King v. Rec. Equip., Inc.

King v. Rec. Equip., Inc.

Opinion

ORDER

Before the Court is Plaintiff Kelly King's ("King") motion in limine. King requests exclusion of all after-acquired evidence, and all evidence of reasons for her termination other than the reasons listed in Defendant Recreational Equipment Inc.'s ("REI") discharge communication. The Court heard arguments on this motion during the Final Pretrial Conference. During this conference it became clear that Plaintiff seeks to exclude evidence related to two specific areas: (1) evidence that King made purchases with another person's credit card, which would violate REI's employee discount policy; and (2) evidence that King impermissibly received a 50% ProDeal discount for items other than the four t-shirts purchased as gifts for her father, her father's dentist, her former veterinarian Dr. Lisa, and Dr. Lisa's partner. For the reasons discussed [*2]  below, the Court will grant King's motion in in part and deny it in part.

I. Credit Card Purchases

During arguments on King's motion in limine, REI conceded that evidence concerning King's use of another person's credit card in violation of the discount policy was not known to REI at the time of her discharge and, thus, was after-acquired evidence. Nonetheless, REI contends that this evidence is still admissible because it undercuts King's argument that the four t-shirts bought in violation of the ProDeal discount policy were isolated instances. Thus, REI argues, though this would be after-acquired evidence, it tends to prove the truth of the original reason REI provided for terminating King.

Despite REI's argument, Montana case law is clear that "an employer cannot rely upon after-acquired evidence that was not known to the employer at the time of the termination to establish good cause for the termination." Schwartz v. Metro Aviation, Inc., CV 08-32-M-JCL, 2009 U.S. Dist. LEXIS 9448, 2009 WL 352599, at *5 (D. Mont. Feb. 9, 2009) (citing Flanigan v. Prudential Federal Savings & Loan Assoc., 221 Mont. 419, 431, 720 P.2d 257, 264 (1986)). Here, it is undisputed that King's alleged credit card purchases were neither known to REI at the time she was terminated nor relied upon for her termination. Thus, because this information was not known to REI at the time at [*3]  the time of termination; and was not examined at the time of discharge, this evidence cannot be used to support termination. Flanigan, 720 P.2d at 264. Accordingly, the Court grants King's motion to the extent that REI seeks to introduce this evidence to show that her termination was for good cause.¹

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