O'Day v. McDonnell Douglas Helicopter Company Brief Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

NO. 92-15625

DENNIS V. O'DAY
Plaintiff-Appellant,

v.

MCDONNELL DOUGLAS HELICOPTER COMPANY,
Defendant-Appellee.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 
IN SUPPORT OF DEFENDANT-APPELLEE

Robert E. Williams 
Douglas S. McDowell 
Ann Elizabeth Reesman*

McGUINESS & WILLIAMS 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
EQUAL EMPLOYMENT ADVISORY 

COUNCIL
September 29, 1992 ♦Counsel of Record



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

NO. 92-15625

DENNIS V. O'DAY
Plaintiff-Appellant,

v .

MCDONNELL DOUGLAS HELICOPTER COMPANY, 
Defendant-Appellee.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 
IN SUPPORT OF DEFENDANT-APPELLEE

Robert E. Williams 
Douglas S. McDowell 
Ann Elizabeth Reesman*

McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
EQUAL EMPLOYMENT ADVISORY 

COUNCIL
September 29, 1992 *Counsel of Record



TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................ iii
INTEREST OF THE AMICUS CURIAE ............................  2
STATEMENT OF THE C A S E ....................................  4
SUMMARY OF ARGUMENT ....................................... 6
ARGUMENT ...................................................  8

I. This Court Should Adopt a Rule, Consistent with 
the Supreme Court's Mt. Healthy Decision and 
the Holdings of the Fourth, Sixth, Seventh and 
Tenth Circuits, That If A Discrimination 
Claimant Would Have Been Discharged for Reasons 
Other Than a Discriminatory Reason, There Can 
Be No Recovery...................................  8
A. Even a Successful Discrimination Claimant 

May Not Properly Be Placed in a Better 
Position Than If the Discrimination Had
Not O c c u r r e d ..............................  9

B. The Mt. Healthy Principle Is Applicable
Even Though the Outcome Depends Upon 
After-acguired Evidence ...................  11

C. After-Acquired Evidence That Would Have
Led To a Claimant's Discharge In Any Event 
Bars Any Recovery............................ 13

D. Because Unrebutted Evidence Shows that 
O'Day Committed Infractions that Would 
Have Caused His Termination Had MDHC Known 
of Them, He Is Not Entitled To Relief . . .  21

II. THE EEOC'S POSITION THAT 0'DAY MAY BE ENTITLED 
TO BACKPAY FOR THE PERIOD BEFORE HIS MISCONDUCT 
WAS DISCOVERED IS UNCONSCIONABLE AND CONTRARY 
TO LAW............................................ 23
A. The EEOC Concedes That After-acquired

Evidence Can Limit Make Whole Relief, But 
Only to the Time Period After The Employer
Discovers the Misconduct .................  23

B. The EEOC's Position Here Reverses Its
Earlier Position That No Back Pay At All 
Should Be D u e .............................. 2 5



III. THE COURT BELOW PROPERLY GRANTED SUMMARY JUDGMENT 29

CONCLUSION 30



29

3

4

18

17

29

17

18

4

17

13

3

17
3

22

20

17

iii
TABLE OF AUTHORITIES

FEDERAL CASES
Albemarle Paper Co. v. Moodv, 422 U.S. 405 (1975) .........
Astoria Fed. Sav. & Loan Ass'n v. Solimino.

Ill S. Ct. 2166 (1991) ..................................
Atonio v. Wards Cove Packing Co.. Inc..

810 F.2d 1477 (9th Cir. 1987) ............................
Benitez v. Portland General Electric.

58 Fair Emp. Prac. Cas. (BNA) 1130 (D. Ore. 1992) . . . .
Benson v. Ouanex Coro.. 58 Fair Emp. Prac. Cas. (BNA) 743

(E.D. Mich. 1992) .......................................
Bonaer v. American Water Works. 789 F. Supp. 1102

(D. Colo. 1 9 9 2 ) ...................................  15, 16,
Churchman v. Pinkerton's. Inc.. 756 F. Supp. 515

(D. Kan. 1991) ...........................................
DeVoe v. Medi-dvn. Inc.. 782 F. Supp. 546

(D. Kan. 1992) ...........................................
EEOC v. Boeing Co.. 843 F.2d 1213 (9th Cir.), cert, denied.

109 S.Ct. 222 (1988) ....................................
George v. Mvers. No. 91-2308-0, 1992 U.S. Dist. LEXIS 6419

(D. Kan. April 24, 1992) ................................
Gibson v. Mohawk Rubber Co..

695 F. 2d 1093 (8th Cir. 1 9 8 2 ) .......................  12,
Gilmer v. Interstate/Johnson Lane Coro..

Ill S. Ct. 1647 (1991) ..................................
Grzenia v. Interspec, Inc.. No. 91 C 20,

1992 U.S. Dist. LEXIS 15093 (N.D. 111. October 21, 1991)
Hoffman-La Roche. Inc, v. Sperling. 110 S. Ct. 482 (1989)
Hung Ping Wang v. Hoffman. 694 F.2d 1146 (9th Cir. 1982) . .
Johnson v. Honeywell Info. Svs1s , Inc.. 955 F.2d 409

(6th Cir. 1992) ....................................  16,
Kristufek v. Hussman Foodservices Co.. No. 87-C 5621,

1991 U.S. Dist. LEXIS 14287
(N.D. 111. October 4, 1991) ............................



iv -
League of United Latin American Citizens v.

City of Salinas Fire Dept.. 654 F.2d 557 (9th Cir. 1981) . 22
Leahev v. Federal Express Corp.. 685 F. Supp. 127

(E.D. Va. 1988) ......................................... 16
Livingston v. Sorq Printing Co..

49 Fair Emp. Prac. Cas. 1417 (S.D.N.Y. 1989) ........... 18
Mathis v. Boeing Military Airplane Company.

719 F. Supp. 991 (D. Kan. 1989) ........................ 18
McKennon v. Nashville Banner Publishing Co..

59 Fair Emp. Prac. Cas. (BNA) 60 (M.D. Tenn. 1992) . 15, 16, 29
Milligan-Jensen v. Michigan Technological University.

1992 U.S. App. LEXIS 22236 (6th Cir. September 17, 1992) 17
Mt. Healthy Sch. Dist. Bd. of Educ. v. Dovle. 429 U.S. 274

(1977).......................... 6, 8-14, 16, 18, 19, 21, 23
Nanty v. Barrows Co.. 660 F.2d 1327 (9th Cir. 1991) . . . .  22
O'Driscoll v. Hercules. Inc.. 745 F. Supp 656

(D. Utah 1990)   18
Ostroff v. Employment Exchange, Inc.. 683 F.2d 302

(9th Cir. 1982)   22
Pallas v. Pacific Bell. 940 F.2d 1324 (9th Cir. 1991) . . .  4
Price Waterhouse v. Hopkins. 109 S. Ct. 1778 (1989) . . . .  14
Public Employees Ret. Svs. of Ohio v. Betts.

