After-acquired evidence does not
bar liability for age discrimination
By Charles A. Lamberton
For The Lawyers Journal
In McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352, 115 S.Ct. 879 (1995), the Supreme
Court held that where an employer discovers
misconduct by a plaintiff after the plaintiff was
fired, and can prove it would have fired the
plaintiff had it known of the misconduct earlier,
such "after-acquired" evidence eliminates the
remedies of front pay and reinstatement, and cuts
off the plaintiff's back wage recovery at the
date the evidence was discovered.
The plaintiff in McKennon had been employed for
nearly 30 years when she was terminated at the
age of 62. According to the defendant, the
plaintiff was discharged as part of reduction in
force. At her deposition, the plaintiff testified
that she had copied and removed from the
defendant's headquarters several documents for
her "insurance" and "protection." McKennon, 115
S.Ct. at 883. Thereafter, the defendant sent the
plaintiff a letter informing her that the removal
and copying of the records was in violation of
her job responsibilities and "advising her
(again) that she was terminated." Id. The
defendant also notified the plaintiff that had it
known of her misconduct, it would have discharged
her immediately.
For purposes of summary judgment, the defendant
conceded age discrimination, but argued that the
plaintiff was barred from any relief because of
her misconduct. The district court agreed and
granted summary judgment in the defendant's
favor. The Sixth Circuit affirmed, and the
Supreme Court granted certiorari.
In a unanimous decision, the Supreme Court held
that after-acquired evidence does not bar
liability for age discrimination. The court
decided that even if the employee's
later-discovered misconduct could be considered
grounds for termination, the age animus that
motivated the dismissal could not be ignored. The
court emphasized that discrimination of
plaintiffs who seek redress for their injuries
vindicate both the deterrence and compensation
objectives of the civil rights laws. Ignoring an
employer's illegal conduct because of
after-acquired evidence, the court said, would
undermine those objectives.
But fairness required the court to take account
of the lawful prerogatives of the employer in the
usual course of its business. The court thus held
that if an employer can prove the later
discovered wrongdoing would have independently
resulted in the employee's termination, then as a
general rule neither reinstatement nor front pay
is an appropriate remedy. Back pay would run from
the date of the unlawful discharge to the date
the new information was discovered.
In Mardell v. Harleysville Life Ins. Co., 31 F.3d
1221 (3rd Cir. 1994), the Third Circuit
presciently warned that after-acquired evidence,
unless closely regulated by the courts, could
allow employers to escape the consequences of
unlawful discrimination. "[T]he efficacy of the
after-acquired evidence tactic has not escaped
the attention of defense counsel, some of whom
have recommended that, to maximize a client's
odds of success, defense counsel's first step
when defending an employment discrimination claim
should be to thoroughly investigate the
plaintiff's background and job performance.
Indeed, many have instructed employers on
specific policies they can implement to erect the
strongest possible defense in employment
discrimination suits and if recognized, one can
anticipate the extensive and effective use of the
after-acquired evidence doctrine. The prospect of
a defendant's thorough inquiry into the details
of a plaintiff's pre- and post-hiring conduct,
however, may chill the enthusiasm and frequency
with which employment discrimination claims are
pursued, even in cases where the victim of
discrimination has nothing to hide, let alone
cases where the potential plaintiff is not
entirely blameless. Placed in context of the
general pervasiveness of resume fraud and
employee misconduct, the likely consequence of
the widespread exploitation of after-acquired
evidence will be underenforcement of Title VII
and ADEA, and consequently underdeterrence of
discriminatory employment practices." Mardell, 31
F.3d at Loislaw ¶52 (footnotes omitted).
To meet the challenge presented by after-acquired
evidence, plaintiffs' counsel must recognize the
issue, pursue it in discovery and then hold the
defendant to its burden of proof. The defense is
not easy to establish.
For example, if the employer knew of the
plaintiff's alleged misconduct before taking the
adverse employment action, the defense fails.
Wright v. Montgomery County, Civ. Action No.
