McKennon v. Nashville Banner Publishing Co. Brief for Petitioner

    No. 93-1543

I n  T h e

S u p rem e  C ou rt of tf)e Mnitetr g>tate£
Oc t o b e r  T e r m , 1994

Christine McKennon,
Petitioner,

v.

Nashville Banner P ublishing Co.,
Respondent.

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

for the Sixth Circuit

BRIEF FOR PETITIONER

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

(Counsel of Record)
E laine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
E ric Schnapper 
NAACP Legal Defense & 
E ducational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner



1

QUESTION PRESENTED

Whether an employer that has violated a federal anti- 
discrimination law can avoid all liability if, after the violation 
has occurred, new information is discovered which the 
employer claims would have provided a basis for dismissing 
the employee before the violation.



11

PARTIES

All of the parties who participated below are set out 
in the caption.



Ill

TABLE OF CONTENTS

QUESTION PRESENTED ..........................   i

PARTIES ........................................     ii

JURISDICTION ..................................................   1

STATUTE INVOLVED ..................................................  1

STATEMENT OF THE CASE ......................................  1
A. The Proceedings B elow .............................  1
B. The Nature of Petitioner’s

Discrimination C laim s...............................  2
C. The After-Acquired In fo rm ation ............  4

SUMMARY OF A R G U M E N T ......................................  7

ARGUMENT ...................................................................... 8

I. INTRODUCTION ...............................................   8

II. THE SIXTH CIRCUIT’S AFTER- 
ACQUIRED INFORMATION RULE 
FOR DISCRIMINATION CASES IS
INCONSISTENT WITH ESTABLISHED 
PRECEDENT CONCERNING OTHER 
FEDERAL STATUTES AND 
EMPLOYEE R IG H T S ......................................  13

III. AFTER-ACQUIRED INFORMATION
THAT MIGHT WARRANT DISMISSAL 
OF AN EMPLOYEE DOES NOT 
PRECLUDE A FINDING OF LIABILITY 
UNDER THE A D E A ............ ...........................  21

IV. AFTER-ACQUIRED INFORMATION 
THAT MIGHT WARRANT DISMISSAL 
OF AN EMPLOYEE MAY LIMIT, BUT



IV

IS NOT A COMPLETE BAR TO, 
RELIEF UNDER THE A D E A ___

THE DECISIONS BELOW MUST BE 
R E V E R S E D ...............................

CONCLUSION

. . 30

. . 42

. . 49



V

TABLE OF AUTHORITIES

Cases: Pages:

A.A. Superior Ambulance Service,
292 N.L.R.B. 835 (1989) ................... ...........  15, 16

ABF Freight System, Inc. v. NLRB,
510 U.S. _ ,
127 L. Ed. 2d 152 (1994) ............... 16, 29, 30, 32

Agbor v. Mountain Fuel Supply Co.,
810 F. Supp. 1247 (D. Utah 1993) ..............  25, 46

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................... .. passim

Axelson, Inc.,
285 N.L.R.B. 862 (1987) ........................ .. 8, 15, 16

Baab v. AMR Services Corp.,
811 F. Supp. 1246 (N.D. Ohio, 1 9 9 3 ) .......... 10, 33

Bazzi v. Western and Southern Life Insurance Co.,
808 F. Supp. 1306 (E.D.Mich. 1992).................  33

Benson v. Quanex Corp.,
58 FEP Cas. 743 (E.D. Mich 1992) .................  33

Big Three Welding Equipment Co.,
145 N.L.R.B. 1685 (1964), enforcement granted 
in part, denied in part, NLRB v. Big Three 
Welding Equipment Co., 359 F.2d 77 (5th Cir.
1966) .....................................................................  15

Bird Trucking and Cartage Co., Inc.,
167 N.L.R.B. 626 (1967) ....................................  15



Bonger v. American W ater Works,
789 F. Supp. 1102 (D. Colo. 1992) . . . . . .  30, 48

Boyd v. Rubbermaid Commercial Products,
62 FEP Cas. 1228 (W.D. Va 1 9 9 2 ) ............ 35, 37

Chrysler Motors v. Allied Ind. Workers,
2 F. 3d 760 (7th Cir. 1993) .............. ................  13

Churchman v. Pinkerton’s, Inc.,
756 F. Supp. 515 (D. Kan. 1991) . . . . . . . .  11, 33

Compton v. Luckenbach Overseas Corp.,
425 F.2d 1130 (2d Cir.), cert, denied, 400 U.S.
916 (1970).............................................................. 19

Dotson v. United States Postal Service,
977 F.2d 976 (6th Cir. 1992) ............ 9

EEOC v. Alton Packaging,
901 F.2d 901 (11th Cir. 1990) . . . . . . . . . . . .  26

EEOC v. FLC Brothers Rebel, Inc.,
663 F. Supp. 864 (W.D.Va. 1987) . .................  38

East Island Swiss Products, Inc.,
220 N.L.R.B. 175 (1975) . . . . . . . . . . . . . . . .  15

Eastland v. Tennessee Valley Authority,
704 F.2d 613 (11th Cir. 1983) . . . . . . . . . .  10, 26

Ford Motor Co. v. EEOC,
458 U.S. 219 (1982) . . . . . . . . . . . . . . . . . . .  32

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ___ . . . . . . . . . . . . .  20, 32

vi
Pages:



VI1

Pages:

George v. Meyers,
1992 WL 97777, (D. Kan. 1992)............ .............. 25

Givhan v. Western Line Consol. School Dist.,
439 U.S. 410 (1979).............................................. 24

Goldberg v. Bama Manufacturing Corp.,
302 F.2d 152 (5th Cir. 1962) ........................ passim

Gypsum Carrier, Inc. v. Handelsman,
307 F,2d 525 (9th Cir. 1962) .............................  18

Harris v. Forklift Systems, Inc.,
510 U.S. _ ,  126 L. Ed. 2d 295 (1993) ............  33

Hazen Paper Co. v. Biggins,
507 U.S. _ ,  123 L. Ed. 2d 338 (1993) ............  32

Jimenez-Fuentes v. Torres Gaztambide,
807 F.2d 230 (1st Cir. 1985 )...............................  10

John Cuneo, Inc.,
298 N.L.R.B. 856 (1990) ........................  15, 16, 19

Johnson v. Honeywell Information Systems, Inc.,
955 F.2d 409 (6th Cir. 1992) .................... 9, 29, 40

Kristufek v. Hussman Food Service Co.,
985 F.2d 364 (7th Cir. 1993) ........................ 46

Leahey v. Federal Express Corp.,
685 F. Supp. 127 (E.D.Va. 1988) ...................... 46

Lloyd v. Georgia Gulf Corp.,
961 F.2d 1190 (5th Cir. 1992) ........................ .. 10

Lorrilard v. Pons,
434 U.S. 575 (1978) ..........................  8, 31, 32, 38



viii
Pages:

Massey v. Trump’s Castle Hotel & Casino,
828 F. Supp. 314 (D .NJ. 1993) ----- . . . . .  passim

Mathis v. Boeing Military Airplane Co.,
719 F. Supp. 991 (D. Kan. 1989) ......................  33

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ............................. .. 43, 45

Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)....... .................. 34

Miller v. Beneficial Management Corp.,
844 F. Supp. 990 (D .N J. 1993) . . . . . . . . . . .  35

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 ) ................... .. ............ .. passim

Mitchell v. Robert De Mario Jewelry,
361 U.S. 288 (1960) ......................................... . 17

Monell v. Department of Human Services,
436 U.S. 658 (1978) ........................................ .. 46

Moyland v. Maries County,
792 F.2d 746 (8th Cir. 1986) . . . . . . . . . . . . .  29

Mt. Healthy City School Bd. v. Doyle,
429 U.S. 274 (1977) ................... passim

NLRB v. Big Three Welding Equipment Co
145 NLRB 1685 (1964). ........................ ........... .. 15

NLRB v. Jacob E. Decker & Sons,
636 F.2d 129 (5th Cir. 1981) . . . . . . . . . . . . .  15



NLRB v. Transportation Management Corp,,
462 U.S. 393 (1 9 8 3 ).................................  24, 43, 49

Newport News Shipbuilding and Dry Dock Co. v. Hall,
674 F.2d 248 (4th Cir. 1982) ........................ 17, 18

O ’Day v. McDonnell Douglas Helicopter Co.,
784 F. Supp. 1466 (D. Ariz. 1992) .................... 37

O ’Driscoll v. Hercules, Inc.,
745 F. Supp. 656 (D. Utah 1990), a ffd  12 F. 3d 
176 (10th Cir. 1994)....................................  10, 11, 48

Omar v. Sea-Land Service, Inc.,
813 F.2d 986 (9th Cir. 1987) ................. 18, 19, 29

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

Proulx v. Citibank,
681 F.2d 199 (S.D.N.Y. 1988) ...................... 36, 49

Redden v. Wal-Mart Stores, Inc.,
832 F. Supp. 1262 (N.D.Ind. 1993) .................  46

Rich v. Westland Printers,
62 FEP Cas. 379 (D. Md 1993) ........................  35

Russell v. Microdyne Corp.,
830 F. Supp. 305 (E.D.Va. 1993) .................  22, 33

Smith v. General Scanning, Inc.,
876 F.2d 1315 (7th Cir. 1989) ..........................  13

ix
Pages:

Spinks v. United States Lines Co.,
223 F. Supp. 371 (S.D.N.Y. 1963) . . 19



X
Pages:

St. Mary’s Honor Center v. Hicks,
125 L. Ed. 2d (1993) ...................... .. 27, 29, 30

Still v. Norfolk & Western Railway Co.,
368 U.S. 35 (1961)............ ............. ................passim

Summers v. State Farm Mutual Automobile Insurance
Co., 864 F.2d 700 (1988) . . . . . . . ___ . . . . .  10

Teamsters v. United States,
431 U.S. 324 (1977) ................................. .. 43

Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981) ....................................... 23, 26

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1985) ........................  22, 32, 38, 39

U.S. Postal Service Bd. of Govs. v. Aikens,
460 U.S. 711 (1983) ............ .................. 23

Van Deursen v. United States Tobacco Sales Co.,
839 F. Supp. 760 (D.Colo. 1993) . . . . . . . . . .  25

Village of Arlington Heights v. MHDC,
429 U.S. 252 ........................ 24, 43

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

Washington v. Lake County, Illinois,
762 F. Supp. 199 (N.D.I11. 1991).............. .. . 25, 33

Welch v. Liberty Machine Works, Inc.,
1994 WL 169682 (8th Cir. 1994) . . . . . .  36, 45



Statutes: Pages:

Age Discrimination Employment Act . . . . . . . . . .  passim

Title VII, Civil Rights Act of 1964 ........................ . passim

Tenn. Code Ann. §4-21-101, et seq............... 1, 31

28 U.S.C. §1254(1) ..................      1

29 U.S.C. §201, et seq ........ ................    31

29 U.S.C. §216(b) ...........................................................  38

29 U.S.C. § 621, et seq ........    1

29 U.S.C. §621 (a)  ............................................ . . .  20

29 U.S.C. §623(1) ...................................................   21

29 U.S.C. §626(b).........................................................  31, 34

29 U.S.C. §630(b) ...........................................................  22

29 U.S.C. §630(f)       22

29 U.S.C. § 6 3 1 ..................................................................  22

42 U.S.C. §1981a(b)(3) ..............................  34

Miscellaneous: Pages:

G. Mesritz, "’After-Acquired’ Evidence of
Pre-Employment Misrepresentations: An Effective 
Defense Against Wrongful Discharge Claims”, 18 
Employee Relations L.J. 215 ........................  40, 41

xi
Pages:



XU
Pages:

R.H. White and R. D. Brussack, "The Proper Role of 
After-Acquired Evidence in Employment 
Discrimination Litigation", 35 Boston Col L. Rev.
49 (1993) . . . . . . . ....... .................. .. 10

Revised Enforcement Guide on Recent Developments in 
Disparate Treatment Theory, EEOC Compl. Man. 
(BNA) 405:6915 .............. ................ . . .  21, 24, 45



BRIEF FOR PETITIONER

JURISDICTION

The decision of the Sixth Circuit was entered on 
November 15, 1993. An extension of time until March 30, 
1994, for filing this petition was granted by Justice Stevens. 
Certiorari was granted on May 23, 1994. Jurisdiction of this 
Court is invoked under 28 U.S.C. §1254(1).

