Amicus Curiae Brief — ABF Freight System, Inc. v. NLRB

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NATIONAL LABOR RELATIONS Boaap;

Respondent.

_ On Writ of Certiorari to the

United States Court of Appeals

Sak, He Xp. Ciranht

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW. AND THE WOMEN’S

LEGAL DEFENSE FUND AS AMICI CURIAE

_ IN SUPPORT OF RESPONDENT

MITCHELL ROGOVIN

RANDAL S. MILCH *

BELL, JR.

Donovan , LEISURE, ROGOVIN

“anal

(202) 986-2009

HERBERT M. WACHTELL

Co-Chair

WILLIAM H. Brown, III

Co-Chair

NORMAN REDLICH, Trustee

BARBARA R. ARNWINE

THOMAS J. HENDERSON

RICHARD T. SEYMOUR

SHARON R. VINICK

LAWYERS’ COMMITTEE FOR

Crvi. Ricguts UNDER LAW

1450 G Street, N.W., Suite 400

Washington, D.C. 20005

(202) 662-8600

Lawyers’ Committee for Civil Rights Under Law

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TABLE OF CONTENTS

ee Fe Ue

INTEREST OF THE AMICI CURIAE ....WW0.......

POTENT, canrnusccnesisninpemsenssiancniatianinnianantaianian,

T_T Ne TET TNT Dan

TITLE VII AND ITS JURISPRUDENCE DO NOT

SUPPORT THE ADOPTION OF A BRIGHT LINE

RULE DENYING MAKE WHOLE RELIEF TO

CHARGING PARTIES WHOSE TESTIMONY IS

DISCREDITED IN BOARD PROCEEDINGS .........

I. TITLE VII REQUIRES THAT THE AWARD

OF MAKE WHOLE RELIEF BE LEFT TO

THE DISCRETION OF THE TRIAL COURT

CONSISTENT WITH THE PURPOSES OF

SEE GIES <cniinnsttassniincrsnenittannintianaianineiiaiiiipeetiamiianines

II. PETITIONER’S REQUEST FOR A BRIGHT

LINE RULE IS INCONSISTENT WITH THIS

COURT’S DECISION IN HICKS ........................

CINDY ccerrscencnssevsnsscmmpvasinicainipaminiitiiaindaiailalddiaan

Page

ii

TABLE OF AUTHORITIES

CASES: Page

ABF Freight System, Inc., 304 N.L.R.B. 585

ESS Ee passim

Albemarle Paper Co. v. Moody, 422 U.S. 405

EEE ae 8, 10, 12

Chandler v. Roudebush, 425 U.S. 840 (1976) ......... 2

Connecticut v. Teal, 457 U.S. 440 (1982) 0000. 2

Franks v. Bowman Transp. Co., 424 U.S. 747

SELES 8,10

Hazelwood School District v. United States, 433

Tn 2

Hecht Co. v. Bowles, 321 U.S. 321 (1944) 0000000... 10

Hopkins v. Price Waterhouse, 490 U.S. 228 (1989)... 2

Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409

a csushenaneenenes 11

Johnson v. Transportation Agency of Santa Clara

es I I, GD CIIIOD cocccncenccnccnccccecccescecccconcce 2

Kristufek v. Hussmann Foodservice Co., 985 F.2d

SEUSS 14

Landgraf v. USI Film Products, No. 92-757 (cert.

granted, 61 U.S.L.W. 3580, Feb. 22, 1993) ........ 2

Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561 (4th

a 2

Meritor Savings Bank v. Vinson, 477 U.S. 57

EASES SEES SS Co 2

Miera v. National Labor Relations Board, 982 F.2d

EE 1,7, 15

Milligan-Jensen v. Michigan Technological Univ.,

975 F.2d 302 (6th Cir. 1992), cert. granted, ——

U.S. ——, 118 S.Ct. 2991 (1998) ........................... 11,15

Mt. Healthy City School District Bd. of Educ. v.

Ly 5 Re 11,13

Newport News Shipbuilding and Dry Dock Co. v.

i os csenscnnononcnnan 3

O’Driscoll v. Hercules, Inc., 745 F. Supp. 656 (D.

EE - 15

Payne v. Travenol Laboratories, Inc., 673 F.2d 798

(5th Cir.), cert. denied, 459 U.S. 1038 (1982).... 2

Perma Life Mufflers, Inc. v. International Parts

Corp., 892 U.S. 184 (1968) ........................-0c---0000 12

Sledge v. J.P. Stevens & Co., 585 F.2d 625 (4th Cir.

