James A. Teilborg

ORDER

Defendant Bill Alexander Automotive Center, Inc. filed a Motion for Partial Summary Judgment on October 12, 2011. (Doc. 21). Defendant seeks judgment on Plaintiff James Eagle's claim for a hostile work environment under the Age Discrimination in Employment Act ("ADEA"). Defendant argues the Court lacks jurisdiction over the hostile work environment claim because Plaintiff's EEOC charge does not mention harassment/hostile work environment.

The Court does not need to decide whether Plaintiff exhausted a claim for harassment/hostile work environment under the ADEA in his administrative charge because Plaintiff concedes in his Response to the Motion for Partial Summary Judgment that he is not attempting to state a separate, stand-alone ADEA claim for hostile work environment. (Doc. 31, p. 2 "Mr. Eagle is not asserting a separate claim for a hostile work environment based upon his age, sixty-seven."). The Court therefore grants partial summary judgment to Defendant on Plaintiff's claim for harassment/hostile work environment under the ADEA, to the extent Plaintiff even attempted to allege such a separate claim. Plaintiff's claim for discrimination in violation of the AEDA remains.

In its Reply, Defendant asks the Court to strike paragraphs 16, 17, 18, 21, 22, F and G of the Complaint. The Court will deny this request because Defendant has not articulated a legal basis for striking those sections of the Complaint, and it appears the time for filing a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) has passed because Defendant already has answered the Complaint. F.R.Civ.P. 12(f)(2)(Party must file a motion to strike "either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading."). Moreover, the Court agrees with Plaintiff that any age-related comments or behavior by Defendant could be relevant to Plaintiff's age-discrimination claim.

Also in the Reply, Defendant asks the Court to award it attorneys' fees for having to brief the Motion for Partial Summary Judgment. The Court will deny this request as well because Defendant again does not articulate a legal basis for its request. This denial is without prejudice to Defendant filing a properly supported motion for fees.

Accordingly,

IT IS ORDERED GRANTING Defendant's Motion for Partial Summary Judgment (Doc. 21). The Court enters judgment for Defendant on Plaintiff's ADEA claim for hostile work environment to the extent Plaintiff attempted to allege a separate claim for harassment/hostile work environment under the ADEA.

IT IS FURTHER ORDERED Denying Defendant's request to strike certain paragraphs from the Complaint.

IT IS FURTHER ORDERED Denying without prejudice Defendant's request for attorneys' fees.

____________

James A. Teilborg

United States District Judge