Steiner v. Wayne County, Illinois et al

Filing 23

ORDER: For the reasons set forth in the attached Memorandum and Order, the Court hereby GRANTS Plaintiff's Motion to Strike (Doc. 17 ) all six affirmative defenses presented at the end of Defendants' Answer (Doc. 12 ). Signed by Chief Judge Michael J. Reagan on 5/8/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CYNTHIA STEINER,
Plaintiff,
v.
SHERIFF MICHAEL EVERETT,
WAYNE CNTY. SHERIFF’S DEPT.,
and WAYNE CNTY. ILL.,
Defendants.

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Case No. 16-cv-1286-MJR-DGW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
I.

Introduction

This matter comes before the Court on Plaintiff’s Motion to Strike the Affirmative
Defenses (Doc. 17) set forth by Defendants in their answer to the complaint (Doc. 12).
This Court enjoys jurisdiction to hear the case as a matter of federal question
jurisdiction, pursuant to 28 U.S.C. § 1343.1 The underlying dispute contains a litany of
claims of discrimination, harassment, and retaliatory termination by Plaintiff against
her former boss, Sheriff Michael Everett, and employer, Wayne County Sheriff’s
Department and Wayne County (Doc. 1). There are 17 claims in total. Defendants

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Counts 9-17 rely on Illinois law, and closely mirror the claims under federal law. At this juncture, the
Court finds it appropriate to exercise supplemental jurisdiction (18 U.S.C. § 1367) over these claims for
purposes of judicial efficiency. If, later in the proceeding, the federal claims for some reason dissipate, the
Court reserves the right to discontinue its exercise of supplemental jurisdiction.

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answered the complaint, and in doing so, they also raised six ‘affirmative defenses’
(Doc. 12). Plaintiff responded in a timely fashion (Doc. 20). The matter is now before
the Court for a ruling.
II.

Facts

All of Plaintiff’s claims stem from two essential contentions—(1) that she was
treated unfairly on the job based on her age and gender; and (2) that she never received
appropriate accommodations for her documented disabilities.

As a culmination of

these problems, Plaintiff alleges that she was ultimately terminated in a retaliatory
fashion. Plaintiff is a 62-year-old female who was (or is) employed by the Wayne
County Sheriff’s Department (Doc. 1 at 4). Her employment began on December 1,
1996, and continued by her account until March 1, 2016, when she alleges that she was
constructively terminated (Id. at 4, 11-12). Defendants take issue with the end date of
her employment by denying it, seemingly claiming that she is still employed but is not
allowed to work because she has refused to participate in a ‘fit for duty’ examination to
assess her on-the-job capabilities (See Doc. 12 at 4, 35).2 During the relevant time period
for this case, Plaintiff was first in seniority of all of her colleagues (Doc. 1 at 4; Doc. 12 at
5).

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Defendants assert as an affirmative defense that they have not in fact terminated Plaintiff, but that she
has been unable to report to work because of her refusal to comply with administrative proceedings or to
submit to an examination (Doc. 12 at 35).

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Plaintiff alleges that while on the job she was subject to an ongoing saga of
harassment, intimidation, and unequal treatment (Doc. 1 at 4). For example, in June
2014 she claims to have been subject to verbal harassment when a co-worker accused
her of ‘flipping her tits’ at an inmate who had a medical issue (Doc. 1 at 4-5). Her
attempts to address this treatment with higher-ups were met with further mockery by
Defendant Everett (Id.). Plaintiff also tried to grieve the fact that male employees
allegedly left the bulk of cleaning duties for the females, verbally commenting on how
they preferred for females to do such work (Id. at 5). Derogatory language such as,
“bitch,” was directed at Plaintiff (Id.). After reporting these issues in a meeting with
Defendant Everett, Plaintiff’s working conditions deteriorated (Id.).
In September 2014, department positions came ‘up for bid’, a process which
happened a number of times during the course of conduct Plaintiff is grieving in this
lawsuit (Id.). Plaintiff bid on a dispatcher position, the type she held at the time, and
that she believed she was entitled to based upon a collective bargaining agreement and
seniority (Id. at 5-6). Rather than grant the position, Defendant Everett reassigned her
to ‘jailer’ and told her he did so to “stop her grievances” (Id. at 6). The dispatcher
position was given to a younger, less experienced male employee (Id.).
As time passed, harassment from male co-workers allegedly intensified (Id.).
Plaintiff attempted to report the harassment to Defendant Everett, but he told her,

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“those making the most money should do the most work”—something she took as a
reference to her age and seniority (Id.).
In October 2014, male colleagues harassed Plaintiff about an August incident,
calling her a “fucking lying bitch” that got “knocked off her high horse” (Id.). In
November 2014, Plaintiff requested an accommodation to work some shifts as a
dispatcher because of her medical conditions (Id.).

Defendant Everett refused the

request (Id.).
On November 26, 2014, Correctional Officer Curry withdrew his service weapon,
pointed it at Plaintiff, and pretended to discharge it, which caused Plaintiff to be fearful
(Id.). The weapon draw was apparently the third such incident in a few weeks (Id.).
Plaintiff spilled something in her work area in early December 2014, and as she
went to clean the area a male colleague berated her (Id. at 6-7).

As the verbal

harassment escalated, inmates attempted to intervene on Plaintiff’s behalf (Id. at 7).
That same month Plaintiff was harassed for refusing to smuggle contraband from
another correctional officer to an inmate (Id. at 7). In December of 2014, Plaintiff was
also mocked about her hearing aids (Id.).
At an unspecified time, Correctional Officer Pope allegedly drew his service
weapon in Plaintiff’s presence, causing her to fear for her safety (Id.). On January 6,
2015, Correctional Officer Curry apparently sought Plaintiff out to perform a vehicle
check in a degrading manner (Id.).
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Plaintiff alleges that by January of 2015 her medical condition continued to
deteriorate as a result of the harassment at work. On or about January 12, 2015, she
sought, and Defendant Everett denied, an accommodation to work a portion of her
weekly hours at the dispatch station—a sedentary role (Id.). She also sought assistance
from co-workers on a variety of tasks, like kitchen duty, but no one helped her (Id. at 8).
Plaintiff alleges that Defendant Everett made a disingenuine attempt to correct
the uneven sharing of workplace tasks by redistributing the workload across shifts and
banning electronic devices (Id. at 8). However, the policy shift apparently did not help
because it was not routinely enforced; so many duties still fell on Plaintiff’s shoulders
(Id.).

Around this time, Defendant Everett also scolded another employee for

voluntarily assisting Plaintiff with job duties (Id.).
Eventually, Plaintiff began taking excess vacation days to allow herself time to
recuperate from failing health (Id.). On March 23, 2015, Plaintiff allegedly supplied
Defendant Everett with a doctor’s note documenting her need for accommodations (Id.).
Defendant Everett refused to accommodate her, said no other position was available,
and then retaliated by preventing her from participating in job training (Id. at 9). Male
employees were sent to training, while females were not (Id.). Plaintiff was prevented
from receiving training on multiple occasions in March, April, and June of 2015 (Id.). In
May of 2015 positions were open for bidding, but Defendant Everett passed over
Plaintiff’s attempts to change her position (Id. at 10).
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In June and July of 2015 harassment by coworkers escalated (Id.). Male coworkers often left extra work for Plaintiff or mocked her while she was performing her
job (Id.). In August of 2015 male colleagues got preferential treatment on long shifts,
while Plaintiff did not (Id.).
Around August 28, 2015, positions opened for bidding and Plaintiff again sought
a reassignment, this time accompanying her request with medical documentation of her
need for accommodations (Id. at 11). Positions with accommodations were given to
males even though Plaintiff had seniority (Id.). In September 2015, Defendant Everett
sent Plaintiff correspondence indicating that there was no position meeting her
accommodation needs, and that she would need to complete a Fitness for Duty
examination (Id.). In the interim, he placed her on paid administrative leave (Id.).
Plaintiff refused to let Defendant Everett attend the examination, so Defendant
sent her a notice for a pre-disciplinary hearing (Id.). Apparently two members of the
disciplinary board retired before voting on the action against Plaintiff, but it is unclear if
the issue was ever heard (Id.).
In April of 2016 Plaintiff alleges that Defendants stopped paying her without
providing a formal notice of termination or any explanation of her termination (Id.).
Plaintiff alleges that the matter was never taken before an appropriate merit
commission (Id. at 12).

