O'Day v. McDonnell Douglas Helicopter Company Plaintiff's Reply Brief

    UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 92-1565

DENNIS O'DAY,
Plaintiff-Appellant,

v.
MCDONNELL DOUGLAS HELICOPTER COMPANY

Defendant-Appellee.

On Appeal from the United States District Court 
For the District of Arizona

PLAINTIFF'S REPLY BRIEF

FRANCIS G. FANNING 
4025 S. McClintock 
Suite 202 
Tempe, AZ 85282 
(602) 838-4425

JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER
NAACP Legal Defense and 
Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

CORNELIA T.L. PILLARD
NAACP Legal Defense and 
Educational Fund, Inc. 
1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

Attorneys for Plaintiff-Appellant



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 92-1565

DENNIS O'DAY,
Plaintiff-Appellant,

v.
MCDONNELL DOUGLAS HELICOPTER COMPANY

Defendant-Appellee.

On Appeal from the United States District Court 
For the District of Arizona

PLAINTIFF'S REPLY BRIEF

FRANCIS G. FANNING 
4025 S. McClintock 
Suite 202 
Tempe, AZ 85282 
(602) 838-4425

JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER
NAACP Legal Defense and 
Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

CORNELIA T.L. PILLARD 
NAACP Legal Defense and 
Educational Fund, Inc. 
1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES......................................  ii
A R GUMENT..............................  1
I. MIXED MOTIVE ANALYSIS UNDERMINES RATHER THAN SUPPORTS

THE DECISION OF THE DISTRICT COURT ....................  2
A. Under The 1991 Civil Rights Act, A Mixed Motive is

a Partial Remedial Bar, Not a Complete Defense . . 3
B. After-Acquired Evidence Cannot Entirely Eliminate

O'Day's Backpay Claim ...........................  5
II. RECENT CIRCUIT COURT CASES SUPPLY ADDITIONAL AUTHORITY

IN SUPPORT OF REMAND.....................................11
A. This Court Should Follow The Approach of the

Eleventh Circuit in Wallace v. Dunn Construction
Co. . Inc. .........................................11

B. Even Recent Cases Relying on Summers v. State Farm 
Mutual Auto Ins. Co. Recognize The Right of a 
Plaintiff in O'Day's Circumstances to Obtain 
R e l i e f .............................................13

III. MDHC'S CONTENTION THAT NO REMEDY IS FEASIBLE HERE IS
CONTRARY TO THE ADEA'S MANDATE TO FASHION THE MOST 
COMPLETE RELIEF POSSIBLE ............................  16

IV. O'DAY'S CONDUCT IN COPYING THE EMPLOYEE RANKINGS WAS
PROTECTED ACTIVITY ....................................  19

CONCLUSION...................................................21

l



TABLE OF AUTHORITIES

CASES PAGES
Albemarle Paper Co. v. Moody.

422 U.S. 405 (1975) ....................................  17
Anderson v. Liberty Lobby.

477 U.S. 242 (1986) ....................................  18
Davis v. City and County of San Francisco. No. 91-15113,

1992 WESTLAW 251513 (9th Cir. Oct. 6 1992)................ 4
Kelly v. American Standard. Inc..

640 F. 2d 974 (9th Cir. 1981).............................. 4
Melnvk v. Adria Laboratories.

1992 U.S.DIST LEXIS 10584 (W.D.N.Y. July 2, 1992) ........  4
Mount Healthy City Board of Ed. v. Doyle,

429 U.S. 274 (1977) ...................................... 3
Price Waterhouse v. Hopkins. 490 U.S. 228 (1989) . . . .  3, 7
Reed v. Amax Coal Company, 971 F.2d 1295 (7th Cir. 1992) . . 14
Rose v. National Cash Register Corp..

703 F. 2d 225 (6th Cir. 1983)............................  17
Smallwood v. United Airlines. Inc.,

728 F. 2d 614 (4th Cir. 1984)............................  15
Smith v. General Scanning, Inc..

876 F. 2d 1315 (7th Cir. 1989) ......................  13 , 14
Summers v. State Farm Mutual Automobile Insurance Company,

864 F. 2d 700 (10th Cir. 1988) ...................... passim
Sutton v. Altantic Richfield. 646 F.2d 407 (9th Cir. 1981) . . 5
Wallace v. Dunn Construction Co., Inc..