STATUTE INVOLVED

This case involves the age discrimination in 
Employment Act, 29 U.S.C. § 621, et seq., which provides in 
pertinent part as follows:

§ 623. Prohibition of age discrimination

(a) Employer practices. It shall be unlawful for an 
employer -

(1) to fail or refuse to hire or to discharge any 
individual or otherwise discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s age;

STATEMENT OF THE CASE 

A. The Proceedings Below

This action was filed by petitioner, Christine 
McKennon, in the United States District Court for the 
Middle District of Tennessee on May 6, 1991, The 
complaint alleged that respondent Nashville Banner 
Publishing Co., her former employer, had discriminated 
against her in violation of the Age Discrimination in 
Employment Act, 29 U.S.C. §621, et seq., and the Tennessee 
Human Rights Act. Tenn. Code Ann. §4-21-101, et seq. 
(Pet. App. 11a).



2

Following limited discovery, respondent filed a 
motion for summary judgment based on petitioner’s 
possession of certain company documents. For the purpose 
of the motion, the respondent and the courts below assumed 
that petitioner had been the victim of age discrimination in 
violation of the ADEA and state law. (Pet. App. 3a).

On June 3, 1992, the district court granted 
respondent’s motion for summary judgment, dismissing the 
case based on the Sixth Circuit’s after-acquired information 
doctrine. (Pet. App. 10a-18a). The Sixth Circuit affirmed, 
relying on its earlier decision 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). Under the Sixth Circuit holding in 
Millisan-Jensen. a court is required, even after a finding of 
an intentional violation of federal law, to dismiss any 
employment discrimination case where the employer can 
show that it would have discharged the plaintiff had it been 
aware of information that only came to light following that 
violation. (Pet. App. la-9a).

B. The Nature of Petitioner’s Discrimination Claims

Petitioner was employed by respondent since May, 
1951, and held a variety of positions, working primarily as a 
secretary. At all times her performance was consistently 
rated as excellent. Respondent dismissed petitioner on 
October 31, 1990, when she was sixty-two years old. (Pet. 
App. lOa-lla).

This litigation concerns events which occurred during 
an eighteen-month period beginning in the spring of 1989, 
shortly after petitioner was assigned to work as secretary for 
the company’s comptroller, and ending with petitioner’s 
dismissal in the fall of 1990. The complaint alleged that 
respondent had engaged in three distinct types of 
discrimination unlawful under the ADEA and state law.



3

First, the complaint alleged that respondent’s officials 
had systematically harassed petitioner in an effort to force 
her to retire or resign. Petitioner’s benefits and privileges 
were reduced in a variety of ways. Respondent repeatedly 
admonished petitioner to retire, alleging that the company 
was in financial difficulty. Company officials revoked 
petitioner’s parking privileges, reduced her lunch hour 
privileges, and threatened her with weekend work. (J. App. 
7a-8a, 50a-52a).

Second, according to the complaint, respondent 
discriminated against petitioner in compensation, denying 
her a routine pay raise, and limiting her compensatory time. 
(J. App. 7a).

Third, the complaint asserted that petitioner had 
been dismissed on account of her age. (J. App. 8a-10a). In 
May, 1990, respondent hired a new secretary, age 36. On 
October 29, 1990, respondent hired yet another new 
secretary, age 26.1 Only two days later, on October 31, 
1990, respondent, asserting that it had a surplus of 
secretaries, dismissed the two oldest secretaries, including 
petitioner, then 62. (J. App. 9a). Neither of the newly 
hired younger secretaries was laid off. (J. App. 9a).

Respondent dismissed petitioner in a particularly 
abrasive manner. After almost forty years with The Banner, 
petitioner was summoned without warning to a meeting with 
company officials and notified that she was being summarily 
discharged. Company officials demanded that petitioner 
sign on the spot a five page "release agreement" that had 
been prepared in advance by counsel for the company, and 
was told that she would forfeit her severance pay if she 
refused. Petitioner was directed to clean out her desk and 
leave the building immediately. Petitioner’s supervisor

defendant’s Response to Plaintiffs First Set of Interrogatories, 
Interrogatory No. 6.



4

monitored her movements, ushered her to the door, 
demanded her Banner ID card, and directed her to leave the 
office. (J. App. 8a-9a).

On the basis of these allegations, the complaint 
sought four distinct forms of relief: (a) compensatory 
damages for the humiliation, embarrassment and other 
injuries occasioned by the deliberate age-based harassment, 
(b) back pay for losses occasioned by the unlawful 
discrimination in compensation, (c) back pay, front pay, and 
other equitable relief to redress the unlawful dismissal, and 
(d) liquidated damages for respondent’s willful violation of 
the ADEA. (J. App. lOa-lla).

C. The After-Acquired Information

The after-acquired information in this case concerns 
ten pages of routine but confidential company documents. 
In the fall of 1989, after company officials had begun to 
threaten petitioner that she might be laid off because the 
firm was allegedly facing financial difficulties, the 
comptroller, Imogene Stoneking, directed petitioner to shred 
copies of documents which revealed the actual financial 
condition of the firm. (J. App. 52a-53a, 144a-47a). These 
included a Profit and Loss Statement, dated October 10, 
1989, and a ledger indicating the amounts the privately held 
firm had been paying to its owners. (J.App. 23a-27a). 
Before destroying the documents, petitioner copied them ,2 
All the documents into petitioner’s possession through the 
normal course of business, having been either handed to her 
or maintained by her in her office. At some subsequent 
point in time petitioner took the ten copied pages to her

Petitioner also copied from a file maintained in her office three 
documents related to the status of her former supervisor, Jack 
Gunter. (J. App. 28a-33a, 148a-150a). In the spring of 1989 petitioner 
has warned by company officials that they had almost dismissed her 
when considering whether to dismiss Gunter. (J. App. 50a).



5

home and showed them to her husband of thirty-six years, 
but to no one else.

After the commencement of the instant litigation, 
respondent sought to discover any documents in petitioner’s 
possession that might be relevant to her claims. Counsel for 
petitioner provided the documents in question to counsel for 
respondent. Respondent’s counsel deposed petitioner 
regarding her possession of the documents, and then moved 
for summary judgment.

In support of its motion for summary judgment, 
respondent submitted similarly worded affidavits from four 
company officials asserting that they would have dismissed 
petitioner had they known about the copied documents. 
The affidavits did not base that assertion on the particular 
contents of the documents; the affiants did not claim even 
to know what or how many pages had been copied, but 
recounted only that they had "been advised" that the 
materials were "proprietary and confidential documents". (J. 
App. 35a-45a). The assertions in the affidavits that 
petitioner would have been fired were based solely on her 
having "copied and removed" the documents; the affidavits 
did not rely on the fact that petitioner had shown the 
materials to her husband. The affidavits acknowledged that 
petitioner had legitimate access to the documents (J. App. 
35a-43a), and did not assert that respondent had in fact been 
injured by petitioner’s action. (See J. App. 71a).

The operative portion of the affidavits was limited 
to a conclusory assertion that petitioner would have been 
fired. The affidavits did not purport to describe any 
company rules regarding the copying or removal of 
documents, any standards applied by respondent in 
determining what level of discipline to impose for 
misconduct, any past disciplinary practices, or the applicable 
procedures for determining when an employee should be 
terminated. The circumstances under which the affidavits 
had been executed were disclosed in subsequent depositions.



6

The company comptroller, Imogene Stoneking, testified that 
she knew nothing about the documents issue until an already 
prepared affidavit was brought to her for her signature. The 
assertion in Stoneking’s affidavit that she "would have 
terminated" petitioner was written by a third party who could 
not have discussed the matter with Stoneking herself prior 
to preparing that affidavit. Stoneking testified that she did 
not know who had prepared the affidavit. (J. App. 82-83)

In another deposition, respondent’s president 
acknowledged that, when faced with personnel problems like 
"employees who are not doing their jobs . . .  or who had bad 
attitude problems", it had been the practice to respond only 
with a "[suspension of wage increases" or a "supervisor 
sitting down with them". (J. App. 70a-71a). Errant 
employees were warned "that if they don’t straighten up, 
termination will follow." (J.App. 71a). The president 
conceded that in the previous five years there had not been 
a single instance in which an employee had been summarily 
terminated for misconduct. CJ.App. 70a).

Respondent’s motion for summary judgment 
precipitated a vigorous and at times bitter factual dispute 
about whether petitioner would in fact have been dismissed 
for copying and removing the documents. The central issue, 
as respondent acknowledges, was whether petitioner’s 
wrongdoing was "serious enough" to have led to summary 
dismissal. (R. Br. Op. 3). Petitioner testified that she 
understood a secretary could be fired only for making public 
a confidential document. (J. App. 133a, 155a).

The district court understandably did not purport to 
resolve on summary judgment this factual dispute. Rather 
than decide whether petitioner would in fact have been 
dismissed--a factual matter that clearly would have had to be 
resolved by a jury in this ADEA case—the district judge 
made two other quite different findings. First, the district 
court held that respondent could reasonably have fired 
petitioner for removing the documents, asserting that her



7

actions "provid[e] adequate and just cause for her dismissal 
as a matter of law." (Pet. App. 17a). Second, apparently 
believing that petitioner bore the burden of proof on this 
issue, the trial judge asserted that she had failed to adduce 
"evidence tending to prove that the Banner would have 
continued her employment had it learned of her misconduct 
prior to her termination." (Id.) The court of appeals 
asserted, inexplicably and incorrectly, that respondent’s 
assertion that it would have dismissed petitioner was 
"undisputed." (Pet. App. 2a).

SUMMARY OF ARGUMENT

This Court has previously held that an employer that 
violates the federal rights of an employee cannot avoid 
liability by proving that it would have fired, or not hired, 
that employee had it been aware of misconduct on his or her 
part. Still v. Norfolk & Western Railway Co., 368 U.S. 35 
(1961). The National Labor Relations Act and numerous 
other laws have been similarly construed. Anti- 
discrimination statutes should not be interpreted in a 
different manner.

After-acquired information which, if known, would 
have led to an employee’s dismissal cannot render lawful 
acts that were in fact taken with a discriminatory motive. A 
legitimate reason can only affect the legality of an adverse 
employment action if it was a reason that the employer had 
in mind "at the time of the decision." Price Waterhouse v. 
Hopkins, 490 U.S. 228, 252 (1989).

Where a violation of the ADEA has been proven, 
after-acquired information cannot operate as a complete bar 
to all relief. The ADEA expressly incorporates the remedial



8

principles of the Fair Labor Standards Act. Prior to the 
adoption of the ADEA, the FLSA had been construed not 
to contain any such bar to relief. Goldberg v. Bama 
Manufacturing Corp., 302 F. 2d 152 (5th Cir. 1962). The 
ADEA is presumed to incorporate such pre-existing 
interpretations of the FLSA. Lorrilard v. Pons, 434 U.S. 575 
(1978).

If an employer seeks to invoke after-acquired 
evidence in an ADEA or Title VII case, it must prove both 
that it would have dismissed the plaintiff on the basis of that 
information, and that it would have discovered the 
information in the absence of discrimination. Where the 
employer meets that burden, the defense will bar 
reinstatement and front pay, and in a discriminatory 
discharge case will cut off back pay as of the date on which 
the information would have been discovered. After-acquired 
information will not, however, affect compensatory damages 
for age-based, racial or sexual harassment, awards of 
liquidated damages or punitive damages, or back pay awards 
for discrimination in compensation.

ARGUMENT

I. INTRODUCTION

The issue presented by this case is whether an 
employer that has violated a federal anti-discrimination law 
can avoid all liability if, after the violation has occurred, new 
information3 is discovered which the employer claims would

3The National Labor Relations Board, which has dealt repeatedly 
with this issue, aptly refers to it as "involving a[n] . . . employer’s 
after-acquired knowledge." Axelson, Inc., 285 NLRB 862, 866 n. 11 
(1987). Some courts refer to this situation as one involving after- 
acquired "evidence". Virtually none of these cases, however, involve



9

have provided a basis for dismissing the employee before the 
violation.4

The Sixth Circuit applies a per se rule, holding that 
after-acquired information of this type provides the employer 
with an absolute and total defense:

[A] fter-acquired evidence is a complete bar to any 
recovery by the former employee where the employer 
can show it would have fired the employee on the 
basis of the evidence.

