United States District Court, Northern District of Illinois, Eastern Division
November 2, 2000
DENISE RENALDS, PLAINTIFF,
S.R.G. RESTAURANT GROUP, CHICAGO, LLC, D/B/A THE WHISKEY BAR AND GRILL, AN ILLINOIS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is plaintiff Denise Renalds' ("plaintiff")
motion to strike defendant S.R.G. Restaurant Group Chicago's
("Defendant") affirmative defenses. For the following reasons,
the court grants in
part and denies in part plaintiff's motion to strike Defendant's
Plaintiff filed a two-count complaint against Defendant
alleging sexual harassment, constructive discharge and
retaliation in violation of 42 U.S.C. § 2000e ("Title VII"). In
her complaint, plaintiff seeks reinstatement, lost compensation,
compensatory and punitive damages, and prejudgment interest. In
answering plaintiff's complaint, Defendant advanced fourteen
affirmative defenses. Now plaintiff argues that thirteen of
Defendant's fourteen affirmative defenses are insufficient and
should be stricken.
A. Standard of Review for Motions to Strike Affirmative
Pursuant to Federal Rule of Civil Procedure 8(c) ("Rule 8(c)"),
a party must to set forth affirmative defenses in a responsive
pleading. FED.R.CIV.P. 8(c). Under Federal Rule of Civil
Procedure 12(f) ("Rule 12(f)"), "the court may order stricken
from any pleading any insufficient defense." FED.R.CIV.P. 12(f).
Courts generally disfavor motions to strike affirmative defenses
because they potentially serve only to cause delay. See Heller
Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.
1989). Nevertheless, courts should strike affirmative defenses
that are clearly mistitled or redundant, for example if they
raise matters already raised in the defendant's denial. See
Household Fin. Serv., Inc. v. Northeastern Mortgage Inv. Corp.,
No. 00 C 0667, 2000 WL 816795, at *1 (N.D.Ill. June 22, 2000)
(citing Heller, 883 F.2d at 1295); Sanwa Bus. Credit Corp. v.
Harris, No. 91 C 0204, 1991 WL 156116, at *1 (N.D.Ill. Aug.6,
Affirmative defenses are pleadings and, as such, are subject to
the pleading requirements of the Federal Rules of Civil
Procedure. See Heller, 883 F.2d at 1294; Flasza v. TNT Holland
Motor Express, Inc., 155 F.R.D. 612, 613 (N.D.Ill. 1994).
Accordingly, affirmative defenses must set forth a "short and
plain statement." FED. R.CIV.P. 8(a). However, even under the
liberal notice pleading standard of the Federal Rules of Civil
Procedure, an allegation must include either direct or
inferential allegations respecting all material elements of the
claim asserted. United States v. Hartz Constr. Co., Inc., No.
98 C 4785, 2000 WL 1220919 at *7 (N.D.Ill. Aug. 18, 2000)
(quoting MAN Roland v. Quantum Color Corp., 57 F. Supp.2d 576,
578 (N.D.Ill. 1999)). Bare legal conclusions attached to narrated
facts will not suffice. See Heller, 883 F.2d 1286, 1294
(granting motion to strike affirmative defenses in which
defendants omitted any short and plain statement of facts and
failed to allege necessary elements of claims); Strauss v. City
of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).
Furthermore, affirmative defenses must meet the standards of
Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)").
FED.R.CIV.P. 12(b)(6); see also Codest Eng'g v. Hyatt Int'l
Corp., 954 F. Supp. 1224, 1228 (N.D.Ill. 1996). Under Rule
12(b)(6), the court must accept all factual allegations as true
and draw all reasonable inferences in favor of the pleader. If,
when viewed in the light most favorable to the pleader, the
allegation fails to state a claim upon which relief can be
granted, the court must dismiss it. See Gomez v. Illinois State
Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987) (construing
Rule 12(b)(6)). Nevertheless, the court may dismiss the
allegation only if it appears beyond a doubt that the pleader can
prove no set of facts in support of its claim that would entitle
it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957).
