United States District Court, N.D. Illinois, Eastern Division
July 26, 2004.
DR. JANET. E. RING, Plaintiff,
BOARD OF EDUCATION COMMUNITY SCHOOL DISTRICT NO. 60, Lake County, Illinois, JEFF McBRIDE, FERNANDO SHIPLEY, MARVIN REDDICK, and ANITA HANNA, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Dr. Janet E. Ring ("Plaintiff") has sued defendants
Board of Education Community School District No. 60 ("the Board")
and Anita Hanna ("Hanna") (collectively "Defendants"), Jeff
McBride, Fernando Shipley, and Marvin Reddick for deprivation of
her equal rights pursuant to 42 U.S.C. § 1983 ("§ 1983").
Defendants have raised Affirmative Defenses I-IV, and before the
court is Plaintiff's motion to strike those affirmative defenses
pursuant to Federal Rule of Civil Procedure ("Rule") 12(f). For
the reasons provided in this Memorandum Opinion and Order, the
motion is granted in part and denied in part. FACTS
On July 11, 2000, Plaintiff was hired by the seven elected
members of the Board as Associate Superintendent for Curriculum
and Instruction. (Defendants' Answer and Affirmative Defenses ¶ 6
("Defs.' Answer").) Plaintiff's position reported directly to the
Superintendent of School, who is also the Chief Executive Officer
of the Board, and provided Plaintiff with a wide range of
responsibilities, including administering a budget in excess of
$6,000,000 and the supervision of eighteen professional and
clerical staff members. (Id. ¶¶ 7-8.)
Following the April 2003 School Board elections, the racial
makeup of the Board was composed of four African Americans, who
are the defendants in this case, and three non-African Americans.
(Id. ¶ 9.) Plaintiff is Caucasian. (Id. ¶ 4.) In June 2003,
defendant Shipley moved and defendant Reddick seconded the motion
to terminate Plaintiff's position as Associate Superintendent of
Curriculum and Instruction; however the Board's attorney advised
Defendants to defer acting immediately on this motion. (Id. ¶¶
On September 9, 2003, defendants voted to remove Plaintiff from
her position. (Id. ¶ 14.) The three non-defendant Board members
voted against this removal, and the Superintendent of Schools
also supported Plaintiff's continued appointment as Associate
Superintendent of Curriculum and Instruction. (Id. ¶¶ 11, 14.)
Plaintiff alleges there was no legitimate nondiscriminatory basis
for the Board to fire or transfer her. (Id. ¶ 10.) Plaintiff
also alleges that during the course of the removal process, one
of the defendants stated to a staff member that the Board could
not initially hire a black person to replace plaintiff, as that
would further demonstrate that Plaintiff's removal was an act of
racism. (Id. ¶ 16.)
Plaintiff was then transferred to a newly created position
under the title of Associate Superintendent/Program Development
which consisted of a smaller staff, office, and budget than
Plaintiff's previous job did. (Id. ¶ 17.) Plaintiff also
participated in the development of the job description and title
of this new position. (Id.) Plaintiff alleges that the transfer
was a demotion and was not accompanied by a pre-demotion hearing.
(Id. ¶¶ 18, 21.)
The proper procedure by which a plaintiff may challenge an
affirmative defense is through a motion to strike. Bobbitt v.
Victorian House, Inc., 532 F. Supp. 734, 736-37 (N.D. Ill. 1982).
In a motion to strike, pursuant to Rule 12(f), "the court may
order stricken from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter." Fed.
R. Civ. P. 12(f). Motions to strike are not generally favored or
granted unless the plaintiff can prove that the defense is
insufficient and could not, after the development of a fuller
record, succeed in defeating the plaintiff's claim. Lirtzman v.
Spiegel, Inc., 493 F. Supp. 1029, 1031 (N.D. Ill. 1980). Before a
motion to strike affirmative defenses can be granted, the court
must be convinced that no questions of fact exist, and any
questions of law are clear and undisputed. Id.
Courts in this district have traditionally applied a three-part
inquiry when examining affirmative defenses subject to a motion
to strike: (1) whether the matter is properly and concisely
pleaded as an affirmative defense; (2) whether the matter is
adequately pleaded under the requirements of Fed.R.Civ.P. 8
and 9; (3) whether the affirmative defense meets the Rule 12(b)(6) standard, where the
defendants can prove a set of facts in support of the affirmative
defense that would defeat the complaint. Bobbitt, 532 F. Supp.
