Equal Employment Opportunity Commission v. Midwest Farms, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-02531-PAB-MDB
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
MIDWEST FARMS, LLC, and
MIDWEST CAPITAL SERVICES, LLC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
The matter before the Court is Plaintiff EEOC’s Motion to Strike Affirmative
Defenses [Docket No. 56]. Defendants Midwest Farms, LLC and Midwest Capital
Services, LLC filed a response, Docket No. 64, and plaintiff replied. Docket No. 65.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
On September 28, 2023, plaintiff, the Equal Employment Opportunity
Commission (“EEOC”), filed suit in this case. Docket No. 1. On December 26, 2023,
the EEOC amended its complaint. Docket No. 22. The EEOC amended its complaint
again on January 30, 2024. Docket No. 35. In the second amended complaint, the
EEOC brings claims for alleged sexual harassment on behalf of Andria Denny and a
class of similarly situated female employees of defendant Midwest Farms, LLC who
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worked at the company’s farms located near Burlington, Colorado. 1 Id. at 1–2, 6, 8,
¶¶ 36, 38, 58–59. The EEOC brings three claims against defendants under Title VII of
the Civil Rights Act of 1964 (“Title VII”) and Title I of the Civil Rights Act of 1991 (“Title
I”), namely, one claim of hostile work environment under 42 U.S.C. § 2000e-2(a)(1), one
claim of constructive discharge under 42 U.S.C. § 2000e-2(a)(1), and one claim of
retaliation under 42 U.S.C. § 2000e-3(a). Id. at 9–13, ¶¶ 69–99.
On February 27, 2024, defendants filed separate answers to the second
amended complaint. Docket Nos. 49, 50. In its answer, Midwest Farms, LLC includes
the following twenty-seven affirmative defenses:
1. Plaintiff’s Complaint, in whole or in part, fails to state a claim upon which relief
may be granted against Defendant.
2. At all relevant times, Defendant acted in good faith without any intent to cause
Ms. Denny or any of the members of the class of other alleged aggrieved
individuals (“Class Members”) any harm.
3. Ms. Denny and the Class Members were at-will employees whose
employment with Defendant could have been terminated at any time, for any
reason, with or without notice.
4. Ms. Denny’s and the Class Members’ injuries, damages, or losses, if any,
were proximately caused in whole or in part by their own acts or omissions, either
in combination with one another or independent of one another.
5. Ms. Denny’s and the Class Members’ injuries, damages, or losses, if any,
were proximately caused by the acts or omissions of third parties over whom
Defendant possessed no ability to control or right of control.
6. Defendant’s actions were taken for legitimate nondiscriminatory and
nonretaliatory reasons.
7. Defendant never took any adverse employment actions against Ms. Denny or
any other Class Members.
1 The EEOC alleges that defendants Midwest Farms, LLC and Midwest Capital
Services, LLC “comprise a single employer/integrated enterprise” for purposes of the
EEOC’s claims. Docket No. 35 at 4, ¶ 22.
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8. Ms. Denny and/or the Class Members cannot establish a causal connection
between their individual statutory or common law rights and any adverse
employment action.
9. Upon information and belief, Ms. Denny and/or the Class Members may have
failed to mitigate their damages, if any, as required by law.
10. At all times pertinent herein, Defendant acted in accordance with all common
law, statutory, regulatory, and policy obligations and without any intent to cause
Ms. Denny or the Class Members any harm.
11. Ms. Denny’s and/or the Class Members’ injuries and damages, if any, were
not aggravated by any action or omission of or by Defendant nor were they
proximately caused by or related to any act or omission of Defendant.
12. Plaintiff’s, Ms. Denny’s, and the Class Members’ claims for damages are
limited and/or subject to all applicable damages limitations and other similar
provisions of both federal and Colorado law.
13. Plaintiff is not entitled to the relief sought in the Complaint under any of the
theories asserted.
14. Some or all of Plaintiff’s claims are barred by the doctrine of laches.
15. Ms. Denny and some or all of the Class Members never engaged in any
protected activity.
