Griffin v. Don E. Bower, Inc.
Filing
33
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 8/28/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ERIC GRIFFIN,
:
Plaintiff,
: CIVIL ACTION NO. 3:16-2412
v.
:
DON E. BOWER, INC.,
:
Defendant.
(JUDGE MANNION)
:
MEMORANDUM
Pending before the court is a motion to strike filed by the plaintiff, Eric
Griffin. (Doc. 9). The plaintiff seeks to strike fifteen affirmative defenses listed
in the defendant’s, Don E. Bower, Inc.’s, answer. (Doc. 5). The defendant’s
answer responds to the plaintiff’s complaint, which alleges that the defendant
violated the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §2601 et
seq. (Doc. 1). The defendant’s answer also sets forth a total of twenty-three
affirmative defenses, fifteen of which the plaintiff challenges in his current
motion. For the foregoing reasons, the plaintiff’s motion will be granted with
respect to the defendant’s fifth, sixth, seventh, eight, ninth, tenth, eleventh,
twelfth, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, and
twentieth affirmative defenses. The plaintiff’s motion will be granted in part
and denied in part with respect to the defendant’s sixteenth affirmative
defense.
I.
FACTUAL AND PROCEDURAL HISTORY
The defendant is a provider of construction services that employed
approximately sixty to seventy employees for twenty workweeks in 2014,
2015, and 2016. (Doc. 1 ¶9). The defendant hired the plaintiff as a
superintendent on March 9, 2012. (Id. ¶10). On May 27, 2016, the plaintiff
took a day off from work to take his three-year old son to the doctor. (Id. ¶12).
The plaintiff’s son was diagnosed with leukemia the following evening, on May
28, 2016. (Id. ¶15). Shortly thereafter, the plaintiff advised the defendant of
his son’s diagnosis and that he would be requiring a leave of absence in order
to care for his son. (Id. ¶16). In particular, the plaintiff sent text messages to
Matt Bower, a project manager working for the defendant, and Craig Morgan,
another superintendent and employee of the defendant, about his son’s
condition and the need for time off. (Id. ¶17).
The plaintiff’s son was hospitalized from approximately May 28, 2016
through June 9, 2016. (Id. ¶19). The plaintiff maintained contact with the
defendant throughout this time, providing updates regarding his son’s
condition and the plaintiff’s anticipated return date to work. (Id.). On or around
June 1, 2016 or June 2, 2016, the plaintiff received a call from Mr. Bower. (Id.
¶21). Mr. Bower inquired into the plaintiff’s son’s health condition. (Id.). Mr.
Bower advised the plaintiff that he thought it would be “better for both he and
the company if [the] [p]laintiff were laid off.” (Id. ¶22). Mr. Bower also told the
plaintiff that he could use his accrued vacation time to cover the length of his
leave of absence. (Id. ¶24). Allegedly, at no time did the defendant give the
plaintiff notice of his rights, obligations, or entitlement to leave under the
FMLA. (Id. ¶¶31–34).
2
Approximately two weeks after speaking with Mr. Bower, on June 15,
2016, the plaintiff went to the defendant’s office to ask for an update and see
if and/or when he could return to work. (Id. ¶25). The defendant advised the
plaintiff “that his separation was a ‘permanent termination’ and that there
would be no ‘call back’ date.” (Id. ¶26). The plaintiff alleges, on information
and belief, that no other employees were laid off at or around the time of the
plaintiff’s termination. (Id. ¶27).
On December 6, 2016, the plaintiff filed a complaint in this court alleging
interference and retaliation under the FMLA. (Doc. 1). On February 1, 2017,
the defendant filed its answer responding to the plaintiff’s allegations and
listing twenty-three affirmative defenses. (Doc. 5). On February 22, 2017, the
plaintiff filed the current motion and brief in support seeking to strike fifteen
of the defendant’s twenty-three affirmative defenses. (Docs. 9–10). On March
15, 2017, after requesting and receiving an extension of time, the defendant
filed its brief in opposition to the plaintiff’s motion. (Doc. 14). The plaintiff did
not file a reply and the plaintiff’s motion is now ripe for review.
II.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 12(f), the court on its own or on
motion by a party may strike from a pleading “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). “The purpose of a motion to strike is to clean up the pleadings,
streamline litigation, and avoid unnecessary forays into immaterial matters.”
3
McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 402 (E.D.
