Long v. Welch & Rushe, Inc.

Filing 28

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

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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

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