968 F. 2d 1174 (11th Cir. 1992)...................... passim
STATUTES
28 U.S.C. § 2201  4
29 U.S.C. § 623 (d) ........................................  9
Pub. L. 102-166, 105 Stat. 1071

(Civil Rights Act of 1991).............................. 2-5
ii



ARGUMENT
The parties agree that the existence of an ADEA claim should 

not give an employee an advantage that he would not have had in 
the absence of discrimination. Brief of Defendant-Appellee, at 
4-15; Brief of Plaintiff-Appellant, at 16.1 Plaintiff-appellant 
Dennis 0'Day does not seek to be protected from any action 
McDonnell Douglas Helicopter Corporation ("MDHC") would have 
taken against him if MDHC had not discriminatorily refused him 
promotions and discharged him based on his age. MDHC refuses, 
however, to concede the logical corollary of the same principle, 
which is that an employer should not gain economic advantage or 
additional prerogatives over an employee because the employee 
suffers discrimination and files a claim.

MDHC asserts that after-acquired evidence of a legitimate, 
nondiscriminatory reason for discharge eliminates a 
discrimination plaintiff's right to backpay at a point earlier 
than the salary cutoff point of an employee in similar 
circumstances who was not subject to employment discrimination. 
Moreover, MDHC insists that its discriminatory decisions denying 
0'Day promotions and discharging him must be deemed appropriate 
based on conduct by O'Day which (a) did not occur until after the 
challenged promotion denials, and therefore cannot logically 
provide any basis for them whatsoever, (b) would not even have 
even happened had MDHC not discriminated, and which (c) MDHC 1

1 Hereinafter, citations to defendant-appellee MDHC's
brief appear as "Deft's. Br. at _," and citations to the opening
brief of plaintiff-appellant Dennis O'Day's appear as "Pltf's.
Br. at ."



cannot prove was such serious misconduct under MDHC policy that 
it would in the absence of discrimination have caused the 
discharge of an experienced, exemplary employee like O'Day.

The appropriate application of the after-acquired evidence 
doctrine requires precisely what MDHC decries (see Deft's. Br. at 
12) —  a fact-specific remedial analysis which strikes a balance 
between an employer's prerogative to make legitimate employment 
decisions and an employee's right to be free from illegal 
discrimination. This is the analysis that the Eleventh Circuit
recently adopted in Wallace v. Dunn Construction Co.,_Inc., 968
F.2d 1174, 1181 (11th Cir. 1992). This Court should follow 
Wallace. Because the district court failed to determine 
liability and to conduct an appropriate remedial analysis, the 
decision must be reversed and the case remanded. I.

I. MIXED MOTIVE ANALYSIS UNDERMINES RATHER THAN
SUPPORTS THE DECISION OF THE DISTRICT COURT

A principal authority on which MDHC relies is the "mixed- 
motive" doctrine, which MDHC contends provides a complete 
defense. Its reliance is misplaced for two main reasons. First, 
section 107 of the 1991 Civil Rights Act applies here, and that 
section provides that where legitimate as well as discriminatory 
reasons motivated a challenged employment decision, the plaintiff 
is still entitled to a remedy. Second, although the legitimate 
factors within a mixed motive may limit a plaintiff's remedy from 
the time of the adverse employment decision, a legitimate factor 
revealed through after-acquired evidence can only limit the

2



remedy from the time the factor is first known. Thus, while 
backpay may be wholly unavailable in a mixed motive case, some 
back pay should generally be awarded in an after-acquired 

evidence case.

A. Under The 1991 Civil Rights Act, A Mixed 
Motive is a Partial Remedial Bar, Not a 
Complete Defense_______________________

Congress last year amended mixed-motive doctrine in section 
107 of the 1991 Civil Rights Act. Far from supporting MDHC's 
position, the current mixed motive standard as set forth in the 
1991 Act unequivocally requires reversal of the district court's 
decision. MDHC contends that under the constitutional mixed-
motive analysis of Mount Healthy City Bd. of Ed._v_._Doyle, 429
U.S. 274 (1977), as applied to Title VII in Price Waterhouse v. 
Hopkins. 490 U.S. 228 (1989), "proof of an employer's lawful 
reasons for an adverse employment action will deprive the 
plaintiff of any remedy for unlawful discrimination, despite 
uncontradicted proof that the employer harbored an unlawful 
motive for its adverse employment action." Deft's. Br. at 10. 
This is simply not an accurate statement of the law. Where an 
employer can prove that it had lawful as well as discriminatory 
reasons for a challenged employment decision, section 107 of the 
1991 Act provides that the court "may grant declaratory relief, 
injunctive relief ... and attorney's fees and costs demonstrated 
to be directly attributable" to the pursuit of the discrimination 
claim. 1991 Civil Rights Act, section 107, Pub. L. 102-166, 105