1978), cert, denied, 440 U.S. 981 (1979) ............. 2

iii

TABLE OF AUTHORITIES—Continued

Page

Smith v. General Scanning, Inc., 876 F.2d 1315

Ee eee ee 12

St. Mary’s Honor Center v. Hicks, —— U.S. ——,

I eect passim

Summers v. State Farm Mut. Auto. Ins. Co., 864

yy & | | S Fee passim

United Auto Workers v. Johnson Controls, ——

U.S. ——, 111 S.Ct. 1196 (1991) ...............0........ 2

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474

ERE Sine ae ee ee 15

Wallace v. Dunn Constr. Co., 968 F.2d 1174 (11th

EEE eee 12, 13, 14

Wards Cove Packing Co., Inc. v. Atonio, 490 U.S.

Ee en ae ne 2

Washington v. Lake County, 969 F.2d 250 (7th

ERE ee ne 15

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

ET a 2

STATUTES AND RULES:

ET ee 17

National Labor Relations Act, 29 U.S.C. § 151,

RSE a ee 3

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g).... 9, 10

I rier 17

EE TCE A ae re 17

LEGISLATIVE MATTERS:

Section-by-Section Analysis of 1972 Amendments

to Civil Rights Act, 118 Cong. Rec. 7168 (1972)... 10

MISCELLANEOUS:

Gudel, Beyond Causation: The Interpretation of

Action and the Mixed Motives Problem in Em-

ployment Discrimination Law, 70 Tex. L. Rev.

EE a Nae eT 12

Rubinstein, The Use of Predischarge Misconduct

Discovered After an Employee's Termination As

a Defense in Employment Litigation, XXIV

Suffolk Univ. L. Rev. 1 (1990) —....00000... alain 11

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1550

ABF FREIGHT SYSTEM, INC.,

7 Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AND THE WOMEN’S

LEGAL DEFENSE FUND AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

The Lawyers’ Committee for Civil Rights Under Law

(“Lawyers’ Committee”) and the Women’s Legal De-

fense Fund (“WLDF”) respectfully submit this brief as

amici curiae. The written consents of the parties are being

filed with the Clerk of this Court simultaneously with this

brief. This brief urges affirmance of the Tenth Circuit’s

decision in Miera v. National Labor Relations Board,

982 F.2d 441 (10th Cir. 1992), and thus supports the

position of Respondent.

INTEREST OF THE AMICI CURIAE

The Lawyers’ Committee is a nonprofit organization

that was established at the request of the President of the

United States in 1963, to involve leading members of the

2

bar throughout the country in the national effort to en-

sure civil rights to all Americans. It has represented, and

assisted other lawyers in representing, numerous plaintiffs

in administrative proceedings and lawsuits under Title VII

in the lower courts. See, e.g., Lewis v. Bloomsburg Mills,

Inc., 773 F.2d 561 (4th Cir. 1985); Payne v. Travenol

Laboratories, Inc., 673 F.2d 798 (Sth Cir.), cert. denied,

459 U.S. 1038 (1982); Sledge v. J.P. Stevens & Co., 585

F.2d 625 (4th Cir. 1978), cert. denied, 440 U.S. 981

(1979). The Lawyers’ Committee has also represented

parties and participated as an amicus in Title VII cases

before this Court. See, e.g., Landgraf v. USI Film Prod-

ucts, No. 92-757 (cert. granted, 61 U.S.L.W. 3580, Feb.

22, 1993); St. Mary’s Honor Center v. Hicks, US.

, 113 S.Ct. 2742 (1993); Wards Cove Packing Co.,

Inc. v. Atonio, 490 U.S. 642 (1989); Watson v. Fort

Worth Bank & Trust, 487 U.S. 977 (1988); Connecticut

v. Teal, 457 U.S. 440 (1982); Hazlewood School District

v. United States, 433 U.S. 299 (1977); Chandler v.

Roudebush, 425 U.S. 840 (1976).

The Women’s Legal Defense Fund is a national ad-

vocacy organization that was founded in 1971 to ad-

vance the rights of women in the areas of work and

family. The WLDF works to challenge gender discrimi-

nation in the workplace through litigation of significant

sex discrimination cases, public education, and advocacy

for improvements in the equal employment opportunity

laws and their interpretation before Congress and the

federal agencies charged with their enforcement. Through-

out this work, the WLDF has placed special emphasis

on equal employment opportunity for women of color,

who often face job discrimination based on both race and

gender. WLDF’s participation as amicus in Title VII

cases before this Court includes United Auto Workers v.

Johnson Controls, US. , Ill S.Ct. 1196

(1991), Hopkins v. Price Waterhouse, 490 U.S. 228

(1989), Johnson v. Transportation Agency of Santa Clara

Cty., 480 U.S. 616 (1987), Meritor Savings Bank v.

3

Vinson, 477 U.S. 57 (1986), and Newport News Ship-

building and Dry Dock Co. v. EEOC, 462 U.S. 669

(1983).

The question presented in this case is whether an em-

ployee who was unlawfully discharged under the National

Labor Relations Act (NLRA), 29 U.S.C. § 151 ef seq.,

must be denied the remedies of reinstatement and back-

pay if the administrative law judge concludes that any

portion of the employee’s testimony at the hearing into

the employer’s unlawful conduct was “purposefully” un-

true. The resolution of that question turns primarily on

the principles governing the National Labor Relations

Board’s broad discretion to remedy unfair labor practices

under the NLRA.

Petitioner mistakenly argues, however, that Title VII

principles support the adoption of a per se rule that un-

lawfully discharged employees nonetheless forfeit their

right to reinstatement and backpay if they are subsequently

found to have given false testimony of any kind at the

hearing into their employer’s unlawful conduct. Petitioner

relies specifically on lower court decisions holding that

certain “after acquired” evidence of an employee’s misrep-

resentations or misconduct during the employment rela-

tionship may disqualify the employee from reinstatement,

and limit or bar an award of backpay.

The decision in this case may therefore have implica-

tions for the availability of reinstatement or backpay to

employees who are the victims of unlawful employment

practices under other federal statutes, including Title VII,

the Equal Pay Act, and other antidiscrimination statutes.

The Lawyers’ Committee and the WLDF have an inter-

est in the adoption of legal principles that will result in

the sound administration of federal antidiscrimination

laws. As the amici argue in this brief, a bright line “after

acquired evidence” rule as suggested by Petitioner is in-

consistent with the remedial purposes of Title VII and

analogous statutes, and with the Court’s prior decisions.

4

STATEMENT

1. Michael Manso was employed as a casual dock-

worker in Petitioner's Albuquerque truck terminal. ABF

Freight System, Inc., 304 N.L.R.B. 585, 585 (1991).

Effective May 29, 1988, a new collective bargaining agree-

ment between Petitioner and the Teamsters provided

casual dockworkers with certain preferential employment

rights. /d. A dispute soon arose concerning the effect

of the new agreement, with Petitioner taking the position

that Manso and certain other casuals did not qualify for

preference and could be discharged. /d. at 586. Petitioner

terminated Manso and eleven other casual dockworkers

on June 20, 1988. /d. at 586-87.

The union filed a grievance on behalf of the terminated

workers. /d. at 587. In addition, on November 21, 1988,

as the dispute proceeded through the grievance procedure,

Manso and another worker filed -an unfair labor practice

charge. Id. at 589. On April 6, 1989, at the final step

of the grievance process, the grievance committee ordered

the terminated employees reinstated without backpay. /d.

at 587. Manso returned to work on April 24, 1989. /d.

at 589.

2. Upon his return to work, three of Manso’s super-

visors told him that Petitioner was out to get him for hav-

ing filed the grievance and the unfair labor practice

charge. The threats proved to be true; Manso was termi-

nated twice over the next four months. Manso’s first ter-

mination arose out of Petitioner’s practice of verifying

calls to work made to preferential casuals. Under this

new policy—applicable only to preferential casuals like

Manso—a supervisor in need of a preferential casual to

work the next shift would have a union member telephone

the casual. /d. at 597. If the casual did not answer, the

union member would be asked to sign a written verifica-

tion that the call had been made and that there had been

5

no response. /d. Two such failures to respond permitted

the termination of a preferential casual. /d.

On May 8, 1989, Manso received a warning lette1

for failing to respond to a call to work made on May 6.

Id. On June 19, Supervisor Ronald Ford asked union

member Jeff Motter to verify a telephone call to Manso

to come to work. /d. When Manso did not respond to

the <all, Motter told Ford that he feared he had mis-

dialed Manso’s telephone number, and asked to make

the call again. /d. Ford refused Motter’s request. /d.

Manso was discharged for failing to respond to the June

19 call to work. /d. Manso grieved the discharge and

was reinstated without backpay at the first level of the

grievance procedure. /d. at 589.

On August 11, 1989, Manso arrived four minutes late

to begin work on the 5:00 a.m. shift and was issued a

warning letter. 7d. At this time, Petitioner had no policy

regarding tardy preferential casual dockworkers. /d. at

591. Six days later, Manso arrived nearly one hour late

for the 5:00 a.m. shift. 7d. at 589. Manso explained that

his car had broken down on the way to work and that

he had called his wife to come pick him up on the high-

way. /d. at 597. Manso further explained that, with his

wife in the car, he drove to work and was stopped by a

Deputy Sheriff for speeding. /d. Petitioner determined

that Manso fabricated this story, and terminated Manso

under a newly-instituted policy applicable only to pref-

erential casuals permitting termination for two unexcused

absences. /d. at 589. Manso grieved the discharge, but

lost at the first step and took the grievance no further.

Id. at 597. Manso then filed a second unfair labor prac-

tice charge.

3. The two unfair labor practice charges against Peti-

tioner were consolidated for hearing. J.A. 4.’ With re-

! The Joint Appendix filed with the Brief for Petitioners is cited

as “J.A. ——.” The Board, disagreeing with the administrative

6

spect to the second charge, the Board, agreeing with the

administrative law judge, concluded that Petitioner un-

lawfully discharged Manso in June 1989 in retaliation

for Manso’s filing of the grievance and unfair labor prac-

tice charge. Disagreeing with the administrative law

judge, the Board concluded that the discharge in August

1989 was also unlawful. The Board ordered Manso

reinstated with backpay.

a. In concluding that Manso had been unlawfully

discharged in both June and August 1989, the Board

adopted the administrative law judge’s findings on

credibility. Jd. at 585. In particualr, Manso testi-

fied that, upon his return to work in April 1989, three of

his supervisors made threatening statements: Supervisor

Lovato told Manso to “watch [his] . . . step [because]

ABF was gunning” for him (J.A. 96); Supervisor McNutt

told Manso “to be careful because the higher echelon was

after” him (J.A. 97); and Supervisor Beeson told Manso,

“Let’s see how long it takes them to get rid of you this

time.” (J.A. 99). Although each of these supervisors

unequivocally denied making these statements to Manso,

(J.A. 91 (Lovato), 118 (McNutt), 56 (Beeson)), the

judge found Manso’s statements to be truthful. ABF

Freight System, Inc., 304 N.L.R.B. at 597.

In addition, union member Motter testified that he

told Supervisor Ford he may have misdialed Manso’s

number on the morning of June 19, and that his request

to redial Manso’s telephone number was refused by Ford.

J.A. 122. Supervisor Ford flatly denied that Motter said

he feared he had misdialed Manso’s number or asked to

redial the number. J.A. 64. The administrative law judge

law judge, found that the initial discharge of Manso and the

other casuals in June 1988 did not violate the NLRA because

it had been based on Petitioner’s reasonable interpretation of the

collective bargaining agreement. ABF Freight System, Inc., 304

N.L.R.B. at 585.

7

found Motter to be telling the truth. ABF Freight Sys-

tem, Inc., 304 N.L.R.B. at 597.

Finally, at the hearing Manso repeated his explanation

for his tardiness on August 17. J.A. 104-07. The Deputy

Sheriff who stopped Manso for speeding, however, testi-

fied that Manso was alone when stopped. Id. at 126-27.

The administrative law judge found Manso’s explanation

for his tardiness to be untrue. ABF Freight System, Inc.,

304 N.L.R.B. at 600.

b. Although the administrative law judge found it

“apparent . . . that the [Petitioner] . . . harbored animus

against Manso for engaging in protected activities,” the

judge found that Manso was lawfully terminated for cause

in August 1989 because he had been dishonest about the

reason for his tardiness on the morning of August 17.

Id. The Board, however, found the judge’s conclusion

that Manso had been fired for dishonesty to be based

upon a “plainly erroneous factual statement of the... .

asserted reasons” for the discharge. /d. at 590.

In the Board’s view, the testimony of Petitioner’s own

witnesses established that Manso was assertedly fired be-

cause of his second unexcused tardiness, not dishonesty.

Id. Moreover, the Board found further that Petitioner’s

treatment of Manso under the newly instituted lateness

policy was not consistent with its previous treatment of

other casual workers, and was pretextual. Jd. at 590-91.

The Board concluded that a prima facie case of unlawful

discrimination had been made, and that Petitioner failed

to show that it would have fired Manso even if he had not

been engaged in protected activities. Jd. at 591.

4. The court of appeals, affirming the Board, found

“abundant evidence” in the record of “antiunion animus

in ABF’s conduct towards Manso.” Miera v. National

Labor Relations Board, 982 F.2d 441, 446 (10th Cir.

1992). The court further found that substantial evidence

supported the Board’s determination that Manso was not

8

discharged for cause, but instead had been the victim of

an unlawful discriminatory discharge. /d. Finally, the

court of appeals found that the Board had not abused its

“considerable discretion” by awarding backpay and re-

instatement to Manso, even though Manso had repeated

his false explanation for being late to the administrative

law judge. /d. at 447. As the court observed, Manso’s

“misrepresentation was made to his employer in an at-

tempt to avoid being fired under a policy the application

of which the Board found to be the result of antiunion

animus.” /d.

SUMMARY OF ARGUMENT

Petitioner asserts that Title VII jurisprudence supports

the adoption of a “bright line test” prohibiting the Board

from awarding reinstatement and backpay to the victim

of an unfair labor practice who testifies falsely in Board

proceedings. See Pet. Brf. 30. This Court’s Title VII

jurisprudence does not support the creation of the bright-

line rule Petitioner requests. Title VII clearly places the

award of injunctive relief and backpay within the dis-

cretion of the trial court. Under Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975), and Franks v. Bowman

Transp. Co., 424 U.S. 747 (1976), this discretion must

be exercised consistent with Title VII’s twin objectives of

providing make whole relief to the victims of discrimina-

tion and of providing employers with incentives volun-

tarily to examine and correct discriminatory practices.

Petitioner argues that a so-called “after-acquired evi-

dence rule” limits the trial court’s discretion to fashion

make whole relief for the victims of unlawful discrimina-

tion. In fact, there is serious disagreement among the

lower courts as to the effect, if any, to be given to after-

acquired evidence of employee misconduct unrelated to

the challenged employment decision. In any event, none

2 The Brief for Petitioner is cited as “Pet. Brf. ——.”

9

of the lower court decisions cited by Petitioner supports a

rule barring make whole relief as a sanction for state-

ments made in the course of an adjudicatory proceeding.

This Court has recently held that Title VII does not

serve to punish employer misrepresentations to a trial

court. St. Mary’s Honor Center v. Hicks, USS.

, 113 S.Ct. 2742 (1993). By the same token Title

VIL should not be transformed into a statute punishing

employee misconduct. To the extent that Title VII juris-

prudence is applicable in the NLRA context, it supports

the continued exercise of the Board’s discretion in light

of the purposes of the NLRA, not the establishment of a

bright line rule punishing the victims of anti-union animus.

ARGUMENT

TITLE VII AND ITS JURISPRUDENCE DO NOT SUP-

PORT THE ADOPTION OF A BRIGHT LINE RULE

DENYING MAKE WHOLE RELIEF TO CHARGING

PARTIES WHOSE TESTIMONY IS DISCREDITED IN

BOARD PROCEEDINGS

I. TITLE VII REQUIRES THAT THE AWARD OF

MAKE WHOLE RELIEF BE LEFT TO THE DIS-

CRETION OF THE TRIAL COURT CONSISTENT

WITH THE PURPOSES OF THE ACT

Section 706(g) of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5(g), governs the award of make-whole

relief, including backpay and reinstatement, in Title VII

cases. Section 706(g) provides in pertinent part that,

upon finding a discriminatory employment practice, the

trial court

may .. . order such affirmative action as may be

appropriate, which may include, but is not limited

to, . . . hiring of employees, with or without back-

pay, . . . or any other equitable relief as the court

deems appropriate.

42 U.S.C. § 2000e-5(g).

10

This Court has long emphasized that the text of Section

706(g) “implicitly recognizes” that the appropriate rem-

edy may vary from case to case, and that fashioning the

proper Title VII remedy lies in the first instance within

the discretion of the trial court. Albemarle Paper, 422

U.S. at 415-16. The federal courts “are empowered to

fashion such relief as the particular circumstances of a

case may require” to remedy a Title VII violation.

Franks, 424 U.S. at 764.

The trial court’s discretion, however, is not unfettered.

The fashioning of a remedy must be exercised “ ‘in light

of the large objectives’” of Title VII. Albemarle Paper,

422 U.S. at 416, quoting Hecht Co. v. Bowles, 321 US.

321, 331 (1944). In particular, this Court has empha-

sized that the make whole remedies of Section 706(g)—

including both back pay and reinstatement—

should be denied only for reasons which, if applied

generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout

the economy and making persons whole for injuries

suffered through past discrimination.

Albemarle Paper, 422 U.S. at 421 (backpay); Franks,

424 U.S. at 771 (seniority) .*

* Both Albemarle Paper and Franks relied on the legislative

history accompanying the 1972 amendments to Section 706(g) as

evidence that Congress had “strongly reaffirmed the ‘make whole’

purpose of Title VII.” Albemarle Paper, 422 U.S. at 421; Franks,

424 U.S. 763-64. As the Section-by-Section Analysis of the 1972

amendments makes clear,

relief [under Section 706(g)] is intended to make the victims

of unlawful discrimination whole, and . . . attainment of this

objective rests not only upon the elimination of the particular

unlawful practice complained of, but also requires that persons

aggrieved by the consequences and effects of the unlawful em-

ployment practice be, so far as possible, restored to a position

where they would have been were it not for the unlawful dis-

crimination.

118 Cong. Rec. 7168 (1972).

11

Despite this Court’s admonition that the limits on Title

VII remedies must be consistent with the aims of the

Statute, some courts have adopted various after-acquired

evidence rules, or “after the fact” defenses, permitting an

employer to defend against an employment discrimina-

tion claim on the basis of prior misconduct discovered

after the employment action at issue. See Rubinstein,

The Use of Predischarge Misconduct Discovered After an

Employee’s Termination As a_Defense in Employment

Litigation, XXIV Suffolk Univ. L. Rev. 1, 4 (1990).

In Summers v. State Farm Mut. Auto. Ins. Co., 864

F.2d 700 (10th Cir. 1988), the Tenth Circuit found

that evidence of employee misconduct discovered during

litigation would deny a plaintiff any relief under Title VII

and the Age Discrimination in Employment Act (ADEA).

The court of appeals reasoned that this Court’s decision

in Mt. Healthy City School District Bd. of Educ. v. Doyle,

429 U.S. 274 (1977), supported the denial of relief un-

der Title VII and the ADEA if the employer would legit-

imately have fired the plaintiff had it known of the mis-

conduct. See Summers, 864 F.2d at 706-08. The Sixth

Circuit has recently taken Summers to its logical conclu-

sion and has announced that after-acquired evidence

which, if known, would have justified termination demon-

strates that the employee “suffered no legal damage” and

provides an affirmative defense to a valid claim of illegal

discrimination. Milligan-Jensen v. Michigan Technologi-

cal Univ., 975 F.2d 302, 304-05 (6th Cir. 1992), cert.

granted, —— U.S. ——, 113 S.Ct. 2991 (1993) (dis-

missed ) .*

This Court should reject Petitioner’s contention that

the after-acquired evidence cases properly limit a trial

* Petitioner also cites Johnson v. Honeywell Info. Sys., Inc., 955

F.2d 409 (6th Cir. 1992), as supportive of its Title VII argument.

Johnson, however, was brought under Michigan’s Elliott-Larsen

Civil Right Acts, decided on the basis of Michigan common law,

and nowhere mentions Title VII. See 955 F.2d at 410, 412-13.

12

court’s discretion in fashioning Title VII relief. Most

basically, these cases contravene the purposes of Title

VII because they insulate proven wrongdoers and bar

proven victims from all remedy.

The affirmative defense * created by Summers and its

progeny is “antithetical” to the objectives of Title VII.

Wallace v. Dunn Constr. Co., 968 F.2d 1174, 1180 (11th

Cir. 1992). See also Smith v. General Scanning, Inc.,

876 F.2d 1315, 1319 (7th Cir. 1989) (rejecting argu-

ment that employee misrepresentation is relevant to

ADEA liability of employer); Gudel, Beyond Causation:

The Interpretation of Action and the Mixed Motives

Problem in Employment Discrimination Law, 70 Tex. L.

Rev. 17, 97 n.311 (1991) (affirmative defense contrary

to Title VII’s aims). As the Wallace court reasoned,

providing an affirmative defense

does not encourage employers to eliminate discrimi-

nation. Rather it invites employers to establish ludi-

crously low thresholds for ‘legitimate’ termination

and to devote fewer resources to preventing discrim-

ination because Summers gives them the option to

escape all liability by rummaging through an unlaw-

fully-discharged employee’s background for flaws and

then manufacturing a ‘legitimate’ reason for the dis-

5 There is considerable doubt that the federal courts have the

authority to create an affirmative defense to a Title VII action

in light of the comprehensive enforcement scheme created by Con-

gress in the civil rights laws. As the Court has previously observed

in the context of Title VII, see Albemarle Paper, 422 U.S. at 423

n.17 & 444 (refusing to enlarge Title VII’s limited statutory good

faith defense), and elsewhere, it is inappropriate for the federal

courts to “invok{e] broad common law barriers to relief where a

private suit serves important public purposes.” Perma Life Mufflers,

Inc. v. International Parts Corp., 392 U.S. 134, 138 (1968) (re-

versing lower court’s adoption of in pari delicto defense to private

antitrust action).

13

charge that fits the flaws in the employee’s back-

ground.

Wallace, 968 F.2d at 1180.°

Indeed, Summers represents an “unwarranted exten-

sion” of Mt. Healthy. Id. at 1179. The Wallace court

explained that Mt. Healthy excuses liability if an em-

ployer demonstrates that it would have taken the same

employment decision, absent any discriminatory motive,

based on the information it had in its possession at

the time the decision was made. /d., citing Mt. Healthy,

429 US. at 285-86. The Summers affirmative defense, to

the contrary,

excuses all liability based on what hypothetically

would have occurred absent the alleged discrimina-

tory motive assuming the employer had knowledge

that it would not acquire until sometime during the

litigation arising from the discharge.

Wallace, 968 F.2d at 1179 (emphasis in original) ."

