Long v. Welch & Rushe, Inc.

Filing 28

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/30/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LINDA LONG
:
v.

:

Civil Action No. DKC 13-3712

:
WELCH & RUSHE, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this sexual
harassment

case

are

the

motion

to

dismiss

Defendant’s

counterclaim (ECF No. 15), and a motion to strike Defendant’s
affirmative defenses (ECF No. 16), both filed by Plaintiff Linda
Long.

The issues have been fully briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, Plaintiff’s motion to dismiss will be
denied.

Plaintiff’s motion to strike affirmative defenses will

be granted in part and denied in part.
I.

Background
On December 9, 2013, Plaintiff Linda Long filed a complaint

against

Defendant

Welch

&

Rushe,

Inc.

(“Welch

&

Rushe”

or

“Defendant”), alleging various violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

According

to the complaint, Plaintiff had a romantic relationship in the
early nineties with David Welch, the Chief Executive Officer of

Welch & Rushe.

(ECF No. 1 ¶ 6).

Plaintiff asserts that in

October 2010, long after their romantic relationship ended, Mr.
Welch contacted her to offer her a job with his company as a
sales

representative

in

the

service

department.

Plaintiff

accepted the position and was employed with Welch & Rushe as a
sales representative from October 10, 2010 to April 27, 2012.
(ECF No. 1 ¶ 6).

Plaintiff states that:

[b]eginning in February of 2011, Mr. Welch
made
attempts
at
reigniting
a
sexual
relationship with Ms. Long.
Mr. Welch’s
unwanted sexual advances included sexually
explicit
gestures,
comments,
and
text
messages to Ms. Long’s work-issued phone.
Mr. Welch progressed cautiously, exercising
typical sexual harasser behavior by testing
Ms.
Long’s
boundaries,
starting
with
innocuous physical contact such as hugs, and
then quickly escalating to inappropriate
sexual advances.
(Id. ¶ 10).

Plaintiff alleges that in the summer of 2011, Mr.

Welch began using his position as CEO to force Ms. Long into
interactions with him.

(Id. ¶ 16).

Plaintiff states that she

feared that if she opposed Mr. Welch’s demands, she would lose
her job.

Plaintiff avers that on August 26, 2011, Mr. Welch

requested her presence in his office and made sexual advances
toward

her.

Plaintiff

states

that

“under

the

continued

pressure, and with the hope that compliance would free her from
Mr. Welch’s constant harassment, Ms. Long finally complied and
reluctantly

performed

oral

sex

2

on

Mr.

Welch.”

(Id.

¶

18).

Plaintiff asserts that in September and December 2011, Mr. Welch
again

demanded

Plaintiff’s

sexual advances at her.
Welch

attempted

to

presence

in

his

office

and

made

She states that in December 2011, Mr.

pull

Plaintiff

into

the

bathroom

in

his

office, Ms. Long resisted “and ultimately screamed to get away.”
(Id. ¶ 19).
Long

by

The next day, “Mr. Welch took action against Ms.

transferring

her

out

of

her

position

as

a

sales

representative and into a less desirable position with little to
no

responsibilities.”

(Id.

¶

20).

Ms.

Long

states

that

Defendant terminated her on April 27, 2012, citing a companywide reduction in workforce.
charge

with

the

EEOC

on

(Id. ¶ 21).

September

13,

Plaintiff filed a

2012

(ECF

No.

20-1)

alleging sex discrimination and retaliation, and the EEOC issued
a right to sue letter on September 26, 2013 (ECF No. 20-2).
Plaintiff filed a complaint in this court on December 9, 2013,
asserting claims under Title VII for hostile work environment,
quid pro quo harassment, and retaliation.
On

January

counterclaim.
defenses.

27,

2014,

(ECF No. 7).

Defendant

filed

an

answer

and

The answer includes ten affirmative

In the counterclaim, Defendant asserts that during

her employment with Welch & Rushe, Ms. Long received a copy of
the employee manual, which contained certain company policies.
Defendant contends that it learned in early 2012 that Ms. Long
was using her company vehicle for personal trips in violation of
3

company policy, “including the Use of Equipment and Vehicles
policy.”

(ECF No. 7, at 8).

Defendant states that about a

month later, “Welch & Rushe’s Fleet Manager conducted a random
routine audit of ten Company vehicles and discovered that Ms.
Long

had

been

expenses.”

using

her

(Id.).

corporate

credit

card

for

personal

Welch & Rushe states that it discovered

“that Ms. Long used her corporate credit card to buy more fuel
tha[n] her vehicle could actually hold and at times when the GPS
revealed her car was parked at home. . . . In other words, Ms.
Long used her corporate credit card to put gas into another
vehicle.”
revealed

Defendant
“at

conducted

least

[twenty-four]

a

full

investigation

instances

of

use

which
of

the

corporate credit card for non-business purposes and instead for
Ms.

Long’s

Plaintiff

personal
after

benefit.”

this

Defendant

investigation,

terminated on April 27, 2012.

did

although

not
she

terminate
was

later

Defendant also states that after

Ms. Long was terminated, she began making false accusations of
harassment and discrimination against them.

(Id. at 9).

It

further asserts that “[a]fter filing a charge of discrimination
with

the

virtually

EEOC

containing

identical

to

detailed

those

in

her

and

false

[c]omplaint,

allegations
Ms.

Long

contacted current and former Welch & Rushe employees, including
former management personnel, and restated her false allegations
to those individuals.”

(Id.).
4

Defendant

asserts

the

following

six

counterclaims:

(1)

malicious defamation; (2) negligent defamation; (3) false light;
(4)

conversion;

enrichment.

(5)

trespass

to

chattels;

and

(6)

unjust

On February 14, 2014, Plaintiff filed motions to

dismiss the counterclaims and to strike some of the affirmative
defenses.

(ECF Nos. 15 & 16).

Both motions have been fully

briefed.
II.

Analysis
A.

Plaintiff’s Motion to Dismiss Counterclaims

Plaintiff argues that the counterclaims should be dismissed
for

multiple

reasons.

Plaintiff

asserts

that

conversion,

trespass to chattels, and unjust enrichment counterclaims do not
arise out of the same set of operative facts that make up the
Title

VII

subject

claims,

matter

malicious

thus

they

must

jurisdiction.

defamation,

be

dismissed

Plaintiff

negligent

for

contends

defamation,

and

lack
that

false

of
the

light

counterclaims are either time-barred or precluded by absolute
judicial privilege.
1.
Conversion, Trespass to Chattels, and Unjust
Enrichment (Counterclaims IV-VI)1
Because
diversity
1367(a)

the

court

jurisdiction
provides

the

has
over

only

neither
the

counterclaims,

possible

1

federal

basis

for

question
28

U.S.C.

nor
§

jurisdiction.

