Free Answering Brief in Opposition - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ELIZABETH A. HUOVINEN (f/k/a Elizabeth Taylor), Plaintiff, v. CITY OF WILMINGTON and KENNETH BUKOWSKI, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-362 (SLR) JURY TRIAL DEMANDED

PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO AMEND ANSWER

BIGGS AND BATTAGLIA Victor F. Battaglia, Sr. (Del. Bar #156) Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 Tel: 302-655-9677 Fax: 302-655-7924 [email protected] Attorneys for Plaintiff December 31, 2007

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TABLE OF CONTENTS

Table of Authorities .............................................................................................................. 3 Nature and Stage of Proceedings ......................................................................................... 4 Summary of Argument .......................................................................................................... 5 Statement of Facts .................................................................................................................. 6 Argument: DEFENDANTS' MOTION TO AMEND THEIR ANSWER SHOULD BE DENIED AS IT IS NOT BASED ON ANY NEW CLAIMS AND THERE IS NO GOOD CAUSE FOR SUCH AN AMENDMENT ............................................................................... 7 Conclusion .............................................................................................................................. 10

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TABLE OF AUTHORITIES

Hall v. Operative Plasterers' and Cement Masons' Int'l Assoc. Local Union 143, 188 F.Supp.2d 1013 (S.D. Ill. 2001)

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NATURE AND STAGE OF PROCEEDINGS On June 7, 2007, plaintiff Elizabeth Huovinen filed a complaint against defendants City of Wilmington (the "City") and Kenneth S. Bukowski (a Lieutenant in the Wilmington Fire Department) alleging discrimination, retaliation, prima facie tort, battery, and intentional infliction of emotional distress. Complaint Counts 1-5 respectively. Exhibit-1. On July 17, 2007, prior to any responsive pleading having been filed by defendants, plaintiff filed an amended complaint adding claims under 42 U.S.C. §1983 against Lieutenant Bukowski and the City. Amended Complaint Counts 3 and 4 (Exhibit-2). On August 20, 2007, defendants filed an answer to the amended complaint. Defendants raised 22 affirmative defenses, but did not raise the specific defense of failure to exhaust administrative remedies. On December 14, 2007, defendants filed a motion to amend their answer to add proposed affirmative defense 23: "Plaintiff failed to exhaust her administrative remedies." Defendants' Opening Brief at Exhibit F. This is plaintiff's answering brief in opposition to defendants' motion.

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STATEMENT OF FACTS

Plaintiff Elizabeth Huovinen is a firefighter with the Wilmington Fire Department ("WFD"). Plaintiff asserts in this case that she has been subjected to, inter alia, discriminatory practices, harassment, battery, and intentional infliction of emotional distress through the actions of defendant Kenneth S. Bukowski and other members of the WFD. Prior to the filing of this action, plaintiff pursued administrative remedies through the Delaware Department of Labor ("DDOL") and the Equal Employment Opportunity Commission ("EEOC"). The Department of Labor found reasonable cause that plaintiff had been discriminated against based on her sex/gender, but it found against her with respect to sexual harassment. plaintiff's request, the EEOC adopted the findings of the DDOL. Plaintiff commenced this action in June 2007. Exhibit-1. Prior to the filing of a Exhibit-4. Upon

responsive pleading, plaintiff filed an amended complaint. Exhibit-2. Both the complaint and the amended complaint set forth plaintiff's allegations in detail. Defendants responded to the amended complaint through an answer filed in August 2007. Defendants raised 22 affirmative defenses in their answer. Exhibit-3. Defendants now seek to raise an additional defense of failure to exhaust administrative remedies. Plaintiff opposes this motion on the grounds that defendants either mischaracterize the claims in this case, or else seek to address claims that are not in the case.

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SUMMARY OF ARGUMENT

Defendants seek to amend their answer to assert a new affirmative defense purportedly on the ground that plaintiff has altered her claims or raised new claims during this case. Review of the pleadings and exhibits indicates that defendants are incorrect in asserting that plaintiff has added any new claims during the course of this action. Accordingly, defendants can point to no legitimate reasons justifying the assertion of a new affirmative defense under these circumstances.

