Amicus Curiae Brief — McKennon v. Nashville Banner Publishing Co.

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Supreme Court of the United States

OcTOBER TERM, 1994 Spesaemanis

CHRISTINE MCKENNON, |

e Petitioner,

NASHVILLE BANNER PUBLISHING Co.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION TO FILE BRIEF AS AMICI CURIAE AND

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

THE EMPLOYERS GROUP, THE MICHIGAN

MANUFACTURERS ASSOCIATION, THE NEWSPAPER

ASSOCIATION OF AMERICA, AND THE NEWSPAPER

PERSONNEL RELATIONS ASSOCIATION

IN SUPPORT OF RESPONDENT

LEE T. PATERSON DouGLaAs 8S. MCDOWELL

SONNENSCHEIN NATH & ANN ELIZABETH REESMAN *

ROSENTHAL McGUINESS & WILLIAMS

601 S. Figuero St. 1015 Fifteenth Street, N.W.

Suite 1500 4 Suite 1200

Los Angeles, CA 90017 Washington, D.C. 20005

Attorney for Amicus Curiae (202) 789-8600

The Employers Group Attorneys for Amicus Curiae

DWIGHT H. VINCENT Equal Employment Advisory

J. WALKER HENRY Council

CLARK, KLEIN & BEAUMONT

1600 First Federal Building

1001 Woodward Avenue

Detroit, MI 48226-1962

Attorneys for Amicus Curiae

Michigan Manufacturers

A ‘ati

September 8, 1994 * Counsel of Record

(List of Attorneys Continued on Inside Cover)

WILSON - Epes PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

“BEST AVAILABLE COPY”

JOHN F, STURM

529 14th Street, N.W.

Suite 400

Washington, D.C. 20045

RENE P. MILAM

11600 Sunrise Valley Drive

Reston, VA 22091

Attorneys for Amicus Curiae

Newspaper Association of America

PETER G. STONE

Route 416

Campbell Hall, NY 10916

Attorney for Amicus Curiae

Newspaper Personnel Relations Association

BEST AVAILABLE COPY "uuumeemee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-1543

CHRISTINE MCKENNON,

7 Petitioner,

NASHVILLE BANNER PUBLISHING Co.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION OF THE EQUAL EMPLOYMENT ADVISORY

COUNCIL, THE EMPLOYERS GROUP, THE MICHIGAN

MANUFACTURERS ASSOCIATION, THE NEWSPAPER

ASSOCIATION OF AMERICA, AND THE NEWSPAPER

PERSONNEL RELATIONS ASSOCIATION

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

To the Honorable, the Chief Justice and the Associate

Justices of the United States Supreme Court:

Pursuant to Rule 37.1 and .2 of the Rules of this

Court, the Equal Employment Advisory Council, The

Employers Group, the Michigan Manufacturers Associa-

tion, the Newspaper Association of America, and the

Newspaper Personnel Relations Association respectfully

move this Court for leave to file the accompanying brief

as amici curiae in support of the position of Respondent

in this case.

The written consent of Respondent Nashville Banner

Publishing Co. has been filed with the Clerk of the Court.

Although Respondent granted consent to five amicus

curiae briefs supporting Petitioner’s position, Petitioner

has not responded to our written request to file this brief.

In support of their motion, the amici by the following

show that this brief brings relevant matters to the atten-

tion of the Court that have not already been brought to

its attention by the parties.

1. The five amici herein are associations representing

private sector employers firmly committed to the principles

of nondiscrimination and equal employment opportunity.

2. The Equal Employment Advisory Council (EEAC)

is a voluntary association of nearly 300 private sector

employers organized in 1976 to promote sound approaches

to the elimination of employment discrimination. EEAC’s

directors and officers include many of industry’s leading

experts in the field of equal employment opportunity.

Their combined experience gives the Council a unique

depth of understanding of the practical, as well as legal,

considerations relevant to the proper interpretation and

application of equal employment policies and require-

ments.

3. The Employers Group, formerly known as the

Merchants & Manufacturers Association, is the largest as-

sociation of California employers, with over 5,000 em-

ployer members employing an aggregate of more than 2.5

million California employees.

4. The Michigan Manufacturers Association is a busi-

ness association composed of private Michigan employers,

organized and existing to study matters of general interest

to its members, to promote the interests of Michigan em-

ployers and of the public generally in the proper admin-

istration of laws relating to its members, and to otherwise

promote the general business and economic welfare of

the State of Michigan.

5. The Newspaper Association of America is a non-

profit corporation serving approximately 1,350 newspapers

in the United States and Canada.

6. The Newspaper Personnel Relations Association

(NPRA) is a non-profit professional association of ap-

proximately 370 human resource professionals represent-

ing the interests of more than 1,000 daily newspapers na-

tionwide. NPRA is a professional emphasis group of the

Society for Human Resource Management, which has a

membership of more than 60,000 human resource pro-

fessionals nationwide.

7. All of the amici’s members, and the constituents of

EEAC’s association members, are employers subject to

the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seg. (ADEA), as well as other equal employ-

ment statutes and regulations. As employers, and as

potential respondents to ADEA charges and other em-

ployment-related claims, the amici’s members are inter-

ested in whether employees who falsify their credentials

before being hired, or engage in active misconduct after

being hired, should have their claims of employment dis-

crimination dismissed at summary judgment or be able to

recover any remedy.

. 8. Thus, the issue presented is extremely important to

the nationwide constituencies that the amici represent.

The Sixth Circuit below, applying the “after-acquired evi-

dence doctrine,” affirmed summary judgment in favor of

Respondent because discovery revealed that Petitioner, a

confidential secretary to the Banner’s comptroller, had,

without approval, copied, removed, and disseminated nu-

merous confidential documents.

9. The amici, have an interest in, and a familiarity

with, the issues and policy concerns presented to the

Court in this case. As employers, the constituent mem-

bers that the amici represent have been or are likely to

be involved in litigation where a claimant has been shown

to have been engaged in misconduct that either would

have resulted in the claimant’s not being hired or in being

discharged pursuant to established company policy.

Numerous lower courts either have dismissed such suits

or have greatly limited the remedy available to the

claimant. The legal and policy arguments supporting

these decisions are set forth in the attached brief.

10. Indeed, because of their significant experience in

these matters, the amici are uniquely situated to brief

the Court on the relevant concerns of the business com-

munity and the significance of this case to employers

generally, as opposed to its significance to the immediate

parties. The amici also rely on this experience and ex-

pertise to respond to the arguments of several amici

and the Solicitor General whose briefs support Petitioner,

particularly their unsupported arguments that the after-

acquired evidence doctrine will undercut the commitment

of employers to eliminate unlawful workforce discrimina-

tion.

WHEREFORE, for the reasons stated, the Equal

Employment Advisory Council, The Employers Group,

the Michigan Manufacturers Association, the Newspaper

Association of America, and the Newspaper Personnel

Relations Association respectfully request that the Court

grant them leave to file the accompanying brief as amici

curiae.

Respectfully submitted,

ANN ELIZABETH REESMAN

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Counsel of Record for Amici Curiae

Equal Employment Advisory

Council, The Employers Group.

Michigan Manufacturers

Association, Newspaper

Association of America,

Newspaper Personne! Relations

September 8, 1994 Association

TABLE OF CONTENTS

TABLE OF AUTHORITIIG ..............-.-22:--.<:ccceinerorecereses

INTEREST OF THE AMICI CURIAE .................-0----+-

STATEMENT OF THE CASE ................-2--.--:c0seeeseeneeesees

SUMMARY OF ARGUMENT ...........20----.-.--cc-eecenosserestones

pS tt) sninieictheinnneuieeanesiannvitatiiinnnidianeiies

I. THE COURT SHOULD ADOPT A RULE, CON-

Il.

SISTENT WITH ITS DECISION IN MT.

HEALTHY SCHOOL DISTRICT BOARD OF

EDUCATION v. DOYLE, THAT BECAUSE

EVEN A SUCCESSFUL DISCRIMINATION

CLAIMANT MAY NOT BE PLACED IN A

BETTER POSITION THAN IF THE DISCRIM-

INATION HAD NOT OCCURRED, AN EM-

PLOYEE WHO WOULD HAVE BEEN DIS-

CHARGED FOR REASONS OTHER THAN A

DISCRIMINATORY REASON IS NOT EN-

TITLED TO A REMEDY, EVEN THOUGH

THE ALTERNATIVE REASON CAME TO

LIGHT AFTER THE ALLEGED DISCRIM-

INATORY DECISION. THE SUMMARY

JUDGMENT RENDERED BELOW SHOULD

BE AFFIRMED .............. piacatinblona saahiscninpeibieshinbaiaen

A. Even a Successful Discrimination Claimant

May Not Properly Be Placed in a Better

Position Than If the Discrimination Had Not

B. The Mt. Healthy Principle Is Applicable Even

Though the Outcome Depends Upon After-

Acquired Evidence ...................------------- aera

AFTER-ACQUIRED EVIDENCE THAT

WOULD HAVE LED TO A CLAIMANT'S

DISCHARGE IN ANY EVENT BARS ANY

(i)

11

17

CONCLUSION

ii

TABLE OF CONTENTS—Continued

. Applicability of the After-Acquired Evidence

Doctrine Is Strictly Limited to Cases in

Which the Employer Can Show That It

Would Have Taken Justifiable Adverse Ac-

tion Had It Known of the Misconduct ............

