The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff, Case No. 2:23-cv-3175
Judge Edmund A. Sargus, Jr.
v. Magistrate Judge Chelsey M. Vascura
LORI’S GIFTS, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff United States Equal Employment Opportunity
Commission (“EEOC”)’s Motion to Strike Insufficient Material from Defendant’s Answer and to
Deem Certain Allegations Admitted. (Mot., ECF No. 6.) For the reasons stated below, the Court
GRANTS IN PART and DENIES IN PART the EEOC’s Motion.
BACKGROUND
The EEOC filed its Complaint against Defendant Lori’s Gifts, Inc., in September 2023 for
violations of Title I and Title V of the Americans with Disabilities Act of 1990, as amended
(“ADA”), and Title I of the Civil Rights Act of 1991. (Compl., ECF No. 1.) In sum, the EEOC
alleges that Lori’s Gifts discriminated against Teresa Shepherd and other aggrieved persons for
unlawful pre-employment inquiries relating to job applicants’ ability to walk, stand, and lift
objects. (See id. ¶¶ 53, 68, 72.) In response, Lori’s Gifts timely answered the EEOC’s allegations
and asserted thirty-seven affirmative defenses and additional defenses. (Answer, ECF No. 4.)
The EEOC moves to strike Lori’s Gifts’ second, third, fourth, sixth, eighth, twenty-third,
twenty-sixth, twenty-seventh, and twenty-eighth defenses. (Mot., PageID 31.) Those defenses
state:
2. The Complaint, in whole or in part, fails to state a claim against Defendant upon
which relief can be granted.
3. Plaintiff, Ms. Shepherd, and potential Claimants failed to exhaust their
administrative, statutory, arbitration, and/or contractual remedies.
4. Plaintiff, Charging Party, and potential Claimants’ claims are barred by the
applicable statutes of limitations.
6. Plaintiff’s claims are barred, in whole or in part, because the EEOC has failed to
satisfy conditions precedent to suit with respect to the claims asserted in this
lawsuit.
8. Plaintiff’s claims are barred, in whole or in part, to the extent that the EEOC
provided no notice of an administrative charge, investigation, or determination
regarding the subject matter of the claims to Defendant and failed to conciliate such
claims.
23. Defendant did not subject Ms. Shepherd, potential Claimants, or any other
employees to disability discrimination.
26. At all times pertinent herein, Ms. Shepherd or Claimants did not have a
disability within the meaning of 42 U.S.C. § 12102 (2), nor were Ms. Shepherd or
Claimants perceived by Defendant as having a disability, and therefore he has no
right to any relief under the A.D.A.
27. Ms. Shepherd or Claimants were not qualified individuals with a disability
within the meaning of 42 U.S.C. § 12111(8), and therefore have no right to any
relief under the A.D.A.
28. Ms. Shepherd or Claimants were unable to perform the essential functions of
the job, with or without reasonable accommodations.
(Answer, ¶¶ 2, 3, 4, 6, 8, 23, 26–28 on PageID 23–24, 26–27.)
Additionally, the EEOC moves to strike Lori’s Gifts’ response to paragraph ten of the
EEOC’s Complaint under Rule 9(c) of the Federal Rules of Civil Procedure and to deem paragraph
ten of the Complaint admitted pursuant to Rule 8(b)(6). (Mot., PageID 31.) Paragraph ten of the
Complaint states, “All conditions precedent to the institution of the lawsuit have been fulfilled.”
(Compl., ¶ 10.) In response to paragraph ten of the Complaint, Lori’s Gifts answered, “these
allegations constitute legal conclusions to which no response is required.” (Answer, ¶ 5 on PageID
20.) At the same time, Lori’s Gifts admitted to the allegations contained in paragraphs seven, eight,
and nine of the Complaint, which relate to the EEOC’s conditions precedent. (Answer, ¶ 4 on
PageID 20.) Those admitted paragraphs state:
7. More than thirty days prior to the institution of this lawsuit, Teresa Shepherd
filed a charge with the Commission alleging that Defendant violated the ADA.
8. On June 29, 2023, the Commission issued to Defendant a Letter of Determination
finding reasonable cause to believe that the ADA was violated and inviting
Defendant to join with the Commission in informal methods of conciliation to
endeavor to eliminate the unlawful employment practices and provide appropriate
relief.
9. On August 1, 2023, the Commission issued to Defendant a Notice of Conciliation
Failure advising Defendant that the Commission was unable to secure from
Defendant a conciliation agreement acceptable to the Commission.
(Compl., ¶¶ 7–9.) The EEOC argues these admissions are sufficient to satisfy all conditions
precedent to this lawsuit, as asserted in paragraph ten of the Complaint. (Mot., PageID 38.)
