272 F. Supp. 3d 336
E.D.N.Y2017Background
- EEOC sued AZ Metro under the ADEA for wrongful termination of two employees (Roberts and Fernandez).
- AZ Metro answered with 31 affirmative defenses, including defenses alleging EEOC failed administrative prerequisites, unlawful retaliation by EEOC, and requests for attorney’s fees/costs.
- EEOC moved under Rule 12(f) to strike the 3rd, 4th, 5th, 6th, and 8th affirmative defenses; the motion was referred to Magistrate Judge Kuo.
- Magistrate Judge Kuo’s R&R recommended striking the 3rd, 5th, and 6th defenses but denying the motion as to the 4th and 8th; both parties objected.
- District Court reviewed de novo where appropriate, upheld striking the 3rd, 5th, and 6th defenses, and modified the R&R to also strike the 4th, 7th, and 8th defenses (fee/cost requests are not affirmative defenses).
- Court struck those defenses without prejudice to AZ Metro’s later motion for fees/costs if it prevails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defenses alleging EEOC failed administrative prerequisites (3rd and 6th) should be stricken | Such defenses are legally insufficient because courts cannot probe sufficiency of EEOC investigation; no factual/legal basis to survive | There are factual disputes (e.g., alleged EEOC employee relation) and discovery would resolve them | Stricken: court adopted R&R—no question of law/fact supports these defenses |
| Whether retaliation-by-EEOC defense (5th) should be stricken | EEOC argued retaliation defense fails as a complete defense and should be stricken | AZ Metro argued EEOC retaliated (complaint to OIG) and discovery needed | Stricken: court adopted R&R—defense insufficient as a complete defense |
| Whether fee/cost/sanctions claims (4th, 7th, 8th) are permissible as affirmative defenses | EEOC argued these are not affirmative defenses and should be stricken | AZ Metro labeled them affirmative defenses tied to EEOC’s conduct; argued keeping them does not prejudice EEOC | Stricken: court held fee/cost requests are not affirmative defenses and removed 4th, 7th, and 8th (without prejudice to later fee motion) |
| Whether magistrate judge’s R&R should be adopted | EEOC argued the R&R erred in leaving some fee-related defenses | AZ Metro objected to striking process-based defenses | Court adopted R&R as modified, sustaining EEOC’s objections re: fee defenses and overruling AZ Metro’s objections regarding struck defenses |
Key Cases Cited
- Sterling Jewelers Inc. v. E.E.O.C., 801 F.3d 96 (2d Cir. 2015) (court may review only whether an EEOC investigation occurred, not its sufficiency)
- Sibley v. Choice Hotels Int’l, Inc., 304 F.R.D. 125 (E.D.N.Y. 2015) (standards for striking affirmative defenses under Rule 12(f))
- Dafeng Hengwei Textile Co. v. Aceco Indus. & Commercial Corp., 54 F. Supp. 3d 279 (E.D.N.Y. 2014) (standard for adopting R&R portions without timely objections)
- Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003) (definition and effect of an affirmative defense)
- Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (U.S. 1978) (standard for awarding attorney’s fees to a prevailing defendant)
- Brady v. Basic Research, L.L.C., 101 F. Supp. 3d 217 (E.D.N.Y. 2015) (courts may strike insufficient defenses sua sponte under Rule 12(f))