3



Stat. 1071; see opening Brief of Plaintiff-Appellant, at 14-15. 
Under the 1991 Act, even if MDHC proved that it would have fired 
Dennis O'Day for copying the employee rankings, O'Day would still 
be entitled to a declaration that MDHC unlawfully discriminated, 
an injunction against future discrimination, and fees and costs 
for proving that MDHC discriminated. Moreover, if O'Day proved 
that the discrimination was willful, he would additionally be 
entitled to liquidated damages.2

Although MDHC relies on the mixed motive doctrine enunciated 
in the Price Waterhouse case, it nonetheless contends that 
section 107 of the 1991 Civil Rights Act, which was enacted 
specifically to amend Price Waterhouse, is inapplicable to ADEA 
claims. Deft's. Br. at 7, n.4; id. at 11, n.5. MDHC cannot have 
it both ways. By the same token that Price Waterhouse, developed 
in the context of Title VII claims, applies to this ADEA case, so 
does the 1991 Act. See, e.g. . Melnyk v. Adria Laboratories, 1992 
U.S.DIST LEXIS 10584 at *28, n. 5 (W.D.N.Y. July 2, 1992) 
(applying § 102 of 1991 Civil Rights Act to both Title VII and 
ADEA). Both Title VII and ADEA have parallel structures and 
remedial purposes, and the doctrine developed under one statute

2 Even if the plaintiff is not entitled to the full 
backpay award by which liquidated "double damages" are measured 
under the ADEA, full liquidated damages can be appropriate. The 
purpose of liquidated damages, unlike backpay, is not to make the 
employee whole, but to serve as a deterrent against particularly
egregious discrimination. Kelly v. American_Standardt— Inc..., 640
F.2d 974, 979 (9th Cir. 1981). An employee's misconduct may mean 
that less backpay is required to return him to where he would 
have been but for the discrimination, but it does not diminish 
the extent of the employer's illegal motive.

4



is routinely applied under the other. See. e.q., Sutton v. 
Altantic Richfield. 646 F.2d 407 (9th Cir. 1981) (applying 
McDonnell Douglas v. Green standards, developed under Title VII, 

to ADEA case).
Contrary to MDHC's assertion, Deft's. Br. at 7, n. 4, the 

1991 Civil Rights Act does apply to pending cases such as this 
one. This Court recently determined that "the language of the 
Act reveals Congress' clear intention that the majority of the 
Act's provisions be applied to cases pending at the time of its 
passage." Davis v. City and County of San Francisco, No. 91- 
15113, 1992 WESTLAW 251513 (9th Cir. Oct. 6, 1992). The only
provisions which this Court held do not apply are those which are 
expressly excepted from the general rule of immediate 
application. See 1991 Civil Rights Act, §§ 109(c), 402(b). MDHC 
itself has conceded that if the 1991 Act applies, "complete 
avoidance of liability is no longer guaranteed...." Deft's. Br. 
at 11, n.5. Davis reguires application of the 1991 Act here. 
Under the 1991 Act, the district court decision must be reversed, 
and the case remanded for a determination of liability and an 
appropriate remedy.

B. After-Acguired Evidence Cannot Entirely 
Eliminate O'Dav's Backpay Claim________

The second reason that MDHC's reliance on the mixed-motive 
doctrine is misplaced is that, unlike a nondiscriminatory reason 
in a mixed-motive case, an after-discovered reason cannot cut off 
backpay relief from the moment of of the disputed decision

5



onward, but only has the potential to limit backpay from the time
the nondiscriminatory reason is later discovered. In mixed-
motive cases, the legitimate motive is an actual cause of the
challenged employment decision, motivating the employer when the
decision is made. An after-acquired nondiscriminatory reason, in
contrast, is by definition not a reason that motivated the
employer at the time of the employment decision; rather, such a
reason emerges only later. Thus, provided that discrimination
can be proved, some backpay relief is required here, and the
district court therefore erred in granting summary judgment.