*The Wallace court was also concerned that the creation of an

affirmative defense would provide hiring officials with an oppor-

tunity to “sandbag” employees whom they intend to harass sexually:

Summers encourages an employer with a proclivity for un-

lawful motives to hire a woman-——despite knowledge of a legiti-

mate reason that would normally cause the employer not to

employ her—to destroy any evidence of such knowledge, to

pay her less on the basis of her gender, to sexually harass

her until she protests, to discharge her, and to “discover’ the

legitimate motive during the ensuing litigation, thus escaping

any liability for the unlawful treatment of the erstwhile

employee.

Wallace, 968 F.2d at 1180-81.

7 Given that in these cases the after-acquired “legitimate” rea-

son for discharge could not have motivated the employer’s action,

the Summers affirmative defense actually places the victim of dis-

crimination in a worse position than those who are not members

of a protected class. The affirmative defense thus contravenes “the

Mt. Healthy principle . . . that the plaintiff should be left in no

worse a position than if she had not been a member of a protected

class.” Wallace, 968 F.2d at 1179.

14

Rather than permitting information about which an

employer was unaware (and which could not have sup-

plied the basis for an employment decision) to insulate

unlawful behavior, after-acquired evidence should prop-

erly be left to the remedy stage of a Title VII proceed-

ing, where its effect is “best decided on a case-by-case

basis.” Wallace, 968 F.2d at 1181. While after-acquired

evidence of serious misconduct may warrant a court’s dis-

cretionary refusal to reinstate a victim of unlawful dis-

crimination, after-acquired evidence should, as Wallace

noted, have “no bearing on the availability vel non of a

backpay award.” /d. at 1182 n.12. A backpay award

should not be prematurely terminated due to after-acquired

evidence unless the employer can show that it would have

discovered the after-acquired evidence before what would

otherwise be the end of the backpay period absent its un-

lawful discrimination and any attendant litigation. /d. at

1182. Shortening the backpay period to the date of dis-

covery of the after-acquired evidence—particularly if

discovery occurs in anticipation of or during the discrimi-

nation litigation—places the plaintiff in a worse position

than those outside a protected class and provides

a windfall to employers who, in the absence of their

unlawful act and the ensuing litigation, would never

have discovered any after-acquired evidence.

Id.*

Even if the after-acquired evidence cases provided Pe-

titioner with a limitation on the trial court’s discretion

consistent with the purposes of Title VII, Petitioner’s ef-

fort to use these cases to support a bright line rule based

on after-occurring misrepresentations suffers from at least

two other substantial flaws.

SIn Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 371

(7th Cir. 1993), the court limited beckpay to the date the em-

ployer discovered during depositions that the plaintiff had inflated

his educational background when he was hired, some five years be-

fore his termination. The employer in this instance gained the

very windfall warned of in Wallace.

15

First, the lower court decisions on which Petitioner re-

lies involve the later discovery of evidence of employee

misconduct occurring prior to or during the employment

relationship. Those cases do not have anything to

do with employee misstatements made during the course

of adjudicative proceedings that have been convened

solely because of the employer’s unlawful conduct. The

conduct of witnesses at such a hearing, including a party,

is simply irrelevant to the employment relationship or the

employer’s unlawful conduct, as we discuss in Part II

below.

Second, even with respect to cases involving after-

acquired evidence of employee misconduct during the em-

ployment relationship, the lower court cases generally re-

quire that a misrepresentation be material to the employ-

ment relationship: the employer must show that it would

have, absent any discrimination, made the same employ-

ment decision had it known of the after-acquired evi-

dence.’ See Summers, 864 F.2d at 708; Washington v.

Lake Cty., 969 F.2d 250, 255 (7th Cir. 1992); Milligan-

Jensen, 975 F.2d at 304-05. This critical aspect of the

defense is a burden that Petitioner could not meet in this

case." The after-acquired evidence rules therefore do not

*The materiality requirement “weakens the incentive for an

employer to engage in a fishing expedition for ‘minor, trivial or

technical infractions’” for use against a plaintiff. Washington,

969 F.2d at 255-56, quoting O'Driscoll v. Hercules, Inc., 745 F. Supp.

656, 659 (D. Utah 1990). Indeed, without a materiality require-

ment, the after-acquired evidence becomes merely another pretext

for the employer’s discriminatory action.

1© Although Petitioner was aware of Manso’s misrepresentation,

the Board found that Manso was pretextually terminated for tardi-

ness, not lying. ABF Freight System, Inc., 304 N.L.R.B. at 590.

The Tenth Circuit found the Board’s determination to be sup-

ported by substantial evidence. Miera, 982 F.2d at 446. In light

of the Tenth Circuit's application of the appropriate standard of

review, this factual finding is not subject to further question. See

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491 (1951).

16

support the creation of a bright line rule based on mis-

representations which—as in this case—were irrelevant in

the employment context.

