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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Andrea R. James, :

Plaintiff, : Case No. 2:11-cv-00847

 

 v. : Judge Graham

 

Kaiser Aluminum Fabricated Products, : Magistrate Judge Abel

LLC, et al., 

 :

Defendants. 

OPINION AND ORDER

Plaintiff Andrea James brings this action under the Family Medical Leave Act of 1993 

(“FMLA”), 29 U.S.C. § 2615, against her former employer Kaiser Aluminum Fabricated 

Products, LLC. James asserts that Kaiser interfered with her rights under the FMLA by refusing 

to properly credit as FMLA leave two days she was absent from work in February 2011. James 

alleges that she was absent for migraines, a condition that Kaiser had previously approved as an 

FMLA-qualifying serious health condition for James. Kaiser disputes that James had migraines 

on those days and argues that she was absent because of a sinus infection. James further asserts 

that Kaiser retaliated against her exercise of FMLA rights by terminating her. Kaiser disputes 

this contention as well. It argues that it had an honest belief that her absences were not for an 

FMLA-covered condition and that those absences – when combined with James’s prior 

unexcused absences – triggered her dismissal under the company’s attendance policy.

Kaiser moved for summary judgment, which the court denied, and the case is set for trial 

on April 29, 2013. Now before the court are two motions in limine filed by plaintiff to exclude 

certain evidence from trial.

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I. Honest Belief Rule

In the first motion in limine, plaintiff seeks to preclude defendant from presenting any 

evidence or argument regarding the honest belief rule. See generally Seeger v. Cincinnati Bell 

Tel. Co., 681 F.3d 274, 285-86 (6th Cir. 2012) (under the rule an employer may counter 

plaintiff’s assertion that the proffered reason for the adverse employment action is pretext by 

showing that it held an honest belief in the proffered reason). Though the motion cites in passing 

Fed. R. Evid. 403 (relevant evidence that may be excluded as prejudicial, confusing, misleading, 

or cumulative), plaintiff’s argument for excluding the honest belief evidence is not based on any 

Rule 403 ground. Rather, plaintiff argues that there is not sufficient evidence in the record to 

support an inference that Kaiser honestly believed that James did not have migraines on the days 

of her absences in February 2011. Plaintiff contends that Kaiser cannot prove that it had a 

legitimate basis for doubting plaintiff’s stated reason for her absences and further contends that 

the record shows that Kaiser’s investigation of plaintiff’s absences was inadequate and amounted 

to a sham.

The court denies plaintiff’s motion in limine for two reasons. First, plaintiff has not 

demonstrated that any of the honest belief evidence is prejudicial, confusing, misleading, or 

cumulative under Rule 403. Plaintiff’s argument amounts to an untimely motion for summary 

judgment. Second, plaintiff’s argument mischaracterizes the record. As was discussed in the 

court’s ruling on Kaiser’s motion for summary judgment, there is sufficient evidence from which 

a reasonable factfinder could conclude that Kaiser had legitimate grounds for scrutinizing 

plaintiff’s absences. Upon her return to work, James provided her supervisor with a doctor’s 

note that vaguely referenced an unspecified “medical condition,” and James communicated to 

her supervisor that she had come down with a cough. This information did not seem to support 

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James’s initial call-in that she would be absent because of migraines. Kaiser offered further 

evidence that it conducted an investigation in which the treating medical care providers were 

consulted and James was given an opportunity to present further evidence. Kaiser ultimately 

determined that, based on medical records stating that James “was seen for [a] sinus infection,” 

her absence was not because of migraines. In sum, there is sufficient evidence on the record to 

create a genuine dispute about whether Kaiser had an honest belief that James’s absences were 

unexcused and thus had a legitimate, nondiscriminatory reason her discharge.

