Romero v. Kansas Heavy Construction, L.L.C.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARTURO ROMERO,
Plaintiff,
v.
KANSAS HEAVY CONSTRUCTION, L.L.C.,
Defendant.
Case No. 5:24-CV-02134-JAR
MEMORANDUM AND ORDER
Plaintiff Arturo Romero brings this action against his former employer, Defendant
Kansas Heavy Construction, L.L.C., alleging age discrimination in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”), discrimination based on national origin
in violation of Title VII of the Civil Rights Act of 1964, and retaliation in violation of Title VII.
The Court previously granted summary judgment in favor of Defendant on Plaintiff’s Title VII
national origin discrimination and retaliation claims.1 Accordingly, the only claim that remains
for trial, which is scheduled to begin on January 26, 2026, is Plaintiff’s ADEA claim. This
matter is now before the Court on Plaintiff’s Motion in Limine (Doc. 53) and Defendant’s
Motion in Limine (Doc. 54). The motions are fully briefed, and the Court is prepared to rule.
For the reasons explained below, the Court grants in part and denies in part Plaintiff’s motion
and grants Defendant’s motion.
I. Plaintiff’s Motion in Limine
The Court begins with Plaintiff’s motion in limine. Plaintiff moves to exclude: (1)
evidence regarding Plaintiff’s employment after his termination; (2) evidence regarding
1 Doc. 45.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 1 of 9

2
Plaintiff’s prior arrests; and (3) testimony or evidence from Kathy Mitchell, a former girlfriend
of Plaintiff and employee of Defendant. The Court addresses each request in turn.
A. Plaintiff’s Employment After His Termination
Plaintiff first asks the Court to exclude as irrelevant under Fed. R. Evid. 401 testimony
and evidence regarding Plaintiff’s employment after he was terminated by Defendant, including
testimony and evidence regarding his job performance in those subsequent jobs, the reasons why
he is no longer employed by those employers, and his interactions with those subsequent
employers. In support, Plaintiff relies on James v. Reser’s Fine Foods, Inc.,2 which arose in the
context of a motion for a protective order and motion to quash subpoenas to a plaintiff’s
subsequent employers. There, the court granted the requested protective order as to subpoena
requests seeking, among other things, subsequent employers’ performance reviews and
disciplinary records, concluding the defendant failed to demonstrate the relevance of such
materials to the claims or defenses in the case.3 However, the James court found that “records
related to any termination” from subsequent employment were relevant to the defendant’s
defense that the plaintiff had failed to mitigate his damages and denied the protective order as to
those materials.4
Here, Defendant responds that it seeks to introduce evidence regarding Plaintiff’s post-
termination employment only for the purpose of establishing its defense that Plaintiff failed to
mitigate his damages, not to suggest that Plaintiff’s subsequent job performance bears on the
reasons for Defendant’s termination decision. The Court agrees that post-termination
employment evidence is relevant only to the extent it bears on mitigation of damages. When
2 No. 24-cv-4091-KHV-TJJ, 2025 WL 2402239 (D. Kan. Aug. 19, 2025).
3 Id. at *3–4.
4 Id. at *5.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 2 of 9

3
defending a plaintiff’s claim for damages, the “defendant-employer bears the burden of showing
that the plaintiff failed to mitigate” his damages.5 In doing so, courts in this district have found
that a plaintiff’s “failure to search for alternative work, his refusal to accept substantially
equivalent employment, or his voluntary quitting of alternative employment without good cause
constitute affirmative defenses to backpay liability.”6 Accordingly, the Court limits any
evidence of Plaintiff’s post-termination employment to these mitigation issues and excludes any
testimony and evidence regarding his job performance in subsequent employment, the reasons
why Plaintiff is no longer employed by those employers, and his interactions with those
subsequent employers. The Court permits only evidence bearing on whether Plaintiff searched
for alternative work, refused substantially equivalent employment, or voluntarily quit alternative
employment without good cause.
B. Plaintiff’s Prior Arrests
Plaintiff next asks the Court to exclude evidence and testimony regarding Plaintiff’s prior
arrests for methamphetamine production, marijuana possession, and for non-support. Plaintiff
argues that this evidence is irrelevant under Fed. R. Evid. 401, is substantially more prejudicial
than probative under Fed. R. Evid. 403, and constitutes improper character evidence under Fed.
R. Evid. 404. In response, Defendant does not address the admissibility of Plaintiff’s prior
arrests. Instead, Defendant cites to McKennon v. Nashville Banner Publishing Co.,7 and argues
that evidence of Plaintiff’s prior felony drug conviction is relevant as after-acquired evidence
5 Parker v. Delmar Gardens of Lenexa, Inc., No. 16-2169-JWL-GEB, 2017 WL 1650757, at *6 (D. Kan.
May 2, 2017) (quoting Leidel v. Ameripride Servs., Inc., 276 F. Supp. 2d 1138, 1142 (D. Kan. 2003)).
6 Volkman v. United Transp. Union, 826 F. Supp. 1253, 1258 (D. Kan. 1993).
7 513 U.S. 352 (1995).
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 3 of 9

4
because Plaintiff falsely represented on his employment application that he had not been
convicted of a felony or misdemeanor within the past ten years.
In McKennon, the Supreme Court considered what role evidence discovered by an
employer, after it had already terminated an employee in violation of the ADEA, plays in the
determination of liability and damages for that wrongful termination.8 The Supreme Court held
after-acquired evidence of misconduct by the former employee during the time of employment,
while not relieving the employer of liability, may be relevant to the issue of damages.9
According to the Supreme Court, because Congress designed the ADEA as part of a
broader remedial framework to eliminate discrimination in the workplace, “[i]t would not accord
with this scheme if after-acquired evidence of wrongdoing that would have resulted in
termination operates, in every instance, to bar all relief for an earlier violation of the Act.”10 As
a consequence, the employer may be liable for the wrongful discharge of the employee, but the
Supreme Court limited the admissibility of the after-acquired evidence to the determination of
damages.
In applying McKennon, district courts consider a two-step process. First, the employer
must establish “that the wrongdoing was of such severity that the employee in fact would have
been terminated on those grounds alone if the employer had known of it at the time of the
discharge.”11 Second, and only after an employer has met this initial showing, the after-acquired
8 McKennon, 513 U.S. at 354.
9 Id.
10 Id. at 358.
11 Id. at 362–63.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 4 of 9

5
evidence may then be considered to limit the damages remedy available to the wrongfully
terminated employee.12
Here, Defendant has not demonstrated, at least on the present record, how it will satisfy
McKennon’s requirements for admission of after-acquired evidence. Defendant proffers that it
learned during discovery in this case that Plaintiff pleaded guilty to a felony drug conviction in
State of Kansas v. Romero, Wyandotte County Case No. 2008-CR-000543, within ten years of
Plaintiff completing his job application, on which Plaintiff marked “no” in response to the
question asking whether he had been convicted of, or pleaded guilty or no contest to, any felony
or misdemeanor in the past ten years. But Defendant makes no showing that this alleged false
representation was “of such severity that the employee in fact would have been terminated on
those grounds alone if the employer had known of it at the time of the discharge.”13
Accordingly, the Court reserves ruling on the admissibility of this evidence as after-acquired
evidence under McKennon until trial, when Defendant may supplement its position with an
appropriate offer of proof outside the presence of the jury.
Accordingly, the Court grants Plaintiff’s motion to exclude under Fed. R. Evid. 401, 403,
and 404 evidence or testimony regarding Plaintiff’s prior arrests for methamphetamine
production, marijuana possession, and for non-support, because Defendant does not
acknowledge the arrests in its response or articulate any basis, under McKennon or otherwise, for
admitting evidence of those arrests. The Court reserves ruling, however, on whether Defendant
may introduce limited after-acquired evidence that Plaintiff pleaded guilty to a felony drug
conviction in State of Kansas v. Romero, Wyandotte County Case No. 2008-CR-000543, and
12 Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1145 (10th Cir. 2009) (citing
McKennon, 513 U.S. at 362).
13 McKennon, 513 U.S. at 362–63.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 5 of 9

