Brass et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable James F. Holderman on 11/28/2012:Judicial staff mailed notice(gl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TAMARA D. BRASS,
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Plaintiff,
v.
EARL DUNLAP, Transitional Administrator of
Cook County Juvenile Temporary Detention
Center, and BRENDA WELCH, Deputy
Transitional Administrator of Cook County
Juvenile Temporary Detention Center,
Defendants.
Case No. 09 CV 6873
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
Plaintiff Tamara Brass (“Brass”) is a former employee of the Cook County Juvenile
Temporary Detention Center (“JTDC”). In her Second Amended Complaint, Brass alleges that
defendants Earl Dunlap, Transitional Administrator of the JTDC (“TA” or “Dunlap”), and
Brenda Welch, Deputy Transitional Administrator of the JTDC (“Deputy Administrator” or
“Welch”), are liable under Title VII and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 US 388 (1971), for harassing Brass, retaliating against Brass for
engaging in protected activities, and terminating Brass’s employment without just cause. (See
Dkt. No. 76 (“2d Am. Compl.”) and Dkt. No. 100 (12/20/2011 Order) (limiting the 2d Am.
Compl. to Count III (in part), Count V (in part), Count VIII, Count IX, and Count X).)
The TA and Deputy Administrator (together “Defendants”) filed their Answer to the
Second Amended Complaint on October 2, 2012, and included nine affirmative defenses. (Dkt.
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No. 107 (“Ans.”).) Pending before the court is Brass’s “Motion to Strike Defendants’
Affirmative Defenses.” (Dkt. No. 109 (“Brass’s Mot.”).) For the reasons set forth below,
Brass’s motion is denied. A status hearing remains set for November 29, 2012 at 9:00 a.m. for
purposes of entering a scheduling order in this case. The parties are again encouraged to discuss
settlement.
BACKGROUND
Brass began her employment at the JTDC on September 1, 1996, as a Clerk IV. (2d Am.
Compl. ¶ 9.) She was later promoted to the position of Administrative Assistant II, before being
terminated from her employment on November 9, 2009. (Id.) Brass generally alleges that
“[s]ince Dunlap’s appointment1 Plaintiff has been subjected to intentional, systematic and
continuous harassment by Deputy Administrator [Welch] and the then Acting Deputy
Superintendent, Mullins.” (Id. ¶ 11.)
In December 2008, Brass complained to Mullins, to Brass’s AFSCME union
representative, and to the EEOC about comments made by Welch about “Plaintiff’s nipples
showing through her clothes.” (Id. ¶¶ 14, 16.) In retaliation for Brass’s sexual harassment
complaint, Welch and Mullins thereafter prevented Brass from properly signing in and out of
work, subjected her to “frivolous” disciplinary allegations based on falsified or erroneous
timesheets, stripped her of her job duties, assigned her duties that were outside the scope of her
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The TA was appointed on August 14, 2007, “with the authority and responsibility to
bring the [JTDC] into substantial compliance with [various court orders issued by District Judge
John A. Nordberg in Doe v. Cook County, 99 C 3945] and, if consistent with Illinois law, to
prepare the JTDC for the transition of administrative authority over its operations to the Office
of the Chief Judge of the Circuit Court of Cook County.” (99 C 3945, Dkt. No. 330 ¶ 1.) The
TA continues to serve in this capacity as of the date of this order.
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employment, and ultimately terminated her employment. (Id. ¶¶ 12-13, 15, 17-18.) During this
same time period, Welch ordered Brass “to destroy files containing medical and legal
documents, log books and other information that were often needed for FBI, DCFS, Inspector
General investigations as well as other litigation.” (Id. ¶ 19.) Brass refused to destroy these
documents and complained to the Inspector General about Welch’s order to destroy them. (Id.
