SEBUNYA v. HOLDER
Filing
68
ORDER ON APPEAL OF THE MAGISTRATE JUDGE DECISION granting in part 62 Appeal from Magistrate Judge Decision to District Court By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MOSES ALI SEBUNYA,
Plaintiff,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL, U.S. DEPARTMENT OF
JUSTICE,
Defendant.
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) Docket no. 2:12-cv-00067-GZS
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ORDER ON APPEAL OF THE MAGISTRATE JUDGE DECISION
Before the Court are: Defendant’s Appeal of the Magistrate Judge Decision (ECF No.
62) and Motion For Leave To File Second Amended Answer (ECF No. 38). The Court has
reviewed the entire record and held oral argument on July 16, 2013. For reasons explained
herein, the Court now GRANTS IN PART Defendant’s Appeal and concludes the Motion for
Leave to File a Second Amended Answer is MOOT.
I.
LEGAL STANDARD & PROCEDURAL HISTORY
Because a motion seeking to amend a pleading is generally considered to be a non-
dispositive matter, an appeal of such a decision of the magistrate judge is subject to review in
accordance with 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a).1 See, e.g.,
Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993). Pursuant to this standard, the Court must
1
The Court notes that because the Magistrate Judge’s order did in fact dispose of an affirmative defense, the
language of Rule 72 might be read to require de novo review. See Wright & Miller 12 Fed. Prac. & Proc. Civ. 2d §
3068.2 & n. 37 (collecting cases in which courts have “considered the impact on the merits of the case in deciding
whether [the motion] should be characterized as dispositive”). Ultimately, in this case, it suffices to note that the
Court would reach a similar conclusion under de novo review of the issues presented.
determine whether the decision is “clearly erroneous” or “contrary to law.”
28 U.S.C. §
636(b)(1)(A) & Fed. R. Civ. P. 72(a).
In this case, on May 15, 2013, the Magistrate Judge entered his Decision and Order on
Motion to Amend Answer (ECF No. 58) (“the Decision”), which denied Defendant’s Motion for
Leave to File Second Amended Answer (ECF No. 38). Within that Decision, the Magistrate
Judge accurately recounted the Factual Background, which the Court adopts without repeating in
its entirety. (See 5/15/13 Decision (ECF No. 58) at 2-8.)
Defendant’s Proposed Second Amended Answer sought to add the following paragraph
to the “Affirmative Defenses” section of its Answer: “Even assuming any discrimination or
retaliation, which Defendant denies, Defendant would have rescinded any employment offer
prior to Plaintiff’s employment, or at the latest prior to the completion of Plaintiff’s background
investigation, based on evidence of wrongdoing acquired after the offer of employment.”
(Proposed Second Am. Answer (ECF No. 38-3), Aff. Defense ¶ 4.) Notably, Defendant’s First
Amended Answer (ECF No. 16), the operative pleading which Defendant sought to amend,
includes the following similar, albeit more general and less wordy, paragraph: “Even assuming
any discrimination or retaliation, which Defendant denies, Defendant would have made the same
employment decisions at issue absent discrimination or retaliation.” (First Am. Answer, Aff.
Defense ¶ 3.) Defendant had filed this First Amended Answer on October 5, 2012, after the
Court granted a consent motion for leave to amend on October 3, 2012.2
2
The Court notes that the quoted affirmative defense language also appeared in Defendant’s initial Answer (ECF
No. 5). (See Answer, Aff. Defense ¶ 5.)
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II.
DISCUSSION
In a footnote within the Decision, the Magistrate Judge indicated that the difference
between the just-quoted language of the First Amended Answer and the Proposed Second
Amended Answer was significant and that he did “not find the operative answer sufficient” to
state an after-acquired evidence defense. (Decision (ECF No. 58) at 9 n. 6.) In reaching this
conclusion, the Magistrate Judge acknowledged that Defendant had alternatively argued that the
First Amended Answer could be deemed to state an after-acquired evidence defense in
accordance with the relatively recent decision of Kapche v. Holder, 677 F.3d 454 (D.C. Cir.
2012). As a result, the Magistrate Judge’s Decision “assum[ed] arguendo that it is appropriate to
apply the Kapche rule in this district.” (Decision (ECF No. 58) at 9 n. 6.)
In Kapche, the defendant was deemed to have adequately pled an after-acquired evidence
defense when the answer simply stated the plaintiff “was not appointed . . . for legitimate nondiscriminatory reasons, and would not have been appointed . . . even in the absence of his
[disability].” Kapche, 677 F.3d at 465. Even in the absence of explicitly including the phrase
“after-acquired evidence,” the Kapche court found the pleading could sufficiently state an afteracquired evidence defense where the record supports a finding that the plaintiff “had notice of
the defense, conducted discovery on the issue, and had ample opportunity to respond.” Id.
