Jablonski v. Special Counsel, Inc.

Background

Terri Jablonski sued Special Counsel, Inc., alleging discrimination, retaliation, libel, and breach of recordkeeping duties. She alleged that, after applying for paralegal positions, Special Counsel failed to register or refer her applications, marked her profile “NMQ,” meaning “not minimally qualified,” and rejected her for positions that were later filled by younger people whom she claimed were less qualified. The opinion does not decide whether those allegations are true.

Special Counsel’s amended answer asserted 18 defenses. Among other things, the defenses claimed that Jablonski had not exhausted administrative remedies, that some claims were barred by prior proceedings or waiver, that her claims were untimely, that her treatment was based on legitimate reasons, that she failed to reduce her damages, and that some claims lacked a private right of action. The eighteenth defense also alleged that an “NMQ” designation had been entered in Jablonski’s profile in 1999 by a predecessor company.

Motion to Strike

Jablonski moved under Federal Rule of Civil Procedure 12(f) to strike all of Special Counsel’s affirmative defenses. An affirmative defense is a defense that, if proven, could limit or defeat a plaintiff’s claim even if the complaint’s allegations are accepted. The court applied the rule that a defense may be stricken when there is no possible supporting fact or law and keeping it would prejudice the opposing party. The court also applied the requirement that defenses contain enough factual support to be plausible, while recognizing that some defenses receive a more relaxed review when the necessary facts are not readily available to the defendant.

The court denied the motion to strike Special Counsel’s use of the term “unintelligible,” explaining that a party may state that it lacks enough information to admit or deny an allegation.

The court denied the motion as to the eighth defense, concerning bad faith, and the seventeenth defense, concerning the absence of a private right of action, because Jablonski did not argue in her opening brief that those defenses should be struck.

The court granted the motion as to the second, third, fourth, thirteenth, fourteenth, sixteenth, and eighteenth defenses. Those defenses concerned administrative exhaustion, collateral estoppel, waiver, failure to include claims in an administrative charge, failure to file an administrative complaint on time, business necessity, and the statute of limitations. The court found that Special Counsel had not provided sufficient factual support for these defenses. Regarding the statute-of-limitations defense, the court specifically found that Special Counsel alleged when the 1999 designation was entered but did not allege when Jablonski learned about it.

The court denied the motion as to the first, fifth, and sixth defenses. Those defenses asserted failure to state a claim, treatment based on factors other than a protected characteristic or protected activity, and legitimate, nondiscriminatory reasons for Special Counsel’s actions. The court found that factual allegations elsewhere in the amended answer, including the alleged negative reference and the “NMQ” designation, supplied enough support to make those defenses plausible.

The court also denied the motion as to the tenth and eleventh defenses, concerning failure to mitigate damages and reducing damages by wages or other income. It held that these defenses can apply to failure-to-hire claims and that the defenses were legally valid under the applicable standard.

Finally, the court denied the motion as to the seventh, ninth, twelfth, and fifteenth defenses. These concerned good-faith efforts to comply with the law, lack of damages caused by Special Counsel, attorneys’ fees and costs, and speculative damages. The court treated these statements as specific denials because they addressed elements of Jablonski’s claims rather than functioning as separate affirmative defenses.

Sanctions

Jablonski also sought sanctions under Rule 11. The court denied that request because she included it as part of her motion to strike. Rule 11 requires a sanctions motion to be filed separately and to describe the specific conduct allegedly violating the rule.

Leave to Amend and Disposition

The court found that Jablonski had not sufficiently shown undue delay, bad faith, a futile amendment, or undue prejudice. It therefore granted Special Counsel leave to amend its amended answer and directed Special Counsel to file a second amended answer by May 8, 2020.

The final disposition was that Jablonski’s motion to strike was granted in part and denied in part, her motion for sanctions was denied, and Special Counsel was granted leave to amend its amended answer.