. The After-Acquired Evidence Doctrine Is

Consistent With the Court’s Recent Decision

in ABF Freight System ................................

. The Equal Employment Opportunity Com-

mission Also Has Espoused the Doctrine,

But Then Reversed Its Position

. Public Policy Supports Application of the

After-Acquired Evidence Doctrine as a Bar

| TEES IE REBT ALO

Page

17

21

24

29

iii

TABLE OF AUTHORITIES

CASES

ABF Freight System v. National Labor Relations

Board, 114 8. Ct. 885 (1994) .............................00

Agbor v. Mountxin Fuel Supp. Co., 810 F. Supp.

i ME IEEE ssccrechacnuintisnssencctcenticenmeennmianth

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

I i ac al i

Anderson v. Martin Brower Co., No. 93-2333-JWL,

1994 U.S. Dist. LEXIS 9196 (D. Kan. 1994) .......

Astoria Federal Savings & Loan Association »v.

Solimino, 501 U.S. 104 (1991) —.00000000-

Baab v. AMR Services Corp., 811 F. Supp. 1246

Oa lc cetaeealin

Benitez v. Portland General Electric, 58 Fair Empl.

Prac. Cas. (BNA) 1130 (D. Or. 1992) —...............

Benson v. Quanex Corp., 58 Fair Empl. Prac. Cas.

(BNA) 7438 (E.D. Mich. 1992) ............................

Bonger v. American Water Works, 789 F. Supp.

BE CI. COR TD te ccvinsccssceneinsensnsonsossosensoonssienne

Chrysler Corporation, et al. v. Smolarek, et al., 879

F.2d 1326 (6th Cir.), cert. denied, 493 U.S. 992

eg RSE RITE Es FES ACO BO ee ORR Ce

Churchman v. Pinkerton’s, 756 F. Supp. 515 (D.

ts IED. Sencusustiseddumucsbios AR TAPS Ee Fon Te renee ree

Equal Employment Opportunity Commission v.

Farmer Brothers Company, Nos. 92-56012, 92-

56123, 1994 U.S. App. LEXIS 19788 (9th Cir.

RR RIEICSE Sere: CORINRE O NE SIAL al set haan Un Se eS

General Electric Co. v. Gilbert, 429 U.S. 125

ANE A RE ae ee SARIN EO olen Se a

General Motors Corporation v. Romein and Ford

Motor Company v. Gonzales, 112 S. Ct. 1105

ARERR tate NO ee ee Oe TE OR

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

as

Grzenia v. Interspec, No. 91 C 20, 1991 U.S. Dist.

LEXIS 15093 (N.D. Ill. Oct. 21, 1991) —..............

Hazen Paper Co. v. Biggins, 113 S. Ct. 1701

(1993) ...... SE TINAP RITA SOR nT ET eae A

Page

21-24

14

iv

TABLE OF AUTHORITIES—Continued

Page

Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165.. 2

Johnson v. Honeywell Information Systems, Inc.,

955 F.2d 409 (6th Cir. 1992) ..................... 7,8, 13, 16, 18

Kravit v. Delta Airlines, 60 Fair Empl. Prac. Cas.

(BNA) 994 (E.D.N.Y. 1992) .. ; 14

Kristufck v. Hussmann Foodservi ice e Co., ‘985 F.2d

ea I, 7 ecumestnendgnaons 16, 18, 23

Livingston v. Sorq Printing Co., 49 Fair Empl.

Prac. Cas. (BNA) 1417 (S.D.N.Y. 1989) -.......-.... 15

Merdel!l v. Herleusville Life Insurance Company,

No. 93-3258, 1994 U.S. App. LEXIS 19884 (3d

a a ekicecees 14, 16,17

Massey v. Trump's Castle Hotel & Casino, 828 F.

Sr SI <I aiamnnsadaneai 15

Mathis v. Boeing Military Airplane Co., 719 F.

Rene renre 25

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

441 (10th Cir. 1992), aff'd sub nom. ARF

Freight System v. National Labor Relations

Board, 134 B. Ce. BEG. CIGDE) .n.--ccccnccierecsscccveesessene: 22

Milliqan-Tensen v. Michigan Technological Uni-

versity, YT5 F.2d 302 (6th Cir. 1992), cert. dis-

meteoed, 114 &. Cb. SB (IDGB) .......cncc00.....ccccnceneesesees. 6, 7,13

Moodie v. Federal Reserve Bank of New York, 831

A eG RN A Denon 15

Mt. Healthy Sch. District Board of Educetion v.

Se. y | eee 7-12, 14, 16

Newport News Shipbuilding and Dry Dock Co., 674

ey EI SR pene me 20

O’Day v. McDonnell Douglas Helicopter Co., 784

F. Supp. 1466 (D. Ariz. 1992), enpeal docketed,

Ne. G-aeene Coen Cir.) .............:......0......,.. ad 13, 16

O'Driscoll v. Hercules, Inc., 12 F.3d 176 (10th Cir.

1994), petition for cert. filed, 62 U.S.L.W. 3757

(U.S. April 1, 1994) (No. 93-1728) ....0......... ...6, 18, 18

O'Driscoll ». Tiercules, Inc.. TA5 F. Supp. 656 (D.

Utah 1990, aff'd, 12 F.3d 176 (10th Cir. 1994),

petition for cert. filed, 62 U.S.L.W. 3757 (U.S.

April 1, 1994) (No. 98-1728) .........................1....... 20

v

TABLE OF AUTHORITIES—Continued

Page

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).. 12,

15-17

Public Employees Ret. System of Ohio v. Betts, 492

8 ES REE Nes core 2

Punahele v. United Air Lines, 756 F. Supp. 487

RE I TEE ccesdinciecicnithieticatiicsensiiiaciaeeaieieiaen ti 16, 19 -

Redd v. Fisher Controls, No. 92-8702 (5th Cir.

August 29, 1994) _..... apantgnaieciaianssiéiiiamdadaddadmanssiitines 2

Rich v. Westland Printers, 62 Fair Empl. Prac.

Cas. (BNA) 379 (D. Md. 1998) .........:.:..:.............. 14

Ruggles v. California Polytechnic State University,

SOE WM TES COE Cir, BODE) cincccccccccccccectscccasesccesss 7,10

Russell v. Microdyne Corp., 830 F. Supp. 395 (E.D.

Va. 1993), appeal docketed, Nos. 93-1895 and

I I 14

Smallwood v. United Air Lines, Inc., 661 F.2d 303

I I UN ia i, 11

Smallwood v. United Air Lines, Inc., 728 F.2d 614

(4th Cir.), cert. denied, 469 U.S. 832 (1984)... 6,7,

— v. Norfolk & Western Railway Co., 368 U.S.

Or I aa a 20

Poors v. State Farm Mutual Automobile Ins.

Co., 864 F.2d 700 (10th Cir. 1988) _...... 6-8, 13-15, 25-26

Sweeney v. U-Haul Co. of Chicago, 55 Fair Empl.

Prac. Cas. (BNA) 1257 (N.D. Ill. 1991) ........... 15

Trans World Airlines, Inc. v. Thurston, 469 U.S.

SR: 2

Tuohey v. Clark Oil & Refining Corp., No. 92 C

8358, 194 U.S. Dist. LEXIS 8102 (N.D. II.

i 19

Wallace v. Dunn Construction Co., Inc., 968 F.2d

1174 (11th Cir. 1992) . saeaicbats 6, 14, 16-17

Washington v. Lake County, ‘Miineis, 969 F.2d 250

t § se ae es 6-7, 13, 19, 20

Welch v. Liberty Machine Works, 23 F.3d 1403

I I i 13,19

vi

TABLE OF AUTHORITIES—Continued

DOCKETED CASES

Manard v. Fort Howard Corp., No. 92-7100 (10th

ON FEO SESS iene enna eRe Ona ee

O’Day v. McDonnell Douglas Helicopter Co., No.

I PE ER en a

Russell v. Microdyne Corporation, Nos. 93-1895

I I ssc ceusigsigsiesesbemeniaivesis

Schnidrig v. Columbia Machine, Inc., No. 93-35770

I IN iti cai lesiees dea tilcelibsaieninipesiinidesalideen

STATUTES

Age Discrimination in Employment Act, 29 U.S.C.

