                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-1994

Mardell v. Harleysville Life Ins. Co.
Precedential or Non-Precedential:

Docket 91-0149




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                         _____________________

                              No. 93-3258
                         _____________________


                             NANCY MARDELL,

                                         Appellant
                                    v.

                HARLEYSVILLE LIFE INSURANCE COMPANY,
                     a Pennsylvania Corporation

    ____________________________________________________________

           On Appeal From the United States District Court
               for the Western District of Pennsylvania
                       (D.C. Civil No. 91-01493)
    _____________________________________________________________


                        Argued:   December 9, 1993

              Before:    BECKER, NYGAARD, Circuit Judges,
                        and YOHN, District Judge0

                         (Filed August 2, 1994)

                                     JOEL S. SANSONE (Argued)
                                     KELLY L. SCANLON
                                     Sansone & Associates
                                     220 Lawyers Building
                                     428 Forbes Avenue
                                     Pittsburgh, PA 15219
                                             Attorneys for Appellant


                                     ROSLYN M. LITMAN (Argued)
                                     MARTHA S. HELMREICH
                                     Litman Litman Harris Brown
                                             and Watzman, P.C.
                                     3600 One Oxford Centre
                                     Pittsburgh, PA 15219

0
 The Honorable William H. Yohn, Jr., United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.


                                    1
                                         Attorneys for Appellee


                                 JAMES R. NEELY, JR.
                                 Deputy General Counsel
                                 GWENDOLYN YOUNG REAMS
                                 Associate General Counsel
                                 LORRAINE C. DAVIS
                                 Assistant General Counsel
                                 BARBARA L. SLOAN (Argued)
                                 Equal Employment Opportunity
                                    Commission
                                 Office of General Counsel
                                 1801 L Street, NW
                                 Washington, DC 20507
                                         Attorneys for Amicus
                                         Curiae in Support of
                                         Appellant


             ________________________________________

                       OPINION OF THE COURT
             ________________________________________



BECKER, Circuit Judge.

          Nancy Mardell appeals from the grant of summary

judgment for defendant Harleysville Life Insurance Company

("Harleysville") by the District Court for the Western District

of Pennsylvania in an employment discrimination suit alleging age

and gender discrimination. Mardell brought several claims

pursuant to Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C.A. §§ 2000e to 2000e-17 (1981 & Supp. 1994), the

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. §§

621-34 (1985 & Supp. 1994), and the Pennsylvania Human Relations

Act, 43 PA. CONS. STAT. ANN. §§ 951-63 (1991 & Supp. 1994). The

district court relied upon the rule pioneered by the Tenth



                                 2
Circuit Court of Appeals in Summers v. State Farm Mutual

Automobile Insurance Co., 864 F.2d 700 (10th Cir. 1988) to hold

that Harleysville's "after-acquired evidence" of Mardell's

alleged résumé fraud provided a complete defense to Mardell's

causes of action.     "After-acquired evidence" in an employment

discrimination case denotes evidence of the employee's or

applicant's misconduct or dishonesty which the employer did not

know about at the time it acted adversely to the employee or

applicant, but which it discovered at some point prior to or,

more typically, during, subsequent legal proceedings; the

employer then tries to capitalize on that evidence to diminish or

preclude entirely its liability for otherwise unlawful employment

discrimination.

          We reject the Summers rule in favor of one

circumscribing the use of after-acquired evidence to the remedies

phase of an employment discrimination suit brought pursuant to

Title VII or ADEA.0    We will therefore reverse the district

court's order granting summary judgment to Harleysville, and

0
 Throughout the following discussion we will generally treat
claims arising under Title VII and ADEA similarly insofar as no
party has given us reason to distinguish between them for purpos-
es of the principal issue before us, and we have thought of no
reason for doing so ourselves. See, e.g., Trans World Airlines,
Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621 (1985)
(applying Title VII precedent to ADEA because "the substantive
[(but not the procedural or remedial)] provisions of ADEA `were
derived in haec verba from Title VII'" (quoting Lorillard, Div.
of Loew's Theatres, Inc. v. Pons, 434 U.S. 575, 584, 98 S. Ct.
866, 872 (1978)); Armbruster v. Unisys Corp., No. 93-1333, Mem.
op. at 20 n.10 (July ??, 1994); Miller v. Cigna Corp., No. 93-
1773, 1994 WL 283269, at *4, *12 n.7 (June 28, 1994); Smithers v.
Bailar, 629 F.2d 892, 894-95 (3d Cir. 1980) (applying Title VII's
framework to an ADEA claim).


                                  3
remand the case for further proceedings consistent with this

opinion.



                    I.   FACTS   AND   PROCEDURAL HISTORY0

           Harleysville hired Mardell as a Branch Life Manager in

February 1988 to manage insurance agents.0            Mardell appears from

the record to have been an accomplished life insurance agent.              (A

57.) Before accepting the position with Harleysville, Mardell had

been employed by Prudential Life Insurance Company ("Prudential")

for eleven years.   (A 58, 66, 68.)          William Shelow, who was being

promoted out of the position at Harleysville for which Mardell

would be hired, had approached Mardell at Prudential about

replacing him in his soon-to-be vacated position.            (A 69.)

Shelow was familiar with Mardell's work at Prudential and felt

that she would excel as a Life Manager for Harleysville.               (A 70.)

           In December 1989, Mardell became the first Harleysville

employee ever to be placed on probation.            William Forloine,

0
  For purposes of Harleysville's summary judgment motion, we view
 the facts in the light most advantageous to Mardell, and resolve
             all disputed issues of fact in her favor.
           Inasmuch as some of the facts pertaining to Mardell's
prima facie case of discrimination and to the immateriality of
her misrepresentations are drawn from portions of Mardell's and
others' depositions that Mardell did not make part of the record
in the district court but submitted in her appendix to her brief
to this Court, we as a court of review may not consider them for
substantive purposes. See FED. R. APP. P. 10(a), 30(a); Jaconski
v. Avisun Corp., 359 F.2d 931, 936 & n.11 (3d Cir. 1966); Reed v.
Amax Coal Co., 971 F.2d 1295, 1299 n.3 (7th Cir. 1992). We
mention that testimony just as informative background to flesh
out the particulars of the dispute; we do not consider it on the
merits.
0
 During Mardell's tenure the job title was reclassified as a
Regional Director.

                                        4
Mardell's direct supervisor and Harleysville's senior vice-

president of marketing and sales, avowedly effected this action

for poor performance, even though at the time he imposed the

probation Mardell's work was improving and she had surpassed the

yearly goal he had set for her (A 76-78; SA 94, 99, 165-66).      The

terms of probation required Mardell to meet or exceed her quota

every month at pain of dismissal, a requirement not imposed on

any of her male peers or supervisors and one which set a standard

that most of Harleysville's managers commonly failed to fulfill

(A 76-77, 80, 133-34; SA 166).

           In February 1990, Harleysville discharged Mardell, who

then was 52 years old.   (A 15, 59.)    Four months later

Harleysville hired a 40 year old male to replace her.       (A 131-

32.)   Harleysville attributed its termination decision to

Mardell's poor work performance.     Specifically, Harleysville

contends that during Mardell's tenure, sales declined in her

region, as did the number of independent insurance agents with

whom she maintained ongoing contact.     The company also faulted

her for improperly implementing its new marketing plan, failing

to learn to use its new computer system effectively, making poor

presentations, and being unable to work suitably with some co-

workers and outside agents (SA 164-66).

           Mardell disputes Harleysville's asserted reasons for

its decision to discharge her, contending instead that gender

and/or age discrimation was the cause.     Mardell combined the

aforementioned circumstantial evidence of disparate treatment

(having been the only person placed on probation and subjected to


                                 5
a quota, and having been replaced by a younger man) with direct

evidence of her supervisor's comments and attitudes indicative of

sex and/or age bias.   She testified that Forloine had told her

that as a female he had higher expectations of her; that she

"wasn't one of the boys" and "couldn't be a good old boy;" that

he did not think her position "was a job for a woman;" and that

many of her agents would think of her "as a wife." She testified

further that once he had accused her, without foundation, of

missing work because she "just wanted to stay home and watch the

soaps," and that she had become aware of a meeting before all the

company's vice presidents and regional directors held after her

termination at which he allegedly stated that he "would never

have another female regional director."    (A 71, 73-75.)   She

added that he had frequently mentioned her age and that he had

told her once that she "should be home playing with [her]

grandchildren."   (A 73.)

          During discovery in the instant case, Harleysville

unearthed several instances of employment application and résumé

misrepresentation committed by Mardell.    First, Mardell

represented that she had obtained a Bachelor of Science degree

from the University of Pittsburgh, whereas in fact the university

had never issued a diploma to her:    the university's records

indicate that she has yet to complete all her work in two related

courses required for her degree.    (A 82-84.)   Mardell attributed

her misrepresentation to a mistaken belief that she had earned a

Bachelor of Science degree.   She explained that she had belatedly

completed and submitted all required work for those two courses


                                6
and had been informed by her professor that he would file a grade

change report, but that for some unknown reason the university's

official records never credited the supposed report.    (A 84, 96-

100.)   Notably, Harleysville apparently did not consider the

possession of a college degree a prerequisite to employment as a

Branch Life Manager, and was prepared to hire the "mental

equivalent" of a college graduate.   (A 123.)

           Second, Harleysville learned that Mardell had also

misrepresented her professional experience on both her employment

application and résumé.   Mardell had listed in the "employment

history" section of the application form and the "professional

experience" section of her résumé that she had served as a "writ-

er-interviewer" at a local hospital, as a therapist at a mental

health center, and as a manager and public relations director at

a hotel.   (A 58.)   Although Mardell had performed most of those

tasks as she described them on those documents (A 60-64, 67-68,

84-90, 104-05), in both documents she had (at a few points

greatly) exaggerated some of her specific duties (A 63, 67-68,

104; SA 131-32); misrepresented that the hospital and mental

health care center positions were remunerated (in fact she took

them on as unpaid field course work to earn college credit) (A

61-62, 85, 89-90); and misstated the dates she had performed

those activities (A 58, 90; SA 121, 145).

           Buoyed by its admittedly post-termination discoveries,

Harleysville moved for summary judgment.    It attached to its

motion affidavits by Glyn Mangum, the vice-president of sales who

had made the decision to hire Mardell, and Forloine.    Mangum


                                 7
averred that he had relied on Mardell's application and résumé

when considering her for the Branch Life Manager position and

that, had he known of her misrepresentations, he would not have

hired her.   (SA 84-85, 87.)   Forloine averred that he had

considered Mardell's alleged college degree to be a "plus" when

he interviewed her for the position; that, had he known of her

misrepresentations at the time of her interview, he would have

"strongly recommended that she not be hired;" and that, had he at

any time apprehended her misrepresentations, he would have,

consistent with Harleysville's policy as declared by the

employment application form Mardell had completed, "terminated

her immediately."   He added that, in context of what Harleysville

now knows to be true about Mardell, it would not voluntarily

reemploy her (SA 95, 99).