96-4597 (E.D. Pa. 2002, Hutton, J.) at Loislaw p.
4; Dalton v. Wal-Mart Stores, Inc., 1996 U.S.
Dist. LEXIS 22786 (D. N. H. 1996).
The employer must also demonstrate an actual past
practice of taking the same employment action
against similarly situated employees. Welch v.
Liberty Mach Works, Inc., 23 F.3d 1403 at Loislaw
10 (8th Cir. 1994) (Employer "bears a substantial
burden of establishing that the policy pre-dated
the hiring and firing of the employee in
question, Š that the policy constitutes more than
mere contract or employment application
boilerplate, [and that] it ha[s] a
settled policy of [firing] individuals
similarly situated to [the plaintiff]"); Leahey
v. Federal Exp. Corp., 685 F. Supp. 127, 128
(E.D. Va. 1988) (after-acquired evidence must be
"anchored in evidence concerning defendant's
procedures and practices").
Finally, in cases of alleged application fraud,
the employer must show the plaintiff made
misrepresentations of material facts in response
to questions that directly measured the
plaintiff's ability to perform the duties of the
position, and that the employer actually relied
on the misrepresentations in offering the
plaintiff employment. Johnson v. Honeywell Info.
Systems, 955 F.2d 409, 414 (6th Cir. 1992);
Sprecher v. J.C. Penney Co., Inc., 864 F. Supp.
124, 125 (D. S. D. 1994); Bray v. Forest
Pharmaceuticals, Inc., 812 F. Supp. 115, 117
(S.D. Ohio 1993); DeVoe v. Medi-Dyn, 782 F. Supp.
546, 552 (D. Kan. 1992); Churman v. Pinkerton's
Inc., 756 F. Supp. 515, 520 (D. Kan. 1991);
O'Driscoll v. Hercules, 745 F. Supp. 656 (D. Utah
1990).
Requiring employers to ground after-acquired
evidence in their actual business practices
protects plaintiffs from fabricated stories that
are impossible to disprove. "Most companies have
rule books that state penalties-for example, that
an employee may be fired for any one of a long
list of offenses. In practice, the employer may
frequently choose not to discharge employees who
are guilty of the enumerated acts for which
discharge is listed as a possible penalty. The
idea that a plaintiff will be able to prove that
other persons who did acts of comparable gravity
were not discharged may be very difficult to
show. There are, of course, no records on the
failure to discipline.... The burden should be on
the employer to show through citation of previous
actual disciplinary acts that the offense would
normally warrant discharge...." Kent Spriggs,
Representing Plaintiffs in Title VII Actions,
Vol. 2 (2d ed. 1999) at §34.08[3]. See also,
O'Day v. McDonnell Douglas Helicopter Corp., 79
F.3d 756, 759 (9th Cir. 1996) ("[E]mployers often
say they will discharge employees for certain
misconduct while in practice they do not.")
One can also argue that if an employer has either
not used the alleged infraction as a basis for
employment action in the past, or if it has not
employed reasonable systems or made reasonable
efforts to determine who has broken its rules, it
should be estopped from contending it has a
serious concern about the plaintiff's infraction.
"It is presumed that the employer actually
reviewed and relied on this information [in the
application] in making the hiring decision. If
the information was not worthy of review at that
point, the employer might face a difficult task
in arguing its materiality when omissions or
errors are discovered." Lyle, Bob E., Esq.,
After-Acquired Evidence in Defending Employment
Discrimination Claims, 61 Def. Couns. J. No. 4,
at 582 (1994).
A good way to take discovery on after-acquired
evidence is with a 30(b)(6) deposition. In the
notice, simply list the elements of the burden of
proof as the subject matter of the deposition.
The defendant must then designate one or more
representatives to testify to those matters. It
is well-settled law that testimony elicited in a
30(b)(6) deposition is binding. Because the
deposition is targeted at an affirmative defense,
the examiner will be perfectly happy if the
defendant's representative does not know the
answers to his or her questions. n