Payne v. Grant County Board of County Commissioners et al

Filing 38

ORDER granting in part and denying in part 32 plaintiff's Motion to Strike or Dismiss Certain Defenses Asserted by Defendants (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 9/30/2014. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHARI PAYNE,

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Plaintiff,
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vs.
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GRANT COUNTY, OKLAHOMA,
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a political subdivision which is sued in the )
name of the Board of County
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Commissioners for Grant County,
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Oklahoma,
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SCOTT STERLING, individually and
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in his official capacity,
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Defendants.
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Case No. CIV-14-362-M

ORDER
Before the Court is plaintiff’s Motion to Strike or Dismiss Certain Defenses Asserted by
Defendants, filed August 18, 2014. On September 4, 2014, defendants filed their responses, and on
September 11, 2014, plaintiff filed her reply. Based upon the parties’ submissions, the Court makes
its determination.
I.

Introduction
Plaintiff filed her Second Amended Complaint on July 14, 2014, asserting claims for age and

gender discrimination and retaliatory discharge from her employment at the Grant County Sheriff’s
Office. On July 28, 2014, defendants Grant County and Scott Sterling filed their answers. In their
answers defendants raise a number of affirmative defenses. Plaintiff now moves to strike or dismiss
the following affirmative defenses asserted by defendants: (1) failure to take advantage of any
preventative or corrective opportunities provided (asserted by both defendants); (2) statute of
limitations (asserted by both defendants); (3) failure to comply with the Oklahoma Governmental

Tort Claims Act (asserted by defendant Sterling); and (4) denial of employment relationship
(asserted by defendant Grant County).
II.

Discussion
Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or

any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Because
striking a portion of a pleading is a drastic remedy and because a motion to strike may often be made
as a dilatory tactic, motions to strike under Rule 12(f) generally are disfavored. See Colo. Milling
& Elevator Co. v. Howbert, 57 F.2d 769 (10th Cir. 1932) (observing that courts should proceed with
extreme caution in striking a pleading). While motions to strike are generally disfavored, the
decision to grant a motion to strike is within the discretion of the court. See Scherer v. United States
Dep’t of Educ., 78 Fed. App’x 687, 689 (10th Cir. 2003). Further, while the Tenth Circuit has not
ruled on whether Twombly and Iqbal apply to pleading affirmative defenses, this Court has ruled that
they do apply. See Burget v. Capital W. Secs., Inc., Case No. CIV-09-1015-M, 2009 WL 4807619
(W.D. Okla. Dec. 8, 2009). The Court, therefore, finds that the affirmative defenses at issue in this
case must satisfy the pleading standards set forth in Twombly and Iqbal.
A.

Failure to take advantage of any preventative or corrective opportunities provided

In their answers, defendants assert that plaintiff “unreasonably failed to take advantage of
any preventative or corrective opportunities provided” by that defendant “or to otherwise avoid
harm.” Defendant Grant County, Oklahoma’s Answer to Plaintiff’s Second Amended Complaint
at 5, ¶ 4; Defendant Scott Sterling’s Answer to Plaintiff’s Second Amended Complaint at 5, ¶ 3.
Defendants’ assertion is the second prong of the Faragher/Ellerth defense to hostile working
environment claims that culminate in a tangible adverse action. Plaintiff contends this affirmative

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defense is legally insufficient because she is not claiming hostile working environment as a separate
claim for liability. Plaintiff further contends that because this is not a hostile working environment
case, the defense which arises from hostile working environment claims is immaterial and subject
to being stricken.
In its response, defendant Grant County states that if plaintiff’s motion can be read as a
stipulation that she is not asserting a claim of hostile work environment, defendant Grant County
agrees to withdraw the affirmative defense asserted.1 In his response, defendant Sterling asserts that
whether plaintiff took advantage of any preventative or corrective opportunities to avoid the alleged
ageist comments is relevant to her claims that she was terminated in retaliation for opposing said
alleged comments. Defendant Sterling further asserts that he pled this defense to place plaintiff on
notice that she may not have followed defendant’s policy on reporting harassment, which is highly
relevant to plaintiff’s claim that she was terminated for reporting harassment.
Having reviewed the parties’ submissions, the Court finds that while the issue of whether
plaintiff took advantage of any preventative or corrective opportunities to avoid the ageist comments
may be relevant to plaintiff’s claims, an affirmative defense based upon plaintiff’s alleged failure
to take advantage of any preventative or corrective opportunities provided is legally insufficient
because plaintiff is not asserting a claim of hostile work environment. “An affirmative defense is
insufficient if, as a matter of law, the defense cannot succeed under any circumstance.” Federal
Deposit Ins. Corp. v. Isham, 782 F. Supp. 524, 530 (D. Colo. 1992). As the Faragher/Ellerth
defense only applies to hostile work environment claims and plaintiff is not alleging such a claim,

