Case 2:16-cv-00659-SPC-MRM Document 22 Filed 01/06/17 Page 1 of 21 PageID 75

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 16-CV-00659-SPC-MRM
ANDREA SCHULTZ, an individual,
Plaintiff,
v.
GREATER NAPLES FIRE RESCUE DISTRICT, a
political subdivision of the State of Florida, and
KINGMAN SCHULDT, an individual,
Defendants.
/
DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES
Defendants, GREATER NAPLES FIRE RESCUE DISTRICT and KINGMAN
SCHULDT, hereby file their Answer and Affirmative Defenses to the Complaint filed by
Plaintiff, ANDREA SCHULTZ, and in response state as follows.
ALLEGED CAUSES OF ACTION
1.

Defendants acknowledge that Plaintiff is purporting to bring claims under Title

VII of the Civil Rights Act of 1964 (Title VII), the Florida Civil Rights Acts of 1992 (FCRA), 42
U.S.C. § 1981 via 42 U.S.C § 1983, and the Fair Labor Standards Act of 1938 (FLSA), but deny
the remaining allegations contained in paragraph 1, including but not limited to the alleged
discrimination, retaliation, and unpaid overtime compensation.
ALLEGED PARTIES
2.

Defendants admit Plaintiff is an individual and that she was employed for a

limited period of time with the Greater Naples Fire Rescue District (“the District”) in Collier
County, Florida. Defendants are without sufficient knowledge to admit or deny the remaining
allegations in paragraph 2, and therefore deny same.

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3.

Defendants admit the allegation in the first sentence of paragraph 3. Defendants

deny the allegations in the second sentence of paragraph 3. Defendants admit the allegations in
the last sentence of paragraph 3 only for general jurisdictional purposes and deny same in
relation to the complaint’s allegations of unlawful conduct and liability.
4.

Defendants admit the allegation in the first sentence of paragraph 4. Defendants

admit the allegations in the last sentence of paragraph 4 only for general jurisdictional purposes
and deny same in relation to the complaint’s allegations of unlawful conduct and liability.
5.

Admitted.
ALLEGED JURISDICTION AND VENUE

6.

Defendants admit the allegations in paragraph 6 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
7.

Defendants admit the allegations in paragraph 7 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
8.

Defendants admit the allegations in paragraph 8 only for general venue purposes

and deny same in relation to the complaint’s allegations of unlawful conduct and liability.
9.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 9, and therefore deny same.
GENERAL ALLEGATIONS
10.

Defendants deny that Plaintiff was hired by the District in August 2005.

Defendants admit Plaintiff was a captain at the time of her employment separation.
11.

Denied.

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12.

Defendants admit the allegations in paragraph 12 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
13.

Defendants admit Kingman Schuldt is the District’s Fire Chief since its inception.

Defendants are without sufficient knowledge to admit or deny the remaining allegation in
paragraph 13 regarding “material times” because Plaintiff does not allege what she deems
material, and therefore deny same.
14.

Denied.

15.

Denied.

16.

Defendants are without sufficient knowledge to admit or deny the allegations in

the first sentence of paragraph 16, and therefore deny same. Defendants deny the allegations in
the last sentence of paragraph 16.
17.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 17, and therefore deny same.
18.

Defendants are without sufficient knowledge to admit or deny the allegation

pertaining to Plaintiff being falsely accused of “sexual impropriety every time she was alone
with any male firefighter or male officer” while the male officers’ integrity was not questioned,
and therefore deny same. Defendants deny the remaining allegations in paragraph 18.
19.

Denied.

20.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 20, and therefore deny same.
21.

Denied.

22.

Denied.

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23.

Defendants admit they informed Plaintiff in writing that she was the subject of an

informal investigation. Defendants deny the remaining allegations in paragraph 23.
24.

Denied.

25.

Defendants admit Plaintiff filed a discrimination charge. Defendants deny the

remaining allegations in paragraph 25.
26.

Defendants admit Plaintiff was placed on administrative leave. Defendants deny

the remaining allegations in paragraph 26.
27.

Defendants are without sufficient knowledge to admit or deny the allegations in

first sentence of paragraph 27, and therefore deny same.

Defendants deny the remaining

allegations in paragraph 27.
28.

Denied.

29.

Denied.

30.

Defendants deny Plaintiff was terminated.

allegations

in

paragraph

30,

but

assert

the

Defendants admit the remaining

District

employs

females

in

other

supervisory/management positions.
31.

Denied.

32.

Denied.

33.

Denied.

34.

Defendants admit Plaintiff voluntarily resigned her employment on or about

February 28, 2015. Defendants deny the remaining allegations in paragraph 34.
35.

Defendants deny that Plaintiff complained. Thus, Defendants did not have a

complaint from Plaintiff to investigate.
36.

Denied.

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37.

Denied.

38.

Denied.

39.

Denied.

40.

Denied.

41.

Denied.

42.

Denied.

43.

Denied.

44.

Admitted.

45.

Denied.

46.

Denied.

47.

Denied.

48.

Denied.
COUNT I

49.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
50.

Defendants admit the allegations in paragraph 50 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
51.

Defendants admit the allegations in paragraph 51 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 51.

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52.

Defendants admit Plaintiff met the minimum qualifications of her Captain

position while employed with the District.

Defendants deny the remaining allegations in

paragraph 52.
53.

Denied.

54.

Denied.

55.

Denied.

56.

Denied.

57.

Denied.

58.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 58, and therefore deny same.
Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count I.
COUNT II
59.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
60.

Defendants admit the allegations in paragraph 60 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
61.

Defendants admit the allegations in paragraph 61 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 61.

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62.

Defendants admit Plaintiff met the minimum qualifications of her Captain

position while employed with the District.

Defendants deny the remaining allegations in

paragraph 62.
63.

Denied.

64.

Denied.

65.

Denied.

66.

Denied.

67.

Denied.

68.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 68, and therefore deny same.
Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count II.
COUNT III
69.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
70.

Defendants admit the allegations in paragraph 70 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
71.

Defendants admit the allegations in paragraph 71 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 71.

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72.

Defendants admit Plaintiff met the minimum qualifications of her Captain

position while employed with the District.

Defendants deny the remaining allegations in

paragraph 72.
73.

Denied.

74.

Denied.

75.

Denied.

76.

Denied.

77.

Denied.

78.

Denied.

79.

Denied.

80.

Denied.

81.

Denied.

82.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 82, and therefore deny same.
Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count III.
COUNT IV
83.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
84.

Defendants admit the allegations in paragraph 84 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.

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85.

Defendants admit the allegations in paragraph 85 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 85.
86.

Defendants admit Plaintiff met the minimum qualifications of her Captain

position while employed with the District.

Defendants deny the remaining allegations in

paragraph 86.
87.

Denied.

88.

Denied.

89.

Denied.

90.

Denied.

91.

Denied.

92.

Denied.

93.

Denied.

94.

Denied.

95.

Denied.

96.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 96, and therefore deny same.
Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count IV.
COUNT V
97.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference

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98.

Defendants admit the allegations in paragraph 98 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
99.

Defendants admit the allegations in paragraph 99 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 99.
100.

Denied.

101.

Denied.

102.

Denied.

103.

Defendants are without sufficient knowledge to admit or deny the allegations in

paragraph 103, and therefore deny same.
104.

Denied to the extent the allegation suggests Plaintiff was subjected to unlawful

harassment, discrimination, and/or retaliation.
105.

Denied.

106.

Defendants deny the allegations in paragraph 106, including all subparts.

107.

Denied.

108.

Denied.

109.

Defendants admits that gender harassment and discrimination are unlawful.

Defendants deny that they failed to act.
110.

Denied.

Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count V.

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COUNT VI
111.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
112.

Defendants admit the allegations in paragraph 112 only for general jurisdictional

purposes and deny same in relation to the complaint’s allegations of unlawful conduct and
liability.
113.

Defendants admit the allegations in paragraph 113 only for the period of time of

January 1, 2015, through February 23, 2015. Defendants deny the remaining allegations in
paragraph 113.
114.

Denied.

115.

Denied.

116.

Denied.

117.

Denied.

118.

Denied to the extent the allegation suggests Plaintiff was subjected to unlawful

harassment, discrimination, and/or retaliation.
119.

Denied.

120.

Defendants deny the allegations in paragraph 120, including all subparts.

121.

Denied.

122.

Denied.

123.

Defendants admits that gender harassment and discrimination are unlawful.

