The Supreme Court will hear arguments November 2 in Younge v. Fulton Judicial Circuit District Attorney's Office to decide whether a defendant may assert an affirmative defense in a summary judgment motion even though the defendant failed to plead that defense in its original answer.
Jasmine Younge worked as a high-level employee in the Fulton County District Attorney's Office for approximately two months until her termination in July 2019 by District Attorney Paul Howard. Younge claims she was fired about two weeks after informing Howard of her pregnancy. She sued the DA's office for civil rights violations, including pregnancy discrimination under Title VII of the Civil Rights Act of 1964.
The DA's office answered Younge's complaint without asserting an affirmative defense based on Title VII's personal-staff exemption, which shields certain officials' personal staff members from the definition of employee. At a pretrial hearing in March 2022, the DA's office announced it would move for summary judgment using that exemption. The lawyer stated the office had not learned of the defense until beginning to draft the summary judgment motion. The DA's office never sought to amend its answer to add the defense before filing its summary judgment motion.
A federal magistrate judge permitted the personal-staff defense and recommended summary judgment for the DA. The district court adopted that recommendation. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed, applying a prejudice analysis from the 1988 case Hassan v. U.S. Postal Service. The circuit court found Younge suffered no prejudice because the record contained extensive discovery evidence about the personal-staff exemption and she identified no additional discovery she would have pursued had the defense been asserted earlier.
Younge urges the Court to adopt a textualist approach. Federal Rule of Civil Procedure 8(c)(1) requires defendants to plead affirmative defenses, she argues. Allowing summary judgment on unpleaded defenses circumvents stricter requirements in Rule 15(a)(2), which governs amending pleadings and requires analysis of factors including undue delay, and Rule 16(b)(4), which requires "good cause" for modifying scheduling orders. Younge seeks reversal.
The DA's office defends the prejudice standard, asserting it aligns with the Federal Rules' dual purpose: resolving cases on the merits while avoiding resolution based on technical rule violations. The DA points to Rule 61's harmless error provision and argues the rules distinguish between importing new factual issues through amendments versus raising legal arguments. The DA also notes that former Rule 12 provided waiver of unpleaded defenses but current rules do not.