## Facts

- Sharon Red Deer, a Native American woman over forty, applied in late 1996 for a deputy sheriff position with Cherokee County, Iowa.
- The County did not hire Red Deer for the position, with the challenged non-hire occurring on January 28, 1997.
- Red Deer pursued administrative remedies and then sued the County in federal court, asserting age, race, and sex discrimination, along with retaliation, under federal law and related state-law claims.
- Red Deer’s complaint alleged not only the January 1997 failure to hire, but also continuing discrimination and retaliation afterward.
- Before trial, the County filed a motion in limine seeking to exclude evidence of a later “non-assistance” incident occurring more than a year after the non-hire, in which the Cherokee County Communications Center allegedly failed to dispatch an officer to assist Red Deer during a dispute at a store where she worked as a security guard.
- The County argued the non-assistance incident was unrelated to the original hiring decision and that any marginal relevance was outweighed by the risk of unfair prejudice.
- Red Deer filed a cross-motion in limine to exclude prior employment records (identified in the litigation as Exhibits C–F) obtained by the County after the non-hire.
- The County offered those records as after-acquired evidence, contending they showed Red Deer had misrepresented her reasons for leaving two prior jobs on her application and that such dishonesty would have led the County to refuse to hire a deputy sheriff (or to terminate a deputy if discovered later).
- The pretrial filings and a late-December 1998 pretrial conference (with trial then scheduled for early January 1999) raised an additional pleading question: whether the County had to plead after-acquired evidence as an affirmative defense and, if so, whether it could amend its answer shortly before trial to add that defense.

## Issues

1. Whether evidence of the post-nonhire “non-assistance” incident was admissible to support Red Deer’s theory of continuing discrimination and retaliation.
2. Whether the County could introduce prior employment records discovered after the challenged decision as after-acquired evidence, and for what purpose.
3. Whether after-acquired evidence is an affirmative defense that must be pleaded under Federal Rule of Civil Procedure 8(c), and whether the County could amend its answer under Rule 15(a) to assert it.

## Decision

- The court denied the County’s motion in limine and allowed Red Deer to offer evidence of the non-assistance incident as potentially probative of continuing discrimination and retaliation.
- The court denied Red Deer’s motion in limine and allowed the County to offer the prior employment records as after-acquired evidence.
- The court held that after-acquired evidence functions as an affirmative defense that must be pleaded and proved because it can limit the remedies available even if liability is shown.
- The court granted the County leave to amend its answer under Rule 15(a) to add the after-acquired evidence defense, favoring resolution on the merits and addressing any fairness concerns through case-management measures (including additional time, if needed, for discovery and preparation).

## Legal Principles

- Evidence of conduct occurring after a challenged employment decision may be admissible when the plaintiff alleges continuing discrimination or retaliation and the later conduct may bear on retaliatory motive or the effects on future employment opportunities.
- Under the after-acquired evidence doctrine (as applied in light of McKennon v. Nashville Banner Publishing Co.), information discovered after the challenged action generally does not retroactively justify the action for purposes of liability, but it may limit the scope of remedies if the employer proves it would have made the same decision on lawful grounds had it known the information at the time.
- In a failure-to-hire case, after-acquired evidence is relevant to remedies when it tends to show misconduct or misrepresentation so serious that the employer would not have hired the applicant if it had known the truth during the hiring process.
- After-acquired evidence is treated as an affirmative defense under Rule 8(c) because it can reduce or cut off certain forms of relief.
- Rule 15(a) permits amendment of pleadings when justice so requires; late assertion of an affirmative defense may be allowed when unfair surprise or prejudice can be avoided through continuances or targeted discovery.

## Conclusion

In this pretrial ruling, the court refused to bar evidence of a later non-assistance incident offered to support Red Deer’s continuing retaliation theory and also permitted the County to present after-acquired evidence that Red Deer allegedly misrepresented prior job separations on her application. Treating after-acquired evidence as an affirmative defense, the court allowed the County to amend its answer under Rule 15(a), leaving the parties to litigate at trial whether the evidence was credible and whether it would limit available remedies.


Red Deer v. Cherokee County, Iowa, 183 F.R.D. 642 (1999)