II. PETITIONER’S REQUEST FOR A BRIGHT LINE

RULE IS INCONSISTENT WITH THIS COURT'S

DECISION IN HICKS

As noted above, none of the after-acquired evidence

cases purport to reach misrepresentations occurring in

proceedings held after the termination of the employment

relationship. Petitioner is seeking the creation of an “after-

occurring” evidence rule which would transform antidis-

crimination statutes into laws sanctioning misconduct dur-

ing adjudicative procedings. Last Term, in St. Mary's

Honor Center v. Hicks, US. , 113 S.Ct. 2742,

2754 (1993), this Court rejected a similar argument:

“Title VII is not a cause of action for perjury; we have

other civil and criminal remedies for that.” There is no

reasoned basis for distinguishing this aspect of Hicks from

Petitioner’s Title VII argument. If under Hicks an em-

loyer does not lose a Title VII suit simply because it lied,

neither should a victim of discrimination lose her Title

VII action for the same infraction.

Petitioner's argument is in fact more extreme than the

situation presented in Hicks. Hicks held that the finder

of fact in a fair employment case was permitted—but not

required—to draw the inference of unlawful discrimina-

tion from proof that the employer’s proffered explanation

of its action “was not believable.” Jd. at 2751. Indeed,

the employer’s proffer of a false “nondiscriminatory ex-

planation” is a threat far more serious to the integrity of

the fact-finding process than the kind of employee false-

hood at issue herein: the false explanation in Hicks went

to the very question of the employer’s intent to discrimi-

nate, and proof of its falsity left the employer without any

proffered “nondiscriminatory explanation,” whereas the

employee’s untruth here pertained only to one of a host

of subsidiary contextual issues.

17

The Court also noted that a “judgment for lying” rule

was not a “fair and even-handed punishment for vice.” /d.

Again, the Hicks rationale militates against the bright line

rule proposed by Petitioner. The record in this case dis-

closes a failure to tell the truth by a number of witnesses

before the administrative law judge—witnesses on both

sides of the unfair labor practice dispute.

There is no doubt that Manso was an untrustworthy

witness in one respect. The administrative law judge both

credited Manso’s testimony and on one point found him

to be a liar. The same must be said of Petitioner’s wit-

nesses. The administrative law judge did not believe

three of Petitioner’s supervisory employees when they

flatly denied making threatening statements to Manso soon

after he returned to work in April 1989. The administra-

tive law judge also rejected a fourth supervisor’s asser-

tions that union member Motter never complained of mis-

dialing Manso’s telephone number and never asked per-

mission to redial Manso’s number in May 1989.

The amici do not believe that there is any justification

for lying under oath; nor do they suggest that significant

employee misconduct should be condoned. The facts be-

fore the Court emphasize, however, the futility of creat-

ing a dispositive rule of decision based on a consideration

—perjury—unrelated to the issues before a court. Every

judge is faced with a mixture of truth and falsity as the

evidence unfolds, but punishing lies unrelated to the em-

ployment relationship is not the purpose of a Title VII

action—eradicating discrimination and providing relief to

its victims are. As the Court in Hicks noted, lying to seek

advantage in a court proceeding might have short term

advantages, but “it also carries substantial risks, see Rules

11 and 56(g); 18 U.S.C. § 1621.” Hicks, 113 S.Ct. at

2755. There is no reason to gut antidiscrimination laws

simply to reinforce the existing rules against lying under

oath. A bright line rule of the sort advocated by Peti-

tioner would too often immunize intentional discrimination

18

and would prevent the trial court from weighing the ap-

propriate factors in fashioning an appropriate remedy.

Title VII does not support Petitioner’s position.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

MITCHELL ROGOVIN HERBERT M. WACHTELL

RANDAL S. MILCH * Co-Chair

ROBERT C. BELL, JR. WILLIAM H. Browy, III

DONOVAN, LEISURE, ROGOVIN Co-Chair

& SCHILLER NORMAN REDLICH, Trustee

1250 24th Street, N.W. BARBARA R. ARNWINE

Suite 700 THOMAS J. HENDERSON

Washington, D.C. 20037 RICHARD T. SEYMOUR

(202) 467-8300 SHARON R. VINICK

DONNA R. LENHOFF LAWYERS’ COMMITTEE FOR

HELEN L. NoRTON CIVIL RIGHTS UNDER LAW

14 W., Sui

WoMEN’s LEGAL DEFENSE ns er _ 400

FUND 8600

1875 Connecticut Ave., N.W. (20S) Ge

Suite 710

Washington, D.C. 20009

(202) 986-2600

Attorneys for Amici Curiae

Lawyers’ Committee for Civil Rights Under Law

and Women’s Legal Defense Fund

* Counsel of Record

September 29, 1993