Pa. 2002). These motions are generally disfavored and should be used
“sparingly” only “when required for the purposes of justice.” Landau v. Viridian
Energy PA LLC, 223 F. Supp. 3d 401, 408 (E.D. Pa. 2016) (quoting DeLa
Cruz v. Piccari Press, 521 F. Supp. 2d 424, 428 (E.D. Pa. 2007)). They are
viewed unfavorably because they are often used as a dilatory tactic in
litigation. Newborn Bros. Co., Inc. v. Albion Eng’g Co., 299 F.R.D. 90, 94
(D.N.J. 2014). As such, they will usually be denied “unless the allegations
have no possible relation to the controversy and may cause prejudice to one
of the parties, or if the allegations confuse the issues in the case.” Deery v.
Crystal Instruments Corp., No. 13-198 (WJM), 2013 WL 4517867, at *1
(D.N.J. Aug. 26, 2013) (quoting River Rd. Dev. Corp. v. Carlson Corp., N.E.,
No. 89-7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990)). Courts may
exercise “considerable discretion” when reviewing these type of motions.
Deery, 2013 WL 4517867, at *1 (quoting Tonka Corp. v. Rose Art Indus., Inc.,
836 F. Supp. 200, 217 (D.N.J. 1993)).
Striking a pleading is a “drastic remedy” that is appropriate only “when
the grounds for striking it are readily apparent from the face of the pleadings.”
Id. (quoting Jurista v. Amerinox Processing, Inc., 492 B.R. 707, 740 (D.N.J.
2013)). Thus, these motions are to be decided on the pleadings alone. Id. In
line with the above principles, a court may strike an affirmative defense if that
defense is not recognized to the cause of action, but “a motion to strike an
affirmative defense will not be granted where its sufficiency depends on
4
disputed issues of fact.” Newborn Bros. Co., 299 F.R.D. at 94 (quoting
Signature Bank v. Check-X-Change, LLC, No. 12-2802 (ES), 2013 WL
3286154, at *2 (D.N.J. June 27, 2013)). Only when the defense asserted
could not prevent recovery under any set of pleaded or inferable facts should
the court, in its discretion, strike that defense. Id. at 93.
In addition to the above, where a defense is nothing more than a bare
bones conclusory allegation, it may be stricken. BJ Energy LLC v. PJM
Interconnection, LLC, Nos. 08-3619, 09-2864, 2010 WL 1491900, at *2 (E.D.
Pa. April 13, 2010). Normally, a defendant need only “state in short and plain
terms its defenses to each claim asserted” and “admit or deny the
allegations.” Fed. R. Civ. P. 8(b)(1). But, a defendant “must affirmatively state
any avoidance or affirmative defense” or risk waiver. Fed. R. Civ. P. 8(c)(1).
Rule 8(c) affirmative defenses stem from the common law pleas of
“confession and avoidance,” which accept the plaintiff’s prima facie case as
true, but defeat the plaintiff’s claims nonetheless based on additional
assertions. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure §1270 (3d ed. 2004). In comparison, Rule 8(b) deals with negative
defenses, which are denials that directly contradict elements of the plaintiff’s
prima facie case. Id. A defendant may plead as many defenses as necessary,
negative or affirmative, and they need not be consistent. Fed. R. Civ. P. 8(d).
“The purpose of requiring the defendant to plead available affirmative
defenses in his answer is to avoid surprise and undue prejudice by providing
the plaintiff with notice and the opportunity to demonstrate why the affirmative
5
defense should not succeed.” Robinson v. Johnson, 313 F.3d 128, 134–35
(3d Cir.2002). To do this, at a minimum, the affirmative defense must “provide
fair notice of the issue involved.” Tyco Fire Prods. LP v. Victaulic Co., 777 F.
Supp. 2d 893, 900 (E.D. Pa. 2011). “[F]air notice requires more than a mere
rote recitation of generally available affirmative defenses without citation to
any other fact or premise from which an inference may arise that the stated
defense is logically related to the case in any way.” Mifflinburg Tel., Inc. v.
Criswell, 80 F. Supp. 3d 566, 574 (M.D. Pa. 2015). Thus, “a defendant must
state some basis for asserting the affirmative defense[ ] and may not merely
recite all potential affirmative defenses available.” Alliance Indus. Ltd. v. A-1
Specialized Servs. & Supplies, Inc., No. 13-2510, 2014 WL 4548474, at *2
(E.D. Pa. Sept. 11, 2014).
III.