The parties refer to these counterclaims as the “theftbased counterclaims.”
5

Supplemental

jurisdiction

exists

under

that

provision

over

“claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy

under

Article

Constitution.”
counterclaims

There
are,

by

is

no

definition,

jurisdiction of the court.
(4th Cir. 1988).2

III

of

the

dispute
within

United
that
the

States

compulsory
supplemental

Painter v. Harvey, 863 F.2d 329, 331

A compulsory counterclaim “arises out of the

transaction or occurrence that is the subject matter of the
opposing party’s claim.” Fed.R.Civ.P. 13(a).
Determining

whether

counterclaims

are

compulsory

or

permissive requires four separate inquiries:
(1) Are the issues of fact and law raised in
the claim and counterclaim largely the same?
(2) Would res judicata bar a subsequent suit
on the party’s counterclaim, absent the
compulsory
counterclaim
rule?
(3)
Will
substantially the same evidence support or
refute
the
claim
as
well
as
the
counterclaim? and (4) Is there any logical
relationship
between
the
claim
and
counterclaim?
2

While the Fourth Circuit has also said that permissive
counterclaims do not fall within the court’s supplemental
jurisdiction, that view is apparently not unanimous. See, e.g.,
Marchand v. Chase Bank USA, N.A., No. CV 10-09805 DDP (JCx),
2011 WL 1296711 (C.D.Cal. 2011).
Nor is it entirely clear
whether the tests for supplemental jurisdiction and compulsory
counterclaims are “equivalent,” see
Williams v. Long, 558
F.Supp.2d 601, 603 n.1 (D.Md. 2008), or whether one is “more
stringent” than the other, see Branhaven, LLC v. Beeftek, Inc.,
965 F.Supp.2d 650, 662 (D.Md. 2013). In this case, because the
counterclaims at issue are compulsory, it is not necessary to
resolve those issues.
6

Painter, 863 F.2d at 331.

It is not necessary to “answer all

these questions in the affirmative for the counterclaim to be
compulsory”; rather, the inquiries serve as a “guideline.”

Id.

“Where . . . the same evidence will support or refute both the
claim and counterclaim, the counterclaim will almost always be
compulsory.”

Id. at 332.

This “same evidence” test, however,

is not “the exclusive determinant of compulsoriness under [Rule
13(a)]

because

it

is

too

narrow

transaction or occurrence.”

a

definition

of

a

single

A counterclaim may arise from the

same “transaction or occurrence,” and thus be compulsory under
Rule

13(a),

“even

though

the

evidence

needed

to

prove

counterclaims

in

counts

the

opposing claims may be quite different.”
Plaintiff
through

VI

are

asserts

that

permissive,

the
rather

than

compulsory,

court lacks subject matter jurisdiction.

thus

IV
the

(ECF No. 15, at 9).

Plaintiff believes that “[t]here are little to no overlapping
issues of fact and no overlapping issues of law between Ms.
Long’s

claims

counterclaims.”

under

Title

VII

and

Defendant’s

(ECF No. 15, at 11).

theft-based

Plaintiff asserts that

the only link between the Title VII claims and the three “theftbased counterclaims” is the parties’ employment relationship,
which
argues

is

insufficient

that

“[w]hile

to
Ms.

establish
Long’s

7

jurisdiction.

claims

will

focus

Plaintiff
on

the

establishment
Long,

of

the

personally

and

Defendant’s
extensive

rebuttal,
factual

president’s

conduct,

professionally,
Defendant’s

its

and

impact

the

into

Ms.

Ms.

countering

counterclaims

investigations

on

would
Long’s

of

require
alleged

improper use of her corporate card and why Defendant failed to
act

internally

or

judicially

on

the

matter.”

(Id.

at

12).

Defendant counters that the counterclaim will require “the same
witnesses,

relate

to

the

same

set

of

underlying

occurred over less than a two year time period.”
at 11-12).

facts,

and

(ECF No. 19,

Defendant explains:
[t]he claims each involve the Plaintiff’s
propensity for lying both during and after
her
employment.
Further,
the
facts
necessary to defend against Plaintiff’s
claims of sexual harassment and retaliation
are grounded in Welch & Rushe’s Theft
Related
Claims
because
Plaintiff
was
terminated as part of a reduction in work
force.
Her
selection
for
termination
pursuant to this reduction was based on a
number
of
factors,
one
of
which
was
Plaintiff’s
prior
performance
and
work
history, which included her then-recent
theft of company property for personal use.

(Id.

at

12)

Plaintiff’s

(emphasis

termination

added).
occurred

Defendant
“mere

points

months

out

after

that

Welch

&

Rushe discovered that she had converted company property for her
personal use.”
Plaintiff
work

(Id.).
asserts

environment

three

sexual

claims

under

harassment;

8

Title

quid

pro

VII:

hostile

quo

sexual

harassment; and retaliation.
harassment

claim,

once

a

As to the quid pro quo sexual

prima

facie

showing

is

made,

an

inference of discrimination arises and the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason
for the employment action in question.

See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-03 (1973).

Similarly, if

Plaintiff makes a prima facie case of retaliation, the burden
shifts to the employer to offer a non-discriminatory basis for
the adverse employment action.

See Matvia v. Bald Head Island

Mgmt., Inc., 259 F.3d 261, 271 (4th Cir. 2001).

Defendant takes

the position that Plaintiff’s alleged misuse of company property
played a role in its decision to terminate her.
supporting

the

Defendant’s

“theft-based

affirmative

counterclaims”

defense

to

the

Thus, the facts

will

Title

also

up

claims

VII

make

of

legitimate non-discriminatory reasons.
Plaintiff

responds

that

claims

to

theft-related

“Defendant’s
Ms.

Long’s

attempt

to

claims

of

tie

its

sexual

discrimination by now claiming that the alleged theft played a
part in Ms. Long’s terminate is a ruse, and should be granted no
value.”

(ECF No. 24, at 8).

defense

counsel

position

to

statement

the
of

EEOC

Plaintiff points to a letter from
setting

[Defendant]

9

in

forth

“the

response

preliminary
to

Charging

Party’s Charge.”

(ECF No. 24-1, at 1).3

In this letter, defense

counsel stated that Ms. Long was not terminated as a result of
her alleged use of company property for her personal use.
at 2).4

(Id.

Plaintiff attempts to use this position statement to

refute Defendant’s current argument that the facts surrounding
the “theft-based counterclaims” will be used to show legitimate,
non-discriminatory reasons for termination.
too much weight on this letter.

Plaintiff places

Indeed, defense counsel stated

in the opening paragraph that “[t]his letter will constitute the
preliminary position statement.”

(Id. at 1) (emphasis added).