Rule 8(c) lists nineteen specific affirmative defenses to a
complaint, and further includes a catch-all reference for "any
other matter constituting an avoidance or affirmative defense."
Fed.R.Civ.P. 8(c); see Maloney v. Rice, No. 86 C 6026, 1988
WL 53175, at *1 (N.D. Ill. May 16, 1988). "In answering a
complaint and asserting affirmative defenses under Fed.R. Civ.
P. 8(c), a defendant concedes that the complaint states a claim,
but contends that other facts nonetheless defeat recovery."
Flasza v. TNT Holland Motor Express, Inc., 155 F.R.D. 612, 613
(N.D. Ill. 1994). A properly pleaded affirmative defense raises
matters outside the scope of the plaintiff's prima facie case.
Sayad v. Dura Pharms., Inc., 200 F.R.D. 419, 422 (N.D. Ill.
Affirmative defenses are subject to all the pleading
requirements under the Federal Rules of Civil Procedure.
Fed.R.Civ.P. 8(c); Renalds v. S.R.G. Rest. Group, 119 F. Supp.2d 800,
802 (N.D. Ill. 2000). Additionally, under Rule 12(b)(6), the
court accepts all factual allegations as true and draws all
reasonable inferences in favor of the pleader. Veazey v.
Communications & Cable of Chicago, Inc., 194 F.3d 850, 853 (7th
Cir. 1999). While the affirmative defense need only set forth a
short and plain statement of the defense asserted, if it is
insufficient on its face or consists of merely a "bare bones,
conclusory allegation," it must be stricken. Flasza,
155 F.R.D. at 612.
A. Affirmative Defense I ("Failure to State a Claim")
With regard to Affirmative Defense I, Defendants argue that
while it is proper to raise the failure to state a claim by a motion under
Rule 12(b)(6), that is not the only way. (Defs.' Resp. Pl.'s Mot.
Strike Affirm. Defenses ("Defs. Resp.") ¶¶ 3-4.) Defendants
indicate that Appendix Form 20 of the Appendix to the Federal
Rules of Civil Procedure ("Form 20") states that "a failure to
state a claim upon which relief can be granted" is an appropriate
defense. Within the Northern District of Illinois, there has been
some disagreement as to whether a failure to state a claim may
properly be raised as an affirmative defense. Instituto Nacional
de Comercializacion Agricola (Indeca) v. Cont'l Ill. Nat'l Bank &
Trust Co., 576 F. Supp. 985, 991 (N.D. Ill. 1983).
Some courts in this district have held that an allegation of
failure to state a claim is referred to as merely a "defense" and
not an "affirmative defense" in Form 20, and is therefore not a
true affirmative defense. See Sayad, 200 F.R.D. at 422-23. Such
courts state that failing to state a claim is an ordinary defense
and merely a denial of the plaintiff's complaint, while
affirmative defenses require the defendant to raise matters
outside the scope of the plaintiff's complaint. See Sanchez v.
La Rose Del Monte Express, Inc., No. 94 C 3602, 1994 WL 603901,
at *2 (N.D. Ill. Nov. 1, 1994).
Alternatively, other courts in this district have held that
failing to state a claim is an appropriate affirmative defense
and Form 20, which lists model defenses, authorizes the use of a
failure to state a claim as an affirmative defense. Builders
Bank v. First Bank & Trust Co., No. 03 C 4959, 2004 WL 626827,
at *2 (N.D. Ill. Mar. 25, 2004); Mendrala v. Crown Mortgage
Co., No. 88 C 7386, 1990 WL 60705, at *3 (N.D. Ill. Apr. 23,
1990); Fed.R. Civ. P., App. Form 20. "Federal Rule of Civil
Procedure 84 specifically authorizes the use of such defenses in
pleadings, stating that, `[t]he forms contained in the Appendix
of Forms are sufficient under the rules and are intended to
indicate the simplicity and brevity of statement which the rules
contemplate.'" Builders Bank, 2004 WL 626827, at *2 (quoting
Fed.R.Civ.P. 84). Such courts hold that alleging a failure to
state a claim, with a sufficiently "short and plain statement"
describing why the complaint does not state a claim, provides the
plaintiff with adequate notice of the nature of the defendant's
affirmative defense. Id. at *3; Fed.R.Civ.P. 8(a).
