Mut. Ins. Co., 92 F.R.D. 494, 498 (S.D.N.Y. 1981) (Weinfeld, J.). Therefore, because the First Affirmative Defense is essentially a general denial and does not ask the Court to determine whether the complaint is sufficient, plaintiff will not be prejudiced by its retention and I decline to strike it.
Statute of Limitations
The Second Affirmative Defense alleges "The Complaint is barred by the applicable statute of limitations." Plaintiff contends that this defense is insufficient because the complaint was unquestionably timely filed in compliance with the statute of limitations provision of the ADEA, § 626(d), and under New York law. Defendant does not challenge plaintiffs' contention that the complaint's claim for relief arising out of his allegedly discriminatory termination was timely filed. Defendants instead assert that it is "too early" to determine whether plaintiff will add further claims alleging that the bank discriminated against him at earlier times, which claims could potentially be time-barred. Defendants' Memorandum in Opposition at 6-7.
Defendants argument does not support the sufficiency of this statute of limitations defense against the present complaint. To the contrary, defendants' argument implicitly recognizes that the complaint does not presently assert claims which are barred by the statute of limitations. Defendants instead assert that the defense expresses concern about the untimeliness of future claims, not present in the complaint. The defense is therefore clearly insufficient to defeat the present complaint and may not be asserted. If plaintiff seeks to amend the complaint to add further claims of discrimination, defendant might resurrect the affirmative defense against any permitted additional claims.
Defendants argue that in any event the defense should not be stricken because its inclusion does not prejudice plaintiff. I reject this contention. As plaintiff recognizes, inclusion of this defense could expand the scope of discovery which would impose on plaintiff unnecessary expense and effort in order to litigate a defense which is wholly insufficient. Accordingly, as the Second Affirmative Defense is insufficient and prejudicial, I grant plaintiff's request to strike it.
The Seventh Affirmative Defense asserts that "Plaintiff's employment was terminable at will by either party." Plaintiff contends that his status as an at-will employee is completely irrelevant to his claim of age discrimination. While defendants concede that the age discrimination statutes prevent employers from firing even at-will employees with a discriminatory motive, see Rickel v. Commission of Internal Revenue, 900 F.2d 655, 662-63 (3d Cir. 1990) (duty of employer not to discriminate on the basis of age under ADEA "arises even in the absence of a written employment contract and despite . . . conflicting common law employment-at-will principles"); cf. Pater v. Health Care and Retirement Corp., 808 F. Supp. 573, 575 (S.D.Ohio 1992) (court declined to exercise pendant jurisdiction over wrongful discharge claim; common law wrongful discharge claim involved issues, such as whether employment contract existed or whether employment was at-will, which were not present in ADEA claim), defendants nevertheless assert without elaboration that plaintiff's at-will status "goes to the heart of [his] allegations." Defendants' Memorandum in Opposition at p. 8. This effort to support the defense fails.
Plaintiff sets forth a claim of age discrimination, not a breach of contract or wrongful discharge action. The critical issue in this case is whether defendants had a discriminatory motive for plaintiff's dismissal, not whether defendants were unfettered in their ability to dismiss him. Regardless of whether plaintiff was an at-will employee whose employment was terminable at any time, defendants recognize that the bank could not have fired him for a discriminatory reason. It is therefore difficult to fathom how his status as an at-will employee is in any way relevant to plaintiff's discrimination claim, an assertion which defendants have completely failed to explain. Because I conclude that his position as an at-will employee could not conceivably defeat plaintiff's discrimination claim, the Seventh Affirmative Defense is insufficient and will be stricken.
Failure to Exhaust Administrative Remedies Under Benefit Plans
Plaintiff argues that the Eighth Affirmative Defense, which alleges that "upon information and belief, plaintiff failed to exhaust administrative remedies under the Bank's health and welfare benefit plans," should be stricken as insufficient and redundant. Plaintiff argues that the defense is inadequate to defeat his claim because neither the ADEA nor N.Y. Exec. Law § 296 require such exhaustion of remedies. Moreover, the defense is redundant, according to plaintiff, because defendants have asserted an affirmative defense of failure to mitigate damages. Plaintiff argues that the challenged defense essentially asserts that "if plaintiff had exhausted such remedies then he would not have been damaged by defendants' alleged age discrimination." Plaintiff's Memorandum at p. 6. Defendants respond substantially as follows:
"The Complaint specifically requests that Plaintiff receive all benefits, i.e., pension, sick leave and other lost benefits, that he would have received but for the Bank's alleged discrimination. However, the Bank has particular procedures for making claims or appealing determinations with regard to its health and welfare plans, which procedures Plaintiff did not follow."
Defendants' Memorandum at pp. 8-9. This response only supports plaintiff's argument that the defense goes to mitigation of damages, rather than liability. Defendants cannot conceivably argue that if plaintiff had followed these procedures, he would not have been fired. Rather, as I understand their argument, defendants contend that if plaintiff had followed the proper administrative procedures, his damages would not be as extensive as he claims. Because it simply presents a more narrowly focused version of the failure-to-mitigate-damages defense, the Eighth Affirmative Defense is redundant of the Fourth Affirmative Defense alleging failure to mitigate damages and will therefore be striken.
Failure to Satisfy Statutory Administrative Remedies
The Ninth Affirmative Defense reads, "Upon information and belief, plaintiff has not satisfied his administrative remedies under the Age Discrimination in Employment Act and/or New York State Executive Law, prior to the commencement of this action." Plaintiff contends that this defense is insufficient because the complaint clearly establishes his compliance with the applicable statutory requirements by filing the present action more than sixty days after filing the claim with the EEOC and less than 300 days after the alleged act of discrimination. In response, defendants point to § 626(e) of the ADEA which provides:
"If a charge filed with the Commission under this Act is dismissed or the proceedings of the commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section . . . within 90 days after the date of the receipt of such notice."