¶¶ 19-20.) In retaliation for Brass’s refusal to destroy the documents, Brass was accused of
falsifying her timesheets and was suspended for three days. (Id. ¶ 19.) Brass was also further
retaliated against for both her sexual harassment complaint and her refusal to destroy documents,
in that she was denied her requests for time off, forced to work in unsafe conditions, and verbally
threatened by Welch, who at one point “symbolically point[ed] her fingers as an imaginary gun
and shot[ ] Plaintiff.” (Id. ¶ 21.)
Brass filed a charge of retaliation with the EEOC on July 30, 2009, received her right-tosue letter on August 5, 2009, and filed this lawsuit on November 2, 2009. (Id. ¶¶ 22-23, 25.)
Brass was terminated from her employment on November 9, 2009, with an effective date of
November 4, 2009. (Id. ¶ 25.)
LEGAL STANDARD
Defendants’ Answer alleges nine separate items titled “affirmative defenses,” each of
which is one sentence in length, including: (1) failure to state a claim for which relief may be
granted; (2) statute of limitations; (3) waiver and/or estoppel; (4) failure to exhaust
administrative, statutory and/or jurisdictional prerequisites; (5) Brass’s failure to present her
Title VII claims to the EEOC; (6) the TA’s exercise of reasonable care to prevent and correct
discrimination; (7) the TA’s lack of personal involvement in the alleged discriminatory conduct;
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(8) Brass’s failure to mitigate damages; and (9) Brass’s failure to take advantage of the JTDC’s
safeguards to protect against harassment. (Ans. 22-24.) Brass has moved to strike each of these
defenses pursuant to Federal Rule of Civil Procedure 12(f).
Under Rule 12(f), a court may strike from a pleading any “insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to
strike are generally disfavored in this circuit because of their potential to cause delay in
litigation; however, they will be granted where they serve to remove “unnecessary clutter” from
a case. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
As pleadings, affirmative defenses are subject to the pleading requirements of the Federal
Rules of Civil Procedure. Id. Accordingly, to constitute a sufficient pleading, an affirmative
defense must include a “short and plain statement” of the defense. Id. (quoting Fed. R. Civ. P.
8(a)); see also Fed. R. Civ. P. 8(b)(1)(A) (responding party required to “state in short and plain
terms its defenses to each claim asserted against it”). “[B]are bones conclusory allegations” that
fail to address the necessary elements of the alleged defense are insufficient on the face of the
pleading. Id. at 1294-95. In reviewing a motion to strike, “the court must accept all factual
allegations as true and draw all reasonable inferences in favor of the pleader.” Renalds v. S.R.G.
Rest. Group, 119 F. Supp. 2d 800, 802 (N.D. Ill. Nov. 2, 2000) (Alesia, J.).
ANALYSIS
1.
Failure to State a Claim
Defendants’ first alleged affirmative defense states, in its entirety, “The Complaint fails
to state a claim upon which relief may be granted.” (Ans. 22.)
As a general matter, “failure to state a claim” is not technically an affirmative defense,
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“because it does not raise any matter outside of Plaintiff's complaint.” LaSalle Bank Nat’l Ass’n.
vs. Paramont Props., 588 F. Supp. 2d 840, 860 (N.D. Ill. Nov. 24, 2008) (St. Eve, J.).
Regardless, the Federal Rules of Civil Procedure clearly envision that the defense of “failure to
state a claim upon which relief can be granted” is appropriately included in a party’s responsive
pleading. Id.; see also Fed. R. Civ. P. 12(b)(6) (stating the general rule that “[e]very defense to a
claim for relief in any pleading must be asserted in the responsive pleading if one is required”
before listing specific defenses that may also be asserted “by motion”) (emphasis added) and
Fed. R. Civ. P. App’x of Forms (Form 30) (model “Answer Presenting Defenses Under Rule
12(b)”). Parties may also assert a defense of “failure to state a claim” by motion to the court
before filing their responsive pleading under Rule 12(b)(6). Additionally, the Federal Rules of
Civil Procedure contemplate that the defense of “failure to state a claim” may be raised under
Rule 12(c) or at trial. Fed. R. Civ. P. 12(h)(2).