DISCUSSION
The plaintiff argues that nine of the defendant’s affirmative defenses
bear no relationship to the plaintiff’s claims for relief or a potential defense
and/or fail to provide fair notice of the nature of the defense. These allegedly
include the defendant’s fifth through thirteenth affirmative defenses. The
plaintiff also argues that another six of the defendant’s affirmative defenses
are either redundant, unrecognized as affirmative defenses, or fail to provide
fair notice of the nature of the defense. These include the defendant’s
fifteenth through twentieth affirmative defenses. The court agrees, in part ,and
6
will grant the plaintiff’s motion with respect to all of the affirmative defenses
challenged except the defendant’s sixteenth affirmative defense.
A.
The Defendant’s Fifteenth, Seventeenth, Eighteenth, and
Twentieth Affirmative Defenses
The court agrees with the plaintiff that the defendant’s fifteenth,
seventeenth, eighteenth, and twentieth affirmative defenses should be
stricken. Most of these allegations are not affirmative defenses but denials of
the plaintiff’s allegations. In addition, they are redundant.
The fact that a party has improperly labeled a negative defense an
affirmative one would not normally prejudice the opposing party and justify
striking that defense. See 5 Charles Alan Wright & Arthur R. Miller, §1269
(noting the lack of case law suggesting that improper designation resulted in
substantial prejudice to the opposing party). Applying liberal pleading rules,
the court may simply treat the defense as though it were properly labeled or
allow amendment. Id. Here, however, not only are the defendant’s fifteenth,
seventeenth, eighteenth, and twentieth affirmative defenses improperly
labeled affirmative defenses, they are also redundant. The court will strike
them on this ground as they unnecessarily confuse the issues to be resolved
in this case.
The plaintiff’s fifteenth affirmative defense is premised on two basic
allegations: (1) the defendant did provide the plaintiff with information
regarding the FMLA, in particular, a booklet and a document detailing the
FMLA and a certification form; and (2) the plaintiff failed to return the
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certification form. (Doc. 5 at 7). This first portion of the defendant’s fifteenth
affirmative defense negates the plaintiff’s allegations that the defendant did
not provide FMLA information to the plaintiff. (Doc. 1 ¶¶31–34). It is also
redundant as it is restated several times, near verbatim, in the defendant’s
responses to the plaintiff’s complaint. (Doc. 5 ¶¶18, 31, 33). It is also restated
verbatim in the defendant’s twentieth affirmative defense. (Id. at 8). It is also
a more narrow reiteration of the defendant’s fourteenth affirmative defense
which states that the defendant “complied with the provisions of the [FMLA].”
(Id. at 7). This portion of the fifteenth affirmative defense is not an affirmative
defense, but a negation of the allegations in the plaintiff’s complaint.
Moreover, it is redundant to the defendant’s responses, its fourteenth
affirmative defense, which the plaintiff does not challenge, and the plaintiff’s
twentieth affirmative defense, which the plaintiff does challenge.
The second portion of the defendant’s fifteenth affirmative defense
alleges that the plaintiff failed to provide a certification from a health care
provider in compliance with the FMLA. This secondary part of the defendant’s
fifteenth affirmative defense is directly stated in one of the defendant’s
responses to the plaintiff’s complaint. (Id. ¶18). It is also a more narrow
reiteration of the defendant’s twenty-third affirmative defense, which states
that the plaintiff “failed to comply with the provisions of the [FMLA].” (Id. at 8).
It is also a plainer reiteration of the defendant’s “waiver” affirmative defense,
the fifth affirmative defense, according to the defendant’s briefing. (Doc. 14
at 6–7). Therefore, this second portion of the defendant’s fifteenth affirmative
8
defense is redundant on many counts. The entirety of the defendant’s
fifteenth affirmative defense is restated in various locations in the defendant’s
answer and, as a result, the court will strike this defense as redundant.
The defendant’s seventeenth and eighteenth affirmative defenses are
also redundant. The seventeenth affirmative defense simply states that “[n]o
leave of absence was offered to or discussed with [the] [p]laintiff.” (Doc. 5 at
8). The eighteenth affirmative defense states that “[n]umerous employees
were laid off at or around the time of [the] [p]laintiff’s termination due to the
lack of work in the oil and gas industry.” (Id.). These same factual matters are
repeated in the defendant’s responses to the plaintiff’s complaint allegations.
