Carlson v. Special Programing For Achievement Network of the Alabama Department of Youth Services

Filing 105

MEMORANDUM OPINION AND ORDER re 89 MOTION for Leave to File Amended Answer filed by Central Alabama Community College. CACCs Motion for Leave is GRANTED. CACC is HEREBY ORDERED to separately file in its proposed amended answer (Doc. 89-1) no later than May 31, 2012. Signed by Judge Virginia Emerson Hopkins on 5/21/12. (SAC )

FILED
2012 May-21 PM 01:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JOHN A. CARLSON,
Plaintiff,
v.
CENTRAL ALABAMA
COMMUNITY COLLEGE,
Defendant.

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) Case No.: 1:10-CV-3-VEH
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MEMORANDUM OPINION AND ORDER
I.

Brief Introduction
Plaintiff John A. Carlson, Sr. (“Mr. Carlson”) initiated this job discrimination

case arising under the Rehabilitation Act and the Americans with Disabilities Act
(“ADA”) on January 4, 2010. (Doc. 1). By virtue of several prior orders of dismissal
(Docs. 73, 81), the only defendant that remains in the lawsuit is Central Alabama
Community College (“CACC”), and the sole claim that remains is one of a failure to
promote asserted pursuant to the Rehabilitation Act.
Pending before the court is CACC’s Motion for Leave To Amend Answer
(Doc. 89) (the “Motion for Leave”) filed on January 6, 2012, which seeks to add an
after-acquired evidence defense. The Motion for Leave has been fully briefed (Doc.

89, 90), and on May 16, 2012, the court held a hearing to address any questions that
it had regarding the motion. (Doc. 97 at 2). For the reasons explained below, the
Motion for Leave is GRANTED.
II.

Standard on Amending Pleadings
When a party seeks to amend a pleading after the deadline to do so contained

in the scheduling order has passed, the party must satisfy the more stringent late
amendment standard pursuant to Rule 16. As explained by Judge Steele in Young v.
City of Gulf Shores, No. 07-0810-WS-M, 2009 WL 197185 (S.D. Ala. Jan. 27,
2009):
When, as in this case, the time for amendment as of right has
passed, “a party may amend the party's pleading only by leave of court
or by written consent of the adverse party; and leave shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). However, the
plaintiff’s motion was also filed past the deadline established in the
scheduling order for such motions, and such “[a] schedule shall not be
modified except upon a showing of good cause.” Fed. R. Civ. P. 16(b);
accord Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir.
1998). Accordingly, the plaintiff must first show good cause for her
failure to comply with the scheduling order. Id. at 1419 (“[B]ecause
Sosa’s motion to amend was filed after the scheduling order’s deadline,
she must first demonstrate good cause under Rule 16(b) before we will
consider whether amendment is proper under Rule 15(a).”).
“This good cause standard precludes modification unless the
schedule could not ‘be met despite the diligence of the party seeking the
extension.’” Sosa, 133 F.3d at 1418 (quoting Fed. R. Civ. P. 16
advisory committee notes). The plaintiff does not address this standard,
or even acknowledge the existence of Rule 16(b). Merely stating that
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additional claims exist is insufficient. Smith v. School Board of Orange
County, 487 F.3d 1361, 1367 (11th Cir.2007) (simply asserting that new
violations of law have been discovered, without indicating what they
are, what facts support them, and why they were undiscoverable earlier,
does not support a showing of good cause under Rule 16(b)). Moreover,
the plaintiff’s only explanation for her failure to raise Fourth
Amendment claims earlier is that she “neglected” to do so. (Doc. 61, ¶
1). Neglect is fundamentally inconsistent with good cause. See
Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277,
1281 (11th Cir. 2007) (“Good cause [under Rule 4(m) ] exists only when
some outside factor . . . rather than inadvertence or negligence prevented
service.”).
Young, 2009 WL 197185, at *1.
III.

Analysis
CACC’s Motion for Leave seeks to add the after-acquired evidence defense

