context: Although it appears to be an issue of first impression in this circuit, several courts have addressed, and sharply divided on, whether McKennon's rule applies to post-termination wrongdoing. Two circuit courts have concluded that post-employment misconduct could be the basis for applying McKennon's after-acquired evidence defense.
citation_a.signal: see also
citation_a.identifier: 2008 WL 961472, at *3
citation_a.parenthetical: noting that the post-temiination conduct "directly flows from the conduct that occurred pre-termination"
citation_a.sentence: See Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir.2004) (“an employee’s post-termination conduct can, in some circumstances, limit an employee’s remedies for a wrongful discharge”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir.), cert. denied, 528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 42 (1999) (acknowledging “the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct” but affirming district court’s refusal to give McKennon instruction where alleged misconduct arose “as a direct result of retaliatory termination”); see also McKenna, 636 F.Supp.2d at 461 (McKennon’s holding “that a plaintiffs pre-termination misconduct must be considered in evaluating equitable damages” should be extended to post-termination conduct); Cohen v. Gulfstream Training Acad., Inc., 2008 WL 961472 at *3 (S.D.Fla.2008) (unpublished) (noting that the post-temiination conduct “directly flows from the conduct that occurred pre-termination”).
citation_b.signal: see
citation_b.parenthetical: acknowledging "the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct" but affirming district court's refusal to give McKennon instruction where alleged misconduct arose "as a direct result of retaliatory termination"
citation_b.sentence: See Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir.2004) (“an employee’s post-termination conduct can, in some circumstances, limit an employee’s remedies for a wrongful discharge”); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir.), cert. denied, 528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 42 (1999) (acknowledging “the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct” but affirming district court’s refusal to give McKennon instruction where alleged misconduct arose “as a direct result of retaliatory termination”); see also McKenna, 636 F.Supp.2d at 461 (McKennon’s holding “that a plaintiffs pre-termination misconduct must be considered in evaluating equitable damages” should be extended to post-termination conduct); Cohen v. Gulfstream Training Acad., Inc., 2008 WL 961472 at *3 (S.D.Fla.2008) (unpublished) (noting that the post-temiination conduct “directly flows from the conduct that occurred pre-termination”).