(Id. ¶¶24, 27). Again, these so-called affirmative defenses negate allegations
in the complaint—allegations that the plaintiff discussed his need for leave
with the defendant, was told that he could use his accrued vacation time to
cover his leave, and that no other employees were laid off at or around the
time of the plaintiff’s termination. (Doc. 1 ¶¶16–17, 24, 27). Again, these are
not affirmative defenses but negations to the plaintiff’s pleading of facts. They
are redundant when compared to the defendant’s direct responses.
Accordingly, the court will strike the defendant’s seventeenth and eighteenth
affirmative defenses as such.
The defendant’s twentieth affirmative defense is also redundant. It is a
near verbatim reiteration of the defendant’s fifteenth affirmative defense which
has already been deemed redundant when compared to the defendant’s
fourteenth affirmative defense and the defendant’s direct responses to the
9
plaintiff’s complaint. This affirmative defense directly negates the plaintiff’s
allegations that he did not receive the required FMLA notice. (Id. ¶¶31–34).
Thus, it is not a true affirmative defense, but a denial that the defendant
properly pleaded in its responses to the plaintiff’s complaint. (Doc. 5 ¶¶18, 31,
33). As such, it is redundant and will be stricken.
The defendant’s response to the above redundancies is that it seeks to
avoid waiver and that the plaintiff has not shown any prejudice. The court
finds that the above defenses are properly preserved in the form of specific
denials—the defendant’s specific responses to the plaintiff’s allegations.
Moreover, the prejudice caused by duplicative affirmative defenses that bear
no relationship to actual affirmative defenses and simply reiterate negations
to the plaintiff’s allegations is clear here. The redundancy of possibly litigating
the same issue will naturally lead to duplication of work, delay, and a waste
of judicial and litigant resources, as well as confuse the proper burdens of
proof. Restating the same basic defense, affirmative or negative, a multitude
of times unnecessarily confuses the issues in the case and will likely
complicate relatively straightforward issues during discovery. Accordingly, the
court will strike the defendant’s fifteenth, seventeenth, eighteenth, and
twentieth affirmative defenses as redundant.
B.
The Defendant’s Seventh, Twelfth, Sixteenth, and Nineteenth
Affirmative Defenses
The court will also strike the defendant’s nineteenth affirmative defense
and part of the defendant’s sixteenth affirmative defense. In addition, the court
10
will strike the defendant’s seventh and thirteenth affirmative defenses. The
defendant’s sixteenth and nineteenth affirmative defenses provide a long
narrative of events summarized to the following allegations: (1) the plaintiff
was terminated due to lack of work; and (2) the plaintiff agreed to receive
unemployment compensation and accrued paid vacation instead of unpaid
FMLA leave. (Doc. 5 at 7–8). These same basic allegations are repeated in
several instances in the defendant’s direct responses to the plaintiff’s
complaint allegations. (Id. ¶¶22, 23, 25, 26, 35, 36, 38, 39).
The second part of the defendant’s sixteenth affirmative defense—that
the plaintiff agreed to unemployment compensation instead of FMLA leave—
is also repackaged in the defendant’s seventh and twelfth affirmative
defenses. The defendant’s seventh affirmative defense relies upon the
doctrine of consent. (Id. at 7). The defendant’s twelfth affirmative defense
relies on the doctrine of release. (Id.). These affirmative defenses are founded
on the defendant’s allegation that the plaintiff chose to pursue his options for
unemployment compensation and not FMLA leave. (Doc. 14 at 9–11).
The court agrees with the plaintiff that there is no authority that consent
is a valid affirmative defense to a statutory FMLA action. C.f. Mayfield v.
County of Merced, No. 1:13-CV-1619-LJO-BAM, 2015 WL 791309, at *4 (E.D.
Cal. Feb. 25, 2015) (striking consent defense to a Title VII employment claim
as legally insufficient). Consent is typically asserted as an affirmative defense
to a common law tort claim. See Restatement (Second) Torts §892A (1979)
(explaining the effect of consent in a tort claim). One cannot say that a person
11
can “consent” to a statutory violation. “Employees cannot waive, nor may
employers induce employees to waive, their prospective rights under [the]
FMLA.” 29 C.F.R. §825.220(d); Conshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 142 (3d Cir. 2004). If an employee cannot waive his rights, it makes
little sense to allow him to consent to a violation of those rights. Thus,
assuming the plaintiff agreed to receive unemployment compensation, this
could not serve as “consent” to the defendant’s violation of the FMLA.
