ORDER granting 55 Motion for Leave to File Amended Answer. (The requesting party must file the document with the clerk.) TTUHSC may file an amended answer clarifying its¶

Corbett v. Texas Tech University Health Sciences Center, No. 5:21-cv-00281-H (N.D. Tex.) · Dkt. 58 · 2023-07-07 · PDF

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

SHANNON CORBETT,

Plaintiff,
v.

TEXAS TECH UNIVERSITY HEALTH

No. 5:21-CV-281-H

SCIENCES CENTER,
Defendant.

ORDER

Before the Court is defendant Texas Tech University Health Sciences Center's
(TTUHSC) opposed motion for leave to file an amended answer. Dkt. No. 55. Plaintiff Dr.

Shannon Corbett has responded. Dkt. No. 57. Because persuasive caselaw supports
granting the amendment and TTUHSC has met the good cause standard, the Court grants
TTUHSC's motion.

1. Background

In November 2021, Dr. Shannon Corbett sued TTUHSC, bringing claims of sex
discrimination, retaliation, and hostile work environment under both Title VII and the
TCHRA. Dkt. No. 1-6. TTUHSC timely filed its answer, asserting various affirmative
defendants, including a "failure to mitigate" affirmative defense. Dkt. No. 1-16 at 2.
TTUHSC then removed the case to this Court. Dkt. No. 1.

TTUHSC moved for summary judgment as to all claims (Dkt. No. 17), which the
Court granted in part (Dkt. No. 37 at 1-2). Summary judgment was granted in favor of

TTUHSC as to the sex discrimination and retaliation claims but denied as to Dr. Corbett's
hostile-work-environment claim. Id.

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Pursuant to the Court's scheduling order and in anticipation of trial, TTUHSC and
Dr. Corbett were drafting the joint jury charge when TTUHSC became aware of Dr.
Corbett's belief that TTUHSC had waived the Ellerth-Faragher affirmative defense to Dr.
Corbett's hostile work environment claim. Dkt. No. 55 at 2·3. The proposed jury charge
was filed on July 3, 2023. Dkt. No. 53.
TTUHSC promptly filed its emergency motion for leave to file an amended answer
on July 5, 2023. Dkt. No. 55. TTUHSC argues that the motion should be granted because
caselaw supports an amendment when a general "failure to mitigate" defense has been

raised and because the good-cause factors weigh in its favor. Id. at 2-3. Dr. Corbett
responded, claiming that the motion should be dismissed because the affirmative defense
would be surprising, prejudicing her, and two of the remaining good-cause factors allegedly
weigh in her favor. Dkt. No. 57 at 2-5.
2. Analysis
As caselaw from other courts explain, the Ellerth-Faragher affirmative defense is not

waived when the employer alleged a general failure to mitigate damages defense. In Howard
v. City of Robertsdale, for example, the plaintiff argued that the defendant waived the EllerthFaragher affirmative defense by not specifically including it in the answer. No. 03-0770-BHC, 2004 WL 5551812, at *7 n.4 (S.D. Al. Dec. 9, 2004). The defendant had not named the
defense nor spelled out its elements but had included under the "Affirmative Defenses"
section of its answer that "some or all of the claims asserted by the Plaintiff's complaint are
barred by the Plaintiff's failure to mitigate damages, as alleged, if any." Id. The Court

noted that the Ellerth-Faragher affirmative defense "essentially deals with mitigation of

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damages" and, as such, the defense fell under the description of "failure to mitigate
damages." Id. Therefore, the defendant's pleading was sufficient to assert the defense. Id.
The Eleventh Circuit agreed with the district court's conclusion. Howard v. City of
Robertsdale, 168 F. App'x 883, 886 n.3 (11th Cir. 2006). The Court pointed to Pennsylvania

State Police v. Suders, where the Supreme Court held that "[f]ollowing Ellerth and Faragher,
the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but

the defendant bears the burden to allege and prove that the plaintiff failed in that regard."
Id. (quoting Penn. St. Police v. Suders, 542 U.S. 129, 1522 (2004)). The Eleventh Circuit
explained that "the Ellerth-Faragher defense is clearly a mitigation defense," so the plaintiff
had therefore received "notice of the affirmative defense and a chance to rebut it." Id.; see

also Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258·59 (11th Cir. 2014).
Here, TTUHSC similarly included a general failure to mitigate damages defense in
its answer, listing it under the Affirmative Defenses section. Dkt. No. 1-16 at 2. The Court
agrees with the Eleventh Circuit's conclusion that although TTUHSC did not refer to the
defense by its name, the general "failure to mitigate damages" provided Dr. Corbett with
sufficient notice and a chance to rebut it as required by Federal Rule of Civil Procedure 8(c).
See Howard, 168 F. App'x at 886 n.3. Therefore, TTUHSC did not waive the Ellerth-Faragher
defense.

In addition, TTUHSC has shown good cause for leave to amend its answer. In
determining good cause, the Court considers four factors: "(1) the explanation for the failure
to timely move for leave to amend; (2) the importance of the amendment; (3) potential

prejudice in allowing the amendment; and (4) the availability of a continuance to cure such
prejudice." Sw. Bell. Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003).

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Here, the factors weigh in favor of TTUHSC. First, as to its explanation, TTUHSC

states that it ·intends, as it always has,· to assert the Ellerth-Faragher defense and ·argu[e]
that [Dr. Corbett] failed to take advantage of the process and procedures· that TTUHSC
had in place ·for preventing and handling harassment complaints, thereby failing to
mitigate her harm.· Dkt. No. 55 at 2·3. TTUHSC was not aware that Dr. Corbett believed
that the defense had been waived until the parties were discussing and drafting the joint jury
charge, which was filed only two days prior to TTUHSC·s motion. Id. at 2·3. Second, the

Ellerth-Faragher defense is significant because it ·allow[s] an employer to avoid vicarious
liability in supervisor hostile environment sexual harassment cases, as alleged in this case.·
Perales v. Yes! Cmtys., Inc., No. SA-12-CA-450-PM, 2013 WL 3245357, at *7 (W.D. Tex.
June 26, 2013). Third, Dr. Corbett argues that she will be surprised and therefore seriously
prejudiced because she believed that TTUHSC had waived the defense. Dkt. No. 57 at 4.
But as TTUHSC points out, Dr. Corbett requested ·all materials that contain or refer to
[TTUHSC·s] employment sexual harassment policies and procedures· during discovery,
which provides some indication that Dr. Corbett was aware that TTUHSC would be

asserting the Ellerth-Faragher defense. Dkt. No. 55 at 3. Finally, and in any event, the Court
grants a continuance, which would cure any alleged prejudice. Rather than setting the trial
date for July 17, 2023, the Court sets trial for July 24, 2023.
3. Conclusion

Because caselaw from other courts counsel that the Ellerth-Faragher affirmative
defense has not been waived where the employer has alleged a failure to mitigate damages
defense and because TTUSHC has shown good cause, the Court grants the motion.

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TTUHSC may file an amended answer clarifying its assertion of the Ellerth-Faragher
affirmative defense by July 11, 2023.

So ordered on July 7, 2023.

JAMES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

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