1

Defendant Grant County, however, does note that should plaintiff seek leave to amend her
complaint and later add a claim of hostile work environment, it reserves the right to re-allege the
Faragher/Ellerth defense.
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the Court finds this defense could not succeed under any circumstance in this case. Accordingly,
the Court finds that this affirmative defense should be stricken.
B.

Statute of limitations

In their answers, defendants assert that plaintiff’s claims may be barred by the statute of
limitations. See Defendant Grant County, Oklahoma’s Answer to Plaintiff’s Second Amended
Complaint at 5, ¶ 5; Defendant Scott Sterling’s Answer to Plaintiff’s Second Amended Complaint
at 5, ¶ 4. Plaintiff contends that this affirmative defense is both factually and legally deficient. As
to factual deficiency, plaintiff contends that the pleadings fail to provide any facts identifying the
basis of the defense or identifying the claim or claims to which the defense applies. As to legal
deficiency, plaintiff contends that there is no plausible basis for the defense.
In its response, defendant Grant County asserts that in her Second Amended Complaint
plaintiff does not provide any dates the alleged ageist comments occurred and does not limit her
claims any further than stating “during her [seven year] employment.” Defendant Grant County
contends this demonstrates a potential statute of limitations issue. In his response, defendant
Sterling asserts that plaintiff’s Second Amended Complaint contains facts which may be reasonably
read to suggest that plaintiff’s suit includes claims of allegedly wrongful behavior over the course
of the last seven years and, thus, some of these claims could be barred by the statute of limitations.
Alternatively, defendant Sterling requests that if the Court strikes the statute of limitations defense
that he be granted leave to amend his answer to add a statute of limitations defense if any additional
facts arise that would have an impact on said defense.
Having carefully reviewed the parties’ submissions, as well as defendants’ answers, the
Court finds that defendants have set forth absolutely no factual basis for their statute of limitations

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defense; this defense is merely a boilerplate, conclusory statement. The Court, therefore, finds that
this affirmative defense fails to satisfy the Twombly and Iqbal pleading standards and should be
stricken. However, the Court finds that defendants may amend their answers to include a statute of
limitations defense if any evidence is uncovered during discovery that would support this defense.
C.

Failure to comply with the Oklahoma Governmental Tort Claims Act

In his response, defendant Sterling withdraws the affirmative defense of failure to comply
with the Oklahoma Governmental Tort Claims Act. Accordingly, the Court finds that plaintiff’s
motion to strike is moot as to this affirmative defense.
D.

Denial of employment relationship

In its answer, defendant Grant County asserts as its first defense that it was not plaintiff’s
employer. See Defendant Grant County, Oklahoma’s Answer to Plaintiff’s Second Amended
Complaint at 4, ¶ 1. Plaintiff contends that this defense is a mere denial and a negative averment,
is not an affirmative defense, and should be stricken as legally deficient. In its response, defendant
Grant County asserts that this defense is a true statement and is not merely a denial. Specifically,
defendant Grant County states that its affirmative defense is that because it was not plaintiff’s
employer, plaintiff has failed to state a claim against it on which relief may be granted.
Having carefully reviewed the parties’ submissions, the Court finds defendant Grant
County’s denial of an employment relationship is not a mere denial but is in fact the affirmative
defense of failure to state a claim. The Court further finds that this affirmative defense is not clearly
a legally insufficient defense. Accordingly, the Court finds that this affirmative defense should not
be stricken.

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III.

Conclusion
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART

plaintiff’s Motion to Strike or Dismiss Certain Defenses Asserted by Defendants [docket no. 32] as
follows:
(A)

The Court GRANTS the motion to strike as to the following affirmative defenses:
(1) failure to take advantage of any preventative or corrective opportunities provided,
and (2) statute of limitations and STRIKES these affirmative defenses;

(B)

The Court DENIES the motion to strike as to defendant Grant County’s denial of an
employment relationship defense; and

(C)

The Court FINDS the motion to strike is MOOT as to defendant Sterling’s failure to
comply with the Oklahoma Governmental Tort Claims Act affirmative defense.

IT IS SO ORDERED this 30th day of September, 2014.

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