Moreover, the defendant’s consent defense is redundant as it is directly
restated in the defendant’s twenty-second affirmative defense. (Doc. 5 at 8
(alleging that the plaintiff “chose to pursue FMLA leave”)). The plaintiff does
not challenge this particular affirmative defense. Accordingly, the court will
strike the defendant’s seventh affirmative defense and the second part of
sixteenth affirmative defense as legally insufficient and redundant.
The court will also strike the defendant’s twelfth affirmative defense
founded on the doctrine of release. An employee may settle or release claims.
29 C.F.R. §825.220(d); see also generally Whiting v. The John Hopkins
Hosp., 416 F. App’x 312, 314–15 (4th Cir. 2011) (explaining the changes to
29 C.F.R. §825.220(d) to clarify and make explicit that employees may
voluntarily release claims). Thus, a release could serve as a valid affirmative
defense to an employee’s statutory FMLA action.
Here, the defendant has not indicated anywhere in its answer that the
plaintiff agreed to release FMLA claims. At a minimum, the defendant must
fairly notify the plaintiff of “the specific contractual agreement or other act that
12
forms the basis of [that] defense.” EEOC v. Courtesy Bldg. Servs., No. 3:10CV-1911-D, 2011 WL 208408, at *4 (N.D. Tex. Jan. 21, 2011). Agreeing to
receive unemployment compensation, the defendant’s allegation, is not the
same as agreeing to release statutory claims.
In response, the defendant argues that the plaintiff “cannot agree to one
course of action which benefitted him and then assert that [the] [d]efendant
violated the law for allowing him to do so.” (Doc. 14 at 10). This broad
proposition appears fair, but is followed by no legal support. Moreover, it is
undoubtable true that agreeing to do one thing does not mean that a person
is voluntarily agreeing to another, unstated thing, in this case the release of
claims. Thus, the defendant’s position that the plaintiff released his FMLA
claims solely because he agreed to received unemployment compensation is
legally untenable and will be stricken.
The defendant’s nineteenth affirmative defenses and the first portion of
the sixteenth affirmative defense offer the same basic proposition to the
court—the defendant terminated the plaintiff because there was a lack of work
and the defendant no longer needed the plaintiff as an employee. This
allegation rejects and contradicts the plaintiff’s allegations that the defendant
terminated and retaliated against the plaintiff because the plaintiff was
attempting to exercise his FMLA rights. (Doc. 1 ¶¶35, 37). It speaks to the
true motivations and causation for the firing. The court will allow the first part
of the sixteenth affirmative defense to stand for this proposition, as it most
clearly stated there. (See Doc. 5 at 8 (stating the “[p]laintiff’s employment was
13
terminated due to lack of work”). The court will strike the nineteenth
affirmative defense as duplicative of the sixteenth.
The court will allow the defendant’s proffered reason for the firing to
stand as an affirmative defense due to the nature of FMLA interference and
retaliation cases. In an interference claim, an employee must show that he or
she was entitled to FMLA benefits and that he or she was denied that benefit.
Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). A legitimate
business justification for the interference is not a defense to the claim. Id. at
119–20. A defendant can, however, mitigate its liability by then showing that
the employee’s position would have been eliminated even if the employee had
not requested or taken FMLA leave. 29 C.F.R. §825.216(a); Model Civ. Jury
Instr. 3d Cir. 10.1.1 (Mar. 2017) (citing Parker v. Hanhemann Univ. Hosp.,
234 F. Supp. 2d 478, 487 (D.N.J. 2002)); see also Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012) (stating that an
employer could defeat the employee’s interference claim if it can show a
reason for the firing that was unrelated to the employee’s exercise of his or
her FMLA rights). Thus, if the defendant can show he would have terminated
the plaintiff regardless of the plaintiff’s need for leave due to a lack of work,
this will serve as a valid and recognized affirmative defense. Though the
defendant’s sixteenth affirmative defenses could be more clearly stated to
conform with case law, the court will allow the defendant’s sixteenth
affirmative defense to stand for this defense.