Defendants deny that they failed to act.
124.

Denied.

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Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count VI.
COUNT VII
125.

Defendants readopt and re-allege their answers to paragraphs 1 through 48 above

and fully incorporate those answers herein by reference.
126.

Admitted.

127.

Denied.

128.

Admitted.

129.

Defendants admit the allegation in paragraph 129 regarding GREATER NAPLES

FIRE RESCUE DISTRICT being Plaintiff’s employer only for the period of time of January 1,
2015, through February 23, 2015. Defendants deny the remaining allegations in paragraph 129.
130.

Denied.

131.

Denied.

132.

Denied.

133.

Denied.

Defendants deny that Plaintiff is entitled to any of the relief requested in the
WHEREFORE clause of Count VII.
ALLEGED DEMAND FOR JURY TRIAL AND PRAYER FOR RELIEF
Defendants deny Plaintiff is entitled to a jury trial on any of her counts and that she is
entitled to a judgment against one or both Defendants.

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AFFIRMATIVE DEFENSES
Subject to and without waiving the above denials, Defendants submit the following
affirmative defenses:
1.

Plaintiff’s Complaint should be dismissed to the extent it fails to state claims upon

which relief can be granted for the alleged discrimination, harassment, and/or retaliation.
2.

Plaintiff’s Complaint fails to allege facts sufficient to state a cause of action for

the alleged discrimination, harassment, and/or retaliation.
3.

Defendants have not taken nor ratified any action with discriminatory, harassing,

and/or retaliatory purpose or intent or with any unlawful purpose or intent.
4.

All employment actions taken against Plaintiff during her employment are

business related, and not based on any form of protected activity and/or unlawful retaliation.
5.

All employment actions taken against Plaintiff during her employment are

business related, and not based on any form of unlawful discrimination and/or harassment.
6.

Defendants’ treatment of Plaintiff was, at all times, based upon legitimate

business reasons, including but not limited to Plaintiff voluntarily quitting her employment, and
unrelated to the alleged protected activity and/or unlawful retaliation.
7.

Defendant’s treatment of Plaintiff was, at all times, based upon legitimate

business reasons, including but not limited to Plaintiff voluntarily quitting her employment, and
unrelated to any form of unlawful discrimination and/or harassment.
8.

Assuming arguendo Plaintiff is able to demonstrate that she engaged in protected

activity, which Defendants deny, Defendants would have taken the same actions absent
consideration of any alleged protected activity or complaint.

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9.

Assuming arguendo the actions Plaintiff challenges in this lawsuit are found to be

based, in whole or in part, on discriminatory, harassing, and/or retaliatory grounds, which
Defendants deny, Defendants would have reached the same decisions and taken the same actions
absent any alleged discrimination, harassment, and/or retaliation.
10.

Defendants state that Plaintiff acted in such a manner as to cause all or part of her

damages, including but not limited to Plaintiff voluntarily quitting her employment, and
therefore, her recovery, if any, should be barred or reduced accordingly.
11.

Defendants state that Plaintiff’s damages, if any, are limited to the extent that

Plaintiff has been paid by collateral sources.
12.

Defendants are entitled to a setoff and/or reduction equal to those amounts

Plaintiff received from any and all sources since her employment termination.
13.

Any claim for relief must be setoff and/or reduced by wages, commissions,

compensation, pay and benefits, other earnings or remunerations, profits, and benefits, regardless
of form, received by Plaintiff or which were earnable or receivable with the exercise of
reasonable diligence by Plaintiff.
14.

Plaintiff failed to mitigate any damages that she may have allegedly suffered as a

result of the allegations in the Complaint.
15.

To the extent that Plaintiff may have reasonably attempted to mitigate her

damages, Defendant is entitled to a set off and/or deduction in the amount(s) that Plaintiff did
earn or could have earned through reasonable efforts.
16.

Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s failure to satisfy

conditions precedent to bringing her claims.

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17.

Plaintiff’s claims are barred, in whole or in part, to the extent Plaintiff failed to

timely and properly exhaust her administrative remedies prior to filing her Complaint.
18.

Plaintiff’s claims are barred in whole or in part by the applicable statutes of

limitations.
19.

Plaintiff’s claims are barred, in whole or in part, to the extent that they exceed the

scope of, or are inconsistent with the charges of discrimination Plaintiff filed with the EEOC,
and/or FCHR.
20.

