Deer v. Cherokee County

*644MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE

644 I. INTRODUCTION....................................

II. LEGAL ANALYSIS .................................. 645

A. The “Non-Assistance” Incident...................... 645

B. “After-Acquired Evidence” of Application Misconduct.. 647

C. Availability Of The “After-Acquired Evidence” Defense 648

1. “After-acquired evidence” as an affirmative defense 649

a. McKennon................................ 649

b. What constitutes an affirmative defense?...... 649

i. Rule 8(c) ............................. 649

ii. The “catchall” defenses................. 650

iii. Summary of pertinent factors........... 652

iv. Application of the factors............... 652

2. Leave to assert the defense..................... 653

a. The nexus between Rule 8(c) and Rule 15..... 654

b. Factors pertinent to leave to amend.......... 654

c. Application of the factors ................... 655

III. CONCLUSION..................... 656

This ruling on motions in limine in this lawsuit involving claims of a discriminatory failure to hire and retaliation probes the extent to which evidence of events that occurred after or were only discovered after the defendant’s decision not to hire the plaintiff can nonetheless be admissible at trial. The defendant county seeks to exclude evidence of an incident that occurred more than a year after the plaintiff was not hired as a sheriffs deputy, but the plaintiff contends that evidence is admissible to show continuing retaliation for her complaints of discrimination in the sheriffs department’s hiring process. The plaintiff, in her turn, seeks to exclude evidence from her prior employment records, because she contends those records were not considered by the county at the time it decided not to hire her, but the county contends those records are admissible “after-acquired evidence” of misrepresentations in the plaintiffs job application. Although the court must resolve these evidentiary questions, they have been overshadowed by pleading and trial readiness questions that have arisen as a consequence of the motions in limine. Those questions include whether “after-acquired evidence” is an affirmative defense that must be pleaded and proved by the defendant, and if the defense is an affirmative one, whether the failure to plead it previously in this case is a curable defect.

I. INTRODUCTION

Plaintiff Sharon Red Deer, a Native American woman over the age of forty, filed this action against defendant Cherokee County on July 1, 1997. In her complaint, Red Deer asserts federal and pendent state-law claims of age, race, and sex discrimination and retaliation. More specifically, Red Deer alleges that she was discriminated against on January 28, 1997, and continuing thereafter, when she was denied a position as a sheriffs deputy with the County, and that she was retaliated against on February 28, 1997, and thereafter, for complaining about discrimination. Trial in this matter was set to begin on January 4, 1999. However, following a conference with the parties on December 30, 1998, prompted by issues raised in the final pre-trial order and the motions in limine now before the court, trial has been continued.

This matter comes before the court pursuant to defendant’s “first” motion in limine, filed December 15,1998, and plaintiffs “first” motion in limine, filed December 18, 1998. In its motion in limine, the County seeks to exclude evidence that, more than a year after the two occasions on which Red Deer was denied, employment with the Sheriffs De*645partment, the Cherokee County Communications Center (“911”) allegedly failed to dispatch an officer to assist Red Deer with a dispute that she had encountered at a store where she was working as a security guard. The County contends that if it discriminated or retaliated against Red Deer, it did so long before the “non-assistance” incident. It also contends that Red Deer’s later difficulties in dealing with the Sheriffs Department do not tend to prove that she was a victim of discrimination when she first interviewed for a job over a year earlier or that she was retaliated against when she interviewed a second time, about eleven months earlier. Therefore, the County contends, whatever probative value the evidence of the “non-assistance incident” might have is substantially outweighed by the danger of confusing the jury and unfairly prejudicing the County. Red Deer has resisted the motion on the ground that evidence of the “non-assistance incident” is relevant to show a continuing pattern and practice of discrimination by the County against her when she called for assistance as part of her current job duties.

In her motion in limine, Red Deer has moved to exclude evidence of her past employment records, including Defendant’s Exhibit C, concerning her employment with the East Central Independent School; Exhibit D, concerning her employment with the Douglas County Sheriffs Department; Exhibit E, concerning her employment with the City of Blair; and Exhibit F, concerning her employment with the City of Ogallala. Red Deer contends that this evidence was not obtained by the County prior to its decisions not to hire her, played no part in the County’s decisions not to hire her, and consequently is not relevant or probative of any issues in this case, but is instead an attempt to put her “on trial.” In its resistance to Red Deer’s motion in limine, the County argues that the employment records are admissible “after-acquired evidence” of wrongdoing. The County contends that Red Deer misrepresented the reasons for her departures from two of her previous jobs, and characterizes her termination from one of those jobs as a discharge for “dishonest conduct.” Dishonest conduct, the County points out, is a ground for termination of a deputy sheriff and prior dishonest conduct would have constituted a ground not to hire Red Deer at all. Thus, the County asserts that, had it known about Red Deer’s misrepresentations on her job application at the time of its decision not to hire her, the County would not have hired Red Deer regardless of her race, sex, or age. In a reply brief, Red Deer contends that the employment records should nonetheless be excluded, because nothing in them shows any action on her part rising to the level of “misconduct” that would justify the County in not hiring her.

