Opinion
No. 99 C 2678
February 7, 2000
MEMORANDUM OPINION AND ORDER
Richard Sterling sues David Riddle, Nicholas Graves and the City of Harvey ("the city") for employment discrimination. In Count I, Sterling claims the city terminated him due to his race in violation of Title VII, 42 U.S.C. § 2000e et. seq. Count II alleges the city refused to make a reasonable accommodation for Sterling in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq. In Count III, Sterling alleges racial discrimination in violation of 42 U.S.C. § 1981a, 42 U.S.C. § 1982, and 42 U.S.C. § 1983. Count IV alleges the city terminated Sterling in retaliation for filing a claim under the Illinois Workers' Compensation Act, 820 ILCS 305/4h, in violation of Illinois law. This court dismissed Count III and defendants Riddle and Graves were dismissed from all counts on July 8, 1999. The city now moves for summary judgment on Sterling's remaining claims pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1.
BACKGROUND
All facts are undisputed unless otherwise noted. Sterling, an African-American, worked for the city as a firefighter from January 1981 until November 18, 1995. Def. Rule 12M statement of undisputed facts ¶¶ 1, 6. ("Def. 12M"). In April 1995, Sterling was transferred to the most dangerous and active station in the city and was verbally harassed by Riddle, the Fire Chief.Id. ¶ 2. Sterling claims he was given discriminatory job assignments during his time with the fire department. Id. ¶ 3.
In the papers, Sterling uses the new local rule numbers, 56.1(a) and 56.1(b), while the city uses the old local rule numbers, 12M and 12N. The court uses the old nomenclature for the sake of clarity.
Sterling claims he injured his left knee on the job November 18, 1995. Id. ¶ 4. After his knee injury, Sterling could not perform the duties of a firefighter and never returned to work.Id. ¶ 5. November 18, 1995 was the last day Sterling worked for the city. Id. ¶ 6. In April 1996, he requested the city accommodate his injury by allowing him to work light duty. Id. ¶ 7. The city did not grant his request but it is unclear exactly when the request was officially denied. In July 1996, Sterling filed a workers' compensation claim. Id. ¶ 8. The city officially terminated his employment on May 13, 1998. Id. ¶ 20.
On June 25, 1997, the city filed charges against Sterling before the Harvey Civil Service Commission ("the commission") seeking his termination. Id. ¶ 10. His hearing before the Civil Service Commission commenced on January 6, 1998 and concluded February 11, 1998. Id. ¶¶ 11, 14. Sterling appeared in person, was represented by legal counsel of his own selection, and all witnesses were sworn, testified under oath and were subject to cross-examination. Id. ¶ 15. The commission concluded Sterling had gone to the home of a superior officer, accused him of lying and tried to strike him with his fist. Id. ¶ 16. The commission decided Sterling should be terminated for these actions. Id. ¶ 17. The commission also concluded that Sterling's injury suffered on November 18, 1995 was the result of a baseball or softball injury and was not an on-the-job injury as he has claimed. Id. ¶ 18. The commission determined Sterling should be terminated for this misrepresentation as well.Id. ¶ 19. The commission rendered its decision and terminated Sterling's employment on May 13, 1998. Id. ¶ 20. Sterling denies that he attempted to punch a superior officer and that his injury was the result of a softball or baseball injury.
At the hearing, Sterling did not put forth a defense that his termination was in retaliation for filing a workers compensation claim. Id. ¶ 21. He did not present the defense that he was harassed or discriminated against because of his race. Id. ¶ 22. He did not claim that he had requested and was denied a reasonable accommodation. Id. ¶ 23. He did not allege that he was denied light duty while similarly situated white employees were given light duty. Id. ¶ 24. Sterling simply denied the allegations against him.
On June 17, 1998, Sterling filed a timely administrative review action in the Circuit Court of Cook County challenging the findings and discipline ordered by the commission. Id. ¶ 25. He was represented by the same counsel in the administrative review action as he was in the hearing. Id. ¶ 26. Sterling was given a full opportunity to brief the issues before the Circuit Court. Id. ¶ 27. At no time during the administrative review action did Sterling raise or put forth any of the following defenses: that his termination was in retaliation for filing a workers compensation claim; that he was harassed and discriminated against because of his race; that he was denied a reasonable accommodation of working light duty; or that he was denied light duty when similarly situated white firefighters had been given light duty. Id. ¶ 28. The Circuit Court of Cook County affirmed the decision of the commission on February 19, 1999. Id. ¶ 29. Sterling did not appeal the decision of the Circuit Court, but filed this action instead. Id. ¶ 30.
Defendants moved to dismiss the complaint. Pursuant to the motion, this court dismissed Count III alleging racial discrimination under 42 U.S.C. § 1981, 1982, and dismissed defendants Riddle and Graves from all counts on July 8, 1999. In the motion to dismiss, defendants did not argue that any of Sterling's claims were barred by the doctrine of res judicata or by statutes of limitations. Plaintiff's 12N statement of additional facts ¶ 32 ("P1. 12N"). The city filed its answer to the complaint on June 11, 1999 and an amended answer on August 4, 1999. The city did not mention res judicata or the statute of limitations defenses in its answer or in the amended answer. Id. ¶¶ 33, 34. The city did not mention the res judicata or the ADA statute of limitations until it filed its motion for summary judgment on December 16, 1999.
Finally, there is a class action case pending in the Northern District of Illinois, Barner v. City of Harvey, No. 95 C 3316, alleging that African-Americans who were employed by the city as of April 4, 1995 were subject to adverse employment actions including harassment, discipline, demotion, transfers, constructive discharge, and layoff or discharge. Id. ¶¶ 35-36. Sterling has opted into the class and argues that as a result, his discriminatory assignments claims are no longer part of this suit. Id.