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Moreover, the plaintiff’s claim are also based on the defendant’s alleged
retaliatory or discriminatory act under the FMLA, the plaintiff’s termination.1
There are two frameworks for this type of claim, a mixed-motive framework
and a pretext framework. Under a mixed-motive framework, a plaintiff must
prove that the request for leave or the taking of leave was a motivating or
negative factor in the employer’s decision and the employer can defend that
action by showing it would have made the same employment decision even
if there was no unlawful motive. Conshenti, 364 F.3d at 147; see also Egan
v. Del. River Port Auth., 851 F.3d 263 (3d Cir. 2017) (reaffirming the mixedmotive framework in FMLA retaliation/discrimination cases even in the
absence of direct evidence of discrimination). For this “same-decision”
defense, the burden on the employer acts the same way an affirmative
defense would, even if the pleading burden has not been formally established.
1
The plaintiff labels his claim as an “interference and retaliation” claim.
(Doc. 1 at 5). It is clear, however, that the plaintiff is not alleging retaliation
under 29 U.S.C. §2615(b) because he has not alleged he engaged in any
protected activity. Instead, the court interprets the plaintiffs “retaliation” claim
as a discrimination claim under 29 U.S.C. §2615(a)(2) and 29 C.F.R.
§825.220(c). See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir.
2009) (noting that “it is not clear whether firing an employee for requesting
FMLA leave should be classified as interference with the employee's FMLA
rights, retaliation against the employee for exercising those rights, or both,”
and concluding that “firing an employee for [making] a valid request for FMLA
leave may constitute interference with the employee's FMLA rights as well as
retaliation against the employee”).Specifically, the plaintiff’s complaint alleges
that the defendant “violated the FMLA by terminating [the] [p]laintiff . . . in
retaliation for exercising his rights under the FMLA.” (Doc. 1 ¶44). This is not
retaliation in the strict sense under 29 U.S.C. §2615(b), but is actionable
under 29 U.S.C. §2615(a)(2). Erdman, 582 F.3d at 509.
15
See Model Civ. Jury Instr. 3d Cir. 10.1.2 n. 16 (taking no position regarding
the burden of pleading the same-decision defense).
Under the pretext framework, the plaintiff must show that the request for
leave or the taking of leave was a determinative factor in the employer’s
decision after which the burden of production shifts to the defendant to show
a legitimate, nondiscriminatory reason for the firing. Lichtenstein, 691 F.3d at
302 (describing the McDonnell Douglas pretext framework in an FMLA case).
The plaintiff must then persuade the jury that the proffered reason is merely
pretext; the burden of persuasion always remains with the plaintiff. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Under this framework, the
proffered reason does not operate the exact way a formal affirmative defense
would operate and is more like a negation of the defendant’s prima facie
case.
The court does not know at this early stage which framework the plaintiff
will use to prove his claim. Moreover, the court sees no harm in allowing the
defendant’s proffered reason to stand as an affirmative defense under either
framework
given
the
unique
burden-shifting
nature
of
FMLA
retaliation/discrimination claims. Accordingly, the court will not strike the
portion of the defendant’s sixteenth affirmative defense that offers a
nondiscriminatory reason for the firing, but will strike the defendant’s
nineteenth defense as redundant.
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C.
The Defendant’s Eighth, Ninth, Tenth, and Eleventh
Affirmative Defenses
With respect to the defendant’s eight through eleventh affirmative
defenses, these affirmative defenses bear no relationship to the plaintiff’s
statutory FMLA action. The court will strike them on this ground. The
defendant’s eight affirmative defense asserts the doctrine of accord and
satisfaction. (Doc. 5 at 7). The defendant’s ninth affirmative defense asserts
the doctrine of payment. (Id.) The defendant’s tenth affirmative defense
asserts the doctrine of assumption of risk. (Id.). The defendant’s eleventh
affirmative defense asserts the doctrine of license and/or privilege. (Id.).
The defendant does not defend these affirmative defenses as legally
recognizable in an FMLA action but, instead, points to the fact that no case
law advises that these defenses should be stricken. (Doc. 14 at 10–11). No
FMLA case law should assert these basic points of law, as an FMLA action,
by its nature, would not include allegations of a contractual nature, a wrongful
payment to the defendant, or allegations of personal injury as a basis for the
claim. Although the above defenses are affirmative defenses to various claims
for relief, they are not legally cognizable as applied to a statutory FMLA action
and under no set of pleaded or inferable facts could the court legally find for
the defendant on these asserted grounds. Newborn Bros. Co., 299 F.R.D. at
93.
The court views the inclusion of the above affirmative defenses as either
an error based on boilerplate documents or an incorrect reading of the
plaintiff’s claims for relief. In either event, they confuse the proper legal issues
17
under the FMLA, issues that are resolved by the statute itself, U.S.