16. Ms. Denny and the Class Members were not subject to any conduct that was
severe or pervasive as a matter of law.
17. Ms. Denny and the Class Members cannot establish an objectively hostile
work environment as a matter of law.
18. Ms. Denny and the Class Members’ claims fail under the Faragher-Ellerth
doctrine.
19. Defendant had effective policies and procedures for reporting complaints of
harassment, discrimination, or retaliation, and Ms. Denny and the Class
Members failed to avail themselves of these remedial avenues.
20. Defendant would have taken the same actions with respect to Ms. Denny’s
employment and/or the Class Members’ employment in the absence of any
alleged “protected activity.”
21. Plaintiff’s claims may be barred in whole or in part by the doctrines of
consent, estoppel, waiver, or unclean hands.
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22. Plaintiff may not seek relief on behalf of the Class Members beyond Ms.
Denny and beyond the wrongdoing alleged in Ms. Denny’s Charge of
Discrimination because Plaintiff did not discover such class members and other
alleged unlawful acts during its underlying investigation.
23. Plaintiff did not satisfy its administrative prerequisites with respect to
Defendant.
24. Plaintiff did not provide legally sufficient notice to Defendant of the scope of
the allegations or claims against it during Plaintiff’s investigation.
25. Plaintiff failed in whole or in part to satisfy its statutory obligation to conciliate
in good faith with Defendant before filing suit in violation of 42 U.S.C.[ ] § 2000e-
5(b).
26. Defendant and Midwest Capital do not [comprise] a single employer and/or
an integrated enterprise.
27. Defendant specifically reserves the right to amend its Answer to include
additional defenses and affirmative defenses and/or delete defenses and
affirmative defenses which have become applicable or non-applicable upon
completion of additional discovery.
Docket No. 49 at 14–17, ¶¶ 1–27. Midwest Capital Services, LLC, includes the same
twenty-seven affirmative defenses in its answer, but in a different order. See Docket
No. 50 at 11–13, ¶¶ 1–27.
On March 19, 2024, the EEOC filed its motion to strike defendants’ affirmative
defenses pursuant to Federal Rule of Civil Procedure 12(f). Docket No. 56. The EEOC
seeks to strike all of defendants’ affirmative defenses except defenses two, nine,
fourteen, and eighteen. 2 Id. at 1. On April 23, 2024, defendants responded, Docket No.
64, and the EEOC replied on May 7, 2024. Docket No. 65.
2 The Court will follow the parties’ convention of referring to each affirmative
defense by the number assigned to the defense in Midwest Farm, LLC’s answer. See
Docket No. 56 at 1; Docket No. 64 at 4 n.2.
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II. LEGAL STANDARD
Rule 12(f) permits the Court to “strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Motions under Rule 12(f) are viewed with disfavor, both because striking a portion of a
pleading is a drastic remedy and because such motions are often used as a dilatory or
harassing tactic. 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1380 (3d ed. updated 2024); see, e.g., Sender v. Mann, 423 F. Supp. 2d
1155, 1163 (D. Colo. 2006) (citing FDIC v. Isham, 782 F. Supp. 524, 530 (D. Colo.
1992)); BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007)
(“Striking a party’s pleading . . . is an extreme and disfavored measure.”); Cortina v.
Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (“Motions to strike are
generally disfavored because they are often used as delaying tactics.” (quotation
omitted)). Thus, motions to strike are typically granted only when the allegations have
no bearing on the controversy and the movant can show prejudice. Sierra Club v.
Young Life Campaign, Inc., 176 F. Supp. 2d 1070, 1086 (D. Colo. 2001). “An
affirmative defense is insufficient if, as a matter of law, the defense cannot succeed
under any circumstance.” Chavez v. Bd. of Cnty. Comm’rs of Lake Cnty., 423 F. Supp.
3d 1106, 1108 (D. Colo. 2019) (quoting Isham, 782 F. Supp. at 530); see also S.E.C. v.
