Carr v. Woodbury County Juvenile Detention Center

• Decision Date: 23 November 1995
• Docket Number: No. C 93-4038.,C 93-4038.
• Citation: 905 F. Supp. 619
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Claudette CARR and Charles A. Dearborn, Plaintiffs, v. WOODBURY COUNTY JUVENILE DETENTION CENTER and Woodbury County, A Municipality and Governmental Agency, Defendants.

905 F. Supp. 619

Claudette CARR and Charles A. Dearborn, Plaintiffs, v. WOODBURY COUNTY JUVENILE DETENTION CENTER and Woodbury County, A Municipality and Governmental Agency, Defendants.

No. C 93-4038.

United States District Court, N.D. Iowa, Western Division.

November 23, 1995.

Patricia Wengert of Smith, McElwain & Wengert, Sioux City, Iowa, for Claudette Carr.

Douglas L. Phillips of Klass, Hanks, Stoos, Stoik & Villone, Sioux City, Iowa, for defendant Woodbury County.

MEMORANDUM OPINION REGARDING PLAINTIFF CARR'S MOTION IN LIMINE

BENNETT, District Judge.

                                              TABLE OF CONTENTS
                 I. BACKGROUND AND MOTION ....................................................... 620
                II. LEGAL ANALYSIS .............................................................. 621
                    A. The McKennon Decision .................................................... 622
                    B. Applicability Of McKennon ................................................ 626
                       1. Decisions of other courts on "after after-acquired evidence" .......... 626
                       2. McKennon's applicability here ......................................... 627
                          a. "After after-acquired evidence" is outside the scope of McKennon ... 627
                          b. McKennon's prerequisite has not been met ........................... 629
                    C. Relevance and Balance Of Probative Value And Unfair Prejudice ............ 630
                IV. CONCLUSION .................................................................. 630
                

In a recent ruling, McKennon v. Nashville Banner Pub. Co., ___ U.S. ___, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), the Supreme Court established the boundaries for the relevance and admissibility in an employment discrimination case of "after-acquired evidence." That is, evidence of a plaintiff employee's wrong-doing, which occurred during employment but remained unknown to the defendant employer until after the adverse employment decision had been made. However, this case requires this court to explore the "after-McKennon" new frontier of the admissibility of "after after-acquired evidence," that is, evidence of wrong-doing by a former employee that occurs after his or her employment had terminated. This matter comes before the court pursuant to a motion in limine filed October 25, 1995, by plaintiff seeking to preclude evidence of post-employment use of marijuana discovered by the employer during preparation for trial of this matter. On November 11, 1995, this court entered an order granting this motion in limine, so as to afford counsel for the parties sufficient time to prepare for trial in light of the ruling. This matter then proceeded to trial beginning November 20, 1995. However, the November 11, 1995, order disposing of the motion before trial also stated that, owing to the complexity of the issues raised in this motion in limine, a written memorandum opinion would follow. This memorandum opinion fulfills that promise.

I. BACKGROUND AND MOTION

In the Order On Final Pretrial Conference, filed November 6, 1995, the parties stipulated, inter alia, to the following facts. Plaintiff Claudette Carr was employed by Woodbury County as a Youth Worker in the County's Juvenile Detention Center. She was a part-time employee from November 16, 1990, to April 13, 1992, and, at the time of her termination, she was paid $7.13 per hour.

The complaint in this matter asserts that Carr was constructively discharged as the result of a racially and sexually hostile work environment and as the result of retaliation by the County for engaging in protected free speech. The County contends that Carr voluntarily resigned her position and that there are no facts from which an inference of discrimination based on race or sex can be drawn.

On October 25, 1995, Carr moved in limine to preclude evidence of any "past or recent drug and alcohol use" by Carr. Carr asserts that during discovery, defendants obtained evidence of a single positive urine analysis (UA) for marijuana use after Carr left her employment at the Juvenile Detention Center. Carr asserts that any relevance of a single positive UA for marijuana use after employment had terminated is out-weighed by the potential for unfair prejudice, and that raising the issue is intended to intimidate and harass Carr as well as to prejudice her case with the jury.

