Nickens v. State Employees Credit Union of Maryland, Inc. et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 8/4/14. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TERRY LEE NICKENS,

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Plaintiff,

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v.

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STATE EMPLOYEES CREDIT
UNION, INC., et al.

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Civil Action No. RDB-13-1430

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Defendants.
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MEMORANDUM OPINION
Plaintiff Terry Lee Nickens filed a fifteen-count Second Amended Complaint (ECF
No. 25) against corporate defendant State Employees Credit Union, Inc. (“SECU”) and
individual defendants Carlos M. Edwards, Rodney H. Staatz, Tracy Marie TempletonShank, and Christopher X. Groshko on October 25, 2013, alleging discrimination on the
basis of age and race. Specifically, Plaintiff contends she was targeted and eventually
terminated by Defendants as part of a program to eliminate both African American
employees and employees over forty years of age from SECU. In response to the fifteencount Second Amended Complaint, Defendants filed an Answer (ECF No. 26) containing
specific admissions and denials along with a list of affirmative defenses. Plaintiff then filed
a Motion to Strike (ECF No. 27) pursuant to Federal Rule of Civil Procedure 12(f) in
regards to Defendants’ Answer to the Second Amended Complaint (ECF No. 26). Plaintiff
challenges the Answer on the grounds that the affirmative defenses raised by Defendants
lack a sufficient factual basis under the heightened pleading standard of Bell Atlantic v.

Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Plaintiff claims
that because the responsive pleading does not contain sufficient facts to make it plausible
on its face, it does not meet the standard of Federal Rules of Civil Procedure 8 and 9. In
response, Defendants contend that their affirmative defenses are sufficiently supported
when taken in conjunction with the other factual assertions contained in the Answer. The
parties’ submissions have been reviewed and no hearing is deemed necessary. See Local
Rule 105.6 (D. Md. 2011). Given affirmative defenses one through five are simple denials
of liability and affirmative defense six is sufficiently supported, Plaintiff has failed to show
that she has suffered any prejudice. As a result, Plaintiff’s Motion to Strike (ECF No. 27) is
DENIED.
BACKGROUND
Plaintiff Terry Lee Nickens was an employee of Defendant SECU from August 1995
until her termination in June 2012. Plaintiff was hired by Defendant SECU as a part-time
teller in August 1995, but was eventually retained as a full-time employee following her
completion of a ninety-day probationary period. Sec. Am. Compl., 5, ECF No. 25. During
her seventeen years of employment, Plaintiff received numerous promotions, eventually
becoming a Lead Financial Services Counselor (“Lead FSC”) for her specific branch. Id.
Plaintiff also claims that prior to her termination, she received a plethora of awards and
personal commendations. Id.
The discriminatory conduct allegedly began in 2008 upon the implementation of the
“Different Direction” program by the CEO of SECU, Rodney Staatz. Id. Specifically,
Plaintiff claims that the slogan was adopted as part of a program to target and terminate
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both elderly and African-American employees.1 Id. Plaintiff also claims that as part of the
“Different Direction” strategy, Defendant SECU announced in August 2012 that it would
transfer one third of its workforce to a servicing company, “S3”. Id. at 10. In being
transferred, Plaintiff contends that former SECU employees had to reapply for their jobs
and lost seniority, retirement, and other employment benefits. Id. at 10–11.
Following the forced retirement of Patricia Brune, who was a Lead FSC and
Plaintiffs immediate supervisor, Defendants Carlos Edwards and Tracey Tempelton-Shank,
allegedly gave all of Ms. Brune’s responsibilities to Plaintiff. Id. It is further alleged that
Defendants neither increased Plaintiff’s pay, nor relieved her of any prior responsibilities in
exchange for these new undertakings. Id. Despite attempting to satisfy all of the new
responsibilities, Plaintiff was subsequently disciplined in an undisclosed manner by
Defendants Edwards and Templeton-Shank for poor performance. Id. at 6–7. Plaintiff
contends that this reallocation of responsibilities was designed to force her to resign, in
keeping with the company wide attempt to hire younger, Caucasian individuals. Id. at 7.
After opting to abolish the position of “Lead FSC” upon the firing of Ms. Brune,
Defendant SECU decided to re-establish it in 2010. Id. Plaintiff interviewed for the
position in July 2010, following the encouragement of Defendants Edwards and
Templeton-Shank. Id. Plaintiff was eventually hired as a Lead FSC in October 2010, a
In terms of age discrimination, Plaintiff claims that the implementation of the “Different Direction”
strategy resulted in older employees being replaced by employees under the age of forty. Sec. Am. Compl.,
6, ECF No. 25. Specifically, Plaintiff maintains Defendants forced her immediate supervisor, Patricia Brune,
to retire in September 2008. Id. In terms of race discrimination, Plaintiff alleges Defendants’ program was
successful in terminating a number of exceptional African-American employees in its Columbia, Baltimore,
Gwynn Oak, and Linthicum, Maryland branches. Id. Specifically, Plaintiff contends that Defendants
terminated Security Manager Carla Nelson under the guise that the position had been abolished. Id.
Following her termination, the Security Manager position was filled by a young Caucasian employee with less
experience. Id.