Nacchio, 438 F. Supp. 2d 1266, 1287 (D. Colo. 2006) (“A motion to strike an affirmative
defense as insufficient is adjudicated under the same standard as a motion to dismiss:
namely, the Court must strike the defense only if it cannot be maintained under any set
of circumstances.”). An affirmative defense “should not be stricken if there is any real
doubt about its validity, and the benefit of any doubt should be given to the pleader.”
Sender, 423 F. Supp. 2d at 1163 (citation, alterations, and internal quotation marks
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omitted). Whether to strike a portion of a pleading is within the trial court’s discretion.
Scherer v. Dep’t of Educ., 78 F. App’x 687, 689 (10th Cir. 2003) (unpublished)
(reviewing a district court’s ruling on a motion to strike for abuse of discretion); Purzel
Video GmbH v. Smoak, 11 F. Supp. 3d 1020, 1030–31 (D. Colo. 2014); see also Fed.
R. Civ. P. 12(f) (denoting only that allegations that are subject to Rule 12(f) “may” be
stricken).
Courts in this district have held that the requirement that a complaint set forth
sufficient factual matter allowing for a reasonable inference that the pleader is entitled to
relief, as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009), does not apply to affirmative defenses. See, e.g., Alarid
v. Biomet, Inc., No. 14-cv-02667-REB-NYW, 2015 WL 6376171, at *2 (D. Colo. Sept.
22, 2015); see also Malibu Media, LLC v. Benson, No. 13-cv-02394-WYD-MEH, 2014
WL 2859618, at *2 (D. Colo. June 20, 2014) (holding that “[a]n affirmative defense is
sufficient if stated ‘in short and plain terms’ pursuant to Rule 8(b)(1)(A), and if the
movant fails to demonstrate that the defense cannot succeed under any circumstance”);
Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 2010 WL
865380, at *2 (D. Colo. Mar. 8, 2010) (finding it “reasonable to impose stricter pleading
requirements on a plaintiff who has significantly more time to develop factual support for
his claims than a defendant who is only given 20 days to respond to a complaint and
assert its affirmative defenses” and concluding that not holding an affirmative defense to
the Rule 8(a)(2) standard articulated in Twombly and Iqbal was “the better-reasoned
approach . . . particularly in light of the disfavored status of motions to strike.”); cf. Unger
v. U.S. W., Inc., 889 F. Supp. 419, 422 (D. Colo. 1995) (“An affirmative defense is
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insufficient if, as a matter of law, the defense cannot succeed under any
circumstance.”).
Federal Rule of Civil Procedure 8(c), which discusses affirmative defenses, was
modeled after the “then existing English and New York provisions,” yet the rule “differs
from both the common law and code practice in that it makes no attempt to define the
concept of affirmative defense.” 5 Fed. Prac. & Proc. Civ. § 1270 (4th ed. updated
2024). “Rather, [Rule 8(c)] obligates a defendant to plead affirmatively any of the
eighteen listed defenses he or she wishes to assert; this is necessary even though
some of them were not considered to be pleas by way of confession and avoidance at
common law.” Id. (footnote omitted). “An affirmative defense . . . is a defense that does
not negate the elements of the plaintiff’s claim, but instead precludes liability even if all
of the elements of the plaintiff’s claim are proven.” Medina v. Cath. Health Initiatives,
No. 13-cv-01249-REB-KLM, 2015 WL 13614128, at *1 (D. Colo. May 13, 2015) (citing
Lane v. Page, 272 F.R.D. 581, 601 (D.N.M. 2011)); see also United States v.
