McKennon v. Nashville Banner Publishing Co. Petitioners Response to Brief in Opposition

    No. 93-1543

In The

Suprem e C o u rt o f tfje Mm'teti £>tatz$
October Term, 1993

Christine McKennon,
Petitioner,

v.

Nashville Banner Publishing Co.,
Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

PETITIONER’S RESPONSE TO BRIEF 
IN OPPOSITION

Michael E. Terry 
150 Second Avenue, North 
Suite 3:5
Nashville, TN 37201 
(615) 256-5555 

(Counsel of Record)

E laine R. J ones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
E ric Schnapper 
NAACP Legal Defense & 

E ducational F und, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner

PRESS OF BYRON S. ADAMS. WASHINGTON. D.C. I -800-347-8208



TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................  ii

I. There  is a  Clear Conflict Between
the Circuits Concerning the 
Consequences of After-Acquired 
Ev id e n c e ................................................................. 1

II. The Position of the United States in 
Milligan-Jensen is R elevant to 
Whether  Certiorari Should Be
Granted in This Case.......................................... 3

Conclusion ........................................................................  5



TABLE OF AUTHORITIES

Cases: Pages:

Kristufek v. Hussmann Foodservice Co., 985 F.2d 364 (7th 
Cir. 1993) ...................................................................... 2

Milligan-Jensen v. Michigan Technological Univ., 975 F.2d
302 (6th Cir. 1992), cert, granted,___U .S .___ , 125
L.Ed.2d 686, cert, dismissed, 125 L.Ed.2d 773 
(1 9 9 3 )................................................................. 2 ,3

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . 3, 4

Summers v. State Farm Ins., 864 F.2d 700
(10th Cir. 1 9 8 8 )............................................................ 2

Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th
Cir. 1992) ......................................................................2

Washington v. Lake County, 111., 969 F.2d 250 (7th Cir.
1992) ...............................     2

Welch v. Liberty Machine Works, In c .___F.3d _
(8th Cir. No. 93-2670, May 6, 1994) ..........................3

Statutes: Pages:

Civil Rights Act of 1991 3



No. 93-1543

In The

Suprem e C ou rt ot t|)t Uru'teb H>tat
O ctober Term , 1993

Christine McKennon,
Petitioner,

v.

Nashville Banner Publishing Co .,
Respondent.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

PETITIONER’S RESPONSE TO BRIEF IN 
OPPOSITION

I.

T h e r e  is  a  C l e a r  C o n f l ic t  B e t w e e n  t h e  
C ir c u it s  C o n c e r n in g  t h e  C o n s e q u e n c e s  o f  

A f t e r -A c q u ir e d  E v id e n c e

Respondent argues that there is no conflict between 
the circuits on the question of the after-acquired evidence 
doctrine because all of the circuits that have ruled have 
adopted the doctrine. Respondent misconstrues the 
different positions of the circuits and, therefore, does not 
properly analyze whether there is a conflict.

The conflict is not over whether after-acquired 
evidence that would support the challenged employment



2

decision if it had been known at the time should or should 
not be considered by a court deciding an employment 
discrimination claim. Rather, the dispute is over the effect 
of the after-acquired evidence on whether or not it bars any 
relief for a plaintiff who has suffered illegal discrimination. 
That conflict is real and consequential.

As respondent acknowledges, the Tenth and Sixth 
Circuits bar any remedy.1 (Brief in Opposition, p. 11.) The 
Eleventh Circuit, on the other hand, has squarely rejected 
the Tenth Circuit rule and has held that the effect of after- 
acquired evidence is only to limit the remedy available, not 
to defeat liability.2 (Id.) The Seventh Circuit has been 
equivocal, indicating that at least in some cases all relief will 
not be barred.3 (Id. at 10-11.)4

The conflict is not, as respondent would have it, over 
"slightly different approaches." (Id. at 11.) If the present 
case had arisen in the Eleventh Circuit, for example, the 
burden would have been on respondent to prove that it 
would have discovered petitioner’s alleged misconduct even

1Summers v. State Farm Ins., 864 F.2d 700 (10th Cir. 1988); 
Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.
1992), cert, granted,___U.S.___ , 125 L.Ed.2d 686, cert, dismissed, 125
L.Ed.2d 773 (1993).

2Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992).

3Compare Washington v. Lake County, III, 969 F.2d 250 (7th Cir. 
1992) with Kristufek v. Hussmann Foodsennce Co., 985 F.2d 364 (7th 
Cir. 1993).

“The Eighth Circuit has recently decided to follow Summers
rather than Wallace. Welch v. Liberty Machine Works, In c .,__ F.3d
__ (8th Cir. No. 93-2670, May 6,1994). However, the Eighth Circuit
also imposed a heavy burden on the employer of establishing that the 
policy that allegedly would have justified the employee’s termination 
pre-dated the challenged personell action, and held that self-serving 
affidavits by company officials were not sufficient.



3

in the absence of the litigation (a highly dubious 
proposition) and when it would have made that discovery. 
Petitioner would have been entitled to back pay (and, under 
the Age Discrimination Act, perhaps liquidated damages) up 
to that point, as well as her attorneys’ fees. Under the Sixth 
and Tenth Circuit rules she was entitled to nothing even 
though she was (as must be assumed in the posture of the 
case as it stands now) the victim of age discrimination and 
even though, in the absence of her justified fear of being 
illegally fired, she would not have committed the alleged 
misconduct.

In short, there is as much disarray between the 
circuits over whether another reason for a challenged 
employment decision bars a finding of liability or only limits 
relief as the disarray that led this Court to grant certiorari 
in Price Waterhouse v. Hopkins, 490 U.S. 228, 238 n.2 (1989). 
The issue presented here is equally as important as in that 
case, the conflict is as great, and a grant of certiorari is as 
necessary and justified.

II.

The Position of the United States in  Milligan- 
Jensen  is Relevant to Whether Certiorari Should 

Be Granted in This Case.

In its brief, respondent seeks to discount the position 
taken by the United States in Milligan-Jensen v. Michigan 
Technological Univ., 975 F.2d 302 (6th Cir. 1992), cert.
granted, ___U .S .___ , 125 L.Ed.2d 686, cert, dismissed, 125
L.Ed.2d 773 (1993) by suggesting that that position 
depended on the Civil Rights Act of 1991 being applicable 
here. This is not the case, however. The government’s 
argument was that the after-acquired doctrine of the Tenth 
and Sixth Circuits undermined enforcement of the anti- 
discrimination laws. In addition, its brief in support of a 
grant of certiorari in Milligan-Jensen pointed out that the



4

doctrine was inconsistent with this Court’s decision in Price 
Waterhouse v. Hopkins, supra, which, of course, predated the 
1991 Act. (Brief for the United States and the Equal 
Employment Opportunity Commission as Amici Curiae in 
No. 92-1214, p. 10.) Its reference to the 1991 Act 
acknowledged that it was not directly applicable, but noted 
that it was an expression by Congress that discrimination 
constitutes a violation of the law, and that the existence of 
an alternative reason for the challenged employment action 
should not defeat liability under the anti-discrimination 
statutes. (Id. at 12.)

Finally, the now-superseded EEOC Policy Guidance 
cited by respondent at pages 21-22 of its brief supports 
petitioner’s argument that liability is not barred by after- 
acquired evidence. In the paragraph quoted by respondent, 
the EEOC states unequivocally that the plaintiff is entitled 
to some relief, although the employer may be able to limit 
that relief. Whether this states the proper rule, and the 
extent to which full relief should be limited, are precisely the 
issues presented by this case.5

5In addition to supporting the grant of certiorari in Milligan- 
Jenseti, the EEOC filed an amicus brief and argued in support of 
petitioner when this case was before the Sixth Circuit.



5

C o n c l u s io n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

Michael E. Terry 
150 Second Avenue, North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 

(Counsel of Record)

Elaine R. Jones 
Director Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
Eric Schnapper 

NAACP Legal Defense & 
Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner