Equal Employment Opportunity Commission v. Old Dominion Freight Line, Inc.
ORDER denying 60 defendant's Motion to Strike Portions of Intervenor, Charles Grams' Amended and Substituted Complaint in Intervention. Signed by Honorable Jimm Larry Hendren on May 29, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
Civil No. 11-2153
OLD DOMINION FREIGHT LINE, INC.
O R D E R
Now on this 29th day of May, 2012, comes on for consideration
Defendant's Motion To Strike Portions Of Intervenor, Charles
Grams' Amended And Substituted Complaint In Intervention (document
#60), and from said motion, and the response thereto, the Court
finds and orders as follows:
("EEOC") brought suit (the "EEOC Complaint") upon the charge of
accommodation under the Americans With Disabilities Act ("ADA") by
policies of defendant Old Dominion Freight Line, Inc. ("Old
Those policies, according to the EEOC Complaint,
prohibit any truck driver who self-reports alcohol abuse from
returning to a driving position, and condition return to a nondriving position upon enrollment in a treatment program.
Grams was allowed to intervene, and then to file an Amended
And Substituted Complaint In Intervention ("Amended Complaint").
Old Dominion now moves to strike portions of the Amended
Complaint. It challenges allegations that its policy regarding
alcoholism is "sad" and that "at Old Dominion, alcoholism must
stay in the closet."
It also challenges several paragraphs which
recite that Grams tried unsuccessfully to work out the problem
with Old Dominion by means short of litigation.
It contends that
such statements would not be admissible in evidence, and therefore
should be stricken from the Amended And Substituted Complaint,
citing U.S. ex rel. Alsaker v. CentraCare Health System, 2002 WL
1285089 (D. Minn. 2002).
Grams responds that the first two contested phrases are
true, and that the paragraphs about trying to work out the claim
are evidence that he attempted to engage in the interactive
process required under the Americans With Disabilities Act.
The Court first notes that Old Dominion made this same
motion in connection with an earlier unauthorized Amended And
Substituted Complaint filed by Grams.
In disposing of that
motion, the Court said the following:
18. Upon the filing of Grams' Amended Complaint, as
allowed by this Order, Old Dominion's final objection to
Grams' Amended Complaint may come to the fore, i.e.,
that Grams' Amended Complaint contains impertinent
material that should be stricken.
The Court is not
persuaded that, to the extent Grams' Amended Complaint
contains irrelevant matter, it is sufficiently offensive
or obstructive that it merits a recasting of the
Thus, inasmuch as that argument has been
asserted as to Grams' Amended Complaint (now stricken),
and Grams' Amended Complaint (upon refiling) will mirror
it, the argument is rejected.
(docket entry 55.)
Complaint here under consideration, the instant motion is a simply
a motion for reconsideration.
Nothing presented by Old Dominion persuades the Court
that it was wrong in its initial decision on this issue.
the challenged portions of the Amended And Substituted Complaint
may be irrelevant, and may be inadmissible in evidence, the Court
evidence, and absent that use of it, these portions are simply not
sufficiently offensive or obstructive to merit recasting of the
Motions to strike are viewed with disfavor and seldom
granted, Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th
Cir. 2000), and the Court does not find the instant case an
appropriate one for the exercise of this discretionary power.
IT IS THEREFORE ORDERED that Defendant's Motion To Strike
Portions Of Intervenor, Charles Grams' Amended And Substituted
Complaint In Intervention (document #60) is denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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