Defendants May Amend Answer to Assert the “After-Acquired Evidence” Defense in Discrimination Case Where Plaintiff Recorded Phone Conversations With Supervisor

In Gorman v. Covidien Sales, LLC, decided December 31, 2014, the Southern District of New York discussed the affirmative defense based on the so-called “after-acquired evidence” doctrine/defense.

In this employment discrimination case, plaintiff sought “damages for alleged discrimination on the basis of military status and medical disability, retaliation, and intentional infliction of emotional distress during his employment at Covidien.”

The court explained:

[The after-acquired evidence] defense asserts that, even if an employee was improperly fired at the time, subsequently revealed evidence of wrongdoing provides nondiscriminatory justification for their termination. Although the defense of after-acquired evidence cannot dispose of Plaintiff’s claims in their entirety, the defense is relevant to the award of damages and remedies, as a successful defense renders front pay and reinstatement improper.

Plaintiff asserted discrimination on the basis of military status and medical disability, retaliation, and intentional infliction of emotional distress. He claims that he began recording telephone conversations with his supervisor and others “after his initial complaints were met with hostility” and that “the recordings were necessary to protect himself in the event of further adverse activity.” Plaintiff produced the recordings to defendants the day before his deposition.

Analyzing the issue under Federal Rules of Civil Procedure 15(a) and 16(b), the court permitted defendants to amend their answer to include the defense.

Initially, defendant did not unduly delay in seeking the amendment or act in bad faith. Next, while “there is a risk that Plaintiff might face prejudice from his inability to obtain discovery on the typical employment consequences of breach of the employee handbook … any such prejudice can be remedied by briefly reopening discovery for this limited purpose.” Finally, the proposed amendment was not “futile” because it was “not obviously insufficient for the purpose of limiting damages and remedies.”