II. Post-Termination Jail Time

In her second motion in limine, plaintiff seeks to exclude the introduction of evidence 

concerning her three misdemeanor convictions for operating a vehicle under the influence of 

alcohol or drugs. Plaintiff cites Rule 609 for the proposition that evidence of a criminal 

conviction generally cannot be used to attack a witness’s character for truthfulness. This 

argument misapprehends the reason for which Kaiser seeks introduction of the evidence. Kaiser 

argues that any award of damages must be limited if James prevails at trial because James 

violated her probation less than four months after her employment was terminated and served 20 

days in jail. This jail time would have resulted in her termination, argues Kaiser, because she 

would have exceeded the allowable number of unexcused absences under Kaiser’s attendance 

policy. Kaiser thus argues that any award of backpay should be limited in time to less than 4 

months.

Kaiser’s argument for limiting backpay concerns what is known as the after-acquired 

evidence defense, which allows an employer to show that the employee would have been 

terminated anyway for reasons that became known to the defendant after the termination 

decision. See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995); Sellers v. 

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Mineta, 358 F.3d 1058 (8th Cir. 2004). In certain circumstances courts have allowed an 

employer to use evidence relating to the employee’s conduct or condition, where such evidence 

is acquired after the termination decision, to limit the employee’s recovery. Namely, the 

employer may attempt to prove that the employee’s conduct or condition was sufficiently serious 

to independently warrant termination, even absent the alleged improper motive. See Edgar v. 

JAC Products, Inc., 443 F.3d 501, 514 (6th Cir. 2006). The court finds here that evidence of the 

fact of James’s post-termination jail time is plainly relevant to the issue of damages. See Jones 

v. Nissan N. Am., 438 Fed. App’x 388, 405-407 (6th Circ. 2011) (discussing the after-acquired 

evidence defense and its availability to bar front pay and reinstatement and to curtail backpay).1

Plaintiff further argues that evidence of only the fact of the jail time should be admitted 

and that evidence of the OVI convictions and the circumstances of her probation violation should 

be excluded as prejudicial. The nature of the probation violation was described in a recent 

discovery order by the magistrate judge as a traffic stop in which James was found to have been 

drinking and violating curfew. Doc. 57 at p. 2.

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 Plaintiff’s motion in limine is directed at excluding evidence of the three OVI convictions. 

Plaintiff has not made a legal challenge to the availability of the after-acquired evidence defense, 

and, as such, that issue is not before the court. See Jones, 438 Fed. App’x at 406 (noting the 

unanswered issue in the Sixth Circuit concerning the availability of the defense where the afteracquired evidence concerns an employee’s misconduct that takes place post-termination); 

Sellers, 358 F.3d at 1063 (discussing the case law and concluding that McKennon applies to 

post-termination conduct); McKenna v. City of Philadelphia, 636 F.Supp.2d 446, 459-61 (E.D. 

Pa. 2009) (following Sellers); Nemeth v. Citizens Fin. Grp., No. 08-cv-15326, 2012 WL 

3262876, at *5 (E.D. Mich. Aug. 9, 2012) (“[A] fair reading of Jones . . . would permit the afteracquired evidence defense to be asserted based on post-termination conduct under appropriate 

circumstances.”). See also Christine Neylon O’Brien, The Law of After-Acquired Evidence in 

Employment Discrimination Cases: Clarification of the Employee’s Burden, Remedial Guidance, 

and the Enigma of Post-Termination Misconduct, 65 UMKC L.Rev. 159, 174 (1996) (concluding 

that serious post-termination misconduct should generally bar reinstatement and limit backpay).

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The court finds that, in the posture of this case as currently presented by the parties, only 

the fact of the jail time (and evidence of Kaiser’s attendance policy and its enforcement) is 

necessarily relevant for Kaiser to prove that James would have been terminated for unexcused 

absences. Any relevance that the convictions and probation violation might have is outweighed 

by their potential prejudicial effect. The court thus grants plaintiff’s motion in limine to exclude 

evidence of the OVI convictions and probation violation. The court will reserve the ability to 

reconsider the admissibility of this evidence should the facts and arguments developed at trial 

provide a basis for reconsideration.

III. Conclusion

Accordingly, plaintiff’s motion in limine as to the honest belief rule (doc. 52) is 

DENIED, and plaintiff’s motion in limine as to the OVI convictions and probation violation 

(doc. 54) is GRANTED 

s/ James L. Graham 

JAMES L. GRAHAM

United States District Judge

DATE: April 25, 2013

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