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Plaintiff alleges that the unwanted gestures and comments (about age, gender,
sex, and disability) created a hostile and intimidating work environment (Id.). Younger
male employees were not treated in the same fashion as she was with regard to sex, age,
or disability (Id.). The cumulative effect of these issues interfered with Plaintiff’s ability
to adequately perform her work duties (Id.).
Plaintiff splits her complaint into 17 counts, as follows: (1) sexual discrimination
under Title VII; (2) retaliation regarding sexual discrimination; (3) sexual harassment
under Title VII; (4) retaliation regarding sexual harassment; (5) age discrimination
under Title VII; (6) retaliation regarding age discrimination; (7) disability discrimination
under the Americans with Disabilities Act; (8) retaliation regarding disability; (9) sexual
discrimination under the Illinois Human Rights Act (“IHRA”); (10) retaliation regarding
state law sexual discrimination claim; (11) sexual harassment under IHRA; (12)
retaliation regarding sexual harassment under IHRA; (13) age discrimination under
IHRA; (14) retaliation regarding age discrimination under IHRA; (15) disability
discrimination under IHRA; (16) retaliation for disability discrimination under IHRA;
and, (17) retaliatory discharge under Illinois law.
Defendants responded in a single brief with a paragraph by paragraph
admit/deny style pleading, as well as via six affirmative defenses which will be
enumerated below in the legal analysis portion of this Order (Doc. 12).

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Plaintiff moved to strike the affirmative defenses in a motion and supporting
memorandum (Doc. 17).

It should be noted that the motion and accompanying

memorandum are difficult to follow because of inconsistencies. For example, in the
motion the Plaintiff says there are six affirmative defenses, but then in the
memorandum the Plaintiff says there are five (Compare Doc. 17 to Doc. 17-1 at 1). In the
memorandum the Plaintiff says the complaint has 17 counts, and also says it has 18
counts (Compare Doc. 17-1 at 1, 4). The Plaintiff also references the affirmative defenses
as first, second, third, fourth, and so on, in the memorandum, but it does not appear
that this classification of the defenses really tracks with their numerical labels in the
answer (Compare Doc. 12 to Doc. 17-1).

In any event, the Court interpreted the

substantive and legal arguments presented by both sides in considering the request to
strike. For the reasons that follow, and in spite of this confusing pleading, the Court
finds it appropriate to GRANT the Motion to Strike without prejudice.
III.

Legal Analysis

Federal Rule of Civil Procedure 12(f) allows a party to move to strike “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
FED. R. CIV. P. 12(f). Such a motion is typically disfavored, but a district court possesses
broad discretion to grant such a motion if the circumstances justify it.

See Heller

Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). To

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avoid dismissal, a defendant must present a defense in a manner consistent with the
way claims must be pled. See id.
Defenses are pleadings, and thus this Court treats them as it would treat any
claim, by applying the pleading requirements of the Federal Rules of Civil Procedure.
See id. Defenses must set forth a short plain statement of the defense, and may be
stricken if they do not present a question of law or fact sufficient on the face to satisfy
Rule 8. See id. The Seventh Circuit has not officially decided whether the TwomblyIqbal3 standard applies to affirmative defenses, but other courts in this district and other
districts in this Circuit have applied that standard. See e.g. Brown v. Kelly Services,
Inc., 2017 WL 1386188 (N.D. Ill. 2017) (collecting cases and deciding the TwomblyIqbal standard should be applied to affirmative defenses); West American Ins. Co v.
Mund, 2007 WL 1266543 (S.D. Ill. 2007) (granting a motion to strike affirmative
defenses finding that some were mislabeled as affirmative defenses when they were
mere factual disagreements, and that others were not presented with sufficient
particularity).
This Court accepts all factual allegations as true when reviewing a 12(b)(6)
motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007). To avoid dismissal for
failure to state a claim, a complaint must contain a short and plain statement of the
claim sufficient to show entitlement to relief and to notify the defendant of the

3

Bell Atlantic v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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allegations made against him. FED. R. CIV. P. 8(a)(2); Bell Atl. Corp., 550 U.S. at 555-57.
In order to meet this standard, a complaint must describe the claims in sufficient factual
detail to suggest a right to relief beyond a speculative level. Id.; Ashcroft, 556 U.S. at
678; EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). A complaint
need not contain detailed factual allegations, Scott v. Chuhak & Tescon, P.C., 725 F.3d
772, 782 (7th Cir. 2013), but it must go beyond “mere labels and conclusions” and
contain “enough to raise the right to relief above the speculative level,” G&S Holdings,
LLC v. Cont’l Cas. Co., 697 F.3d 534, 537-38 (7th Cir. 2012). The same concepts apply to
affirmative defenses. Unless an affirmative defense sets forth new facts and arguments
that, if true, will defeat a plaintiff’s claim entirely, the defense may not be sufficiently
pled. See e.g. West Am. Ins. Co., 2007 WL 1266543, *1-2.
IV.