MDHC's contends, precisely to the contrary, that:
an employer's legitimate basis for terminating the 
plaintiff accrues at the moment the employee engages in 
the serious misconduct, not when the employer first 
learns of it. Therefore, such misconduct, ab initio, 
extinguishes the right to any remedies for harm the 
plaintiff suffers thereafter as a result of unlawful 
discrimination.

Deft's Br. at 14. This theory does not support remand in this 
case, is unfair to discrimination plaintiffs, and should be 
rej ected.

One reason that MDHC's theory of an "ab initio" backpay bar 
—  i.e. a bar that operates retroactively to the time of the 
alleged misdeed —  is incorrect in this case is that it assumes 
that MDHC could bear a factually impossible burden of proof. If 
he proves discrimination, O'Day is presumptively entitled to a 
remedy. MDHC then has the opportunity to prove that it would 
have taken the challenged adverse action in any event, and 
O'Day's relief is only reduced to the extent that MDHC bears that

6



burden. But MDHC simply cannot prove that, in the absence of its 
own age discrimination against O'Day, it would have discovered 
immediately that O'Day copied employee rankings and would have 
fired him outright.3

MDHC cannot prove it would have fired O'Day because the 
asserted nondiscriminatory reason for such firing would not even 
have occurred if MDHC had not discriminated. It is uncontested

3 MDHC asserts that it need only prove what it would have 
done by a preponderance of the evidence. Deft's. Br. at 18.
MDHC arrives at this conclusion by applying a rejected mixed 
motive analysis, and applying it out of context. This Circuit 
employs the higher clear-and-convincing evidence standard to a 
defendant who seeks to limit the remedies to which a victim of 
proven discrimination is presumptively entitled. See Pltf's.
Br., at 17 (citing cases).

Price Waterhouse, upon which MDHC relies, analyzed the mixed 
motive question as one of liability, not remedy, and therefore 
used the lower preponderance standard. Price Waterhouse itself, 
however, approved the use of the clear and convincing standard at 
the remedy phase. 490 U.S. at 253-54; see Brief of Amicus EEOC, 
at 21 n. 8. Section 107 of the 1991 Civil Rights Act has since 
made clear that the mixed motive issue is properly analyzed not 
as a defense to liability, but as a potential remedial bar —  
which is precisely how the Supreme Court in Price Waterhouse 
acknowledged this Circuit had analyzed the issue. 490 U.S. at 
238, n.2. Therefore, in light of section 107 of the 1991 Act, 
the higher proof standard should apply to mixed motive cases.

In any event, the after-acquired evidence doctrine is 
distinct from the mixed motive analysis even under Price 
Waterhouse. As the Supreme Court there made clear, the only 
motives that bear on liability are the actual motives present at 
the time of a disputed employment decision. Price Waterhouse,
490 U.S. at 241; see Pltf's. Br. at 13. After-acquired evidence 
relates to motives necessarily not present at the time, and thus 
necessarily presents a remedial and not a liability issue, 
subject to the higher proof standard.

The decision of the Eleventh Circuit in Wallace erroneously 
holds that the appropriate standard is preponderance of the 
evidence, and should not be followed in this regard. 968 F.2d at 
1181, n.ll.

7



that the very reason that O'Day sought to review the employee 
rankings was that he had been discriminatorily denied promotions. 
Any effort to reconstruct what would have happened had MDHC not 
discriminated against O'Day accordingly must conclude that O'Day, 
with his long record of good service to MDHC and lack of any 
disciplinary problems, would not have copied the rankings and 
would not have been fired at all. This case is quite 
significantly distinct in this regard from Summers v. State Farm 
Mutual Auto. Ins. Co. 864 F.2d 700 (10th Cir. 1988), in which an 
employee's chronic pre-discrimination misconduct happened to be 
uncovered during the course of litigation of his discrimination 
claim. Here, the asserted "misconduct" was triggered by the 
discrimination. MDHC has introduced no proof that O'Day would 
have copied employee rankings and been fired for it in the 
absence of the challenged promotion denials.

Even in the factual context of Summers. where misconduct 
independent of the pursuit of a discrimination claim came to 
light during litigation, the ab initio backpay bar MDHC proposes 
unfairly assumes the early discovery which MDHC has the burden to 
prove. A plaintiff's backpay period "should not terminate 
prematurely unless [the defendant] proves 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 [the] litigation." Wallace, 968 F.2d 
at 1182. MDHC proffered no such proof in the district court.

