In Crump v. New York City Housing Authority, No. 163138/2015, 69 Misc. 3d 1202(A), 130 N.Y.S.3d 925, 2020 N.Y. Slip Op. 51143(U), 2020 WL 5884588 (Sup Ct, Oct. 02, 2020), the court, inter alia, rejected defendants’ “after-acquired-evidence” defense. (The court also denied defendants’ motion for summary judgment on plaintiff’s claims of retaliation and sexual orientation discrimination.)
The court summarized the law as follows:
Where an employer seeks to rely on after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. (McKennon v. Nashville Banner Pub. Co., 513 US 352, 362-363 [1995].) After-acquired evidence does not bar litigation or warrant summary judgment on liability, but only affects the plaintiff’s damages if and when the employer is found liable. (See Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 967 [1st Dept 2009].)
Applying the law, the court explained:
Defendants’ proffered basis for concluding that plaintiff would have been fired based on the after-acquired evidence of misconduct is Marla Edmonson’s affidavit. This affidavit states that Edmonson is “aware of cases where NYCHA employees were prosecuted and terminated after a General Trial” for less serious misconduct than NYCHA claims occurred here, and that she is “confident” that the after-acquired evidence would have caused NYCHA to bring disciplinary charges against plaintiff, hold a general trial, and terminate him. (NYSCEF No. 49 at 10.) Edmonson’s affidavit does not, however, describe the less-serious acts of misconduct that led to termination in other cases. And this court declines to hold that defendants have established their after-acquired-evidence defense as a matter of law based merely on Edmonson’s “confiden[ce]” that the evidence would have led to plaintiff’s termination—especially because plaintiff would first need to have been found guilty of the claimed misconduct at a general trial, at which he could mount a defense.
Based on this, the court denied defendants’ motion for summary judgment on the after-acquired-evidence affirmative defense.