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Failure to answer Affirmative Defenses is not basis for dismissal of racial discrimination claim

Thomas McCracken and three other EMS employees of the City of Detroit Fire Department filed a lawsuit against the City, alleging that they were victims of racial discrimination.  The City filed an Answer that included Affirmative Defenses alleging issues that it claimed refuted the employees' claims.  The City's Answer also "demanded" an answer to its Affirmative Defenses, although the Court Rules do not list Affirmative Defenses as a Pleading to which an adverse party must reply.  The employees' attorney ignored the "demand" and the City asked the trial court to asssume that the failure to answer constituted  an acknowledgement of its Affirmative Defenses--thereby rendering the employees' claims subject to dismissal.  The Court agreed with the City's attorneys and did dismiss the claims.  The employees appealed.

After thoroughly reviewing the interaction of the pertinent Court Rules, the Court of Appeals noted that Affirmative Defenses are assumed to be disputed if an adverse party does not respond to them.  Furthermore, Affirmative Defenses are not included in the list of pleadings to which a reply may be demanded on risk of dismissal.  Therefore, the Defendant could not enforce its "demand" for a reply by a demand for dismissal.  On this basis, the employees' claims of reverse discrimination were reinstated and the case was sent back to the lower court for further proceedings.
Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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