ANI 1 deitnen aerticlisctdbtammnneniaiiigaabasumnsandunisnglitt

Americans with Disabilities Act, 29 U.S.C. § 12101

OF , oiicises inciticsieeadiculanitintinidnntcudadinhshadeatimauiaiinaidiiitindiins .

Federal Employers’ Liability Act, 45 U.S.C. § 51.

Longshoremen’s and Harbor Workers’ Compensa-

eS Eee as aoe

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

I DIOS acicepntechecieleccoisamsesinnes 9, 16, 18, 20, 24,

ee OND wiiccetimiesschcticitictaninnetemeen

MISCELLANEOUS

-Policy Guidance on Recent Developments in Dis-

parate Treatment Theory, N-915.068, EEOC

Compl. Man. (BNA) N:2119 (Equal Employ-

ment Opportunity Commission, 1991) -................

Revised Enforcement Guidance on Recent Develop-

ments in Disparate Treatment Theory, N-914.002,

EEOC Compl. Man. (BNA) N:2135 (Equal Em-

ployment Opportunity Commission, 1992) .......

Page

20

26, 27

25-26

24, 26

In THE

Signe Court of the United States

OCTOBER TERM, 1994

No. 93-1543

CHRISTINE MCKENNON,

. Petitioner,

NASHVILLE BANNER PUBLISHING Co.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

THE EMPLOYERS GROUP, THE MICHIGAN

MANUFACTURERS ASSOCIATION, THE NEWSPAPER

ASSOCIATION OF AMERICA, AND THE NEWSPAPER

PERSONNEL RELATIONS ASSOCIATION

IN SUPPORT OF RESPONDENT

The Equal Employment Advisory Council, The

Employers Group, the Michigan Manufacturers Associa-

tion, the Newspaper Association of America and the News-

paper Personnel Relations Association respectfully submit

this brief amici curiae, contingent on the granting of the

accompanying motion for leave. The brief urges the Court

to affirm the decision below, and thus supports the position

of Respondent Nashville Banner Publishing Company

before this Court.

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (“EEAC”

or “Council”) is a voluntary association of employers

organized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its member-

ship includes over 290 major U.S. corporations, as well

as several associations which themselves have hundreds

of corporate members. EEAC’s directors and officers in

clude many of industry’s leading experts in the field of

equal employment opportunity. Their combined expe-

rience gives the Council a unique depth of understanding

of the practical, as well as legal, considerations relevant

to the proper interpretation and application of equal

employment policies and requirements. EEAC’s members

are firmly committed to the principles of nondiscrimina-

tion and equal employment opportunity.

Because of its interest in the application of the nation’s

civil rights laws, EEAC has, since its founding in 1976,

filed over 350 briefs as amicus curiae in cases before this

Court, the United States Circuit Courts of Appeals and

various state supreme courts. As part of this amicus

activity, EEAC has participated in numerous cases before

this Court involving the proper interpretation of the

ADEA.’ In addition, EEAC has filed briefs in several

cases before the Courts of Appeals involving the after-

acquired evidence doctrine.’

1E.g., Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)

(standard of proof for recovery of liquidated damages); Gilmer

v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (arbitra-

bility) ; Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 10!

(1991) (effect of state agency “no cause” finding); Public Em-

ployees Ret. Sys. of Ohio v. Betts, 492 U.S. 158 (1989) (application

to employee benefits); Hoffmann-La Roche, Inc. v. Sperling, 493

U.S. 165 (class actions); Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) (standard for liquidated damages).

2In addition to filing a brief before the Sixth Circuit below in

the instant case, EEAC has filed briefs in Redd v. Fisher Controls,

No. 92-8702 (5th Cir. August 29, 1994) (issue not reached) ;

3

The Employers Group, formerly known as the Mer-

chants & Manufacturers Association, is the largest asso-

ciation of California employers, with over 5,000 employer

members employing an aggregate of more than 2.5 million

California employees.

The Michigan Manufacturers Association (MMA) is

a business association composed of private Michigan

employers, organized and existing to study matters of

gencral interest to its members, to promote the interests

of Michigan employers and of the public generally in the

proper administration of laws relating to its members, and

to otherwise promote the general business and economic

welfare of the State of Michigan. A significant aspect of

MMA’s activities is representing the interests of its

member-employers in employment and labor relations

matters before the courts, Congress, Michigan Legislature

and state agencies... MMA appears before this Court as

a representative of more than 2,900 private business con-

cerns employing over one million employees, many of

whom are substantially affected by the issues in the case

presently before the Court. MMA represents the interests

of its members through various means, including through

appearances as amicus curiae in cases of great concern.

MMaA also is an employer and has an interest in this case

Manard v. Fort Howard Corp., No. 92-7100 (10th Cir.) (decision

pending); O’Day v. McDonnell Douglas Helicopter Co., No. 92-

15625 (9th Cir.) (decision pending) ; Russell v. Microdyne Corpora-

tion, Nos. 93-1895 and 93-2078 (4th Cir.) (decision pending); and

Schnidrig v. Columbia Machine, Inc., No. 93-35770 (9th Cir.) (deci-

sion pending).

3 MMA has filed briefs with this Court in Chrysler Corporation,

et al. v. Smolarek, et al., 879 F.2d 1326 (6th Cir.), cert. denied,

493 U.S. 992 (1989) (whether §301 of the Labor Management

Relations Act preempted claims under. Michigan’s Handicappers’

Civil Rights Act) and General Motors Corporation v. Romein and

Ford Motor Company v. Gonzales, 112 S. Ct. 1105 (1992) (retro-

active application of an amendment to the Workers’ Disability

Compensation Act in Michigan).

4

both as an employer and as a representative of employers

affected by these issues.

The Newspaper Association of America is a non-profit

corporation serving approximately 1,350 newspapers in

the United States and Canada. The majority of these

members are daily newspapers that account for more than

85 percent of the daily circulation in the United States.

Many non-daily newspapers also are members of NAA®.

The Newspaper Personnel Relations Association is a

non-profit professional association of approximately 370

human resource professionals representing the interests of

more than 1,000 daily newspapers nationwide and is a

professional emphasis group of the Society for Human

Resource Management, with a membership of more than

60,000 human resource professionals nationwide.

All of the amici’s members, and the constituents of

EEAC’s association members, are employers subject to

the Age Discrimination in Employment Act, 29 U.S.C.

§$ 621 et seq. (ADEA), as well as other equal employ-

ment statutes and regulations. As employers, and as po-

tential respondents to ADEA charges and other employ-

ment-related claims, the amici’s members are interested in

whether employees who engage in active misconduct can

recover on such claims.

Thus, the issue presented is extremely important to the

nationwide constituencies that the amici represent. Mrs.

McKennon claims that Nashville Banner Publishing Com-

pany (“the Banner”) discharged her because of her age

in violation of the ADEA. The district court granted

summary judgment in favor of the Banner, because dis-

covery revealed that Mrs. McKennon, a confidential secre-

tary to the Banner’s comptroller, had, without approval,

copied, removed and disseminated numerous confidential

documents. The Sixth Circuit dffirmed. Unrebutted evi-

dence showed that Mrs. McKennon would have been fired

for her misconduct had the Banner known of it before

5

her termination. The courts below ruled correctly that the

after-acquired evidence against Mrs. McKennon precluded

any recovery on her discrimination claim.

Thus, the amici have an interest in, and a familiarity

with, the issues and policy concerns presented to the

Court in this case. Indeed, because of their significant

“experience in these matters, the amici are uniquely situated

to brief this Court on the importance of the issues beyond

the immediate concerns of the parties to the case.

STATEMENT OF THE CASE

The Nashville Banner Publishing Company (“the Ban-

ner”) employed Christine McKennon primarily as a secre-

tary. Pet. App. 2a.‘ Beginning in 1989, Mrs. McKennon

was a confidential secretary to the Comptroller, where

she was privy to numerous confidential matters, including

personnel and financial files and documents. Pet. App. 11a.

Mrs. McKennon’s employment was terminated in 1990,

according to the Banner, as part of a workforce reduction.

Id. Mrs. McKennon, then age 62, filed suit against the

Banner under the Age Discrimination in Employment Act,

29 U.S.C. §$ 621 et seg. (ADEA), and a similar state

statute, claiming that her termination was because of her

age. Id.

During discovery in the case, the Banner learned that,

during her tenure as the Comptroller’s secretary, Mrs.

McKennon had copied and removed numerous confidential

documents, including a payroll ledger, a current profit and

loss statement, and several notes and memoranda. /d.