$114,700.00, No. 17-cv-00452-CMA-GPG, 2017 WL 8792806, at *1 (D. Colo. Dec. 8,
2017) (“Affirmative defenses are generally those which, when a portion of the complaint
is agreed to be true, still constitute a defense to the claimed conduct.”), report and
recommendation adopted, 2018 WL 655040 (D. Colo. Feb. 1, 2018). “It is the
defendant’s burden to plead an affirmative defense.” Fernandez v. Clean House, LLC,
883 F.3d 1296, 1299 (10th Cir. 2018) (citing Gomez v. Toledo, 446 U.S. 635, 640
(1980) (“the burden of pleading [affirmative defenses] rests with the defendant”);
Ghailani v. Sessions, 859 F.3d 1295, 1306 (10th Cir. 2017) (the complaint need not
anticipate affirmative defenses)).
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III. ANALYSIS
In its motion to strike, the EEOC asks the Court to strike defendants first, third
through eighth, tenth through thirteenth, fifteenth through seventeenth, and nineteenth
through twenty-seventh affirmative defenses. Docket No. 56 at 1. In its response,
defendants state that they “do not object to removing certain of these defenses, but
object to Plaintiff’s arguments regarding some others.” Docket No. 64 at 1
A. First, Fourth, Sixth Through Eighth, Tenth Through Thirteenth,
Fifteenth Through Seventeenth, Nineteenth, Twentieth, Twenty-Sixth,
and Twenty-Seventh Affirmative Defenses
The EEOC argues that defendants first, fourth, sixth through eight, tenth through
thirteenth, fifteenth through seventeenth, nineteenth, twentieth, twenty-sixth, and
twenty-seventh affirmative defenses should be struck because these defenses either (1)
assert that the EEOC has failed to plausibly state its claims, (2) is a denial of facts
alleged in the second amended complaint, or (3) is a reservation of rights to amend its
complaint under Federal Rule of Civil Procedure 15. Docket No. 56 at 11–15. The
EEOC maintains that none of these constitute affirmative defenses. Id. (citing A1
Garage Door Serv., LLC v. West, No. 21-cv-01821-PAB-NRN, 2022 WL 952874, at *3
(D. Colo. Mar. 30, 2022) (striking affirmative defenses because plaintiff’s “[f]ailure to
state a claim is not an affirmative defense,” but instead “seek[s] to negate the elements
of the plaintiff’s claim.”). Defendants agree that these are not affirmative defenses
which must be pled in their answers. Docket No. 64 at 9 (“Since none of these
defenses had to be pled in the first place, and Plaintiff has admitted to receiving notice
of them, Defendants do not object to the Court removing them from the Answers.”).
Therefore, the Court will strike these affirmative defenses.
B. Third Affirmative Defense
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Defendants’ third affirmative defense is that Ms. Denny and other class members
were “at will” employees. Docket No. 49 at 14, ¶ 3. The EEOC argues that Ms.
Denny’s “at will” status is irrelevant to its Title VII claims because Title VII protects all
employees from sex discrimination and retaliation. Docket No. 56 at 7 (citing 42 U.S.C.
§§ 2000e–2000e-5; Hansen v. Alta Ski Lifts Co., 141 F.3d 1184, 1998 WL 161147, at *2
(10th Cir. 1998) (unpublished table decision) (“Although Hansen was an at-will
employee, at-will status does not preclude a plaintiff from bringing a Title VII retaliation
claim.” (citing Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366–67 (10th Cir.
1997))). Defendants agree that whether Ms. Denny or other members of the class are
at-will employees is not an affirmative defense that must be pled. Docket No. 64 at 6.
Therefore, the Court will strike the third affirmative defense. Moreover, the Court
agrees with the EEOC that whether Ms. Denny and other class members were at-will
employees is immaterial to the EEOC’s claims because Title VII applies regardless of
the parties’ contractual relationship. Hansen, 1998 WL 161147, at *2; Sprague, 129
F.3d at 1366–67; Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321
(3d Cir. 2008) (Title VII applies “even when the employment is at-will” (citing Whiting v.
Jackson State Univ., 616 F.2d 116, 123 n.6 (5th Cir. 1980)). The third affirmative
defense therefore raises an immaterial matter and, for this additional reason, the Court
strikes the third affirmative defense. Fed. R. Civ. P. 12(f).