109 S. Ct. 2854 (1989)   3
Punahele v. United Air Lines. Inc.. 756 F. Supp. 487

(D. Colo. 1991) ............................................
Reed v. Amax Coal Co.. 59 Fair Emp. Prac. Cas. (BNA) 788

(7th Cir. 1992)   17
Ruggles v. California Polytechnic State University.

797 F . 2d 782 (9th Cir. 1 9 8 6 ) ..........................  6, 10
Smallwood v. United Air Lines. Inc.. 661 F.2d 303

(4th Cir. 1981) ............................................
Smallwood v. United Air Lines. Inc.. 728 F.2d 614 (4th Cir.)

cert, denied, 469 U.S. 832 (1984) 3, 6 , 8, 11, 13, 14, 16, 29



Summers v. State Farm Mut. Auto. Ins. Co.. 864 F.2d 700
- v -

Sweeney v. U-Haul Co. of Chicago.
55 Fair Emp. Prac. Cas. (BNA) 1257 (N.D. Ill 1991) . . .  17

Trans World Airlines. Inc, v. Thurston.
469 U.S. Ill (1985) ....................................... 3

Washington v. Lake County, 111.. 969 F.2d 250,
1992 U.S. App. LEXIS 15593 (7th Cir. 1992) . . .  17, 20, 22

Wallace v. Dunn Construction Co.. 968 F.2d 1174
(11th Cir. 1992) ....................................  18, 21

DOCKETED CASES
Hazen Paper Co., et al. v. Biggins. No. 91-1600 (U S.) . . .  3
Manard v. Fort Howard Corporation. No. 92-7100

(10th Cir.) .............................................  4
Buckingham v. Frank. No. 91-56236 (9th Cir.) ...............  4

STATUTES
Age Discrimination in Employment Act of 1967,

29 U.S.C. § 621 et seg. .......................... 2, 4, 9
Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seg. ..............................  9
42 U.S.C. § 2000e-2(a) ............................ 9
42 U.S.C. § 2000e-5(g) (2) (B) ) ................... 27

Americans with Disabilities Act,
29 U.S.C. § 12101 et seg. ..............................  9

Civil Rights Act of 1991
Pub. L. No. 102-166, 105 Stat 1 0 7 1 ..................... 27

MISCELLANEOUS
Policy Guidance on Recent Developments in Disparate

Treatment Theory. N-915.063, EEOC Compl. Man (BNA) N:2119 . 26
Revised Enforcement Guidance on Recent 

Developments in Disparate Treatment
Theory. N-914.002, EEOC Compl. Man. (BNA) N:2135 ......... 27



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

NO. 92-15625

DENNIS V. O'DAY
Plaintiff-Appellant,

v.

MCDONNELL DOUGLAS HELICOPTER COMPANY, 
Defendant-Appellee.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 
IN SUPPORT OF DEFENDANT-APPELLEE

The Equal Employment Advisory Council respectfully 
submits this brief amicus curiae. The written consents of 
both parties have been provided herewith to the Clerk of this 
Court. The brief urges this Court to affirm the decision 
below, and thus supports the position of Defendant-Appellee 
McDonnell Douglas Helicopter Company before this Court.



2
INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council ("EEAC" or 
"Council") is a voluntary association of employers organized 
in 1976 to promote sound approaches to the elimination of 
employment discrimination. Its membership includes over 250 
major U.S. corporations, as well as several associations which 
themselves have hundreds of corporate members. EEAC's 
directors and officers include many of industry's leading 
experts in the field of equal employment opportunity. Their 
combined experience gives the Council a unique depth of 
understanding of the practical, as well as legal, 
considerations relevant to the proper interpretation and 
application of equal employment policies and requirements. 
EEAC's members are firmly committed to the principles of 
nondiscrimination and equal employment opportunity.

All of EEAC's members, and the constituents of its 
association members, are subject to the Age Discrimination in 
Employment Act, 29 U.S.C. § 621 et sea. (ADEA) as well as 
other equal employment statutes and regulations. As 
employers, and as potential respondents to ADEA charges and 
other employment-related claims, EEAC's members are interested 
in whether employees who engage in active misconduct can 
recover on such claims.

Thus, the issue presented in this appeal is extremely 
important to the nationwide constituency that EEAC represents. 
O'Day claims that McDonnell Douglas Helicopter Company (MDHC)



3
failed to promote him and then selected him for layoff because 
of his age in violation of the ADEA. The court below granted 
summary judgment in favor of MDHC because discovery revealed 
that O'Day had sneaked into his supervisor's office on two 
separate occasions, removed sensitive personnel information 
from the desk, and then copied and disseminated that 
information. Unrebutted evidence showed that O'Day would have 
been fired for his misconduct had MDHC known of it before his 
termination. Under Summers v. State Farm Mut. Auto. Ins. Co.. 
864 F.2d 700 (10th Cir. 1988) and Smallwood v. nited Air 
Lines. Inc.. 728 F.2d 614 (4th Cir.), cert, denied. 469 U.S. 
832 (1984), the court below ruled correctly that the after- 
acquired evidence against 0'Day precluded any recovery on his 
discrimination claims.

Because of its interest in the application of the 
nation's civil rights laws, EEAC has, since its founding in 
1976, filed over 300 briefs as amicus curiae in cases before 
the United States Supreme Court, the United States Circuit 
Courts of Appeals and various state supreme courts. As part 
of this amicus activity, EEAC has participated in numerous 
cases involving the proper interpretation of the ADEA A /  and

A/ E.q. . Hazen Paper Co., et al. v. Biggins. No. 91-1600 
(U.S.) (decision pending) (standard of proof for recovery of 
liquidated damages); Gilmer v. Interstate/Johnson Lane Coro.. 
Ill S. Ct. 1647 (1991) (arbitrability); Astoria Fed. Sav. & 
Loan Ass'n v. Solimino. Ill S. Ct. 2166 (1991) (effect of 
state agency "no cause" finding); Public Employees Ret. Svs. 
of Ohio v. Betts. 109 S. Ct. 2854 (1989) (application to 
employee benefits); Hoffman-La Roche. Inc, v. Sperling. 110 S. 
Ct. 482 (1989) (class actions); Trans World Airlines. Inc, v.



4
recently briefed another case involving the after-acquired 
evidence doctrine. in addition, EEAC has briefed a number
of employment issues in this Court.-2/

Thus, EEAC has an interest in, and a familiarity with, 
the issues and policy concerns presented to the Court in this 
case. Indeed, because of its significant experience in these 
matters, EEAC is uniquely situated to brief this Court on the 
importance of the issues beyond the immediate concerns of the 
parties to the case.

STATEMENT OF THE CASE
Dennis O'Day was employed by McDonnell Douglas Helicopter 

Company (MDHC) from December 1983 until he was laid off on 
July 20, 1990. 0 1 Day v. McDonnell Douglas Helicopter Co.. 784
F. Supp. 1466, 1467 (D. Ariz. 1992). O'Day, then age 46, 
filed a charge against MDHC with the Equal Employment 
Opportunity Commission (EEOC) under the Age Discrimination in 
Employment Act, 29 U.S.C. § 621 et seq. (ADEA), on July 10,

Thurston. 469 U.S. Ill (1985) (standard for liquidated 
damages); EEOC v. Boeing Co.. 843 F.2d 1213 (9th Cir.), cert, 
denied. 109 S. Ct. 222 (1988) (effect of Federal Aviation 
Administration rule requiring retirement of pilots at age 60).
2V Manard v. Fort Howard Corporation. No. 92-7100 (10th Cir.) 
(decision pending).
■2/ E.g. . Buckingham v. Frank. No. 91-56236 (9th Cir.) 
(decision pending) (reasonable accommodation under the 
Rehabilitation Act of 1973); Pallas v. Pacific Bell. 940 F.2d 
1324 (9th Cir. 1991) (pregnancy discrimination); Atonio v. 
Wards Cove Packing Co.. Inc.. 810 F.2d 1477 (9th Cir. 1987) 
(use of adverse impact approach to challenge subjective 
employment practices).



5
1990, claiming that MDHC had failed to promote him due to his 
age and in retaliation for complaints he had made. Id. In 
October 1990 he filed another charge, now claiming that his 
selection for layoff was for the same reasons. Id. 0'Day 
subsequently filed this lawsuit alleging causes of action 
under the ADEA and state law theories. Id.

During discovery in the case, MDHC learned that on June 
8, 1990, before filing his first EEOC charge, O'Day sneaked 
into his supervisor's office and took his confidential 
personnel file out of the desk. Id. at 1467-68 Through that 
misconduct, he found sensitive staffing documents, called 
"totems," ranking individual engineers, one done in February 
as MDHC prepared for its first layoff, and another done in 
June. Id. His low June ranking resulted in his July layoff. 
Id.

0 1 Day copied the documents on the company photocopier, 
later showing them to another low-ranked engineer. Id. A 
week later, O'Day covertly returned to his supervisor's 
office, this time removing his entire personnel file and 
copying it. Id.

O'Day's removal, copying and dissemination of sensitive 
company documents directly violated MDHC's company rules, and 
had MDHC known about it, he would have been terminated 
immediately. Id. at 1468. Upon learning of O'Day's 
malfeasance, MDHC immediately changed his "layoff" status to
"terminated." Id.



6
The "after-acquired evidence doctrine" articulated, inter 

alia. by the Tenth Circuit in Summers v. State Farm Mut. Auto. 
Ins. Co.. 864 F.2d 700 (10th Cir. 1988), bars recovery by a 
discrimination claimant who engages in conduct that would have 
resulted in dismissal. The court below granted MDHC's motion 
for summary judgment based on the after-acquired evidence 
doctrine. This appeal followed.

SUMMARY OF ARGUMENT
Where an employer presents unrebutted evid nee that a 

plaintiff claiming discriminatory discharge would have been 
terminated for on-the-job misconduct, there can be no recovery 
on the discrimination claim, even though the evidence of 
misconduct was acquired after the termination in question. A 
discrimination claimant is entitled —  at most —  to be placed 
in no worse position than if the discrimination had not 
occurred. Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle. 429 
U.S. 274, 285-86 (1977); Ruqqles v. California Polytechnic 
State Univ.. 797 F.2d 782, 786 (9th Cir. 1986). Thus, where 
the claimant would have been discharged regardless of whether 
or not the alleged discrimination occurred, the claimant is 
not entitled to a remedy.

The Mt. Healthy analysis applies even though the 
information that would have led to termination was acquired by 
the employer after the termination took place. Smallwood v. 
United Air Lines. Inc.. 728 F.2d 614 (4th Cir.) cert, denied.



7
469 U.S. 832 (1984). Accordingly, if an employer can show 
that an employee would have been discharged had it known of 
his on-the-job misconduct, discovered after the fact, the 
employee cannot recover on his discrimination claim, and 
summary judgment is appropriate. Summers v. State Farm Mut. 
Auto. Ins. Co.. 864 F.2d 700 (10th Cir. 1988). Any other 
result, such as awarding backpay for a period of time before 
the wrongdoing was discovered, would only reward the plaintiff 
for successfully concealing his misconduct from his employer.

The arguments of Plaintiff-Appellant's ami s curiae, the 
Equal Employment Opportunity Commission ("EEOC"), that some 
make whole relief may be available are unconscionable and 
contrary to law, and thus should not be adopted by this Court. 
The EEOC concedes several times that make whole relief can be 
limited —  and in some cases eliminated —  by after-acquired 
evidence of wrongdoing that would have led to termination. 
Indeed, until a few weeks ago, the EEOC's guidance to its own 
staff was that no relief was available in such cases.
Moreover, the EEOC's argument that backpay should be due until 
the employers discovers the misconduct merely encourages the 
individual to compound the misconduct by lying or otherwise 
covering it up. Further, the Commission's argument that 
remedies other than backpay may be forthcoming relies solely 
on a case involving only backpay, and thus is unsupported.

Since MDHC presented unrebutted evidence that O'Day would 
have been discharged had it known that he took and



8
disseminated sensitive personnel information, O'Day is not 
entitled to any remedy or fees. Accordingly, the decision of 
the court below granting summary judgment should be affirmed.

ARGUMENT
I. This Court Should Adopt a Rule, Consistent with the 

Supreme Court's Mt. Healthy Decision and the 
Holdings of the Fourth, Sixth, Seventh and Tenth 
Circuits, That If A Discrimination Claimant Would 
Have Been Discharged for Reasons Other Than a 
Discriminatory Reason, There Can Be No Recovery.

As shown below, the district court correct1v ruled that 
the unrebutted evidence that MDHC would have terminated O'Day 
had they known of his misconduct compelled judgment in favor 
of MDHC on O'Day's discrimination claim. Applying the Tenth 
Circuit's decision in Summers v. State Farm Mut. Auto. Ins.
Co.. 864 F.2d 700 (10th Cir. 1988), and the Fourth Circuit's 
decision in Smallwood v. United Air Lines. Inc.. 728 F.2d 614 
(4th Cir.), cert, denied. 469 U.S. 832 (1984), which in turn 
apply the reasoning of the Supreme Court's decision in Mt. 
Healthy Sch. Dist. Bd. of Educ. v. Doyle. 429 U.S. 273 (1977), 
the court below reached the correct result —  that because he 
would have been fired had MDHC known of his theft and 
dissemination of sensitive company documents, 0'Day takes 
nothing on his age discrimination claim. This Court should 
adopt the analysis of its sister circuits and affirm the
decision below.



9
A. Even a Successful Discrimination Claimant May 

Not Properly Be Placed in a Better Position 
Than If the Discrimination Had Not Occurred

No matter what the employment action in question, the 
ultimate aim of an employment discrimination remedy under 
either Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et sea.. which prohibits discrimination in employment 
on the basis of race, sex, color, religion or national origin, 4/ 
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 621 et sea.. or the Americans with Disabilities Act, 29 
U.S.C. § 12101 et sea.. is to place the plainti ' in the 
position he or she would have been in had the employer not 
engaged in any discriminatory conduct. On the other hand, 
where the employer can show that it would have taken the same 
action in any event, no remedies are available.

The Supreme Court's Mt. Healthy decision established the 
framework for this result. In Mt. Healthy, a teacher's 
contract was not renewed because he told a local radio station 
about a new teacher dress code and because of an incident in 
which he made obscene gestures. 429 U.S. at 282-83. The 
lower court concluded that the telephone call was protected by 
the First and Fourteenth Amendments and ordered reinstatement 
and backpay. The Supreme Court reversed, holding that even if 
the protected conduct played a "substantial part" in the 
board's decision, the teacher still may not be entitled to a 
remedy. Id. at 285. As the Court explained:

4/ 42 U.S.C. § 2000e-2(a).



10
A rule of causation which focuses solely on whether 
protected conduct played a part, "substantial" or 
otherwise, in a decision not to rehire, could place 
an employee in a better position as a result of the 
exercise of constitutionally protected conduct than 
he would have occupied had he done nothing. . . .
The constitutional principle at stake is 
sufficiently vindicated if such an employee is 
placed in no worse a position than if he had not 
engaged in the conduct. A borderline or marginal 
candidate should not have the employment guestion 
resolved against him because of constitutionally 
protected conduct. But, that same candidate ought 
not to be able, by engaging in such conduct, to 
prevent his employer from assessing his performance 
record and reaching a decision not to rehire on the 
basis of that record, simply because the protected 
conduct makes the employer more certain of the 
correctness of its decision.

Id. at 285-86. In so holding, the Court established the 
general principle, applicable in several contexts, that if the 
outcome would have been the same regardless of presence or 
absence of discriminatory conduct, the plaintiff needs no 
remedial action to place him in the position he would have 
been in had no discriminatory conduct occurred.

As this Court has noted, the Mt. Healthy principle is 
equally applicable to employment discrimination cases.
Ruggles v. California Polytechnic State Univ.. 797 F.2d 782, 
786 (9th Cir. 1986). "Engaging in protected activities or 
protected conduct should not put the plaintiff in a better 
position than she would be in otherwise." Id. (citing Mt. 
Healthy. 429 U.S. at 285-86). Accordingly, even if a 
plaintiff has succeeded in raising a presumption that an 
adverse employment action was taken for discriminatory reason, 
"[t]he defendant may rebut this presumption by showing by a



11
preponderance of the evidence that the adverse action would 
have been taken even in the absence of discriminatory or 
retaliatory intent." Id. (citing Mt. Healthy. 429 U.S. at 
287) .

B. The Mt. Healthy Principle Is Applicable Even
Though the Outcome Depends Upon After-acquired 
Evidence

In Smallwood v. United Air Lines. Inc.. 728 F.2d 614 (4th 
Cir.), cert, denied. 469 U.S. 832 (1984), the Fourth Circuit 
clarified that the Mt. Healthy analysis applies hether or not 
the information which would have led to the same result was 
actually in the employer's possession at the time of the 
adverse employment action. Smallwood involved a pilot who was 
rejected for employment because he was 48 years of age when 
the company only processed applications of those 35 and under. 
Although the Fourth Circuit rejected United's defense that age 
was a bona fide occupational qualification, ■§/ it concluded 
that United would not have hired Smallwood even absent age 
discrimination, and thus dismissed Smallwood's claim for 
processing of his application and for backpay. Id. at 627.

The evidence which would have led United not to hire 
Smallwood was not in United's possession at the time it 
rejected his application. United learned later that Smallwood 
had been terminated by his previous employer for serious

^  Smallwood v. United Air Lines. Inc.. 661 F.2d 303 (4th 
Cir. 1981).



12
misconduct. Id. at 621-22. The district court, however,
had given this after-acquired evidence short shrift, 
expressing doubt that it was admissible at all and finding a 
"duty . . .  to view it with skepticism." Id. at 623.

Criticizing the district court's dismissal of the after- 
acquired evidence as "a reason that is completely contrary to 
the bellwether case in this area of Mt. Healthy." id, the 
Fourth Circuit concluded that "[i]n short, the Supreme Court 
instructed district courts in cases where the issue is such as 
here that they 1 should1 proceed to make the 'a ^r-the-fact 
rationale' which the district court in this case deprecates." 
Id. (emphasis in original). Accordingly, the Fourth Circuit 
ruled:

the disqualification for employment and thus for 
backpay, based on a "recreating [of] the 
circumstances that would have existed but for the 
illegal discrimination" may be established by 
evidence which had not been developed at the time 
the claimant was denied employment . . . .

Id. at 624 (quoting Gibson v. Mohawk Rubber Co.. 695 F.2d
1093, 1097 (8th Cir. 1982). Based on United's unrebutted
evidence that it would not have hired Smallwood if it had
known the truth, the Fourth Circuit dismissed the case. Id.
at 627.

Accordingly, using after-acquired evidence to reconstruct

The report of the Referee in Smallwood's discharge 
proceeding indicated that he had (1) provided false 
information to collect moving expenses to which he was not 
actually entitled and (2) impermissibly charged airfare for 
his children to his company credit card. 728 F.2d at 620-22.



13
the situation is consistent with Mt. Healthy's mandate that 
the plaintiff be placed in no better condition than if the 
alleged unlawful action had not occurred. "[T]here is nothing 
unusual in a court resolving what a party to litigation would 
or should have done under certain circumstances. It is done 
repeatedly in tort cases." Smallwood. 728 F.2d at 623. As 
the Fourth Circuit pointed out, it is also "'[c]onsistent with 
the ADEA's purpose of recreating the circumstances that would 
have existed . . Id. (quoting Gibson v. Mohawk Rubber
Co.. 695 F .2d 1093, 1097 (8th Cir. 1982).

C. After-Acquired Evidence That Would Have Led To 
a Claimant's Discharge In Any Event Bars Any 
Recovery

The Fourth Circuit's Smallwood decision also establishes 
that if the employer's evidence confirms that the outcome 
would have been the same, it trumps any liability finding and 
no remedy is available. The Smallwood plaintiff had argued 
that a finding of liability under the ADEA made a backpay 
award inevitable, and precluded use of an after-acquired 
evidence defense. 728 F.2d at 619-20. The Fourth Circuit 
found this argument to be "manifestly contradictory of what 
the Supreme Court said in Mt. Healthy." Id. at 620 (citation 
omitted).

In Mt Healthy, as we have seen, the Supreme Court 
directed that in discrimination cases, whether under 
Title VII or under ADEA, the trial court should 
first determine whether there was a violation and 
that, if it found a violation, then it should 
consider and resolve "the defense of 'wouldn't have



14
hired anyway.'"

Id. At that point, the Fourth Circuit continued, a district 
court should:

do what the court in Nantv v. Barrows Co.. 660 F.2d 
1327, 1334 (9th Cir. 1981) said it should do in such 
a situation and that is: "afford [the defendant]
the opportunity to prove by 'clear and convincing' 
evidence that [the plaintiff] . . .  in the absence 
of discrimination, . . . would not have been hired."

Id. If the defendant satisfied its burden of proof, "it would
have rebutted the plaintiff's claim for backpay." Id.
(emphasis added). 2/

Application of the principles supplied by -. Healthy and 
Smallwood is exceptionally appropriate where a claimant 
alleges discriminatory termination and the after-acquired 
evidence reveals job-related wrongdoing that would have led to 
discharge. In a case factually similar to this, the Tenth 
Circuit applied Mt. Healthy and Smallwood to conclude that 
after-acquired evidence of on-the job misconduct thrt would 
have led to the plaintiff's termination bars any relief.

2/ O'Day argues that the Ninth Circuit has in the past used a 
"clear and convincing" evidence standard in such cases. It 
should be noted that in its 1977 Mt. Healthy decision, the 
Supreme Court specifically addressed this issue and required 
only that the employer's proof be by a "preponderance of the 
evidence." Mt. Healthy. 429 U.S. at 287. See also Price 
Waterhouse v. Hopkins. 109 S. Ct. 1778, 1792 (1989) ("The 
courts below held that an employer who has allowed a 
discriminatory impulse to play a motivating part in an 
employment decision must prove by clear and convincing 
evidence that it would have made the same decision in the 
absence of discrimination. We are persuaded that the better 
rule is that the employer must make this showing by a 
preponderance of the evidence."); Smallwood. 728 F.2d at 616 
n. 5.



15
Summers v. State Farm Mut. Auto. Ins. Co.. 864 F.2d 700 (10th 
Cir. 1988).

Summers, who was terminated from his position as a State 
Farm field claims representative for falsifying records and 
poor performance, charged that he was fired because of his age 
and religion. Id. at 702. Summers had been warned repeatedly 
that falsification of documents would result in discharge.
Id. During trial preparation in the case, State Farm learned 
that Summers had falsified records in over 150 more instances. 
Id. at 703. Accordingly, the Tenth Circuit rule that "while 
such after-acquired evidence cannot be said to have been a 
'cause' for Summers' discharge in 1982, it is relevant to 
Summers' claim of 'injury,' and does itself preclude the grant 
of any present relief or remedy to Summers." Id. at 708.

Several district courts, like the court below, have 
applied Summers to deny relief in precisely the same 
circumstances presented here. In McKennon v. Nashville Banner 
Publishing Co.. 59 Fair Emp. Prac. Cas. (BNA) 60 (M.D. Tenn. 
1992), for example, the court granted summary judgment in an 
age discrimination case because the plaintiff, had copied and 
removed confidential personnel documents. Likewise, in Bonger 
v. American Water Works. 789 F. Supp. 1102 (D. Colo. 1992), 
the court granted summary judgment where the plaintiff claimed 
to have been terminated because of her sex and national origin 
because she took either copies or originals of nearly three 
thousand pages of confidential personnel files and gave them



16
to her attorney. & / Accord Leahev v. Federal Express Coro.. 
685 F. Supp. 127 (E. D. Va. 1988) (denying motion in limine to 
exclude allegations of sexual harassment and racial slurs by 
plaintiff in wrongful discharge suit because Virginia law 
permits use of after-acquired evidence to establish just cause 
for termination, and because Mt. Healthy and Smallwood permit 
defendants to offer such evidence).

Indeed, the Sixth and Seventh Circuits also reached the 
same result by applying Summers to deny recovery in 
termination cases where after-acquired evidenc evealed 
falsifications on an employment application. In Johnson v. 
Honeywell Info. Svs's, Inc.. 955 F.2d 409 (6th Cir. 1992), the 
Sixth Circuit denied relief under Michigan's Elliott-Larsen 
Civil Rights Act in part because the employer subsequently 
discovered that a terminated employee had made several 
misrepresentations about her credentials in her employment

Notably, neither court found the plaintiff's covert 
misappropriation of confidential documents to be "protected 
activity" under the relevant anti-discrimination statute. In 
McKennon, the plaintiff claimed that "she copied and removed 
the documents for her 'insurance' and 'protection' 'in an 
attempt to learn information regarding my job security 
concerns.'" 59 Fair Emp. Prac. Cas. (BNA) at 61. The court 
concluded that Mrs. McKennon had not made a claim under the 
ADEA's "opposition clause," 29 U.S.C. § 623(d), which protects 
those who oppose practices prohibited by the ADEA. In Bonger, 
the plaintiff claimed that she gave the documents to her 
lawyer "to assist in evaluating her claims . . . ." 58 Fair.
Emp. Prac. Cas. (BNA) at 1432. Here, plaintiff cites no case 
supporting his argument that his theft, copying and removal of 
confidential personnel documents should be considered 
"protected," and it is difficult to believe that he could.



17
application. The Sixth Circuit concluded:

We agree with the reasoning of the court in Summers 
and hold that on these facts, even if we assume that 
Honeywell discharged Johnson in retaliation for her 
opposition to violations of the Act, she is not 
entitled to relief. Because Honeywell established 
that it would not have hired Johnson and that it 
would have fired her had it become aware of her 
resume fraud during her employment, Johnson is 
entitled to no relief, even if she could prove a 
violation of Elliott-Larsen.

Id. at 415. The Seventh Circuit applied Summers in Washington 
v. Lake County. 111.. 969 F.2d 250 (7th Cir. 1992). Based on 
unrebutted evidence that the employer would have terminated 
the plaintiff had it known that he lied on his employment 
application, the Seventh Circuit affirmed summary judgment in 
favor of the employer. -3̂3/ Framing the appropriate issue as

2- / Accord Milliqan-Jensen v. Michigan Technological 
University. 1992 U.S. App. LEXIS 22236 (6th Cir. September 17, 
1992) .
-3̂3/ Cf. Reed v. Amax Coal Co. . 59 Fair Emp. Prac. Cas. (BNA) 
788 (7th Cir. 1992) (under Summers. employer would have been 
entitled to summary judgment had it proven that it would have, 
not merely could have, fired employee for lying on employment 
application; upholding grant of summary judgment on other 
grounds). Numerous district courts also have denied relief in 
termination cases based on Summers where the plaintiff 
provided false information in the application process. George 
v. Mvers. No. 91-2308-0, 1992 U.S. Dist. LEXIS 6419 (D. Kan. 
April 24, 1992) (granting summary judgment and noting that 
intentional falsification not necessary); Benson v. Ouanex 
Corp.. 58 Fair Emp. Prac. Cas. (BNA) 743 (E.D. Mich. 1992) 
(granting summary judgment in race discrimination and 
harassment case); Grzenia v. Interspec, Inc.. No 91 C 20,
1992 U.S. Dist. LEXIS 15093 (N. D. 111. October 21, 1991) 
(granting summary judgment in ADEA case); Kristufek v. Hussman 
Foodservices Co.. No. 87-C 5621, 1991 U.S. Dist. LEXIS 14287 
(N.D. 111. October 4, 1991) (granting judgment notwithstanding 
the verdict in ADEA case); Churchman v. Pinkerton's. Inc.. 756 
F. Supp. 515 (D. Kan. 1991) (granting summary judgment where 
plaintiff claimed constructive discharge as a result of sexual 
harassment); Sweeney v. U-Haul Co. of Chicago. 55 Fair Emp.



18
whether the plaintiff would have been fired, not whether he 
would have been hired, had the employer known of the 
falsifications, the court applied Summers to conclude that no 
relief was available. -3̂=/

Prac. Cas. (BNA) 1257 (N.D. 111. 1991) (granting summary 
judgment in race discrimination case); 0 1Driscoll v, Hercules. 
Inc.. 745 F. Supp. 656 (D. Utah 1990) (granting summary 
judgment in ADEA case); Mathis v. Boeing Military Airplane 
Company. 719 F. Supp. 991 (D. Kan. 1989) (granting summary 
judgment in race and sex discrimination case); Livingston v. 
Sora Printing Co.. 49 Fair Emp. Prac. Cas. 1417 (S.D.N.Y.
1989) (granting summary judgment against race discrimination 
claimant). See also Punahele v. United Air Lines. Inc.. 756 F. 
Supp. 487 (D. Colo. 1991) (failure to hire). Cf. DeVoe v. 
Medi-dvn, Inc,. 782 F. Supp. 546 (D. Kan. 1992) (recognizing 
Summers but denying summary judgment because of genuine 
question whether employer would not have hired plaintiff had 
it known of his personal problems; granting summary judgment 
on other grounds). But cf. Benitez v. Portland General 
Electric, 58 Fair Emp. Prac. Cas. (BNA) 1130 (D. Ore. 1992) 
(refusing to follow Summers at summary judgment stage due to 
lack of Ninth Circuit precedent).
i3=/ An Eleventh Circuit panel recently took a different 
approach to application of the Mt. Healthy doctrine in a 
termination case where the after-acquired evidence was of 
falsified information on the employment application. Wallace 
v. Dunn Construction Co.. 968 F.2d 1174 (11th Cir. 1992). The 
court agreed with Summers that "after-acquired evidence is 
relevant to the relief due a successful Title VII plaintiff .
• • "/ id. at 1181, and denied all claims for prospective 
relief such as reinstatement, front pay or an injunction. Id. 
at 1184. Nevertheless, two judges of the Eleventh Circuit 
panel disagreed with the Tenth Circuit's position on 
retroactive relief, concluding instead that the plaintiff 
should receive backpay because the employer would never have 
discovered the plaintiff's application fraud had it not 
surfaced in the litigation. Id.

As discussed above, this approach rewards a plaintiff who 
successfully conceals fraud or misconduct, and indeed 
encourages attempts to keep such conduct secret. As the 
dissenting judge pointed out, it enables the plaintiff to 
"take advantage of her own misdeeds and convert her spurious 
statements into a shield against the employer." Id. at [*49]. 
For this reason, we believe that the Sixth and Seventh 
Circuits' approach is the better one. Moreover, Wallace is



19
The Mt. Healthy doctrine, as applied by the Fourth,

Tenth, Sixth and Seventh Circuits, serves the remedial 
purposes of federal antidiscrimination legislation by placing 
claimants in the position they would have been in had the 
discriminatory conduct not occurred, but not rewarding them 
for actively engaging in wrongdoing. It is important to note 
that these cases do not involve mere assertions that the 
employer had some nondiscriminatory reason for taking an 
employment action. In these after-acquired evidence cases, 
the claimant has committed actual misconduct —  theft of 
confidential company documents, falsification of records, or 
providing false answers to legitimate job application 
questions. To grant such an individual compensation such as 
backpay rewards him solely because he managed to conceal his 
misconduct from his employer for as long as he did.

O'Day*s amicus curiae, the Equal Employment Opportunity 
Commission ("EEOC" or "Commission"), argues that "Summers . .
. adopts a far too permissive standard for the use of after- 
acquired evidence," Brief of the Equal Employment Opportunity 
Commission as Amicus Curiae in Support of the Plaintiff- 
Appellant (hereinafter "EEOC Brief") at 27. This argument 
lacks merit because it would apply in any circumstance, no 
matter how egregious the employee's conduct. Moreover, the 
EEOC's argument ignores the standard set by the courts for the

distinguishable from the instant case because it involves 
application fraud, an issue that is not before the Court here.



20
use of such evidence.

The EEOC also argues: "Many employers have work rules. 
Many employers do not, in practice, vigorously enforce those 
rules. As a result, employees routinely violate work rules 
without being discharged or sanctioned." Id. The EEOC's 
implication that Summers permits employers to exploit little- 
used work rules to block discrimination charges ignores the 
requirement that employers must demonstrate that the offending 
employee would indeed have been terminated had the after- 
acquired evidence been known. For example, the court below 
unequivocally required MDHC, "in order to rely on the after 
acquired evidence doctrine, [to] prove that, had it known of 
the employer's misconduct, the employee would have been 
discharged immediately." 0'Day. 784 F. Supp. at 1468. See 
also Summers. 864 F.2d at 709 (noting that Summers was warned 
repeatedly that continued falsifications would result in 
discharge and that Summers did not deny the additional 
falsifications); Johnson. 955 F.2d at 415 ("Honeywell 
established that it would not have hired Johnson and that it 
would have fired her had it become aware of her resume fraud 
during her employment. . . ."); Washington. 1992 U.S. App. 
LEXIS 15593 [*17] (noting that supervisor's affidavits that 
the plaintiff would have been discharged immediately had they 
known of the plaintiff's criminal convictions omitted from his 
employment application were "essentially uncontradicted").

Indeed, the arguments made against Summers on this point



21
are purely speculative and hypothetical. As the dissent 
pointed out in Wallace v. Dunn Construction Co.. 968 F.2d 1174 
(11th Cir. 1992) :

Nor can we properly decide this case by 
hypothetical predictions of hard-hearted employers 
rummaging through employment records to find trivial 
reasons for discharging persons with late-discovered 
flaws in their background, or employers sandbagging 
applicants by burying or destroying knowledge of 
fabrications to give themselves free rein to harass 
and fire employees for discriminatory reasons and 
use the information later if needed. The reported 
cases we have discussed, and the instant case, do 
not concern trivial falsities or conspiratorial 
concealment. The requirements that the 
misrepresentation be material and job-related and 
that the employer would not have hired had it known 
the truth serve to curb employer abuse.

Id. at 1189 (Godbold, J., dissenting).
The Supreme Court's decision in Mt. Healthy mandates that

a claimant be placed in no worse —  and no better —  position
than if the allegedly discriminatory conduct had not occurred.
429 U.S. at 285-86. Accordingly, this Court should adopt a
rule, consistent with the Fourth, Tenth, Sixth and Seventh
Circuits, that after-acquired evidence that would have
resulted in termination bars recovery in a discrimination
claim.

D. Because Unrebutted Evidence Shows that O'Day 
Committed Infractions that Would Have Caused 
His Termination Had MDHC Known of Them, He Is 
Not Entitled To Relief

In the instant case, O'Day freely admits to having 
entered his supervisor's office on two separate occasions, 
removed confidential personnel documents from his supervisor's 
desk, copied them, and showed them to at least one other



22
person. 0 * Day. 784 F. Supp. at 1467-68. This conduct 
violates MDHC company rules. Id. at 1468. The evidence is 
unrebutted that MDHC would have terminated O'Day immediately 
for such conduct. Id. See Washington v. Lake Countv. 111.. 
No. 91-1819, 1992 U.S. App. LEXIS 15593 [*17], (7th Cir. July 
10, 1992) (noting burden on plaintiff to produce rebuttal 
evidence). 12/ For this reason, 0'Day is not entitled to a 
remedy on his age discrimination claim.

The Ninth Circuit cases from the early 1980's cited by 
Plaintiff do not compel a different result, and indeed support 
MDHC's position. Each of these cases 12/ involved a dispute 
over whether or not the claimant was qualified for the 
position sought, not active on-the-job misconduct. Each also 
stands for the proposition that if the claimant indeed was not 
qualified, he or she would not be entitled to a remedy even if 
discrimination occurred. See, e.g.. Nantv v. Barrows Co.. 660 
F.2d 1327, 1333 (9th Cir. 1981) ("Where a job applicant has 
proved unlawful discrimination in the employment process, he 
must be awarded full relief, i.e., the position retroactively,

12/ Plaintiff's protestations that he would not have 
purloined the documents absent age discrimination are beside 
the point. This "the devil made me do it" explanation is 
hardly an excuse.
12/ Plaintiff cites Nantv v. Barrows Co.. 660 F.2d 1327 (9th 
Cir. 1981); Hung Ping Wang v. Hoffman. 694 F.2d 1146 (9th Cir. 
1982); and League of United Latin American Citizens ( LULAC) v. 
City of Salinas Fire Dept.. 654 F.2d 557 (9th Cir. 1981). In 
addition, Plaintiff's amicus curiae, the Equal Employment 
Opportunity Commission, cites Ostroff v. Employment Exchange, 
Inc.. 683 F.2d 302 (9th Cir. 1982) for the same point.



23
unless 'the defendant shows by clear and convincing evidence' 
that even in the absence of discrimination the rejected 
applicant would not have been selected for the open position." 
(citations omitted) (emphasis added). -14/

Accordingly, this Court should apply the Mt. Healthy 
doctrine as have the Fourth, Tenth, Sixth and Seventh 
Circuits, and affirm the grant of summary judgment.

II. THE EEOC'S POSITION THAT O'DAY MAY BE ENTITLED TO 
BACKPAY FOR THE PERIOD BEFORE HIS MISCONDUCT WAS 
DISCOVERED IS UNCONSCIONABLE AND CONTRARY TO LAW.

Notwithstanding the overwhelming case law to the 
contrary, O'Day and the EEOC argue that he is entitled to some 
make whole relief even in the face of uncontroverted evidence 
that he would have been terminated for his gross misconduct. 
This argument not only lacks legal merit, but also contradicts 
previous EEOC policy guidance and would lead to plainly 
unconscionable results.

A. The EEOC Concedes That After-acquired Evidence 
Can Limit Make Whole Relief, But Only to the 
Time Period After The Employer Discovers the 
Misconduct

The EEOC brief concedes at least twice that the two most 
important make whole remedies, reinstatement and backpay, can 
be limited —  and perhaps defeated entirely —  based on after- 
acquired evidence even where discrimination has occurred.

■14/ As discussed above, supra n. 6, the applicable standard 
of proof should be the "preponderance of the evidence," not 
"clear and convincing evidence."