Lori’s Gifts filed a response in opposition to the EEOC’s Motion. (Resp., ECF No. 8.) The
EEOC filed a Reply. (Reply, ECF No. 10.)
LEGAL STANDARD
Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). “Because striking a portion of a pleading is a drastic remedy, such motions
are generally viewed with disfavor and are rarely granted.” AT&T Glob. Info. Sols. Co. v. Union
Tank Car Co., No. C2–94–876, 1997 WL 382101, at *1 (S.D. Ohio Mar. 31, 1997) (Holschuh, J.)
(citing Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)).
The action of striking a pleading should be “resorted to only when required for the purposes of
justice” and when “the pleading to be stricken has no possible relation to the controversy.” Brown
& Williamson Tobacco Corp., 201 F.2d at 822. A defense is insufficient if it cannot succeed under
any circumstances. Id.
ANALYSIS
I. Response and Defenses Regarding Conditions Precedent
The EEOC asserts that it has satisfied all conditions precedent and argues that Lori’s Gifts’
denial of that assertion should be stricken because the Answer fails to deny the assertion with
particularity, as required by Rule 9(c) of the Federal Rules of Civil Procedure. (Mot., PageID 35.)
Rule 9(c) provides that satisfaction of all conditions precedent may be pleaded generally, but a
party denying satisfaction of a condition precedent “must do so with particularly.” Fed. R. Civ. P.
9(c). The EEOC is correct that Lori’s Gifts denied the EEOC’s satisfaction of conditions precedent
without particularly, failing to follow Rule 9(c), in its response to paragraph 10 of the Complaint
and in its sixth and eighth defenses. (See Answer, ¶ 5 on PageID 20, ¶¶ 6, 8 on PageID 23–24.) In
response, Lori’s Gifts moves the Court to grant it leave to amend under Rule 15(a)(2). (Resp.,
PageID 49–52.) The EEOC opposes the motion for leave to amend, arguing it is futile and not in
the interests of justice because Lori’s Gifts cannot plead facts to show that the EEOC failed to
satisfy all conditions precedent. (Reply, PageID 65.)
Federal Rule of Civil Procedure 15 governs amended pleadings. Lori’s Gifts moves for
leave to amend under Rule 15(a)(2), under which “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The rule provides,
“[t]he court should freely give leave when justice so requires.” Id. “In deciding whether to allow
an amendment, the court should consider the delay in filing, the lack of notice to the opposing
party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power
Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001); see Foman v. Davis, 371 U.S. 178, 182
(1962). “The thrust of Rule 15 is to reinforce the principle that cases should be tried on their merits
rather than the technicalities of pleadings.” Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982).
The conditions precedent relevant to this lawsuit include the EEOC’s obligation “to remedy
unlawful workplace practices through informal methods of conciliation” before suing an employer
for discrimination. Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 482–83 (2015). To meet the
conciliation requirements under Mach Mining, the EEOC must at least “inform the employer about
the specific allegation” and “try to 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.” Id. at 494. It is within the Court’s proper scope of judicial review to examine the EEOC’s
compliance with these notice and conciliation requirements, but the Court does not examine “what
happened . . . during those discussions.” Id.
Although Lori’s Gifts has admitted that the EEOC informed it about alleged ADA
violations, invited it to participate in conciliation, and that conciliation failed, it did not admit that
the EEOC fulfilled its obligation to inform Lori’s Gifts “about the specific allegation.” Mach
Mining, 575 U.S. at 494. In fact, in its eighth defense, Lori’s Gifts contests the “notice of an
administrative charge, investigation, or determination regarding the subject matter of the claims.”
(Answer, ¶ 8 on PageID 24.) But, given that Lori’s Gifts admits that the EEOC issued notice to it
about alleged ADA violations, Lori’s Gifts likely had the information it needed to assert in its
Answer that the notice failed to sufficiently state the specific allegations. That admission suggests
that granting leave to amend may be futile.
Even so, this is Lori’s Gifts first attempt to amend its Answer, and the EEOC has not
persuaded the Court that it would face undue prejudice by granting Lori’s Gifts leave to amend the
specific parts of its Answer relating to conditions precedent. If Lori’s Gifts argues that the EEOC
failed to notify it of the specific allegations, “[a] sworn affidavit from the EEOC stating that it has
performed the obligations noted above but that its efforts have failed will usually suffice to show
that it has met the conciliation requirement.” Mach Mining, 575 U.S. at 494. Based on these factors,
in combination with the Court’s preference for adjudicating cases on the merits and the instruction
that leave should be granted freely in the interests of justice, the Court allows Lori’s Gifts to amend
its Answer to state with particularly its objections regarding conditions precedent as required under
Rule 9(c).