Defendant Woodbury County resisted the motion on November 1, 1995. The County contends that Carr has mischaracterized the extent of the evidence of marijuana use. The County points to medical records, besides the single positive UA, that indicate Carr admitted to using marijuana as much as three to four times a month. The County appended to its resistance copies of the documents evidencing Carr's marijuana use. Such evidence, the County contends, indicates that Carr is unfit for employment as a youth worker at a juvenile detention center. The County quotes one of its policies, which states that "Any employee found guilty of indulgence in a controlled substance without seeking treatment will be discharged." Furthermore, the County cites the recent Supreme Court decision in McKennon v. Nashville Banner Pub. Co., ___ U.S. ___, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), as holding that such "after-acquired" evidence of misconduct, sufficient to constitute grounds for dismissal, is admissible on questions of damages. Finally, they argue that even if McKennon is not dispositive, the evidence of drug use is admissible as a factor in any analysis of whether Carr is entitled to future damages, because such evidence demonstrates that Carr could not have maintained a successful career in juvenile detention for her entire adult life.

Carr counters the arguments based on McKennon on the ground that the evidence here is "after after-acquired" evidence of misconduct, because it involves evidence of events that occurred only after she had already been discharged, not evidence of misconduct during her employment only discovered after her employment had ended. Therefore, she argues that McKennon provides no basis for admission of the evidence of marijuana use.

At a final pre-trial conference on November 3, 1995, at which plaintiff Claudette Carr was represented by counsel Patricia Wengert of Smith, McElwain & Wengert in Sioux City, Iowa, and defendant was represented by counsel Douglas L. Phillips of Klass, Hanks, Stoos, Stoik & Villone, also in Sioux City, Iowa, the parties agreed to disposition of this motion on the basis of the written motion and arguments. The court therefore turns to its analysis of Carr's motion in limine.

II. LEGAL ANALYSIS

The issue of the admissibility of Carr's alleged use of marijuana, which the County discovered only in the course of discovery in this litigation, is not a simple one. Analysis of this issue, touching on the admissibility and effect of "after-acquired evidence,"¹ begins with the Supreme Court's decision in McKennon v. Nashville Banner Pub. Co., ___ U.S. ___, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). This court concludes, however, that it does not end there.

A. The McKennon Decision

In McKennon, the Court granted certiorari

to resolve conflicting views among the Courts of Appeals on the question of whether all relief must be denied when an employee has been discharged in violation of the ADEA Age Discrimination in Employment Act and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier.

McKennon, ___ U.S. at ___, 115 S.Ct. at 885.² In McKennon, the Court rejected the line of cases holding that after-acquired evidence of misconduct acts as a complete bar to recovery in an ADEA action, concluding that it affects only the amount of damages an employee may recover. Id. at ___, 115 S.Ct. at 887; Ricky v. Mapco, Inc., 50 F.3d 874, 876 (10th Cir.1995); Manard v. Fort Howard Corp., 47 F.3d 1067, 1067 (10th Cir. 1995) (McKennon "largely rejected" the line of cases holding that after-acquired evidence of employee misconduct barred recovery in discrimination cases). Thus, the Court determined that "after-acquired evidence" of misconduct during 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.

Id., ___ U.S. at ___, 115 S.Ct. at 886. However, the court refrained from stating a black letter rule on when such evidence would bar the plaintiff employee from any remedial relief:

The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We conclude that here, and as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. 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.

Id.;³ Russell v. Microdyne Corp., 65 F.3d 1229, 1238 (4th Cir.1995) ("The `general rule' under McKennon ... is that `neither reinstatement nor front pay is an appropriate remedy,'" citing McKennon, ___ U.S. at ___-___, 115 S.Ct. at 886-87); Wallace v. Dunn Constr. Co., Inc., 62 F.3d 374, 378 (11th Cir.1995) (stating as rule without limitation that reinstatement and front pay are not appropriate remedies under the circumstances discussed in McKennon).

The Court had more difficulty with the question of whether...