(Pet. App. 6a)(Emphasis added)5. Under this per se rule, 
if the after-acquired information is adduced following a 
judicial finding of a violation, the court must as a matter of 
law deny all relief. Milligan-Jensen v. Michigan Technological 
University, 975 F. 2d 302 (6th Cir. 1992). If the information 
is offered prior to trial, the court is precluded as a matter of 
law from even inquiring whether a violation of federal law 
has occurred. The same absolute defense is recognized in

newly found evidence supporting the reason already adduced by the 
employer for the disputed adverse action. Rather, the claim generally 
advanced by employers is that they have found information 
supporting an entirely new reason for dismissing the employee that 
is distinct from the reason originally proffered for the discharge or 
other disputed action.

4We explain in part V, infra, that the issue of whether the 
employer in this case would in fact have discharged petitioner cannot 
be resolved at this stage in the proceedings.

5See also id. at 4a(such after-acquired information "mandates 
judgment as a matter of law for an employer charged with 
discrimination"); Dotson v. United States Postal Service, 977 F. 2d 976, 
968 (6th Cir. 1992)(such after acquired information "precludes the 
grant of any present relief or remedy")(emphasis added); Johnson v. 
Honeywell Information Systems, Inc., 955 F. 2d 409, 415 (6th Cir.
1992)(plaintiff "is entitled to no relief, even if she could prove a 
violation.")



10

the Tenth Circuit.6 This per se rule has been aptly 
described by two commentators as a form of "absolution."7

A number of other circuits have declined to apply the 
per se rule.8 The Eleventh Circuit has emphatically rejected 
both the rule and the reasoning of the Sixth and Tenth 
Circuit cases. Wallace v. Dunn Construction Co., 968 F. 2d 
1174 (11th Cir. 1992).9 Rather than apply any per se rule, 
Wallace treats after-acquired information as one of the 
factors to be considered in a traditional assessment of what 
remedy is necessary to place a victim of unlawful

60 ’Driscoll v. Hercules, Inc., 12 F. 3d 176 (10th Cir. 1994); 
Summers v. State Farm Mutual Automobile Insurance Co., 864 F. 2d 
700 (1988).

7R.H. White and R. D. Brussack, "The Proper Role of After- 
Acquired Evidence in Employment Discrimination Litigation", 35 
Boston Col. L. Rev. 49, 52 (1993); see also Wallace v. Dunn 
Construction Co., 968 F. 2d 1174, 1182 (11th Cir. 1992)(per se rule 
has "the perverse effect of providing a windfall to employers"); Baab 
v. AMR Services Corp., 811 F. Supp. 1246, 1260 n. 5 (N.D. Ohio,
1993)(applying the Sixth Circuit per se rule while acknowledging, 
"The troubling aspect of this doctrine is that it can very well lead to 
penalty free discrimination by an employer.")

*In addition to the Eleventh Circuit decision in Wallace, see Lloyd 
v. Georgia Gulf Corp., 961 F. 2d 1190, 1197 (5th Cir. 1992)(employer 
may not rely on information known only to company official other 
than the supervisor who had dismissed the plaintiff); Jimenez-Fuentes 
v. Torres Gaztambide, 807 F. 2d 230, 233 (1st Cir. 1985)(after- 
acquired information relevant only insofar as plaintiff seeks injunction 
against future demotions); Eastland v. Tennessee Valley Authority, 704 
F. 2d 613, 626 (11th Cir. 1983)(employer cannot defeat hiring 
discrimination claim of black applicant with evidence that white hired 
was better qualified, where employer was unaware of those superior 
qualifications at the time the hiring decision was made.)

9 A similar analysis is set out in Massey v. Trump’s Castle Hotel & 
Casino, 828 F. Supp. 314 (D.N.J. 1993).



11

discrimination in the position he or she would have occupied 
"but for" a proven statutory violation. 968 F.2d at 1179-82. 
Wallace concludes that such after-acquired information will 
limit or preclude some remedies, while not affecting other 
forms of relief. 968 F. 2d at 1181-83.

Prior to 1989, when after-acquired information was 
generally accorded only the limited significance reflected in 
decisions like Wallace, there were few reported cases in 
which employers raised this issue. Since the emergence of 
the per se rule, however, there has been a dramatic increase 
in litigation regarding after-acquired information. In recent 
years there have been more than fifty reported decisions 
considering employer claims that they would have dismissed 
employment discrimination plaintiffs had they known of facts 
actually learned only after the proven or alleged violations 
of federal law. As a result of this new and total defense, the 
primary focus of many anti-discrimination cases is no longer 
on the particular motives that prompted an employer to take 
a specific disputed action, but on the work histories and lives 
of the victims of unlawful discrimination.10

There are four principal areas in which the 
conflicting lower court views regarding after-acquired

10See, e.g., O ’Driscoll v. Hercules, Inc., 12 F. 3d 176 (10th Cir.
1994)(litigation regarding after-acquired information that plaintiff had 
made inaccurate statements in an application submitted in 1980, six 
years before the alleged act of discrimination, and ten years before 
employer raised the issue); Massey v. Trump’s Castle Hotel & Casino, 
828 F. Supp. 314, 326 (D.N.J. 1993)(employer contends it would have 
denied plaintiff a promotion in 1989 had it known that the plaintiff, 
while employed as a police officer in 1968, had mislaid his weapon); 
Churchman v. Pinkerton’s, Inc., 756 F. Supp. 515 (D. Kan. 1991) 
(discussing in detail after-acquired information that plaintiff had lived 
at 12 different addresses since graduating from high school, had 
moved twice to be with her husband when he changed jobs, and while 
in high school had been fired from a job at a drive-in movie theater.)



12

information affect differently the outcome of particular 
cases.

(1) The per se rule bars any relief for claims of 
harassment on the basis of age, race or gender, 
including sexual harassment. Wallace holds, on the 
other hand, that remedies for such violations are not 
ordinarily affected.

(2) The per se rule bars any relief for claims that a 
plaintiff was paid less than others doing comparable 
work solely because of his or her age, race or sex. 
Under Wallace, on the other hand, remedies for wage 
discrimination are not affected.

(3) The per se rule bars, in cases in which they 
would otherwise be appropriate, awards of punitive 
damages, or of the liquidated damages11 * required in 
ADEA cases for "willful" violations. Under Wallace 
these remedies remain available despite any after 
acquired-information.

(4) The per se rule bars all back pay whatever for a 
discriminatory discharge. Under Wallace, after- 
acquired information may well affect the amount of 
a back pay award. Depending on the circumstances, 
the information may significantly reduce, virtually 
eliminate, or have no impact on the back pay 
awarded.

On the other hand, under both lines of cases, albeit for
somewhat different reasons, after-acquired information that

uThe petitioner in this case alleged that she had been harassed
and paid less because of her age, and sought such an award of 
liquidated damages.



13

would have led an employer to dismiss an employee will 
preclude reinstatement or front pay.13

II. THE SIXTH CIRCUIT’S AFTER-ACQUIRED 
INFORMATION RULE FOR DISCRIMINATION 
CASES IS INCONSISTENT WITH ESTABLISHED 
PRECEDENT CONCERNING OTHER FEDERAL 
STATUTES AND EMPLOYEE RIGHTS

The circumstance presented by this case is one which 
has arisen repeatedly under other federal statutes regulating 
relations between employers and employees. In cases raising 
this issue outside the context of anti-discrimination laws, it 
is well established that an employer cannot avoid liability on 
the basis of after-acquired information.

In Still v. Norfolk & Western Railway Co., 368 U.S. 35 
(1961), this Court rejected just such a per se defense to the 
Federal Employers’ Liability Act.14 The plaintiff in Still 
had sustained back injuries in the course of his employment. 
The FELA provides railroad employees with a right to 
compensatory damages for such personal injuries. The 
employer asserted as a defense the fact that the plaintiff, in 
order to obtain employment, had made certain false

13Wallace v. Dunn Construction Co., 968 F. 2d at 1181-82. A  
number of decisions explain that reinstatement would simply make no 
sense since the employer would ordinarily be free to terminate the 
plaintiff immediately on the basis of the after-acquired information. 
Smith v. General Scanning, Inc., 876 F. 2d 1315, 1319 n. 2 (7th Cir. 
1989); Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314, 323 
(D.N.J. 1993); cf. Chrysler Motors v. Allied Ind. Workers, 2 F. 3d 760 
(7th Cir. 1993).

14368 U.S. at 35 ("The question this case presents is whether a 
railroad can escape th[e] statutory liability by proving that an 
employee . . . had obtained his job by making false representations 
upon which the railroad rightfully relied in hiring him.")



14

statements to the railroad regarding his physical condition. 
The employer contended that a worker who held his position 
solely because the railroad was unaware of the falsity of 
those statements should not be considered "employed" for 
the purposes of the FELA. 368 U.S. at 36. This Court 
rejected that argument, explaining that, save in the most 
extraordinary of circumstances,

the terms "employed" and "employee" as used in the 
Act must, in all cases . . .  be interpreted according to 
their ordinary meaning, and the status of employees 
who become such through . . . fraud, although 
possibly subject to termination . . . must be 
recognized for purposes of suits under the Act.

368 U.S. at 45. The Court quoted with approval a lower 
court opinion insisting that the law could not mean "that 
every fraudulent violation of the rules . . would render such 
employment void, and deny the defrauding employee any 
rights under the act." 368 U.S. at 38 (quoting the unreported 
district court opinion affirmed in Minneapolis St. P. etc. R. 
Co. v. Borwn, 286 U.S. 447 (1932)). Eight members of the 
Court rejected the objection of the sole dissenting justice 
that an award to Still under the FELA would enable him to 
"profit from his own wrong." 368 U.S. at 50, 51.

The National Labor Relations Board has faced this 
same situation in enforcing the National Labor Relations 
Act. In a series of decisions over a period of almost thirty 
years, the NLRB has repeatedly awarded back pay to 
employees dismissed in violation of federal labor law, even 
though recognizing that the employers in question would 
have dismissed those employees on other grounds had they 
been aware of unrelated misconduct on the part of those



15

workers.15 The Board’s practice has been to award back 
pay from the date of the unlawful dismissal until the date on 
which the employer actually learned it had lawful grounds 
for dismissal, reasoning that

but for [the employee’s] union activities, he would 
have continued in Respondent’s employ at least until 
such time as Respondent acquired information of his 
. . . misconduct. It is therefore appropriate, in 
remedying Respondent’s unlawfully motivated 
discharge . . . , to order Respondent to make [the 
victim] whole from the date of his discharge to the 
date it acquired this information.

East Island Swiss Products, Inc., 220 NLRB 175, 175 
(1975).16 The Board has also been unwilling to permit

iSJohn Cuneo, Inc., 298 NLRB 856, 856 (1990); A.A. Superior 
Ambulance Service, 292 NLRB 835, 835 n. 7 (1989)-,Axelson Inc., 285 
NLRB 862, 866 (1987); East Island Swiss Products, Inc., 220 NLRB 
175, 175-76 (1975); Bird Trucking and Cartage Co., Inc., 167 NLRB 
626, 630 (1967); Big Three Welding Equipment Co., 145 NLRB 1685, 
1704 (1964), enforcement granted in part, denied in part, NLRB v. Big 
Three Welding Equipment Co., 359 F. 2d 77, 82-84 (5th Cir. 1966). In 
Bird Tmcking and Big Three Welding Equipment the Board also 
ordered reinstatement. The Fifth Circuit in NLRB v. Big Three 
Welding Equipment Co. upheld the back pay award, but declined to 
reinstate the employee. See NLRB v. Jacob E. Decker & Sons, 636 F. 
2d 129, 132 n. 3 (5th Cir. 1981). The Board’s decision in Big Three 
Welding was issued in February, 1964, five months before the 
enactment of Title VII of the 1964 Civil Rights Act.

i6See also John Cuneo, Inc., 298 NLRB 856, 856 (1990)("The 
record shows that the Respondent . . . would have continued to 
employ [the employee] at least until the Respondent became aware 
of [the employee’s] false statement . . . ."); A A . Superior Ambulance 
Service, 292 NLRB 835, 835 n. 7 ("The record clearly demonstrates 
that, had Skinner refrained from engaging in protected activity, he 
would have remained employed by the Respondent at least until the 
Respondent became aware of his misconduct.")



16

circumstances extraneous to the violation of federal law to 
immunize the employer from any consequences for its illegal 
action:

[Rjelieving the Respondent of all backpay liability, 
including for the period when the Respondent had 
no knowledge of [the employee’s misconduct] and 
had no lawful reason to fire him, would provide an 
undue windfall for the Respondent.