Department of Labor regulations, and case law interpreting the FMLA.
Accordingly, the court will strike these affirmative defenses as legally
insufficient.
D.
The Defendant’s Thirteenth and Sixth Affirmative Defenses
The defendant’s thirteenth defense will be stricken based on the
defendant’s concession. This defense is premised on the FMLA’s statute of
limitations. (Doc. 5 at 7). The FMLA’s limitations period is two years, unless
there is a “willful violation,” in which case the period is extended to three
years. 29 U.S.C. §2617(c). The plaintiff’s alleges in his complaint that his
termination occurred on June 15, 2016. (Doc. 1 ¶25). His complaint was filed
in this court on December 6, 2016, approximately six months after the alleged
termination. The defendant did not provide contradictory dates in its answer.
The defendant concedes “that the statute of limitations is inapplicable in this
case.” (Doc. 14 at 11). Accordingly, the court will save the parties the time
and expense of litigating this statute of limitations issue and strike this
affirmative defense as the parties now agree that it is not truly an issue.
Although the defendant concedes that the statute of limitations is not
applicable to bar the plaintiff’s claims in this case, the defendant argues that
its sixth affirmative defense asserting laches should stand. Under the FMLA’s
two-year limitations period, the plaintiff’s filing was clearly timely having been
18
filed within six months of the termination and the defendant’s laches defense
does not apply.
In an opinion dealing with the statute of limitations in the Patent Act, the
Supreme Court in SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod.,
LLC, 137 S. Ct. 954 (2017) fully detailed the history and nature of the
equitable defense of laches. The Supreme Court also reaffirmed its decision
in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) which held
that the defense of laches could not be used to bar a suit brought within the
Copyright Act’s statutory limitations period. The Supreme Court explained as
follows:
When Congress enacts a statute of limitations, it
speaks directly to the issue of timeliness and provides
a rule for determining whether a claim is timely
enough to permit relief. The enactment of a statute of
limitations necessarily reflects a congressional
decision that the timeliness of covered claims is better
judged on the basis of a generally hard and fast rule
rather than the sort of case-specific judicial
determination that occurs when a laches defense is
asserted. Therefore, applying laches within a
limitations period specified by Congress would give
judges a “legislative-overriding” role that is beyond the
Judiciary’s power. As we stressed in Petrella, “courts
are not at liberty to jettison Congress’ judgment on
the timeliness of suit.”
SCA Hygiene Prod. Aktiebolag, 137 S. Ct. at 960 (quoting Petrella, 134 S. Ct.
at 1974, 1967 (internal citations omitted). In contrast, where no statute of
limitations applies laches may apply. Petrella, 134 S. Ct. at 1973; Brzozowski
v. Corr. Physician Servs., Inc., 360 F.3d 173, 181 (3d Cir. 2004).
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There are exceptions to the above rule. In a hostile work environment
claim under Title VII the statutory time limitation can be used in conjunction
with a laches defense. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
121–22 (2002). In those type of claims, the actual claim or basis for the claim
may extend over long periods of time based on a serious of separate acts, as
opposed to arising after some discrete, identifiable act. See Petrella, 134 S.
Ct. at 1970 n. 7 (noting the distinction in Morgan between discrete acts
separately actionable and conduct that is cumulative in effect). In those
instances, laches is invoked to save untimely claims that are still technically
within the limitations period due to the very nature of the actionable conduct
as ongoing. See id. at 1975 n. 16 (explaining that laches is invoked in hostile
work environment claims “to limit the continuing violations doctrine’s potential
to rescue untimely claims, not claims accruing separately within the limitations
period.” (emphasis in original)). In comparison, the Supreme Court has “never
applied laches to bar in their entirety claims for discrete wrongs occurring
within a federally prescribed limitation period.” Id. at 1975.
Here, there is nothing unusual that would make laches applicable to the
plaintiff’s claim for relief. His claim is based on a single, identifiable action by
the defendant, his termination on June 15, 2016. The plaintiff’s complaint was
filed within six months of that termination, well within the two and three-year
limitations periods established by Congress. Accordingly, the defendant’s
laches affirmative defense is legally insufficient and will be stricken.
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E.
The Defendant’s Fifth Affirmative Defense
Finally, the court addresses the defendant’s fifth affirmative defense
grounded in the doctrines of “waiver and/or estoppel.” (Doc. 5 at 6). The court
has previously explained that the rights created under the FMLA cannot be
waived, though they can be released. In response, the defendant argues that
a waiver occurred based on the plaintiff’s failure to provide a health
certification, which an employer may require under 29 C.F.R. §825.305(a).