This district has followed a three-part test in examining
affirmative defenses subject to a motion to strike: (1) the
matter must be properly pleaded as an affirmative defense; (2)
the matter must be adequately pleaded under the requirements of
Federal Rules of Civil Procedure 8 and 9; and (3) the matter must
a Rule 12(b)(6) challenge — in other words, if it is impossible
for defendants to prove a set of facts in support of the
affirmative defense that would defeat the complaint, the matter
must be stricken as legally insufficient. Heller, 883 F.2d at
1294 (approving three-part test set forth in Bobbitt v.
Victorian House, Inc., 532 F. Supp. 734, 737 (N.D.Ill. 1982));
see also Franklin Capital Corp. v. Baker & Taylor Entm't, Inc.,
No. 99 C 8237, 2000 WL 1222043, at *2 (N.D.Ill. Aug.22, 2000)
(quoting and following three-part test). Note, however, that
striking an affirmative defense does not necessarily bar its
substantive argument from the case because affirmative defenses —
like complaints — are protected by the direction of Rule 15(a)
that courts are to grant leave to amend pleadings "freely . . .
when justice so requires." FED.R.CIV.P. 15(a); see also
Instituto Nacional de Comercializacion Agricola v. Continental
Ill. Nat'l Bank & Trust Co., 576 F. Supp. 985, 988 (N.D.Ill.
1983) (citing Bobbitt, 532 F. Supp. at 737).
In its motion to strike, plaintiff alleges that thirteen of
defendant's fourteen affirmative defenses fail to meet the
liberal pleading requirements of the Federal Rules. Plaintiff
alleges that these thirteen defenses consist of nothing more than
contentions that the plaintiff cannot prove the necessary
elements of her claim, that these same contentions are raised by
denials in defendant's answer, and that, therefore, these
contentions do not constitute affirmative defenses and should be
stricken as patently insufficient. (Pl.'s Mot. to Strike
Affirmative Defenses at 2.) In response, defendant emphasizes
that courts generally disfavor motions to strike affirmative
defenses and that, under notice pleading standards, affirmative
defenses need only to appraise the plaintiff of the nature of the
defense. (Def.'s Mem. in Resp. to Pl.'s Mot. to Strike
Affirmative Defenses at 1-2.) The court addresses each disputed
affirmative defense in the order presented by the parties.
B. First and Eleventh Affirmative Defenses
Defendant's first affirmative defense states: "Plaintiff's
entire Complaint and each Count set forth therein fails to
adequately state a claim for relief." Defendant's eleventh
affirmative defense states: "Plaintiff's Complaint fails to set
forth facts sufficient to state a claim for exemplary or punitive
Some courts in this district find that "legal insufficiency
(properly assertable under Rule 12(b)(6)) is not a proper
affirmative defense under Rule 8(c), for `a true affirmative
defense raises matters outside the scope of plaintiff's prima
facie case and such matter is not raised by a negative defense,
but instead is properly raised through a Rule 12(b)(6) motion to
dismiss.'" Instituto Nacional, 576 F. Supp. at 991 (quoting 2A
JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 8.27).
Other courts in this district recognize that Rules 12(b)(6) and
12(h)(2) give the defendant the option of presenting a
failure-to-state-a-claim defense in a responsive pleading or in a
separate motion. See, e.g., Codest Eng'g, 954 F. Supp. at 1231.
However, even if this court followed Codest and allowed these
two affirmative defenses in defendant's responsive pleading, the
two defenses are insufficiently pleaded and must be stricken.
The first and eleventh affirmative defenses are insufficient on
their face because they are bare-bones conclusory allegations,
simply naming legal theories without indicating how they are
connected to the case at hand. Defendant's first and eleventh
affirmative defenses are "no more than a recitation of the
standard for a motion to dismiss under Rule 12(b)(6)." Id.
(striking the failure-to-state-a-claim defense for failing to
identify any specific infirmities in the complaint); accord
Fleet Bus. Credit Corp. v. Nat'l City Leasing Corp., 191 F.R.D.
