICTION AND VENUE Answering the allegations of the first unnumbered paragraph of the Complaint at page 1, lines 22-27, Defendant admits that one or more of the defendants reside or are located in the Northern District of California. Defendant has no personal information or belief sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. // //
Answer to Plaintiffs Complaint by Defendant James Gleason

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FACT ALLEGATIONS 1. Answering the allegations of Paragraph 1, Defendant admits that Plaintiff is an adult

female. Defendant has no personal information sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. 2. 3. 4. Answering the allegations of Paragraph 2, Defendant admits all the allegations. Answering the allegations of Paragraph 3, Defendant admits all the allegations. Answering the allegations of Paragraph 4, Defendant admits that Defendant Sandra

Eovino was and is employed as the Administrative Services Manager within the Office of the County Counsel. Defendant denies each and all remaining allegations. 5. 6. Answering the allegations of Paragraph 5, Defendant admits all the allegations. Answering the allegations of Paragraph 6, Defendant admits that each

individual-defendant is and was an employee of the County of Santa Clara, and was acting in the course and scope of his agency and employment. Based on the way the Complaint is pled, Defendant has no personal information sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. 7. Answering the allegations of Paragraph 7, Defendant denies each and all the

allegations. 8. Answering the allegations of Paragraph 8, Defendant admits that the IDO identifies

and nominates attorneys for court-appointment to defend indigent defendants in the County in circumstances where the Public Defender determines that conflicts of interest exist in representing those indigent defendants and other indigent defendants who the Public Defenders Office represents. Defendant also admits that the IDO pays the court-appointed attorneys for representing the conflicts-defendants, and that the IDO provides referral sources to those courtappointed attorneys for investigation or other support services. Except as otherwise admitted, Defendant denies each and every remaining allegation. 9. Answering the allegations of Paragraph 9, Defendant denies the allegation that the

Ethical Wall policy prohibits non-IDO employees from receiving any information concerning IDO activity. Defendant admits the remaining allegations, except to the extent they conflict
Answer to Plaintiffs Complaint by Defendant James Gleason

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with the written policy. 10. Answering the allegations of Paragraph 10, Defendant admits all the allegations,

except to the extent the allegations can be read to indicate that Plaintiffs duties were limited to providing legal and administrative support. Among other things, Plaintiffs duties also required her to comply with County, Office and IDO policies and to report policy violations or concerns if she believed any existed. 11. Answering the allegations of Paragraph 11, Defendant admits that Lam worked as a

paralegal in IDO during the approximate time period mentioned, and that Lam was reassigned to work as a paralegal in another unit of the Office. Defendant denies each and all the remaining allegations as phrased. 12. Answering the allegations of Paragraph 12, Defendant denies the allegation that

Plaintiff repeatedly complained to Defendant, but was given no consideration to her complaints. Defendant has no personal information or belief sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. 13. Answering the allegations of Paragraph 13, Defendant admits that Eovino questioned

Defendant about the IDO-related work that Lam had been doing after her transfer out of IDO. Defendant has no personal information sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. 14. Answering the allegations of Paragraph 14, Defendant admits recommending that

Plaintiff receive an improvement needed rating regarding work relations. Regarding all other allegations except those in the second-to-last sentence of the paragraph, Defendant denies each and every allegation. Defendant has no personal information sufficient to enable him to answer the allegations in the second-to-last sentence of the paragraph, and on that ground denies each and all the allegations in that second-to-last sentence. 15. Answering the allegations of Paragraph 15, Defendant admits Plaintiff was

reassigned from the IDO to a different unit of the Office. Defendant denies retaliating against Plaintiff. Defendant has no personal information sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations.
Answer to Plaintiffs Complaint by Defendant James Gleason

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16.

Answering the allegations of Paragraph 16, Defendant realleges and incorporates

herein by this reference each and all of his responses to Paragraphs 1 through 15. 17. Answering the allegations of Paragraph 17, Defendant denies that Plaintiffs

complaints were made outside the scope of her job duties and denies that Plaintiffs complaints involved an issue of public concern. Based on the way the Complaint is pled, Defendant has no personal information or belief sufficient to enable him to answer the remaining allegations, and on that ground denies each and all the allegations. 18. Answering the allegations of Paragraph 18, Defendant denies each and all the

allegations, and specifically denies retaliating against Plaintiff. But defendant admits Plaintiff was rated improvement needed in her performance evaluation in the work relations category, and admits that Gleason, Maruffi and Eovino evaluated Plaintiffs job performance. 19. Answering the allegations of Paragraphs 19, 20, 21 and 22, Defendant denies each

and all the allegations. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that the Complaint, and each and every cause of action and/or claim for relief thereof, fails to state facts sufficient to constitute a cause of action and/or claim for relief against this answering Defendant. SECOND AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges Plaintiff lacks standing to maintain the present action or to obtain any relief herein. THIRD AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff failed to engage in protected speech outside the scope of her job duties and therefore failed to engage in protected activity. //
Answer to Plaintiffs Complaint by Defendant James Gleason