John Cuneo, Inc., 298 NLRB 856, 856 (1990).17

In ABF Freight System, Inc. v. NLRB, 510 U.S. — , 
127 L.Ed. 2d 152 (1994), this Court upheld the NLRB’s 
closely related practice of awarding the usual remedies of 
back pay and reinstatement to the victims of unfair labor 
practices, even where those workers had made false 
statements to the Board itself. This Court refused to adopt 
for such cases a "categorical exception" to the usual forms of 
relief. 127 L. Ed. 2d at 160. The Court properly recognized 
that such a per se rule might well "force the Board to divert 
its attention from its primary mission and devote 
unnecessary time and energy to resolving collateral disputes 
. . . ." Id. In declining to convert the National Labor 
Relations Act into a scheme for policing employee 
misconduct, the Court stressed that "other civil and criminal 
remedies" remained to deal with such problems. Id. (quoting 
St. Mary’s Honor Center v. Hicks, 509 U.S. —, 127 L. Ed. 2d 
152 (1993)).18

llAxelson, Inc., 285 NLRB 862, 866 n. 11 (1987)("We would be 
granting an undue windfall if we . . . relieved the Respondent of all 
backpay liability . . . .")

18In A.A. Superior Ambulance Service, 292 NLRB 835, 835 n. 7 
(1989), the Board referred evidence regarding an errant employee 
"to the appropriate licensing and drug enforcement agencies."



17

The Wage and Hour Division of the Department of 
Labor has long taken a similar position with regard to 
violations of employee rights under the Fair Labor Standards 
Act. In Goldberg v. Bama Manufacturing Corp., 302 F. 2d 
152 (5th Cir. 1962), the aggrieved worker had been 
dismissed by her employer for reporting to the Department 
of Labor violations of the federal minimum wage laws. The 
Wage and Hour Division brought suit in the name of the 
then Secretary of Labor, seeking to enforce this Court’s 
decision in Mitchell v. Robert De Mario Jewelry, 361 U.S. 288 
(1960), that victims of such retaliatory dismissal were 
entitled to monetary redress. The district court denied all 
relief because the employer had learned after the worker’s 
unlawful dismissal of several other reasons that would 
certainly have justified her discharge. 302 F. 2d at 154. The 
Department of Labor successfully appealed to the Fifth 
Circuit, which held, in language similar to that in Wallace, 
that the law required that an illegally dismissed employee 
"should be restored, as nearly as possible, to the same 
situation he would have occupied if he had not been 
discharged." 302 F. 2d at 156. Even though the 
circumstances of that case rendered reinstatement 
inappropriate, the court of appeals insisted that it would be 
inconsistent with "the purposes of the Fair Labor Standards 
Act" to "allo[w] the employer to get away scot free", 302 F. 
2d at 156, and directed that the unlawfully discharged 
worker be awarded both back pay and damages. Id.

The Benefit Review Board of the Department of 
Labor has taken the same position with regard to the 
Longshoremen’s and Harbor Worker’s Compensation Act, 
which provides the equivalent of workers’ compensation to 
certain employees. In Newport News Shipbuilding and Dry 
Dock Co. v. Hall, 674 F. 2d 248 (4th Cir. 1982), the 
employer insisted that it was immunized from any award 
under the Act by the fact that the injured worker in question 
had obtained his job by misrepresenting his medical 
condition. The Administrative Law Judge, however, found



18

"no provision in the Act relieving an employer of liability in 
such circumstances", and the Labor Department Benefit 
Review Board awarded benefits. 674 F. 2d at 249. On the 
employer’s petition for review, the Fourth Circuit sustained 
the decision of the Board. The court of appeals noted that 
Congress had written into the statute a number of express 
limitations and defenses, and refused "to expand the existing 
exceptions." 674 F. 2d at 251. The court of appeals 
declined to entertain the employer’s argument that any 
award in such a case would be "inequitable", explaining that 
"[tjhese are precisely the types of policy arguments that must 
be presented to and considered by Congress." 674 F. 2d at 
252. Newport News expressly relied on this Court’s decision 
in Still. 674 F. 2d at 254.

The lower courts have also relied on Still in refusing 
to permit shipowner-employers to avoid liability under the 
Jones Act. In Gypsum Carrier, Inc. v. Handelsman, 307 F. 2d 
525 (9th Cir. 1962), the plaintiff had fraudulently concealed 
a variety of illnesses and injuries when he applied for work. 
The Ninth Circuit nonetheless rejected the employer’s 
contention that such misconduct on the part of the employee 
should operate as "a general release of the shipowner’s 
obligation" to provide maintenance and cure in the event of 
injury. 307 F. 2d at 531. Citing this Court’s opinion in Still, 
the court of appeals declined to adopt "any general rule 
which would make fraud at the inception of the" 
employment relationship a bar to redress for later injury. 
307 F. 2d at 530. It warned that such a rule would "stir 
contentions, cause delays, and invite litigations." 307 F. 2d at 
531. The Ninth Circuit reaffirmed that application of Still 
in Omar v. Sea-Land Service, Inc., 813 F. 2d 986 (9th Cir. 
1987). The court emphasized that a variety of civil and even 
criminal proceedings were available to deal with misconduct 
by seamen, including obtaining a position through fraud.



19

813 F. 2d at 990. Again relying on Still, 813 F. 2d at 989, 
the Ninth Circuit admonished, "The duties of maritime 
employers are owed not to perfect contracts, but to 
imperfect sailors." 813 F. 2d at 990. See also Compton v. 
Luckenbach Overseas Corp., 425 F. 2d 1130 (2d Cir.), cert, 
denied 400 U.S. 916 (1970); Spinks v. United States Lines Co., 
223 F. Supp. 371, 371-72 (S.D.N.Y. 1963)(citing Still).

None of the lower court opinions applying the Sixth 
Circuit’s per se rule in employment discrimination cases have 
questioned the correctness of the contrary interpretation of 
non-civil rights statutes. The Sixth Circuit below did not 
discuss this Court’s opinion in Still, and did not dispute the 
precedents set out above. If the petitioner had sued 
respondent under any of these other laws, the Sixth Circuit 
would presumably have permitted her to try her case on the 
merits.

If, however, Still, its progeny, and the federal agency 
interpretations of these non-civil rights laws are correct, it is 
difficult to see how the contrary rule can be correct in 
employment discrimination cases. The reasoning of these 
decisions interpreting non-civil rights statutes is applicable 
to anti-discrimination laws. The per se rule applied by the 
Sixth and Tenth Circuits is remarkably similar to the per se 
rule rejected by this Court in Still and ABF Freight System. 
Respondent in this case has obtained precisely the "undue 
windfall" which the NLRB rejected as intolerable in John 
Cuneo, Inc., and has gotten away "scot free", as the Wage 
and Hour Division cautioned would occur were its 
interpretation of the law not accepted in Goldberg. Precisely 
as this Court warned in ABF Freight Systems, the lower 
courts in employment discrimination cases have often been 
diverted from their primary mission of enforcing federal law 
and have become embroiled in a large number of essentially 
collateral disputes about alleged employee misconduct.

None of this would matter, of course, if there were a 
clear and compelling reason to accord to plaintiffs invoking



20

the ADEA or Title VII a lesser set of remedies, and thus a 
lesser degree of enforcement, than is already available under 
the Federal Employers’ Liability Act, the National Labor 
Relations Act, the Fair Labor Standards Act, the 
Longshoremen’s and Harbor Worker’s Compensation Act or 
the Jones Act. But no reason for such a distinction is 
readily imaginable. The public policies underlying the 
nation’s civil rights laws are matters of "the highest priority." 
Franks v. Bowman Transportation Co., 424 U.S. 747, 763 
(1976). Congress enacted the ADEA after it found that "the 
setting of arbitrary age limits regardless of potential for job 
performance has become a common practice", and that the 
problem of discrimination against older workers was indeed 
"grave". 29 U.S.C. §621(a). The principles of the nation’s 
anti-discrimination laws have their roots in the constitutional 
values embodied in the Fourteenth Amendment. Having 
concluded that statutes such as the ADEA and Title VII 
were indeed vital to the interest and conscience of the 
nation, Congress could not have intended to tacitly engraft 
into those landmark enactments an exception which did not 
exist in other then existing federal statutes regulating 
employer-employee relations.

A number of these non-civil rights cases, including 
ABF Freight System, turned in part on the fact that the 
interpretation of the statute involved was advanced by the 
agency charged by Congress with primary responsibility for 
implementing that law. But that is true here as well. The 
EEOC, which is responsible for the enforcement of the 
ADEA and Title VII, has expressly rejected the per se rule 
applied by the Sixth Circuit in this case. The Commission 
has concluded that the proper role of after-acquired 
information is only to limit in certain respects, not to bar 
entirely, relief for intentional discrimination:

[I]f the employer produces proof of a justification
discovered after-the-fact that would have induced it
to take the same action, the employer will be



21

shielded from an order requiring it to reinstate the 
complainant or to pay the portion of back pay 
accruing after the date that the legitimate basis for 
the adverse action was discovered, and the portion of 
compensatory damages . . . that would cover losses 
arising after that date . . . .  [I]f the employer’s sole 
motivation was discriminatory and it acted with 
"malice or with reckless indifference" to the victim’s 
rights, proof of an after-the-fact justification would 
not shield an employer from an order requiring it to 
pay punitive damages.

Revised Enforcement Guide on Recent Developments in 
Disparate Treatment Theory, EEOC Compl. Man. (BNA) 
405:6926-27 (first two emphases added, third emphasis in 
original). Respondents candidly acknowledge that such 
EEOC "policy guidance statements are relevant" and 
"instructive here". (Br. in Opp., 21, 22 n. 28).

III. AFTER-ACQUIRED INFORMATION THAT 
MIGHT WARRANT DISMISSAL OF AN 
EMPLOYEE DOES NOT PRECLUDE A 
FINDING OF LIABILITY UNDER THE ADEA

The Sixth Circuit’s per se rule could be sustained if 
the effect of after-acquired information were somehow to 
render lawful acts that otherwise would have violated the 
ADEA. Clearly, however, such after-acquired information 
cannot affect the legality vel? non of events which occurred 
at a point in time when the employer, by definition, had not 
yet acquired that knowledge.

The ADEA provides that it is "unlawful for an 
employer . . to discharge any individual . . . because of such 
individual’s age". 29 U.S.C. §623(1). The statutory language 
on its face recognizes no exception to this straightforward 
prohibition; it forbids an age-based dismissal of "any" 
individual, not "any individual except one who has copied



22

documents without authorization" or "any individual other 
than one who has made a false statement on a job 
application." Far from making such narrow distinctions, the 
ADEA "broadly prohibits" discrimination on the basis of age. 
Trans World Airlines, Inc. v. Thurston, 469 U.S. I l l ,  120 
(1985).

If the existence of an as yet unknown legitimate basis 
for dismissing an individual were sufficient by itself to render 
discrimination lawful, imperfect employees would fall 
completely outside the protections of the ADEA or Title 
VII. One lower court judge has indeed suggested that 
statutes such as the ADEA simply do not apply to such 
dismissable employees19. Pursuant to this view, 
discrimination against such workers is legal under the 
ADEA, and the after acquisition of relevant information 
simply reveals that the workers never enjoyed any legal 
protection in the first place.20 But Congress in both the 
ADEA21 and Title VII22 spelled out quite specifically those

l9Wallace v. Dunn Construction Co., 968 F. 2d 1174, 1187-89 
(Godbold, J., dissenting.)

20In at least one instance a court applying the per se rule has 
invoked it to dismiss employment discrimination claims by an 
individual who was still employed by the defendant. In such a 
situation the employer would literally be free to discriminate against 
the employee with complete impunity. Russell v. Microdyne Corp., 830 
F.Supp. 305, 308 (E.D.Va. 1993)("regardless of the reasons for 
Russell’s continued employment by Microdyne, . . . there is no 
principled reason for applying the after-acquired evidence doctrine 
differently for a current employee than for a former 
employee.")(claim of sexual harassment).

21The ADEA does not apply to individuals employed by 
employers with fewer than twenty employees, 29 U.S.C. §630(b), to 
state employees who are elected or hold certain policy-making 
positions, 29 U.S.C. §630(f), or to persons over the age of 70. 29 
U.S.C. §631.