Agreeing with the latter courts, this Court holds that Form 20
allows the use of "failure to state a claim" as an appropriate
affirmative defense. Id.; Fed.R.Civ.P. 84; Fed.R. Civ. P.,
App. Form 20. However, "[e]ven those courts that have allowed a
party to assert a defense of failure to state a claim, however,
have not read the Federal Rules so liberally as to allow the bare
recitation of the legal standard (`failure to state a claim')
without a short and plain statement of the basis for the defense,
as is required by Rule 8(a)." Builders, No. 03 C 4959, 2004 WL
626827, at *3.
In the present matter, Defendants have not set forth a short
and plain statement as to why the complaint fails to state a
claim, making the affirmative defense insufficient and merely a
"bare bones, conclusory allegation." See Flasza, 155 F.R.D. at
612. As a result, the Court grants Plaintiff's motion to strike
Affirmative Defense I.
B. Affirmative Defenses II ("Absolute Immunity") and III
First, with regard to Affirmative Defenses II ("Absolute
Immunity"), Defendants argue that absolute immunity is based on
defendant Hanna having acted within a legislative capacity.
(Defs.' Resp. ¶ 5.) Defendants point out that "whether or not
defendant Hanna has legislative immunity turns not on her mental
state, but on the nature of the act." Id. (citing Bogan v.
Scott-Harris, 523 U.S. 44, 54 (1998)). Plaintiff states that school board members do not act in a legislative capacity
while making individual employment decisions, but provides no law
in support of her conclusion. (Pl.'s Mot. Dismiss Certain Affirm.
Defenses ("Pl.'s Mot.") ¶ 7.)
Such absolute immunity applies only to legislators acting in
their legislative capacities, and administrative or executive
acts are not protected. Weissmann v. Carroll, No. 02 C 4303,
2003 WL 685870, at *3 (N.D.Ill. Feb. 27, 2003). The hiring,
firing, or transferring of employees is traditionally an
administrative function, not a legislative one, and
administrative acts are not subject to legislative immunity.
Id. An exception arises, however, when an employee has some
opportunity for meaningful input into the legislative process, or
the employee's absolute support is required in aiding a political
supervisor. Id. at *3-4; Elrod v. Burns, 427 U.S. 347, 367
(1976). In such situations, the decision to hire, fire, or
transfer these employees is within the scope of legislative
conduct. Elrod, 427 U.S. at 367.
Courts have also held that officials acting for the public
good, even when such actions result in decisions made about
specific individuals, may be entitled to absolute immunity when
the nature of their actions fall within a legislative capacity.
Bogan, 523 U.S. 44, 55 (1998). Such immunity is not automatic
and must be determined on a case-by-case basis. Id.
In the present matter, Plaintiff did participate in the
development of her new job description and title, but the parties
offer no information as to whether Plaintiff offered meaningful
input into the Board's activities. (Defs.' Answer ¶ 17.);
Weissmann, 2003 WL 685870, at *3. The Court requires additional
information to assess whether defendant Hanna acted within a
legislative capacity in order to determine whether absolute immunity should be granted. Accordingly, it would be
inappropriate to strike the absolute immunity defense at this
point, and Plaintiff's motion to strike Affirmative Defense II is
Second, with regard to Affirmative Defense III ("Qualified
Immunity"), Plaintiff argues that the law is clearly established
that a person cannot discriminate against an employee based on
race, and a reasonable public official would know such actions
were unconstitutional. (Pl.'s Mot. ¶ 8.) Pursuant to the
Fourteenth Amendment to the U.S. Constitution, it is unlawful for
any State to deprive another of the right to equal protection.
U.S. Const. amend. XIV § 1. Defendants argue that qualified
immunity turns not on generalized statements of the law, but
rather on whether the particular conduct of the defendant was
clearly unconstitutional. (Defs.' Resp. ¶ 6.)
The defense of qualified immunity is available only to
officials sued in their individual capacities, and whether such
immunity exists depends upon the objective reasonableness of the
action evaluated in terms of the laws that were clearly
established at the time the action occurred. Anderson v.
Creighton, 483 U.S. 635, 639 (1987); Maloney, 1988 WL 53175,
at *1. In evaluating qualified immunity, courts should avoid "an
improper level of generality" because the "question of qualified
immunity . . . necessitates a much more specific factual
finding." Rakovich v. Wade, 850 F.2d 1180, 1211 (7th Cir.