Furthermore, the letter includes the following disclaimer:
[i]n submitting this position statement,
Respondent does not intend to waive any
defenses it may have to the Charge or in any
way prejudice itself with respect to any
issue,
whether
of
a
procedural
or
substantive nature.
In addition, the
information
contained
herein
is
being
submitted on the basis of the author’s
current understanding of the facts, which

3

The letter may be considered on a motion to dismiss for
lack
of
subject
matter
jurisdiction.
See
Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991).
4

Defense counsel explained that Defendant decided to
confront Ms. Long, “and [] if she admitted improper use of the
card, her gas card and car privilege would be suspended. . . .
If, however, she denied the abuse, she would be terminated.”
(ECF No. 24-1, at 2).
When confronted, Ms. Long claimed that
her husband stole the card and used it without her knowledge.
Defendant decided to reduce her privileges as a proportionate
response, but stated in the letter to the EEOC that it did not
terminate her based on this incident.
10

could
change
gathered.

as

more

(Id. at 1 n.1) (emphasis added).

information

is

Thus, Defendant’s statement

that Plaintiff was not terminated on the basis of the alleged
use of company property for personal use in this preliminary
position

statement

does

not

necessarily

negate

its

current

argument that the alleged use of company property played a role
in the decision to terminate Plaintiff.

In the answer to the

complaint, Defendant cited a reduction in workforce as a reason
for

terminating

Plaintiff.

In

the

preliminary

position

statement, Defendant represented that it evaluated the amount of
income

generated

by

each

employee

and

individuals to let go, including Ms. Long.

identified

(Id. at 3).

five
In the

opposition to Plaintiff’s motion to dismiss the counterclaims,
Defendant states that it “will defend the termination on the
grounds that Plaintiff was terminated as part of a reduction in
work

force

based

on

disciplinary action.”

a

number

of

factors

including

her

(ECF No. 19, at 14) (emphasis added).

Plaintiff’s ability to recover under Title VII appears to be at
least partially dependent on her ability to rebut Defendant’s
legitimate non-discriminatory reason for Ms. Long’s termination.
See, e.g., Harrison v. Grass, 304 F.Supp.2d 710, 714 (D.Md.
2004) (“while the legal and factual issues may not be ‘largely’
the

same,

there

are

significant

11

points

of

overlap.

In

particular, questions as to whether [plaintiff] stole and why he
was expelled are likely to bear importantly on both sets of
claims.”); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 86 F.R.D.
694, 696 (E.D.N.C. 1980) (“if essential facts alleged by one
party enter into and constitute a part of the cause of action
set

forth

in

the

opposing

party’s

counterclaim,

that

counterclaim is compulsory even though it may not be precisely
identical to the federal cause of action and even though the
counterclaim embraces additional allegations.”).
foregoing,

the

first

inquiry

under

Painter

Based on the

counsels

against

dismissing these counterclaims.
With regard to the second inquiry – whether res judicata
would bar the “theft-based counterclaims” if not asserted in the
present action – this factor is not conclusive as to whether the
counterclaim

is

permissive

or

compulsory.

In

Maryland,

the

doctrine of res judicata:
bars the litigation of a claim if (1) the
parties in the present litigation are the
same or in privity with the parties to the
earlier litigation; (2) the claim presented
in the subsequent action is ‘identical to
that determined or that which could have
been raised and determined in the prior
litigation’; and (3) there was a final
judgment
on
the
merits
in
the
prior
litigation.
Williams,

558

adjudication

F.Supp.2d
of

the

at

Title

605.
VII

12

Even
claims

if
would

full
not

and

fair

preclude

Defendant from later asserting the “theft-based counterclaims,”
“the res judicata test cannot be the controlling one.”
863 F.2d at 333.

Painter,

The United States Court of Appeals for the

Fourth Circuit has observed, “[i]f the limits of the compulsory
counterclaim are no broader than res judicata, then [Rule 13(a)]
would be superfluous.”

Id.

As to the third inquiry, Defendant asserts that the claims
in

the

complaint

and

the

counterclaims

identical evidence and witnesses.

will

require

nearly

It argues that “Welch & Rushe

will present evidence of [Plaintiff’s] theft related actions and
disciplinary history” in lodging the defense of legitimate, nondiscriminatory

reasons

(ECF No. 19, at 14).
some

overlapping

legitimate

for

the

employment

decision.

It is likely that there will be at least

evidence

used

non-discriminatory

counterclaims.”

adverse

to

support

reasons

and

the
the

defense

of

“theft-based

There is no reason to duplicate consideration

of this evidence.

As stated in an Eastern District of North

Carolina case cited favorably in Painter, “it would appear that
substantial evidence will be introduced that both supports the
counterclaim . . . and simultaneously refutes [] plaintiff’s
claim.”

Hosp. Bldg. Co., 86 F.R.D. at 698.

Finally, a logical relationship exists between the Title
VII claims and the “theft-based counterclaims.”

Contrary to

Plaintiff’s position, the employment relationship between the
13

parties is not the only common thread between the claims and
“theft-based

counterclaims.”

theft

claims

based

are

As

part

of

Plaintiff’s federal law claims.”

Defendant
Welch

&

points

out,

Rushe’s

“the

defense

(ECF No. 19, at 15).

to

Although

the elements needed to prevail on counterclaims four, five, and
six are quite obviously different from what is needed to prevail
on the Title VII claims, Defendant’s version of events – that
Plaintiff misused company property and this behavior contributed
to

the

ultimate

decision

to

terminate

her

–

is

at

least

inconsistent with Plaintiff’s theory that she was terminated for
rejecting David Welch’s sexual advances.
304

F.Supp.2d

at

counterclaims,
evidence

of

allegation

714

the
the

that

(“even

if

defendants
purported

his

they

probably

thefts

to

termination

See, e.g., Harrison,
had

not

asserted

would

have

rebut

Mr.

stemmed

from

the

presented
Harrison’s

an

illegal

conspiracy.”); Sue & Sam Mfg. Co. v. B-L-S Constr. Co., 538 F.2d
1048, 1053 (4th Cir. 1976) (holding that a logical relationship
existed

where

the

“claims

arose

at

the

same

time”

and

were

“occasioned” by the same occurrence, such that “[t]he proof of
the claim . . . and especially its defense required proof of
many of the same facts as were necessary to the proof of the
counterclaim.”).
claims

and

Given these considerations, “adjudicating the

counterclaims

at

once

would

advance

the

‘general

purpose’ of Rule 13(a) – ‘to have all related actions heard at
14

one time,’ Painter, 863 F.2d at 334 – whereas adjudicating them
separately would ‘ignore the value of having the same factfinder
resolve

all

issues

with

an

eye

for

consistency

and

an

appreciation for the total context of the case,’ id. at 333.”
Harrison,

304

counterclaims

F.Supp.2d
IV,

V,

at

and

715.

VI

are

Based

on

the

compulsory,

foregoing,

thus

there

is

subject matter jurisdiction over them.
2.
Negligent and Malicious Defamation and False Light
(Counterclaims I-III)
a.