This argument is another way of saying that the defendant complied with the
FMLA, which is explicitly stated in the defendant’s twenty-third defense. (Doc.
5 at 8). This compliance is not a “waiver” of rights, but a negation of the
plaintiff’s allegations regarding the defendant’s FMLA compliance. To the
extent the plaintiff seeks to preserve its argument regarding the health
certification, this argument is preserved directly in the defendant’s responses
to the plaintiff’s complaint, (id. ¶18), and the defendant’s twenty-third defense,
which the plaintiff does not challenge. Accordingly, the defendant’s waiver
defense, nestled within its fifth affirmative defense, is legally insufficient and
redundant and will be stricken.
The defendant’s equitable estoppel defense will also be stricken. In two
non-precedential opinions, the Third Circuit Court of Appeals has recognized
the availability of estoppel in an FMLA action. Palan v. Inovio Pharmaceuticals
Inc., 653 F. App’x 97 (3d Cir. 2016); Leese v. Adelphio Vill. Inc., 516 F. App’x
192 (3d Cir. 2013). Thus, the court has joined a number of circuits who have
recognized estoppel in the FMLA context. See Palan, 653 F. App’x at 100 n.
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5 (collecting cases). In none of these decisions, however, is estoppel used as
a defense to bar an employee’s FMLA claim. Instead, estoppel is used to
estop a defendant from asserting that the employee is ineligible under the
FMLA based on representations made to the employee. In those
circumstances estoppel is appropriate where there is a “definite
misrepresentation” indicating “affirmative conduct . . . that was designed to
mislead or was unmistakably likely to mislead [the employee].” Id. at 101. In
addition, there must be detrimental reliance indicated by the fact that the
employee changed his or her position due to the misrepresentation. Id. at
102.
Nothing in this language suggests that the employee’s entire FMLA
claim would be barred by the doctrine of estoppel. If an employee cannot
voluntarily waive FMLA claims, it would make little sense if he or she could be
estopped from asserting those same claims because the employee’s actions
led the employer to believe those claims were waived. Cf. Escriba v. Foster
Poultry Farms, 793 F. Supp. 2d 1147, 1169 (E.D. Cal. June 3, 2011) (granting
summary judgment in favor of the plaintiff with respect to the defendant’s
waiver, estoppel, laches, acquiescence, and/or consent affirmative defenses
based on the plaintiff’s inability to waive FMLA rights). The defendant should
know that “[e]mployee’s cannot waive, nor may employer’s induce employees
to waive, their prospective rights under the FMLA.” 29 C.F.R. §825.220(d).
The defendant’s allegations regarding the plaintiff’s conduct and his
alleged choice to pursue unemployment compensation instead of FMLA leave
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are also adequately preserved as a defense to factual matters in numerous
instances in the defendant’s answer. These allegations are preserved directly
in the defendant’s responses, (Doc. 5 ¶¶22, 23, 25, 26, 35, 36, 38, 39), and
in the defendant’s twenty-second affirmative defense, which the plaintiff does
not challenge. (Id. at 9 (asserting that the plaintiff “chose not to pursue FMLA
leave)). Labeling this allegation estoppel where there is no legal support for
doing so unnecessarily confuses the matters to be litigated in this case and
is needlessly redundant. The same allegation need not be repackaged in a
multitude of ways to preserve the defendant’s argument. Accordingly, the
court will strike the defendant’s fifth affirmative defense.
IV.
CONCLUSION
In light of the court’s decision above, the plaintiff’s motion to strike,
(Doc. 9), will be granted in part and denied in part. The court will strike the
defendant’s fifth, sixth, seventh, eight, ninth, tenth, eleventh, twelfth,
thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, and twentieth
affirmative defense as they are listed in the defendant’s answer to the
plaintiff’s complaint. (Doc. 5). These affirmative defenses are redundant
and/or legally deficient as applied to the plaintiff’s FMLA action. The court will
also strike the defendant’s sixteenth affirmative defense, in part. The portion
of the defendant’s sixteenth affirmative defense that proffers an alternative
business reason for the plaintiff’s firing due to a lack of work will stand. The
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court will strike the remaining portion of the defendant’s sixteenth affirmative
defense as redundant and/or legally deficient. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: September 28, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2412-01.wpd
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