While Defendants’ defense of “failure to state a claim” is undeniably conclusory in its
presentation, Defendants cannot be faulted for following the model “Answer Presenting
Defenses Under Rule 12(b),” which states only “The complaint fails to state a claim upon which
relief can be granted.” Fed. R. Civ. P. App’x of Forms (Form 30). Moreover, to the extent
Defendants have already briefed and litigated this defense before the court, (see Dkt. Nos. 58,
59, 100), Brass cannot complain that she has received insufficient notice of its factual basis.
Accordingly, the court declines to strike this defense at this time.
2.
Additional Defenses
Brass makes three additional arguments regarding the “remaining Affirmative Defenses,”
(Brass’s Mot. ¶¶ 7-8), which the court addresses in turn below.
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First, Brass argues that Defendants’ affirmative defenses “are vague, conclusory
allegations that fail to provide reasonable notice of the defense claimed.” (Brass’s Mot. ¶ 7.)
While Defendants’ remaining affirmative defenses are certainly sparse, the court finds that each
of the defenses set forth in Defendants’ Answer is sufficient for purposes of giving Brass fair
notice of the defenses on which Defendants plan to rely. In accordance with Rule 8(b)(1)(A),
Defendants have “state[d] in short and plain terms [their] defenses to each claim” in a manner
that permits Brass to proceed with appropriate discovery. Nothing more is required at this stage
of the litigation.
Second, Brass argues that Defendants have “merely reiterate[d] [their] denials in their
Answer,” citing as examples Defendants’ sixth, seventh, and ninth affirmative defenses.
(Brass’s Mot. ¶ 7.) The court disagrees. Defendants’ sixth and ninth affirmative defenses allege
that the TA “exercised reasonable care to prevent and to promptly correct any alleged
discriminatory conduct in its workplace,” and that “Plaintiff failed to act with like reasonable
care to take advantage of the employer’s safeguards and otherwise to prevent harm that could
have been avoided.” (Ans. at 23-24.) These defenses include factual allegations that
appropriately go beyond the scope of Brass’s Second Amended Complaint, and are therefore
more than mere denials. Defendants’ seventh affirmative defense alleges that the TA “did not
aid, abet, ratify, condone, encourage or acquiesce in any alleged discriminatory conduct.” (Ans.
at 23.) This defense also raises new factual allegations that have the potential to defeat Brass’s
claims, and are therefore appropriately raised as an affirmative defense.
Finally, Brass argues that Defendants’ second, third, fourth, fifth and eighth affirmative
defenses “are not appropriate affirmative defenses” because they do not “assert[ ] external
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reasons why, even given the Complaint’s truth, the requested relief is barred or unattainable.”
(Brass’s Mot. ¶ 8 (citing Sliwa v. Hunt, No. 92 C 6215, 1992 WL 350661, at *1 (N.D. Ill. Nov.
24, 1992) (Shadur, J.) (“the essence of an affirmative defense is that it admits what plaintiff
alleges, but asserts that plaintiff cannot win anyway for the reason or reasons set out in the
affirmative defense”) (emphasis in original).) Brass makes no effort to apply the cited legal
precedent to Defendants’ alleged affirmative defenses, and the court is unpersuaded by Brass’s
blanket assertion that Defendants have failed to adequately set forth “external reasons” why
Brass cannot prevail on her claims. In fact, two of the defenses at issue—statute of limitations
and estoppel/waiver—are specifically set forth in Federal Rule of Civil Procedure 8(c) as
examples of appropriate affirmative defenses.
CONCLUSION
For the reasons set forth above, Brass’s “Motion to Strike Defendants’ Affirmative
Defenses” (Dkt. No. 109) is denied. A status hearing remains set for November 29, 2012 at 9:00
a.m. for purposes of entering a scheduling order in this case. The parties are again encouraged to
discuss settlement.
ENTER:
_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: November 28, 2012
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