1988). The court must ask whether it was clearly established that
under the particular facts of the case it was improper for
defendant to engage in his or her conduct. Id. "It is the
filling in of facts from the particular case that shapes the
query to comport with Anderson." Id. Thus, if any material
issues of fact exist, this defense cannot be stricken.
Lirtzman, 493 F. Supp. at 1031. In the present matter, Plaintiff alleges a violation of her
equal protection rights as granted under the Fourteenth Amendment
to the U.S. Constitution because she alleges her demotion was
racially motivated. It is clear that racially motivated
employment decisions do violate equal protection rights. However,
the question here is whether, given the facts of this particular
case, it was clearly established under the facts of this case
that it was discriminatory to demote Plaintiff and that a
reasonable person in Hanna's position would have known that
removing Plaintiff from her position violated her equal
protection rights. See McPhaul v. Bd. of Comm'rs of Madison
County, 226 F.3d 558, 565 (7th Cir. 2000); see Hamilton v. City
of Chicago, No. 93 C 3342, 1993 WL 535351, at *4 (N.D. Ill. Dec.
Defendants argue that the decision to remove Plaintiff from her
previous position was neither motivated by race or a racist act
by its nature, and Plaintiff has not established that this
affirmative defense is insufficient and could not, after the
development of a fuller record, successfully defeat Plaintiff's
complaint. The Court requires additional information to determine
whether qualified immunity applies in this case. Plaintiff's
motion to strike Affirmative Defense III is denied, and the
parties may opt to raise the issue of qualified immunity at a
more appropriate time, i.e., on a motion for summary judgment.
C. Affirmative Defense IV ("Failure to Mitigate Damages")
With regard to Affirmative Defense IV ("Failure to Mitigate
Damages"), Plaintiff argues that this defense goes to damages,
not liability, and it therefore does not qualify as an
affirmative defense. (Pl.'s Mot. ¶ 5.) Plaintiff also argues that
Defendants deny Plaintiff had any damages; as such a defense is a matter dealing
with set off as to damages. (Id.) Defendants argue that
affirmative defenses can be directed at damages, and thus
"Failure to Mitigate" is an appropriate affirmative defense.
(Defs.' Resp. ¶ 7.)
Failure to mitigate damages, as opposed to liability, is an
appropriate affirmative defense under Fed.R.Civ.P. 8(c).
Hanna v. Am. Motors Corp., 724 F.2d 1300, 1306 (7th Cir. 1984).
Once the plaintiff has established the amount of damages she
claims resulted from her employer's conduct, the defendants bear
the burden of proving that the plaintiff failed to mitigate her
damages. Id.; see Williams v. Jader Fuel Co. Inc.,
944 F.2d 1388, 1401 (7th Cir. 1991); EEOC v. Gurnee Inn Corp.,
914 F.2d 815, 819 (7th Cir. 1990).
To establish the affirmative defense of failure to mitigate
damages, the defendants must prove that the plaintiff was not
reasonably diligent in seeking other employment, protecting her
reputation, or otherwise preventing the damages complained of.
Sheehan v. Donlen Corp, 173 F.3d 1039, 1049 (7th Cir. 1999);
Hutchison v. Amateur Elec. Supply, 42 F.3d 1037, 1044 (7th Cir.
1994). The party raising the affirmative defense must also prove
that the plaintiff had a reasonable opportunity to find
comparable employment or prevent such damages, without
experiencing undue risk, humiliation, or expense. Sheehan, 173
F.3d at 1049; RIV VIL, Inc. v. Tucker, 979 F. Supp. 645, 660
(N.D. Ill. 1997).
In the present matter, Plaintiff has alleged the amount of
damages she suffered as a result of Defendants' alleged actions.
(Compl. ¶ IV B.) Failure to mitigate those damages is an
appropriate affirmative defense, and Defendants must be afforded
an opportunity to establish such an affirmative defense. See
Williams., 944 F.2d at 1401. Thus, Plaintiff's motion to strike Affirmative Defense IV is
For the foregoing reasons, this Court grants Plaintiff's motion
to strike as to Defendants' Affirmative Defense I, and such
defense is dismissed without prejudice [doc. no. 18-1]. The Court
denies Plaintiff's motion as to Affirmative Defenses II, III, and
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