Grant v. Bank of America, N.A. et al

Filing 19

OPINION & ORDER: Plaintiff's Motion to Strike, Doc. 15, is DENIED without a hearing. Signed by District Judge Henry C. Morgan, Jr on 2/25/14. (tbro)

JliLED
IN THE UNITED STATES DISTRICT COURT

FEB 2 5 2014

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CLERK, U S. DIS7RIC1 COURT

SONYA GRANT,
Plaintiff,

v.

Civil Case No. 2:13-cv-342

BANK OF AMERICA, N.A., ET AL.,
Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff Sonya Grant's ("Plaintiff) Motion to Strike
Certain Affirmative Defenses ("Motion"), Doc. 15, asserted in Defendant Bank of America

("BOA") and Defendant Stacy Klcvay's (collectively "Defendants") Answer. See Fed. R. Civ.
P. 12(f). After careful examination of the parties' briefs and the record, this Court has
determined that oral argument is unnecessary because the facts and legal arguments are

adequately presented in the parties' filings, and because the decisional process would not be
significantly aided by a hearing. For the foregoing reasons, Plaintiffs Motion to Strike is
DENIED.

I.

A.

BACKGROUND

Factual History

Plaintiff Sonya Grant, a Black female, worked for BOA as a Vice President and banking
center manager. Doc. ^[ 1, 8. In 2009, BOA rated Plaintiffs performance as "Meets
Expectations" at the end of every quarterly and year-end performance review. Id. at ^[ 10.
Defendant Klevay, a White female, was assigned as BOA's Senior Vice President on February 1,
1

2010, making her Plaintiffs direct supervisor. Id at UK 11-12. Thereafter, Plaintiff contends
she was denied the same resources as other similarly situated White and Asian managers; was

disparately disciplined for passing performance review scores; and was ultimately terminated
rather than being reassigned, as other managers had been when their performance was at issue.
Id at T| 13-14.

Specifically, Plaintiff complains that by April 2010, Defendants fired six of the fifteen to
twenty banking associates under her direction, failed to provide her center with experienced

replacements for the fired employees, and disregarded her concerns about the effects of having a

high number of inexperienced personnel on site. Id. at KK 19-20. By contrast, Plaintiff claims
BOA provided other, similar banking centers with both a greater number and more experienced
employees. Id at K 19.

Additionally, Plaintiff believes that BOA disciplined her on mere pretexts in order to give
cause to terminate her. On March 29, 2010, Plaintiff received a written warning for her passing

assessment score.1 She was then issued two morewritten warnings concerning her performance

in rapid succession on April 6, 20102 and June 1, 2010, id atK18, K20, before she was
terminated on July 23, 2010. Doc. 10 at 1. Plaintiff contends that her termination equates to

disparate treatment, as two other White BOA managers received transfers or demotions rather
than terminations as a result of their performance issues. Doc. 1 at K20.

In their Answer, Doc. 14, Defendants filed several affirmative defenses, ten of which are

the subject of the instant Motion. They are as follows:
3. To the extent the scope of the Complaint exceeds the scope of
the Charge of Discrimination filed by Plaintiff with the Equal
1A "passing score" is defined as "5" according to BOA policy, which is what thePlaintiff received based upon the
Banking Center International Control Review assessment tool. See Doc. 1 at K 16-17.

2Plaintiff asserts thatthis "warning" citesa BOA policy requiring continuous "lobbyleadership" that does notexist.
Doc. 1 at K113, 14.

Employment Opportunity Commission (the "EEOC") and the
EEOC's investigation reasonably related to those charges, Plaintiff
may not pursue claims outside the scope of the Charge. 4. To the
extent Plaintiff has suffered any damage or injury, which is
expressly denied, Plaintiff has failed to mitigate her damages and,
therefore, her claims for relief are barred.... 6. Plaintiff

unreasonably failed to take advantage of preventive or corrective
opportunities provided by Defendants to avoid harm. 7. Because of
BANA's good faith efforts to comply with employment
discrimination laws, and its promulgation and maintenance of
policies and procedures designed to prevent and correct any
alleged discrimination in the workplace, Plaintiff cannot recover
punitive damages based on allegations of discrimination by
BANA's employees. 8. Defendants have, at all times, treated
Plaintiff in a fair and non-discriminatory manner and have
legitimate business reasons for their actions. Plaintiffs claims
against Defendants are frivolous and brought in bad faith.
9. Plaintiff, by her actions, violated Defendants' policies, rules
and/or standards of employee conduct and is therefore estopped,
has waived, or is otherwise precluded from asserting the claims for
damages or the relief which is set forth in the Complaint. 10.
Plaintiffs alleged injuries and damages, which are not admitted but
expressly denied, were proximately caused and contributed by
Plaintiffs own acts and are therefore barred or reduced in amounts

to be determined by the trier-of-fact. 11. Plaintiffs race was not a
substantial or motivating factor in any actions Defendants may
have taken relevant to her. 12. Defendants would have made the

same decisions relative to Plaintiff even absent her protected
status. 13. Defendants have acted reasonably and in good faith at
all times relevant to Plaintiffs claims and reasonably believes they
have not violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq, 42 U.S.C. § 1981, or any other applicable
laws. Doc. 14 at 5-6.

In her Motion, Plaintiff claims that objected to defenses should be struck as they fail to satisfy
the pleading requirements laid out by the Supreme Court in Bell Atlantic Corporation v.
Twomblv. 550 U.S. 544 (2007) and Ashcroft v. Iqbal. 556 U.S. 662 (2009).
B.

Procedural History

As required before filing suit, Plaintiff filed an administrative Charge of Discrimination
with the Equal Employment Opportunity Commission ("EEOC") against BOA. Id at K8. The

EEOC issued a Notice of Right to Sue letter to Plaintiff and within ninety days, on June 18,
2013, Plaintiff filed suit in this Court. Id In Count I of her Complaint, Plaintiff claims

Defendant BOA3 violated Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et secu, by
racially discriminating against her in denying her "the resources provided to other similarly
situated employees outside the protected class" and terminating her employment rather than

demoting her. Doc. 1 at KK 23-24. In Count II of her Complaint, Plaintiff claims that

Defendants violated 42 U.S.C. § 1981 by "intentionally interfere[ing] with Plaintiffs contract of
employment..." as described above, "because of their discriminatory animus towards her race."
Id at KK 30-32.

On July 17, 2013, Defendants filed a Motion to Dismiss for Failure to State a Claim and
for Lack of Subject Matter Jurisdiction, Doc. 7. Plaintiff responded in opposition on July 31,
2013, Doc. 10, and also filed a Cross Motion to Amend/Correct the Complaint ("Motion to

Amend"). Doc. 9. Defendants replied on August 6, 2013, Doc. 11, but did not oppose Plaintiffs
Motion to Amend. On October 18, 2013, the Court issued an Opinion and Order denying
Defendants' Motion to Dismiss. On November 1, 2013, Defendants filed an Answer, Doc. 14,
and on November 22, 2013, Plaintiff filed the instant Motion, Doc. 15, to which Defendants filed

a response in opposition on December 6, 2013, Doc. 17.
II.

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(f) allows a district court to strike "an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter." Whether to grant a
motion to strike under Rule 12(f) is within the sound discretion of the district court. See GTS I

Corp. v. Wildflower Int'l. Inc.. No. I:09cvl23, 2009 WL 2160451, at *4 (E.D. Va. July 17,

3While Plaintiffs Complaint, See Doc. 1, isunclear that she alleges only BOA violated Title VII rather than both
Defendants, Plaintiff clarified her allegations as to the Defendants in her Response in Opposition to Defendants'
Motion to Dismiss. See Doc. 10 at 4-5.

2009). "To grant a Rule 12(f) motion, the court must determine that the challenged allegations
are 'so unrelated to the plaintiffs claims as to be unworthy of any consideration as a defense and

that their presence in the pleading throughout the proceeding will be prejudicial to the moving
party.'" Id (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure §

1380 (2d ed. 1990)). "A plaintiff may demonstrate prejudice if the answer unclearly articulates
to which claims the affirmative defenses apply." Francisco v. Verizon South, Inc., No.
3:09cv737, 2010 WL 2990159, at *5 (E.D. Va. July 29, 2010) (citing Westbrook v. Paragon

Svs.. Inc.. No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *2 (S.D. Ala. Nov. 29, 2007)

(disapproving of "shotgun pleading of affirmative defenses" when they fail to distinguish among
multiple claims presented in a complaint)).