Standard of Review

Plaintiff moves to dismiss the defamation and false light
counterclaims pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds
of statute of limitations and absolute judicial privilege.

The

purpose of a motion to dismiss under Rule 12(b)(6) is to test
the

sufficiency

Charlottesville,

of
464

the
F.3d

complaint.
480,

483

Presley
(4th

Cir.

v.

City

2006).

of
A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 (2007).

Bell Atl. Corp.

That showing must consist

of more than “a formulaic recitation of the elements of a cause
of

action”

or

“naked

assertion[s]

15

devoid

of

further

factual

enhancement.”

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
b.

Statute of Limitations

The statute of limitations is an affirmative defense that
should

only

be

employed

to

dismiss

claims

pursuant

to

Rule

12(b)(6) when it is clear from the face of the complaint that
the claims are time barred.

See Eniola v. Leasecomm Corp., 214

F.Supp.2d 520, 525 (D.Md. 2002); see also 5A Charles A. Wright &
Arthur R. Miller, Federal Practice & Proc. § 1357, at 352 (1990)
(“A complaint showing that the statute of limitations has run on
the claim is the most common situation in which the affirmative
16

defense

appears

on

the

face

of

the

pleading,”

rendering

dismissal appropriate).
Plaintiff was terminated from Welch on Rushe on April 27,
2012.

She filed her EEOC charge on September 13, 2012 and

instituted this action on December 9, 2013.

Plaintiff asserts

that Defendant cannot rely on events preceding December 9, 2012
to support her defamation and false light claims because the
one-year statute of limitations applies.
Defendant
because

responds
Welch

&

that

Rushe

Plaintiff’s
does

not

(ECF No. 15, at 8).

argument

know

the

is

exact

premature
timing

of

Plaintiff’s defamatory statements and discovery is necessary to
uncover

the

timing

and

defamatory statements.

substance

of

each

(ECF No. 19, at 7).

of

Plaintiff’s

Alternatively,

Defendant argues that “to the extent that discovery reveals any
statements

that

statements

would

did
not

occur
be

prior

barred

to
by

December
the

one

9,
year

2012,

these

statute

limitations in light of [the] ‘continuing harm rule.’”

of

(Id. at

8).
Maryland

imposes

claims for defamation.

a

one-year

statute

of

limitations

on

Md. Code Ann. Cts. & Jud. Proc. § 5-105.

The limitations period begins to run on the date the statements
are improperly communicated.

See Bagwell v. Peninsula Reg’l

Med. Ctr., 106 Md.App. 470 (1995).

Defendant states in the

opposition that the counterclaims allege two sets of defamatory
17

statements made by Plaintiff: (1) statements made immediately
following Plaintiff’s termination on April 27, 2012 and “before
the filing of any judicial proceedings was contemplated”; and
(2) statements made to former Welch & Rushe employees and others
after filing her EEOC claims on September 13, 2012.
19, at 4-5).

(ECF No.

The counterclaim relates back to December 9, 2013,

the filing date of the complaint.

See Burlington Indus. V.

Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982) (holding that
“the

institution

of

plaintiff’s

suit

tolls

or

suspends

the

running of the statute of limitations governing a compulsory
counterclaim”).

To the extent Defendant relies on allegedly

defamatory statements made before December 9, 2012 to support
the two defamation claims, they are time-barred.
The continuous harm doctrine does not apply to defamation
claims.

The continuous violation doctrine tolls the statute of

limitations

where

the

violations

are

continuous

in

MacBride v. Pushvaian, 402 Md. 572, 584 (2007).

nature.

Under this

doctrine, a claim is not barred simply because one of more of
the violations occurred earlier in time.
that

“Welch

defamatory

&

acts

Rushe
of

has

alleged

Plaintiff.”

Id.

Defendant asserts

continuous

(ECF

No.

19,

and
at

8).

repeated defamations do not constitute a continuing tort.
v. Gupta, 54 F.Supp.2d 611, 616 (E.D.Va. 1999).
courts

have

uniformly

recognized,
18

each

ongoing
But
Lewis

“[R]ather, as

separate

defamatory

statement itself constitutes a separate and distinct cause of
action.”
made

Id.

before

Accordingly, Defendants cannot rely on statements
December

counterclaims.

9,

2012

to

support

the

two

defamation

The counterclaims also identify statements made

in March 2013, thus the defamation claims will not be dismissed
on statute of limitations grounds.
Citing

Robinson

v.

Vitro

Corp.,

620

F.Supp.

1066,

1070

(D.Md. 1985), Plaintiff asserts that the one-year statute of
limitations also applies to claims of false light invasion of
privacy where the facts supporting the false light claims are
the same as those used to support the defamation claim.

In

applying the one-year statute of limitations to the false light
invasion of privacy claim, Robinson, 620 F.Supp. at 1070, relied
exclusively on the reasoning in Smith v. Esquire, 494 F.Supp.
967, 970 (D.Md. 1980), “that the tort of false light invasion of
privacy is so similar to defamation that the one-year statute of
limitations governing defamation is to be applicable in false
light cases as well.”

Plaintiff fails to acknowledge, however,

that the Maryland Court of Special Appeals later rejected the
reasoning in Smith, holding that false light claims should be
treated like other tort claims and subject to the three year
statute of limitations.

See Allen v. Bethlehem Steel Corp., 76

Md.App. 642 (1988); see also Smith v. McGraw, Civil Action No.
10-cv-02310-AW, 2012 WL 603238, at *9 (D.Md. Feb. 23, 2012)
19

(noting

that

there

is

some

disagreement

as

to

whether

the

statute of limitations governing claims for false light invasion
of privacy is the same as the one-year limitations period for
defamation claims, but declining to address the issue).

The

court in Allen reasoned:
We disagree with Smith.
What the district
court judge said in Smith may be true, but
the Maryland statute of limitations is
vividly clear.
An action for libel and
slander shall be filed within one year of
the date it accrues.
Courts Art. § 5-105.
Other tort actions shall be filed within
three years of the date they accrue. Courts
Art. § 5-101.
Nowhere in § 5-101 does it
provide an exception for “false light”
cases.
Even though we recognize the
district court judge’s view as to how the
statute of limitations will be avoided, that
“loophole”
must
be
plugged
by
the
Legislature.
Limitation
statutes
are
generally strictly construed.
Decker v.
Fink, 422 A.2d 389 (Md.Ct.Spec.App. 1980),
cert. denied, 289 Md. 735 (Md. 1981).
Courts Art. § 5-101 means presumably what it
says, and we decline to rewrite it so as to
proscribe the bringing of a “false light”
case after a period of one year.
Allen, 76 Md.App. at 649.
At least one court in this district has since applied the
three-year statute of limitations to a false light invasion of
privacy claim.

