Filed
11 April 27 P2:47
Amalia Rodriguez-Mendoza
District Cieri<:
Travis District
D-1-GN-11-001020
CAUSE
M. MONTGOMERY
MILLER,
No. D-I-GN-II-OOI020
§
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Plaintiff,
IN THE DISTRICT COURT
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vs.
THE STATE BAR OF TEXAS,
Defendant.
353RD JUDICIAL DISTRICT
TRAVIS COUNTY, TEXAS
DEFENDANT THE STATE BAR OF TEXAS'S ORIGINAL ANSWER AND
AFFIRMATIVE DEFENSES TO PLAfNTIFF'S ORIGINAL PETITION
NOW COMES The State Bar of Texas, Defendant in the above-styled
and numbered
action, and files its Original Answer and Affinnative Defenses to Plaintiffs Original Petition and
by way of such Answer, would respectfully show the Court as follows:
I.
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant denies generally
each and every allegation contained in Plaintiffs
Original Petition, an:d any amendments
supplements thereto, and demands strict proof thereof by a preponderance
and
of the evidence.
II.
AFFIRMATIVE
DEFENSES
1.
Plaintiff has failed to state a cause of action upon which relief can be granted.
2.
To the extent that Plaintiff has made allegations which relate to claims based upon
matters occurring more than one hundred eighty (180) days prior to the filing of a charge of
discrimination
----such-ciaimsare
with the Texas Workforce Commission's
time;;barred.-----·
..--
Civil Rights Division (nTWCCRD"),
3.
Pursuant to the Texas Commission on Human Rights Act, Texas Labor Code,
Chapter 21 ("TCHRA"), the allegations in Plaintiffs Petition may not exceed the scope and
content of Plaintiffs underlying discrimination charge filed with the TWCCRD and the
investigation conducted pursuant thereto.
Accordingly, to the extent Plaintiffs
Petition
encompasses any such claims and/or events, those claims and/or events are not properly before
the Court, jurisdictionally or otherwise.
4.
Plaintiffs claims are barred, in whole or in part, because Defendant's actions with
respect to Plaintiff were at all times in compliance and comportment with the TCHRA, and all
other applicable laws, and were taken in good faith and for lawful, legitimate and
nondiscriminatory reasons.
5.
Defendant asserts the defense of good faith efforts.
6.
To the extent Plaintiff claims that Defendant failed to provide a reasonable
accommodation to a disability as required by the TCHRA, Defendant pleads that any such
requested accommodation was an "undue hardship" on Defendant.
7.
Defendant is entitled to an offset against and/or reduction of any monetary award
for back pay and/or damages, if any, for (i) the total earnings and income of Plaintiff, if any,
between the date of his termination of employment with Defendant and the present which,
through the exercise of reasonable diligence, could have been earned, during the period for
which lost wages and benefits are sought by Plaintiff, and (ii) all state and federal benefits,
unemployment compensation and other benefits received by Plaintiff, if any, between the date of
his termination of employment with Defendant and the present.
8.
.. __ ._._u. _
Plaintiff has failed to take reasonable steps to mitigate his damages.
~_H .. __ 1~1~LnJir±:s-.9_~_~n.4_u:S?t_
~~.~he.p'~()xiJ?1~te_caus_e
of any dam~g~~2.t1St~in~ ..
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.._
10.
Plaintiffs alleged damages are too speculative to form a basis for recovery.
11.
Defendant reserves the right to amend its Answer and assert additional affirmative
defenses as the claims of Plaintiff are more fully disclosed in the course of discovery in this
litigation.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court, upon
hearing hereof, enter judgment as follows:
a.
Dismissing Plaintiff's Original Petition and any claim therein with prejudice;
b.
Awarding Defendant its attorney's fees and costs against Plaintiff pursuant to the
statutes; and
c.
Awarding Defendant such other relief to which it may show itself justly entitled.
DATED: April 27, 2011
Respectfully submitted,
WINSTEAD, PC
/s/ Lacey L. Gourley
Lacey L. Gourley
Texas State Bar No. 08235620
401 Congress Avenue, Suite 2100
Austin, Texas 78701
512.370-2835 Telephone
512.370.2850 Facsimile
19ourley@winstead.com
ATTORNEYS FOR DEFENDANT
THE STATE BAR OF TEXAS
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CERTIFICATE
OF SERVICE
I hereby certify that a true and correct copy of the foregoing Defendant The State Bar of
Texas Original Answer and Affinnative Defenses to Plaintiffs Original Petition was filed
electronically with the Court and sent via Certified Mail, Return Receipt Requested (Article No.
7002 2030 0000 4217 7304) to Plaintiffs counsel of record Philip Durst, Deats Durst Owen &
Levy, P .L.L.C., 1204 San Antonio, Suite 203, Austin, Texas 78701, on this 27th day of April
2011.
/s/ Lacey L. Gourley
Lacey L. Gourley
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