Opinion
Civ. No. 99-879, Section "R"(4).
February 29, 2000.
ORDER AND REASONS
Before the Court is plaintiff's motion in limine to exclude from trial defendants' affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), which, if proved by a preponderance of the evidence, excuses an employer from vicarious liability or damages. Because plaintiff had fair notice of this defense, her motion is denied.
I. Background
Defendants inadvertently filed two answers in this case, which pled different affirmative defenses. Despite defendants' knowledge for months that they had filed two answers, they made no attempt to amend their answer in order to ensure that all of their affirmative defenses were sufficiently pled. In addition, defendants failed to file an answer to plaintiff's supplemental and amending complaint until the eve of trial, when plaintiff's counsel informed them that they had not done so.
On February 11, 2000, defendants designated the first answer, filed by attorney Nora M. Stelly, as their answer in this case. This answer, filed on May 27, 1999, did not plead the Faragher affirmative defense. The Faragher defense excuses an employer from vicarious liability or damages and may be asserted only if no tangible employment action was taken against the plaintiff employee. See Faragher, 524 U.S. at 777, 118 S.Ct. at 2279. It includes two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the plaintiff employee unreasonably failed to avail herself of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Id.
Defendants state that the clerk's office returned their answer to plaintiff's supplemental and amending complaint, which included the designation of Ms. Stelly's answer, unfiled. Thus, defendants state that they will assert the defense when they attempt again to file their answer to plaintiff's supplemental and amending complaint.
On June 18, 1999 attorney Glenn Galbraith filed a second answer, which stated in relevant part:
30. Defendants used reasonable care to prevent or correct promptly any sexual [sic] harassing behavior.
31. Any damages suffered by plaintiff were the result of the fault of the plaintiffs or third parties.
Although the Galbraith answer did not set forth the second element exactly as it is worded in Faragher, he sufficiently pled the affirmative defense.
Plaintiff now moves to preclude defendants from raising the Faragher defense, on the grounds that their designated answer failed to plead it. Defendants argue that they should be allowed to assert the defense because plaintiff has been on notice that they intended to do so since Mr. Galbraith filed the second answer.
II. Standard for Pleading Affirmative Defense
The Federal Rules of Civil Procedure require that affirmative defenses be pled:
Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
FED. R. CIV. P. 8(c) (emphasis added). The purpose of this requirement is to give plaintiff fair notice of the defense. See Woodfield v. Bowman, 193 F.3d 354, 362 n. 29 (5th Cir. 1999), citing Automated Med. Labs., Inc. v. Armour Pharm. Co., 629 F.2d 1118, 1122 (5th Cir. 1980); see also Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987) ("defendant should not be permitted to 'lie behind a log' and ambush a plaintiff with an unexpected defense."). Failure to plead an affirmative defense generally results in waiver of that defense. See Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir. 1983); accord Woodfield, 193 F.3d at 362. Nevertheless, technical failure to comply with Rule 8(c) is not fatal when the matter is raised in a manner that does not subject the plaintiff to unfair surprise. See Mackay, 695 F.2d at 855-56, citing Jones v. Miles, 656 F.2d 103, 107 n. 7 (5tb Cir. 1981). In addition, Rule 8(f) provides that "[a]ll pleadings shall be so construed as to do substantial justice." In deciding whether defendants have met the fair notice requirement, this court must determine whether allowing them to assert the Faragher defense would result in unfair surprise to the plaintiff. See Woodfield, 193 F.3d at 362. This requires a fact-specific inquiry. See id.
This is not a typical case in which defendants simply failed to assert their affirmative defense, or pled it so poorly that the plaintiff was unaware that they intended to assert it. Rather, defendants asserted the Faragher defense in their second answer, but when they designated their first answer as the one they would use in this case, they failed to file leave to amend their answer in order to ensure that all defenses were pled in one answer. This technical failure, although an example of careless lawyering, did not subject plaintiff to unfair surprise for several reasons. First, in conducting discovery, plaintiff inquired into the City of Hammond's policies and procedures regarding sexual harassment. Second, the parties included the subject matter of the Faragher defense in their contested issues of fact and law in their jointly-signed pretrial order:
V. CONTESTED ISSUES OF FACT
. . .
14. Defendants did nothing to prevent harassment, discrimination, and retaliation and took no steps to address or remediate the situation in plaintiff's working environment of her complaints.
15. Defendant failed to have an effective policy, in full force and effect, concerning harassment, discrimination, and retaliation at all times pertinent hereto.
16. Ms. Norwood reported and objected to the harassment and discrimination directed to her because of her gender and the retaliation and reprisal directed at her because of her complaints, to no avail.
VI. CONTESTED ISSUES OF LAW
17. Whether the City's actions were reasonable attempts to prevent or remedy the harassment.
Finally, both parties indicated in the pretrial order that they intended to introduce exhibits relating to and call witness to testify about the policies and procedures of the Hammond Police Department, including their nature, whether they were followed and whether plaintiff availed herself of them. The Court concludes that the parties' repeated references to the policies and procedures of the HPD and to whether plaintiff took advantage of them, indicates that plaintiff had fair notice of the Faragher defense early in the proceedings and that she will suffer no prejudice if defendants are allowed, to assert it, provided that the evidence introduced at trial permits them to do so. See Mackay, 695 F.2d at 856 (finding that affirmative defense, although not pled, was included in pretrial order and therefore did not result in unfair surprise to plaintiff). Accordingly, it is unnecessary for this Court to consider defendants' argument that plaintiff's motion overreaches.
As stated above, a defendant/employer may only avail itself of the Faragher defense if no tangible employment action has been taken against the plaintiff/employee. See Faragher, 524 U.S. at 777, 118 S.Ct. at 2279.
III. Conclusion
For the foregoing reasons, plaintiff's motion in limine is denied.
New Orleans, Louisiana, this 28th day of February, 2000.