E.E.O.C. v. MORGAN STANLEY CO., INC., (S.D.N.Y. 2002)

RONALD L. ELLIS, United States Magistrate Judge:

On October 23, 2002, defendants Morgan Stanley Co., Inc., and Morgan Stanley Dean Witter Co. (collectively "Morgan Stanley") Filed a motion to amend their answer to plaintiff-intervenor's complaint to add an after-acquired evidence defense under the authority of McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995). In demonstrating the applicability of the after-acquired evidence doctrine, an employer must "establish that the wrongdoing was of such severity that the employee in fact would have been terminated . . . if the employer had known of [the evidence] at the time of the discharge." Id. at 362-63. However, the Court in McKennon did not indicate whether after-acquired evidence must be pled as an affirmative defense, and the courts in this circuit have not directly considered the Issue Although defendants have an affirmative burden to show that the evidence should be admitted. this does not necessarily mean that after-acquired evidence is an affirmative defense requiring an amendment of pleadings. This Court therefore finds no compelling reason for Morgan Stanley to amend its answer at this time, and IT IS HEREBY ORDERED THAT the motion be denied.