          Basing its summary judgment motion on the after-

acquired evidence doctrine, Harleysville assumed arguendo that it

had impermissibly discriminated against Mardell, but essentially

contested Mardell's standing to sue and, in the alternative,

questioned whether she had realized an injury (SA 61-71).     On

April 27, 1993, the district court entered its Memorandum and

Order granting Harleysville's motion (A 5).     In the process, it

applied a variant of the Summers rationale adapted to résumé
fraud cases and held that, because of her fraud in gaining her

employment, Mardell had suffered no legally cognizable injury

even if Harleysville had willfully discriminated against her on

the basis of her age and/or sex.     Given that disposition, the

court did not reach the question whether Mardell had made out a

                                 8
prima facie case of sex and/or age discrimination.         This appeal

followed (A 5).0



                    II.    THE RELEVANT LEGAL BACKGROUND

                          A.   General Background

            Experience with the federal employment discrimination

laws has culminated in the division of disparate treatment suits

into three classes:   pure discrimination, pretext, and mixed-

motives cases.0 McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817 (1973), as embellished by Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089

(1981) and St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742

(1993), establishes a flexible three-part model to allocate the

shifting burdens of production in the first two classes of

individual disparate treatment cases (pure discrimination and

pretext).   Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.


0
 We exercise plenary review over the district court's grant of
summary judgment, and employ the same standard applicable in the
district court. Davis v. Portline Transportes Maritime
Internacional, 16 F.3d 532, 536 (3d Cir. 1994). We affirm a
grant of summary judgment if "`there is no genuine issue as to
any material fact and . . . the moving party is entitled to
judgment as a matter of law.'" Id. at 536 n.3 (quoting FED. R.
CIV. P. 56(c)).
           The facts of this case transpired before the effective
date of the Civil Rights Act of 1991 (the "1991 Act"), Pub. L.
No. 101-166, 105 Stat. 1075 (1991). Hence, the substantive and
remedial changes made by the 1991 Act do not apply to this case,
see Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1505-06 (1994),
but occasionally we will make references to them and the
accompanying legislative history because that material is
generally informative.
0
 For purposes of this opinion, we ignore the disparate impact
theory of employer liability.

                                     9
1775 (1989) supplies the procedure for proving intentional

discrimination in mixed-motives cases.   Numerous opinions of this

Court have explained the evidentiary regimes that the McDonnell

Douglas/Burdine/Hicks line of cases and Price Waterhouse have

established, but for the benefit of the untutored reader we

summarize them in the margin.0


0
In a case of failure to hire or promote, the plaintiff first

          must carry the initial burden under the statute of
          establishing a prima facie case of [unlawful]
          discrimination. This may be done by showing (i) that he
          belongs to a [protected category]; (ii) that he applied
          and was qualified for a job for which the employer was
          seeking applicants; (iii) that, despite his
          qualifications, he was rejected; and (iv) that, after
          his rejection, the position remained open and the
          employer continued to seek applicants from persons of
          complainant's qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If the
plaintiff succeeds, the burden of production transfers to the
defendant to "articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Id. In the unlikely event
that the employer at this juncture remains silent, the case falls
within the set of "pure discrimination" cases and "the court must
enter judgment for the plaintiff." Burdine, 450 U.S. at 254, 101
S. Ct. at 1094.
          If the defendant does introduce into evidence a
legitimate reason for its actions, the case becomes a "pretext"
case. In that event the employer need not prove that the
tendered reason actually motivated its behavior, as throughout
this burden-shifting paradigm the ultimate burden of proving
intentional discrimination rests at all times with the plaintiff.
See id. at 253, 254, 256, 101 S. Ct. at 1093, 1094, 1095. Once
the employer answers its relatively light burden by articulating
a legitimate reason for the unfavorable employment decision, the
burden of production rebounds to the plaintiff, who must now show
by a preponderance of the evidence that the employer's explana-
tion is pretextual.
          To accomplish this, the plaintiff must convince the
factfinder "both that the reason was false, and that
discrimination was the real reason." Hicks, 113 S. Ct. at 2752;
see id. at 2754 ("It is not


                                 10
yenough . . . to disbelieve the employer; the factfinder must
believe the plaintiff's explanation of intentional discrimina-
tion." (emphasis in original)). In other words, since the
plaintiff's making out a prima facie case only shifts the burden
of production to the employer, the employer need only articulate
some legitimate reason for its action to meet the plaintiff's
serve. The factfinder's rejection of that proffered legitimate
reason permits, but does not compel, a verdict for the plaintiff.
See Hicks, 113 S. Ct. at 2749. To prevail, the plaintiff must
ultimately prove not that the illegitimate factor was the sole
reason for the decision, but that the illegitimate factor was a
determinative factor of the employment decision, that is, that
but for the protected characteristic, the plaintiff would have
been, for example, hired or promoted. See Hazen Paper Co. v.
Biggins, 113 S. Ct. 1701 (1993) (ADEA) (holding that "a disparate
treatment claim cannot succeed unless the employee's protected
trait actually played a role in [the decisionmaking] process and
had a determinative influence on the outcome").
          In Price Waterhouse, the Supreme Court borrowed the
mixed-motives standard applied originally in a mixed-motives
constitutional tort case, Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977), and adapted
it for mixed-motives cases under Title VII. See Price
Waterhouse, 490 U.S. at 248-50, 109 S. Ct. at 1789-90 (plurali-
ty); id. at 258-59, 109 S. Ct. at 1795 (White, J., concurring);
cf. id. at 277-78, 109 S. Ct. at 1805 (O'Connor, J., concurring);
see also East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431
U.S. 395, 404 n.9, 97 S. Ct. 1891, 1897 n.9 (1977); International
Bhd. of Teamsters v. United States, 431 U.S. 324, 369 n.53, 97 S.
Ct. 1843, 1872 n.53 (1977). A mixed-motives case is one in which
both legitimate and illegitimate factors contribute to the
employment decision. See Price Waterhouse, 490 U.S. at 232, 109
S. Ct. at 1781 (plurality). Such a case differs from a pretext
case in that the plaintiff must present evidence of illegal
discrimination "sufficiently strong to shift the burden of proof
to the employer," meaning that the plaintiff must adduce "direct
evidence" of discrimination (that is, more persuasive evidence
than the McDonnell Douglas/Burdine prima facie case). See
Armbruster v. Unisys Corp., No. 93-1333, Mem. op. at 22-23 (3d
Cir. July ??, 1994); Miller, No. 93-1773, 1994 WL 283269, at *12
n.6; Hook v. Ernst & Young, No. 92-3724, 1994 WL 283266, at *8-*9
(3d Cir. June 28, 1994); Price Waterhouse, 490 U.S. at 277-78,
109 S. Ct. at 1805 (O'Connor, J., concurring).
          To rebut a plaintiff's case-in-chief in a mixed-motives
case (that is, once the plaintiff has met his or her burden of
proving an illegitimate factor "played a motivating [or
substantial] part in an employment decision"), the employer must
prove that "it would have made the same decision even if it had
not allowed [the illegitimate factor] to play such a role."


                               11
    B.    Other Circuits' Approaches to After-Acquired Evidence

            The courts of appeals have grouped into two primary

(albeit splintered) camps regarding the relevancy of after-

acquired evidence of résumé and/or application fraud or employee

misconduct on the job.0



  1.     Courts Finding After-Acquired Evidence May Bar Liability

            The Tenth Circuit formed the first camp with its

seminal Summers decision.    Summers held that after-acquired

evidence, at least if material, bars all relief and hence

effectively operates as a complete defense to liability.    Based

on after-acquired evidence of Summers' rampant on-the-job

misconduct,0 State Farm moved for summary judgment to diminish

Price Waterhouse, 490 U.S. at 244-45, 109 S. Ct. at 1787-88
(plurality); see id. at 242, 109 S. Ct. at 1786 (plurality). The
employer's rebuttal is thus an affirmative defense. See id. at
246, 109 S. Ct. at 1708 (plurality); id. at 259-60, 109 S. Ct. at
1795 (White, J., concurring); id. at 261, 109 S. Ct. at 1796
(O'Connor, J., concurring). We note, however, that to the extent
that Price Waterhouse barred all liability when the employer can
show it would have taken the same action even had it not had any
illegitimate motives, the 1991 Act overturned it. See Civil
Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1075-76
(codified at 42 U.S.C.A. §§ 2000e-2(m), 2000e-5(g)(2)(B) (Supp.
1994)).
0
 The Supreme Court has granted certiorari to resolve this split
during its next Term. See McKennon v. Nashville Banner
Publishing Co., 114 S. Ct. 2099 (1994). At the time we heard
oral argument, certiorari had not yet been granted in McKennon,
and the parties asked the panel (and it agreed) to decide the
case and not hold it in abeyance pending the probable grant of
certiorari so that the case can proceed to a timely resolution.
Cf. Milligan-Jensen v. Michigan Tech. Univ., 114 S. Ct. 22 (1993)
(dismissing the writ of certiorari in an after-acquired evidence
case).
0
 Summers, a claims adjuster for the defendant insurance company,
had been reprimanded on several occasions for falsifying company
records and had eventually been placed on probationary suspension

                                  12
the relief Summers could recover were he to prevail at the

liability phase of trial.    See Summers, 864 F.2d at 702-03.      The

Tenth Circuit held that the after-acquired evidence of Summers'

on-the-job misconduct would not only limit Summers' remedies,

but, by precluding Summers from any relief, the evidence would

effectively avert State Farm's liability.

          The court understood that technically McDonnell Douglas

presupposed that a defendant could avert liability only with a

legitimate, nondiscriminatory motive known to the employer at the

instant of its actions.     See id. at 705.   Yet it reasoned --

apparently because State Farm would have fired him had it known

of his transgressions -- that "while . . . 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."   Id. at 708.      The court likened the

plaintiff's situation to a "masquerading doctor," meaning one who

was not really a doctor but who had pretended to be one,

discharged for discriminatory reasons, who "would be entitled to

no relief."   Id.
          Since Summers, courts have allowed after-acquired

evidence to bar the employer's liability in two general catego-

for two weeks. About six months later, State Farm discharged
him, not because of his falsification of records "but because of
his poor attitude, inability to get along with fellow employees
and customers, and similar problems dealing with the public and
co-workers." Four years later, during discovery, State Farm
learned that on at least 150 occasions Summers had falsified
company records, eighteen instances of which falsifications
occurred after his return from suspended status.


