Bell v. America's Powersports, Inc., Case No. CIV-20-121-R

DONNA BELL, Plaintiff, v. AMERICA'S POWERSPORTS, INC., andAPS OF OKLAHOMA, LLC, Defendants.

Case No. CIV-20-121-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

May 6, 2020

ORDER

Before the Court is Plaintiff's Motion to Strike Affirmative Defenses, Doc. No. 13. Defendants have responded in opposition to the motion, Doc. No. 14, and Plaintiff has replied, Doc. No. 15. Upon review of the parties' submissions, the Court grants Plaintiff's motion in part and denies the motion in part.

I. Background

Plaintiff brought this action pursuant to Title VII of the Civil Rights Act, and the Oklahoma Anti-Discrimination Act ("OADA"). Plaintiff alleges that she was wrongfully terminated in retaliation for reporting gender discrimination. She moves to strike Defendants' denials at paragraph 3, 18 and 22, and Defendants' Affirmative Defenses Nos. 2, 4, 5, 7, 10, and 11, which state:

3. Defendants deny each and every allegation contained in Paragraph 3 of Plaintiff's Petition. Defendants assert that all actions taken with respect to Plaintiff's employment, including the termination thereof, were taken in good faith and for nondiscriminatory, non-retaliatory business reasons. . . .

18. Defendants deny each and every allegation contained in Paragraph 18 of Plaintiff's Petition. All actions taken with respect to Plaintiff's employment, including the termination thereof, were taken in good faith and for non-discriminatory, non-retaliatory business reasons. . . .

22. Defendants deny each and every allegation contained in Paragraph 22 of Plaintiff's Petition. Defendants further assert that Plaintiff is not entitled to any relief whatsoever, including all such relief requested in Paragraph 22 of Plaintiff's Petition. Additionally, at all times, Defendants acted in good faith with respect to Plaintiff's employment, including the termination thereof. . . .

2. Plaintiff may have failed, in whole or in part, to exhaust her administrative remedies as to any claims, subject to the jurisdiction of the EEOC, which were not a part of her EEOC Charge Nos. 564-2019-01481 and 564-2019-01480. . . .

4. Non-discrimination, non-harassment, and anti-retaliation policies and procedures were adequately and reasonably disseminated and enforced by Defendant, APS of Oklahoma, LLC, and Plaintiff's claims are barred to the extent she failed to properly follow procedures for reporting alleged harassment and discrimination, and/or to the extent prompt, appropriate, and effective action was taken to prevent or correct any such behavior and/or harassment following notification thereof.

5. Defendants deny the allegations regarding the alleged conduct of Robert Dodson and David Baymen. Alternatively, Defendants are not liable for the actions of any employee acting outside the scope of their employment. Any damages suffered by Plaintiff are a proximate result of the conduct of third parties for whom Defendant is not responsible, and in no way were caused by, or otherwise attributable to Defendants. Accordingly, any such damages should either be completely denied, or apportioned according to the evidence. . . .

7. Defendants have not engaged in any conduct that would justify imposition of punitive damages. Defendants' actions, if any, were taken in good faith, and Defendants had reasonable grounds to believe that its actions were not in violations of the laws alleged. . . .

10. Plaintiff's damages may be limited by the doctrine of after acquired evidence.

11. Any damages suffered by Plaintiff are a proximate result of her own conduct and in no way were caused by or otherwise attributable to Defendant. Accordingly, any such damages should either be denied completely, or apportioned according to the evidence.

Doc. No. 11, p. 2-8.

II. Standard of Review

Federal Rule of Civil Procedure 8(c) requires defendants to set forth specified affirmative defenses in an answer along with any other matters constituting "an avoidance or affirmative defense." If an affirmative defense is legally insufficient, however, Rule 12(f) permits a court to strike it. Fed. R. Civ. P. 12(f). "The purpose of Rule 12(f) is to save the time and money that would be spent litigating issues that will not affect the outcome of the case." Lofton v. FTS Int'l Mfg., LLC, No. CIV-17-242, 2017 WL 3741982, at *5 (W.D. Okla. Aug. 30, 2017) (internal quotation marks and citation omitted). "It also serves to minimize delay, prejudice, and confusion by narrowing the issues for discovery and trial." United States v. Land O'Lakes, Inc., No. CIV-16-170-R, 2017 WL 706346, at *4 (W.D. Okla. Feb. 22, 2017) (internal quotation marks and citation omitted).

"[A]ffirmative defenses . . . are subject to the pleading requirements of Rule 8 . . . and Bell Atlantic Corp v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) . . . ." Gibson v. Officemax, Inc., No. CIV-08-1289-R, slip op. at 2 (W.D. Okla. Jan. 30, 2009) (unpublished).¹ In that regard, when considering a motion to strike affirmative defenses, federal courts "must examine each affirmative defense at issue to ascertain whether any question of fact or law is raised by the defense. If a defense raises such a question, then the motion to strike is improper and the issue must be decided subsequently on the merits, when more information is available." Land O'Lakes, Inc., 2017 WL 706346,at *4 (internal quotation marks and citation omitted). "[T]he federal courts generally view motions to strike with disfavor and infrequently grant such requests." Lofton, 2017 WL 3741982, at *5 (internal citation and quotation marks omitted). Nevertheless, "striking an affirmative defense rests within the discretion of the trial court," Id. (internal citation and quotation marks omitted).

III. Affirmative Defense No. 2.

First, Plaintiff asserts that Defendants' second affirmative defense, regarding Plaintiff's failure to exhaust administrative remedies, is merely hypothetical and should be stricken because Defendants do not identify which claims Plaintiff failed to exhaust. Doc. No. 13, p. 2-4. Plaintiff contends that her only claims are for wrongful termination under Title VII of the Civil Rights Act and the OADA, and that each claim has been appropriately exhausted with the Equal Employment Opportunity Commission (EEOC). Id. As a justification for their affirmative defense, Defendants assert that Plaintiff's Petition contains language that implicates claims other than wrongful termination, and that the factual allegations in Plaintiff's Petition differ from those contained in Plaintiff's Charges of Discrimination filed with the EEOC. Doc. No. 14, p. 4-5. Moreover, Defendants suggest that new theories of relief, not presented to the EEOC, might arise during discovery. Id.

While the Court agrees that Plaintiff's Petition was less than clear, see Doc. No. 1-1 (seeking relief for "gender discrimination, including retaliation . . . .), Plaintiff has clarified that she is only asserting a claim for retaliation—i.e., her wrongful termination. Doc. No. 13, p. 3. If Plaintiff seeks to amend her complaint in the future to include additional theories of gender discrimination, Defendants will have an opportunity to assertadditional affirmative defenses. As it stands, this affirmative defense amounts to a request to reserve a defense to a hypothetical claim that Plaintiff has not brought against the Defendants. What's more, the defense fails to give Plaintiff adequate notice of which claims, if any, Plaintiff purportedly failed to exhaust. The Court finds the defense legally insufficient as currently alleged.

To the extent Defendants contend that Plaintiff's claim for wrongful termination was not administratively exhausted due to differences in her Petition as compared to her charges filed with the EEOC, the Court grants Defendants fourteen days from the date of this order to amend their affirmative defense to include additional factual detail. If no amended answer is filed within fourteen days of this order, Defendants' second affirmative defense will be deemed stricken without need of further order from the Court. See Leonzetta Williams v. Encore Healthcare, LLC, Case. No. CIV-12-0906-F, slip op. at 4 (W.D. Okla. Dec. 13, 2012).

IV. Affirmative Defense No. 4.

Next, Plaintiff argues that Defendants' fourth affirmative defense—concerning company policies and Plaintiff's alleged failure to report harassment—merely recites the defense recognized in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), without providing any facts demonstrating how the defense applies. Doc. No. 13, pp. 4-5. Plaintiff also asserts that the defense is only relevant in response to a hostile work environment claim that does not culminate in a tangible adverse employment action, a claim she states is not alleged in this action. Id. Defendants respond that Plaintiff's Petition alleges she was subjected to a sexually hostilework environment, and that even if that weren't the case, a Faragher/Ellerth defense is relevant to Plaintiff's retaliation claim. Doc. No. 14, pp. 6-7. Defendants also argue that Plaintiff is not prejudiced by the defense. Id.

The Tenth Circuit has made clear that "the Faragher/Ellerth defense does not apply in cases where the employer takes an adverse employment action[] . . . [such as] terminat[ing] [an individual's] employment." McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1141 (10th Cir. 2006). Here, the Defendants terminated Plaintiff's employment. Thus, Defendants' Faragher/Ellerth defense does not apply. Plaintiff's Motion to Strike Defendants' fourth affirmative defense is granted.

V. Affirmative Defense Nos. 5 and 11.

Plaintiff further argues that Defendants' fifth and eleventh affirmative defenses, alleging comparative or contributory fault, are mere denials or legally deficient affirmative defenses. Doc. No. 13, pp. 5-6. Defendants do not address either of Plaintiff's arguments but contend that...