At all times, Defendants acted in good faith towards Plaintiff and without any

intent to deprive Plaintiff of any civil rights.
21.

To the extent any alleged unlawful conduct by Plaintiff’s supervisors or any other

employee of the GREATER NAPLES FIRE RESCUE DISTRICT was outside the course and
scope of such individual’s employment, GREATER NAPLES FIRE RESCUE DISTRICT
cannot be liable.
22.

Plaintiff’s claims are barred because Defendants neither knew nor should have

known of the alleged discrimination, harassment, and/or retaliation. Plaintiff’s claims are also
barred because Defendants exercised reasonable care to prevent and correct promptly any alleged
discriminatory, harassing, and/or retaliatory behavior. GREATER NAPLES FIRE RESCUE
DISTRICT’s

anti-discrimination,

anti-harassment,

and

anti-retaliation

policies

are

comprehensive, well-known to employees, vigorously enforced, and provide alternative avenues
of redress.
23.

Plaintiff’s claims are barred to the extent that Plaintiff failed to avail herself of

GREATER NAPLES FIRE RESCUE DISTRICT’s policy, which prohibits discrimination,
retaliation, and harassment, and provides a reasonably available procedure by which Plaintiff

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could bring complaints, and any such complaint, and/or any alleged notice of discrimination,
retaliation, and harassment would be subject to prompt remedial action reasonably calculated to
end such alleged discrimination, retaliation, and harassment or hostile work environment.
24.

If Defendants are found to be liable to Plaintiff, Plaintiff is not entitled to recover

compensatory, punitive or similar damages as Defendants did not engage in conduct justifying an
award of such damages, and Plaintiff has failed to plead and/or prove the existence of conduct by
Defendants that would justify an award of any such damages.
25.

Defendants state that Plaintiff’s damages, if any, are limited or negated by the

after acquired evidence doctrine.
26.

Plaintiff’s claim for damages is subject to the limitations set forth in section

760.11, Florida Statutes.
27.

To the extent Plaintiff claims she suffers any symptoms of mental and/or

emotional distress, injury, or any other non-pecuniary losses, they are the result of preexisting
psychological disorders and/or alternative concurring causes, and not the result of any act or
omission by Defendants.
28.

Defendants have not engaged in any discriminatory, harassing, and/or retaliatory

practice with malice or reckless indifference to Plaintiff’s statutorily protected rights and
therefore any claims by Plaintiff for punitive damages are barred.
29.

Plaintiff’s claims for punitive damages are barred because Defendants, nor any of

its agents sufficiently high in the corporate hierarchy, committed any act with malice or reckless
indifference to Plaintiff’s protected rights, or approved, authorized or ratified, or had actual
knowledge, of any such acts.

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30.

To the extent any of Plaintiff’s allegations of misconduct or tortuous conduct by

GREATER NAPLES FIRE RESCUE DISTRICT and/or its employees are true, which
Defendants deny, Plaintiff’s claims still fail because any such misconduct was outside the scope
of their employment and not in the course of the employee’s employment and authority, and
Defendants cannot be held responsible under the theory of respondent superior.
31.

To the extent any of Plaintiff’s allegations of misconduct by GREATER NAPLES

FIRE RESCUE DISTRICT’s employees are true, which Defendants expressly deny, Plaintiff’s
claims still fail because any such misconduct was not authorized, adopted, or ratified by
Defendants, and they neither knew nor should have known of such conduct.
32.

Defendants at all times acted in good faith and without any discriminatory,

harassing, and/or retaliatory motives or purpose.
33.

No conduct of Defendants formed the direct or proximate cause of any damages

alleged by Plaintiff, including, but not limited to loss of income, emotional distress, pain and
suffering, mental anguish, indignity, humiliation, embarrassment, damage to reputation, loss of
enjoyment or life, or anxiety experienced by Plaintiff, if any; therefore, Plaintiff cannot recover
such damages in this case.
34.

In accordance with the United States Supreme Court’s ruling in University of

Texas Southwestern Medical Center v. Nassar, Plaintiff must establish that her alleged protected
activity pertaining to her retaliation claim was the “but-for” cause of the alleged adverse action
by Defendants.
35.

