Badshah v. American Airlines
MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 5/12/2017: Plaintiff's motion to strike defendant's First, Third, Sixth, and Seventh Affirmative Defenses 10 is denied. Plaintiff's motion to strike the Second, Fourth, and Fifth Affirmative Defenses is denied as moot, insofar as Defendant has agreed to withdraw them, without prejudice.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
AMERICAN AIRLINES, INC.,
No. 17 C 01254
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Plaintiff Shadid Badshah’s motion to strike Defendant American
Airlines, Inc.’s affirmative defenses. (Mot. (Dkt. No. 10).) For the reasons stated below, we
deny Plaintiff’s motion.
Plaintiff is a former employee of American Airlines. He commenced this action on
January 13, 2017 in the Circuit Court of Cook County, Illinois, alleging national-origin, age, and
color discrimination and retaliation in violation of the Illinois Human Rights Act
(“IHRA”), 775 ILCS § 5, et seq. (Verified Compl. (Dkt. No. 1–1).) Plaintiff also claims
Defendant failed to provide him with a complete copy of his personnel file contrary to the
requirements of the Illinois Personnel Record Review Act, 820 ILCS 40, et seq. (Id.) On
February 17, 2017, Defendant removed the case to federal district court pursuant
to 28 U.S.C. § 1332. (Notice of Removal (Dkt. No. 1) ¶¶ 4–6.) Defendant filed its answer to the
complaint on February 24, 2017. (Answer (Dkt. No. 7).)
Plaintiff’s motion to strike Defendant’s affirmative defenses is governed by Federal Rule
of Civil Procedure 12(f), which states that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Motions to strike are generally disfavored because they “potentially serve only to delay,” and so
affirmative defenses “will be stricken only when they are insufficient on the face of the
pleadings.” Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).
To survive a motion to strike, an affirmative defense must satisfy a three-part test: “(1) the
matter must be properly pleaded as an affirmative defense; (2) the matter must be adequately
pleaded under the requirements of Federal Rules of Civil Procedure 8 and 9, and (3) the matter
must withstand a Rule 12(b)(6) challenge.” Sarkis’ Cafe, Inc. v. Sarks in the Park, LLC,
55 F. Supp. 3d 1034, 1039 (N.D. Ill. 2014) (citation omitted). We follow the majority view of
district court decisions in this circuit, which apply the pleading standard set forth in
Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) to affirmative defenses. See Sarkis’ Cafe,
55 F. Supp. 2d at 1040; Shield Tech. Corp. v. Paradigm Postitioning, LLC, No. 11 C 6183,
2012 WL 4120440, at *8 (N.D. Ill. Sept. 19, 2012) (“[W]e believe that the test applicable to
affirmative defenses should reflect current pleading standards, and therefore adopt the majority
view that Twombly and Iqbal apply to affirmative defenses.”); Riemer v. Chase Bank USA, N.A.,
274 F.R.D 637, 639–40 (N.D. Ill. 2011) (collecting cases).
Defendant asserts seven affirmative defenses in its answer, and Plaintiff moves to strike
all of them. (Mot. ¶¶ 9–10.) Plaintiff argues that each of Defendant’s affirmative defenses are
improper “[t]hreadbare recitals . . . supported by mere conclusory statements.” (Id. ¶ 10.) In
response, Defendant agreed to withdraw its Second, Fourth, and Fifth Defenses, without
prejudice. See, e.g., Palomares v. Second Fed. Sav. & Loan Ass’n of Chi., No. 10 C 6124,
2011 WL 2111978, at *2 (N.D. Ill. May 25, 2011) (even where a motion to strike is granted,
leave to amend the pleading is to be freely granted as justice requires under Rule 15(a), and a
party is not necessarily precluded from asserting the substantive merits of an affirmative defense
later in the case). We address the remaining disputed affirmative defenses below.
Defendant’s First Defense alleges that Plaintiff’s claims are barred to “to the extent they
involve transactions or events or seek damages for periods of time outside the applicable statute
of limitations period(s).” (Answer at 17.) Defendant argues there is a “clear legal basis” for the
First Defense, as a plaintiff seeking to litigate claims under the IHRA must file a Charge of
Discrimination with the Illinois Department of Human Rights (“IDHR”) within 180 days of the
alleged discrimination, and to the extent he fails to do so, his claims will be barred as untimely.
(Resp. at 4 (citing 775 ILCS 5/7A–102(A)(1)).) This prerequisite provides a defendant with an
affirmative defense, and Defendant has put Plaintiff on notice that his claims under the IHRA
may be barred to the extent he has failed to meet his administrative or statutory filing deadlines.
See, e.g., Salas v. Wisconsin Dep’t of Corr., 493 F.3d 913, 921 (7th Cir. 2007) (“Filing a timely
charge with the EEOC is not a jurisdictional prerequisite to suit in federal court; rather, it is an
affirmative defense akin to administrative exhaustion.”). While “bare bones conclusory
allegations” are insufficient, defenses generally “will not be struck if they are sufficient as a
matter of law or if they present questions of law or fact.” Heller, 883 F.2d at 1294. Defendant
has adequately put Plaintiff on notice as to the nature of the defense, and it is entitled to
discovery to determine whether Plaintiff has met the applicable administrative and statutory time
limits. Plaintiff’s motion to strike the First Defense is denied.
Similarly, the Third Defense alleges Plaintiff’s claims are barred to the extent that they
“relate to persons or matters which were not made the subject of a timely charge of
discrimination filed with the EEOC/IDHR, or were not investigated or conciliated by the
EEOC/IDHR.” (Answer at 17.) The Third Defense thus disclaims liability for claims based on
allegations outside the scope of Plaintiff’s charge of discrimination. The scope of Plaintiff’s
permissible claims is bound by the nature of the allegations stated in his charge of
discrimination, and therefore, Defendant has sufficiently stated the nature of the defense and may
take discovery to learn more about Plaintiff’s EEOC and/or IDHR charges of discrimination.
See Rush v. McDonald’s Corp., 966 F.2d 1104, 110 (7th Cir. 1992) (“[T]he scope of the
subsequent judicial proceedings is limited by the nature of the charges filed with the EEOC.”);
Naylor v. Streamwood Behavioral Health Sys., No. 11 C 50375, 2012 WL 5499441, at *9
(N.D. Ill. Nov. 13, 2012) (denying motion to strike affirmative defense relating to the plaintiff’s
alleged failure to include all defendants in the underlying charge of discrimination). Plaintiff’s
motion to strike the Third Defense is accordingly denied.
Defendant’s Sixth Defense asserts that Plaintiff’s claims are barred “to the extent he has
failed to fully mitigate his alleged damages or other losses as required by law,” and further states
Plaintiff must offset any damages “by interim earnings, severance pay, and any other pay
benefits as required by law.” (Answer at 18.) Although the allegation is bare of factual
specificity, “where discovery has barely begun, the failure to mitigate defense is sufficiently pled
without additional facts.” Thomas v. Exxon Mobil Corp., No. 7 C 7131, 2009 WL 377334, at *4
(N.D. Ill. Feb. 11, 2009) (internal quotation marks omitted) (quoting AAR Int’l, Inc. v. Vacances
Heliades S.A., 202 F. Supp. 2d 788, 800 (N.D. Ill. 2002)). Threadbare pleading of a mitigation
defense is permitted because defendants are usually unable to learn the factual specifics of the
plaintiff’s mitigation efforts without discovery. Id. at *2. Defendant’s Sixth Defense sufficiently
puts Plaintiff on notice that his mitigation efforts will be an issue in this case. See Naylor,
2012 WL 5499441, at *8. We therefore deny Plaintiff’s motion to strike Defendant’s Sixth
Finally, Defendant’s Seventh Defense asserts that, “assuming any of Plaintiff’s protected
rights were violated, American Airlines is not liable for punitive damages because of any
improper acts on the part of its employees as those acts were contrary to American Airlines’
good faith efforts to comply with the law by implementing policies and programs designed to
prevent such improper acts in the workplace.” (Answer at 18.) In the punitive damages context,
an employer may not be vicariously liable for the discriminatory employment decisions of
managerial agents where their decisions are contrary to the employer’s “good-faith efforts” to
comply with anti-discrimination laws. Kolstad v. Am. Dental Assoc., 527 U.S. 526, 545–46,
119 S. Ct. 2118, 2129 (1999). Defendant has stated a plausible affirmative defense based on
Kolstad, and we accordingly deny Plaintiff’s motion to strike Defendant’s Seventh Defense.
For the foregoing reasons, we deny Plaintiff’s motion to strike Defendant’s First, Third,
Sixth, and Seventh Affirmative Defenses. We also deny as moot Plaintiff’s motion to strike the
Second, Fourth, and Fifth Affirmative Defenses insofar as Defendant has agreed to withdraw
them, without prejudice. It is so ordered.
Honorable Marvin E. Aspen
United States District Judge
Dated: May 12, 2017
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