Specifically, in Richardson v. Selective Ins.

Grp., Inc., Civil Action No. RDB 06-2594, 2007 WL 1657423, at
*5-6 (D.Md. May 31, 2007), Judge Bennett noted the disagreement
between

Smith

and

Allen,

found

20

the

reasoning

in

Allen

persuasive, and applied the three-year statute of limitations to
a claim that defendants tortiously interfered with prospective
economic

advantage

plaintiff’s

by

prospective

providing

defamatory

employers.

See

references

to

Hovatter

v.

also

Widdowson, No. Civ. CCB-03-2904, 2004 WL 2075467, at *8 (D.Md.
Sept. 15, 2004) (“The scope of [plaintiff’s] invasion of privacy
false light claim initially is limited by the applicable statute
of limitations.

Maryland applies the general three-year statute

of limited under § 5-101 to such claims.”).

As found by Judge

Bennett, Allen is persuasive and was decided by a Maryland court
interpreting

state

law.

Thus,

the

three

year

statute

of

limitation applies to the false light claim and Defendant can
rely on allegations preceding December 9, 2012 to support this
claim.
c.

Absolute Judicial Privilege

Plaintiff argues that “[s]tatements allegedly made by Ms.
Long

in

seeking

Maryland’s

support

absolute

for

judicial

her

EEOC

privilege

claims
and

are
thus

subject

to

Defendant’s

defamation and false light claims based on such statements must
be dismissed.”

(ECF No. 15, at 7).5

5

In the case of Norman v.

The only allegation in the counterclaim regarding
defamatory statements made after Plaintiff was terminated but
before she filed her EEOC charge is that “[a]fter Ms. Long was
terminated, she began making false accusations of harassment and
discrimination.” (ECF No. 7, at 9). Although Plaintiff broadly
asserts that absolute judicial privilege applies to all of the
21

Borison, 418 Md. 630 (2011), the Court of Appeals of Maryland
explored the contours of the absolute judicial privilege.
court

observed

that

“witnesses,

parties,

and

judges”

The
enjoy

“absolute immunity from civil liability,” for statements made in
a

judicial

unrelated

proceeding,

to

the

“even

underlying

if

the

statement

proceeding.”

Id.

is

at

wholly

650.

The

privilege also extends to statements made in connection with
quasi-judicial proceedings, such as administrative proceedings,
if

the

proceeding

satisfies

Ambrose, 219 Md. 188 (1981).

the

two

part

test

of

Gersh

v.

Gersh dictates that, in deciding

whether a proceeding gives rise to an absolute privilege, a
court must consider “‘(1) the nature of the public function of
the proceeding and (2) the adequacy of procedural safeguards
which will minimize the occurrence of defamatory statements.’”
Norman, 418 Md. at 652.
agency

with

the

The EEOC constitutes a quasi-judicial

authority

to

administer

federal

employment

discrimination laws, investigate claims by aggrieved parties,
and

bring

actions

itself.

See

42

U.S.C.

§

2000e-5(b).

allegedly defamatory statements, Plaintiff argues in the motion
and the reply brief that statements made before she filed the
EEOC charge in September 2012 are time-barred.
As explained
above, Defendant cannot rely on statements made prior to
December 9, 2012 to support the two defamation claims, but it
can rely on such statements to support the false light claim, as
the three-year statute of limitations applies.
Plaintiff has
not briefed the issue of whether absolute judicial privilege
would apply to allegedly defamatory statements made prior to the
institution of EEOC proceedings.
22

Proceedings before the EEOC give rise to an absolute privilege.
See, e.g., Shabazz v. PYA Monarch, LLC, 271 F.Supp.2d 797, 804
(E.D.Va. 2003) (“based on the nature of the EEOC proceedings,
its power to subpoena documents, information and witnesses, and
its

power

to

investigation,
judicial.
file

a

file

a

makes

lawsuit

the

at

the

proceedings

conclusion

before

the

of

EEOC

its

quasi-

In addition, the requirement that an aggrieved party

charge

with

the

EEOC

as

a

prerequisite

to

filing

a

lawsuit lends further support to the quasi-judicial nature of
the

proceedings.”);

Booth

v.

Total

Health

Care,

Inc.,

880

F.Supp. 414, 415-16 (D.Md. 1994) (finding statements made to the
Maryland

Human

plaintiff’s

Relations

sex

Commission

discrimination

in

defending

complaint

were

against

absolutely

privileged in light of the nature of proceedings and the fact
that

the

Commission’s

procedures

provide

adequate

procedural

safeguards against the occurrence of defamatory statements).
Defendant contends that the allegedly defamatory statements
were made extrinsic to the EEOC proceeding and that absolute
privilege

does

not

apply

to

these

statements.

Plaintiff

responds that the allegations in Defendant’s own counterclaims
reveal

that

“Ms.

Long

and

her

past

counsel

were

pursuing

testimonial support from potential witnesses for her EEOC and
judicial claims against Defendant[s].”

(ECF No. 24, at 6).

Specifically, the allegations in the counterclaim state that in
23

about March 2013, after Plaintiff filed an EEOC charge, Ms. Long
contacted Eric Craddock, a former Welch & Rushe manager.

“Mr.

Craddock reported to Welch & Rushe that Ms. Long disclosed the
nature of her allegations against Welch & Rushe, and that the
purpose of her call was to garner support of her [] allegation
that her termination was in retaliation for Ms. Long’s rejection
of Mr. Welch’s alleged sexual advances.”

(ECF No. 7, at 9).

Defendant further asserts that Ms. Long has similarly contacted
other current and former employees during this same time period
and that “[o]n her behalf, her prior counsel, Katz, Marshall &
Banks LLP likewise contacted former managers of former Welch &
Rushe.”

(Id.).

Defendant maintains that “Ms. Long and/or her

agents also contacted current employees at Welch & Rushe during
this same time period under suspicious circumstances in a covert
attempt to uncover the current employer of several former Welch
&

Rushe

managers,

upon

information

and

belief,

in

order

to

communicate her false allegations and garner false testimony in
support for those false allegations.”
As

explained

privilege
judicial

applies
or

in
to

Norman,
some

418

Md.

at

statements

quasi-judicial

proceeding.

653,

made

the

absolute

extrinsic
Generally,

to

a

these

extrinsic statements occur in three categories: (1) statements
made with the direct purpose or effect of producing a judicial
or

quasi-judicial

proceeding;

(2)
24

statements

“prepared

for

possible use in connection with a pending judicial proceeding,
but which remain unfiled at the time of the alleged injury”; and
(3) statements that are not designed necessarily to produce a
proceeding or cause one to be “filed,” but which are connected
contextually

to

a

pending

or

ongoing

proceeding.