6
allegedly falsely answered the “past ten years” conviction question on his employment
application, because Defendant has not yet made the showing required by McKennon. If
Defendant intends to introduce this evidence, it shall first raise the issue at trial outside the
presence of the jury by making an appropriate offer of proof demonstrating that the alleged
misconduct was of such severity that Plaintiff would have been terminated on that ground alone.
C. Testimony or Evidence from Kathy Mitchell
Plaintiff lastly asks the Court to exclude, as substantially more prejudicial than probative
under Fed. R. Evid. 403, testimony from Kathy Mitchell, a former girlfriend of Plaintiff and
employee of Defendant, that Plaintiff purportedly drank alcohol and used drugs while working
for Defendant. In response, Defendant proffers that Mitchell will testify about Plaintiff’s
unauthorized use of Defendant’s company vehicles after work hours in violation of Defendant’s
company policy, including Plaintiff’s alleged consumption of alcohol while driving a company
vehicle and transporting Mitchell without obtaining prior approval from Defendant, also in
violation of that policy. Defendant argues that this testimony is relevant to its after-acquired
evidence defense.
In support of its argument, Defendant attaches excerpts of its company policy that
identify conduct that may result in “accelerated corrective action,” including “utilizing illegal
drugs while on duty for the Company” and “[i]ntentional damage, theft, misuse, gross negligence
or patterns of negligence in the care and handling of Company property or assets.”14 The policy
further provides that “consumption, possession, sale, purchase, or being under the influence of
alcohol in the workplace, while operating the Company vehicles or equipment . . . is strictly
prohibited,” and that company vehicles “may not be driven for any personal usage other than the
14 Doc. 55 at 3.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 6 of 9

7
commute to and from home (only if authorized to take the vehicle home),” that “[p]rior
authorization of all passengers [is] required,” and that “[o]nly other company employees and pre-
approved passengers” may ride in the vehicle.15 Defendant contends that Plaintiff’s alleged
conduct would violate these provisions and would have justified Plaintiff’s termination had
Defendant known of it at the time of discharge.
On the present record, however, Defendant has not made the showing required by
McKennon. The policy language on which Defendant relies provides that certain conduct may
result in “accelerated corrective action,” but it does not establish, without further evidentiary
support, that the alleged violations would have resulted in termination on those grounds alone.
Nor have the parties developed the record regarding Mitchell’s position and
responsibilities with Defendant during the relevant time period—such as whether she held any
supervisory, management, or human resources role or otherwise had a duty to report policy
violations—and how, if at all, her knowledge of Plaintiff’s alleged conduct is attributable to
Defendant for purposes of determining whether the evidence is truly after-acquired.
Accordingly, the Court reserves ruling on the admissibility of Mitchell’s testimony as
after-acquired evidence under McKennon until trial, when Defendant may supplement its
position outside the presence of the jury with an appropriate offer of proof, including evidence
that the alleged misconduct was of such severity that Plaintiff in fact would have been terminated
on that ground alone had Defendant known of it at the time of discharge, and evidence
addressing Defendant’s knowledge (or lack thereof) of the alleged conduct when it occurred.
The Court grants Plaintiff’s motion, however, to the extent Defendant seeks to introduce any
15 Id. at 3–4.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 7 of 9

8
testimony or evidence of Plaintiff’s alcohol or drug use that is unrelated to any alleged company
policy violations.
II. Defendant’s Motion in Limine
The Court next turns to Defendant’s motion in limine. Defendant seeks to exclude
evidence and testimony that Ramon Martinez resigned from his employment with Defendant due
to discrimination and hostile work environment, as well as Martinez’s resignation letter.
Martinez is Plaintiff’s cousin and was employed by Defendant during the same period as
Plaintiff and remained employed after Plaintiff’s termination, until Martinez resigned on July 19,
2024. Defendant argues that testimony or evidence regarding Martinez’s claims of
discrimination and hostile work environment are irrelevant under Fed. R. Evid. 401, substantially
more prejudicial than probative under Fed. R. Evid. 403, and improper character evidence under
Fed. R. Evid. 404, because Martinez’s allegations concern discrimination and hostile work
environment on the basis of race and national origin—not age, which is the only protected
characteristic at issue in this case.
Plaintiff agrees that the alleged discrimination Martinez experienced is not relevant to
Plaintiff’s ADEA claim and represents that he does not intend to introduce evidence relating to
those matters. Accordingly, the Court grants Defendant’s motion in limine and excludes
evidence or testimony that Martinez resigned due to discrimination or a hostile work
environment, including Martinez’s resignation letter.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion in Limine
(Doc. 53) is granted in part and denied in part.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine (Doc. 54) is granted.
IT IS SO ORDERED.
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 8 of 9

9
Dated: January 15, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Case 2:24-cv-02134-JAR Document 57 Filed 01/15/26 Page 9 of 9