568, 569 (N.D.Ill. 1999). While the Federal Rules of Civil
Procedure allow liberal notice pleading and do not require a
claimant to set out in detail
the facts upon which it bases a claim, they do not allow a
claimant to merely recite the standard for a 12(b)(6) motion to
dismiss, and to thereby "abdicate the responsibility of alleging
the basic facts demonstrating his entitlement to relief." Murphy
v. White Hen Pantry Co., 691 F.2d 350, 353 (7th Cir. 1982)
(quoted in Franklin Capital Corp., 2000 WL 204227, at *2
(N.D.Ill. Feb.10, 2000)). Accordingly, the court strikes
defendant's first and eleventh affirmative defenses.
C. Second and Third Affirmative Defenses
Defendant's second affirmative defense states: "At all times
pertinent to this case, the Bar & Grill acted in good faith and
did not intentionally or willfully discriminate against Plaintiff
in violation of any federal laws." Defendant's third affirmative
defense states: "Any employment actions taken with respect to
Plaintiff were based upon legal criteria, and upon important and
legitimate business purposes. Further, the Bar & Grill had
legitimate and non-discriminatory reasons for all employment
actions taken with respect to Plaintiff."
Again, like defendant's first and eleventh affirmative
defenses, these two affirmative defenses are impermissible
conclusory statements (see supra Sect. II. B.). Moreover,
defendant has already put these matters in issue by denying
certain allegations in its answer, and defendant not only need
not but cannot raise these matters again via an affirmative
defense. See Menchaca v. Am. Med. Response of Illinois, Inc.,
6 F. Supp.2d 971, 973 (N.D.Ill. 1998) (holding that where plaintiff
employee alleged discriminatory and retaliatory reasons for her
firing and defendant employer put those matters in issue by
denials of those allegations, employer could not put those
matters in issue again via an affirmative defense asserting that
it "terminated Plaintiff's employment for legitimate business
reasons"); Winding v. Pier Management Service, No. 96 C 7461,
1997 WL 51475, at *2 (N.D.Ill. Feb.4, 1997) (holding that
affirmative defense that defendant terminated plaintiff's
employment for "legitimate, non-discriminatory" reason is
stricken as both unnecessary and inappropriate because this
assertion was already put in issue by the defendant's denial in
Moreover, while good faith is an affirmative defense which must
be pleaded by the defendants in a 42 U.S.C. § 1983 action, this
is not a § 1983 case. See e.g., Gomez v. Toledo, 446 U.S. 635,
639-40, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (holding that
defendants must plead good faith as an affirmative defense in a §
1983 action); accord Chavis v. Rowe, 643 F.2d 1281, 1288 (7th
Cir. 1981); accord Pape v. Lerman, No. 73 C 380, 1982 WL 228,
at *9 (W.D.Wis. Feb.17, 1982). The court's research uncovered no
authority supporting defendant's assertion that good faith is an
appropriate defense in this case, and defendants cite no such
Accordingly, the court strikes defendant's second and third
D. Fourth and Fifth Affirmative Defenses
Defendant's fourth affirmative defense states: "The actions
alleged by Plaintiff do not constitute sexual harassment and were
not sufficiently severe or pervasive to have altered her
workplace in violation of Title VII." Defendant's fifth
affirmative defense states: "The Bar & Grill did not retaliate
In its response, defendant acknowledges that these two defenses
are conclusory allegations. Therefore, the court strikes
defendant's fourth and fifth affirmative defenses.
E. Sixth Affirmative Defense
Defendant's sixth affirmative defense states: "At all
appropriate times, the Bar & Grill promptly investigated and took
proper remedial action to correct the improper conduct, if any."
Defendant asserts that this affirmative defense addresses
remedial actions in accordance with the Faragher/Ellerth
affirmative defense set forth in Faragher v. City of Boca
Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)
(holding that in a hostile environment claim where no tangible
employment action occurs, a defending employer may raise an
affirmative defense by proving "(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise") and Burlington Indus. v. Ellerth,
524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (accord).