The court will consider each of these motions in turn, as well as issues concerning pleading and trial readiness that have arisen as a consequence of the court’s legal analysis of evidentiary questions.

II. LEGAL ANALYSIS

A. The “Non-Assistance” Incident

Taking the first motion first, the court finds that the County’s motion to exclude evidence of the “non-assistance” incident must be denied on several grounds. First, the court notes that Red Deer has alleged continuing violations of discrimination and retaliation, not just isolated incidents of discrimination and retaliation, as the County would have it: She alleges discrimination “beginning on January 28, 1997, and continuing to the present time,” and retaliation “beginning on February 28,1997, and continuing until the present time.” Complaint, H 1. A “continuing violation” claim generally involves an attempt to obtain recovery for incidents of discrimination falling outside of the limitations period, rather than discrimination after the filing of the administrative charge or the lawsuit. See, e.g., Jenkins v. Wal-Mart Stores, Inc., 910 F.Supp. 1399, 1413-16 (N.D.Iowa 1995). However, discriminatory or retaliatory conduct after the filing of an administrative charge or judicial complaint is also actionable if it “grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.” See Nichols v. American Nat’l Ins. Co., 154 F.3d 875, 887 (8th Cir.1998) (citing Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 676 (8th Cir.1995)). Therefore, the “non-assistance” *646incident is or may also be actionable as post-application retaliation that “grows out of or is like or reasonably related to” the allegedly, retaliatory failure to hire on February 28, 1997. Id. Red Deer’s continuing retaliation claim reasonably encompasses such conduct as having “grown out of’ her complaints of discrimination in the County’s hiring process.

In Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), the Supreme Court held that former employees could assert post-employment retaliation claims under Title VII. Robinson, 519 U.S. at 346, 117 S.Ct. 843; see also Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) (citing Robinson to hold that Title VII’s protections from retaliation extend to former employees). This court concludes that “post-application” retaliation claims should be considered according to the same standards courts have applied to “post-employment” retaliation, because the issue in both circumstances is whether the employer has retaliated against someone not currently employed by the employer for that person’s complaint about a discriminatory employment decision. The key question under this standard is whether the alleged incident of post-application or post-employment retaliation is of a kind that falls within Title VTI’s prohibitions.

The Third Circuit Court of Appeals recently considered what kind of post-employment retaliation comes within the scope of Title VII in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997). In Robinson, the Third Circuit Court of Appeals noted" that it had consistently required that retaliatory conduct rise to the level of a violation of Title VII. Robinson, 120 F.3d at 1300-01. The court also noted that in its prior precedent, it had concluded that Title VII “ ‘interdicts “an unlawful employment practice” rather than conduct in general which the former employee finds objectionable,’ ” and had rejected the plaintiffs assertion of a post-employment retaliation claim where “the allegedly retaliatory action ‘had no impact on any employment relationship that [the plaintiff] had, or might have in the future.!” Id. at 1301 n. 15 (quoting Nelson v. Upsala College, 51 F.3d 383, 389 (3d Cir.1995)). The Third Circuit Court of Appeals explained further:

In Charlton v. Paramus Bd. of Education, 25 F.3d 194 (3d Cir.1994), [cert denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994),] we held that a former employee could state a claim for retaliation arising out of post-employment conduct, so long as the retaliation affected the plaintiffs future employment opportunities. Id. at 200-01. We noted that retaliation claims have been permitted “where the retaliation results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm.” Id. at 200.

Although the instant case does not require us to resolve the issue, it appears-from our decisions in Nelson and Charlton that a plaintiff who claims that the alleged retaliation prejudiced his or her ability to obtain or keep future employment would meet the standard we announce today by showing that the retaliatory conduct was related to his or her future employment and was serious enough to materially alter his or her future employment prospects or conditions. See, e.g., Smith v. St. Louis University, 109 F.3d 1261, 1266 (8th Cir. 1997) (negative references causing potential employers to decline to hire plaintiff constitute actionable retaliation).