The Court GRANTS Lori’s Gifts’ motion for leave under Rule 15(a)(2) to amend its
Answer regarding its response to paragraph ten of the EEOC’s Complaint and Lori’s Gifts sixth
and eighth defenses. The Court DENIES AS MOOT the EEOC’s Motion to Strike those parts of
the Answer and DENIES its Motion to Deem Certain Allegations Admitted as to paragraph ten of
the Complaint.
II. Lori’s Gifts’ Additional Defenses
The EEOC argues that the Court should strike Lori’s Gifts’ second, twenty-third, twenty-
sixth, twenty-seventh, and twenty-eighth defenses because they are not affirmative defenses.
(Mot., PageID 42.) Federal Rule of Civil Procedure 8(c) provides, “In responding to a pleading, a
party must affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c)(1). “An
affirmative defense raises matters extraneous to the plaintiff’s prima facie case.” Ford Motor Co.
v. Transp. Indem. Co., 795 F.2d 538, 546 (6th Cir. 1986). Other defenses that “negate an element
of the plaintiff’s prima facie case . . . are excluded from the definition of affirmative defense in
Fed. R. Civ. P. 8(c).” Id. (citation omitted). Defenses that are “analogous to” or “derivative of”
one of the affirmative defenses listed in Rule 8(c)(1) are generally deemed to be affirmative
defenses. Id.
Lori’s Gifts’ second defense merely asserts that the Complaint fails to state a claim upon
which relief can be granted. “[C]ourts in this Circuit have accepted ‘failure to state a claim’ as an
affirmative defense.” Sprint Sols., Inc. v. Shoukry, No. 2:14-CV-00127, 2014 WL 5469877, at *4
(S.D. Ohio Oct. 28, 2014) (citing Sony/ATV Music Pub., LLC v. D.J. Miller Music Distribs., Inc.,
No. 3:09–CV–01098, 2011 WL 4729807, at *5 (M.D. Tenn. Oct. 7, 2011)). Because this defense
provides fair notice and because motions to strike are disfavored, the Court declines to strike the
second affirmative defense.
Lori’s Gifts’ twenty-third, twenty-sixth, twenty-seventh, and twenty-eighth defenses
negate elements of discrimination that the plaintiff must prove as part of its prima facie case.
Because such defenses are excluded from the definition of “affirmative defense” in Rule 8(c), the
Court finds it appropriate to strike those defenses from the Answer. See Edison Brewing Co. LLC
v. Gourmet Fresh LLC, No. 2:21-CV-876, 2022 WL 899695, at *4 (S.D. Ohio Mar. 28, 2022)
(striking certain defenses that negated elements of the plaintiff’s prima facie case). Although the
stricken defenses are not appropriate as part of the Answer, Lori’s Gifts is not prohibited from
raising those defenses as part of a future dispositive motion.
Lori’s Gifts’ third and fourth defenses, respectively, relate to the exhaustion of remedies
and statutes of limitations. The EEOC argues that it is not required to exhaust administrative
remedies and that the defense cannot succeed as a matter of law. (Mot., PageID 40.) It also argues
that its enforcement actions are not subject to statutes of limitations. (Id., PageID 41–42.) Although
the EEOC might prove these arguments in this litigation, the Court finds it unnecessary to strike
Lori’s Gifts’ affirmative defenses on these grounds at this early stage in the proceedings. The
EEOC does not face undue prejudice by Lori’s Gifts asserting these basic affirmative defenses in
its initial pleading.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the
EEOC’s Motion to Strike Insufficient Material from Defendant’s Answer and to Deem Certain
Allegations Admitted. (ECF No. 6.) The Court STRIKES from the Answer the twenty-third,
twenty-sixth, twenty-seventh, and twenty-eighth defenses asserted by Lori’s Gifts. (ECF No. 4,
¶¶ 23, 26–28 on PageID 26–27.) The Court GRANTS Lori’s Gifts’ motion for leave to amend its
response to paragraph ten of the Complaint and its sixth and eighth affirmative defenses. (Id. ¶ 5
on PageID 20, ¶¶ 6, 8 on PageID 23–24.) The Court DENIES AS MOOT the EEOC’s Motion to
Strike those parts of the Answer, DENIES the EEOC’s Motion to Strike Lori’s Gifts’ second,
third, and fourth affirmative defenses, and DENIES the EEOC’s Motion to Deem Certain
Allegations Admitted as to paragraph ten of the Complaint.
This case remains open.
IT IS SO ORDERED.
2/24/2025 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE