Red Deer v. Cherokee Cty. - 183 F.R.D. 642 (N.D. Iowa 1999)

Rule:

In general, after-acquired evidence of misconduct during employment or in an application for employment is relevant in a discrimination case as follows: In determining appropriate remedial action, the employee's wrongdoing becomes relevant not to punish the employee, or out of concern for the relative moral worth of the parties, but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing. Thus, as to prospective equitable relief, as a general rule in such cases, neither reinstatement nor front pay is an appropriate remedy, because it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.

Facts:

Plaintiff Sharon Red Deer, a Native American woman over the age of forty, filed the present action against defendant Cherokee County. In her complaint, plaintiff alleged age, race, and sex discrimination in connection with the denial of her application for a position as a sheriff's deputy. She further alleged that she was retaliated against for complaining about the discrimination. More than one year after the adverse employment decision, plaintiff alleged that the sheriff's department failed to dispatch an officer to assist her while she was working as a security guard. Meanwhile, defendant sought to introduce evidence of plaintiff's past employment records that were not available at the time it declined to hire her, as after-acquired evidence of wrongdoing. Defendant filed a motion in limine to exclude evidence showing that the sheriff's department failed to respond to plaintiff employee's calls for assistance after she filed a retaliation claim. Plaintiff filed a motion in limine to exclude her past employment records, which were not considered by defendant in making the allegedly discriminatory employment decision.

Issue:

1. Under the circumstances, should the court grant defendant’s motion in limine? 
2. Under the circumstances, should the court grant plaintiff’s motion in limine? 

Answer:

1) No. 2) No.

Conclusion:

The court denied defendant's motion in limine to exclude the evidence of non-assistance because it was related to plaintiff's continuing post-application retaliation claim. Moreover, the court denied plaintiff's motion in limine to exclude the evidence of her past employment records because they were relevant to the question of remedies. The court next determined that after-acquired evidence was an affirmative defense. Although defendant had not pleaded it by the eve of trial, the court granted defendant leave to plead, and granted a continuance to cure any prejudice to plaintiff.