Robinson, 120 F.3d at 1301 n. 15 (some internal citations omitted).

The evidence the County seeks to exclude tends to prove an incident that meets this standard for showing post-application retaliation. At the time of the “non-assistance” incident, Red Deer was working as a security guard, a job with an obvious relationship to or dependence upon the Sheriffs Department. Consequently, her inability to obtain assistance from the Sheriffs. Department when circumstances required would indeed “prejudice[ ] ... her ability to obtain or keep” her employment as a security guard, because it would prejudice her ability to perform her job adequately. Cf Robinson, 120 F.3d at 1301 n. 15. In other words, Red Deer’s inability, as a security guard, to call upon law enforcement when circumstances required would be “related to” her employment and “serious enough to materially alter *647... her future employment prospects or conditions.” Id.

The court finds that the evidence of the “non-assistance incident” is relevant to — indeed forms part of the basis for — Red Deer’s continuing post-application retaliation claim. Fed.R.Evid. 401. Because the incident' in question is potentially actionable as post-application retaliation itself and falls within the scope of Red Deer’s retaliation claim, the court cannot find that the probative value of the evidence of that incident is outweighed by any prejudice to the County or potential for confusion of the jury. See Fed.R.Evid. 403. Therefore, this evidence will be admissible at trial, Fed.R.Evid. 402, and defendant’s motion in limine will be denied.

B. “After-Acquired Evidence” of Application Misconduct

The court finds that Red Deer’s motion in limine, which seeks to exclude evidence of her prior employment records on the ground that such records were not considered by the County in making its decision not to hire her, must also be denied. In McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), the Supreme Court considered the impact of “after-acquired evidence” of an employee’s wrong-doing upon the relief the employee may obtain for discrimination by the employer. See Carr v. Woodbury County Juvenile Detention Ctr., 905 F.Supp. 619, 622-25 (N.D.Iowa 1995). 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,” Perma Mufflers v. International Parts Corp., [392 U.S. 134,] 139, 88 S.Ct. [1981,] 1984 [20 L.Ed.2d 982] [ (1968) ], 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.

McKennon, 513 U.S. at 361, 115 S.Ct. 879; see also Carr, 905 F.Supp. at 622-23. Thus, as to prospective equitable relief, “as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy,” because “[i]t 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.” Id. at 362, 115 S.Ct. 879. The general rule for backpay, however, is less clear, see Carr, 905 F.Supp. at 623, although the Supreme Court offered the following guidance:

The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. In determining the appropriate relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party. An absolute rule barring any recovery of back-pay, however, would undermine the ADEA’s objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from age discrimination.

McKennon, 513 U.S. at 362, 115 S.Ct. 879.

The one black letter rule established in McKennon is that where an employer seeks to rely upon after-acquired evidence of wrongdoing by the employee during his or her employment — and this court concludes where the employer seeks to rely on evidence of wrongdoing in the application process— the employer “must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. at 362-63, 115 S.Ct. 879; Carr, 905 F.Supp. at 624. In the circumstances of the case now before the court, a failure-to-hire case not a discharge case, this court reads the rule to be that the County must first establish that the wrongdoing was of such severity that Red Deer in fact would not have been hired on those grounds alone if the County had known of the wrongdoing at the time of the decision not to hire her. Cf. id. In McKennon, the Court made clear that the *648principles it was articulating applied with equal force in discrimination cases based on Title VII as well as in cases based on the ADEA. Id. at 357-58, 115 S.Ct. 879; Carr, 905 F.Supp. at 625. Thus, they are applicable to all of Red Deer’s claims in this litigation, which include claims of race and sex discrimination in violation of Title VII and a claim of age discrimination in violation of the ADEA.