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promotion from her previous position as a Senior FSC.2 Id.
Upon being hired as a Lead FSC, Plaintiff claims she was unfairly targeted by
Defendants and disciplined for relatively minor or common infractions.3 Plaintiff was
eventually terminated on June 4, 2012, after she removed a hold on an account without
prior authorization. Id. at 9. The removal of the hold allegedly caused SECU to experience
a loss of one thousand nine hundred dollars ($1,900). Id.

Plaintiff was informed of her

termination and escorted from the property following an informal meeting between her and
Defendants Edwards and Templeton-Shank. Id. Plaintiff cites numerous instances where
younger employees made similar mistakes but were not disciplined.4 Id. at 8–11. Plaintiff
further notes that she was successful in her claim for unemployment due to Defendants’
failure to show that she was terminated with cause. Id. at 8.
Plaintiff originally filed a fifteen-count Second Amended Complaint on October 23,
2013 seeking back pay, front pay, lost benefits, compensatory damages, punitive damages,
and the sanitization of her personnel employment record, claiming that her termination was
the result of both institutional and individual discrimination based on her age and race. Id.
Although Lead FSC was apparently a more prestigious position, which entailed additional responsibilities, it
only paid six hundred dollars more annually than Plaintiff’s prior position. Sec. Am. Compl., 7, ECF No. 25.
Moreover, the responsibilities given to Plaintiff as a Lead FSC were apparently equal to the responsibilities
Plaintiff had as a Senior FSC following the termination of Ms. Brune. Id. Therefore, it is contended that
Plaintiff performed the duties of a Lead FSC for three years without just compensation or administrative
support. Id.
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Plaintiff was first disciplined in the latter portion of 2011, after failing to pick up debris which had fallen
from the ceiling. Sec. Am. Compl., 8, ECF No. 25. Plaintiff contends that this discipline was unfair, given
that Defendant Edwards likewise failed to address the issue despite being able. Id. As punishment, Plaintiff
was placed on a Performance Improvement Plan (“PIP”), which she claims is a tantamount to a “final notice
before termination.” Id.
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The worst of these alleged instances of indiscretion, perpetrated by Defendant Edwards on or around April
2013, could have potentially cost SECU in excess of one hundred thousand dollars ($100,000). Sec. Am.
Compl., 10, ECF No. 25.

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Defendants responded on December 23, 2013, filing an Answer to the Second Amended
Complaint. Answer Sec. Am. Compl., ECF No. 26. In terms of form, the Answer contains
admissions and denials of specific paragraphs of the Second Amended Complaint and
concludes with a number of affirmative defenses.

Id.

The section containing the

affirmative defenses reads as follows:
FIRST DEFENSE
The Second Amended Complaint and each of the purported claims for relief
asserted against the Defendants fails to state a claim upon which relief can be
granted and/or fails to allege facts sufficient to constitute a cause of action
against the Defendants.
SECOND DEFENSE
The Defendants did not commit the wrongs as alleged.
THIRD DEFENSE
The Defendants are not legally responsible for any injuries or damages
allegedly sustained by Plaintiff about which she complains.
FOURTH DEFENSE
No act or omission on the part of the Defendants caused or contributed to
any of the injuries or damages claimed by Plaintiff and, therefore, Plaintiff is
not entitled to recovery from the Defendants.
FIFTH DEFENSE
Any injuries and damages alleged to have been suffered or incurred by
Plaintiff resulted from the acts and omissions of persons or entities which are
not parties to this action or for which the Defendants cannot be held legally
responsible.
SIXTH DEFENSE
Plaintiff’s claims are barred in whole or in part by the applicable statute of
limitations.
Id. at 25–26. Plaintiff then filed a Motion to Strike on January 3, 2013, requesting this
Court to strike the affirmative defenses under Federal Rule of Civil Procedure 12(f) for
failing to comply with the pleading requirements of Federal Rules of Civil Procedure 8 and
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9. Mot. Strike Answer Sec. Am. Compl., ECF No. 27. In response, Defendants claim that
the denial of allegations in the Second Amended Complaint is sufficient to satisfy the
heightened pleading standard in regards to the affirmative defenses. Resp. Mot. Strike, ECF
No. 33.
STANDARD OF REVIEW
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a “court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). Thus, a defense may be excised if it does not
meet the pleading requirements of Rules 8 and 9. Haley Paint Co. v. E.I. Du Pont De Nemours
& Co., 279 F.R.D. 331, 335 (D. Md. 2012) (citing McLemore v. Regions Bank, 2010 WL
1010092 (M.D. Tenn. Mar. 18, 2010)).