Plaintiff

already had filed the EEOC charge at the time the allegedly
defamatory statements were made to current and former Welch &
Rushe employees in March 2013.
656,

explained

that

The court in Norman, 418 Md. at

absolute

privilege

applies

to

statements

made by parties outside the quasi-judicial proceeding when: “(1)
the contemplated or ongoing proceeding fulfills Gersh, and (2)
the

context

of

the

statement

demonstrates

during the course of the proceeding.”

that

it

was

Id. at 657-58.

made

A party

“does not need to demonstrate the relevance of a challenged outof-court

statement

proceeding.”

to

the

contemplated

Id. at 658 n.17.

or

underlying

She must show, however, “that

the alleged defamatory statement was made in a context – e.g.,
settlement negotiations or a letter memorializing a conversation
regarding

visitation

rights

–

connected

sufficiently

to

a

proceeding, so that a court may conclude that statement was made
‘during the course of the proceeding.’”

Id. at 658.

With

respect to attorneys of record in a quasi-judicial proceeding,
“Maryland

caselaw

adds

the

requirement

25

of

relevance

of

the

statement to the proceeding before an absolute privilege may
apply.”

Id. at 659.

The issue here is whether the alleged defamatory statements
were

made

in

proceeding.

a

context

connected

sufficiently

to

the

EEOC

See Holt v. Camus, 128 F.Supp.2d 812, 816 (D.Md.

1999) (“the absolute privilege which bars a [party’s] statement
from becoming the basis of a defamation action also bars those
statements from forming the basis of a false light invasion of
privacy claim.”).

In Norman, the court explained:

[w]e assess the context of the statement by
asking, among other things: what was the
overall or general reason for the instrument
or letter (but not the motive of the
challenged statement itself, see English
rule); what was the [party] doing when he or
she made the statement; and to whom did he
or she make the statement.
Norman, 418 Md. at 658.
privilege

should

not

Defendant argues that absolute judicial
attach

because

“the

Counterclaim

only

alleges that one of Welch & Rushe’s former employees, and not
Welch & Rushe, believed that the purpose of the Plaintiff’s call
was to garner witness support.”

(ECF No. 19, at 7).

Defendant

also maintains that “[i]n order to determine the context and
reasons for contacting the third parties, discovery is required.
. . . [D]iscovery is necessary to explore the reasons for her
statements, what statements were made, and to whom she made the
statements.”

(Id.).

Although

26

Plaintiff’s

motive

for

the

alleged

defamatory

statements

is

irrelevant

for

purposes

of

determining whether absolute judicial privilege attaches, the
context during which the defamatory statements were made must be
connected sufficiently to the EEOC proceeding.
From the allegations in the counterclaim, the exact context
during

which

unclear.

the

alleged

defamatory

statements

were

made

is

Although Defendant states that Ms. Long contacted

current and former Welch & Rushe employees in March 2013 to
garner

testimony

to

support

her

allegations,

Defendant

also

contends that she contacted former employees to ascertain their
current employer.
and

context

of

Unclear at this stage is the exact content
the

conversations

with

current

and

former

employees, the purpose of the contact with such individuals, and
at what stage of the EEOC proceedings the parties were involved.
Moreover, cases that have applied absolute judicial privilege to
defamatory

statements

have

done

so

stage, after discovery had occurred.
at

804,

the

court

granted

summary

at

the

summary

judgment

In Shabazz, 271 F.Supp.2d
judgment,

finding

that

communications with the EEOC regarding plaintiff’s termination
were absolutely privileged because they were communications made
with respect to a quasi-judicial proceeding.

In that case,

however, the EEOC required the defendant to furnish a written
position statement and produce numerous documents, including the
company’s investigation and witness statements it had obtained.
27

Similarly, in Adams v. Peck, 288 Md. 1, 6 (1980), a case on
which

Plaintiff

concluding

that

relies,

the

absolute

court

upheld

privilege

summary

applied

to

a

judgment,
defamatory

statement published in a document which was prepared for use by
an attorney in connection with a pending judicial proceeding but
which had not been filed in that proceeding.
defamatory

statement

was

published

In that case, the

in

a

letter

from

a

psychiatrist to an attorney who was then representing the mother
in pending divorce litigation.

The psychiatrist’s evaluation

and recommendation were sought for the purpose of determining
whether there were probative facts and opinions sufficient to
justify raising, in the pending divorce litigation, the issue of
a modification of the father’s visitation rights.

The court

held that “[u]nder these circumstances, it is manifest that the
psychiatrist’s
proceeding,

letter

and

was

that

directly

the

related

allegedly

to

that

defamatory

judicial
statement

contained in the letter was published during the course of that
judicial

proceeding.”

Id.

at

8.

Here,

the

context

of

Plaintiff’s communications with current and former Welch & Rushe
employees

is

unclear

vis-à-vis

the

ongoing

EEOC

proceeding.

See, e.g., Holt, 128 F.Supp.2d at 816 (denying motion to dismiss
in part where the context of the alleged defamatory remarks from
an

attorney

to

a

judge

was

unclear).

Similarly,

for

the

privilege to attach to statements made by Plaintiff’s attorneys
28

to

these

individuals,

statements

had

some

Plaintiff

needs

“rational,

to

articulable

responsiveness to the proceeding.”

show

that

the

relevance

or

Norman, 418 Md. at 660;

Hurst v. Jiffy Lube, No. CIV. A. 00-CV-133, 2000 WL 1790112, at
*6

(E.D.Pa.

Dec.

6,

2000)

(granting

summary

judgment

on

a

defamation claim and holding that “[defendant’s] statements to
the

EEOC

relevant

regarding
and

privileged).

[plaintiff’s]

material

to

the

managerial
legal

abilities

proceeding

and

were
are

This information has not yet been ascertained,

thus dismissal is inappropriate.
B.

Plaintiff’s Motion to Strike Affirmative Defenses

Plaintiff
defenses:
laches

or

moves

statute

of

estoppel

to

strike

limitations
(2);

good

the

following

and/or

faith

and

doctrines

affirmative
of

waiver,

non-legitimate

non-

discriminatory reasons (3); failure to exhaust administrative
remedies (4); failure to mitigate damages (7); attorneys’ fees
(9); and reservation of right to amend affirmative defenses as
additional facts become known (10).6
Plaintiff asserts that defenses two, three, four, and seven
are “stated in such a conclusory manner as to prohibit fair
notice of defenses or grounds asserted upon.”
2).

(ECF No. 16, at

Plaintiff appears to be arguing that these four affirmative

6

These numbers correspond to the number of the affirmative
defense in Defendant’s answer.
29

defenses fail to satisfy the pleading requirements set forth by
the Supreme Court of the United States in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009).
Iqbal

do

Defendant argues, in response, that Twombly and
not

apply

to

affirmative

defenses.