to its answer “out of an abundance of caution and without waiver of the contention
that it is not [an] affirmative defense.” (Doc. 89 ¶ 3). As the Eleventh Circuit has
described the after-acquired evidence equitable rule:
In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,
115 S. Ct. 879, 130 L. Ed. 2d 852 (1995), a case involving an alleged
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), the Supreme Court held that after-acquired evidence of
wrongful conduct during employment that would have resulted in
termination does not “operate[ ], in every instance, to bar all relief for an
earlier violation of the Act.” Id. at ----, 115 S. Ct. at 884. The Court
held, however, that “the after-acquired evidence of the employee’s
wrongdoing bears on the specific remedy to be ordered.” Id. at ----, 115
S. Ct. at 885. The Court determined that in cases in which an employee
commits an act during employment that would lead to termination and
the employer finds out about the act during the course of litigation,
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“neither reinstatement nor front pay is an appropriate remedy.” Id. at
----, 115 S. Ct. at 886. The Court then discussed backpay, holding that
it should be calculated “from the date of the unlawful discharge to the
date the new information was discovered,” with the court “taking into
further account extraordinary equitable circumstances that affect the
legitimate interests of either party.” Id. . . . .
Based upon the similarities among the statutes, we conclude that
the holding of McKennon is applicable to claims brought under Title VII
and the Equal Pay Act. See O'Driscoll v. Hercules Inc., 52 F.3d 294
(10th Cir. 1995) (remanding ADEA, Title VII and Fair Labor Standards
Act claims to district court for reconsideration in light of McKennon );
Wehr v. Ryan's Family Steak Houses, Inc., 49 F.3d 1150, 1153 (6th Cir.
1995) (“While McKennon involved an ADEA claim, we are persuaded
by its language that it applies equally to a Title VII claim.”); Manard v.
Fort Howard Corp., 47 F.3d 1067, 1067 (10th Cir.1995) (applying
McKennon, without discussion, to Title VII case).
Wallace v. Dunn Const. Co., Inc., 62 F.3d 374, 378 (11th Cir. 1995) (emphasis
added).
Thus, the after-acquired evidence defense is a remedial doctrine, which
expressly applies to claims arising under the ADEA, Title VII, and the Equal Pay Act
within the Eleventh Circuit. While neither party has pointed to binding case authority
which addresses whether the McKennon rule applies to Rehabilitation Act cases, this
court sees no reason why such an equitable doctrine should not be extended to claims
of disability discrimination akin to Wallace’ s extension of the defense’s coverage to

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Title VII and Equal Pay Act claims.1
In Wallace, the Eleventh Circuit made it clear that the burden of proof rests
with the defendant when the after-acquired evidence defense is asserted:
In order to benefit from the after-acquired evidence rule
announced in McKennon, Dunn must prove that “the misconduct
revealed by the deposition was so grave that [Neal’s] [or in this case,
Mr. Carlson’s] immediate discharge would have followed its disclosure
in any event.”
62 F.3d at 379.
The court’s own research has revealed that, in light of the defendant’s burden
of proof, the doctrine “is an affirmative defense that an employer must plead in its
answer or otherwise ensure that it is a subject of the pretrial order.” Holland v. Gee,
___ F.3d ___, Nos. 11–11659, 11–11884, 2012 WL 1292342, at *13 (11th Cir. Apr.
17, 2012) (emphasis added) (citing Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182,
1185 (11th Cir. 1999)).
Therefore, while the defense is an affirmative one, even if the court were to
deny leave to amend the answer, CACC would still have the opportunity to raise it
as part of the pretrial order process. Cf. Proctor v. Fluor Enterprises, Inc., 494 F.3d
1337, 1352 (11th Cir. 2007) (“In addition, Fluor specifically raised the borrowed

For the purposes of CACC’s Motion for Leave, the court assumes, without
deciding, that such an equitable doctrine applies equally to failure to promote claims.
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servant doctrine in its summary judgment motion filed in October 2003, which was
long before any trial date had been set or even a pre-trial order entered in October
2005 and indeed more than two years before the February 2006 trial.”).
Moreover, CACC has demonstrated good cause for asserting the defense after
the expiration of its amendment deadline of July 2, 2010. (Doc. 17 at 2). In
particular, CACC did not learn about the after-acquired information relating to Mr.
Carlson until Ms. Thomas was deposed on December 16, 2011. (Doc. 84 ¶¶ 3, 4).
Further, CACC filed its Motion for Leave within 30 days of when it discovered this
evidence. Therefore, for all these reasons, the court will grant CACC’s Motion for
Leave.
At the same time the court acknowledges Mr. Carlson’s assertion that
“[a]mending the pleadings at this late juncture would necessitate additional
discovery.” (Doc. 90 at 5). During the hearing, counsel for Mr. Carlson reiterated
his concern that he would not be prepared to respond to CACC’s after-acquired
evidence at trial unless he was able to conduct some discovery. The court also
acknowledges that CACC sought to conduct discovery relating to this defense for the
purposes of summary judgment. (Doc. 91 at 5-7).
Therefore, the court will entertain a motion by Mr. Carlson and/or CACC to
reopen discovery for the limited purpose of addressing CACC’s after-acquired
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evidence defense, if such a motion is filed no later than May 31, 2012, and if it
specifically identifies what areas of discovery are needed and how long the additional
discovery period should last.
IV.

Conclusion
Therefore, as stated above, CACC’s Motion for Leave is GRANTED. Due to

CM/ECF requirements, CACC is HEREBY ORDERED to separately file in its
proposed amended answer (Doc. 89-1) no later than May 31, 2012.
Further, to the extent that either or both parties want the court to reopen
discovery for the limited purpose of trial preparation regarding CACC’s afteracquired evidence defense, then such motion must be filed with the court no later than
May 31, 2012, as set forth above.
DONE and ORDERED this the 21st day of May, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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