Recently, the Seventh Circuit clarified this defense when it
to merit an instruction on the Faragher/Ellerth
affirmative defense the employer must show that: (1)
the plaintiff endured no tangible employment action;
(2) there is some evidence that the employer
reasonably attempted to correct and prevent sexual
harassment; and (3) there is some evidence that the
employee unreasonably failed to utilize the avenues
presented to prevent or correct the harassment.
Savino v. C.P. Hall Co., 199 F.3d 925
, 932 (7th Cir. 1999)
(construing Faragher, 524 U.S. 775, 807-808, 118 S.Ct. 2275
141 L.Ed.2d 662); see also Molnar v. Booth, 229 F.3d 593
Cir. 2000) (accord).
Defendant's sixth affirmative defense withstands plaintiff's
motion to strike because it is an appropriate assertion of
remedial action under Faragher and Ellerth and the defendant
may be able to prove facts supporting this claim that would
entitle it to relief. See Conley, 355 U.S. at 45-46, 78 S.Ct.
99. At this point of the litigation the court must accept all
well-pleaded allegations as true. Accordingly, plaintiff's motion
to strike defendant's sixth affirmative defense is denied.
F. Seventh and Tenth Affirmative Defenses
Defendant's seventh affirmative defense states: "The Bar &
Grill did not constructively discharge Plaintiff, nor was her
work environment made unbearable. As a result, Plaintiff cannot
possibly recover damages for her lost job, wages and
opportunities." Defendant's tenth affirmative defense states:
"Plaintiff voluntarily left her position with the Bar & Grill and
the Bar & Grill did not discriminate against Plaintiff in any
way. Therefore, Plaintiff is not entitled to any relief
whatsoever in this action."
Defendant's seventh affirmative defense raises a matter already
raised in its denial and, accordingly, is stricken as
unnecessary. See Household Fin. Serv., 2000 WL 816795, at *1.
However, defendant's tenth affirmative defense will stand because
defendant's answer does not raise the allegation that plaintiff
voluntarily left her employment. The defendant may be able to
prove facts supporting this claim and, at this point in the
litigation, the court must accept all well-pleaded allegations as
Accordingly, plaintiff's motion to strike defendant's seventh
affirmative defense is granted, but plaintiff's motion to strike
defendant's tenth affirmative defense is denied.
G. Fourteenth Affirmative Defense
Defendant's fourteenth affirmative defense states: "Upon
information and belief, Plaintiff pursues this cause of action
knowing that she was not subjectively or objectively harassed on
the basis of her sex or that she was subjected to harassment.
Prior to her filing the Charge with the EEOC, Plaintiff stated to
Kele Tom that she was contemplating legal action against the Bar
& Grill so that she could `take the money and open her own
kitchen for catering.'"
Like defendant's sixth and tenth affirmative defenses,
affirmative defense must stand because it raises an issue not
raised in defendant's answer and because defendant may be able to
prove facts supporting this claim. See Conley, 355 U.S. at
45-46, 78 S.Ct. 99. Accordingly, plaintiff's motion to strike
defendant's fourteenth affirmative defense is denied.
H. Ninth Affirmative Defense
Defendant's ninth affirmative defense states: "Insofar as
Plaintiff purports to allege a claim or claims for physical or
mental and emotional distress, including claims for recovery of
any medical expenses thereby incurred, said claims are barred by
the exclusive remedy provisions of the Illinois Workers'
Compensation Act, 820 ILCS 305/1, et seq."
The court strikes this defense because it incorrectly states
the law. See Johnson v. Indopco, Inc., 846 F. Supp. 670, 676
(N.D.Ill. 1994) ("[w]ith the advent of the Civil Rights Act of
1991 . . . the limitation of recoverable damages to equitable
relief in a Title VII claim was removed"); see also Mobley v.
Kelly Kean Nissan, Inc., 864 F. Supp. 726 (N.D.Ill. 1993)
(finding that employer's emotional distress claims arising out of
alleged sexual harassment by co-workers were not preempted by
Illinois Workers' Compensation Act and that the exclusive remedy
provisions of Illinois Workers Compensation Act did not bar
workers' emotional distress claims and assault and battery
claims.) Accordingly, plaintiff's motion to strike defendant's
ninth affirmative defense is denied.