23

employees to whom it wished to deny coverage. None of 
those express statutory exceptions is applicable to petitioner. 
The courts are not free to create additional exceptions to the 
otherwise comprehensive protections of the law.22 23 
Petitioner is indeed covered by the protections of the 
ADEA, and the discrimination alleged here was illegal 
regardless of what after-acquired information there may be.

In a disparate treatment case, the legality of an 
adverse employment action turns on the motive of the 
employer at the time the actions occurred.24 This Court 
has recognized that the contemporaneous existence of a 
legitimate motive may render lawful an action that was also 
taken in part for an unlawful reason. Price Waterhouse v. 
Hopkins, 490 U.S. 228 (1989); Ml. Healthy City School Bd. v. 
Doyle, 429 U.S. 274 (1977). But these cases make clear that 
to effect the legality vel non of an action, that legitimate 
reason must be one which the employer actually had in mind 
at the "particular time" when the disputed action took place. 
U.S. Postal Service Bd. o f Govs. v. Aikens, 460 U.S. 711, 716 
(1983).

The critical inquiry, the one commanded by the 
[prohibition against intentional discrimination], is 
whether [age] was a factor in the employment

22As originally enacted, Title VII did not apply to individuals 
employed by firms with fewer than 25 (now 15) workers, the United 
States, a state or political subdivision, an Indian Tribe, or certain 
bona fide private organizations, or to certain employees of religious 
organizations.

23Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314, 323 
(D.N.J. 1993)("There is nothing in the statute itself to support a 
requirement that the job had been acquired honestly.")

24Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 
256 (1981)(legality of the action turns on "the true reason for the 
emloyment decision ").



24

decision at the moment it was made. . . .  An employer 
may not, in other words, prevail . . .  by offering a 
legitimate and sufficient reason for its decision if that 
reason did not motivate it at the time o f the decision.

Price Waterhouse v. Hopkins, 490 U.S. at 240, 252 (first 
emphasis in original; second emphasis added). The 
employer can avoid a finding of liability only by proving "the 
same decision would have been reached" even in the absence 
of any unlawful motive. M l Healthy Bd. o f Ed. v. Doyle, 429 
U.S. 274, 285 (1977).23 * 25

In light of Price Waterhouse and M l Healthy, the 
defect of the Sixth Circuit’s per se rule is readily apparent. 
After-acquired information cannot overcome the legal 
consequences of the existence of a discriminatory motive 
precisely because that information is "after-acquired". As 
the Eleventh Circuit has correctly pointed out, the fatal flaw 
in the per se rule is that it "ignore[s] the time lapse between 
the unlawful act and the discovery of a legitimate motive." 
Wallace v. Dunn, 968 F. 2d at 1181.26 Mt. Healthy’s 
requirement that the employer prove that it would have 
made the "same decision" on the proffered legitimate basis

23Price Waterhouse v. Hopkins, 490 U.S. 228, 240 n. 10
("employment decision the same"), 242 ("same decision"), 250("same
decision"), 258 ("same decision")(1989); NLRB v. Transportation 
Management Corp., 462 U.S. 393, 401("would have acted in the same 
manner")(1983); Givhan v. Western Line Consol. SchoolDist., 439 U.S. 
410, 416 ("same decision")(1979); Village of Arlington Heights v. 
MHDC, 429 U.S. 252, 270 n. 21 ("same decision")(1977).

26In rejecting the per se rule, the EEOC reasoned, "If an 
employer terminates an individual on the basis of a discriminatory 
motive, but discovers afterwards a legitimate basis for the 
termination, then the legitimate reason was not a motive for the 
action." Revised Enforcement Guide on Recent Developments in 
Disparate Treatment Theory, EEOC Compl. Man. (BNA) 405:6915, 
405:6926.



25

surely means that the employer must show that both the 
substance and the date of its decision would have been the 
identical. An employer could not defend the race-based 
dismissal of a worker in 1980 by asserting that it would in 
any event have dismissed that worker in 1990 when it closed 
the plant at which he or she worked. A decision to fire an 
employee in October 1990, the date on which petitioner was 
actually dismissed, is simply not the same thing as a decision 
to fire that employee in December 1991, the date on which 
respondent first invoked the after-acquired information at 
issue in this case.27

The per se rule is premised on the view that the 
critical inquiry under Mt. Healthy is not what the employer 
would have done "but for" the discriminatory motive, but 
what the employer would have done "had all the facts been 
known."28 Courts applying the per se rule thus hold that it 
is irrelevant why the employer was unaware at the time of 
the adverse action of the later acquired information.29 This 
standard would lead to nonsensical results. On this 
interpretation of Mt. Healthy, an employer could avoid 
liability in a hiring case by showing that, at the time it 
rejected a qualified black applicant on account of race, there 
was a better qualified white available for the position, even 
though the white had never applied for the job and the

27Petitioner also alleges that respondent harassed her and paid 
her less because of her age. Respondent does not of course contend 
that petitioner’s actions regarding the disputed documents would have 
prompted the employer to either harass or underpay her.

28Wallace v. Dunn Construction Co., 968 F. 2d 1174, 1188 (11th 
Cir. 1992)(Godbold, J., dissenting).

29Van Deursen v. United States Tobacco Sales Co., 839 F. Supp. 
760, 764 (D.Colo. 1993); Agbor v. Mountain Fuel Supply Co., 810 F. 
Supp. 1247, 1252-53 (D. Utah 1993); Washington v. Lake County, 
Illinois, 762 F. Supp. 199, 202 (N.D.II1. 1991); George v. Meyers, 1992 
WL 97777, *1 (D. Kan. 1992).



26

employer only learned of his or her existence long after the 
black applicant had been rejected. The Eleventh Circuit, 
which does not follow the per se rule, has correctly rejected 
that defense.30 In changing economic times, employers 
often make the mistake of maintaining a large workforce 
when, had all the economic facts been known, they would 
have laid off workers. Yet it is inconceivable that an 
employer could avoid liability under the ADEA or Title VII 
by proving that it would have fired the plaintiff before the 
statutory violation occurred, where the basis of that 
demonstration was after-acquired information regarding the 
previously secret minutes of the Federal Reserve Board 
Open Markets Committee, or about a competitor’s new 
product.

If, under the per se rule, after-acquired information 
is deemed to relate back to the point in time when a 
disputed employment action occurred, surely the same 
principle would have to apply where it operates to the 
advantage of the aggrieved employee. Yet such a retroactive 
imputation of new information would have a revolutionary 
impact. Under current law an employer can at times invoke 
a lack of information as part of its defense in an 
employment discrimination action. Thus an employer which 
hired a less qualified man over a better qualified woman is 
not liable under Title VII if when it made that decision it 
merely misunderstood the facts.31 Similarly, an employer 
is not liable for liquidated damages under the ADEA if at 
the time of the violation it believed in good faith that age 
was a bona fide occupational qualification for the position at 
issue. If, however, after-acquired information were generally

i0Eastland v. Tennessee Valley Authority, 704 F. 2d 613, 626 (11th 
Cir. 1983); EEOC v. Alton Packaging, 901 F. 2d 901, 925 (11th Cir. 
1990).

nTexas Department of Community Affairs v. Burdine, 450 U.S. 248, 
259 (1981).



27

deemed to relate back to the date of the alleged violation, 
it would render illegal otherwise lawful conduct, and render 
willful some violations which at the time they occurred were 
non-willful.

The lower courts adopting the per se rule appear to 
have done so out of a concern about the problem of 
employee misconduct and resume fraud. Congress has wisely 
chosen, however, not to require or authorize the federal 
courts to engage in a general policing of the American 
workplace. Rather, Congress has carefully delineated those 
employment problems which are to be addressed in federal 
courts, leaving all other issues to state courts or less formal 
methods of resolution. The ADEA and Title VII deal with 
two problems Congress concluded should be dealt with in 
federal court. This Court observed in St. Mary’s Honor 
Center v. Hicks, 509 U.S.—, 125 L. Ed. 2d at 407 (1993), 
that "Title VII is not a cause of action for perjury." 125 L. 
Ed. 2d at 425. Neither is the ADEA a Truth-In-Resumes 
Act, or a general code of employee conduct.

Hicks held that federal courts in Title VII or ADEA 
cases are to restrict themselves to determining whether acts 
of intentional discrimination had occurred. If an employer 
were to proffer false testimony, Hicks held, that would not 
warrant entry in favor of the plaintiff of a "judgment-for- 
lying". 125 L. Ed. 2d at 425. Under the per se rule, 
however, "judgments-for-lying" are regularly entered in favor 
of defendants, where, for example, a plaintiff had lied on a 
resume. That is precisely the judgement which the Sixth 
Circuit directed be entered in Milligan-Jensen v. Michigan 
Technological University, 975 F. 2d 302 (6th Cir. 1992). 
Similarly, this Court insisted in Hicks that judgment for the 
plaintiff could not be based on the fact that the facility 
director, John Powell, had engaged in a vendetta against 
Melvin Hicks for personal rather than racial reasons. But 
under the per se rule, the defendant in Hicks would have 
been entitled to judgment, despite acts otherwise unlawful



28

under Title VII, if Mr. Hicks had engaged in such a personal 
vendetta against Powell. We suggest that neither form of 
misconduct should be relevant to the question of liability 
under federal anti-discrimination laws.

The per se rule commits the federal courts to a task 
even further removed from the enforcement of employment 
discrimination law than merely punishing falsehoods. The 
district court in the instant case held that federal 
employment discrimination claims are to be dismissed for 
"severe" "misconduct", although not for "minor or trivial" 
infractions. (Pet. App. 16a, 17a).32 The implementation of 
such a distinction would require the federal courts to 
construct a federal common law of employee conduct, 
selecting from the limitless variety of activities engaged in by 
workers those actions to be labeled misconduct, and then 
deciding which of these were to be rated "severe" and which 
"minor." Federal judges, however, have neither the capacity 
nor the congressional mandate to establish such an employee 
rating system. This Court in Still rejected a per se rule 
barring FELA claims by workers who had engaged in serious 
fraud precisely because it found that lower courts which had 
tried to apply such a rule had "been forced to struggle with 
the baffling problem of how much and what kinds of fraud 
are sufficiently abhorrent." 368 U.S. at 42.33

32 See also R. Br. Opp. 10, 11 ("the doctrine" applies to "serious 
misconduct" but not "minor infractions").

33 Respondent urges this Court to decide that a secretary who 
copies ten pages of documents and takes them home, showing them 
to no one but her husband, is guilty of "severe" rather than "minor" 
misconduct (R.Br.Op. 10-11). That is simply the wrong question. 
The threshold issue in an after-acquired information case is not a 
question of law for the court regarding whether an infraction is to be 
rated as "severe", but a question of fact-to be decided in an ADEA  
case by the jury-as to whether the particular employer would actually 
have dismissed the plaintiff on that basis.



29

To the extent that employers may have been wronged 
by present or former employees, "we have other civil and 
criminal remedies for that." St. Mary’s Honor Center v. 
Hicks, 125 L. Ed. 2d at 407; see ABF Freight System v. 
NLRB, 510 U.S. 127 L Ed. 2d 152, 160 (1994). If the 
respondent has been injured by petitioner, it can presumably 
bring an appropriate action in state court. Such state court 
proceedings are a far more appropriate form of redress for 
aggrieved employers, since state courts can award the precise 
level of relief warranted by the circumstances. The only 
form of redress for employee misconduct available from a 
federal court entertaining an employment discrimination 
action is dismissal of that federal claim, the value of which 
may greatly exceed, or be far less than, whatever harm may 
have been suffered by the employer.34 In some instances 
criminal or other forms of disciplinary proceedings might be 
appropriate. In several after-acquired information cases the 
plaintiffs had in fact already been sanctioned in that 
manner35. No federal purpose is served by imposing the 
additional sanction of dismissal of pending employment 
discrimination claims.

34The court of appeals below expressed concern about a 
hypothetical case in which an employment discrimination victim stole 
"money from her employer for support of herself." Pet. App. 9a n.8. 
In Johnson v. Honeywell Information Systems, Inc., 955 F. 2d 409, 415 
(6th Cir. 1992), the Sixth Circuit hypothesized a situation in which the 
civil rights plaintiff was a non-physician who had been working under 
false pretenses as a company doctor. The important thing about 
these somewhat far fetched hypothetical is that if they ever in fact 
occurred, the employees could and almost certainly would be subject 
to criminal prosecution.