                                  13
ries of cases: résumé and/or application fraud cases, and

misconduct on the job cases. In a case of résumé or application

fraud, the employer typically asserts that, had it known of the

plaintiff's misrepresentation(s), it would never have hired him

or her.   See Welch v. Liberty Machine Works, Inc., 23 F.3d 1403,

____ WL at *1, *3 (8th Cir. 1994) (brought under the Employee

Retirement Income Security Act, 29 U.S.C.A. §§ 1001-1461 (1985 &

Supp. 1994), and the Missouri Human Rights Act, MO. ANN. STAT. §§

213.010-.137 (Vernon 1986 & Supp. 1994)).     The employer may

alternatively argue that, had it at any time after the hiring

found out about the misrepresentation(s), it would have promptly

fired the plaintiff.0    See O'Driscoll v. Hercules, Inc., 12 F.3d

176, 177-78 (10th Cir. 1994) (expanding the Summers holding from

misconduct to after-acquired résumé and application fraud cases),

petition for cert. filed, 62 U.S.L.W. 3757 (Apr. 1, 1994) (No.

93-1728); Reed v. Amax Coal Co., 971 F.2d 1295, 1298 (7th Cir.

1992) (per curiam).     In some cases employers advance both

0
 Some courts distinguish between "would not have hired" and
"would have fired" cases on the basis that an employer would be
more hesitant to fire a competent, capable employee than to not
hire the applicant in the first place. See, e.g., Washington v.
Lake County, Ill., 969 F.2d 250, 254, 255 n.5 (7th Cir. 1992).
In Washington, the Seventh Circuit held that in cases where the
employee actually was employed for some time, the "would not have
hired" inquiry is irrelevant because "the temporal focus is on
the time of the adverse employment decision." Id. at 256. As to
the "would have fired" inquiry, however, the court somewhat
inconsistently with its prior holding construed Price Waterhouse
to allow the employer to defend its actions with after-acquired
evidence, stating that in such situations "the employer must show
by a preponderance of the evidence that, if acting in a race-
neutral manner, it would have made the same employment decision
had it known of the after-acquired evidence." Id. at 255
(emphasis supplied).


                                  14
arguments in the alternative.   See Milligan-Jensen v. Michigan

Technological University, 975 F.2d 302, 304 n.2 (6th Cir. 1992),

cert. dismissed, 114 S. Ct. 22 (1993); Washington v. Lake County,

Ill., 969 F.2d 250, 253 (7th Cir. 1992); Johnson v. Honeywell

Information Systems, Inc., 955 F.2d 409, 414-15 (6th Cir. 1992);0

cf. Dotson v. United States Postal Service, 977 F.2d 976, 978

(6th Cir.) (per curiam) (holding that the plaintiff's employment

application misrepresentations rendered him unqualified for the

job without addressing whether the employer would not have hired

or would have fired him therefor), cert. denied, 113 S. Ct. 263

(1993).   Obviously in job misconduct cases (like Summers), only a

variant of the latter "would have fired" argument can be made.

Cf. McKennon v. Nashville Banner Publishing Co., 9 F.3d 539, 542-

43 (6th Cir. 1993) (concluding that the plaintiff's job

misconduct precluded her "claim of injury" and that consequently

she was not entitled to "the grant of any relief or remedy"),

cert. granted, 114 S. Ct. 2099 (1994).



2.   Courts Finding After-Acquired Evidence May Not Bar Liability

           The opposing camp, exemplified by the Eleventh Circuit

in Wallace v. Dunn Construction Co., 968 F.2d 1174 (1992) when it
openly broke ranks with Summers,0 allows after-acquired evidence

0
 Although Johnson involved a cause of action under Michigan's
Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §§ 37.2101-.2804,
the court construed it "in the same manner as its federal
counterpart." 955 F.2d at 415 n.1.
0
 The first court of appeals after-acquired evidence case actually
rejecting Summers was handed down by the Seventh Circuit in Smith
v. General Scanning, Inc., 876 F.2d 1315 (1989), an ADEA suit. As
the employer brought out during discovery, the plaintiff had


                                15
to come in only at the remedies stage to slim down the relief


falsified his college credentials on his résumé. See id. at
1317. The district court had held that the plaintiff's
misrepresentation precluded the plaintiff from making out a prima
facie case because he could not show that he was qualified for
the position. The court of appeals, cognizant of the Summers
decision, rejected the district court's approach:

          By narrowly focusing on [the plaintiff's] initial
          burden, the district court was distracted from the real
          issue in this case. At issue is the lawfulness of
          Smith's termination. His resume fraud clearly had
          nothing to do with that; it surfaced only after [the
          plaintiff] was terminated and after this suit was com-
          menced. Whether [the employer] discriminated against
          [the plaintiff] must be decided solely with respect to
          the reason given for his discharge . . . . His resume
          fraud is, for this purpose, irrelevant.

Id. at 1319. The court noted in dicta that such evidence would
be relevant at the remedies stage, however, because "it would
hardly make sense to order [the plaintiff] reinstated to a job
which he lied to get and from which he properly could be
discharged for that lie." Id. at 1319 n.2.
          But subsequent cases in the Seventh Circuit leave that
courts' approach the most unsettled, as panel after panel seems
at sea without seriously heeding what bearings have been set
before. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1251
(7th Cir. 1990) (not referencing Smith but holding that evidence
of the plaintiff's fabrications exposed three years after the
adverse employment decision would bar all liability); Washington
v. Lake County, Ill., 969 F.2d 250, 253 & n.2 (7th Cir. 1992)
(same, but noting that the plaintiff had not challenged the
validity of the Summers rationale, and that he had not advanced
the argument that he should at least, in accordance with the
dicta in Smith, be accorded partial backpay); Reed, 971 F.2d at
1298 (approving Summers but giving it a restrained reading);
Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369, 370
(7th Cir. 1993) (departing from the reasoning of Washington and
Reed without citing them, returning to Smith for the proposition
that "the only issue is the lawfulness of the termination for the
reasons given," and holding that "[a] discriminatory firing must
be decided solely with respect to the known circumstances leading
to the discharge"). Thus, while not exactly clear, the Seventh
Circuit, after bouncing back and forth between the two camps for
a while, seems now to have settled alongside Wallace. See
Kristufek, supra.


                               16
available to the plaintiff.0    The court, having had the benefit

of the Supreme Court's exposition in Price Waterhouse (applying

the Mt. Healthy framework to Title VII and clarifying the
question of timing in mixed-motives cases, see supra at Error!
Bookmark not defined. n.Error! Bookmark not defined.), criticized

the Summers decision for misapplying Mt. Healthy, "in that the

Summers rule ignores the lapse of time between the employment

decision and the discovery of a legitimate motive for that

decision."    Id. at 1179-80.   In doing so, the court continued,

"the Summers rule clashes with 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 or engaged in

protected opposition to an unlawful employment practice."       Id. at

1179.

             The Eleventh Circuit was also persuaded that the

Summers rule would result in underenforcement of the federal

anti-employment discrimination laws and accordingly underdeter

unlawful employment discrimination.    See id. at 1179-80.      Having

resolved that after-acquired evidence does not preclude

liability, the court concluded with a detailed exposition on the




0
 In Wallace, the plaintiff (Neil) had filed numerous causes of
action against the employer under the Equal Pay Act and Title VII
for wrongful discharge. During her deposition, Neil admitted
having falsified her employment application by omitting a
conviction on drug charges. Soon thereafter, the employer Dunn
filed a motion for summary judgment, partially grounded in the
Summers defense. See id., 968 F.2d at 1176-77.

                                  17
availability of the standard remedies in after-acquired evidence

cases.0



                          III.   OUR APPROACH

                     A.   The Liability Stage

1.   After-Acquired Evidence Is Irrelevant at the Liability Stage

          A quick review of the overarching framework erected for
employment discrimination claims, see supra at Error! Bookmark
not defined. n.Error! Bookmark not defined., discloses why after-

acquired evidence cannot be a defense to liability.   What sets an

after-acquired evidence case far apart from a mixed-motives case

0
 With respect to reinstatement and front pay, the court held that
those remedies would be inappropriate if the after-acquired
evidence would have in and of itself led to the adverse
employment action. See id. at 1181-82. An injunction against an
employer's unlawful practices, it added, would not be available
if the court did not also order the plaintiff reinstated. See
id. at 1182. The court also determined, however, that after-
acquired evidence would not affect the availability of declarato-
ry relief. See id.
          According to the court, backpay should be awarded up
until the date of judgment, unless the employer can prove that
"it would have discovered the after-acquired evidence prior to
what would otherwise be the end of the backpay period in the
absence of the allegedly unlawful acts and this litigation." Id.
This division, the court explained, would fairly balance the
employer's right to make lawful employment decisions and the
employee's right to make-whole relief. Ending the backpay period
when the employer actually discovered the evidence would not make
the victim whole, the court maintained, insofar as absent the
unlawful conduct and the resulting litigation, the employer would
very likely not have detected the fraud or misconduct. See id.
          Finally, with regard to the award of attorneys' fees,
the court held that if the employee obtained "some benefit" from
the lawsuit or if the litigation "materially altered" the
parties' legal relationship, she would as a "prevailing party" be
entitled to partial attorneys' fees; the after-acquired evidence
could diminish the award by an amount arrived at using
"traditional attorney fee principles." See id. at 1182-83.


                                  18
like Price Waterhouse or a pretext case like McDonnell Douglas is

that the articulated "legitimate" reason, which was non-existent

at the time of the adverse decision, could not possibly have

motivated the employer to the slightest degree.   After-acquired

evidence, simply put, is not relevant in establishing liability

under Title VII or ADEA because the sole question to be answered

at that stage is whether the employer discriminated against the

employee on the basis of an impermissible factor at the instant

of the adverse employment action.   See Wallace, 968 F.2d at 1179

(pointing out that "the Summers rule ignores the lapse of time

between the employment decision and the discovery of a legitimate

motive for that decision").

          The Supreme Court in Price Waterhouse held that in a

mixed-motives case the employer could rely only on a legitimate

motive it held at the time of the adverse employment decision.

See 490 U.S. at 252, 109 S. Ct. at 1791 (plurality) ("An employer

may not . . . prevail in a mixed-motives case by offering a

legitimate and sufficient reason for its decision if that reason

did not motivate it at the time of the decision." (emphasis

supplied)); id. at 250, 109 S. Ct. at 1790 (plurality) (requiring
the employer's legitimate, sufficient reason to have motivated

the employer "at the moment of the decision"); id. at 241, 109 S.

Ct. at 1785 (plurality) ("The critical inquiry . . . is whether

[a protected characteristic] was a factor in the employment

decision at the moment it was made." (emphasis in original)); id.

at 259, 109 S. Ct. at 1795 (White, J., concurring) (stating that

the employee must "show that the unlawful motive was a

                               19
substantial factor in the adverse employment action" (emphasis in

original)); id. at 266-67, 109 S. Ct. at 1799 (O'Connor, J.,

concurring) (stating that the employer must show that "despite

consideration of illegitimate factors the individual plaintiff

would not have been hired or promoted in any event").

          Thus, under the mixed-motives analysis, the employer in

an after-acquired evidence case cannot contend that it would have

reached the same decision at the time it was made absent the

illicit motive. Concomitantly, under the pretext analysis, it

should be simple for the employee to demonstrate beyond

peradventure that the proffered legitimate (but after-acquired)

reason was not the true cause for the decision but is merely a

"pretext."   See, e.g., Eastland v. Tennessee Valley Auth., 704

F.2d 613, 626 (11th Cir. 1983) (holding that the employer's

proffered non-discriminatory reason was pretextual because the

employer was unaware of the proffered reason at the time it made

its decision), cert. denied, 465 U.S. 1066, 104 S. Ct. 1415

(1984); cf. McDonnell Douglas, 411 U.S. at 802, 805, 93 S. Ct. at

1824, 1826 (assuming that the employer was aware of the proffered

reason at the time of the decision).   Although Summers reasoned
not that the after-acquired evidence would avoid liability but

instead that it would bar all remedies, the effect is the same,

and therefore the Summers rationale entirely eviscerates the

temporal holding in Price Waterhouse that an employer can rely on

a non-discriminatory justification for its action only if that

justification actually motivated it at the time of its decision.



                                20
          Having undermined the defendant's articulated

legitimate explanation, under the standard employment

discrimination burden-shifting scheme it would now be up to the

factfinder to determine if the plaintiff met his or her burden of

proving intentional discrimination.   By removing this basic issue

from the factfinder, courts applying the after-acquired evidence

doctrine depart from the settled framework.   Problematically,

courts that allow after-acquired evidence to bar liability allow

employers to make plaintiffs worse off for having a protected

characteristic.   That is because presumably, absent the wrong

done the employee, the employer would not have discovered the

"legitimate motive" evidence (at least during the relevant time

frame) and the employee would still be employed.   See Wallace,

968 F.2d at 1179 (observing that the Summers rule "excuses all

liability based on what hypothetically would have occurred absent

the alleged discriminatory motive assuming the employer had

knowledge that it would not acquire until sometime during the

litigation arising from the discharge" (some emphasis omitted)).

          To assure that the plaintiff is restored to the

position he or she would have occupied absent the employer's

unlawful discrimination, when the employer's motive was

exclusively discriminatory at the time of the decision (as is

assumed arguendo in the Summers-type cases), a legitimate reason
for the decision brought out later must not be used nunc pro tunc

by the employer to justify its actions.   See Welch, 23 F.3d at

____ WL at *4 (Arnold, J., dissenting) ("I think that the objects

of deterrence and compensation both require us to examine a

                                21
defendant's mind for what it contained, not what it might have

contained, to determine whether he has committed a wrong.").     An

employer's (assumed) discrimination is a deplorable wrong, and

the fact that the employer might have accomplished a like result

without maltreating the employee by employing different,

nonharmful means (from the point of view of federal law) -- that

is, by relying on legitimate instead of discriminatory reasons --

is beside the point, since if only it had used the other,

defensible means there would have been no injury and no cause for

the lawsuit.



2.   Victims of Invidious Employment Discrimination Have Standing

          Some members of the no-liability camp advance the

rationale that the plaintiff lacks standing because he or she was

not qualified for the position (qualification being an element of

the plaintiff's McDonnell Douglas prima facie case), an argument

pertaining to the employer's de jure, as opposed to Summer's de

facto, non-liability. See Dotson, 977 F.2d at 977-78; Gilty v.

Village of Oak Park, 919 F.2d 1247, 1251 (7th Cir. 1990).0     That

argument, however, is at odds with Supreme Court precedent.
0
 Cf. Williams v. Boorstin, 663 F.2d 109, 115-18 (D.C. Cir. 1980)
(reaching the same conclusion as Dotson and Gilty that the
plaintiff could not establish a prima facie case because he was
unqualified, but there the employer had discovered the employee
"lawyer" lacked a law degree before discharging him), cert.
denied, 451 U.S. 985, 101 S. Ct. 2319 (1981); Mantolete v.
Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985) (holding that the
district court did not abuse its discretion in allowing the
defendant to introduce after-acquired evidence to rebut the
plaintiff's prima facie case of qualification, but cautioning
that it would be improper for the employer to use such evidence
to justify its decision).

                                22
          The plaintiff's McDonnell Douglas prima facie case was

formulated to identify circumstances under which the

discriminatory motive or intent of the employer may be inferred.

See Hicks, 113 S. Ct. at 2747 (describing that the plaintiff's

prima facie case gives rise to a presumption of discriminatory

intent, which the defendant must rebut with evidence of a

legitimate reason); Burdine, 450 U.S. at 253-54, 101 S. Ct. at

1094 (explaining that the plaintiff's prima facie case must "give

rise to an inference of unlawful discrimination"); Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 576-77, 98 S. Ct. 2943, 2949-50

(1978) ("A prima facie case under McDonnell Douglas raises an

inference of discrimination only because we presume these acts,

if otherwise unexplained, are more likely than not based on the

consideration of impermissible factors."); Teamsters, 431 U.S. at

358, 97 S. Ct. at 1866.   This reading is substantiated by the

fact that the pliant McDonnell Douglas prima facie case is only

one of many alternative routes available for a plaintiff to

travel, amongst which is direct evidence bearing on discrimi-

natory intent.   See, e.g., United States Postal Serv. v. Aikens,

460 U.S. 711, 715, 103 S. Ct. 1478, 1482 (1978).0   Consequently,

what is relevant to the inquiry is the employer's subjective

assessment of the plaintiff's qualifications, not the plaintiff's

objective ones if unknown to the employer.0   In other words, the

0
 Even were the Dotson and Gilty "no standing" rationale
persuasive in McDonnell Douglas type cases, it could not help the
employer in cases (such as this one) where the plaintiff adduces
direct evidence of disparate treatment.
0
 Many courts construing Title VII or ADEA have so held. See,
e.g., Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369


                                23
strength of the inference of discrimination based on the prima

facie case is independent of the plaintiff's qualifications that

were unknown to the employer.

            The no-standing argument additionally runs counter to

the plain meaning of Title VII and ADEA.    Those statutes grant

standing to "any individual" discriminated against by a covered

employer.   See 42 U.S.C.A. § 2000e-2(a) (1981); 29 U.S.C.A. §


(7th Cir. 1993); Wallace, 968 F.2d at 1179; Smith v. General
Scanning, Inc., 876 F.2d 1315, 1319 (1989); Sabree v. United Bhd.
of Carpenters & Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir.
1990); Norris v. City & County of San Francisco, 900 F.2d 1326,
1331 (9th Cir. 1990); Hill v. Seaboard C. L. R.R. Co., 767 F.2d
771, 774 (11th Cir. 1985), aff'd on reh'g, 885 F.2d 804 (11th
Cir. 1989); Cuddy v. Carmen, 762 F.2d 119, 127 & n.12 (D.C.
Cir.), cert. denied, 474 U.S. 1034, 106 S. Ct. 597 (1985);
Eastland v. Tennessee Valley Auth., 704 F.2d 613, 626 (11th Cir.
1983), cert. denied, 465 U.S. 1066, 104 S. Ct. 1415 (1984); Lee
v. National Can Corp., 699 F.2d 932, 937 (7th Cir.), cert.
denied, 464 U.S. 845, 104 S. Ct. 148 (1983); cf. Price Water-
house, 490 U.S. at 252, 109 S. Ct. at 1791; Teamsters, 431 U.S.
at 369 n.53, 97 S. Ct. at 1872 n.53 (illustrating that an
employer may rebut a plaintiff's prima facie case by showing that
"the nonapplicant's stated qualifications were insufficient"
(emphasis supplied)); see also Regents of University of Cal. v.
Bakke, 438 U.S. 265, 320 n.54, 98 S. Ct. 2733, 2764 n.54 (1978)
("Having injured respondent solely on the basis of an unlawful
classification, petitioner cannot now hypothesize that it might
have employed lawful means of achieving the same result.").
          This temporal knowledge limitation distinguishes a
statutory unlawful discrimination claim from a contractual
wrongful termination claim. In contract actions, if one party
commits a material breach, the other party may generally use it
to justify nonperformance even if, at the time of its own
nonperformance, the second party was unaware of the first party's
material breach. See College Point Boat Corp. v. United States,
267 U.S. 12, 15-16, 45 S. Ct. 199, 200-01 (1925); REST.2D CONTRACTS
§ 385 cmt. a (1981); id. § 225 & cmt. e; id. § 237 & cmt. c; cf.
id. § 164 (fraudulent inducement makes a contract voidable). In
a contract claim, questions like unidentified misrepresentations
and the signing of an attestation clause are accordingly
important. But in our view it is specious to conflate the two
very different causes of action.


                                 24
623(a) (1985).       The result is no different if one focuses on the

definition of "employee" rather than "individual," since both

statutes define an "employee" as "an individual employed by an

employer."       42 U.S.C.A. § 2000e(f) (1981); 29 U.S.C.A. § 630(f)

(1985).    The point is that neither definition contains an

exception for individuals who would not have been employed by the

employer but for their fraud or misconduct, or for employees who

measured against some objectively defined criteria are "unquali-

fied." Congress having granted standing in the circumstances we

consider here, the matter is settled.       See Kenneth G. Parker,

Note, After-Acquired Evidence in Employment Discrimination Cases:

A State of Disarray, 72 TEX. L. REV. 403, 428 (1993) ("Simply put,

the ability of the plaintiff to sue is delineated by the statute

itself, and [the] remedy should be determined with reference to

the dual purposes of making the plaintiff whole and deterring a

discriminating employer.").


          3.    Victims of Invidious Employment Discrimination
                         Suffer Real and Legal Injury
               Summers understood that "McDonnell Douglas clearly

presupposes a `legitimate, nondiscriminatory reason' known to the

employer at the time of the employee's discharge."       864 F.2d at

705 (emphasis in original).       Summers reached its conclusion that

the employer would not be liable for the different, practical (as

opposed to legal) reason that, the plaintiff not having been

"injured," he or she could obtain no relief.       We disagree.