I. Twelfth and Thirteenth Affirmative Defenses
Defendant's twelfth affirmative defense states: "Plaintiff is
not entitled to recover punitive and/or exemplary damages as
alleged in her Complaint because the Bar & Grill cannot be
vicariously liable for discriminatory employment decisions of its
agents since those decisions, if any, were contrary to the Bar &
Grill's good-faith efforts to comply with Title VII and/or the
Civil Rights Act of 1991." Defendant's thirteenth affirmative
defense states: "Plaintiff is not entitled to recover any
punitive or exemplary damages as prayed for in her Complaint on
the ground that any award of punitive or exemplary damages in
general and/or any award as applied to the facts of this specific
action would violate the Bar & Grill's constitutional rights
under provisions of the Constitutions of the United States and/or
the State of Illinois, including, but not limited to, the due
process clauses of the Fifth and Fourteenth Amendments to the
United States Constitution."
The Supreme Court recently held that "in the punitive damages
context, an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where
these decisions are contrary to the employer's `good-faith
efforts to comply with Title VII.'" Kolstad v. Am. Dental
Ass'n, 527 U.S. 526, 545, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)
(quoting Kolstad v. Am. Dental Ass'n, 139 F.3d 958, 974
(D.C.Cir. 1998) (Tatel, J., dissenting)). As the Supreme Court
recognized, "`[g]iving punitive damages protection to employers
who made good-faith efforts to prevent discrimination in the
workplace accomplishes' Title VII's objective of `motivat[ing]
employers to detect and deter Title VII violations.'" Id.
Because defendant's twelfth affirmative defense raises a defense
in accordance with Kolstad, and because this issue is not
raised in defendant's answer and may be supported by facts,
plaintiff's motion to strike defendant's twelfth affirmative
defense is denied.
The court strikes defendant's thirteenth affirmative defense as
an incorrect statement of the law. An employer can be held liable
for punitive damages in a Title VII case when the employer
"engage[s] in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the
[plaintiff's] federally protected rights."
42 U.S.C. § 1981a(b)(1). The Seventh Circuit has upheld punitive damage
awards based on employers acting
with malice or reckless indifference. See, e.g., Gile v. United
Airlines, Inc., 213 F.3d 365 (7th Cir. 2000); Tincher v.
Wal-Mart Stores, Inc., 118 F.3d 1125 (7th Cir. 1997). Notably,
the punitive damage standard does not require that the plaintiff
show egregious or outrageous conduct independent of the
employer's state of mind, but only that the employer
"discriminated in the face of a perceived risk that its actions
will violate federal law." Gile, 213 F.3d at 375 (quoting
Kolstad v. Am. Dental Assoc., 527 U.S. at 534-538, 119 S.Ct.
Accordingly, the court denies plaintiff's motion to strike
defendant's twelfth affirmative defense, but grants plaintiff's
motion to strike defendant's thirteenth affirmative defense.
For the reasons set forth in this opinion, the court grants in
part and denies in part plaintiff's motion to strike defendant's
affirmative defenses pursuant to Federal Rule of Civil Procedure
1. Plaintiff's motion to strike affirmative defense #
1 is granted.
2. Plaintiff's motion to strike affirmative defense #
2 is granted.
3. Plaintiff's motion to strike affirmative defense #
3 is granted.
4. Plaintiff's motion to strike affirmative defense #
4 is granted.
5. Plaintiff's motion to strike affirmative defense #
5 is granted.
6. Plaintiff's motion to strike affirmative defense #
6 is denied.
7. Plaintiff's motion to strike affirmative defense #
7 is granted.
8. Plaintiff's motion to strike affirmative defense #
9 is granted.
9. Plaintiff's motion to strike affirmative defense #
10 is denied.
10. Plaintiff's motion to strike affirmative defense
# 11 is granted.
11. Plaintiff's motion to strike affirmative defense
# 12 is denied.
12. Plaintiff's motion to strike affirmative defense
# 13 is granted.
13. Plaintiff's motion to strike affirmative defense
# 14 is denied.
© 1992-2003 VersusLaw Inc.