C. Twenty-First Affirmative Defense
Defendants’ twenty-first affirmative defense is that plaintiff’s claims “may be
barred in whole or in part by the doctrines of consent, estoppel, waiver, or unclean
hands.” Docket No. 49 at 16, ¶ 21. The EEOC argues that the alleged defense raises
four separate equitable defenses and claims that these equitable defenses should be
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struck. Docket No. 56 at 6. It asserts that, because defendants have failed to allege
facts that show that the EEOC has engaged in conduct that would give rise to any of
these defenses, the defenses cannot succeed under any circumstances. Id.
Defendants respond that these defenses are directed towards Ms. Denny’s conduct and
the conduct of other class members, not the EEOC’s conduct. Docket No. 64 at 5.
However, defendants agree to have the affirmative defense of unclean hands stricken
because defendants “are not pursuing the defense of unclean hands.” Id.
The EEOC replies that all of the equitable defenses cannot succeed under any
circumstance because (1) an employee such as Ms. Denny cannot waive her rights
under Title VII, Docket No. 65 at 4 (citing Alexander v. Gardner–Denver Co., 415 U.S.
36, 51 (1974) (“[W]e think it clear that there can be no prospective waiver of an
employee’s rights under Title VII . . . [because] Title VII’s strictures are absolute and
represent a congressional command that each employee be free from discriminatory
practices.”)), and (2) an EEOC employee cannot waive the government’s rights. Id. at 5
(citing Sanders v. Comm’r of Internal Revenue, 225 F.2d 629, 634 (10th Cir. 1955) (“[i]t
is . . . well established that the United States may not be estopped by the unauthorized
acts of its agents nor may such agents waive the rights of the United States”).
Alexander discussed only an employee’s waiver through collective bargaining
agreements, but not other forms of waiver, nor does it discuss the defenses of estoppel
or consent. See Alexander, 415 U.S. at 51. Neither party has shown that equitable
defenses based on an employee’s conduct are applicable or inapplicable when the
EEOC pursues the employee’s discrimination claim. However, on a Rule 12(f) motion,
the EEOC must demonstrate that none of the defenses of consent, estoppel, or waiver
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could be maintained under any set of circumstances. Nacchio, 438 F. Supp. 2d at
1287. It has failed to do so. Therefore, the Court will only strike that portion of
affirmative defense twenty-one which raises the defense of unclean hands. Sender,
423 F. Supp. 2d at 1163 (an affirmative defense “should not be stricken if there is any
real doubt about its validity, and the benefit of any doubt should be given to the pleader”
(citation, quotations, and alterations omitted)).
D. Fifth Affirmative Defense
Defendants’ fifth affirmative defense is that “Ms. Denny’s and the Class
Members’ injuries, damages, or losses, if any, were proximately caused by the acts or
omissions of third parties over whom Defendant possessed no ability to control or right
of control.” Docket No. 49 at 14, ¶ 5. The EEOC argues that this defense should be
stricken because it fails to provide adequate notice under the pleading standards of
Federal Rule of Civil Procedure 8. Docket No. 56 at 5. In particular, the EEOC
maintains that, because the defense does not identify the third parties that caused Ms.
Denny’s injuries, defendants raise an insufficient affirmative defense. Id. Defendants
respond that their pleadings comply with the fair notice standard of Rule 8. 3 Docket No.
64 at 4–5.
3 In its reply, the EEOC argues for the first time that defendants’ third affirmative
defense is an affirmative defense based on contributory negligence. Docket No. 65 at
3–4. The EEOC maintains that its claims are for intentional sex discrimination and that
a “plaintiff’s contributory negligence does not bar recovery against a defendant for a
harm caused by conduct of the defendant which is wrongful because it is intended to
cause harm to some legally protected interest of the plaintiff or a third person.” Id.
(quoting EEOC v. Product Fabricators, Inc., 873 F.Supp.2d 1093, 1102–03 (D. Minn.,
2012)). Because the EEOC raises this argument for the first time in its reply, the Court
will not consider it. Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (“a party
waives issues and arguments raised for the first time in a reply brief.” (quoting Reedy v.
Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)).
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The Court agrees with defendants that their answers provide the EEOC with fair
notice under Rule 8(c) by identifying the affirmative defense that a third party caused
Ms. Denny’s or other class member’s injuries, even if they do not identify the third
parties. See Artisan & Truckers Cas. Co. v. Am. Contracting Servs., Inc., No. 20-cv-
01576-DDD-STV, 2020 WL 13627369, at *2 (D. Colo. Dec. 2, 2020) (“there is no
requirement in Rule 8(c) to ‘show any facts at all’ when pleading an affirmative defense”
(quoting Charleswell v. Chase Manhattan Bank, N.A., 2009 WL 4981730, at *4 (D.V.I.
Dec. 8, 2009)); Dodd v. McDaniel, 2017 WL 2536910, at *2 (M.D. Tenn. June 12, 2017)
(a “lack of identification of third parties by names and of other details does not prevent
an affirmative defense from putting a plaintiff on fair notice that third parties may be at
fault” (citing Rosada v. John Wieland Homes and Neighborhoods, Inc., 2010 WL
1249841, at *4 (M.D. Fla. March 25, 2010) (failure to identify third parties by name does
not prevent a comparative-fault defense from adequately putting plaintiff on notice that
third parties may be at fault)). Therefore, the Court will not strike defendants’ fifth
affirmative defense.
E. Twenty-Second Affirmative Defense
Defendants’ twenty-second affirmative defense is that the EEOC “may not seek
relief on behalf of the Class Members beyond Ms. Denny and beyond the wrongdoing
alleged in Ms. Denny’s Charge of Discrimination because Plaintiff did not discover such
class members and other alleged unlawful acts during its underlying investigation.”
Docket No. 49 at 16, ¶ 22. The EEOC argues that this affirmative defense cannot
succeed under any circumstances because it is contrary to law. Docket No. 56 at 7.
First, it claims that, under Tenth Circuit precedent, “[a]t the discovery stage, the EEOC
should be allowed to seek proof of the effect on other [potential aggrieved individuals].”
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Id. at 7–8 (citing EEOC v. St. Louis-San Francisco Railway, 743 F.2d. 739, 744 (10th
Cir. 1984); EEOC v. N.M. Dep’t of Corr., 2017 WL 6001752, at *4 (D.N.M. Dec. 4, 2017)
(holding the “EEOC may then conduct additional discovery [after filing suit] to determine
the impact of the alleged discrimination”); Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d
1189, 1204–05 (9th Cir. 2016). Second, the EEOC maintains that, unlike individuals,
who “are bound in a significant way by the charges they file with the EEOC, a civil
enforcement suit by the EEOC is not closely circumscribed by those charges, because
the EEOC, after all, is enforcing the broad rights of the public as a whole, rather than
those of a few individuals.” Id. at 8 (quoting E.E.O.C. v. Outback Steak House of Fla.,
Inc., 520 F. Supp. 2d 1250, 1262 (D. Colo. 2007)).
Defendants respond to the EEOC’s arguments regarding their twenty-second
through twenty-fifth affirmative defenses collectively. See Docket No. 64 at 6–8.
Defendants agree that these defenses are not affirmative defenses that must be pled,
but instead concern factual disputes regarding whether the EEOC has complied with its
statutory obligations before filing suit in this case. Id. Regarding their twenty-second
affirmative defense, defendants maintain that, under Mach Mining, LLC v. EEOC, 575
U.S. 480, 488 (2015), the EEOC was required to “tell the employer about the claim—
essentially, what practice has harmed which person or class—and must provide the
employer with an opportunity to discuss the matter in an effort to achieve voluntary
compliance.” Id. at 7. Defendants assert that, prior to the EEOC filing the first amended
complaint, defendants were unaware that the EEOC was seeking class-wide relief and
therefore did not have fair notice of the scope of the EEOC’s claims. Id. at 7–8.
