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Chavez v. Board of County Commissioners of Lake County

United States District Court, D. Colorado

November 6, 2019

MARIA CHAVEZ, CHELSA PARSONS, and NICOLE GARNER, Plaintiffs,
v.
THE BOARD OF COUNTY COMMISSIONERS OF LAKE COUNTY, COLORADO, in its official capacity; THE LAKE COUNTY SHERIFF'S OFFICE, a governmental entity; RODNEY FENSKE, in his official and individual capacity; FERNANDO MENDOZA, in his official and individual capacity; MARY ANN HAMMER, in her official and individual capacity, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO STRIKE

          William J. Martinez, United States District Judge

         Plaintiffs Maria Chavez, Chelsa Parsons, and Nicole Garner bring this lawsuit against the Board of County Commissioners of Lake County, Colorado (“Lake County” or “County”), the Lake County Sheriff's Office (“Sheriff's Office”), former Lake County Sheriff Rodney Fenske (“Sheriff Fenske”), former Lake County Undersheriff Fernando Mendoza (“Undersheriff Mendoza”), and the Sheriff's Office's dispatch supervisor, Marianne Hammer (“Hammer”). Plaintiffs allege various causes of action arising from sexual harassment they experienced while working for the Sheriff's Office.

         Currently before the Court is Plaintiffs' Motion to Strike Defendants' Faragher/Ellerth Affirmative Defense Pursuant to Fed. R. Civ. P 12(f). (ECF No. 25.) Although Plaintiffs frame the motion as if directed at an affirmative defense asserted by all Defendants, only Sheriff Fenske and the Sheriff's Office (separately represented) have asserted a Faragher/Ellerth defense. For the reasons explained below, the motion is denied.

         I. LEGAL STANDARD

         Rule 12(f) permits a court to “strike from a pleading an insufficient defense.” “An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance.” FDIC v. Isham, 782 F.Supp. 524, 530 (D. Colo. 1992).

         II. BACKGROUND

         The Court has provided a relatively complete description of Plaintiffs' allegations in its order filed earlier today denying Lake County's motion to dismiss. (ECF No. 105.) For purposes of the motion to strike now at issue, the following suffices.

         Plaintiffs worked as dispatchers at the Sheriff's Office until their departures in November 2017 (Chavez and Garner) and October 2018 (Parsons). (¶¶ 3-5.)[1] While there, they allegedly faced a sexually hostile work environment due to frequent and prolonged sexual harassment by Undersheriff Mendoza, whose conduct was “perpetuated” by Sheriff Fenske and others. (¶¶ 12-14, 16-28.) Mendoza also explicitly discouraged complaints to the County's human resources department, asserting that the Sheriff's Office was primarily responsible for its own human resources matters. (¶¶ 30-34.) More specifically, Plaintiffs allege:

Although the County theoretically has a written policy informing County employees how to report sexual harassment to Human Resources, the policy was not in effect at the Sheriff County's Office.
On January 15, 2017, Undersheriff Mendoza sent an email to all Sheriff's Office employees dissuading them from contacting the County's Human Resources Department.
In that email, he informed staff that “I will not tolerate this any more” referring to calling the County's Human Resources Department, and asserting, “WE are primarily responsible for our own HR and finance duties.” (emphasis in original)
In that email, Undersheriff Mendoza also instructed the entire Sheriff's Office staff that “if you have questions, comments or concerns about ANYTHING related to HR, finance, benefits, etc…you are to follow your chain of command which means you will go to your supervisor then ME.” (emphasis in original)

(¶¶ 29-32.)

         Plaintiff Garner eventually complained about the harassment to a sheriff's deputy, who relayed Garner's accusations to a Lake County deputy district attorney. (¶¶ 40-41.) The district attorney's office opened an investigation into Mendoza's conduct. (¶ 42.) That investigation led to criminal charges against Mendoza stemming out of his treatment of Plaintiffs. (¶¶ 11(f), 12.) The investigation also ...


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