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ARGUMENT

DEFENDANTS' MOTION TO AMEND THEIR ANSWER SHOULD BE DENIED AS IT IS NOT BASED ON ANY NEW CLAIMS AND THERE IS NO GOOD CAUSE FOR SUCH AN AMENDMENT Defendants' motion to amend their complaint should be denied as it is not based on any new claims. Defendants' motion appears grounded entirely in defendants' interpretation of evidence that has been developed during the course of discovery, rather than with any new claims that have been asserted. On page 2 of its Opening Brief, defendants list four purported claims that allegedly were not asserted before the Delaware Department of Labor ("DDOL") or the Equal Employment Opportunity Commission ("EEOC"). Defendants further assert that these allegedly new claims arose either during discovery itself, or in conversations between counsel. Defendants' assertions in this regard are demonstrably incorrect. First, defendants appear to allege that sexual harassment was asserted for the first time during discovery. That is incorrect. In her original DDOL Charge of Discrimination, plaintiff asserted that her immediate supervisor, Lieutenant Bukowski, "continues to subject her to harassment that includes physical touching." Exhibit-3. That charge is set forth in detail in plaintiff's amended complaint. See Exhibit-2 at ¶¶ 17, 26. Moreover, the DDOL determination expressly addressed sexual harassment. Exhibit-4. Secondly, in her initial DDOL filing, plaintiff asserted harassment and "verbal abuse" by Lieutenant Bukowski. Exhibit-3. Again, that charge is set forth in detail throughout plaintiff's amended complaint (see, e.g., ¶¶ 23, 25, 27), as well as the DDOL determination. Exhibit-4. 7

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Next, the lack of training claim asserted by plaintiff is included within the allegations of discrimination and harassment in the DDOL filing, as well as set forth in detail within the amended complaint. See Exhibit-3 at ¶¶ 8-12, 63. The DDOL determination discusses

plaintiff's allegation that Lieutenant Bukowski treated plaintiff differently than male firefighters. Exhibit-4. The discrimination and harassment charges brought by plaintiff included improper housing facilities for female firefighters. See Exhibit-3 at ¶9. At least one incident, when Lieutenant Bukowski passed through the mere shower curtain comprising the door to the female firefighters' quarters and jumped on plaintiff while she was in bed (Amended Complaint at 17) is directly attributable to insufficient or discriminatory housing conditions. See also Amended Complaint at ¶9 (male firefighter entered plaintiff's area and exposed himself). As addressed above, the DDOL expressly addressed sexual harassment. The last example listed by defendants is allegedly a claim of "discriminatory recruiting practices." Opening Brief at 2. Plaintiff has, in fact, never asserted that claim. The subject itself came up during depositions of WFD employees in the context of WFD's general treatment of female firefighters. The fact that a subject came up in discovery does not mean that it comprises a separate claim or justifies an amended answer. Indeed, there is nothing to answer in this regard. Plaintiff cites the case of Hall v. Operative Plasterers' and Cement Masons' Int'l Assoc. Local Union 143, 188 F.Supp.2d 1013 (S.D. Ill. 2001) for the proposition that leave to amend answers is freely given. That is correct in principle. However, in Hall, the proposed defense was key to the defense of the claims themselves. By contrast, in this case, defendants seek to amend their answer to address either claims that do not exist, or claims which were properly 8

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asserted at the outset and to which 22 other affirmative defenses were raised. The fact that 22 affirmative defenses were originally raised by defendants suggests that serious thought was given to the subject of affirmative defenses, and that a conscious decision was made not to include other possible defenses - such as the one at issue here. Defendants assert that their proposed defense would not be futile (Opening Brief at 4), but they then again rely on the proposition that plaintiff is somehow raising new claims to which defendants did not have an opportunity to respond. That is simply not the case. Plaintiff respectfully submits that defendants have failed to show proper grounds justifying an amended answer at this point. Accordingly, plaintiff requests that the Court deny defendants' motion.

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CONCLUSION

For the foregoing reasons, plaintiff Elizabeth Huovinen respectfully requests that the Court deny defendants' motion to amend their answer.

BIGGS AND BATTAGLIA /s/ Steven F. Mones Victor F. Battaglia (Del. Bar #156) Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 302-655-9677 [email protected] Attorneys for Plaintiff Elizabeth Huovinen December 31, 2007

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