Wells v. Hi Country Auto Group
Wells v. Hi Country Auto Group
Opinion of the Court
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S SEALED MOTION FOR PARTIAL SUMMARY JUDGMENT AND TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES
THIS MATTER comes before the Court upon Plaintiffs Sealed
Background
This is a sexual harassment lawsuit based upon an allegedly hostile work environment. In her motion, Plaintiff requests that this Court strike each of Defendants’ twenty three (23) affirmative defenses set forth in Defendants’ Answer to Plaintiffs First Amended Complaint. (Doc. No. 81). Plaintiff argues that Defendants’ affirmative defenses are without factual or legal merit. Defendants agreed to withdraw their Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Eighteenth, and Twenty Second affirmative defenses. Accordingly, Plaintiffs Motion is moot as to those affirmative defenses.
Discussion
I. Legal Standard
Federal Rule of Civil Procedure 12(f) permits the court to “strike from a pleading an insufficient defense.” Fed. R.Civ.P. However, motions to strike affirmative defenses are generally disfavored. See Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1343 (D.N.M. 1995) (citations omitted). To strike a defense, its legal insufficiency must be “clearly apparent.” Id. (same). A court “must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the
The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court included, have held that the Iqbal/Twombly pleading standard does not apply to affirmative defenses. See Equal Employment Opportunity Commission v. Lockheed Martin, Civil No. 09-952 WJ/RHS (D.N.M. May 20, 2010) (Doc. 47 at 2-4); see also Falley, 787 F.Supp.2d at 1258-59 (acknowledging split in circuits and deciding that pleading standards of Iqbal and Twombly should be limited to complaints and not extended to affirmative defenses). “Unlike a plaintiff filing a complaint, a defendant asserting an affirmative defense does not bring the jurisdiction of the federal courts to bear on what was previously a private matter.” Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) (declining to apply the heightended pleading standard to affirmative defenses). Further, as the Court in Falley pointed out, “applying Twombly and Iqbal to affirmative defenses would also invite many more motions to strike, which achieves little.” Falley, 787 F.Supp.2d at 1259. Thus Plaintiffs’ motion will be decided based on the standard set forth in Fed.R.Civ.P. 8(b)(1)(A), which requires that defenses be articulated “in short and plain terms.”
II. Affirmative Defenses Seven and Twenty Shall Be Struck
Plaintiff correctly points out that Defendants’ Seventh and Twentieth affirmative defenses are really two parts of the same affirmative defense. Defendants Seventh and Twentieth affirmative defenses both address the affirmative defense set forth by the United States Supreme Court in a pair of cases handed down on the same day referred to as the Faragher/Ellerth
Plaintiff contends that Defendants are barred from raising the Faragher/Ellerth defense because the harasser, Defendant Thomas, is the president and owner of the employing company. “Every Court of Appeals to have considered this issue has held that the Faragher/Ellerth affirmative defense is unavailable when the supervisor in question is the employer’s proxy or alter ego.” Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 52-53 (2nd Cir. 2012) (citing Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003)) (holding that the Faragher/Ellerth defense is unavailable “when the harassing supervisor is ... ‘indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy’ ” (quoting Faragher, 524 U.S. at 789, 118 S.Ct. 2275) (emphasis omitted)); Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (“Vicarious liability automatically applies when the harassing supervisor is [ ] ‘indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.’ ” (quoting Faragher, 524 U.S. at 789, 118 S.Ct. 2275)); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000) (“an individual sufficiently senior in the corporation must be treated as the corporation’s proxy for purposes of liability” which “constitutes a bar to the successful invocation of the [Faragher/Ellerth ] defense.”).
Further, the EEOC’s interpretation of Title VII, as set forth in its Enforcement Guidance, is in accord with this analysis. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 1999 WL 33305874, at *18 (June 18, 1999) (“[When the alleged harasser qualifies as the employer’s proxy], the official’s unlawful harassment is imputed automatically to the employer. Thus, the employer cannot raise the [Faragher/Ellerth ] affirmative defense, even if the harassment did not result in a tangible employment action.” (footnote omitted)). The EEOC’s Enforcement Guidance is entitled to deference to the extent it has the power to persuade. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 n. 6, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (EEOC’s interpretation contained in Compliance Manual subject to deference).
The Tenth Circuit has not yet ruled on this issue. The Tenth Circuit was confronted with this question in Helm v. Kansas, 656 F.3d 1277 (10th Cir. 2011). However, the Court did not decide the issue because it determined that the harasser was not the alter-ego of the employer. See Helm, 656 F.3d at 1286 (“We have not squarely addressed whether an employer may rely on the Faragher/ Ellerth defense when a victimized employee seeks to impose liability on the employer under the alter-ego theory[]. We need not decide that issue to resolve this case, however, as we conclude that [Plaintiffs] argument fails for the reason that [the alleged harasser] did not operate as the alter ego of the [employer].”). In reaching its determina
Although the Tenth Circuit has not specifically barred the Faragher/Ellerth defense where the harasser is an alter-ego of an employer, the Court is persuaded by the reasoning of the other circuits. Where the harasser is “indisputably •within that class of an employer organization’s officials who may be treated as the organization’s proxy[,]” the affirmative defense is unavailable. See Faragher, 524 U.S. at 789, 118 S.Ct. 2275. It is clear based upon the factors set forth by the Tenth Circuit in Helm that Defendant Thomas is an a position of sufficient power to be considered the company’s proxy; it does not get any higher than the company’s president and owner. Accordingly, Defendants are not entitled to the Faragher/Ellerth defense with regard to the allegations against Defendant Thomas. Therefore, Defendants’ Seventh and Twentieth affirmative defenses are struck.
III. There is a Dispute of Fact Precluding the Court From Striking Defendants’ Eighth Affirmative Defense
Plaintiff seeks to dismiss Defendants’ Eighth affirmative defense which asserts the good faith defense set forth in the Supreme Court case, Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). In order to “avail itself of Kolstad's good-faith-compliance standard an employer must at least adopt antidiscrimination policies and make a good faith effort to educate its employees about these policies and the statutory prohibitions.” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000). Plaintiff argues that the undisputed facts show the Kolstad defense is unavailable to Defendants. However, Defendants submitted evidence that they do have antidiscrimination polices, including Plaintiff’s own signed receipt of the policies. Further, Defendants have pointed to evidence in the record that training was provided on those policies, including the testimony of Defendant Thomas and other Hi Country Auto employees Ricci Lambert and Vicki Granito. Therefore, there is a dispute of fact regarding whether training was provided regarding Defendants’ antidiscrimination policies. Accordingly, Defendants’ Eighth Affirmative defense cannot be struck. See Friends of Santa Fe County, 892 F.Supp. at 1343 (citations omitted) (To strike an affirmative defense, a court “must be convinced that there are no questions of fact.”).
IV. Defendants’ Other Affirmative Defenses
The Court agrees that Defendants’ Third affirmative defense no longer applies to this case because Defendants admitted that Plaintiff had exhausted her administrative remedies in their Answer to Plaintiffs First Amendment Complaint. Accordingly, Defendants’ Third Affirmative defense shall be struck.
Defendants’ First, Eleventh, Nineteenth, Twenty-First, and Twenty-Third affirmative defenses may well be “negative defenses” as Plaintiff alleges, however the
“[Mjotions to strike, in most cases, waste everyone’s time.” Lane, 272 F.R.D. at 596. There is a reason why they are generally disfavored. See Friends of Santa Fe County, 892 F.Supp. at 1343 (citations omitted). While the Court did address Defendant’s use of the Faragher/Ellerth and Kolstad affirmative defenses, the Court points out that these were already before the Court on defendants’ Motion for Summary Judgment. See (Doc. No. 137). The Court cautions the parties against filing future motions to strike that only address arguments already raised in other pleadings.
THEREFORE, IT IS ORDERED, that Plaintiffs Sealed Judgment Motion for Partial Summary Judgment and to strike the Defendant’s Affirmative (Doc. No. 150) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED, that Defendants’, Third, Seventh, and Twentieth affirmative defenses are struck.
. Plaintiff originally filed her Motion under seal, but in response to the Court’s Order to Show Cause (Doc. No. 202), Plaintiff consented to have the seal lifted as to her Motion and related briefing. See (Doc. No. 203), Plaintiff’s Response to Order to Show Cause.
. Plaintiff couches her Motion as a motion for summary judgment, but Plaintiff is simply requesting that the Court strike Defendants' affirmative defenses. Accordingly, the Court will treat it as a motion to strike. Courts regularly consider relief requested when determining how to construe a motion, regardless of the actual title of the pleading. See e.g. Abel v. Mylan, Inc., 09-CV-0650-CVE-PJC, 2009 WL 4729941, *1 (N.D.Okla. Dec. 4, 2009) ("Although plaintiff has styled his motion as a request for a hearing, he directly requests the undersigned to recuse and the Court will treat the motion as one for recusal, rather than as a motion for a hearing.”); Fields v. Dep’t of Corr., CIV-05-66-R, 2005 WL 1683502 (W.D.Okla. July 19, 2005) (Construing Plaintiff’s pleading styled "Motion to Supplement the Record with Defendants” as a motion to amend the Complaint to add parties because it sought to add additional parties to the case); Ice Corp. v. Hamilton Sundstrand Corp., 05-4135-JAR, 2007 WL 1791131 (D.Kan. June 18, 2007) ("While defendants have titled the present motion a Motion for Clarification, defendants do not ask the court to clarify its previous order. Rather, the present motion asks the court to contradict its previous order ... As a result, the court will construe the present motion as one for reconsideration.”).
. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
. Plaintiff also asserts that Defendants are not entitled to the affirmative defenses of estoppel or unclean hands as matter of law. However, Plaintiff provides no binding precedent in support of her conclusory allegation that Defendants are barred from raising these defenses.
Reference
- Full Case Name
- Amanda WELLS v. HI COUNTRY AUTO GROUP d/b/a Hi Country Chvrolet, a New Mexico Corporation, and JEFF THOMAS, a natural person
- Cited By
- 6 cases
- Status
- Published