She had taken the documents home and shown them to

4The decision of the Sixth Circuit below is reported at 9 F.3d

539, and is reproduced at pages la-9a of the Appendix to the

Petition for a Writ of Certiorari as Pet. App. la-9a. The decision

of the U.S. District Court for the Middle District of Tennessee,

Nashville Division, is reported at 797 F. Supp. 604, and is repro-

duced at pages 10a-18a of the Appendix. They are cited herein as

Pet. App. .

a

her husband. /d. Mrs. McKennon contends that “she

copied and removed the documents for her ‘insurance’ and

‘protection, ‘in an attempt to learn information regarding

my job security concerns.’” Pet. App. 12a.

The district court found that “Mrs. McKennon’s copy-

ing and removal of the confidential documents constituted

misconduct, which was in violation of her obligations as

a confidential secretary.” Pet. App. 13a. Undisputed evi-

dence, an affidavit from the Banner’s president, shows that

Mrs. McKennon would have been terminated immediately

had the Banner learned of her misconduct prior to her

discharge. Pet. App..2a-3a.

The “after-acquired evidence doctrine,” adopted by the

Sixth, Seventh, and Tenth Circuit Courts of Appeals, bars,

in appropriate cases, recovery by a discrimination claim-

ant who engages in conduct that would have resulted in

dismissal. Milligan-Jensen v. Michigan Technological Uni-

versity, 975 F.2d 302 (6th-Cir. 1992), cert. dismissed,

114 S. Ct. 22 (1993); Washington v. Lake County, Illi-

nois, 969 F.2d 250 (7th Cir. 1992); O'Driscoll v. Hercu-

les, Inc., 12 F.3d 176 (10th Cir. 1994), petition for cert.

filed, 62 U.S.L.W. 3757 (U.S. April 1, 1994) (No. 93-

1728); Summers v. State Farm Mut. Auto Ins. Co., 864

F.2d 700 (10th Cir: 1988).° The district court granted

the Banner’s motion for summary judgment based on the

after-acquired evidence doctrine, Pet. App. 18a, and the

Sixth Circuit affirmed. Pet. App. 9a. This Court has

granted McKennon’s petition for a writ of certiorari to

the Sixth Circuit.

5 See also Smallwood v. United Air Lines, Inc., 728 F.2d 614

(4th Cir.), cert. denied, 469 U.S. 832 (1984) (disqualification for

employment and thus for backpay can be established by after-

acquired evidence). But see Wallace v. Dunn Construction Co.,

Inc., 968 F.2d 1174 (11th Cir. 1992) (holding that after-acquired

evidence is relevant to the relief due a successful discrimination

plaintiff although declining to impose an absolute bar).

7

SUMMARY OF ARGUMENT

Where an employer shows that a discrimination plaintiff

would have been terminated for on-the-job misconduct,

there can be no recovery on the discrimination claim, even

though the evidence of misconduct was acquired after the

alleged discriminatory act. A discrimination claimant is

not entitled to be placed in a better position than if the

discrimination had not occurrred. Mt. Healthy Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977):

Ruggles v. California Polytechnic State Univ.,.797 F.2d

782, 786 (9th Cir. 1986). Thus, where the claimant

would have been discharged regardless of whether or not

discriminatory conduct occurred, the claimant is not en-

titled to a remedy, and summary judgment is appropriate.

The Mt. Healthy analysis applies even though the in-

formation that would have led to termination was acquired

by the employer after the alleged discrimination took

place. Smallwood v. United Air Lines, 728 F.2d 614,

623 (4th Cir.), cert. denied, 469 U.S. 832 (1984). Ac-

cordingly, if an employer can show that an employee

would have been fired had the employer known of his

on-the-job misconduct, the employee cannot recover on a

discrimination claim, and summary judgment is appropri-

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

F.2d 700 (10th Cir. 1988); Johnson v. Honeywell Info.

Sys., Inc., 955 F.2d 409 (6th Cir. 1992); Milligan-Jensen

v. Michigan Tech., 975 F.2d 302 (6th Cir. 1992), cert.

dismissed, 114 §. Ct. 22 (1993); Washington v. Lake

County, Ill., 969 F.2d 250 (7th Cir. 1992). Any other

result, such as awarding backpay for a period of time

before the wrongdoing was discovered, would only reward

the plaintiff for successfully concealing the misconduct

from the employer.

The arguments advanced by the Solicitor General

should be given no deference and should not be adonted

by this Court. The government has been inconsistent; it

previously embraced the after-acquired evidence doctrine

8

as barring all remedies in appropriate cases. Also, the

policy advocated by the agency in effect rewards those

who successfully conceal their misconduct.

ARGUMENT

I. THE COURT SHOULD ADOPT A RULE, CONSIST-

ENT WITH ITS DECISION IN MT. HEALTHY

SCHOOL DISTRICT BOARD OF EDUCATION v.

DOYLE, THAT BECAUSE EVEN A SUCCESSFUL

DISCRIMINATION CLAIMANT MAY NOT BE

PLACED IN A BETTER POSITION THAN IF TIE

DISCRIMINATION HAD NOT OCCURRED, AN

EMPLOYEE WHO WOULD HAVE BEEN DIs-

CHARGED FOR REASONS OTHER THAN A DIS-

CRIMINATORY REASON IS NOT ENTITLED TO

A REMEDY, EVEN THOUGH THE ALTERNATIVE

REASON CAME TO LIGHT AFTER THE ALLEGED

DISCRIMINATORY DECISION. THE SUMMARY

JUDGMENT RENDERED BELOW SHOULD BE

AFFIRMED.

As shown below, the Sixth Circuit correctly granted

summary judgment because the unrebutted evidence that

the Banner would have terminated Mrs. McKennon had it

known of her misconduct compelled judgment in favor of

the Banner on Mrs. McKennon’s discrimination claim.

Applying its prior decision in Johnson v. Honeywell Info.

Sys., Inc., 955 F.2d 409 (6th Cir. 1992), which relied

on Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d

700 (10th Cir. 1988), which in turn relied on this Court’s

decision in Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977), the Sixth Circuit reached the cor-

rect result-—that because she would have been fired had

the Banner known of her theft and dissemination of sensi-

tive company documents, Mrs. McKennon takes nothing

on her discrimination claim. This Court’s clear precedent

requires affirmance of the decision below.

9

A. Even a Successful Discrimination Claimant May

Not Properly Be Placed in a Better Position Than

If the Discrimination Had Not Occurred.

No matter what the employment action in question, the

ultimate aim of an employment discrimination remedy

under either Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seqg., which prohibits discrimination in

employment on the basis of race, sex, color, religion or

national origin,” the Age Discrimination in Employment

Act of 1967, 29 U.S.C. §$ 621 ef seg., or the Americans

with Disabilities Act, 29 U.S.C. § 12101 ef seq., is to

place the plaintiff in the position he or she would have

been in had the employer not engaged in any discrimina-

tory conduct. Therefore, where the employer can show

that it would have taken the same action, even in the

absence of any discrimination, no remedies are available

and summary judgment is appropriate.

This Court’s Mt. Healthy decision established the frame-

work for this result. In Mt. Healthy, a school district

refused to renew a teacher’s contract because he had told

a local radio station about a new teacher dress code and

because of an incident in which he had made obscene

gestures. Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 282-83 (1977). The lower court concluded

that the statement to the radio station was protected by

the First and Fourteenth Amendments and ordered re-

instatement and backpay. This Court reversed, holding

that even if the protected conduct played a “substantial

part” in the board’s decision, the teacher stili may not be

entitled to a remedy. /d. at 285. As the Court explained:

A rule of causation which focuses solely on whether

protected conduct played a part, “substantial” or

otherwise, in a decision not to rehire, could place an

employee in a better position as a result of the exer-

cise of constitutionally protected conduct than he

® 42 U.S.C. § 2000e-2 (a).

10

would have occupied had he done nothing .... The

constitutional principle at stake is sufficiently vindi-

cated if such an employee is placed in no worse a

position than if he had not engaged in the conduct.

A borderline or marginal candidate should not have

the employment question resolved against him be-

cause of constitutionally protected conduct. But, that

same candidate ought not to be able, by engaging in

such conduct, to prevent his employer from assessing

his performance record and reaching a decision noi

to rehire on the basis of that record, simply because

the protected conduct makes the employer more cer-

tain of the correctness of its decision.

Id. at 285-86. In so holding, the Court established the

general principle, applicable in several contexts, that if

the outcome would have been the same regardless of

presence or absence of discriminatory conduct, the plain-

tiff needs no remedial action to place him in the position

he would have been in had no discriminatory conduct

occurred.

The Mt. Healthy principle is equally applicable to em-

ployment discrimination cases. Ruggles v. California Poly-

technic State Univ., 797 F.2d 782, 786 (9th Cir. 1986).

“Engaging in protected activities or protected conduct

should not put the plaintiff in a better position than she

would be in otherwise.” Jd. (citing Mt. Healthy, 42°

U.S. at 285-87). Accordingly, even if a plaintiff has suc-

ceeded in raising a presumption that an adverse employ-

ment action was taken for a discriminatory reason, “[t]he

defendant may rebut this presumption by showing by a

preponderance of the evidence that the adverse action

would have been taken even in the absence of discrimina-

tory or retaliatory intent.” J/d. (citing Mt. Healthy, 429

U.S. at 287).

11

B. The Mt. Healthy Principle Is Applicable Even

Though the Outcome Depends Upon After-acquired

Evidence.

In Smallwood v. United Air Lines, 728 F.2d 614 (4th

Cir.), cert. denied, 469 U.S. 832 (1984), the Fourth

Circuit clarified that the Mt. Healthy analysis applies

whether or not the information that would have led to

the same result was actually in the employer’s possession

at the time of the alleged discriminatory action. Small-

wood involved a pilot who was rejected for employment

because he was 48 years of age when the company only

processed applications of those 35 and under. Although

the Fourth Circuit rejected United’s defense that age was

a bona fide occupational qualification,’ it concluded that -

United would not have hired Smallwood even absent age

discrimination, and thus dismissed Smallwood’s claim for

processing of his application and for backpay. Smallwood,

728 F.2d at 627.

The evidence that would have led United not to hire

Smallwood was not in United’s possession at the time it

rejected his application. United learned later that Small-

wood had been terminated by his previous employer for

serious misconduct. /d. at 621-22." The district court,

however, had given this after-acquired evidence short

shrift, expressing doubt that it was admissible at all and

finding a “duty . . . to view it with skepticism.” 7d. at 623.

Criticizing the district court’s dismissal of the after-

acguired evidence as “a reason that is completely contrary

to the bellwether case in this area of Mt. Healthy,” id., the

Fourth Circuit concluded that “[i]n short, the Supreme

7 Smallwood v. United Air Lines, 661 F.2d 303 (4th Cir. 1981).

* The report of the Referee in Smallwood’s discharge proceeding

indicated that he had (1) provided false information to collect

moving expenses to which he was not actually entitled and (2)

impermissibly charged airfare for his children to his company

credit card. 728 F.2d at 620-22.

12

Court instructed district courts in cases where the issue is

such as here that they ‘should’ proceed to make the ‘after-

the-fact rationale’ which the district court in this case

deprecates.” Jd. (emphasis in original). Accordingly, the

court ruled:

the disqualification for employment and thus for back-

pay, based on a “recreating [of] the circumstances

that would have existed but for the illegal discrimi-

nation” may be established by evidence which had

not been developed at the time the claimant was

denied employment... .

Id. at 624 (quoting Gibson v. Mohawk Rubber Co., 695

F.2d 1093, 1097 (8th Cir. 1982)). Based on United's

unrebutted evidence that it would not have hired Small-

wood had it known the truth, the Fourth Circuit dismissed

the case. Id. at 627.° Accordingly, using after-acquired

evidence to reconstruct the situation is consistent with

Mt. Healthy’s mandate that the plaintiff be placed in no

better position than if the alleged unlawful-action had not

occurred. “[T]here is nothing unusual in a court resolving

what a party to litigation would or should have done

under certain circumstances. It is done repeatedly in tort

cases.” Smallwood, 728 F.2d at 623.

Based on this reasoning, several Courts of Appeals have

concluded that after-acquired evidence of on-the-job mis-

conduct bars all relief under the anti-discrimination stat-

utes. The “after-acquired evidence doctrine,” as it is now

known, first took shape in a case factually similar to this,

wherein the Tenth Circuit in 1988 applied Mt. Healthy

and Smallwood to conclude that after-acquired evidence of

*The Solicitor General incorrectly argues that the employer’s

burden of proof in these cases is governed by the “clear and con-

vincing evidence” standard. Brief of Solicitor General at 24 and

n.16. This Court has rejected the use of that standard for most

civil litigation and made clear that “preponderance of the evi-

dence” is the appropriate test. Price Waterhouse v. Hopkins, 490

U.S. 228, 252-255 (1989).

13

on-the-job misconduct that would have led to the plaintiff's

termination bars any relief. Summers v. State Farm Mut. -

Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988).

Summers, who was terminated from his position for

falsifying records and poor performance, charged that he

was fired because of his age and religion. Jd. at 702.

Summers had been warned repeatedly that falsification

of documents would result in discharge. During trial

preparation in the case, State Farm learned that Summers

had falsified records in numerous other instances. Id. at

703. The court ruled that “while such after-acquired

evidence cannot be said to have been a ‘cause’ for

Summers’ discharge in 1982, it is relevant to Summers’

claim of ‘injury,’ and does itself preclude the grant of any

present relief or remedy to Summers.” Jd. at 708.

Numerous district courts also have denied relief based*on

after-acquired evidence of on-the job misconduct.”

The after-acquired evidence doctrine similarly has been

adopted for use in cases involving “résumé fraud,” where

the plaintiff has made a material misstatement or omis-

sion on his or her job application documents. See, e.2.,

Welch v. Liberty Machine Works, 23 F.3d 1403 (8th

Cir. 1994) (adopting doctrine but concluding that em-

ployer had not sufficiently established that it would not

have hired the employee had it known of the misrepre-

sentation); O'Driscoll v. Hercules, 12 F.3d 176 (10th

Cir. 1994), petition for cert. filed, 62 U.S.L.W. 3757

(U.S. April 4, 1994) (No. 93-1728); Johnson v. Honey-

well Info. Sys., Inc., 955 F.2d 409 (6th Cir. 1992);

Milligan-Jensen v. Michigan Technological Univ., 975

F.2d 302 (6th Cir. 1992), cert. dismissed, 114 S. Ct. 22

(1993); Washington v. Lake County, IIll., 969 F.2d 250

(7th Cir. 1992) (framing issue as whether the plaintiff

0 See, e.g., O'Day v. McDonneli Douglas Helicopter Co., 784

F. Supp. 1466 (D. Ariz. 1992), appeal docketed, No. 92-15625 (9th

Cir.); Bonger v. American Water Works, 789 F. Supp. 1102 (D.

Colo. 1992).

14

would have been fired, not whether he would have been

hired, had the employer known of the falsification).

Numerous district courts also have denied relief based on

Summers where the plaintiff provided false information

in the application process."*

'! Panels of the Third and Eleventh Circuits have taken a differ-

ent approach to application of the Mt. Healthy doctrine in a termi-

nation case where the after-acquired evidence was of falsified

information on the employment application. Mardell v. Harleysville

Life Insurance Company, No. 93-3258, 1994 U.S. App. LEXIS 19884

(3d Cir. 1994); Wallace v. Dunn Constr. Co., 968 F.2d 1174 (11th

Cir. 1992). Both of these courts agreed with Summers that after-

acquired evidence may be relevant to the remedies due the plaintiff

in a discrimination case. Nevertheless, they declined to hold that

the plaintiffs were entitled to no remedy, concluding instead that

a plaintiff should receive backpay where the employer would never

have discovered the plaintiff’s application fraud had it not surfaced

in the litigation. /d. ‘

As discussed below, this approach rewards a plaintiff who suc-

cessfully conceals fraud or misconduct, and indeed encourages

attempts to keep such conduct secret. As the dissenting judge in

Wallace pointed out, it enables the plaintiff to “take advantage of

her own misdeeds and convert her spurious statements into a

shield against the employer.” Jd. at 1189 (Godbold, J., dissenting).

For this reason, we believe that the Fourth, Sixth, Seventh, Eighth

and Tenth Circuits’ approach is the better one.

>"

2 See, e.g., Agbor v. Mountain Fuel Supp. Co., 810 F. Supp. 1247

(D. Utah 1993) (denying any remedy in case alleging discrimina-

tory denial of promotion); Rich v. Westland Printers, 62 Fair

Empl. Prac. Cas. (BNA) 379 (D. Md. 1993) (no relief in case

alleging discriminatory layoff, promotion and training); Russell v.

Microdyne Corp., 830 F. Supp. 305 (E.D. Va. 1993) (denying any

remedy in case alleging sex discrimination, sexual harassment and

retaliation), appeal docketed, Nos. 93-1895 and 93-2078 (4th Cir.) ;

Kravit v. Delta Airlines, 60 Fair Empl. Prac. Cas. (BNA) 994

(E.D.N.Y. 1992) (no state law remedy available for rejected ap-

plicant who falsified application); Benson v. Quanex Corp., 58

Fair Empl. Prac. Cas. (BNA) 743 (E.D. Mich. 1992) (granting

summary judgment in race discrimination and harassment case) :

Grzenia v. Interspec, No. 91 C 20, 1991 U.S. Dist. LEXIS 15093

(N.D. Il. Oct. 21, 1991) (granting summary judgment in ADEA

case); Churchman v. Pinkerton’s, 756 F. Supp. 515 (D. Kan. 1991)

15

The decision by a plurality of this Court in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), does not

preclude the use of after-acquired evidence. The Solic-

itor General’s brief argues that the plurality opinion in

Price Waterhouse imparted a temporal qualification to

mixed motive cases, stating that “An employer may not

- . . prevail in a mixed motives case by offering a legiti-

mate .and sufficient reason for its decision if that reason

did not motivate it at the time of the decision.” 490 USS.

at 252. But Price Waterhouse did not involve discovery

of earlier misdeeds by the plaintiff that would have justi-

fied her discharge if known to the employer had those

misdeeds not been concealed by the plaintiff.

The after-acquired evidence doctrine does not, more-

over, involve a mixed motive analysis, nor does it affect

a finding of liability. On the contrary, the after-acquired

evidence doctrine assumes liability on the part of the

employer, but recognizes that evidence discovered later

affects the remedies due to the employee if the employee’s

misconduct was sufficiently serious that the employee

would not have been hired, or would have been dis-

charged, had this misconduct been known by the em-

ployer. See Summers, 864 F.2d at 708 (“{W]hile such

after-acquired evidence cannot be said to have been a

(granting summary judgment where plaintiff claimed constructive

discharge as a result of sexual harassment) : Sweeney v. U-Haul

Co. of Chicago, 55 Fair Empl. Prac. Cas. (BNA) 1257 (N.D. Tl.

1991) (granting summary judgment in race discrimination case) ;

Livingston v. Sorg Printing Co., 49 Fair Empl. Prac. Cas. (BNA)

1417 (S.D.N.Y. 1989) (granting summary judgment against race

discrimination claimant). But see Massey v. Trump’s Castle Hotel

& Casino, 828 F. Supp. 314 (D.N.J. 1993) (adopting Eleventh Cir-

cuit rule and allowing retroactive but not prospective relief);

Moodie v. Federal Reserve Bank of New York, 831 F. Supp. 333

(S.D.N.Y. 1993) (denying summary judgment due to genuine is-

sues of material fact); Benitez v. Portland Gen. Electric, 5&8 Fair

Empl. Prac. Cas. (BNA) 1130 (D. Or. 1992) (refusing to follow

Summers at summary judgment stage due to lack of Ninth Circuit

precedent).

16

‘cause’ for Summers’ discharge in 1982, it is relevant to

Summers’ claim of ‘injury,’ and does itself preclude the

grant of any present relief to Summers.”). Where an

employee would have been terminated had the employer

known the truth, application of the Mt. Healthy principle

requires that the employee be placed in no better position

as a result of having brought a discrimination claim.”

Even if the Price Waterhouse rationale were applicable,

however, it would not help Petitioner. The decision was

a “mixed motive” case that dealt with the issue of liabil-

ity, holding that “once a plaintiff in a Title VII case

shows that [a protected characteristic] played a moti-

vating part in an employment decision, the defendant

may avoid a finding of liability only by proving that it

would have made the same decision even if it had not

allowed [the protected characteristic] to play such a role.”

Id. at 244-45. The after-acquired evidence doctrine deals

with whether a plaintiff who is shown to have committed

an offense that would have resulted in not being hired

or in being terminated can recover any remedy. See

O'Day, 784 F. Supp...at 1469 (D. Ariz. 1992) (distin-

guishing Price Waterhouse); Punahele yv. United Air

Lines, 756. F. Supp. 487, 490 (D. Colo. 1991) (same).

In either situation, the case should be dismissed if the

employer can prove it had a legitimate reason for dis-

charging the plaintiff. Where, as here, the plaintiff has

13 Indeed, even those courts that reject Summers agree that while

after-acquired evidence has no bearing on liability, it can be relied

upon to limit the available remedies. See Wallace v. Dunn Con-

struction Company, Inc., 968 F.2d 1174, 1181 (11th Cir. 1992);

Mardell v. Harleysville Life Insurance Company, No. 93-3258, 1994

U.S. App. LEXIS 19884, *54-*55 (3d Cir. 1994); Equal Employ-

ment Opportunity Commission v. Farmer Brothers Company, Nos.

92-56012, 92-56123, 1994 U.S. App. LEXIS 19788, *27-*28 (9th

Cir. 1994) (dicta).

17

engaged in misconduct that legitimately justifies termina-

tion, Price Waterhouse would support a decision to dis-

miss the case.

We urge, therefore, that this Court confirm the after-

acquired evidence doctrine as applied by the Fourth,

Sixth, Seventh, Eighth and Tenth Circuits.

II. AFTER-ACQUIRED EVIDENCE THAT WOULD

HAVE LED TO A CLAIMANT’S DISCHARGE IN

ANY EVENT B. tS ANY RECOVERY.

Petitioner: and the Solicitor General concede that after-

acquired evidence of on-the-job misconduct may limit the

relief available to the plaintiff in a discrimination case.

- Brief of Petitioner at 30; Brief of Solicitor General at 10.

The narrow issue presented in this case, therefore, is

whether after-acquired evidence of misconduct can bar all

remedies, as found by the Sixth Circuit below as well as

the Fourth, Seventh, Eighth and Tenth Circuits, or

whether it merely limits available remedies, as concluded

by the Eleventh Circuit in Wallace y. Dunn Construction

Co., Inc., 968 F.2d 1174 (11th Cir. 1992) and the Third

Circuit in Mardell v. Harleysville Life Insurance Com-

pany, No. 93-3258, 1994 U.S. App. LEXIS 19884 (3d

Cir. 1994).

A. Applicability of the After-Acquired Evidence Doc-

trine Is Strictly Limited to Cases in Which the

Employer Can Show That It Would Have Taken

Justifiable Adverse Action Had It Known of the

Misconduct.

The amici herein take special exception to the un-

supported assertion of the Solicitor General that employ-

ers will eschew compliance with the law and instead rely

on “the after-acquired evidence defense as an invitation

‘to establish ludicrously low thresholds for legitimate ter-

mination.’” Br. at 17 (quoting Wallace, 968 F.2d at

18

1180). The Solicitor General broadly, yet incorrectly,

asserts that “[e]mployers now routinely embark on ex-

tensive. post-discharge investigations designed to uncover

some theoretically valid post hoc justification for ter-

minating an employee who has brought a claim of un-

lawful discrimination, instead. of conducting the self-

examination and correction of unlawful practices that

Title VII and the ADEA are designed to require.” Br.

at 18. This attack unfairly characterizes the approach

taken by the circuits that have adopted the doctrine.

These circuits have established exacting standards that

must be met by the employer’s reason and its proof before

the doctrine is deemed to apply in a particular case.

After-acquired evidence will not bar recovery unless the

employer can show that it indeed would have fired the

employeé had it known of the misconduct earlier. The

Tenth Circuit has articulated the employer's burden of

proof as requiring a showing that “(1) the employer was

unaware of the misconduct when the employce was dis-

charged; (2) the misconduct would have justified dis-

charge; and (3) the employer would indeed have dis-

charged the employee, had the employer known of the

misconduct.” O’Driscoll v. Hercules, Inc., 12 F.3d 176,

179 (10th Cir. 1994), Dg for cert. filed, 62

U.S.L.W. 3757 (U.S. April 1, 1994) (No. 93-1728).

The Sixth Circuit below specifically held that the doctrine

applies “where the employer can show it would have

fired the employee on the basis of the evidence.” Pet.

App. 6a. In a prior case involving resume fraud, the

Sixth Circuit noted explicitly that “[bJecause [the em-

ployer] established that it would not have hired [the

plaintiff] and that it would have fired her had it become

aware of her resume fraud during her employment, [the

plaintiff] is entitled to no relief.” Johnson v. Legge ohn

Info. Sys., Inc., 955 F.2d 409, 415 (6th Cir. 1992).

Other circuits applying the doctrine are similarly strict.

In Kristufek v. Hussman Foodservice Co., 985 F.2d

19

364, (7th Cir. 1993), the Seventh Circuit concluded that

the doctrine did not apply because the employer was

unable to show that it would have terminated the plain-

tiff's employment had it known of his falsified application

information. Jd. at 370.'* See also Washington v. Lake

County, Illinois, 969 F.2d 250 (7th Cir. 1992) (holding

that in a “résumé fraud” case, it is insufficient for an

employer to show that the employee would not have been

hired, and specifically requiring a showing that the em-

ployee would have been fired had the falsification come

to light during his employment). Similarly, the Eighth

Circuit recently adopted the doctrine in Welch v. Liberty

Machine Works, Inc., 23 F.3d 1403 (8th Cir. 1994),

but declined to apply it, concluding that the employer’s

proof was insufficient.

Based on these standards, district courts facing this

issue are holding employers to strict proof that the after-

acquired evidence indeed would have resulted in dis-

charge. See, e.g., Tuohey v. Clark Oil & Refining Corp.,

No. 92 C 8358, 194 U.S. Dist. LEXIS 8102 (N.D. III.