35Such sanctions had in fact been imposed on the plaintiffs in 
Omar v. Sea-Land Service, Inc., 813 F. 2d 986, 988 (9th Cir. 
1987)(seaman’s papers revoked by the Coast Guard); Moyland v. 
Maries County, 792 F. 2d 746, 748 (8th Cir. 1986)(plaintiff charged 
with a misdemeanor).



30

This Court admonished in Hicks that awarding 
judgment to an employment discrimination plaintiff because 
a defense witness lied would be a "strangely selective" 
sanction that was far from "fair and even-handed." St. 
Mary’s Honor Center v. Hicks, 125 L. Ed. 2d at 425. The 
same is true of the per se rule applied below. An employer 
is free to perpetrate on an employee violations of tort, 
contract, or criminal law principles without any consequence 
under the ADEA or Title VII, so long as no invidious 
motive is involved, while the employee’s rights under those 
laws may be forfeited for similar infractions. Even where 
the employer’s misconduct is related to an intentionally 
discriminatory scheme, the effect of the per se rule is 
necessarily to punish the employee and exonerate the 
employer.36 In the sometimes rough and tumble world of 
employer-employee relations, the effect of the per se rule is 
to "license [the employer] to fight freestyle, while requiring 
the [employee] to follow Marquis of Queensbury Rules." 
R.A.V. v. St.Paul, 505 U.S. —, 120 L. Ed. 2d 305, 323.

IV. AFTER-ACQUIRED INFORMATION THAT 
MIGHT WARRANT DISMISSAL OF AN 
EMPLOYEE MAY LIMIT, BUT IS NOT A 
COMPLETE BAR TO, RELIEF UNDER THE 
ADEA

The decision of the Sixth Circuit below asserts, albeit 
with little explanation, that after-acquired information which

36See Bonger v. American Water Works, 789 F. Supp. 1102,1106-07 
n.5 (D. Colo. 1992)(in dismissing Title VII claim because plaintiff had 
made false statement in her resume, court deems irrelevant fact that 
company official made false statement about his own work experience 
at deposition). In the not uncommon situation in which an employer 
has a written policy against discrimination, the plaintiffs allegation of 
discrimination is necessarily also a claim that one or more supervisory 
officials violated the employer’s own rules.



31

would have led to a plaintiffs dismissal "is a complete bar to 
any recovery." (Pet. App. 6a).

It is particularly clear, however, that after-acquired 
information should not be a bar to recovery in a claim under 
the ADEA. Section 4(b) of the ADEA, 29 U.S.C. §626(b), 
states that "[t]he provisions of this chapter shall be enforced 
in accordance with the powers, remedies and procedures 
provided in sections 211(b), 216 . . . and 217 of this title." 
The referenced sections are the enforcement provisions of 
the Fair Labor Standards Act. 29 U.S.C. §201, et seq. As 
we set out supra, the Fair Labor Standards Act was 
authoritatively construed in 1962--five years prior to the 1967 
enactment of the ADEA—not to contain any per se bar 
based on after-acquired information, an interpretation of the 
FLSA sought and supported by the Wage and Hour Division 
of the Department of Labor. Goldberg v. Bama 
Manufacturing Corp., 302 F. 2d 152 (5th Cir. 1962).

Read in conjunction with the language of section 
4(b), Goldberg is dispositive of the after-acquired 
information issue under the ADEA. This Court explained in 
Lorrilard v. Pons, 434 U.S. 575 (1978):

[W]e find a significant indication of Congress’ intent 
in its directive that the ADEA be enforced in 
accordance with the "powers, remedies, and 
procedures" of the FLSA . . . .  Congress is presumed 
to be aware of an administrative or judicial 
interpretation of a statute . . . .  [Wjhere, as here, 
Congress adopts a new law incorporating sections of 
a prior law, Congress normally can be presumed to 
have had knowledge of the interpretation given to 
the incorporated law, at least insofar as it affects the 
new statute.

That presumption is particularly appropriate 
here since, in enacting the ADEA, Congress 
exhibited both a detailed knowledge of the FLSA



32

provisions and their judicial interpretation and a 
willingness to depart from those provisions regarded 
as undesirable or inappropriate for incorporation.

434 U.S. at 581 (Emphasis omitted). Only last year this 
Court reiterated the decisive importance of pre-1967 
interpretations of the FLSA in construing the ADEA, Hazen 
Paper Co. v. Biggins, 507 U.S.—, 123 L. Ed. 2d 338, 349 
(1993), as it had in Trans World Airlines, Inc., v Thurston, 
469 U.S. I l l ,  126 (1985). In this context the decision in 
Goldberg is sufficient to compel rejection of the Sixth 
Circuit’s interpretation of the ADEA.

Even in the absence of Goldberg, the well established 
remedial principles applicable to any employment 
discrimination claim would require rejection of the Sixth 
Circuit’s per se rule. The remedial issues in all such cases 
are guided by this Court’s seminal decision in Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975). Explaining the 
remedial provisions of Title VII, the Court laid down a 
standard equally applicable to all civil rights statutes:

[Tjhat Act is intended to make the victims of 
unlawful discrimination whole, and that . . . requires 
that persons aggrieved by the consequences and 
effects of the unlawful employment practice be, so 
far as possible, restored to a position where they 
would have been were it not for the unlawful 
discrimination.

422 U.S. at 421. The Court has reiterated that standard on 
a number of occasions. United States v. Burke, 504 U.S. —, 
119 L. Ed. 2d 34, 46 (1992)(quoting Albemarle)-, Ford Motor 
Co.v. EEOC, 458 U.S. 219, 230 (1982)(quoting Albemarle); 
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 
(quoting Albemarle), 769 (courts are to "restorje] the 
economic status quo that would have obtained but for the 
company’s wrongful [act]")(1976).



33

Under the per se rule applied by the Sixth Circuit, 
however, the victims of discrimination in an after-acquired 
information case are never placed in the "position where they 
would have been were it not for the unlawful 
discrimination." The relief accorded under the per se rule 
is not limited or inadequate, it is completely non-existent. 
Far from being restored to the position they would have 
been in had the violation of the ADEA not occurred, under 
the Sixth Circuit rule the victims of the unlawful 
discrimination are left to suffer all the injuries inflicted by a 
violation of federal law, as if the ADEA itself had never 
been enacted. The Sixth Circuit decision in the instant case 
denies petitioner four distinct types of relief necessary to 
restore her to the circumstances that would have existed but 
for the alleged discriminatory acts.

First, under the Sixth Circuit rule petitioner is denied 
damages for intentional harassment on the basis of age, in 
this case harassment inflicted on her for the purpose of 
coercing her resignation. Decisions applying the Sixth 
Circuit’s per se rule have repeatedly dismissed without relief 
claims of harassment on the basis of race or gender, 
including sexual harassment.37 This Court noted in Harris

37Russell v. Microdyne Corp., 830 F. Supp. 305 (E.D.Va. 
1993)(dismissing sexual harassment claim); Baab v. AMR Services 
Corp., 811 F. Supp. 1246 (N.D.Ohio 1993)(dismissing sexual 
harassment claim); Washington v. Lake County, Illinois, 762 F. Supp. 
199 (N.D;I11. 1991)(dismissing racial harassment claim); Churchman 
v. Pinkerton’s Inc., 756 F. Supp. 515 (D. Kan. 1991)(dismissing sexual 
harassment claim); Mathis v. Boeing Military Airplane Co., 719 F. 
Supp. 991 (D. Kan. 1989)(dismissing claims of racial and sexual 
harassment); Benson v. Quanex Corp., 58 FEP Cas. 743 (E.D.Mich. 
1992)(dismissing racial harassment claim).

Other decisions have refused to allow employers to invoke 
after-acquired information to block relief in sexual or other 
harassment cases. Wallace v. Dunn Construction Co., 968 F. 2d 1174, 
1182 (11th Cir. 1992)(sexual harassment); Bazzi v. Western and 
Southern Life Insurance Co., 808 F. Supp. 1306 (E.D.Mich.



34

v. Forklift Systems, Inc., 510 U.S. 126 L. Ed. 2d 295, 302 
(1993), the wide variety of injuries that can be occasioned by 
such harassment. Unlike the ADEA, which from the 
beginning authorized the granting of "legal . . . relief1, 29 
U.S.C. §626(b), Title VII as originally enacted provided only 
for equitable remedies. When Title VII was amended to 
authorize damage awards, Congress was particularly 
concerned about the need for such awards in harassment 
cases, noting that harassment could cause "emotional pain, 
suffering, inconvenience, mental anguish, loss of enjoyment 
of life, and other nonpecuniary losses." 42 U.S.C. 
§1981a(b)(3). In especially egregious cases, invidious 
harassment can "destroy completely the emotional and 
psychological stability of .. . workers." Meritor Savings Bank 
v. Vinson, 477 U.S. 57, 66 (1986).

None of these are injuries that would have been 
sustained had respondent merely dismissed petitioner for the 
alleged misconduct, whether that dismissal had occurred at 
the time of the actual discharge, October 1989, or when the 
after-acquired information was first invoked, December 
1990. Respondent contends only that it would have 
discharged petitioner on the basis of that information; 
respondent does not assert that, in some malicious fit of 
pique, it would have subjected petitioner to a protracted 
period of harassment before firing her. Thus the after- 
acquired evidence on which respondent relies does not affect 
the undeniable fact that only an award of damages can 
restore petitioner to the position she would have been in 
had the harassment not occurred.

Second, under the decision below petitioner is denied 
back pay for the period when respondent paid her a lesser

1992)(national origin harassment).



35

wage on account of her age.38 This claim relates to wages 
petitioner earned during a period of more than a year prior 
to her dismissal. Regardless of whether respondent might 
have been justified in dismissing petitioner at some point in 
this period, respondent did not do so. Petitioner was 
employed by respondent throughout those months, and 
respondent does not assert that the after-acquired evidence 
gave it any right to refuse to pay her for work actually 
performed. The ADEA provides that the amount of 
compensation which petitioner would otherwise have been 
paid for her work could not be reduced because of her age. 
If, as petitioner contends, she was paid less in 1989-90 
because of her age, she was entitled to that unlawfully 
withheld wage when she earned it, and she remained entitled 
to it on the day she was actually fired, even if that dismissal 
had been for lawful reasons. The after-acquired information 
in this case does not affect the fact that only an award of 
back pay will restore petitioner to the position she would 
have occupied had the wage discrimination not occurred.

Third, under the Sixth Circuit decision petitioner is 
improperly denied any back pay whatever for her unlawful 
discharge. We acknowledge that, under Albemarle, the after- 
acquired evidence may be relevant to the amount of back 
pay for such an unlawful dismissal. Back pay for any 
discriminatory discharge necessarily terminates at that point

38Petitioner contends she was denied equal pay in two ways, by 
being denied a raise which would have been awarded but for her age, 
and by being denied on that basis compensatory time to which she 
otherwise would have been entitled.

In addition to the instant case, the per se rule was used to 
bar wage discrimination claims in Miller v. Beneficial Management 
Corp., 844 F. Supp. 990 (D.N.J. 1993) and Rich v. Westland Printers, 
62 FEP Cas. 379 (D. Md. 1993). Other decisions have concluded that 
after-acquired information should be treated as legally irrelevant to 
such equal pay claims. See, e.g., Boyd v. Rubbermaid Commercial 
Products, 62 FEP Cas. 1228 (W.D.Va. 1992).



36

in time at which the victim would have lost his or her job for 
non-discriminatory reasons. For example, having been 
dismissed in October, 1990, petitioner’s right to back pay 
would have ended on June 30, 1991, if on that date 
respondent had closed its doors and fired its entire staff; in 
such a situation an award of back pay from October 1990 
through June 1991 would be sufficient to restore petitioner 
to the position she would have occupied but for the 
discriminatory dismissal. This application of the Albemarle 
"but for" rule does not, however, mean that the mere 
existence of after-acquired information automatically wipes 
out all back pay claims in unlawful discharge cases. "But 
for" the discriminatory discharge, an employee would have 
remained on the job from the date of the unlawful dismissal 
until the date on which the employer learned the relevant 
information and dismissed the plaintiff.39 Thus, as the 
Eleventh Circuit urged in Wallace v. Dunn Construction Co., 
the back pay period in a wrongful discharge case only cuts 
off at the point in time at which, but for the discrimination, 
the employer would have discovered the relevant 
information and would have dismissed the employee. 968 F. 
2d at 1182.