The approach MDHC proposes would also create an unfair

8



double standard against discrimination complainants. An example 
makes this clear: One employee violates a company rule on
January 1, 1990 and the violation is not discovered until 
December 31, 1990, when the employee is discharged for the 
violation. The employer cannot require the employee to pay back 
the salary for the entire year on the ground that, if the 
violation had been discovered in January, the employee would have 
been discharged then; rather, the offending employee's salary 
terminates as of the end of the year, on his actual discharge 
date. If a second employee committed the same violation on 
January 1990, was discriminatorily discharged in June, and his 
violation came to light also on December 31, 1990, however, 
defendant's proposed version of the after-acquired evidence rule 
provides that the discrimination victim —  who committed the same 
infraction which was later discovered by the employer on the same 
day as the first employee's infraction —  loses his right to seek 
backpay for the June to December period. A doctrine 
systematically disfavoring charging parties in this way is 
contrary to the statutory mandate of ADEA, and of federal anti- 
discrimination law generally, which seeks to ensures that 
discrimination victims suffer no adverse consequences from 
pursuing discrimination claims. See 29 U.S.C. § 623(d) (ADEA 
provision prohibiting reprisal).

Moreover, even assuming that MDHC were correct that the date 
of the misconduct itself rather than the date of discovery is the 
cutoff for backpay, reversal is required here because the

9



misconduct MDHC alleges in this case did not even occur until 
after the challenged discriminatory promotion denials. O'Day 
challenged promotions denied as early as April 1990, and did not 
copy the employee rankings until June. Thus, plaintiff has a 
discrimination claim and a corresponding right to seek backpay 
and other relief which are not even arguably affected by the 
photocopying which MDHC asserts justified the discharge. This 
chronology distinguishes the facts of this case from after- 
acguired evidence cases cited by MDHC which deal, for example, 
with resume and application fraud. Indeed, the fact that O'Day's 
promotion discrimination claims accrued prior to the alleged 
misconduct distinguishes this case from Summers. where the 
employee's misconduct predated the employer's discrimination.
The district court erroneously ignored O'Day's promotion claims 
in granting summary judgment for MDHC, and this reason alone 
reguires reversal.

The rationale for denying backpay in mixed motive cases is 
that an employee who would have been fired for independent 
reasons does not need backpay to restore him to where he would 
have been absent discrimination; if he would have been out of a 
job in any event, backpay compensation may be inappropriate. 
"Simply put," federal anti-discrimination law "does not limit an 
employer's freedom to make decisions for reasons that are not 
unlawful." Wallace. 968 F.2d at 1174. However, MDHC advocates 
what is, in effect, a doctrine of "constructive early discovery" 
of nondiscriminatory reasons for discharge, applicable only to

10



charging parties. This proposal must be rejected because it 
promises to place employees who violate company policies and who 
also have legitimate discrimination claims in a worse position 
than employees who violate policies but have no such claims.

II. RECENT CIRCUIT COURT CASES SUPPLY ADDITIONAL AUTHORITY
IN SUPPORT OF REMAND
A. This Court Should Follow The Approach of the

Eleventh Circuit in Wallace v. Dunn Construction 
Co., Inc.

Since O'Day filed his initial brief, the Eleventh Circuit in 
Wallace v. Dunn Construction Co.. 968 F.2d 1174, issued a lengthy 
and carefully reasoned opinion repudiating the Summers doctrine 
on which the district court relied. The court in Wallace stated 
"we reject the Summers rule that after-acquired evidence may 
effectively provide an affirmative defense to Title VII 
liability." Id. at 1181. Summers "is antithetical to the 
principal purpose of Title VII —  to achieve equality of 
employment opportunity by giving employers incentives to self­
examine and self-evaluate their employment practices and to 
eliminate, so far as possible, employment discrimination." Id. 
at 1180 (citations and quotations omitted).4 The court in 
Wallace accordingly held that after-acquired evidence of employee 
misconduct may only be used to deny front pay and reinstatement, 
and to limit a successful plaintiff's backpay entitlement to that

4 As MDHC itself comments, Courts consistently have 
recognized the same underlying remedial purpose" for both Title 
VII and the ADEA. Deft's. Br. at 7.

11



period before the defendant can prove it would have discovered 
the late-emerging non-discriminatory reason for the adverse 
employment action. 968 F.2d at 1182. Under Wallace. after- 
acquired evidence is not a defense against liability, nor does it 
eliminate entitlement to partial backpay, declaratory relief, 
liquidated damages, and fees and costs where otherwise 
appropriate. Id. at Id. at 1180-83.