1994) (denying summary judgment because employer

merely showed that it could have, not that it would have.

fired the plaintiff had it known of misstatements on his

employment application); Anderson vy. Martin Brower

Co., No. 93-2333-JWL, 1994 U.S. Dist. LEXIS 9196

(D. Kan. 1994) (denying summary judgment because

employer failed to present evidence allowing the court to

determine that employee engaged in. misconduct under

company policy); Punahele vy. United Air Lines, Inc..

756 F. Supp. 487 (D. Colo. 1991) (denying summary

judgment because material fact remained as to whether

employer followed its own procedures or would not have

hired plaintiff).

-—-— -—

'’ Even in this situation, however, the Seventh Circuit reduced

the award of backpay to eliminate any recovery for the period

after the falsification was discovered. Jd. at 371.

20

As one district court has noted, under Summers and

its progeny, “[a]n employer must show that misconduct

was such that an employee would have been terminated

had the employer known of the misconduct before or

at the time of termination. This requirement prevents an

employer from combing an employee's file after a dis-

criminatory termination to discover minor, trivial or tech-

nical infractions for use in a Summers defense.” O’Dris-

coll v. Hercules, Inc., 745 F. Supp. 656, 659 (D. Utah

1990 )(emphasis added) (quoted with approval in Wash-

ington v. Lake County, Ill., 969 F.2d 250, 255-56 (7th

Cir. 1992)), affd 12 F.3d 176 (10th Cir. 1994), peti-

tion for cert. filed, 62 U.S.L.W. 3757 (U.S. April 1,

1994) (No. 93-1728) ).*

Accordingly, because of this rigorous standard of proof,

the Solicitor General’s fear that employers will manufac-

ture minimal standards for discharge is unfounded. More-

over, no employer realistically could expect to run an

efficient workforce while routinely terminating employees

for ridiculous reasons. An employer who discharged

15 These standards provide “principled application of standards

consistent with . . . [legislative] purposes” (Albemarle Paper Co.

v. Moody, 422 U.S. 405, 417 (1975)) so as to justify a denial of

remedy and dismissal of this case. Contrary to the arguments of

the Petitioner, the Solicitor General and several supporting amici,

a remedy to a Title VII plaintiff wha has proven a violation is not

necessarily available in all cases. Rather, “backpay is not an auto-

matic or mandatory remedy; like all other remedies under the Act,

it is one which the courts ‘may’ invoke.” Albemarle Paper, 422

U.S. at 415. |

As Title VII’s remedial scheme is not mandatory, it is distin-

guishable from the Federal Employers’ Liability Act, 45 U.S.C.

§ 51, which provides that a common carrier by railroad “shall” be

liable for damages to persons injured while employed by such a

carrier. Still v. Norfolk & Western Railway Co., 368 U.S. 35

(1961), thus is not relevant to the instant case. Similarly inappli-

cable are the Longshoremen’s and. Harbor Workers’ Compensation

Act, 33 U.S.C. $904 (“Every employer ‘shall’ be liable. . .”) and

Newport News Shipbuilding and Dry Dock Co., 674 F.2d 248 (4th

Cir. 1982).

21

employees for only slight infractions soon would find

itself with no experienced workers, no productivity, no

profits, and an abundance of self-inflicted lawsuits. The

Solicitor General’s contention that employers nationwide

are attempting to operate this way because of the after-

acquired evidence doctrine is offensive and simply - with-

out any factual basis.

B. The After-Acquired Evidence Doctrine Is Consistent

With the Court’s Recent Decision in ABF Freight

System. ;

For a number of reasons, the after-acquired evidence

doctrine is consistent with the Court's recent decision in

ABF Freight System v. National Labor Relations Board,

114 S. Ct. 835 (1994). In that case, unlike here, the

employer failed to establish that it would have discharged

the individual for a violation of a company policy. More-

over, the Court’s sole reason for allowing relief to go

forward was deference to an agency with special ex-

pertise—a factor not applicable to the ADEA, where all

cases are heard before a court or jury.

In ABF Freight, the Board found that the employer

had violated the Act by discharging several casual dock-

workers and then offering to reinstate them if they would

waive their right to pursue a grievance filed under the

collective bargaining agreement. One of these casual

workers, Michael Manso, returned to work, but then filed

an unfair labor practice charge concerning the earlier

terminations. Thereafter, Manso was discharged on the

basis that he had violated the employer's disciplinary

rules regarding tardiness.

The employer argued that Manso should not be rein-

Stated because he had lied about the reasons for being

late both to the employer and before the administrative

law judge (ALJ). The Tenth Circuit enforced the Board’s

Order reinstating Manso. The court found substantial

evidence to support the Board’s finding “that ABF did not

22

meet its burden of showing that Manso would have been,

discharged in the absence of his protected union activity.”

Miera v. National Labor Relations Bd., 982 F.2d 441,

446 (10th Cir. 1992), aff'd sub. nom. ABF Freight Sys-

tem vy. National Labor Relations Board, 114 S. Ct. 835

(1994) (citing NLRB v. Transportation Management

Corp., 462 U.S. 393, 395 (1983)) (employer bears the

burden of proving that the employee would have been

discharged absent any protected union activity ).

This Court agreed that this crucial element was lacking.

It noted that “{t]he Board found that the record in this

case unequivocally established that ABF did not treat

Manso’s dishonesty “in and of itself as an independent

basis for discharge or any other disciplinary action.”

114 S. Ct. at 838 n.5 (citing 304 N.L.R.B. 585, 590

(1991)). The Tenth Circuit had noted that “Manso’s

original misrepresentation was made to his employer in

an attempt to avoid being fired under a policy the appli-

cation of which the Board found to be the result of anti-

union animus. .. .” Jd. at 838 (quoting 982 F.2d at

447). In contrast, after-acquired evidence cases require

that the employer had a valid, enforceable company policy

that was violated by the plaintiff.

Thus, this Court’s ruling in ABF Freight was as narrow

at the issue presented. The sole reason given for not

reversing the Board was that the courts should defer to

the administrative agency unless its ruling was “arbitrary,

capricious, or manifestly contrary to the statute.” 114

S. Ct. at 839. The Court could not say that the Board

was obligated to adopt a rigid rule that would foreclose

relief in all comparable cases. Although it appeared to

be holding its nose in order to defer to the NLRB, the

Court clearly discouraged the federal courts from giving

sanction to proven misconduct.

Thus. the ABF Freight decision forcefully decreed that

“(false testimony in a formal proceeding is intolerable.

We must neither reward nor condone such a ‘flagrant

23

affront’ to the truthseeking function of an adver

ceeding.” Id. at 839. None of the numerous cen de sn

ing the after-acquired evidence doctrine were criticized or

even cited by the Court, and the ABF Freight decision in

no way limits the authority of the federal courts to dismiss

cases when the employer (unlike ABF Freight) can show

that the employee would have been discharged for lying

or breaching a valid company disciplinary policy.

Thus, ABF Freight closely resembles these cases cited

above in which the courts, while recognizing the validity

of the after-acquired evidence doctrine, declined to apply

it in a particular case because of a failure of the employer’s

proof. In such a case, the applicability of the doctrine as

a complete bar to relief is foreclosed. Nevertheless, the

fact of the misconduct remains, and is still relevant to the

determination of an appropriate remedy. Accord Kristufek

ve Hussman Foodservice Company, 985 F.2d 364 (7th

Cir. 1993) (holding that employer failed to show that

employee would have been fired had the employer known

of the falsified educational qualifications, but ordering

verdict reduced to deduct damages and attorney’s fees for

the time following discovery of the falsification).

Indeed, this Court acknowledged in ABF Freight that

the NLRB could have limited—or even denied—any rem-

edy available to the employee:

We recognize that the Board might have decided that

such misconduct disqualified Manso from profiting

from the proceeding, or it might even have adopted

a flat rule precluding reinstatement. when a former

employee so testifies. As the case comes to us, how-

ever, the issue is not whether the Board might adopt

such a rule, but whether it must do so.

114 S. Ct. at 839 (emphasis in original). In the same

manner, Justice Kennedy’s concurrence confirmed the ap-

propriateness of considering misconduct in granting a

remedy:

24

[Bjoth employer and employee have reason ——

upon honesty in the resolution of disputes within t :

workplace itself. And this interest, too, is not beyon

the Board’s discretion to take into account in fashion-

ing appropriate relief.

114S. Ct. at 840 (Kennedy, J., concurring).

Accordingly, while the Court in ABF Freight deferred

to the NLRB’s authority to craft an appropriate remedy,

this in no way detracts from the authority of courts to

arrive at an appropriate remedy in a case involving after-

acquired evidence.

ity Commission

C. The Equal Employment Opportuni

Also Has Espoused the Doctrine, But Then Re-

versed Its Position.