Of course, an employer could attempt to show that 
it would have discovered the critical information only a 
matter of days after a plaintiff was unlawfully dismissed, thus 
reducing its back pay exposure to a nominal amount.40 
Although, in the instant case, respondent only learned

39”If [the plaintiff] is not compensated for the losses suffered 
between the time he was illegally fired and 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 committed 
against him, and the purpose of the protective legislation is entirely 
lost." Welch v. Liberty Machine Works, Inc., 1994 WL 169682 at *4 
(8th Cir. 1994)(Arnold, J., dissenting).

i0Proubc v. Citibank, N.A., 681 F. Supp. 199, 203 (S.D.N.Y. 1988).



37

about the disputed documents in December, 1991, it might 
conceivably be able to demonstrate that the problem would 
have come to light much sooner had petitioner not been 
dismissed in October, 1990. But, as is true in framing any 
remedy under Albemarle, the dispositive question is when the 
information would have come to light "but for" the unlawful 
discrimination.

In some circumstances even reducing a back pay 
award on the basis of after-acquired evidence would be 
inconsistent with the principles of Albemarle. As the 
circumstances of this case illustrate, actions taken by an 
employer in violation of federal anti-discrimination law may 
understandably prompt a response by the intended victim of 
that statutory violation, including steps to protect his or her 
legal rights.41 Where an employer in turn seizes on that 
response as providing a justification for dismissal, the entire 
train of events is one that would not have occurred "but for" 
the original statutory violation. In at least some 
circumstances it would be inappropriate to reduce the 
remedy accorded to a discrimination victim merely because 
of his or her response to that violation.

The courts below mistakenly thought it irrelevant as 
a matter of law whether the copying of the documents at 
issue in this case was a response to respondent’s violation of 
the ADEA. (Pet. App. 8a, 9a, 17a). The court of appeals 
believed that it would be appropriate to consider after- 
acquired information that an employee had embezzled large 
sums of money in response to a statutory violation. (Pet. 
App. 9a n. 8) On the other hand, an employer could not 
conceivably dismiss an employee, on the basis of after­

410 ’Day v. McDonnell Douglas Helicopter Co., 784 F. Supp. 1466, 
1467 (D. Ariz. 1992)(plaintiff copied document showing alteration of 
his ranking to justify discriminatory layoff); Boyd v. Rubbermaid 
Commercial Products, Inc., 62FEP Cas. 1228 (W.D.Va. 1992)(plaintiff 
copied document revealing salary discrimination).



38

acquired evidence or otherwise, because, in response to a 
sexual assault by her supervisor, she had denounced him in 
coarse language.42 Where the instant case falls between 
those is one of the issues that must be addressed on remand.

Petitioner also sought in her complaint an award of 
liquidated damages for an allegedly willful violation of the 
ADEA. Under the ADEA a plaintiff is entitled to 
liquidated damages equal to the amount of any damages 
awarded for such a violation shown to be willful. Trans 
World Airlines, Inc. v. Thurston, 469 U.S. I l l  (1985). 
Because such liquidated damages are not intended to make 
a plaintiff whole for harm occasioned by a violation of the 
ADEA, the Albemarle analysis set out above is not the 
appropriate one. Nonetheless, after-acquired evidence 
cannot provide a basis for denying liquidated damages where 
they are otherwise appropriate under the ADEA.

The plain language of the ADEA and FLSA 
unequivocally directs the courts to make such an award if 
two circumstances are met: (1) a plaintiff has been awarded 
damages under the ADEA and (2) the underlying violation 
was a "willful" one. Section 216(b) of the FLSA, which the 
ADEA expressly incorporates by reference, states 
unequivocally, "Any employer who violates [the law] shall be 
liable to the employee or employees affected in the amount 
of their unpaid minimum wages . . . and in an additional 
equal amount as liquidated damages." 29 U.S.C. 
§216(b)(Emphasis added) Although a portion of the Portal- 
to-Portal Pay Act accords courts some latitude to deny 
liquidated damages in FLSA cases, that provision of the 
Portal-to-Portal Pay Act is specifically inapplicable to ADEA 
cases. See Lorillard v. Pons, 434 U.S. 575, 581 n. 8 (1978). 
The legislative history of the ADEA indicates that Congress 
included the liquidated damages provision in order to punish

i2EEOC v. EEC Brothers Rebel, Inc., 663 F. Supp. 864, 867 
(W.D.Va. 1987).



39

willful violators of the law, and to operate as "an effective 
deterrent to willful violations." Trans World Airlines, Inc. v. 
Thurston, 469 U.S. I l l ,  125-26 (1985). The finding of 
willfulness that mandates an award of liquidated damages 
turns solely on the state of mind of the employer at the time 
of the underlying violation. Willfulness is present, and 
liquidated damages are thus required, if "the employer . . . 
knew or showed reckless disregard for the matter of whether 
its conduct was prohibited by the ADEA." Id. at 126. Such 
a finding of willfulness, like a finding of unlawful 
discrimination under Price Waterhouse, is thus not affected 
by what the employer may have learned at a point in time 
subsequent to the violation.

The Sixth Circuit’s total denial of all monetary relief 
in after-acquired information cases is inconsistent with 
Albemarle’s explanation that monetary awards provide an 
essential incentive for compliance with the law.

If employers faced only the prospect of an injunctive 
order, they would have little incentive to shun 
practices of dubious legality. It is the reasonably 
certain prospect of a backpay award that "providejs] 
the spur or catalyst which causes employers and 
unions to self-examine and to self-evaluate their 
employment practices . . . ."

Albemarle Paper Co., v. Moody, 422 U.S. at 417-18. Under 
the Sixth Circuit rule, however, instead of fearing the 
"reasonably certain prospect of a [monetary] award", 
employers are reassured by the prospect that an after- 
acquired information defense may be found for any illegality, 
a prospect which one lawyer giddily described as "akin to 
winning the lottery."43 Rather than re-examining whether

43Lawyers Weekly USA, June 21, 1993, p. 1, col. 1; see also id. 
("Some defense attorneys are now routinely ’digging up dirt’ on 
plaintiffs and using it to obtain summary judgment").



40

their practices are in compliance with federal law, employers 
are now being admonished to re-evaluate whether their 
practices maximize the likelihood that they will be able to 
invoke after-acquired evidence to escape responsibility for 
violations of federal law44, and are being urged to comb 
through old resumes looking for misstatements.45 Rather 
than increasing employment opportunities, the Sixth Circuit 
per se rule has prompted employers’ counsel to urge that

44G. Mesritz, "’After-Acquired’ Evidence of Pre-Employment 
Misrepresentations: An Effective Defense Against Wrongful
Discharge Claims", 18 Employee Relations L.J. 215, 215 ("Employers 
. . . should maximize the probability that ’after-acquired’ evidence is 
available as a defense by revising employment applications to elicit 
even more specific information"), 222("[A]pplications should be 
revised to maximize the availability of the ’after-acquired’ evidence 
defense. Questions about education and employment should require 
degrees obtained, dates of employment, reason for leaving, and 
addresses of all schools and previous employers. . . . Additionally, 
applicants should be required to identify all positions held with each 
previous employer and to describe duties and responsibilities for each 
position."), 222(employer written rule that workers may be fired for 
false statements in job applications "should not refer to ’intentional’ 
or ’material’ misrepresentations. . .  [Ejmployers should not limit their 
right to discharge only for ’material’ misrepresentations.")(1992). The 
article notes that the author is "one of the attorneys who defended 
the [Johnson v.] Honeywell litigation." Id. at 215.

45Id. at 215 ("Management attorneys should respond to [the Sixth 
Circuit decision in Johnson] by routinely searching for pre­
employment misrepresentations as a potentional defense . . ."), 224 
("Investigating for ’after-acquired’ evidence should include subpoenas 
to all educational institutions and previous employers for all 
documents concerning plaintiff. Physicians and mental health care 
professionals also should be subpoenaed to determine whether 
plaintiffs representations . . . were truthful. Courts located where 
plaintiff has resided should be contacted . . . .  Additionally, the 
employer should conduct an internal investigation for misconduct 
that, although unknown at the time of discharge, may support an 
’after-acquired’ evidence defense.")



41

more employees be ruthlessly dismissed, even for relatively 
minor infractions, in order to provide a basis for later 
arguing that civil rights plaintiffs too would have been 
discharged.46

The only passage in the decision below intimating any 
reason why after-acquired information should be such a 
complete bar to relief is a puzzling remark that such 
information, although it "could not have been the actual 
cause of the employee’s discharge, . . . was relevant and 
determinative as to the employee’s claim of injury . . . 
(Pet. App. 5a). This appears to echo a briefer and even 
more cryptic assertion in Milligan-Jensen that the plaintiff 
there had suffered "no legal damage." 975 F. 2d at 305. 
These epigrammatic arguments are difficult, not only to 
understand, but even to reconcile, since Milligan-Jensen 
asserts, to justify its statement that there is no "legal 
damage", that "the problem [is] one of causation", id. at 304, 
which is precisely the explanation which the Sixth Circuit in 
the instant case disavowed. Whatever these opaque passages 
may mean, if petitioner can prove the allegations of her 
complaint, that will demonstrate, as a matter of common 
sense, ordinary English, and law, that petitioner was in fact 
injured, and that the cause of that injury was harassment, 
unequal pay and ultimately discharge on the basis of her 
age. If petitioner can establish these facts, she would 
unquestionably be entitled to relief.

In sum, after-acquired information which would have 
prompted an employer to dismiss a plaintiff may limit, but 
will not bar entirely, relief in an employment discrimination

'*6Id. at 223 ('If a misrepresentation is disclosed, the applicant should 
not be hired, no matter how impressive the applicant is otherwise. . . . 
Misrepresentations discovered after an employee is hired should 
result in immediate discharge. Uniform application of the mle 
prohibiting pre-employment misrepresentations is critical.") (Emphasis in 
original)



42

case. Reinstatement and front pay will, at least ordinarily, 
be unavailable. Back pay in a discharge case will run until 
the point in time at which the employer can establish it 
would have acquired the information and would have 
dismissed the plaintiff.47 Compensatory damages for 
harassment, liquidated damages for willful violations, and 
punitive damages where otherwise appropriate will not be 
affected even if an employer succeeds in establishing an 
after-acquired information defense.

V. THE DECISIONS BELOW MUST BE REVERSED

In light of the foregoing analysis, the decision of the 
courts below dismissing the complaint must for several 
distinct reasons be overturned.

First, the dismissed complaint sought compensatory 
damages for harassment, back pay for a denial of back pay, 
and liquidated damages for willful violations of the ADEA. 
None of these remedies should be affected by the proffered 
after-acquired information.

Second, insofar as the complaint seeks back pay for 
unlawful discharge, the after-acquired information defense, 
if successful, might reduce, even substantially, that award, 
but could not eliminate it entirely. If, for example, 
respondent can prove that it would have acquired the 
relevant information and would have dismissed petitioner 
shortly after the actual October 1990 discharge date, it will 
reduce this aspect of its back pay liability to a relatively 
nominal amount. At this stage, however, respondent has not 
adduced any evidence, or even made any allegation, 
regarding when it would have acquired that information "but 
for" the alleged statutory violation.

47If that date cannot be established, back pay will, unless other 
limiting circumstances are present, run until the date of judgment.



43

Third, in evaluating the after-acquired evidence 
defense, the district court misapprehended which party bears 
the burden of proof on that issue. A defendant that seeks to 
reduce its liability for unlawful discrimination by asserting 
that it would have dismissed a plaintiff on the basis of some 
legitimate reason, after-acquired or not, bears the burden of 
proving that assertion. Price Waterhouse v. Hopkins, 490 U.S. 
228, 240 n. 11, 250, 252, 258 (1989); NLRB v. Transportation 
Management Corp., 462 U.S. 393, 400 (1983); Teamsters v. 
United States, 431 U.S. 324, 359 n.45 (1977); Village o f 
Arlington Heights v. MHDC, 429 U.S. 252, 270 n.21 (1977); 
Mt. Healthy City Bd. o f Ed. v. Doyle, 429 U.S. 274, 287 
(1977). The district court thus erred when it held that 
dismissal of the complaint was required because petitioner 
had "brought forth no evidence tending to prove that the 
Banner would have continued her employment had it 
learned of her misconduct prior to her termination." (Pet. 
App. 17a).