"Rule 12(f) motions are generally viewed with disfavor "because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory
tactic." Waste Mgmt. Holdings. Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal

quotations omitted). "Traditionally, it imposes a sizable burden on the movant, and courts
typically strike defenses only when they have no possible relation to the controversy.

Lopez v.

Asmar's Mediterranean Food, Inc.. No. I:10cvl218, 2011 WL 98573, at *1 (E.D. Va. Jan. 10,

2011) (internal quotations omitted). However, "whenever granted, the defendant should
generally be given leave to amend." Palmer v. Oakland Farms, Inc., No. 5:10cv29, 2010 WL
2605179, at *2 (W.D. Va. June 24, 2010): see also Francisco, 2010 WL 2990159 at *10
(granting defendant leave to amend its answer after the court struck some of the defenses in the
answer).

Regarding how to sufficiently plead a defense in a responsive pleading, Federal Rule of

Civil Procedure 8(b)(1)(A) provides that "a party must... state in short and plain terms its

defenses to each claim asserted against it." "Prior to the Supreme Court's decisions in Twomblv

and Iqbal, the United States Court of Appeals for the Fourth Circuit held that general statements
of affirmative defenses were sufficient provided they gave plaintiffs fair notice of the defense."
Francisco. 2010 WL 2990159 at *6 (citing Clem v. Corbeau. 98 Fed. Appx. 197, 203 (4th Cir.
2004) (finding that the defendant's answer "sufficiently encapsulated the elements" of an
affirmative defense to have put the plaintiff on notice). The standard set forth in Twomblv

"requires that allegations in a claim for relief include enough factual matter, taken as true, to

plausibly suggest an entitlement to relief." Lopez, 2011 WL 98573, at *1. "To date, no appeals
courts have considered whether this standard should apply to affirmative defenses as well as

claims for relief." Id A slight majority of district courts, including those in the Fourth Circuit,

"have found that Twomblv/Iqbal should apply to affirmative defenses, though a sizeable
minority has found otherwise." Id (citations omitted).
III.

DISCUSSION

While the Eastern District of Virginia has produced two conflicting opinions as to

whether the Supreme Court's plausibility standard applies to affirmative defenses, Plaintiffurges
this court to follow Francisco v. Verizon South. Inc.. 2010 WL 2990159 (E.D. Va. July 29,

2010), in which a magistrate judge found that Twomblv/Iqbal do apply. However, on January
10, 2011, a district judge, in Lopez v. Asmar's Mediterranean Food, Inc., 1:1Ocv1218(JCC),
2011 WL 98573 (E.D. Va. Jan. 10, 2011), found that an affirmative defense need only be

pleaded in general terms and will be held to be sufficient as long as it gives the plaintiff fair
notice of the nature of the defense. Id at *2. After researching and considering the conflicting

positions, this Court believes that the minority position is most consistent with the purpose of the
Twomblv/Iqbal standards, and as such, have applied them to the motion at bar.

Plaintiff maintains that the reasoning of Iqbal and Twomblv apply to both the pleading of

claims and defenses with equal force, and has moved to strike Defendants' affirmative defenses
under Rule 12(f) on the ground that they are not plausible. However, Rule 8's language

governing the pleading of defenses does not track the language of Rule 8(a) governing the
pleading of claims, the focus of those decisions. Furthermore, the Fourth Circuit has not held

that the higher pleading standard applies to affirmative defenses. Therefore, because Rules 8(b)
and 8(c) do not require a party to "show" that it is entitled to a defense, this Court declines to
hold affirmative defenses to the same pleading standards required by Rule 8(a). Instead, this
Court looks to whether the challenged defenses are contextually comprehensible.

Applying that test here, it is clear that Defendants' affirmative defenses are, on their face,
contextually plausible and provide Plaintiff with fair notice of the nature of the defense. As

Defendants point out, Plaintiff has not alleged prejudice or unfairness in relation to Defendants'
defenses; therefore, all Defendants' defenses withstand the Plaintiffs Motion to Strike.
IV.

CONCLUSION

For the forgoing reasons, Plaintiffs Motion to Strike, Doc. 15, is DENIED without a
hearing.

The Clerk is REQUESTED to mail a copy of this Order to all counsel of record.

It is so ORDERED.

i^
Henry Coke Morgan, Jr.
Senior United States District Judge, i

HENRY COKE MORGAN, JR. (/fiM^
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, VA^

February^? , 2014