The Solicitor General now contends that backpay can

be limited—and reinstatement and front pay can be

defeated entirely—based on after-acquired evidence -

where discrimination has occurrred. Br. at 23-25. The

brief cites in support the Revised Enforcement Guide on

Recent Developments in Disparate Treatment Theory

issued by the Equal Employment Opportunity oe

(EEOC), the federal agency having enforcement authority

over the ADEA and Title VII. /d. at 26.

The Solicitor General’s brief, however, fails to gn

the Court that the Commission ‘Previously a

after-acquired evidence doctrine in toto as ee in

Summers, as a bar to all remedies. In March 1 “ . 4

the predecessor to the cited Revised Enforcement port

the EEOC issued guidance directing its own staff to take

a strict Summers approach:

Where a plaintiff proves by direct evidence that wa

crimination was the exclusive basis for an emp a

ment decision, or where (s)he establishes that “

crimination was a motive for the action, and a

employer cannot prove that a legitimate motive wou

ee

25

have induced it to take the same action, then liability

is established. At a minimum, the charging party is

entitled to injunctive relief and attorney’s fees. How-

ever, in these circumstances, as in cases where dis-

crimination is proved through circumstantial evidence,

the employer may be able to limit other relief avail-

able to the plaintiff by showing that the after-the-fact

lawful reasons would have justified the same action.

For example, if a charging party is terminated for

discriminatory reasons, but the employer discovers

afterwards that she stole from the company, and it

has an absolute policy of firing anyone who commits

theft, then the employer would not be required to

reinstate the charging party or to provide back _ pay.

-.. See, e.g., Summers v. State Farm Mutual A uto-

mobile Insurance Co., 864 F.2d 700, 48 EPD

€ 38,543 (10th Cir. 1988) (plaintiff entitled to no

relief where evidence that he falsified numerous com-

pany records was discovered after termination);

Smallwood v. United Air Lines, Inc., 728 F.2d 614,

33 EPD 4 34,185 (4th Cir.), cert. denied, 469 U.S.

832, 35 EPD © 34,663 (1984) (while the airline’s

policy of not processing applications of persons over

age 35 for the position of flight officer was a viola-

tion of the ADEA, the airline was not compelled to

grant full relief to the plaintiff, since the airline

proved that had it considered plaintiff's application,

it would not have hired him on the basis of other

lawful reasons); Mathis y. Boeing Military Airplane

Co., 719 F. Supp. 991, 994-5, 51 EPD © 39,347

(D. Kan. 1989) (material omissions on plaintiff's

employment application discovered after termination

preclude relief on her Title VII claims).

Even if the charging party is not entitled to indi-

vidual relief, the Commission can lawfully seek relief

for any other identifiable victims of the discrimination.

Policy Guidance on Recent Developments in Disparate

Treatment Theory, N-915.063, EEOC Compl. Man.

26

N:2129 at 2132-33 and n.17 (emphasis added ).

ae this guidance, then the Commission would not ithe

sought any individual relief on behalf of a greeny ea

where after-acquired evidence of application fraud sho

that termination was inevitable.”

?

The Commission issued new guidance on J uly ser Pet

in which it changed its position on after-acquired evidence:

[I}f the employer produces proof of a ag cor ever peer

covered after-the-fact that would have in aged Ber

take the same action, the employer will S som

from.an order requiring it to reinstate the orga

ant or to pay the portion of back pay ng gp si

the date that the legitimate basis for the a

action was discovered ....

Revised Enforcement Guidance on Recent gees

in Disparate Treatment Theory, N-914.002,

Compl. Man. (BNA) N:2135, N:2154.

The Commission gave no reason for its — ye

tion, and did not even acknowledge that ac —

occurrred. Because it has taken inconsistent = ee

EEOC’s current pronouncement is entitled to no a e _

General Electric Co. v. Gilbert, 429 U.S. 125,

(1976).

Moreover, the consequences of the gees sa

approach before this Court are alarming. Under t ~ ns

mission’s revised position, an employee who wou

—_-—

aa le laa t

16 The Commission’s guidance notes that while it is ge ete

cover Title VII. “the same general principles — charges

brought under the Age Discrimination in Employment Act.

N-915-063, EEOC Compl. Man. (BNA) N :2119.

, it i lear why the

istence of this guidance, it is unc

"Given the — > to the Solicitor General’s brief, would state

atory ” Brief of Solicitor

tri bas res and obstructs

1 at 14 n.6, and that the doctrine “igno rer

Commission, sign

now that “The court erred in Summers . .

7s ® ”

rn cai public policy goals of the ADEA and Title VII.

of Solicitor General at 16.

Policy

4 a « < l 7?

27

been discharged for misconduct had the employer known

of it nevertheless would receive backpay for a period of

time solely because the wrongdoing fortuitously went un-

discovered. For example, if an employee who is laid off

in a force reduction sues for age discrimination, and

during a later audit is found to have embezzled money

from company accounts, under the Commission’s theory

that employee may be entitled to backpay up until the date

the embezzlement is discovered. This view converts Title

VIf and ADEA remedies into a reward for successfully

concealing misconduct rather than simply providing a

remedy for discrimination.

D. Public Policy Supports Application of the After-

Acquired Evidence Doctrine as a Bar To All

Remedies.

The after-acquired evidence doctrine, as applied by the

Fourth, Sixth, Seventh, Eighth and Tenth Circuits, serves

the remedial “make whole” purpose of federal antidiscrim-

ination legislation by placing claimants in the position they

would have been in had the discriminatory conduct not

occurred, but not rewarding them for actively engaging in

wrongdoing. In after-acquired evidence cases, the claim=

ant has committted actual misconduct—providing false

answers to legitimate job application questions, theft of

confidential company documents, or falsification of rec-

ords."* To grant such an individual compensation such

'® The fact of actual misconduct distinguishes cases in which the

after-acquired evidence doctrine applies from the hypotheticals sug-

gested by Petitioner. For example, Petitioner contends that under

the doctrine as currently applied, “an employer could avoid liability

in a hiring case by showing that, at the time it rejected a qualified

black applicant on account of race, there was a better qualified

white available for the position, even though the white had never

applied for the job and the employer only learned of his or her

existence long after the black applicant had been rejected.” Brief

of Petitioner at 25-26. On the contrary, the after-acquired evidence

doctrine is not used absent some type of active misconduct on the

part of the employee.

28

- a ~

as backpay rewards the employee for managing to conceal

his misconduct from the employer.

As one court has pointed out, “every falsehood has te

components, the prevarication itself and the ge

fact misrepresented or omitted. Either component pone

give cause for immediate termination.” Baab VY. eon R

Servs. Corp., 811 F. Supp. 1246, 1260 (N.D. Ohio ae .

Employers thus have two significant interests in shag

truthful answers from their prospective oe gene

regarding the applicant’s qualifications for the gmc . ’

other regarding their fundamental honesty as a characte

trait. |

An employee who misappropriates confidential ao

pany documents and goes undiscovered for a eer .

time already has profited once by his own wrong me

The argument that the employee should receive a : i-

tional monetary remedy for the period in which the “e

ployer was unaware of the theft would be an ponies

windfall, also at the employer's expense, because t :

employee succeeded in keeping that wrongdoing _—

Accordingly, this Court should adopt the earece e

evidence doctrine as a complete bar to remedies in em-

ployment discrimination cases.

29

CONCLUSION

For the foregoing reasons, the amici curiae respectfully

submit that the decision of the Sixth Circuit should be

affirmed.

Respectfully submitted,

LEE T. PATERSON DoucGLas S. McDowELL

SONNENSCHEIN NATH & ANN ELIZABETH REESMAN *

ROSENTHAL McGUuINEss & WILLIAMS

601 S. Figuero St. 1015 Fifteenth Street, N.W.

Suite 1500 Suite 1200

Los Angeles, CA 90017 Washington, D.C. 20005

Attorney for Amicus Curiae (202) 789-8600

The Employers Group — Attorneys for Amicus Curiae

DWIGHT H. VINCENT Equal Employment Advisory

J. WALKER HENRY Couneil

CLARK, KLEIN & BEAUMONT

1600 First Federal] Building

1001 Woodward Avenue

Detroit, MI 48226-1962

Attorneys for Amicus Curiae

Michigan Manufacturers

Association

JOHN F. Sturm

529 14th Street, N.W.

Suite 400.

Washington, D.C. 20045

RENE P. MILAM

11600 Sunrise Valley Drive

Reston, VA 22091

Attorneys for Amicus Curiae

Newspaper Association of America

PETER G. STONE

Route 416

Campbell Hall, NY 10916

Attorney for Amicus Curiae

Newspaper Personnel Relations Association

September 8, 1994 ® Counsel of Record