                                    25
             Reasoning that the plaintiff suffered no legal injury

from invidious discrimination when after-acquired evidence

reveals résumé fraud or work misconduct, see Summers, 864 F.2d at

708 (assuming that the employer's decision was motivated by an

illegitimate reason); McKennon, 9 F.3d at 541, 542 (same);

Milligan-Jensen, 975 F.2d at 305 (same); Washington, 969 F.2d at

255, 256-57 (same); Johnson, 955 F.2d at 415 (same), defies

common sense.    Imagine, for instance, an employer which

intentionally batters an employee who procured his or her

position through fraud or who falsified company records.       The

Summers rationale would bar the employee's recovery in an

appropriate action because the employee had no "right" to be

where he or she was at the moment of his or her injury.     Surely

that result flies in the face of reason and the whole body of

tort law.0    Accord Welch, 23 F.3d at WL at *4 (Arnold, J.,

dissenting).


0
 In Baab v. AMR Servs. Corp., 811 F. Supp. 1246 (N.D. Ohio 1993),
the court concluded in context of an intentional-infliction of
emotional distress claim tacked on to an employment discrimina-
tion suit that

             one could take the view that plaintiff should not
             complain of injury inflicted upon her at her workplace
             when, had the defendant been apprised of her
             wrongdoing, she would not have been there in the first
             place. This argument . . . misses the mark. The
             injury complained of here is injury to one's person and
             plaintiff is entitled to be free of that injury
             regardless of her status as a dischargeable employee.

Id. at 1262. But cf. Russell v. Microdyne Corp., 830 F. Supp.
305, 306-08 (E.D. Va. 1993) (supplanting the Summers rationale to
sexual harassment situations); Churchman v. Pinkerton's Inc., 756
F. Supp. 515, 518-21 (D. Kan. 1991) (same); Mathis v. Boeing


                                  26
          The rationale might have a stronger bite to it were the

only injury to the victim the adverse employment action per se;0

but, quite to the contrary, in an employment discrimination suit

the traumatic injury is having been subjected to the adverse

employment action because of one's race, sex, age, or other

protected characteristic, that is, having been unlawfully

discriminated against.   Put more dramatically, to maintain that a

victim of employment discrimination has suffered no injury is to

deprecate the federal right transgressed and to heap insult ("You

Military Airplane Co., 719 F. Supp. 991, 994-95 (D. Kan. 1989)
(same).
          Indeed, even one whom the defendant knows to be a
wrongdoer at the time of the defendant's actions is not too
unworthy in the eyes of the law to recover for an unprivileged
intentional or even a negligent tort. See REST.2D TORTS § 889 &
cmts. a, b (1979) ("One is not barred from recovery for an
interference with his legally protected interests merely because
at the time of the interference he was committing a tort or a
crime . . . ."); id. § 890 (discussing privileges); cf. id. § 870
& cmt. e (1979) ("One who intentionally causes injury to another
is subject to liability to the other for that injury, if his
conduct is generally culpable and not [privileged].").
          Certainly, the defendant who does not know that the
victim is a wrongdoer at the time the tort is committed has no
privilege to inflict the harm. And it would seem that if one has
no privilege --because there is missing some provocation or
circumstance establishing the privileges of self-defense, defense
of property, or defense of others -- to injure a known trespasser
deliberately, a fortiori one has no such privilege with respect
to someone invited onto the premises, albeit the invitation be
procured through trick.
0
 Although even were that the case an argument can be made that
the plaintiff was still legally injured since, absent the
discrimination, he or she would still have been employed and the
employer presumably would not have exposed the fraud or
misconduct for some unknown span of time. See Massey v. Trump's
Castle Hotel & Casino, 828 F. Supp. 314, 322 (D.N.J. 1993)
("Absent those illegal motives, the employee would still be
employed. Thus, an illegal discharge causes an injury regardless
of an employee's previous misconduct, and that injury must be
subject to some redress.").


                                27
had it coming") upon injury.   Cf. Richard Granofsky & Jay S.

Becker, After-Acquired Evidence in Employment Discrimination

Cases, 36 DEF. 19, 24 (1994) (referring to such employees as

"unworthy").   A victim of discrimination suffers a dehumanizing

injury as real as, and often of far more severe and lasting harm

than, a blow to the jaw.0   See H.R. REP. No. 40(I), 102d Cong.,

1st Sess. 15 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 553

("The Committee intends to confirm that the principle of anti-

discrimination is as important as the principle that prohibits

assaults, batteries and other intentional injuries to people.").

          In the 1991 Act, Congress understood as much and

changed the result reached in Price Waterhouse:   in cases decided

0
 See United States v. Burke, 112 S. Ct. 1867, 1872 (1992) ("It is
beyond question that discrimination in employment on the basis of
sex, race, or any of the other classifications protected by Title
VII is, as . . . this Court consistently has held, an invidious
practice that causes grave harm to its victims."); H.R. REP. No.
40(I), 102d Cong., 1st Sess. 14 (1991) ("Victims of intentional
discrimination often endure terrible humiliation, pain and
suffering while on the job. This distress often manifests itself
in emotional disorders and medical problems."), reprinted in 1991
U.S.C.C.A.N. 549, 552; id. at 66-69 (documenting the disastrous
effects of invidious discrimination on its victims), reprinted in
1991 U.S.C.C.A.N. at 604-07; Pauline Yoo, Note, The After-
Acquired Evidence Doctrine, 25 COLUM. HUM. RTS. L. REV. 219, 252 &
n.201 (1993) ("Discrimination can damage a victim emotionally,
psychologically, or physically."); id. at 243 & n.150 (same);
Cheryl K. Zemelman, Note, The After-Acquired Evidence Defense to
Employment Discrimination Claims: The Privatization of Title VII
and the Contours of Social Responsibility, 46 STAN. L. REV. 175,
199-200 (1993) [hereinafter Zemelman, The After-Acquired Evidence
Defense]; see also Civil Rights Act of 1991, Pub. L. No. 102-166,
§ 107(b), 105 Stat. 1075-76 (codified at 42 U.S.C.A. § 2000e-
5(g)(2)(B) (Supp. 1994)) (allowing a court to grant a victim in a
mixed-motives case declaratory and injunctive relief and to award
him or her attorneys' fees and costs even if the employer had a
legitimate, sufficient motive when it acted).



                                28
under the 1991 Act, the plaintiff is entitled to some relief even

if the employer actually would have taken the same action at the

same time absent any invidious motive.   See Civil Rights Act of

1991, Pub. L. No. 102-166, § 107, 105 Stat. 1075-76 (codified at

42 U.S.C.A. §§ 2000e-2(m), 2000e-5(g)(2)(B) (Supp. 1994)).

           Moreover, we think it clear that, where a federal right

has been violated, federal courts must provide a remedy.    The

right which is violated by an employer which discriminates on the

basis of a protected characteristic is not the employee's right

to the job, but the employee's right to equal, fair, and

impartial treatment, the violation of which frequently results,

inter alia, in a significant injury to the victim's dignity and a

demoralizing impairment of his or her self-esteem.   See supra at
Error! Bookmark not defined. n.Error! Bookmark not defined.; cf.

H.R. REP. No. 40(I) at 64-65, reprinted in 1991 U.S.C.C.A.N. at

602-03; Brown v. Board of Educ., 347 U.S. 483, 494, 74 S. Ct.

686, 691-92 (1954); see also Civil Rights Act of 1991, Pub. L.

No. 102-166, § 102, 105 Stat. 1072-73 (codified at 42 U.S.C.A. §

1981a(b)(3) (Supp. 1994)) (providing a plaintiff may recover

compensatory damages under Title VII for "emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses").   The plaintiff's deceit or

misconduct toward the employer is most appropriately considered

in the remedies stage, or in any claim compatible with the

federal anti-discrimination laws that the employer may properly

assert against the employee under appropriate state or federal

law.   See Massey, 828 F. Supp. at 323 ("[I]f the employer has

                                29
somehow been damaged by the plaintiff's misrepresentations or

misconduct on the job, it may seek its own damages where

appropriate.").

          The Summers rationale confuses the question whether the

employer injuriously discriminated against the employee with the

question whether the employee had an entitlement to the job.

Whether the employee had some "right" to the job in question is

not an issue in a Title VII or ADEA action; the issue is whether

the employer discriminated based on an impermissible factor.

Besides receiving no mention in the statutes, the "property

right" inquiry is irrelevant for the simple reason that both

Title VII and ADEA operate against the presumed backdrop of at-

will employment, meaning that the employee is presumptively not

entitled to the job, irrespective of résumé fraud or performance

misconduct.   Under the traditional employment-at-will doctrine,

an employer may discipline or terminate an employee for any

reason or no reason.0   Thus, if entitlement to the job were a

0
 See, e.g., Poff v. Western Nat'l Mut. Ins. Co., 13 F.3d 1189,
1191 (8th Cir. 1994) (Minnesota law); Richards v. General Motors
Corp., 991 F.2d 1227, 1234-35 (6th Cir. 1993) (Michigan law);
Hall v. Western Prod. Co., 988 F.2d 1050, 1058-59 (10th Cir.
1993) (Wyoming law); Carlson v. Arnot-Ogden Memorial Hosp., 918
F.2d 411, 414 (3d Cir. 1990) (Pennsylvania law).
          While the federal anti-employment discrimination laws
were not designed to impinge directly upon employer free choice,
indirect effects are inevitable. No doubt the federal employment
discrimination laws have curtailed the more excessive aspects of
the employment-at-will doctrine with respect to protected
persons. Now, a covered employer who arbitrarily and
capriciously terminates a protected person without any animus
toward the protected characteristic runs a not insubstantial risk
of liability. For example, the Supreme Court has intimated that
an arbitrary and capricious rationale may not meet the employer's
burden of rebutting a plaintiff's prima facie case of


                                30
prerequisite to liability or recovery, then no at-will employee

could recover under Title VII or ADEA -- but that plainly is not

the case. See Washington, 969 F.2d at 256 ("A `property right' in

one's job . . . is not a requirement in a federal discrimination

claim.").

            What is the case is that neither Title VII nor ADEA

strips a wrongdoing employee of his or her entitlement to

protection against unlawful discrimination.    Instead of focusing

on the worthiness of the victim, the statutes exclusively and

unambiguously fix on the employer's motives.   See Alexander v.

Gardner-Denver Co., 415 U.S. 36, 51, 94 S. Ct. 1011, 1021 (1974)

("Title VII's strictures are absolute and represent a congres-

sional command that each employee be free of discrimination."

(emphasis supplied)); Massey, 828 F. Supp. at 323 ("There is

nothing in [Title VII] itself to support a requirement that the

job had been acquired honestly.").    An employee's fraud or

misconduct, while bearing on his or her fitness for the job,

simply does not justify, excuse, or make harmless the employer's

intentional, invidious discrimination.   Because the Summers

approach ignores these precepts, thereby denying remedial justice

for a grievous injury, we reject that approach.


discrimination. See Burdine, 450 U.S. at 255, 101 S. Ct. at 1094
("The [legitimate] explanation [the defendant] provided must be
legally sufficient to justify a judgment for the defendant.");
McDonnell Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824 ("We
need not attempt in the instant case to detail every matter which
fairly could be recognized as a reasonable basis for a refusal to
hire."). Nevertheless, the employment-at-will doctrine has been
abridged only to the extent necessary to enforce the federal
employment discrimination laws.

                                 31
4.   Summers Ignores the Compelling Public Interest in Enforcement

           Besides slighting the very real injury suffered by a

victim of employment discrimination, the Summers rule disregards

that an act of employment discrimination is much more than an

ordinary font of tort law.   The anti-employment discrimination

laws are suffused with a public aura for reasons that are well

known.   Throughout this Nation's history, persons have far too

often been judged not by their individual merit, but by the

fortuity of their race, the color of their skin, the sex or year

of their birth, the nation of their origin, or the religion of

their conscientious choosing.   Congress has responded to these

pernicious misconceptions and ignoble hatreds with humanitarian

laws formulated to wipe out the iniquity of discrimination in

employment, not merely to recompense the individuals so harmed

but principally to deter future violations.

           The anti-employment discrimination laws Congress

enacted consequently resonate with a forceful public policy

vilifying discrimination.0   A plaintiff in an employment-

0
 See, e.g., Aikens, 460 U.S. at 716, 103 S. Ct. at 1482 ("The
prohibitions against discrimination contained in the Civil Rights
Act of 1964 reflect an important national policy."); Franks v.
Bowman Transp. Co., 424 U.S. 747, 778 n.40, 96 S. Ct. 1251, 1271
n.40 (1976) (stating that "claims under Title VII involve the
vindication of a major public interest" (internal quotations
omitted)); id. at 763, 96 S. Ct. at 1263 ("[Congress] ordained
that its policy of outlawing [discrimination on the basis of
race, religion, sex, or national origin] should have the `highest
priority' . . . ."); Alexander, 415 U.S. at 45, 94 S. Ct. at 1018
("[T]he private litigant not only redresses his own injury but
also vindicates the important congressional policy against
discriminatory employment practices."); cf. Newman v. Piggie Park


                                32
discrimination case accordingly acts not only to vindicate his or

her personal interests in being made whole, but also as a

"private attorney general" to enforce the paramount public

interest in eradicating invidious discrimination.0

          In sum, it appears that the employee's misconduct or

fraud is a possible wrong against the employer, whereas the

employer's discrimination is a wrong against the employee and

society at large. See Massey, 828 F. Supp. at 323 ("Any concern


Enters., 390 U.S. 400, 402, 88 S. Ct. 964, 966 (1968) (per
curiam) (decided under Title II of the Civil Rights Act of 1964)
(stating that Congress intended the struggle against discrimina-
tion to be a policy "of the highest priority").
0
 See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602, 101
S. Ct. 817, 824 (1981) ("Congress considered the charging party a
`private attorney general,' whose role in enforcing the ban on
discrimination is parallel to that of the [Equal Employment
Opportunity] Commission itself." (citing Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978)); New
York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 100 S. Ct.
2024, 2030-31 (1980); Albemarle Paper Co. v. Moody 422 U.S. 405,
415, 95 S. Ct. 2362, 2370 (1975); Alexander, 415 U.S. at 45, 94
S. Ct. at 1018; see also Newman, 390 U.S. at 401-02, 88 S. Ct. at
966 (decided under Title II of the Civil Rights Act of 1964).
          In the Civil Rights Act of 1991, by authorizing a court
to grant a victim of discrimination in a mixed-motives case
declaratory and injunctive relief and partial attorneys' fees and
costs, Congress again recognized the public interest in
eradicating discrimination even when the employer had acted at
the time of its decision for a legitimate reason that would have
propelled it to take the same actions standing alone. See Civil
Rights Act of 1991, Pub. L. No. 102-166, §107(b), 105 Stat. 1075-
76 (codified at 42 U.S.C.A. § 2000e-5(g)(2)(B) (Supp. 1994)).
That is, the 1991 Act reinforces the common sense notion that,
even if the plaintiff is entitled to no personal relief, at least
the remedies inuring to the public's benefit -- a declaratory
judgment, injunctive relief, and, derivatively, attorneys' fees,
see supra (discussing the litigant's role as a private attorney
general) -- should be considered in an after-acquired evidence
case. Since those remedies do not economically benefit the
plaintiff, that provision evidences a strong public policy in
favor of enforcement of the anti-employment discrimination laws.


                               33
we may have in awarding damages to employees who have acquired

their jobs improperly does not outweigh the plaintiff's statutory

right to recover . . . .").   The Summers approach unjustifiably

exalts the employer's purely private state right above the

employee's quasi-public federal one.



       5.   Non-Liability Undermines the Statutes' Purposes

            As described supra Part 31, Congress prescribed a

strong medicine, the anti-employment discrimination laws, to cure

the social malady of invidious discrimination.    Deterrence is

accomplished by placing an economic price on discriminatory acts,

and by exposing and stigmatizing the wrongdoer's acts before the

entire community.    We also bear in mind that, as remedial

statutes, Title VII and ADEA should be liberally construed to

advance their beneficent purposes.0    Unfortunately, the Summers

approach disregards that canon of construction and frustrates the

paramount objective of Title VII and ADEA, to deter violations of




0
 See, e.g., Hart v. J. T. Baker Chem. Co., 598 F.2d 829, 831 (3d
Cir. 1979) (Title VII); Oscar Mayer & Co. v. Evans, 441 U.S. 750,
765-66, 99 S. Ct. 2066, 2076 (1979) (Blackmun, J., concurring)
(ADEA); Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d
1221, 1229 (3d Cir. 1978) (in banc) (same); cf., e.g., Dennis v.
Higgins, 498 U.S. 439, 443, 111 S. Ct. 865, 868 (1991) (section
1983).
          One overriding lesson the 1991 Act tutors all but its
most unmindful reader is that Congress was unhappy with
increasingly parsimonious constructions of Title VII.
Essentially, Congress forcefully reminded courts of the canon
that Title VII and ADEA, as remedial statutes, are to be
construed liberally to promote their welfare purposes, equality
of treatment and employment opportunities.


                                 34
the law.0   See Wallace, 968 F.2d at 1180-81; cf. Price

Waterhouse, 490 U.S. at 265, 109 S. Ct. at 1798 (O'Connor, J.,

concurring) (stating that if "an illegitimate criterion was a

substantial factor in an adverse employment decision, the

deterrent purpose of [Title VII] has clearly been triggered."

(emphasis in original)).

            A strong deterrence policy is the needed stimulus to

propel otherwise indifferent employers into taking affirmative

steps to educate and discipline members of their workforce

insensitive to or disdainful of their co-workers' civil rights.

Economic penalties work as reliable engines to drive home

forcefully to rational employers the seriousness and solemnity of

our national policy denouncing discrimination, and thereby

inspire affirmative responses.   See Albemarle Paper, 422 U.S. at

417-18, 95 S. Ct. at 2371-72 ("It is the reasonably certain

prospect of a backpay award that provide[s] the spur or catalyst

which causes employers . . . to self-examine and to self-evaluate

their employment practices and to endeavor to eliminate, so far


0
 "The `primary objective' of Title VII is to bring employment
discrimination to an end." Ford Motor Co. v. EEOC, 458 U.S. 219,
228, 102 S. Ct. 3057, 3063 (1982) (citing Albemarle Paper, 422
U.S. at 417, 95 S. Ct. at 2371); see 28 U.S.C.A. § 621(b) (1985)
(listing the purposes of ADEA, including "to prohibit arbitrary
age discrimination in employment"); Zinger v. Blanchette, 549
F.2d 901, 905 (3d Cir. 1977) ("The primary purpose behind [ADEA]
is to prevent age discrimination in hiring and discharging
workers."), cert. denied, 434 U.S. 1008, 98 S. Ct. 717 (1978).
Compensating victims to make them whole, while also of great
weight, is a secondary objective. See Albemarle Paper, 422 U.S.
at 417-18, 95 S. Ct. at 2371-72; cf. Teamsters, 431 U.S. at 364,
97 S. Ct. at 1869 (stating that the deterrence and compensatory
purposes are "equally important").


                                 35
as possible, the last vestiges of an unfortunate and ignominious

page in this country's history." (internal quotations omitted));

cf. Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1506 & n.35

(1994) (recognizing that liability impacts "private parties'

planning"); City of Riverside v. Rivera, 477 U.S. 561, 575, 106

S. Ct. 2686, 2694 (1986) (plurality) (section 1983) (stating that

"the damages a plaintiff recovers contribute significantly to the

deterrence of civil rights violations in the future").0

0
 On the other hand, allowing employees or applicants who
committed fraud or misbehaved on the job to prevail will not
notably diminish their disincentive to wrong or deceive their
employers or their prospective employers. It seems unreasonable
to attribute to the wrongdoing employee or applicant the strategy
to lie to or cheat his or her employer or prospective employer
with the expectation that, if the employer unlawfully
discriminates against him or her, it will not be able to use that
wrongful conduct against him or her if discovered in the course
of the resulting proceedings. See Massey, 828 F. Supp. at 322
n.10 ("We find it preposterous that an employee would refrain
from lying [on a résumé or employment application] because she
anticipates that she may be illegally discriminated against later
and wants to preserve her right to recover damages.").
Applicants misrepresent their qualifications in order to secure
the employment in the first place, a powerful incentive that will
not be curtailed by the unlikely prospect, of which the great
bulk of applicants and employees will be unaware, that the
employer may discover the falsehood in an employment discrimina-
tion action and will be able to exploit it to bar the employee's
or applicant's claim. The applicant's incentive not to be
dishonest, and the employee's incentive not to breach his or her
duties of truthfulness, loyalty, and obedience, stem from the
fact that he or she is always subject to disciplinary measures if
the employer learns of the wrong outside the context of discovery
in an employment discrimination case. The only applicant or
employee incentive that will wane if after-acquired evidence is
allowed to bar all liability is the plaintiff's vindication of
his or her federal rights when he or she is unlawfully
discriminated against, even where the discrimination is ongoing,
especially since any attorney the plaintiff might consult would
presumably become aware of the rule.
          We note in passing that many employers in fact
responsibly investigate applicants across-the-board before hiring


                               36
          Of course, the 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 thoroughly to

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.0   The prospect of a defendant's thorough


someone, and that the employer's need for truthful employment
applications has been sharpened with the spread of employer
liability for "negligent hiring." An employment-discrimination
suit brought by a discharged employee or unsuccessful applicant,
however, does not provide a sound business (as opposed to litiga-
tion) reason for the employer to begin investigating its ex-
employee's or applicant's honesty and fidelity.
0
 See James A. Burstein & Steven L. Hamann, Better Late Than Never
-- After-Acquired Evidence in Employment Discrimination Cases, 19
EMPLOYEE REL. L.J. 193, 202-03 (1993) ("[A]fter-acquired evidence
should be factored in crafting personnel policies. Foremost
among the considerations is to ensure that applications and
employee manuals expressly state that resumé fraud or application
misrepresentations will result in suspension pending discharge.
. . . Second, a prompt and thorough investigation of a
complaint's discrimination charge should be conducted."); David
D. Kadue & William J. Dritsas, The Use of After-Acquired Evidence
in Employee Misconduct and Resume Fraud Cases, 1993 LAB. L.J.
531, 531 [hereinafter Kadue & Dritsas, The Use of After-Acquired
Evidence] (stating that when an employee sues for employment
discrimination, commonly "the employer investigates the former
employee's background with special care"); George D. Mesritz,
"After-Acquired" Evidence of Pre-Employment Representations: An
Effective Defense Against Wrongful Discharge Claims, 18 EMPLOYEE
REL. L.J. 215, 215, 222-25 (1992) ("Management should respond to
this favorable development [-- the judicial recognition of the
after-acquired evidence doctrine --] by routinely searching for
pre-employment misrepresentations as a potential defense in all


                                37
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.0

Placed in context of the general pervasiveness of résumé fraud

and employee misconduct,0 the likely consequence of the wide-

discharge litigation. Employers in turn should maximize the
probability that `after-acquired' evidence is available as a
defense by revising employment applications to elicit even more
specific information."); Robert M. Shea, Posttermination
Discovery of Employee Misconduct: A New Defense in Employment
Discrimination Litigation, 17 EMPLOYEE REL. L.J. 103, 103-04, 109
(1991) [hereinafter Shea, Posttermination Discovery of Employee
Misconduct] (explaining that Summers "gives employers a legal
basis and, more importantly, a good reason for taking a broader
approach to discovery in employment discrimination litigation"
and advising employers to "scrutinize representations made by the
plaintiff during the hiring process" and to look for "previously
undiscovered misconduct"); William S. Waldo & Rosemary A. Mahar,
Lost Cause and Found Defense: Using Evidence Discovered After an
Employee's Discharge to Bar Discrimination Claims, 9 LAB. LAW. 31,
32, 40-42 (1993) (advising defense counsel to "leave no stone
unturned in ferreting out any evidence" of résumé fraud or
employment misconduct by conducting "a thorough post-termination
investigation").
0
 See Massey, 828 F. Supp. at 323 (reasoning that "the use of
after acquired evidence to bar a discrimination claim in its
entirety could cause employees who did something wrong in the
past to quietly endure discriminatory treatment rather than
complain, regardless of how long ago the misconduct occurred or
its triviality"). Moreover, the inevitable "fishing expedition[]
. . . for `minor, trivial or technical infractions,'" Washington,
969 F.2d at 256 (quoting O'Driscoll v. Hercules, Inc., 745 F.
Supp. 656 (D. Utah 1990)), might curtail the success of victims
of employment discrimination in bringing lawsuits and thereby
erode the effectiveness of Title VII and ADEA. See, e.g.,
McKennon, 9 F.3d at 540-41 & nn.1 & 3 (describing the employer's
masterful use of after-acquired evidence).
0
 By all accounts, résumé fraud is a serious and recurrent problem
facing employers. See, e.g., Mitchell H. Rubinstein, The Use of
Predischarge Misconduct Discovered After an Employee['s]
Termination as a Defense in Employment Litigation, 24 SUFFOLK U.


                               38
spread exploitation of after-acquired evidence will be underen-

forcement of Title VII and ADEA, and consequently underdeterrence

of discriminatory employment practices.0

          This leads us to a final reason why liability is proper

in a Title VII or ADEA after-acquired evidence case, namely, the

other paramount objective of those statutes "`to make persons

whole for injuries suffered on account of unlawful employment

discrimination.'" Franks, 424 U.S. at 763, 96 S. Ct. at 1264

(quoting Albemarle Paper, 422 U.S. at 418, 95 S. Ct. at 2372);

see id. at 764, 96 S. Ct. at 1264 (stating that the plaintiff

should be made "whole insofar as possible"); see Albemarle Paper,
422 U.S. at 418-21, 95 S. Ct. at 2372-73; supra at Error!
Bookmark not defined. n.Error! Bookmark not defined..   Of course,

the corollary to the make-whole directive is that the protected

L. REV. 1, 1 n.2 (1990); Shea, Posttermination Discovery of
Employee Misconduct, 17 EMPLOYEE REL. L.J. at 403 n.3; Zemelman,
The After-Acquired Evidence Defense, 46 STAN. L. REV. at 176 n.5;
see also Douglas L. Williams & Julia A. Davis, Title VII Update
-- Skeletons and a Double-Edged Sword, C669 A.L.I.-A.B.A. 303,
305 (1991) ("At one time or another probably every employee
commits an infraction at work and hopes that the boss never finds
out.").
0
 Some courts have tried to deal with the problem of
underenforcement by requiring the fraud or misconduct to be
material before accepting the employer's defense, see, e.g.,
O'Driscoll, 12 F.3d at 180, but the meaning of materiality has
not been settled. For example, at least one court confronted
with a boilerplate attestation clause in an employment
application has held that the misrepresentation itself, whether
material or not standing alone, became material by virtue of the
clause, rendering the materiality requirement largely
meaningless. See Milligan-Jensen, 975 F.2d at 303-04 & nn. 1 &
2; cf. Johnson, 955 F.2d at 414 (holding that an employer's
asserted actual reliance upon the plaintiff's misrepresentation
made it material as a matter of law); Gilty, 919 F.2d at 1251
(holding that a plaintiff's misrepresentation ipso facto rendered
him unqualified for the job).


                               39
employee is not to be catapulted into a better position than he

or she would have enjoyed had the employer not acted unlawfully.

See Burdine, 450 U.S. at 259, 101 S. Ct. at 1096 ("Title VII

. . . does not demand that an employer give preferential

treatment

to minorities or women."); cf. Mt. Healthy, 429 U.S. at 285-86,

97 S. Ct. at 575.

            Keeping in mind the aspiration, then, that the

plaintiff should be left in the same position as he or she was in

before the discrimination, the bottom line is straightforward.

On the one hand, holding the employer liable and providing the

victim appropriately fashioned remedies would restore the victim

to his or her prior position, not a better one than had he or she

not suffered from unlawful discrimination.   On the other hand,

barring all remedies would leave the victim in a worse position

than had the employer not unlawfully discriminated against him or

her (in which case the employee assumedly would still be

employed), and elevates the employer to a superior position

insofar as it lets the employer get off scot-free despite its

blameworthy conduct.    These two observations hold true especially

in instances where the employer's discovery of the after-acquired

evidence was brought about due to the legal proceedings

instituted in response to the employer's wrongful acts, since in

those cases, absent the discrimination, the employer may never

have discovered the evidence (or at least not until some

indeterminate future time).    See Wallace, 968 F.2d at 1179-80;



                                 40
Welch, 23 F.3d at WL at *3 (Arnold, J., dissenting);0 cf. John

Cuneo, Inc., 298 N.L.R.B. 856, 856 (1990).   In short, a major

weakness of the Summers approach is that it does not restore a

victim to the position he or she would have occupied but for the

discrimination.



                           6.   Summary

          For all the foregoing reasons, we hold that after-

acquired evidence is inadmissible, because irrelevant, at the

liability stage of a cause of action brought under Title VII or

ADEA.   We do not rule out the potentiality that such evidence may

0
 We think that Judge Arnold got the better of the argument in his
dissent in Welch:

          I respectfully suggest that the court errs in
          concluding that if defendant can show that it would
          never have hired Mr. Welch but for his
          misrepresentation, then Mr. Welch will be in no worse
          position than he would have been but for the alleged
          illegal act. The crucial points are that the defendant
          did hire him and did not know of the facts that might
          have led to Mr. Welch's discharge until it discovered
          them because suit was filed against it. The defendant
          might never have learned of those facts, or it might
          have learned of them fortuitously at some later time.
          Until it did so, those facts could hardly provide an
          excuse for termination, since they could not have
          provided any part of the defendant's motive. If Mr.
          Welch is not compensated for losses suffered between
          the time he would have been fired on account of the
          discovery of relevant facts, he is not in the same
          position he would have been in but for a wrong commit-
          ted against him, and the purpose of the protective
          legislation is entirely lost.
                  . . . The plaintiff does not seek to benefit
          from his misrepresentation, if any. He seeks simply to
          have the law applied to him in an evenhanded way.

Id. at ____ *3.


                                41
serve as the foundation for a claim of fraud, conversion, or the

like by the employer against the plaintiff in an appropriate

forum, but only that it may not be introduced substantively for

the purpose of defending against liability. We must accordingly

reverse the district court's grant of summary judgment to

Harleysville and remand for further consideration.



                     B.   The Remedies Stage

          Because the district court must proceed further with

this case and may well have to reach the remedies stage, for the

guidance of that court on remand we will make a few comments

about the remedies facet of the case.   We note in this regard

that the questions of how the after-acquired evidence may be used

harmoniously with Title VII's and ADEA's language and goals, and

of what remedies should inure to a plaintiff in an after-acquired

evidence case, seem to be far more stubborn than the liability

issue.

          First, after-acquired evidence of résumé and/or

application fraud or employer misconduct on the job is relevant

to at least some issues at the remedies stage (and hence is

admissible at that point), even if it has surfaced after the

employer's searching inquiry in the aftermath of the employer's

unlawful conduct or in the course of its trial preparation.0     The

0
 We observe that in a normal Title VII or ADEA case, evidence
acquired before the adverse employment decision might, as a
prophlactic measure, be inadmissible altogether if the plaintiff
could show that the employer had a practice of thoroughly
investigating the information provided in employment applications
and interviews by, and of comprehensively reviewing on-the-job


                               42
court should, of course, be cautious lest the remedies evidence

affect the liability verdict.