Defendants acted in good faith at all times and had reasonable grounds for

believing that they were not violating the Fair Labor Standards Act.
36.

Any violation of the Fair Labor Standards Act by Defendants was not willful.

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37.

Plaintiff is estopped from recovering any alleged unpaid overtime, minimum

wages, or other compensation to the extent her claims are outside the two year statute of
limitations.
38.

Plaintiff is estopped from recovering any alleged unpaid overtime, minimum

wages, or other compensation to the extent her claims are outside the three year statute of
limitations.
39.

Some of the time for which Plaintiff seeks minimum wage and/or overtime

compensation is not considered work time under the Fair Labor Standards Act.
40.

Some of the activities for which Plaintiff seeks minimum wage and/or overtime

compensation are not compensable because they are preliminary and/or postliminary activities.
41.

This action is barred or limited by the de minimis doctrine addressed in 29 C.F.R.

§ 785.47.
42.

Any claim for minimum wage and/or overtime compensation by Plaintiff must be

offset by any loans, premium compensation, overpayments, bonuses, compensatory time off, or
other job-related benefits paid or provided to Plaintiff, including a reduction for any
compensation already paid to Plaintiff for time periods not compensable under the Fair Labor
Standards Act.
43.

The regular rate cannot be computed based upon, and overtime compensation

cannot be recovered by Plaintiff for periods of time during which she performed no work,
including but not limited to sleeping/rest times, vacation and/or sick leave, worker’s
compensation leave, holidays, attending functions voluntarily, or when she was otherwise absent
from the workplace during a particular work week or day.

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44.

Any hours worked beyond Plaintiff’s compensated workweek were unauthorized

and performed without Defendants’ actual or constructive knowledge.
45.

Plaintiff’s claims against KINGMAN SCHULDT, in whole or in part, are barred

by the doctrine of qualified immunity.
46.

Plaintiff’s alleged constitutional and/or federal law deprivation did not occur

under color of state law.
47.

Plaintiff’s Equal Protection claim against GREATER NAPLES FIRE RESCUE

DISTRICT’s must fail because the alleged discrimination, harassment, and/or retaliation did not
result from an official government policy, the actions of an official fairly deemed to represent
government policy, and/or a custom or practice so pervasive and well-settled that it assumes the
force of law.
48.

Plaintiff’s Equal Protection claim against GREATER NAPLES FIRE RESCUE

DISTRICT’s must fail because the alleged discrimination, harassment, and/or retaliation was not
taken with deliberate indifference to its known or obvious consequences.
RESERVATION OF RIGHTS
Defendants hereby give notice that they intend to rely on such other defenses and
affirmative defenses as might become available or apparent during the course of discovery, and
thus, Defendants reserve the right to amend this answer and serve such defenses and otherwise
supplement the foregoing affirmative defenses.
WHEREFORE, having answered and responded to the allegations in Plaintiff’s
Complaint, Defendants respectfully request that:
1.

Plaintiff’s claims be dismissed with prejudice in their entirety;

2.

Each and every prayer for relief in Plaintiff s Complaint be denied;

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3.

Judgment be entered in favor of Defendants;

4.

All costs be awarded to Defendants and against Plaintiff;

5.

All reasonable attorney fees be awarded to Defendants and against Plaintiff; and

6.

This Court grant Defendants such other and further relief as it deems just and

appropriate.
Respectfully submitted this 6th day of January, 2017.

/s/ Reynaldo Velazquez
Reynaldo Velazquez
Florida Bar No. 0069779
FordHarrison LLP
100 S.E. 2nd Street, Suite 2150
Miami, Florida 33131
Telephone: (305) 808-2103
Facsimile: (305) 808-2101
rvelazquez@fordharrison.com
Attorney for Defendants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of January, 2017, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
Service List below in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are not authorized to receive electronically Notices of Electronic Filing.

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SERVICE LIST
Benjamin H. Yormak, Esquire
byormak@yormaklaw.com
Yormak Employment & Disability Law
9990 Coconut Road
Bonita Springs, FL 34135
Tel: 239-985-9691
Fax: 239-288-2534
Counsel for Plaintiff
(via CM/ECF)
s/ Reynaldo Velazquez
Reynaldo Velazquez, Esq.
Counsel for Defendants
WSACTIVELLP:8873926.1

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