This Circuit should reject the Summers rationale and follow
Wallace. The Court there properly recognized that Summers places
an employment discrimination plaintiff in a worse position than
if he had not been a member of a protected class:

The Summers rule does not encourage employers 
to eliminate discrimination. Rather, it 
invites employers to establish ludicrously 
low thresholds for "legitimate" termination 
and to devote fewer resources to preventing 
discrimination because Summers gives them the 
option to escape all liability by rummaging 
through an unlawfully discharged employee's 
background for flaws and then manufacturing a 
"legitimate" reason for the discharge that 
fits the flaws in the employee's background.

968 F.2d at 1180. The Wallace ruling, in contrast to Summers,
strikes a proper balance between the interest of the employer in
not being forced to continue the employment of an employee whose
conduct is unacceptable, and the employee's interest in not being
subjected to unlawful discrimination. It properly takes into
consideration the time lapse between the occurrence of the non-
discriminatory reason for termination and the later discovery of
that reason. It follows generally the rationale of the 1991
amendments to Title VII, and does nothing to unduly compromise

12



the legitimate interests of employers. It is clearly the more 
appropriate approach to the issue of after acquired evidence of 
misconduct.

B. Even Recent Cases Relying on Summers v. State Farm 
Mutual Auto Ins. Co. Recognize The Right of a 
Plaintiff in 0'Day's Circumstances to Obtain 
Relief___________________________________________

In Smith v. General Scanning, Inc.. 876 F.2d 1315 (7th Cir.
1989), the Seventh Circuit was faced with the issue of an after
acquired defense of resume falsification in an age discrimination
case. The Smith decision makes two significant points. First,
the court recognized that it is improper to give any
consideration to after-acquired evidence at the liability stage
of a case. The Smith court rejected the argument that the after
acquired evidence prevented the Plaintiff from making a prima
facie case of discrimination:

By narrowly focusing on Smith's initial burden as it 
concerned his qualifications, 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 Smith was terminated and after this suit was 
commenced. Whether GSI discriminated against Smith 
must be decided solely with respect to the reason given 
for his discharge, namely the RIF and reorganization.
His resume fraud is, for this purpose, irrelevant.

876 F.2d at 1319. As in Smith. O'Day has presented a prima facie
case of discrimination and the district court has assumed for
purposes of its decision that discrimination occurred.

A second point made in the Smith opinion that supports
remand in this case is that proof of an after-acquired non­

13



discriminatory reason for a discharge can only bar backpay from
when the reason is discovered, and not "ab initio" as MDHC
contends. The Smith court noted:

. . . Had we concluded that GSI violated the
ADEA when it terminated Smith, the question 
of reinstatement and backpay liability would 
arise. In that case, it would hardly make 
sense to order Smith reinstated to a job 
which he lied to get and from which he 
properly could be discharged for that lie.
See Summers v. State Farm Mutual Automobile 
Insurance Company. 864 F.2d 700, 704-05, 708 
(10th Cir. 1988). The same would be true 
regarding any backpay accumulation after the 
fraud was discovered. (Emphasis added)

876 F.2d at 1319, n.2.
The Seventh Circuit established another important limitation

on the Summers doctrine in Reed v. Amax Coal Company, 971 F.2d
1295 (7th Cir. 1992). In defense against plaintiff's claim of
racially discriminatory discharge, the defendant pointed to a
false statement on his employment application and argued that
Summers supported summary judgment in its favor. Rejecting that
argument, the court stated:

The Summers case is not as broad as Amax 
would have us believe. Summers and analogous 
cases require proof that the employer would 
have fired the employee, not simply that it 
could have fired him. We must require 
similar proof to prevent employers from 
avoiding Title VII liability by pointing to 
minor rule violations which may technically 
subject the employee to dismissal but would 
not, in fact, result in discharge.
Unlike the employer in Summers. Amax never 
proved that it would have fired Reed for 
lying on his application; it only proved that 
it could have done so. Amax did not, for 
instance, provide proof that other employees 
were fired in similar circumstances. . . .

14



We, therefore, may not affirm for the reasons 
given by the District Court.

971 F.2d at 1298 (citations omitted). In this case, there is no 
evidence that O'Day would have copied the rankings in the absence 
of MDHC's discrimination. If, however, there were such proof, 
the evidence MDHC submitted might permit, but certainly would not 
require, a reasonable jury to find that MDHC had authority to 
fire O'Day. MDHC's evidence, however, like the evidence in Reed. 
did not include any showing of what MDHC actually would have 
done. The absence of any evidence regarding the actual 
interpretation and application of MDHC's rules alone requires 
reversal.

