Deer v. Cherokee County
183 F.R.D. 642, 78 Fair Empl. Prac. Cas. (BNA) 1463, 1999 U.S. Dist. LEXIS 199 (1999)
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Rule of Law:
The 'after-acquired evidence' defense, which allows an employer to limit liability by showing it would have terminated or not hired an individual for wrongdoing discovered after the alleged discrimination, is an affirmative defense under Federal Rule of Civil Procedure 8(c) that must be pleaded in the defendant's answer.
Facts:
- Sharon Red Deer, a Native American woman over the age of forty, applied for a sheriff's deputy position with Cherokee County.
- On January 28, 1997, Cherokee County denied her the position.
- Red Deer complained that the decision was discriminatory.
- On February 28, 1997, she was again denied employment with the County.
- After the lawsuit was filed, Cherokee County discovered that Red Deer had allegedly misrepresented on her job application the reasons for her departures from previous jobs.
- The County contended that this alleged dishonest conduct would have been grounds not to hire her had it been known at the time.
- More than a year after she was denied employment, while working as a security guard, Red Deer called the Cherokee County Communications Center for assistance, and an officer was allegedly not dispatched.
Procedural Posture:
- Plaintiff Sharon Red Deer filed a lawsuit against Defendant Cherokee County in the U.S. District Court for the Northern District of Iowa.
- The complaint alleged claims of age, race, and sex discrimination, as well as retaliation.
- As the trial date approached, Cherokee County filed a motion in limine to exclude evidence of the 'non-assistance' incident.
- Red Deer filed a motion in limine to exclude her past employment records, which the County sought to introduce as 'after-acquired evidence.'
- During a pre-trial conference, the County made an oral motion for leave to amend its answer to formally assert the 'after-acquired evidence' defense.
- The District Court considered these motions before the scheduled trial.
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Issue:
Is the 'after-acquired evidence' defense an affirmative defense under Federal Rule of Civil Procedure 8(c) that must be affirmatively pleaded by the defendant?
Opinions:
Majority - Bennett, District Judge
Yes, the 'after-acquired evidence' defense is an affirmative defense under Federal Rule of Civil Procedure 8(c) that must be pleaded and proved by the defendant. The court determined this by applying a three-factor analysis. First, the Supreme Court in McKennon placed the burden of proving the defense on the defendant. Second, the defense does not controvert the plaintiff's discrimination claim but rather 'avoids' it by barring certain remedies even if discrimination is proven. Third, the defense requires notice pleading to avoid surprise and undue prejudice to the plaintiff, who needs time to frame legal arguments and gather facts to challenge the defense's applicability. Because the defense met all these criteria, it falls under Rule 8(c)'s pleading requirements.
Analysis:
This decision clarifies the procedural status of the 'after-acquired evidence' defense established in McKennon v. Nashville Banner Pub. Co. By classifying it as an affirmative defense, the court mandates that defendants must plead it in their initial answer, preventing them from surprising plaintiffs with it on the eve of trial. This ruling reinforces the notice pleading principles of the Federal Rules of Civil Procedure, ensuring that plaintiffs have a fair opportunity to conduct discovery and prepare to rebut the defense. For future employment discrimination cases, this means defendants must be diligent in discovering and timely pleading any after-acquired evidence defenses or risk forfeiting them.