The district court enjoys wide discretion in

determining whether to strike an affirmative defense under Rule 12(f) in order “to minimize
delay, prejudice and confusion by narrowing the issues for discovery and trial.” Id. at 336
(D. Md. 2012) (quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D. Kan. 2009)).
In order for a pleading to be valid under Rule 8(b) of the Federal Rules of Civil
Procedure, it “must state in short and plain terms its defenses to each claim asserted against
it,” and “admit or deny the allegations asserted against it by an opposing party.” Fed. R.
Civ. P. 8(b).

Moreover, under Rule 8(c) of the Federal Rules of Civil Procedure a

responsive pleading must “affirmatively state any avoidance or affirmative defense,” which
would defeat or mitigate the legal consequences of otherwise unlawful conduct. Fed. R.
Civ. P. 8(c).
This Court has held that affirmative defenses are subject to the pleading
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requirements articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v.
Iqbal, making it so that affirmative defenses must be pled in such a way as to “ensure that an
opposing party receives fair notice of the factual basis for an assertion contained in a [ ]
defense.” Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D. Md. 2010). While
this standard “does not require the assertion of all supporting evidentiary facts,” it does
require that, “[a]t a minimum, [ ] some statement of the ultimate facts underlying the
defense . . . must be set forth, and both its non-conclusory factual content and the
reasonable inferences from that content, must plausibly suggest a cognizable defense
available to the defendant.” Ulyssix Techs., Inc. v. Orbital Network Engineering, Inc., 2011 WL
631145, at *15 (D. Md. Feb. 11, 2011) (citation omitted).
Nevertheless, the United States Court of Appeals for the Fourth Circuit has noted
that Rule 12(f) motions are generally viewed with disfavor “because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a
dilatory tactic.” Dawson v. Winter, 2007 U.S. Dist. LEXIS 3995, *8 (D. Md. 2007), aff’d 2008
U.S. App. LEXIS 10225 (4th Cir. 2008) (citing Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001) (internal citations and quotations omitted)). Accordingly, “in
reviewing motions to strike defenses, federal courts have traditionally ‘view[ed] the pleading
under attack in a light most favorable to the pleader.’ ” Palmer v. Oakland Farms, Inc., 2010
U.S. Dist. LEXIS 63265, at *4, 2010 WL 2605179 (W.D. Va. June 24, 2010) (internal
quotation omitted). Moreover, motions under Rule 12(f) usually are “only granted when
the challenged allegations ‘have no possible relation or logical connection to the subject
matter of the controversy’ or ‘cause some form of significant prejudice to one or more of
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the parties to the action.’ ” Moore v. Novo Nordisk, Inc., 2011 WL 1085650, *8 (D.S.C. Feb.
10, 2011) (citing 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §§
1380, 1382 (West 2009)). Finally, when affirmative defenses are stricken, the defendant
should normally be granted leave to amend. Banks v. Realty Mgmt. Serv., 2010 U.S. Dist.
LEXIS 7501, at *3, 2010 WL 420037 (E.D. Va. Jan. 29, 2010) (citing 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1381 (3d ed.2004)).
ANALYSIS
Plaintiff argues that each of the six affirmative defenses asserted by Defendants
should be stricken for failing to meet the minimum pleading standards under Rules 8 and 9
of the Federal Rules of Civil Procedure. Mot. Strike Answer Sec. Am. Compl., 1, ECF No.
27. In terms of the sufficiency of pleading, Plaintiff contends that Defendant’s responsive
pleading does not meet the mandates of Bell Atlantic v. Twombly and Ashcroft v. Iqbal because
it does not contain specific facts supporting the affirmative defenses. Id. Defendants
respond by stating that the specific admissions and denials contained in Section V of their
answer provide enough facts to comply with the heightened pleading standard of Twombly
and Iqbal. Resp. Mot. Strike, 3–5, ECF No. 33. Finding that the affirmative defenses are
either substantially supported or fail to prejudice Plaintiff, Plaintiff’s Motion to Strike is
denied.
I. Affirmative Defenses One Through Five
Plaintiff first seeks to have affirmative defenses one through five stricken for failing
to meet the heightened pleading standards under Twombly and Iqbal. Answer Sec. Am.
Compl., 23–25, ECF No. 26. On their face, it is clear that none of the listed affirmative
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defenses can be considered true affirmative defenses according to Rule 8(c). See Fed. R.
Civ. P. 8(c). Where traditional affirmative defenses can absolve an individual of liability
regardless of actual wrongdoing, these allegations solely point out specific alleged defects in
the Plaintiff’s prima facie case. See Answer Sec. Am. Compl., 23–25, ECF No. 26. This
Court has previously found that simple denials of liability fall outside of the definition of
“affirmative defenses.” See, e.g., Haley Paint Co. v. E.I. Du Pont De Nemours & Co., 279
F.R.D. 331, 337 (D. Md. 2012) (holding that “Failure To State A Claim” was not technically
an affirmative defense). However, despite being mislabeled, the assertion of defenses that
are not truly “affirmative” is merely duplicitous and does not prejudice the opposing party.
Coach, Inc. v. Kmart Corporations, 756 F. Supp. 2d 421, 431 (S.D.N.Y. 2010). Given all of
these issues will continued to be litigated, are logically related to the proceedings, and
Plaintiff has experienced no measurable prejudice, taking such a “drastic measure” under
Rule 12(f) is clearly unnecessary. For these reasons, Plaintiff’s Motion to Strike these five
affirmative defenses is denied.
II. Affirmative Defense Six – Statute of Limitations
Plaintiff also seeks to have the sixth affirmative defense stricken on the basis that the
Answer to the Second Amended Complaint fails to allege sufficient facts to meet the
heightened pleading standard. Unlike the previous “affirmative” defenses, the expiration of
the applicable statute of limitations is a valid affirmative defense under Rule 8(c) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(c). Citing the rules of this Court, an
affirmative defense pursuant to the expiration of the statute of limitations must “reference
the appropriate statute of limitations or the operative dates.” Ulyssix Technologies, Inc. v.
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Orbital Network Eng'g, Inc., No. ELH-10-2091, 2011 WL 631145 (D. Md. Feb. 11, 2011). In
addition, this Court has held that “Motions to strike under Rule 12(f) . . . should not be
granted absent a showing of undue prejudice.” Provident Life & Acc. Ins. Co. v. Cohen, 137 F.
Supp. 2d 631, 632 (D. Md. 2001) (citing Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1380 at 647–51).
Applying this standard, it is clear that Defendants have included sufficient
information to withstand the Motion to Strike. In their Answer to the Second Amended
Complaint, Defendants admitted that Plaintiff was employed by Defendant SECU for the
relevant sixteen year period.