          Second, at the remedies stage, the district court must

bear in mind Title VII's and ADEA's two principal objects:

deterrence and compensation.    See Albemarle Paper, 422 U.S. at

421, 95 S. Ct. at 2373; Griggs v. Duke Power Co., 401 U.S. 424,
429-30, 91 S. Ct. 849, 853 (1971); supra at Error! Bookmark not


performance of, only or primarily only the members of a protected
class with the motive to discover flaws justifying an adverse
employment action, for such a practice would probably contravene
Title VII and ADEA. Assuming it were so, since the filing of the
lawsuit would appear to be an activity protected to the same
extent as membership in another protected class, see 42 U.S.C.A.
§2000e-3(a) (1981) ("It shall be an unlawful employment practice
for an employer to discriminate against any of his employees or
applicants for employment . . . because he has opposed any
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter."); 29 U.S.C.A. § 623(d) (1985)
(similar), it would seem to follow that the aforementioned
defense strategy of investigating employees who file complaints
with the intent to discover evidence retroactively justifying or
excusing the adverse employment decision may itself violate Title
VII and ADEA, and if so it might be contrary to the design of
those statutes to allow the employer to benefit from (introduce)
such evidence.
          Accordingly, an argument could be made that such
evidence should be excluded from consideration as the fruits of
unlawful retaliation even in the remedies stage of a Title VII or
ADEA suit. That is, if it were the case that the calculated
discovery of after-acquired evidence (as opposed to, for example,
its inadvertent or independent discovery) amounts to retaliation
under Title VII or ADEA, although it is exceedingly unlikely that
any economic damages would flow therefrom, it may very well be
that any evidence so stained would have to be suppressed at the
remedies stage of the proceedings, except perhaps to show that
reinstatement would threaten the public health, safety, or
welfare, or would otherwise violate a public policy on par with
the one antithetical to employment discrimination. This
argument, however, was not advanced in this case until oral
argument, and we shall decline to further consider it.


                                 43
defined. n.Error! Bookmark not defined..   Congress has from Title

VII's inception expected courts to fashion remedies guided by the

acts' twin central goals.   See Franks, 424 U.S. at 763-64, 96 S.
Ct. at 1263-64.   To advance these goals, a district court is

under the "`duty to render a decree which will so far as possible

eliminate the discriminatory effects of the past as well as bar

like discrimination in the future.'" Franks, 424 U.S. at 770, 96

S. Ct. at 1267 (quoting Albemarle Paper, 422 U.S. at 418, 95 S.

Ct. at 2372).0




0
 The same standard applies under ADEA. As we explained in
Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied,
436 U.S. 913, 98 S. Ct. 2254 (1978):

                  Monetary awards exacted from employers who
          practice unlawful discrimination serve two primary
          functions. First, the prospect of economic penalties
          more certainly deters illegal employment practice[s]
          than does exposure to injunctive relief or prospective
          equitable remedies such as reinstatement. Second,
          economic exactions recompense individuals for injuries
          inflicted by employers' discriminatory conduct. These
          prophylactic and compensatory purposes are the basis of
          most recent anti-employment discrimination legislation,
          including the ADEA and Title VII. Thus, the Supreme
          Court's mandate on the exercise of trial court's
          discretion in granting monetary relief in Title VII
          suits . . . is equally compelling in the context of
          ADEA actions . . . .
                  The make whole standard of relief should be the
          touchstone for the district courts in fashioning both
          legal and equitable remedies in age discrimination
          cases. Victims of discrimination are entitled to be
          restored to the economic position they would have
          occupied but for the intervening unlawful conduct of
          employers.

Id. at 1237-38 (citations omitted).


                                44
          Third, we illustrate these points with respect to the

most common remedy, backpay.     The Supreme Court has laid down the

general rule under Title VII that
          given a finding of unlawful discrimination, backpay
          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, 95 S. Ct. at 2373, quoted in

Franks, 424 U.S. at 771, 96 S. Ct. at 1267.     We have applied the

same standard to ADEA.     See Rodriguez, 569 F.2d at 1238 (quoting

Albemarle Paper as quoted supra).      But some courts cut backpay

off prematurely at the moment the employer obtains the after-

acquired evidence.     See, e.g., Kristufek v. Hussmann Foodservice

Co., 985 F.2d 364 (7th Cir. 1993); Smith, 876 F.2d at 1319 n.2

(dicta); cf. John Cuneo, 298 N.L.R.B. at 856.      This formula is,

however, inconsistent with the effectuation of the statutes'

deterrent and compensatory purposes, and we favor the normal rule

that, when otherwise appropriate, backpay should be awarded until

the date of judgment.     Accord Wallace, 968 F.2d at 1182; Massey,
828 F. Supp. at 323.

          We reach this result by considering the statutory

policies at stake.   Insofar as after-acquired evidence is

uncovered during the legal dispute and would not have been

discovered, at least for an indeterminate stretch of time, absent

the employer's unlawful acts, the plaintiff would be left in a

worse position because of the discrimination if the court were to

make use of that evidence to limit the victim's remedies, and the



                                  45
make-whole compensatory goal of the acts would not be reached.

Confining backpay to the discovery date would also dilute the

deterrent effect of Title VII and ADEA, an effect best promoted

with an award of backpay, see supra (quoting Albemarle Paper).

          On the other end of the scale weighs the policy of

allowing employers free choice (primarily encroached on by

reinstatement rather than by an award of backpay), see, e.g.,

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 527 (3d

Cir. 1992) (citing cases), and the difficulty in ignoring such

evidence insofar as it could be read as condoning the employee's

misbehavior, cf. Summers, 864 F.2d at 708 ("To argue . . . that

this after-acquired evidence should be ignored is utterly

unrealistic.").   But the fact that courts will not turn a blind

eye to employee fraud and misconduct is adequately demonstrated

in cases where the employer in fact bases its adverse employment

decision on the employee's wrongful actions, because then the

evidence is fully considered at every stage of the dispute, and

also perhaps in context of other remedies (like reinstatement) in

after-acquired evidence cases.

          There are occasions, of course, when after-acquired

evidence is useful in measuring backpay:    if the employer can

somehow insulate its illegal actions from its discovery of the

disfavorable evidence, it is free to act on it (keeping in mind
the prohibition against retaliation, see supra at Error! Bookmark
not defined. n.Error! Bookmark not defined.) to discipline its

employee, as there would be no causation.    One example is where

the employer would have inevitably discovered the evidence in the


                                 46
normal progression of things (that is, assuming no litigation).0

Alternatively, the employer may happen upon the evidence

completely independently of any investigation prompted by the

discriminatory employment action or its aftermath, including the

legal proceedings.0   Proof of either of these occurring would

entitle an employer to cut off all further liability from the

time the employer can establish with reasonable certainty the

date of the inevitable or independent discovery, so long as the

employer additionally shows that based upon that evidence it

indeed would have taken the same employment action at that time.

See Wallace, 968 F.2d at 1182 (ending backpay at the earlier of

(i) the date of judgment, and (ii) the date the employer can show

it would have discovered evidence, independently of the adverse

employment decision and the ensuing litigation, which would have




0
 See, e.g., Rodriguez, 431 U.S. at 403 n.9, 97 S. Ct. at 1897 n.9
(allowing the company to prove at trial that the applicant "would
not have been hired in any event"); Sabree, 921 F.2d at 405
(reducing damages if the employer would have inevitably
discovered that the plaintiff was ineligible for a transfer);
Smallwood v. United Air Lines, Inc., 728 F.2d 614, 626-27 (4th
Cir.) (holding that the plaintiff was not entitled to backpay
because the employer would have inevitably discovered his prior
misconduct and would not have hired him even had it not
discriminated against him), cert. denied, 469 U.S. 832, 105 S.
Ct. 120 (1984). But see Summers, 864 F.2d at 707 n.3 ("[T]he
probability that Summers' transgressions would have been
discovered in the absence of the trial is immaterial.").
0
 See Gilty, 919 F.2d at 1249, 1255-56 (holding that a discharge
was not retaliatory because a new police chief independently
undertook a comprehensive review of all the city's officers'
credentials); cf. Welch, 23 F.3d at WL at *3 (Arnold, J.,
dissenting) (referring to the defendant's "fortuitous" discovery
of the evidence).


                                47
led it to take the same adverse action with respect to the

employee); Massey, 828 F. Supp. at 324 (same).0

          Fourth, we must stress in terms of policy the

importance of the background rule of employer free choice.       The

federal anti-employment discrimination laws were designed not to

impinge directly upon employer free choice; that is, not to

interfere unnecessarily with legitimate business operations and

decisions.   See Burdine, 450 U.S. at 259, 101 S. Ct. at 1096

("[Title VII] was not intended to `diminish traditional

management prerogatives.'" (quoting United Steelworkers v. Weber,

442 U.S. 193, 207, 99 S. Ct. 2721, 2729 (1979)); Price

Waterhouse, 490 U.S. at 242, 109 S. Ct. at 1786 (stressing that

an "important aspect of [Title VII] is its preservation of an

employer's remaining freedom of choice").   For example, the

federal employment discrimination laws do not alter the

employment-at-will doctrine except in limited respects.    See
supra at 30 & n.Error! Bookmark not defined..     Their goal instead

is to restore the victim of the employer's illegal conduct to the
position he or she would have occupied absent the discrimination.

0
 For example, if the inevitable or independent discovery would
have preceded an applicant's hiring, probably no back pay would
be due. See Smallwood, 728 F.2d at 626. By contrast, declar-
atory and injunctive relief as well as attorneys' fees, properly
apportioned, might still be available. Moreover, in cases
governed by the Civil Rights Act of 1991, the plaintiff might
also be able to recover compensatory damages and, if the employer
acted "with malice or with reckless indifference to the federally
protected rights of an aggrieved individual," punitive damages,
see Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105
Stat. 1072-73 (codified at 42 U.S.C.A. §1981a(a)(1), (b)(1)
(Supp. 1994)), irrespective of inevitable or independent
discovery.


                                48
Thus, where an equitable remedy, such as reinstatement, would be

particularly invasive of the employer's "traditional management

prerogatives," the after-acquired evidence may bar that remedy.
Cf. supra at Error! Bookmark not defined. n.Error! Bookmark not
defined..



            For the foregoing reasons, we will vacate the district

court's order granting summary judgment to Harleysville, and

remand the case to the district court for further proceedings

consistent with this opinion.




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