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FOURTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff was not subjected to any legally sufficient adverse employment action related to any protected activity in which she may have engaged. FIFTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that his conduct was privileged, justified, and otherwise lawful and within community standards. SIXTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Defendant acted with a good faith belief in the propriety of his conduct, and performed and discharged in good faith each and every duty and/or obligation, if any, owed to Plaintiff. SEVENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that his conduct was proper, legal, and in substantial compliance with all applicable regulations, codes, statutes and/or ordinances. EIGHTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that any acts and/or omissions on Defendants part were discretionary and not ministerial in nature. NINTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that any acts and/or omissions on Defendants part were subjectively and/or objectively reasonable so as to entitle Defendant to absolute or qualified immunity based upon applicable law for any acts and/or omissions within the course and scope of employment. //
Answer to Plaintiffs Complaint by Defendant James Gleason

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TENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that the County and its agents have established and enforced, at all relevant times, policies prohibiting discrimination and retaliation, and that the County and its agents took all reasonable steps to investigate, prevent and/or promptly remedy any discrimination or retaliation if any such conduct occurred. ELEVENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff failed to mitigate her damages. TWELFTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action and/or claim for relief, is barred in that her exclusive remedies are found under California Labor Code sections 3600, et seq., and related provisions of law. THIRTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that he is entitled to a setoff of any Workers Compensation benefits received, or to be received, by Plaintiff against any judgment that may be rendered against this Defendant. FOURTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff unreasonably delayed in bringing this action against Defendant and that such delay prejudiced Defendant and therefore this action against Defendant is barred by the doctrine of laches. FIFTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff, by reason of her own acts and/or omissions, has waived any claims as alleged.
Answer to Plaintiffs Complaint by Defendant James Gleason

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SIXTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff, by reason of her own acts and/or omissions, is equitably estopped from asserting any claim as alleged. SEVENTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff, by virtue of having been the sole or major contributing factor to the alleged damages of which she now complains, based upon her own fault or misconduct, is guilty of unclean hands and therefore is barred from obtaining the relief sought in the Complaint by that principle, as well as by the principle of in pari delicto. EIGHTEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff consented to the acts and/or omissions complained of in the Complaint. NINETEENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that any alleged duty and/or obligation of Defendant was exonerated, discharged and/or released by Plaintiffs acts and/or omissions. TWENTIETH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant is informed and believes, and thereon alleges, that any statements made by him to Plaintiff or others were, either in whole or in part, matters of opinion. TWENTY-FIRST AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that the doctrine of after-acquired evidence is a complete bar to Plaintiffs claims or, at a minimum, necessitates the reduction of any damages awarded to Plaintiff. //
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TWENTY-SECOND AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff failed to (1) exhaust her administrative and/or other remedies and/or (2) satisfy other jurisdictional and/or procedural prerequisites before filing suit. TWENTY-THIRD AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff failed to comply with the provisions of the California Tort Claims Act aka California Government Claims Act. TWENTY-FOURTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action and/or claim for relief, is barred by the provisions of California Government Code 810 through 1000, inclusive, including, but not limited to, Sections 815, 815.2, 815.3, 815.4, 815.6, 818, 818.2, 818.8, 820, 820.2, 820.8, 821, and 822.2. TWENTY-FIFTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action and/or claim for relief thereof, is barred by the statute of limitations as stated in Part 2, Title 2, Chapter 2 of the California Code of Civil Procedure, beginning with Section 315 and continuing through Section 349 3/4 and, more particularly, but not limited to, Sections 335.1, 338, 340, 342, and 343. TWENTY-SIXTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiffs Complaint is frivolous as to Defendant and was brought and maintained in bad faith and without reasonable cause, for the sole purpose of harassing Defendant, and Defendant therefore is entitled to recover from Plaintiff and her counsel Defendants reasonable expenses, including attorneys fees.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE As a separate affirmative defense to the Complaint and to each cause of action and/or claim for relief, Defendant alleges that Plaintiff failed to state facts sufficient to constitute a claim for punitive and/or exemplary damages against Defendant. PRAYER FOR RELIEF Defendant prays that Plaintiff take nothing by way of her Complaint, that Defendant have judgment for his costs of suit incurred herein, including attorneys fees, together with such other and further relief as the court deems just and proper. Dated: August 23, 2011 Respectfully submitted, MIGUEL MRQUEZ County Counsel By: /S/ ROBERT M. COELHO Lead Deputy County Counsel Attorneys for Defendants COUNTY OF SANTA CLARA, JAMES GLEASON, SANDRA EOVINO, AND KIMBERLY MARUFFI JURY DEMAND Defendant hereby demands a trial by jury. Dated: August 23, 2011 Respectfully submitted, MIGUEL MRQUEZ County Counsel By: /S/ ROBERT M. COELHO Lead Deputy County Counsel Attorneys for Defendants COUNTY OF SANTA CLARA, JAMES GLEASON, SANDRA EOVINO, AND KIMBERLY MARUFFI

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