Legal Analysis

Here, the Defendants set forth six enumerated affirmative defenses at the
conclusion of their answer to the complaint. The six defenses span less than three pages
of a 37-page brief, and are not accompanied by any substantive factual support for the
legal theories asserted therein. First, the Defendants baldly assert that the Plaintiff fails
to state a cause of action as a matter of law. The Court cannot see how this plain legal
statement is sufficient, particularly where the Plaintiff has identified numerous legal
theories and facts in support of her claim that she was treated unfairly on the job and
was ultimately terminated in a retaliatory fashion. Although a motion to dismiss for
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failure to state a claim may be presented as a freestanding motion or in conjunction
with other pleadings, such cursory treatment (in a single paragraph at the end of an
answer) will not suffice to raise the issue.
Second, Defendants claim that Plaintiff’s complaint was not brought within the
applicable statute of limitations, but this boilerplate objection is not acceptable.
Plaintiff’s complaint contains 17 distinct counts, some relying on state law, and others
on federal law. Surely not all 17 counts are precluded by the same statute of limitations.
And even if that were so, it has been less than a full calendar year since Plaintiff’s
alleged termination, so it seems improbable that at least the claims as to retaliatory
termination would be time-barred already.
Third, Defendants argue that Plaintiff should be barred from bringing her
complaint because she failed to comply with the ‘grievance procedure,’ which Plaintiff
further clarifies in her response as a reference to a collective bargaining agreement.
Administrative exhaustion can be a valid affirmative defense, but Defendant has not set
forth any facts detailing the administrative procedures that Plaintiff failed to comply
with, and the defense is so weakly presented that the Court is not willing to infer entire
administrative or grievance procedures to speculate as to the potential validity of such a
defense. See Woodford v. Ngo, 548 U.S. 81, 88-91 (2006) (discussing the importance of
administrative exhaustion).

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Fourth, Defendants argue that a settlement agreement precludes Plaintiff’s
Complaint. Again, this may be true, and if true, this may be a valid defense—but the
defense is presented in such a cursory fashion that the Court will not infer an entire
universe of facts to support the potential defense in lieu of adequate pleading by the
Defendants.
Fifth, Defendant Everett claims that he is entitled to qualified immunity.
“Qualified immunity shields government officials from civil damages liability unless
the official violated a statutory or constitutional right that was clearly established at the
time of the challenged conduct.” Ewell v. Toney, 853 F.3d 911 (7th Cir. 2017), quoting
Reichle v. Howards, 566 U.S. 658 (2012). Once a defendant raises qualified immunity,
the burden shifts to the Plaintiff to show the violation of a clearly established right.
However, here, where the assertion of qualified immunity is so bare that Defendant
does not even identify which acts he took that deserve immunity, or why the rights he
allegedly violated were not clearly established, this Court will not yet shift the burden
to the Plaintiff.
Sixth, Defendants assert that Plaintiff has not returned to work because she has
refused to either attend a fit-to-work hearing/exam or to tender information about her
ability to work, and thus she has abandoned her employment.

This ‘affirmative

defense’ does set forth facts contrary to those in the complaint, but because this
‘defense’ is no more than a direct denial of the allegations in the complaint, and a
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restatement of information presented in the body of the answer, the Court finds it
unnecessary to allow this assertion to proceed as an affirmative defense at this juncture.
In sum, the Court is granting Plaintiff’s Motion to Strike as to all six affirmative
defenses because the pleading of the defenses is so threadbare that even if facts may
exist in a conceptual universe to support the theories set forth, the Court finds it
improper to either infer or require the Plaintiff to infer what those facts might be. This
Court does not take kindly to boilerplate filings, so the parties are urged to diligently
marshal the presentation of facts and legal arguments as the case proceeds. The grant
of the Motion to Strike is done without prejudice to the Defendants, such that the
various theories presented may be presented in a more thorough fashion at a later date
if the record supports such action.
V.

Conclusion

The Court hereby GRANTS Plaintiff’s Motion to Strike (Doc. 17) all six
affirmative defenses presented at the end of Defendants’ Answer (Doc. 12).
IT IS SO ORDERED.
DATED: May 8, 2017

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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