(internal citations and quotations omitted). Given this holding, the Kapche court noted that it
was assuming, without deciding, that “the after-acquired evidence defense is an affirmative
defense subject to Rule 8(c).” Id.
In the Court’s view, while Kapche may be factually analogous in that it presented a
similar issue with respect to pleading an after-acquired evidence defense, it does not necessarily
reflect the law and precedent applicable here in the First Circuit. Like the D.C. Circuit, the First
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Circuit has not had occasion to decide whether after-acquired evidence is an affirmative defense
subject to Rule 8(c). In 1995, the Supreme Court announced the holding that serves for the basis
the “after-acquired evidence defense” in McKennon v. Nashville Banner Publ'g Co., 513 U.S.
352 (1995) (holding that evidence of employee wrongdoing that becomes known to an employer
after an allegedly discriminatory/retaliatory termination may be considered on the issue of
damages and remedy even though the evidence is not relevant to the issue of liability). The First
Circuit has addressed McKennon’s holding in only a handful of opinions. Most recently, the
First Circuit simply noted:
[T]he Supreme Court has held that both front and back pay are indeed cut off at the
time that the defendant discovers evidence that would have led it to fire the plaintiff
on legitimate grounds. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352,
361-62 (1995). That result follows from the simple guiding principle that the
employee should be restored to the position he or she would have been in absent the
discrimination: the employee would have been fired regardless of the discrimination
as a result of the misconduct at the defendant's place of employment. See id. at 362.
Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 383 n. 14 (1st Cir. 2004). Earlier, in
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. 1997), the First Circuit had occasion to
review trial testimony that amounted to after- acquired evidence. See id. at 100-02. Discussing
the limited relevance of this category of evidence, the First Circuit labeled the holding of
McKennon as the “‘after-acquired evidence doctrine’” and explained “such after-acquired
evidence is normally admissible only as to remedy, and not on liability.” Nieves-Villanueva,
133 F.3d at 101. Given the entirety of the First Circuit’s dicta on McKennon and after-acquired
evidence, the Court cannot say that the First Circuit would hold or assume that a defendant
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employer must explicitly plead “after-acquired evidence” as an affirmative defense in order to
pursue the remedy limitations announced in McKennon.3
Even assuming that after-acquired evidence must be pled as an affirmative defense under
Federal Rule of Civil Procedure 8(c), the Court need not deem the after-acquired evidence
defense waived under the First Amended Answer. On the issue of failing to plead affirmative
defenses in accordance with Federal Rule of Civil Procedure 8(c), the First Circuit has
acknowledged that the rule that affirmative defenses are waived if not pled “is not absolute” and
that “implied consent” is one recognized ground for “relaxation” of the waiver rule. See, e.g.,
Society of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 58 (1st Cir. 2012).
Additionally, the First Circuit has explained that “[w]here . . . a plaintiff clearly anticipates that
an issue will be litigated, and is not unfairly prejudiced when the defendant actually raises it, a
mere failure to plead the defense more particularly will not constitute a waiver.” Williams v.
Ashland Eng'g Co, 45 F.3d 588, 593 (1st Cir. 1995), abrogated on other grounds by Carpenters
Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136 (1st Cir. 2000). Ultimately, when
considering whether an affirmative defense has been sufficiently pled, the Court must “‘examine
the totality of the circumstances and make a practical, commonsense assessment’ on whether
there has been surprise and unfair prejudice.” Bradbury v. GMAC Mortg., LLC, 780 F. Supp. 2d
114, 116 (D. Me. 2011) (quoting Williams, 45 F.3d at 593.)
Like Williams, in this case, the issue of after-acquired evidence was raised before the
close of discovery and before summary judgment proceedings. Williams, 45 F.3d at 592. In
3
Nonetheless, the Court does recognize that within the District of Maine, the “after-acquired evidence defense” has
been treated as an affirmative defense in multiple recent cases. See generally Stark v. Hartt Transp. Systems, Inc.,
Docket No. 2:12-cv-195-NT, 2013 WL 358266 (D. Me. Jan. 28, 2013); Madigan v. Webber Hospital Assoc., Docket
No. 2:11-cv-94-JAW, 2012 WL 664754 (D. Me. Feb. 15, 2012) (Magistrate Judge’s Memorandum Decision) &
May 15, 2012 Slip. Op. (ECF No. 67) (Judge Woodcock’s Denial of Objection); Palmquist v. Shinseki, 729
F. Supp. 2d 425 (D. Me. 2010).
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fact, Plaintiff’s counsel was explicitly notified that Defendant intended to pursue after-acquired
evidence as a defense on December 17, 2012 and, at that time, did not object or indicate Plaintiff
would be in any way unfairly prejudiced by Defendant’s pursuit of this affirmative defense.