It is equally clear that, regardless of which party bore 
the burden of proof, the question of whether respondent 
would have dismissed petitioner on the basis of the after- 
acquired information is one which in this case, at least, 
cannot be resolved on summary judgment. Respondent 
candidly acknowledges that there is a dispute as to whether 
petitioner’s asserted misconduct was "serious enough to 
warrant termination." (R.Br. Op. 3). More fundamentally, 
here, as will often be the case, the dispute regarding whether 
the petitioner would have been dismissed is inextricably 
intertwined with the merits of petitioner’s claims. The after- 
acquired information defense raised by respondent is similar 
to the argument advanced by the employer in McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973), that it had 
refused to hire Green because of his involvement in a stall- 
in that obstructed access to the company plant. This Court 
held that in assessing that claim, the finder of fact should 
consider the defendant’s "general policy and practice with 
respect to minority employment." 411 U.S. at 804-05.



44

Similarly, in the instant case a demonstration that 
respondent had discriminated against petitioner on the basis 
of age through harassment, denial of raises and dismissal 
would be persuasive evidence that any hypothetical after- 
acquired information dismissal would also have been age 
based. The particular company officials on whose affidavits 
respondent relies in its after-acquired information defense 
are the very same individuals whom petitioner alleges 
orchestrated a year long intentional violation of the 
ADEA.48 If the finder of fact rejects testimony by those 
officials regarding that discrimination, that conclusion will 
obviously affect its assessment of the credibility of their 
testimony regarding the after-acquired information defense. 
Price Waterhouse v. Hopkins, 490 U.S. at 252 n. 14.

In support of its contention that it would have fired 
petitioner based on the after-acquired information, 
respondent submitted four similarly worded conclusory 
affidavits to that effect from company officials. (J. App. 35a- 
43a). The Sixth Circuit apparently regarded those affidavits 
as sufficient to meet respondent’s burden of proof on that 
issue. In this regard as well the court of appeals departed 
from the holdings of this Court.

In Price Waterhouse this Court insisted that an 
employer could only meet its burden of proof by adducing 
"some objective evidence as to its probable decision in the 
absence of an impermissible motive." 490 U.S. at 252. The 
Court rejected the suggestion that an employer might do so 
merely by offering conclusory testimony that the employee 
would have been dismissed even in the absence of the 
unlawful motive. Compare id. at 252 n. 14 with id. at 261 
(White, J., concurring). The EEOC has expressly endorsed

48 Stoneking, Simpkins and McMillan were all named in the 
complaint as involved in the conspiracy. J. App. 7a-9a.



45

the Price Waterhouse requirement of objective evidence.49 
The employer could meet that burden, for example, by 
adducing proof that it had an "absolute policy"50 of 
dismissing comparable offenders. See McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 804 (1973).

The reason for this requirement of objective evidence 
is particularly apparent in an after-acquired information 
case. Assessment of such a defense requires a court to 
determine what would have occurred if the employer had 
taken no unlawful action, had had no impermissible motive, 
and had known facts which it did not know. Whether the 
employer would have fired the plaintiff on the basis of that 
after-acquired information is thus not a question about the 
state of mind of any actual personnel official or other 
individual, but a hypothetical construct arrived at by 
considering the actions of the plaintiff and the standards in 
fact applied by the employer at the relevant point in time. 
The employer’s actual record in disciplining, or not 
disciplining, other employees51 will often be the "truer

49Revised Enforcement Guide on Recent Developments in Disparate 
Treatment Theory, EEOC Compl. Man. (BNA) 405:6915, 405:6925 
("the respondent must offer objective evidence . . . .  [A] mere 
assertion of a legitimate motive, without evidence . . . would not be 
sufficient.")(quoting Price Waterhouse).

50Id. at 405:6926. .

il Welch v. Liberty Machine Works, Inc., 1994 WL 169682 *3 (8th 
Cir. 1994)("Allowing Liberty . . .  to establish a purported policy of 
this nature solely on the contents of [a company official’s] affidavit 
seems to us to be contrary to the dictates of Mt. Healthy. . . . [W]e 
believe that the employer bears a substantial burden of establishing 
that the policy pre-dated the hiring and the firing of the employee in 
question and that [its written] policy constitutes more than mere ... 
boilerplate. Liberty presented no other evidence of its policies. By 
itself, [the official’s] affidavit is a self-serving document and does not 
establish the material fact that Liberty would not have hired Welch



46

[standard] than the dead words of written text", Monell v. 
Department o f Human Services, 436 U.S. 658, 691 n. 56 
(1978), particularly because in virtually all after-acquired 
information cases the relevant written standards stated only 
that an employee "could" be dismissed under the 
circumstances at issue.52 Testimony or evidence regarding 
such actual practices would obviously be relevant and could 
in appropriate circumstances satisfy an employer’s burden of 
proof53, although the credibility and probativeness of the 
evidence would have to be determined at trial by the finder 
of fact.

but for the misrepresentation. As the movant for summary judgment, 
Liberty bore the significant burden of establishing that it had a settled 
policy of never hiring individuals similarly situated to Welch."); 
Leahey v. Federal Express Corp., 685 F. Supp. 127, 128 (E.D.Va. 
1988)(after-acquired information defense would be too speculative to 
submit to a jury if not "anchored in evidence concerning defendant’s 
procedures and practices.").

5ZKristufek v. Hnssman Food Service Co., 985 F. 2d 364, 369 (7th 
Cir. 1993)("The principal evidence of the company policy appears on 
the employment application form which warns that ’any misstatement 
or omissions of material facts . . . may be cause for immediate 
dismissal.’ ’May be’ is not ’will be’ and is not enough to avoid the 
proven charge of retaliatory firing"); Massey v. Tramp’s Castle Hotel 
& Casino, 828 F. Supp. 314, 326-27 (D.N.J. 1993)(employer handbook 
which stated disciplinary action for the misconduct "may include 
suspension, demotion, or discharge, depending upon the 
circumstances" insufficient to meet employer’s burden of proof; "it 
does not state that all falsifications will result in dismissal, but merely 
that falsifications will be considered grounds for dismissal").

yiRedden v. Wal-Mart Stores, Inc., 832 F. Supp. 1262, 1266 
(N.D.Ind. 1993)(employer demonstrated that a large number of 
employees had in fact been dismissed for the same misconduct); 
Agbor v. Mountain Fuel Supply Co., 810 F. Supp. 1247, 1249 (D. Utah 
1993)(dismissal of alien employee required by federal law).



47

But an affidavit or testimony which merely asserts in 
conclusory terms that an employer would have dismissed the 
plaintiff is not by itself sufficient to meet that burden. Such 
testimony obviously provides the finder of fact with no 
information whatever about the employer’s actual practices. 
Such a bald assertion may reflect, not any consideration of 
the employer’s past practices, but only the witness’s personal 
attitude toward the plaintiff, an attitude all too likely colored 
by the charge of discrimination or an understandable desire 
to limit the defendant’s liability. A witness who asserts that 
a plaintiff would have been dismissed, but says nothing 
about the employer’s actual standards, is no more probative 
than a witness who asserts that a plaintiff would have been 
dismissed, but does not reveal the nature of the alleged 
misconduct involved. At best such a conclusion would mean 
that the witness claimed to have considered the employer’s 
undisclosed past standards and applied them to his or her 
view of the facts of the controversy, thereby purporting to 
usurp the factfinding responsibilities of the judge or jury. 
Testimony or affidavits otherwise insufficient to meet an 
employer’s burden of proof are not strengthened by the 
addition of rhetorical flourishes, such as assertions that the 
rule violation was "obvious" or that the asserted dismissal 
would have been "immediate."(J.App. 35a-43a).

Of course, a factfinder in possession of objective 
evidence about an employer’s actual practices might choose 
to rely on the opinions of current or former employees, 
including the plaintiff or company officials, regarding how 
those standards would have been applied. But absent such 
objective evidence, ordinarily to be tested at a full due 
process hearing, regarding the actual standards of a 
particular employer, a court would often have no way of 
assessing the significance of conclusory testimony. Federal 
judges have little expertise in the often widely varying



48

personnel practices of American employers.54 In assessing 
claims by employers that they would have dismissed a 
plaintiff for misstatements in a job application, some courts 
have asserted that "it simply strains credulity to accept that 
any reasonable management personnel"55 would fail to fire 
workers guilty of that offense, while other courts have 
insisted that there were "many situations" in which employers 
would not dismiss workers whom they discovered after the 
fact to have made such misstatements.56 The problem is not 
simply that one of these assumptions must be incorrect, but 
that courts have no basis—in the absence of objective 
evidence regarding a particular employer-for knowing which 
assumption is the correct one.

In a deposition in the instant case, when counsel for 
petitioner attempted to ask a company official how he would 
have responded if various extenuating circumstances had 
been considered, counsel for respondent repeatedly objected 
that the question was "hypothetical,"(J.App. 68a) That 
objection illustrates the potential difficulty an employer may

54 The dress code at IBM is obviously very different from that at 
Apple; a federal court would have no way of knowing a priori 
whether to credit a conclusory affidavit that a software engineer 
would be fired for failing to wear a suit to work at Compaq.

S50 ’Driscoll v. Hercules, Inc., 745 F. Supp. 656, 659 (D. Utah 
1990), affd  12 F. 3d 176 (10th Cir. 1994). The plaintiff in this case 
had understated her age in her job application out of fear of age 
discrimination. The employer invoked that misrepresentation a full 
ten years after she had been hired.

'6Bonger v. American Water Works, 789 F. Supp. 1102, 1106 (D. 
Colo. 1992)("There are many situations . . .  in which an employer 
would not discharge an employee if it subsequently discovered resume 
fraud, although the employee would not have been hired absent that 
resume fraud. . . . For example, if the employee had been doing 
excellent work, if a great deal of resources had been invested in 
training the individual . . . .").



49

face in meeting its burden of proof. It may at times be 
impossible to determine whether a plaintiff would have been 
dismissed on the basis of after-acquired information, due to 
the complexities of the facts, the vagueness of the employer’s 
standards, disputes about what a plaintiff actually did, or 
uncertainty regarding the impact of extenuating or 
aggravating circumstances. Should that be the case, the 
after-acquired evidence defense would necessarily fail.57

The employer is a wrongdoer; he has acted out of a 
motive that is declared illegitimate by the statute. It 
is fair that he bear the risk that the influence of legal 
and illegal motives cannot be separated, because he 
knowingly created the risk and because the risk was 
created not by innocent activity but by his own 
wrongdoing.

NLRB v. Transportation Management Corp., 462 U.S. 393, 
403 (1983).

In our adversary system, where a party has the 
burden of proving a particular assertion and where 
that party is unable to meet its burden, we assume 
that that assertion is inaccurate.

Price Waterhouse v. Hopkins, 490 U.S. at 246 n. 11. Thus if, 
on remand, respondent wishes to pursue its after-acquired 
information defense, it should be required to adduce 
objective evidence regarding the standards of conduct and 
levels of discipline which it had actually applied in the past. 
Should respondent be able to put forward such evidence, it 
will be up to the finder of fact to determine whether 
respondent has met its burden of demonstrating by a 
preponderance of the evidence that it would have dismissed 
petitioner on the basis of the after-acquired information.

57Proulx v. Citibank, 681 F. 2d 199, 203 (S.D.N.Y. 1988)(reduction 
or denial of back pay based on after-acquired information may not be 
"based on speculation").



50

CONCLUSION

To summarize, on remand the merits of petitioner’s 
discrimination claims should first be resolved. Only if 
discrimination is found will the after-acquired information 
defense need to be addressed. Should that issue then arise, 
the burden of proof will be on the respondent, as a proven 
discriminator, to prove that it would have discharged 
petitioner had it been aware of that information. If the 
employer can meet that burden, petitioner will not be 
entitled to reinstatement or front pay. If the employer can 
further establish that it would have discovered that 
information prior to the date of judgment, back pay for the 
unlawful discharge will cut off on the "but for" discovery 
date. The after-acquired information defense will not, 
however, affect petitioner’s right to compensatory damages 
for harassment, to back pay for discrimination in 
compensation, or to liquidated damages for a willful 
violation of the ADEA

For the foregoing reasons, the decision of the Sixth 
Circuit should be reversed, and the case remanded for a trial 
on the merits.

Respectfully submitted,

Mic h a el  E. Te r r y  
150 Second Avenue North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 

(Counsel of Record)

Attorney for Petitioner