Kilgore v. Hilton Garden Inn

Filing 103

MEMORANDUM OPINION AND ORDER re 92 Plaintiff's Motion in Limine- For the reasons noted within, Kilgore's Motion in Limine is DENIED. However, Kilgore may renew her objection at trial should HGI seek to introduce evidence of misconduct it discovered after Kilgore's termination for the purpose of limiting her remedial relief. Signed by Judge Sharon Lovelace Blackburn on 7/31/17. (SAC )

FILED
2017 Jul-31 PM 01:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALERIE KAY KILGORE,
Plaintiff,
v.
TRUSSVILLE DEVELOPMENT,
L.L.C., doing business as Hilton
Garden Inn,
Defendant.

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CASE NO. 2:13-CV-0304-SLB

MEMORANDUM OPINION AND ORDER
This case is presently pending before the court on Plaintiff’s Motion in Limine to
Exclude Alleged Bad Acts and/or After-Acquired Evidence, (doc. 92),1 filed by plaintiff
Valerie K. Kilgore. She asks the court to exclude all “evidence of acts for which Kilgore
was not disciplined [or] after-acquired evidence.” (Id. at 1.) For the reasons set forth herein,
the court DENIES Kilgore’s Motion in Limine.
MOTION IN LIMINE STANDARD
In general, the term “in limine” “refer[s] to any motion, whether made before or
during trial, to exclude anticipated prejudicial evidence before the evidence is actually
offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A ruling on evidence in limine
“aid[s] the trial process by enabling the Court to rule in advance of trial on the relevance of

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

certain forecasted evidence, as to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial. [It] also may save the parties time, effort and cost
in preparing and presenting their cases.” Bowden ex rel. Bowden v. Wal-Mart Stores, Inc.,
No. CIV. A. 99-D-880-E, 2001 WL 617521, *1 (M.D. Ala. Feb. 20, 2001)(internal citations
and quotations omitted). Nevertheless, “it is the better practice to wait until trial to rule on
objections when admissibility substantially depends upon what facts may be developed there.
Thus, the motion in limine is an effective approach only if the evidence at issue is clearly
inadmissible.” Id. (citations omitted).
DISCUSSION
Kilgore contends that defendant, Trussville Development Co., doing business as
Hilton Garden Inn [hereinafter “HGI”], “desires to use random acts of alleged bad conduct
to establish that Kilgore had other performance issues than that for which she was
terminated. For example, some of the documents submitted to the EEOC by Defendant were
created after Kilgore was terminated; thus, Defendant may intend to introduce
‘after-acquired’ evidence.” (Doc. 92 at 1-2.) She contends HGI has waived the affirmative
defense of after-acquired evidence by failing to raise it. (Id. at 3.) However, evidence of
misconduct about which HGI knew at or before it terminated Kilgore is not “after-acquired
evidence,” even if the misconduct was not documented until after HGI terminated Kilgore.
The doctrine of after-acquired evidence applies to limit “boundaries of remedial relief
in the general class of cases where, after termination, it is discovered that the employee has

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engaged in wrongdoing” that was “of such severity that the employee in fact would have
been terminated on those grounds alone if the employer had known of it at the time of the
discharge.” Holland v. Gee, 677 F.3d 1047, 1064-65 (11th Cir. 2012)(quoting McKennon
v. Nashville Banner Publishing, 513 U.S. 352, 361, 362-63 (1995))(internal quotations
omitted; emphasis added). “Under the doctrine of after-acquired evidence, the burden is on
the employer to prove that the wrongdoing was of such severity that the employee in fact
would have been terminated on those grounds alone. Thus, it is an affirmative defense that
an employer must plead in its answer or otherwise ensure that it is a subject of the pretrial
order.” Id. at 1065 (internal quotations and citations omitted).
However, conduct about which an employer knew at or before the time it decided to
terminate the employee is not “after-acquired evidence.” After-acquired evidence –
misconduct that is discovered after the adverse decision is made – is not evidence of an
employer’s intent. As stated in McKennon, “The employer could not have been motivated
by knowledge it did not have and it cannot now claim that the employee was fired for the
nondiscriminatory reason.” McKennon, 513 U.S. at 360. On the other hand, misconduct that
the employer knew at or before the termination, even if undocumented, may be relevant to
the decisionmaker’s motivation.

Such evidence of misconduct is not inadmissible based

on the failure to plead the affirmative defense of after-acquired evidence doctrine.

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Therefore, Kilgore’s Motion in Limine, (doc. 92), is DENIED. However, Kilgore
may renew her objection at trial should HGI seek to introduce evidence of misconduct it
discovered after Kilgore’s termination for the purpose of limiting her remedial relief.
DONE this 31st day of July, 2017.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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