The Fourth Circuit, too, has addressed this issue in a 
manner that counsels remand here. In contending that Smallwood 
v. United Airlines. Inc.. 728 F.2d 614 (1984) (Smallwood II).
cert, denied. 469 U.S. 832 (1984), supports the decision of the 
district court in this case, MDHC mischaracterizes that decision. 
Deft's. Br. at 11, n.6; id. at 12, n.7. Smallwood did not 
completely deny relief to the plaintiff, but rather granted 
injunctive relief. Id. at 617-18. The Court denied backpay and 
instatement in the job the which plaintiff had applied because it 
held that the defendant proved it would not have hired the 
plaintiff in any event had he not suffered hiring discrimination 
and his application been fully processed.

In sum, in cases in this Circuit, see Pltf's Br. at 11-12,

15



17, as well as in the Eleventh, Seventh, and Fourth Circuits, 
militate in favor of remand of this case to the district court 
for determination of an appropriate remedy. Moreover, for the 
reasons set forth above at 7-9, even under the rationale of 
Summers and of other cases following its approach, remand in this 
case is required.

III. MDHC'S CONTENTION THAT NO REMEDY IS FEASIBLE HERE IS
CONTRARY TO ADEA'S REQUIREMENT OF FULL RELIEF FOR
UNLAWFUL AGE DISCRIMINATION
MDHC suggests that, even assuming O'Day suffered unlawful 

discrimination, he should receive no relief because it would be 
too complicated to fashion the appropriate remedy. MDHC does not 
dispute that the after-acquired evidence doctrine announced in 
Summers is a doctrine not about liability but about potential 
limits on remedies. Deft's. Br. at 11 (discussing denial of 
remedy under Summers where defendant was presumptively liable for 
discrimination). The Company defends the district court's 
dismissal of plaintiff's entire case, however, by asserting that 
plaintiff is not entitled to even a partial remedy, so there is 
no point in determining liability. Deft's. Br. at 12-13. The 
basis of MDHC's assertion that no partial remedy is warranted, 
however, is simply that "piecemeal" remedies should be denied. 
MDHC concedes that requiring the courts to "sift through each 
available remedy under the ADEA (or Title VII) and determine the 
appropriate balance between the plaintiff's and employer's 
interests" is an approach that logically "might make sense" under

16



the "remedy-driven" Summers doctrine. Deft's. Br. at 11-12. The 
reason that MDHC offers against such an approach is simply that 
it would require a "case-by-case" approach to remedy, giving 
district courts an "unenviable" task of fashioning remedies on a 
fact-specific basis. Id.

Defining an appropriate remedy for discrimination, once it 
is proved, is not only eminently feasible, but is the statutory 
mandate. MDHC dismisses the Wallace court's success in 
fashioning an appropriate remedy in the context of that case as 
the result of "tortured" analysis. Deft's. Br. at 12. Such 
argument by epithet, however, cannot justify the failure of the 
district court in this case to acknowledge that MDHC did not 
disprove 0'Day's entitlement to any remedy.

Assuming that MDHC discriminated, plaintiff is presumptively 
entitled to a remedy. See. e . q. . Albemarle Paper Co. v. Moody. 
422 U.S. 405, 418-22 (1975). Even if MDHC partially overcomes 
that presumption by proving that O'Day would have been terminated 
at once when MDHC learned that he had copied the employee 
rankings, several of his ADEA remedies would be unaffected by 
such proof.5 Specifically, O'Day would retain at least an

5 MDHC contends that it "has established enough for a 
jury, without more, to find that plaintiff would have been 
terminated for his misconduct." Deft's. Br. at 22. That is 
simply not true. MDHC has never suggested that plaintiff would 
have copied the employee rankings had he not been 
discriminatorily denied a promotion. Moreover, whether O'Day 
might have been terminated does not bear on his promotion claims, 
which the district court also erroneously dismissed. In any 
event, in order to be entitled to summary judgment on an issue on 
which it bears the burden, what MDHC would have had to prove was

(continued...)
17



entitlement to (1) backpay up to the time when he would have been
discharged based on the after-acquired evidence; (2) declaratory
relief that MDHC discriminated; (3) liquidated damages if the
discrimination was willful; (4) an injunction against future
discrimination; and (5) attorneys fees and costs.