Defendant

recognizes that courts in this district have applied the Iqbal
and

Twombly

standard

to

affirmative

defenses,

but

point

to

courts within this district and in the Fourth Circuit that have
also held otherwise.
Defendant
expressly

is

(ECF No. 20, at 3-4).
correct

addressed

the

that

neither

pleading

Twombly

requirements

nor

Iqbal

applicable

to

affirmative defenses, and district courts throughout the country
have since debated the issue.
including

those

within

this

The majority of district courts,
circuit,

however,

have

concluded

that the Twombly-Iqbal approach applies to affirmative defenses.
See, e.g., Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d
532,

536

(D.Md.

2010);

Racick

v.

F.R.D. 228, 233 (E.D.N.C. 2010).

Dominion

Law

Assocs.,

270

The undersigned adopts the

majority view that affirmative defenses must meet the Twombly
and Iqbal standards because defendants should be held to the
same pleading standard as plaintiffs and boilerplate defenses
require counsel to conduct unnecessary discovery.

See Bradshaw,

725 F.Supp.2d at 535-36; see also Barry v. EMC Mortg., Civil
Action No. DKC 10-3120, 2011 WL 4352104, at *3-4 (D.Md. Sept.
30

15, 2011) (explaining rationale for applying Twombly and Iqbal
standards to affirmative defenses).
“ensure

that

an

factual

basis

opposing

for

an

party

Affirmative defenses must

receives

assertion

contained

fair
in

notice
a

[]

of

the

defense.”

Haley Paint, 279 F.R.D. at 336 (quoting Bradshaw, 725 F.Supp.2d
at 536).
from

a

Fed.R.Civ.P. 12(f) states that the court “may strike
pleading

an

insufficient

defense

or

any

redundant,

immaterial, impertinent, or scandalous matter.”
1.
Statute of Limitations and/or Doctrines of Waiver,
Laches, or Estoppel
As to the statute of limitations defense, Plaintiff argues
that “Defendant fails to provide any factual support indicating
that Ms. Long’s claims were not filed within the applicable time
limitations
indication

established
that

limitations.”

there

under
are

Title

any

VII,

other

(ECF No. 16, at 4).

nor

is

applicable

there

any

statutes

of

Defendant argues that the

nature of the statute of limitations defense is apparent from
Plaintiff’s

complaint

itself,

thus

Plaintiff

regarding the contours of this defense.

is

on

notice

As Defendant points

out, an employee has 300 days from the discriminatory act in
which to file a charge with the EEOC.

See 42 U.S.C. § 2000e-5.

Plaintiff filed her charge with the EEOC on September 13, 2012.
(ECF No. 20-1).
September

26,

The Notice of Right to Sue letter was issued on
2013.

(ECF

No.

31

20-2).

Plaintiff

filed

the

complaint

on

receiving

the

December
right

9,

to

2013,

sue

within

letter.

ninety

(90)

Defendant

days

argues

of

that

“Plaintiff’s claim that she was transferred out of her position
in September 2011 is time-barred given that she did not file her
charge until September 13, 2012, more than 300 days after the
alleged transfer.”

(ECF No. 20, at 8-9).

Plaintiff’s complaint.

Defendant misreads

The complaint states that Ms. Long was

transferred “[t]he day after Ms. Long had to scream to get away
from Mr. Welch,” which happened sometime in December 2011.
No. 1 ¶¶ 19-20).
barred.
the

(ECF

It does not appear that this claim is time-

Defendant also argues that some of the other claims in

complaint

may

be

time-barred

because

Plaintiff

alleges

harassment dating back to February of 2011, but did not bring
her charge with the EEOC until September 13, 2012.

The claims

that are outside the 300-day period are not necessarily timebarred because Plaintiff alleges continuing harassment by David
Welch.

The

“continuing

violation”

theory

“allows

for

consideration of incidents that occurred outside the time bar
when those incidents are part of a single, ongoing pattern of
discrimination.”

Holland v. Washington Homes, Inc., 487 F.3d

208, 219 (4th Cir. 2007) (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 118 (2002)).

Although the viability of

the statute of limitations defense remains to be seen, this
defense

will

not

be

stricken.
32

The

statute

of

limitations

defense is “contextually comprehensible” when viewed in light of
Plaintiff’s

factual

Laboratories,

Inc.,

pleadings.
Civil

See

Action

No.

Warren

v.

Tri

6:12-cv-00046,

Tech

2013

WL

2111669, at *7 (W.D.Va. May 15, 2013) (“indeed, [p]laintiff’s
claimed incomprehension of the basis of Defendant’s affirmative
defenses ignores the allegations of his own complaint.”).
The affirmative defenses of laches, waiver, and estoppel,
however, require a different conclusion.

The judicially created

doctrine of laches “may be applied by a court to bar a suit in
equity that has been brought so long after the cause of action
accrued

that

unreasonable

the
and

court

finds

unjust.”

that
Lyons

bringing
P’ship,

the
L.P.

Costumes, Inc., 243 F.3d 789, 798 (4th Cir. 2001).

action
v.

is

Morris

But when a

cause of action is “brought pursuant to a statute for which
Congress has provided a limitations period, a court should not
apply laches to overrule the legislature’s judgment as to the
appropriate time limit to apply for actions brought under the
statute.”
U.S.C.

§

limitations

Id.; see also Haley Paint, 279 F.R.D. at 337.
2000e-5(e)(1)
for

Title

provides
VII

claims.

the

applicable
Accordingly,

defense is inapplicable and will be stricken.

statute
the

42
of

laches

With respect to

the waiver and estoppel defenses, Defendant has not provided any
factual bases for these affirmative defenses and they will be
stricken.

See, e.g., Barry, 2011 WL 4352104, at *4 (striking
33

waiver and estoppel defenses where defendant merely set “forth
conclusory legal statements wholly devoid of any factual content
to support them”); Racick v. Dominion Law Assocs., 270 F.R.D.
228,

237

(E.D.N.C.

2010)

(striking

“estoppel”

and

“waiver”

defenses as “bare legal conclusion[s]”).
2.

Failure to Exhaust Administrative Remedies

As a fourth affirmative defense, Defendant states that “Ms.
Long failed to comply with the procedural and/or administrative
prerequisites
state

law.”

for

asserting

(ECF

No.

discrimination

7,

at

6).

under

Plaintiff

federal
asserts

and
that

“Defendant has not provided any grounds upon which to support
this assertion thus failing to impart fair notice to Ms. Long.”
(ECF No. 16, at 6).

Plaintiff also points out that to the

extent Defendant argues that she has failed to satisfy certain
conditions precedent to bringing suit, Fed.R.Civ.P. 9(c) states
that “when denying that a condition precedent has occurred or
been

performed,

a

party

Defendant

asserts

that

remedies

defense

is

the

must

do

failure

based

on

so
to

with

particularity.”

exhaust

facts

that

administrative
are

“within

[Plaintiff’s] knowledge (specifically, what actions she claims
to have been discriminatory or retaliatory, and when she filed
her charge and lawsuit), and therefore, Welch & Rushe need not
allege additional facts in support of this affirmative defense.”
(ECF

No.