Answer Am. Compl., 4–5, ECF No. 26.

Specifically,

Defendants admitted that Plaintiff was employed by Defendant SECU as a Senior FSC
from January 1, 2005 to October 10, 2010 and a Lead FSC from October 11, 2010 until her
termination on June 4, 2012.

Id. at 5.

While Defendants do deny that the events

surrounding the alleged violations set forth in the Second Amended Complaint occurred,
they clearly do not dispute that Plaintiff was employed by SECU when Plaintiff alleges the
discriminatory conduct occurred. See id. at 4–5. For example, Defendants admit that
Plaintiff was terminated on June 4, 2012 and that she was employed by SECU during the
latter portion of 2011, when the incident involving ceiling debris occurred.

See id.

Therefore, Defendants substantially complied with the mandate of Ulyssix Technologies by
“referencing the operative dates.” Likewise, given Defendants have admitted to Plaintiff’s
employment with SECU during the relevant period, Plaintiff has not suffered any prejudice
in her ability to rebut the affirmative defense stated by Defendants. Cf. Moore, 2011 WL
1085650 at *8 (holding that a Motion to Strike under Rule 12(f) should only be granted
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where the challenged allegations “cause some form of significant prejudice to one or more
of the parties to the action.”)
CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Strike the Second Amended
Complaint (ECF. No. 27) is DENIED. A separate Order consistent with this Opinion will
follow.

Dated: August 4, 2014

__________/s/____________________
Richard D. Bennett
United States District Judge

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