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Tamara D. Brass v. Earl Dunlap

November 28, 2012


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


Plaintiff Tamara Brass ("Brass") is a former employee of the Cook County Juvenile Temporary Detention Center ("JTDC"). In her Second Amended Complaint, Brass alleges that defendants Earl Dunlap, Transitional Administrator of the JTDC ("TA" or "Dunlap"), and Brenda Welch, Deputy Transitional Administrator of the JTDC ("Deputy Administrator" or "Welch"), are liable under Title VII and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971), for harassing Brass, retaliating against Brass for engaging in protected activities, and terminating Brass's employment without just cause. (See Dkt. No. 76 ("2d Am. Compl.") and Dkt. No. 100 (12/20/2011 Order) (limiting the 2d Am. Compl. to Count III (in part), Count V (in part), Count VIII, Count IX, and Count X).)

The TA and Deputy Administrator (together "Defendants") filed their Answer to the Second Amended Complaint on October 2, 2012, and included nine affirmative defenses. (Dkt. No. 107 ("Ans.").) Pending before the court is Brass's "Motion to Strike Defendants' Affirmative Defenses." (Dkt. No. 109 ("Brass's Mot.").) For the reasons set forth below, Brass's motion is denied. A status hearing remains set for November 29, 2012 at 9:00 a.m. for purposes of entering a scheduling order in this case. The parties are again encouraged to discuss settlement.


Brass began her employment at the JTDC on September 1, 1996, as a Clerk IV. (2d Am. Compl. ¶ 9.) She was later promoted to the position of Administrative Assistant II, before being terminated from her employment on November 9, 2009. (Id.) Brass generally alleges that "[s]ince Dunlap's appointment*fn1 Plaintiff has been subjected to intentional, systematic and continuous harassment by Deputy Administrator [Welch] and the then Acting Deputy Superintendent, Mullins." (Id. ¶ 11.)

In December 2008, Brass complained to Mullins, to Brass's AFSCME union representative, and to the EEOC about comments made by Welch about "Plaintiff's nipples showing through her clothes." (Id. ¶¶ 14, 16.) In retaliation for Brass's sexual harassment complaint, Welch and Mullins thereafter prevented Brass from properly signing in and out of work, subjected her to "frivolous" disciplinary allegations based on falsified or erroneous timesheets, stripped her of her job duties, assigned her duties that were outside the scope of her employment, and ultimately terminated her employment. (Id. ¶¶ 12-13, 15, 17-18.) During this same time period, Welch ordered Brass "to destroy files containing medical and legal documents, log books and other information that were often needed for FBI, DCFS, Inspector General investigations as well as other litigation." (Id. ¶ 19.) Brass refused to destroy these documents and complained to the Inspector General about Welch's order to destroy them. (Id. ¶¶ 19-20.) In retaliation for Brass's refusal to destroy the documents, Brass was accused of falsifying her timesheets and was suspended for three days. (Id. ¶ 19.) Brass was also further retaliated against for both her sexual harassment complaint and her refusal to destroy documents, in that she was denied her requests for time off, forced to work in unsafe conditions, and verbally threatened by Welch, who at one point "symbolically point[ed] her fingers as an imaginary gun and shot[ ] Plaintiff." (Id. ¶ 21.)

Brass filed a charge of retaliation with the EEOC on July 30, 2009, received her right-tosue letter on August 5, 2009, and filed this lawsuit on November 2, 2009. (Id. ¶¶ 22-23, 25.) Brass was terminated from her employment on November 9, 2009, with an effective date of November 4, 2009. (Id. ¶ 25.)


Defendants' Answer alleges nine separate items titled "affirmative defenses," each of which is one sentence in length, including: (1) failure to state a claim for which relief may be granted; (2) statute of limitations; (3) waiver and/or estoppel; (4) failure to exhaust administrative, statutory and/or jurisdictional prerequisites; (5) Brass's failure to present her Title VII claims to the EEOC; (6) the TA's exercise of reasonable care to prevent and correct discrimination; (7) the TA's lack of personal involvement in the alleged discriminatory conduct; (8) Brass's failure to mitigate damages; and (9) Brass's failure to take advantage of the JTDC's safeguards to protect against harassment. (Ans. 22-24.) Brass has moved to strike each of these defenses pursuant to Federal Rule of Civil Procedure 12(f).

Under Rule 12(f), a court may strike from a pleading any "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored in this circuit because of their potential to cause delay in litigation; however, they will be granted where they serve to remove "unnecessary clutter" from a case. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).

As pleadings, affirmative defenses are subject to the pleading requirements of the Federal Rules of Civil Procedure. Id. Accordingly, to constitute a sufficient pleading, an affirmative defense must include a "short and plain statement" of the defense. Id. (quoting Fed. R. Civ. P. 8(a)); see also Fed. R. Civ. P. 8(b)(1)(A) (responding party required to "state in short and plain terms its defenses to each claim asserted against it"). "[B]are bones conclusory allegations" that fail to address the necessary elements of the alleged defense are insufficient on the face of the pleading. Id. at 1294-95. In reviewing a motion to strike, "the court must accept all factual allegations as true and draw all reasonable inferences in favor of the pleader." Renalds v. S.R.G. Rest. Group, 119 F. Supp. 2d 800, 802 (N.D. Ill. Nov. 2, 2000) (Alesia, J.).


1. Failure to State a Claim

Defendants' first alleged affirmative defense states, in its entirety, "The Complaint fails to state a claim upon which ...

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