20,

at

9).

Defendant’s
34

argument

is

unpersuasive.

Defendant received the EEOC Charge – which it included as an
exhibit to its opposition – and this document identified the
discriminatory

grounds

retaliation.
Defendant

(ECF

is

Plaintiff

No.

unaware

20-1).

of

what

alleged,
There

happened

is
in

namely

the

and

indication

no

sex

that

administrative

context before Plaintiff filed her complaint in federal court.
Defendant will have fourteen (14) days to amend the answer to
plead

facts

defense.

to

support

the

failure

to

exhaust

affirmative

See Haley Paint, 279 F.R.D. at 331 (“when affirmative

defenses are stricken, the defendant should normally be granted
leave to amend.”); Certain Underwriters at Lloyd’s, London v.
R.J. Wilson & Assocs., Ltd., Civil No. CCB-11-1809, 2012 WL
2945489, at *5-6 (D.Md. July 17, 2012) (granting leave to amend
the answer to plead facts to support affirmative defenses).
3.
As
“[a]ll

Good Faith and Legitimate Non-Discriminatory Reasons
a

third

actions

employment

affirmative

taken

were

made

in
in

defense,

connection
good

Defendant

with

faith

Ms.

and

states

Long

for

and

that
her

legitimate,

nondiscriminatory, non-retaliatory, and non-pretextual reasons.”
(ECF No. 7, at 6).

Defendant acknowledges that this defense

actually encompasses two defenses: (1) good faith affirmative
defense to punitive damages under Title VII; and (2) legitimate
non-discriminatory reasons.
court

should

strike

this

Although Plaintiff argues that the
affirmative
35

defense

in

full,

the

arguments in her motion regarding the third affirmative defense
challenge only the “good faith” defense.

(ECF No. 16, at 5-6).

Plaintiff asserts that “Defendant’s mere conclusory statement
that it acted in good faith fails to provide any basis for its
applicability as a defense and denies Ms. Long of fair notice of
the defense.”

(Id. at 6).

Defendant takes the position that

the factual allegations in Plaintiff’s complaint together with
the fifth and sixth affirmative defenses support the good faith
defense.

Specifically,

Defendant

includes

as

a

fifth

affirmative defense that “Ms. Long unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by Welch & Rushe or to otherwise avoid harm.”
6).

(ECF No. 7, at

The sixth affirmative defense states that “[w]hile not

admitting any unlawful conduct occurred, Ms. Long did not engage
in any protected activity or at any time inform Welch & Rushe
that

she

opposed

any

alleged

unlawful

conduct.”

(Id.).

Defendant argues that “[a]ll of these facts, including those
contained in other Affirmative Defenses, are facts that likewise
support its Third affirmative defense that it acted in good
faith during her employment.”
Defendant’s
affirmative

arguments

defenses

in

the

(ECF No. 20, at 11).
are

unavailing.

answer

do

not

The
provide

other
factual

content regarding how Defendant acted in good faith to comply
with the obligations under Title VII.
36

The fifth affirmative

defense states that Ms. Long failed to take advantage of any
preventive

or

corrective

opportunities

provided

by

Welch

&

Rushe, but fails to explain what those preventive or corrective
opportunities

were.

“[A]n

employer

may

not

be

vicariously

liable for the discriminatory employment decisions of managerial
agents

where

these

decisions

are

contrary

to

good-faith efforts to comply with Title VII.”
Dental Assoc., 527 U.S. 526, 545 (1999).
included
efforts.

any

factual

content

to

explain

the

employer’s

Kolstad v. Am.

Defendants have not
their

good

faith

See, e.g., Barry, 2011 WL 4352104, at *5 (striking

defense of good faith compliance with all applicable laws as
conclusory and devoid of any factual content to support it);
Francisco

v.

Verizon

South,

Inc.,

No.

3:09cv737,

2010

WL

29901589, at *8 (E.D.Va. July 29, 2010) (granting a plaintiff’s
motion to strike a defense of “good faith efforts to comply with
all applicable laws, rules, and regulations”).

Defendant will

have fourteen (14) days to amend the answer to plead facts to
support the good faith affirmative defense.
4.

Failure to Mitigate Damages

Defendant’s seventh affirmative defense is that Ms. Long
failed to mitigate her damages.
statutory

duty

to

mitigate

Title VII claimants have a

damages

resulting

employer’s discriminatory adverse employment actions.
§ 2000e-5(g).

from

their

42 U.S.C.

The defendant bears the burden of proving that a
37

claimant has failed to mitigate damages stemming from a Title
Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir.

VII violation.
2001).

Plaintiff

argues

that

“[t]here

are

no

facts

or

inferences that can be drawn from any of the pleadings that
suggest

this

Defendants

defense

assert

is

that

plausible.”

“[i]n

the

(ECF

No.

16,

6).

context,

discriminatory

at

the

facts supporting whether a former employee who claims harassment
and

retaliatory

(such

as

by

discharge

seeking

has

other

properly

employment)

mitigated
are

her

only

damages

within

knowledge of Plaintiff at this early stage of the case.”
No.

20,

at

13).

Defendant

states

“[a]t

this

stage

in

the
(ECF
the

litigation, Welch & Rushe does not yet possess additional facts
to know to what degree Long has mitigated or failed to mitigate
her

damages.”

persuasive.

(Id.

at

14).

Defendant’s

arguments

are

Although cursory defenses are usually insufficient,

the failure to mitigate defense will not be stricken considering
that Defendant is not in a position at this stage to know the
steps Plaintiff took to mitigate damages.
5.

Ninth And Tenth Affirmative Defenses

Defendant asserts as a ninth affirmative defense that it is
entitled

to

action,

“in

recover
whole

reasonable
or

in

part,

attorneys’
is

fees

because

unreasonable,

this

frivolous,

vexatious, without merit and/or has not been brought or asserted
in good faith.”

(ECF No. 7, at 7).
38

Defendant includes as a

tenth affirmative defense a reservation of right to amend its
affirmative defenses as additional facts become known during the
course of discovery.
affirmative

defenses,

As Plaintiff points out, these are not
and

Defendant

acknowledges

as

much.

Defendant states that it included the ninth and tenth defenses
to put Plaintiff on notice that it will be seeking attorneys’
fees and will seek leave to amend the answer if it becomes
necessary.

Because these are not affirmative defenses, they

will be stricken.
III. Conclusion
For the foregoing reasons, Plaintiff’s motion to dismiss
counterclaims will be denied.

The motion to strike affirmative

defenses will be granted in part and denied in part.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

39