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The Court finds that the EEOC has failed to demonstrate that defendant’s twenty-
second defense cannot succeed under any circumstance. The court in Outback Steak
House stated that its “finding that the EEOC is not closely bound to the specifics of the
original charge does not mean that the EEOC may bring a civil action regarding any
discrimination it uncovers in the course of an investigation. Instead, . . . the EEOC must
give adequate notice to a defendant-employer of the nature of the charges against it, as
well as an opportunity to resolve all charges through conciliation.” Outback Steak
House, 520 F. Supp. 2d at 1263; see also Equal Emp. Opportunity Comm’n v.
Columbine Mgmt. Servs., Inc., No. 15-cv-01597-MSK-CBS, 2016 WL 4401035, at *5 (D.
Colo. Aug. 16, 2016) (the “original charge is sufficient to support EEOC administrative
action, as well as an EEOC civil suit, for any discrimination stated in the charge itself or
discovered in the course of a reasonable investigation of that charge, provided such
additional discrimination was included in the EEOC ‘reasonable cause’ determination
and was followed by compliance with the conciliation procedures of Title VII” (emphasis
and alterations omitted)); U.S. Equal Emp. Opportunity Comm’n v. IL Fornaio (Am.)
LLC, 2024 WL 5316236, at *5 (C.D. Cal. Nov. 14, 2024) ( the “‘EEOC may seek relief
on behalf of individuals beyond the charging part[y] and for alleged wrongdoing beyond
those originally charged’ that it uncovers during its investigation so long as there is a
reasonable nexus between the initial charge and the subsequent allegations in the
complaint” (citing EEOC v. Dillard’s Inc., 2011 WL 2784516, at *6 (S.D. Cal. July 14,
2011) (“The question here is not whether the EEOC completed the pre-litigation steps
outlined in Title VII, but whether the nature and scope of the EEOC’s pre-litigation
efforts were sufficient to put Dillard’s on notice that it potentially faced claims arising
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from a nationwide class of current and former employees.”)). The Court therefore
rejects the EEOC’s argument that defendants’ twenty-second affirmative defense
should be dismissed because it cannot be maintained under any circumstance.
However, defendants state that none of its twenty-second through twenty-fifth “defenses
are affirmative defenses” and that “Defendants have no issue removing these
statements from the Answers.” Docket No. 64 at 6–7. Therefore, the Court will strike
defendants’ twenty-second affirmative defense because it is not an affirmative defense,
although defendants may raise the issue of whether they had adequate notice of the
class-wide claims in the future.
F. Twenty-Third and Twenty-Fourth Affirmative Defenses
The EEOC seeks to dismiss defendants’ twenty-third and twenty-fourth
affirmative defenses. Docket No. 56 at 8–11. These affirmative defenses are as
follows:
23. Plaintiff did not satisfy its administrative prerequisites with respect to
Defendant.
24. Plaintiff did not provide legally sufficient notice to Defendant of the scope of
the allegations or claims against it during Plaintiff’s investigation.
Docket No. 49 at 16, ¶¶ 23–24. The EEOC argues that it has complied with the pre-
litigation statutory requirements of Title VII. Docket No. 56 at 9–10. It claims that the
Letter of Determination that the EEOC sent to defendants and certain admissions in
defendants’ answers demonstrate that the EEOC complied with the statutory
prerequisites to filing suit. Id. The EEOC attaches a copy of the Letter of Determination
and argues that the Court can consider the letter’s contents because, “[w]hen a
document is referred to in the complaint and is central to the plaintiff’s claim, the court
has discretion to consider the document as part of the pleadings.” Id. at 9 (quoting U.S.
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Olympic Comm. v. Am. Media, Inc., 156 F. Supp. 2d 1200, 1204 (D. Colo. 2001)). First,
U.S. Olympic Comm. addressed whether a court can consider documents outside the
pleadings when ruling on a Rule 12(b)(6) motion, not a Rule 12(f) motion. 156 F. Supp.