MDHC argues that a district court has broad discretion in
selecting legal and equitable remedies so long as the relief
granted is consistent with the purposes of the ADEA. Deft's. Br.
at 8-9. This argument appears to be an attempt to shift the
standard of review on appeal from the summary judgment standard
to review for abuse of discretion. MDHC's argument turns on its
head the reasoning of Albemarle. As the Supreme Court stated:

Congress' purpose in vesting a variety of 
"discretionary" powers in the courts was not to limit 
appellate review of trial courts, or to invite 
inconsistency or caprice, but rather to make possible 
the "fashion[ing] [of] the most complete relief 
possible.

420 U.S. at 421. An abuse of discretion argument is clearly 
inapplicable here. The court never considered the evidence in a 
full adversarial hearing, but rather ruled on summary judgment. 
The well established standard of review on summary judgment is de 
novo. The importance of this non-deferential standard is 
underscored in cases under ADEA, where the jury has authority to 5

5(...continued)
not that a jury could have agreed with its version of the facts, 
but that no reasonable jury could have disagreed. Anderson v. 
Liberty Lobby. 477 U.S. 242, 250 (1986). This it has failed to 
do. Contrary to MDHC's assertion, there is no requirement that 
plaintiff introduce evidence to controvert MDHC's showing where 
that showing is simply inadequate to meet MDHC's burden.

18



order remedies. Rose v. National Cash Register Corp., 703 F.2d

225 (6th Cir. 1983). The effect of the court's grant of summary- 
judgment was to take the case from the jury, and such a decision 
should be reviewed not with deference to the district court, but 
with special attention to plaintiff's right to a jury, and to as 
complete a remedy as possible for the discrimiantion he suffered.

IV. O'DAY'S CONDUCT IN COPYING THE EMPLOYEE RANKINGS WAS
PROTECTED ACTIVITY
The conduct which MDHC contends justifies denial of all 

relief in this case not only fails to provide such justification, 
but ifc itself protected conduct under the ADEA. O'Day discovered 
employee rankings highly relevant to his discrimination claims, 
and copied them in the reasonable belief that he needed to do so 
in order to preserve them for use in prosecuting his claims. Far 
from being conduct worthy of penalty, this conduct is protected. 
Indeed, MDHC's assertion that it converted O'Day's "layoff" 
status to "terminated" when it discovered that he had copied 
these documents amounts to an admission of unlawful reprisal 
under the ADEA. O'Day's photocopying is not only a wholly 
invalid basis for defeating his claims, but is an illegal basis 
for discharge as well.

MDHC asserts that O'Day could not have reasonably feared 
that the rankings would be destroyed because he did not know 
before he looked in Edwards' desk that, in addition to this own 
file —  which Edwards had earlier shown to him —  he would also 
find the rankings. Deft's. Br. at 26. However, the fact that

19



O'Day did not know of the existence of the rankings beforehand is 
in no way inconsistent with his belief, once he did discover 
them, that they might soon be deposited in one of the 
conspicuously located MDHC shredding bins. The reasonableness of 
O'Day's conduct, as well as the validity, if any, of MDHC's 
contention the O'Day's conduct was disruptive to MDHC's business, 
are on this record fact questions for the jury.

20



CONCLUSION

For all of the foregoing reasons, and the reasons stated in 
the initial Brief of Plaintiff-Appellant, Dennis O'Day, 
respectfully requests that the Court reverse the decision of the 
District Court and remand this matter for a trial on the merits 
of O'Day's claims.

Tempe, Arizona 85282 
(602) 838-4425

JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

CORNELIA T.L. PILLARD
NAACP Legal Defense and 
Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Plaintiff-Appellant

November 6, 1992

21



CERTIFICATE OF SERVICE

were

COPIES of the foregoing Reply Brief of Plaintiff-Appellant 
mailed this (p day of November, 1992 to:

Tibor Nagy, Esq.
SNELL & WILMER 
1500 Citibank Tower 
One South Church Avenue 
Suite 1500
Tucson, Arizona 85701-1612 
Attorney for Defendants/Appellees
Robert J. Gregory
EEOC OFFICE OF GENERAL COUNSEL
1801 L Street, N.W.
Washington, D.C. 20507
Robert E. Williams 
Douglas S. McDowell 
Ann Elizabeth Reesman
MCGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington,

BY