DISCUSSION
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaun-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). However, to survive a motion for summary judgment the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The city makes two arguments in support of summary judgment. First, it argues Sterling's claims are barred by the doctrine of res judicata. Res judicata prevents a party from litigating a claim that already has been judicially decided. The doctrine not only applies to questions actually decided, but extends to all issues, grounds for recovery or defenses that might have been presented in the prior litigation between the parties. Alexander v. United States, 121 F.3d 312, 314 (7th Cir. 1997). The city claims Sterling had the opportunity to raise each of his claims before the commission and subsequently before the Circuit Court on administrative review. The city concludes that because Sterling failed to do so, res judicata bars him from pursuing his claims now. The city also contends Sterling's ADA claim is barred by the statute of limitations because Sterling failed to file an EEOC charge within 300 days of requesting and being denied a reasonable accommodation as required by the ADA. In response, Sterling argues summary judgment should be denied because the city waived its res judicata and statute of limitations defenses by failing to plead them as affirmative defenses as required by Fed.R.Civ.P. 8(c).
The city asserts Sterling's claims of discriminatory job assignments are barred by the statutes of limitations on Title VII, § 1982 and § 1983 claims. However, this court dismissed Count III on July 8, 1999.
Rule 8(c) requires a defendant to plead res judicata, statutes of limitations and any other affirmative defenses in its answer to the complaint. Failure to do so risks a finding that the defense has been waived. Venters v. City of Delphi, 123 F.3d 959, 967 (7th Cir. 1997) (statute of limitations defense waived where defendant did not mention defense until summary judgment reply brief); Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990) (statute of limitations defense waived because defendant failed to raise defense in its answer); Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287 (7th Cir. 1977) (claim that statute of limitations bars a lawsuit is an affirmative defense, and must be pleaded or it is considered waived); Yohannan v. Patla, 971 F. Supp. 323, 326 (N. D. Ill. 1997) (defendants waived res judicata defense by failing to include it in their answer).
The city admits it failed to plead res judicata and statute of limitations defenses in its answer. Without citing any cases or other authority, the city requests that the technical strictures of Rule 8(c) be relaxed. In its reply brief, the city requests that the court recognize its motion for summary judgment as an amendment to its answer, adding res judicata and the statute of limitations as affirmative defenses, pursuant to Fed.R.Civ.P. 15(a). The city argues that its assertions of res judicata and the statute of limitations do not come as a surprise or cause Sterling prejudice, but rather allowing the affirmative defenses is in the interest of judicial economy.
The requirements of Rule 8(c) are not absolute. Defendants may belatedly assert affirmative defenses as long as the plaintiff had adequate notice of the defense and was not deprived of the opportunity to respond. Blaney v. United States, 34 F.3d 509, 512-13 (7th Cir. 1994) (technical failure to plead defense not fatal where defendant raised issue in motion to dismiss); Velez v. Murphy, 1998 WL 409418 *1 (N.D. Ill. July 15, 1998) (failure to plead an affirmative defense in an answer is not fatal). The purpose of the rule is to avoid surprise and prejudice to the plaintiff by providing him notice and the opportunity to demonstrate why the defense should not prevail. Venters, 123 F.3d at 967 (citing Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 350 (1971)). The court has discretion to allow an answer to be amended to assert an affirmative defense not raised at the outset. Fed.R.Civ.P. 15 (a); Venters, 123 F.3d at 967. However, once the availability of an affirmative defense is reasonably apparent, the defendant must notify the court and the plaintiff of his intent to pursue that defense. Id. A defendant should promptly seek the court's leave to amend his answer to include the defense. Id. at 968.
The city has waived the affirmative defenses of res judicata and the ADA statute of limitations. It is undisputed the city failed to plead res judicata or the statute of limitations as affirmative defenses in its answers. The city failed to assert these defenses in its motion to dismiss. Even though the complaint was filed on April 23, 1999, the city did not mention the affirmative defenses until it filed its motion for summary judgment on December 16, 1999. Sterling did not receive notice of the defenses until December 21, 1999, four days after the discovery cut-off deadline. The availability of these defenses was apparent from the time the complaint was filed and the city gives no reason for the delay. Also, Sterling may be severely prejudiced by the delay. If the city had pled its affirmative defenses when it filed its answer or its amended answer, Sterling would have had the opportunity to conduct discovery on these issues.
Furthermore, this is unlike cases where defendants have been permitted to belatedly assert affirmative defenses. In Blaney andVelez, defendants raised affirmative defenses in motions to dismiss, thus giving plaintiff's notice and an opportunity to investigate and respond. Blaney, 34 F.3d at 512-13; Velez, 1998 WL 409418 *1. Here, the city made no mention of res judicata or the ADA statute of limitations in its motion to dismiss and waited to raise the defenses until its motion for summary judgment, filed one day before the close of discovery. As the Seventh Circuit noted in Venters:
We recognize that the limitation defense may have been meritorious; and [plaintiff's] counsel should have had some inkling that the defense might be raised. . . . But is was not [plaintiff's] obligation to raise the defense, and if Rule 8(c) is not to become a nullity, we must not countenance attempts to invoke such defenses at the eleventh hour, without excuse and without adequate notice to the plaintiff.Venters, 123 F.3d at 969. In sum, res judicata and the statute of limitations have been waived. These defenses were the sole basis for the city's motion for summary judgment. Accordingly, the motion must be denied.
CONCLUSION
The motion for summary judgment is denied.