Whether or not the County can ultimately mount the hill to demonstrate that it would not have hired Red Deer because of misrepresentations of her past employment in her job applications, see McKennon, 513 U.S. at 362-63, 115 S.Ct. 879, the evidence Red Deer seeks to exclude is certainly relevant to the County’s attempt to do so. Red Deer’s argument that this evidence was not obtained by the County prior to its decisions not to hire her, played no part in the County’s decisions not to hire her, and consequently is not relevant or probative of any issues in this case, simply misses the point. The question under McKennon is not whether the County actually relied on the evidence in making its decision, but what the County would have done had the evidence come to light at the time of Red Deer’s applications. Id. Indeed, the Supreme Court was aware of Red Deer’s concern, because it specifically noted that “[t]he employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired [or not hired] for the nondiscriminatory reason.” Id. at 360, 115 S.Ct. 879. The Court recognized that “ ‘proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made.’ ” Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 104 L.Ed.2d 268 (plurality opinion)). But the Court found that “[o]ur inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered.” Id. Thus, although not part of the County’s decision-making process, the after-acquired evidence of Red Deer’s alleged misrepresentations in her job application is nonetheless relevant to the question of remedies in this case. Cf. id.

Red Deer’s final argument that nothing in her past employment rises to the level of “misconduct” sufficient for the County not to have hired her is also unavailing. The Fourth Circuit Court of Appeals has pointed out that where there is a genuine issue of material fact as to whether or not the employer would have terminated the employee for the misconduct in question, the district court errs in finding that the after-acquired evidence defense defined in McKennon applies as a matter of law, because the employer has not proved the “would have fired” requirement for raising the defense. Russell v. Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir.1995). This court finds this standard is also applicable to genuine issues of material fact as to whether the employer would not have hired an applicant because of after-acquired evidence of wrong-doing. Such genuine issues of material fact obtain here. Indeed, at least two genuine issues of material fact exist concerning the applicability of the defense here: First, it is for the jury to decide whether Red Deer’s “misconduct” in her prior employment was such that the County would not have hired her on those grounds alone; second, the jury must also decide whether Red Deer made misrepresentations on her application, and whether those misrepresentations, irrespective of the seriousness of the “misconduct” they allegedly hid, were sufficiently serious in and of themselves that the County would not have hired her on that ground alone. See McKennon, 513 U.S. at 362-63, 115 S.Ct. 879. In these circumstances, the evidence of Red Deer’s past employment is relevant to the availability and success of the County’s after-acquired evidence defense, and is not unfairly prejudicial; consequently, it would be admissible, Fed.R.Evid. 401, 402, 403, if the County is allowed to assert its after-acquired evidence defense, a question addressed in the next section.

C. Availability Of The “After-Acquired Evidence” Defense

Although the court has concluded that the evidence of Red Deer’s past employment records is relevant to the County’s after-acquired evidence defense, there are concerns *649that may nonetheless stand as impediments to the County’s ability to raise such a defense at trial. First, the County had not pleaded that defense in this litigation prior to the filing of Red Deer’s motion in limine and resistance to it, or indeed prior to the filing of the final pre-trial order. This concern, of course, begs the question of whether the after-acquired evidence defense is an affirmative defense that must be pleaded as well as proved by the defendant. If it is, the court must then consider whether it is appropriate to grant the County’s oral request, made at the conference on December 30, 1998, to amend its answer to assert the defense. The answer to that question may in turn hinge on whether Red Deer is unfairly surprised by such a defense on the eve of trial, and whether any unfair surprise is curable.

1. “After-acquired evidence” as an affirmative defense

Scant case law considers whether “after-acquired evidence” is an affirmative defense that must be pleaded as well as proved by the defendant. Indeed, no court appears to have considered the question directly. For example, in passing, the Third Circuit Court of Appeals described McKennon as “addressing] the doctrine of ‘after-acquired evidence’ and establishing] it as an affirmative defense that becomes meaningful once the plaintiff has established a prima facie case of discrimination.” McNemar v. Disney Store, Inc., 91 F.3d 610, 621 (3d Cir.1996), cert. denied, 519 U.S. 1115, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997). This court is unwilling to jump to the conclusion, based on an offhand and conclusory observation in a nonbinding decision — and furthermore an observation that was not even central to the analysis of the court making it — that “after-acquired evidence” is an affirmative defense. The court therefore looks first to the decision establishing the defense.

a. McKennon

In McKennon, the Supreme Court clearly placed the burden of proving the “after-acquired evidence” defense upon the defendant. For example, the Court stated that “[w]here an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated [or not hired] on those grounds alone if the employer had known of it at the time of the discharge.” McKennon, 513 U.S. at 362-63, 115 S.Ct. 879 (emphasis added). The Court did not, however, specifically identify the defense as an “affirmative” one, and said nothing whatever about the defendant’s obligation to plead the defense. Unfortunately, more general guidance on what constitutes an affirmative defense is also sparse, but what suggestions this court has discovered are discussed in the next subsection.

b. What constitutes an affirmative defense?

i. Rule 8(c). Rule 8(c) of the Federal Rules of Civil Procedure establishes the requirement that all affirmative defenses be pleaded and establishes a non-exhaustive list of what defenses fall within the scope of that pleading requirement:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Fed.R.Civ.P. 8(c) (emphasis added); see also Sayre v. Musicland Group, Inc., 850 F.2d 350, 353 (8th Cir.1988) (noting that there are nineteen enumerated affirmative defenses, but that the list is “non-exhaustive,” as it also includes “any other matter constituting an avoidance or affirmative defense”); accord Brunswick Leasing Corp. v. Wisconsin Central, Ltd., 136 F.3d 521, 530 (7th Cir.1998) (“Fed.R.Civ.P.8(c) provides that ‘a party shall set forth affirmatively [various enumerated defenses] and any other matter constituting an avoidance or affirmative defense,’” with emphasis supplied by that court). Thus, an affirmative defense 'within *650the meaning of Rule 8(e) must “ ‘generally be pled or else [it] may be waived.’ ” Stephenson v. Davenport Community Sch. Dist., 110 F.3d 1303, 1307 n. 3 (8th Cir.1997) (quoting Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir.1997)); Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir.1996) (an affirmative defense must be “raised in the pleadings or [it is] waived”); accord Brunswick Leasing Corp., 136 F.3d at 530 (“As a general matter, an affirmative defense that is not timely pleaded is waived.”); Harris v. Secretary, U.S. Dep’t. of Veterans Affairs, 126 F.3d 339, 343 (D.C.Cir.1997) (“the language of Rule 8(c) itself requires that [an affirmative defense] be raised affirmatively in ‘a pleading to a preceding pleading,’ ” quoting Rule 8(c), and noting that “[a]lthough the Rules do not explicitly mention waiver or forfeiture as the consequence of failure to ■follow Rule 8(c), it is well-settled that ‘[a] party’s failure to plead an affirmative defense ... generally “results in the waiver of that defense and its exclusion from the case,’”” quoting Dole v. Williams Enters., Inc., 876 F.2d 186, 189 (D.C.Cir.1989), with emphasis in that decision, in turn quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (1990)); Cooperative Fin. Ass’n, Inc. v. Garst, 917 F.Supp. 1356, 1385 (N.D.Iowa 1996).

The purpose of the pleading requirement for affirmative defenses in Rule 8(c) “is to give the opposing party notice of the plea of [the affirmative defense] and a chance to argue, if he can, why the imposition of [the affirmative defense] would be inappropriate.” Blonder-Tongue Lab. v. University of Illinois Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (discussing the enumerated affirmative defense of estoppel); Brunswick Leasing Corp., 136 F.3d at 531 (“the purpose of Rule 8(c) ‘is to avoid surprise and undue prejudice to the plaintiff by providing [it] notice and the opportunity to demonstrate why the defense should not prevail,’ ” quoting Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir.1997)); Hams, 126 F.3d at 343 (finding the rationale of Blonder-Tongue also applicable to the pleading of the enumerated affirmative defense of statute of limitations). This rationale is particularly applicable to affirmative defenses “where a party may require notice and time not only to frame legal arguments, but to establish relevant facts that might affect the applicability of the [affirmative defense].” Harris, 126 F.3d at 343.

ii. The “catchall” defenses. However, “after-acquired evidence” plainly is not among the affirmative defenses specifically enumerated in Rule 8(c). See Fed. R.Civ.P. 8(c). Where a defense is not one of the enumerated defenses, whether or not it comes within the ambit of Rule 8(c) depends upon whether it falls within the “catchall” for “any other” defenses. See Sayre, 850 F.2d at 353 (considering whether a defense not specifically enumerated in Rule 8(c), mitigation of damages, fell within the “catchall” of “any other matter constituting an avoidance or affirmative defense”); accord Brunswick Leasing Corp., 136 F.3d at 530. As the Seventh Circuit Court of Appeals cogently observed, “The appropriate analysis for determining what falls into the ‘any other’ category is not well settled.” Brunswick Leasing Corp., 136 F.3d at 530.

In Sayre v. Musicland Group, Inc., 850 F.2d 350 (8th Cir.1988), a diversity case, the Eighth Circuit Court of Appeals stated that “[t]he pleading of affirmative defenses is a procedural matter” to which federal rules of procedure apply. Sayre, 850 F.2d at 352. Therefore, in determining whether mitigation of damages w