2d at 1204. The EEOC provides no support for the proposition that the Court can, or
should, engage in the kind of fact finding it suggests on a Rule 12(f) motion. Second, as
discussed above, whether the EEOC satisfied its statutory obligations is relevant to the
scope of the claims it can pursue in this litigation. Finally, the EEOC has failed to
demonstrate that these defenses cannot succeed under any circumstance, given that
there appears to be a dispute of fact regarding the sufficiency of defendants’ notice
regarding the EEOC’s claims. Chavez, 423 F. Supp. 3d at 1108 (plaintiff must show the
affirmative defense “cannot succeed under any circumstance”). Therefore, the Court
will not strike defendants’ twenty-third and twenty-fourth defenses on this basis.
However, as discussed earlier, defendants have conceded that these are not true
affirmative defenses and do not object to the Court striking them from the pleadings.
Accordingly, the Court will strike defendants’ twenty-third and twenty-fourth defenses
because they are not affirmative defenses, although defendants may raise the issue of
whether the EEOC complied with its statutory prelitigation obligations in the future.
G. Twenty-Fifth Affirmative Defense
Defendants’ twenty-fifth affirmative defense is that “Plaintiff failed in whole or in
part to satisfy its statutory obligation to conciliate in good faith with Defendant before
filing suit in violation of 42 U.S.C.[ ] § 2000e-5(b).” Docket No. 49 at 16, ¶ 25. The
EEOC argues that, under Mach Mining, 575 U.S. at 490–94, it has no duty to conciliate
“in good faith” with defendants. Docket No. 56 at 10. Defendants respond that there is
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an issue of fact as to whether the EEOC satisfied its statutory obligations before filing
suit. Docket No. 64 at 8.
In Mach Mining, the Supreme Court stated that courts “may review whether the
EEOC satisfied its statutory obligation to attempt conciliation before filing suit,” but that
the scope of review is “narrow” and allows for “expansive discretion.” Mach Mining, 575
U.S. at 483, 489. The “barebones review,” id. at 494, requires that “the EEOC afford
the employer a chance to discuss and rectify a specified discriminatory practice – but
goes no further.” Id. at 489. The “EEOC must: (1) inform the employer about the
specific allegation, describing both what the employer has done and which employees
(or what class of employees) have suffered as a result, and (2) engage the employer in
some form of discussion (whether written or oral), so as to give the employer an
opportunity to remedy the allegedly discriminatory practice.” Equal Emp. Opportunity
Comm’n v. DolGenCorp, LLC, 2024 WL 402921, at *11 (E.D. Okla. Feb. 2, 2024)
(citation, quotation, and alterations omitted)). In Mach Mining, the Court declined to
construe Title VII to incorporate the “good faith” conciliation standard in the National
Labor Relations Act. Mach Mining, 575 U.S. at 490.
The Court finds that it is unnecessary to resolve whether defendants’ twenty-fifth
affirmative defense seeks judicial review beyond the scope provided for in Mach Mining.
Because defendants agree that their twenty-fifth defense is not an affirmative defense
which must be pled and do not object to the Court striking the defense, Docket No. 64 at
6–8, the Court will strike the defense. However, the parties may seek review of the
conciliation process in this case to the extent permitted by Mach Mining.
IV. 	CONCLUSION
For the foregoing reasons, it is
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ORDERED that Plaintiff EEOC’s Motion to Strike Affirmative Defenses [Docket
No. 56] is GRANTED in part and DENIED in part. It is further
ORDERED that defendants’ first, third, fourth, sixth through eighth, tenth through
thirteenth, fifteenth through seventeenth, nineteenth, twentieth, and twenty-second
through twenty-seventh affirmative defenses, as well as defendant’s twenty-first
affirmative defense to the extent it raises the defense of unclean hands, are
STRICKEN.
DATED March 18, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
_________________	___________	__________	__	_____________	__	__	_____	_________	___	__	__	_________	__	___	______	___	____________	_ __________________________________________________	________________________
PHILIP A BRIMMER
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