Red Deer v. Cherokee County, Iowa

Brief Fact Summary.

Red Deer, a female Native American applicant to a deputy sheriff vacancy, sued Cherokee County, Iowa for race, age, and sex discrimination, as well as retaliation, hen she was not hired for the vacancy.

Synopsis of Rule of Law.

A defendant may use subsequent evidence of employee wrongdoing as an affirmative defense in a failure-to-hire claim.

Facts.

Red Deer, a female Native American applicant to a deputy sheriff vacancy, sued Cherokee County, Iowa (County) for race, age, and sex discrimination, as well as retaliation, hen she was not hired for the vacancy. After the initiation of the suit, the County discovered that Red Deer misrepresented her reasons for leaving two of her previous jobs. Red Deer filed a motion to exclude the subsequent evidence and the county objected.

Issue.

Whether a defendant may use subsequent evidence of employee wrongdoing as an affirmative defense in a failure-to-hire claim?

Held.

Yes. The County is granted leave to amend its answer to plead the affirmative defense. The after-acquired evidence should be pled as an affirmative defense and the County bears the burden of proof on the subsequent evidence. Red Deer should be given notice of the claim to rebut the newly introduced evidence.

Discussion.

FRCP 8(c), permits a defendant to use subsequent evidence of employee wrongdoing as an affirmative defense in a failure-to-hire claim.McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), determined that after-acquired evidence is permitted if the wrongdoing would have caused the termination of the employee if the employer would have known about the misrepresentation at the time of discharge.