Hernandez v. City of Thomson et al
Filing
66
ORDER that Defendants' 58 Partial Motion to Strike Plaintiff's third amended complaint is granted, as outlined in the body of this Order. Signed by Judge J. Randal Hall on 1/12/2015. (jah)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
RUTH MARIA HERNANDEZ,
*
Tic-
Plaintiff,
*
*
vs.
*
CV
113-079
*
CITY OF THOMSON
and
its
*
council members,
and JOE
D.
individual
NELSON
in his
*
capacity,
*
*
*
Defendants.
*
ORDER
Before the Court is Defendants' partial motion to strike
Plaintiff's third amended complaint.
(Doc.
reasons set forth herein,
motion is GRANTED.
Defendants'
no.
58.)
For the
On September 5, 2013, Plaintiff sought leave to amend her
first amended complaint to add a claim under 42 U.S.C. § 1983
for the deprivation of her constitutional rights under the
Equal Protection Clause.
motion
to
the
extent
(Doc. no. 36.) The Court denied the
that
she
sought
to
add
a
gender
discrimination claim and granted the motion to the extent that
she sought to add a pregnancy discrimination claim.
41.)
(Doc. no.
The Court concluded that
Plaintiff's allegations of pregnancy discrimination
lack the necessary link to reveal invidious gender
discrimination. Plaintiff alleges that Defendants
terminated her employment because she was pregnant
and
that
their
reason
for
terminating
her
employment—that she was unfit to perform assigned
duties—was pretext for pregnancy discrimination.
She does not offer any factual allegation that
Defendants were motivated by a discriminatory
animus against her gender.
(Order dated February 5, 2014.) Despite this clear instruction
to Plaintiff that her pregnancy-related claim may go forward
but her gender-related claim may not go
forward,
included language in her third amended complaint
that
refers
Order,
to both claims.
Citing the
Court's
Plaintiff
("T.A.C")
February
5
Defendants move to strike the language in the T.A.C.
that points to gender discrimination.
Specifically, Defendants argue that the word "gender" in
paragraph 24 should be struck. Paragraph 24 alleges that
Plaintiff brings this action to recover her lost
wages, benefits and other compensation resulting
from
Defendants'
aforesaid
gender/pregnancy
discriminatory policy, procedure, or practice . . .
(T.A.C.
this
SI 24.)
paragraph
Plaintiff insists that the word "gender" in
is
merely
descriptive
of
the
condition
of
pregnancy and therefore should not be struck. The Court finds
that
the
word
"pregnancy"
next
to
the
word
"gender"
is
sufficiently descriptive of the condition of pregnancy. More
importantly,
violates
Plaintiff's inclusion of the word "gender" here
the Court's
express guidance
to
Plaintiff
in
the
February 5 Order. The word "gender" is therefore STRUCK.
On the same grounds,
Defendants also urge the Court to
strike paragraph 28 in its entirety.
That paragraph alleges
that
Plaintiff's male counterparts with the City Police
2
Department were allowed to work in less strenuous
jobs during periods of physical disability and were
allowed to use the Family Medical Leave to cover
periods of total disability until they received a
return to work authorization from a physician.
(T.A.C.
SI 28.)
counterparts"
Defendant contends that the reference to "male
is
focused on
gender
rather
than
pregnancy.
Plaintiff responds that pregnancy discrimination is a form or
subset of gender discrimination and therefore the reference to
men in that paragraph is appropriate.
If paragraph 28
read
"non-pregnant counterparts, both male and female alike" rather
than
simply "male
counterparts,"
would be considerably weaker.
the Court
finds
then
However,
that the paragraph is
Defendants'
argument
as currently worded,
focused on a gender
discrimination theory, which the Court expressly rejected in
the February 5 Order. Therefore,
Defendant
also
argues
the paragraph is STRUCK.
that
the
first
sentence
in
paragraph 31 should be struck because it is immaterial to the
attorney's
fees
sentence
STRUCK.
is
Plaintiff
seeks.
Plaintiff
agrees.
That
IT IS ORDERED that Defendants' partial motion to strike
Plaintiff's third amended complaint (doc no.
58) is GRANTED.
ORDER ENTERED at Augusta, Georgia, this
January,
/sC*£- day of
2015.
Honorable J.
Ra/idal
Hall
United/ States District Judge
Southern District of Georgia
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