Moreover, given the prior proceedings before the EEOC related to this case as well as the prior
litigation surrounding the results of Plaintiff’s 2003 INS background check, Plaintiff readily
could anticipate that after-acquired evidence would be a litigated issue in this case and certainly
had access to the underlying factual information. In short, there is no surprise here. To the
extent that the key factual aspects of the defense relate to Plaintiff’s 2001 conviction and
Plaintiff’s unsuccessful 2003 background check in connection with his 2002 INS job offer,
Plaintiff has been in possession of the factual basis for the defense as long, if not longer, than
Defendant. Moreover, in this case, Plaintiff explicitly consented to Defendant pursuing an afteracquired evidence defense from December 18, 2012 through February 14, 2013. (See 12/18/12
Email from Atty. Webbert (ECF No. 38-1 at Page ID# 182) & 2/14/13 Email from Atty. Webbert
(ECF No. 38-2) at Page ID# 184).)
Given this procedural backdrop and the language in the operative pleading, the Court
finds that Defendant’s First Amended Answer sufficiently preserved Defendant’s ability to press
an after-acquired evidence defense. In the Court’s view, prohibiting Defendant from pursuing an
after-acquired evidence defense on the record presented would elevate procedural deadlines,
discovery gamesmanship and both counsel’s unfortunate failure to effectively communicate over
the Court’s duty to ensure claims and defenses are heard, to the extent practicable, on the merits.
In the context of this Title VII case, assuming Plaintiff can establish liability, McKennon
instructs that the remedy should “restore the employee to the position he . . . would have been in
absent the discrimination.” McKennon, 513 U.S. at 362; see also Johnson, 364 F.3d at 383 n. 14.
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In the Court’s final assessment, any equitable restoration in this case must allow for the
consideration of Defendant’s arguments that Plaintiff ultimately would not have passed the
requisite background check as well as Plaintiff’s arguments that he would have passed the
background check, provisional or otherwise.
To that end, the Court believes any unfair prejudice to Plaintiff as a result of his inability
to ask questions regarding the after-acquired evidence at the Rule 30(b)(6) deposition held on
February 8, 2013 is most readily and justly resolved by allowing a reopening of the Rule
30(b)(6) deposition, which Plaintiff is free to request.
To the extent that Plaintiff has
additionally argued that he was prejudiced by Defendant’s delayed supplemental disclosures on
this topic, any issues related to Defendant’s compliance with Federal Rule of Civil Procedure
26(e) are properly resolved by way of a motion under Federal Rule of Civil Procedure 37(c), a
motion that is not presently before the Court.
III.
CONCLUSION
Therefore, the Court concludes Defendant is entitled to pursue an after-acquired evidence
defense on the record presented without necessarily filing any further amended answer. Given
this conclusion, the Motion to Amend is MOOT. To the extent that the Magistrate Judge
concluded that an amendment would be necessary, the Court finds the Decision of the Magistrate
Judge was contrary to law. 4 Thus, Defendant’s Appeal is hereby GRANTED IN PART.
4
In light of this conclusion, the Court need not reach whether the entirety of the Magistrate Judges decision is
clearly erroneous or contrary to law. However, the Court notes that it is troubled by the decision of Plaintiff’s
counsel to withdraw his consent to an amendment on February 14, 2013. Had the Court needed to reach the issue, it
would be inclined to consider whether Plaintiff’s counsel should have been equitably estopped from opposing the
motion to amend. (See Def. Objection (ECF No. 62) at 9-10.)
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No later than August 9, 2013, Plaintiff is free to file a motion seeking to reopen the
30(b)(6) deposition or any other aspect of discovery he believes is necessary on the affirmative
defense of after-acquired evidence. To the extent Plaintiff files any such Motion, Defendant
shall file any response to Plaintiff’s Motion within seven days. The Motion and any response
thereto shall additionally state each party’s position with respect to whether the Court should
reschedule the Rule 56(h) conference or stay further proceedings pursuant to Local Rule 56(h)
pending the outcome of the request to reopen discovery.
If no such motion to reopen discovery is filed, each side shall notify the Court of whether
they are requesting a rescheduled Rule 56(h) conference by August 16, 2013. Should either side
request a rescheduled Rule 56(h) conference, the parties shall file any amendments to their Rule
56(h) pre-conference memoranda within seven days of being so notified.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 30th day of July, 2013.
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