24
First, the Commission concedes this point as a general
principle, stating, "Notwithstanding [principles generally
favoring backpay awards], the Commission concedes that after-
acquired evidence can, in some cases, limit the relief
available to a discrimination claimant." EEOC Brief at 16-17
(citing cases). The Commission continues:

For example, after-acquired evidence may establish 
that an employee would have not been hired even in 
the absence of discrimination because disqualifying 
information would have been turned up during the 
hiring process. If the employer can make such a 
showing, it can defeat the plaintiff's claim to make 
whole relief. An employee has no right to be 
"placed in a better position than he or she would 
have occupied if the employer had not acted 
unlawfully."

Id. at 17 (citations omitted).
Later, the Commission further concedes:
Admittedly, an employee's misconduct might justify 
some limitations on relief, even where the employee 
has suffered some economic injury as a result of the 
discrimination. Reinstatement, for example, could 
be denied where an employee's "ability to function 
effectively with his employer, as reflected by prior 
misconduct," is substantially impaired.

Id. at 19 (citations omitted).
Yet, the Commission seems to be arguing that O'Day should

be entitled to some backpay, albeit limited, because "O'Day
would have continued working for MDHC, for some period of
time, in the absence of the alleged discrimination" had his
theft and dissemination of confidential company documents
remained concealed. Id. at 20. The Commission does not
articulate at what point the accrual of backpay should end —
when MDHC learned of O'Day's misconduct, or at some other



25
point. In its zeal to secure some remedy for O'Day, the 
Commission is willing to reward him for successfully 
concealing his theft of confidential documents indefinitely, 
or at least until 0'Day admitted the theft at his deposition, 
without distinguishing which.

B. The EEOC's Position Here Reverses Its Earlier 
Position That No Back Pay At All Should Be Due

Although not acknowledged in the EEOC's amicus curiae
brief, its argument for some make whole relief in this case
reflects a policy change that is merely a few weeks old.
Until recently, the Commission directed its own staff to take
a strict Summers approach:

Where a plaintiff proves by direct evidence that 
discrimination was the exclusive basis for an 
employment decision, or where (s)he establishes that 
discrimination was a motive for the action, and the 
employer cannot prove that a legitimate motive would 
have induced it to take the same action, then 
liability is established. At a minimum, the 
charging party is entitled to injunctive relief and 
attorney's fees. However, in these circumstances, 
as in cases where discrimination is proved through 
circumstantial evidence, the employer may be able to 
limit other relief available to the plaintiff by 
showing that after-the-fact lawful reasons would 
have justified the same action.

For example, if a charging party is terminated 
for discriminatory reasons, but the employer 
discovers afterwards that she stole from the 
company, and it has an absolute policy of firing 
anyone who commits theft, then the employer would 
not be required to reinstate the charging party or 
to provide back pay. . . . See. e.g.. Summers v.
State Farm Mutual Automobile Insurance Co.. 864 F.2d 
700, 48 EPD ? 38,543 (10th Cir. 1988) (plaintiff 
entitled to no relief where evidence that he 
falsified numerous company records was discovered 
after termination); Smallwood v. United Air Lines.
Inc.. 728 F .2d 614, 33 EPD 34,185 (4th Cir.),



26
cert, denied. 469 U.S. 832, 35 EPD 5 34,663 (1984)
(while the airline's policy of not processing 
applications of persons over age 35 for the position 
of flight officer was a violation of the ADEA, the 
airline was not compelled to grant full relief to 
the plaintiff, since the airline proved that had it 
considered plaintiff's application, it would not 
have hired him on the basis of other lawful 
reasons); Mathis v. Boeing Military Airplane Co..
719 F. Supp. 991, 994-5, 51 EPD J 39,347 (D. Kan.
1989) (material omissions on plaintiff's employment 
application discovered after termination preclude 
relief on her Title VII claims).
Even if the charging party is not entitled to 
individual relief, the Commission can lawfully seek 
relief for any other identifiable victims of the 
discrimination.

Policy Guidance on Recent Developments in Disparate Treatment 
Theory. N-915.063, EEOC Compl. Man. (BNA) N:2119 at 2132-33 
and n.17. -2̂ / Under this guidance, then, the Commission would 
not have sought any individual relief on behalf of a charging 
party where after-acquired evidence of misconduct showed that 
termination was inevitable. Accordingly, for example, had

is/ The Commission's guidance notes that while it is intended 
to cover Title VII, "the same general principles apply to 
charges brought under the Age Discrimination in Employment 
Act." Policy Guidance on Recent Developments in Disparate 
Treatment Theory. N-915.063, EEOC Compl. Man. (BNA) N:2119.
i^/ Given the existence of this guidance, it is unclear why 
the Commission would suggest to this Court that:

the result urged by the Commission in this case 
would have been a matter of little controversy. The 
District Court's decision flies in the face of the 
overwhelming weight of authority concerning the use 
of after-acquired evidence. . . We believe that 
Summers is fundamentally flawed, and we urge this 
Court not to follow in the Tenth Circuit's mistaken 
path.

EEOC Brief at 22-23. Until recently, the Commission itself 
walked that path.



27
O'Day not terminated the EEOC investigation before the 
Commission made any findings, the EEOC unquestionably would 
have concluded, based on this guidance, that O'Day was not 
entitled to any remedy.

The consequences of the Commission's new approach before 
this Court are alarming. Under the Commission's revised but 
unsupported position, an employee who would have been 
discharged for misconduct had the employer known of it would

The Commission issued new guidance on July 14, 1992. 
Revised Enforcement Guidance on Recent Developments in 
Disparate Treatment Theory. N-914.002, EEOC Compl. Man. (BNA) 
N:2135. It was prepared in response to changes in Title VII 
due to the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 
Stat. 1071. Title VII, however, is not at issue here.
O'Day's only federal claim is under the ADEA, whose proof 
provisions were not affected by the 1991 amendments.

In any event, the Commission's interpretation of the 1991 
amendments is flatly contrary to the new Title VII language. 
The EEOC's new guidance, which approximates the Commission's 
position in this case, states:

if 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 
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 . . .

EEOC Compl. Man. (BNA) N: 2154. In contrast, Title VII, which 
previously was silent on this issue, now provides that if the 
employer "demonstrates that [it] would have taken the same 
action in the absence of the impermissible motivating factor, 
the court . . . shall not award damages or issue an order 
requiring any admission, reinstatement, hiring, promotion, or 
payment [of backpay]" Pub. L. 102-166, § 107(b)(3) (adding 42 
U.S.C. § 2000e-5(g)(2)(B)). Once the employer makes this 
showing, the statute denies expressly bars "any . . . payment" 
of backpay whatsoever. Contrary to the EEOC's new view, the 
statute contains no temporal qualification for the period of 
time the employee kept misconduct secret from the employer.



28
nevertheless receive backpay for a period of time solely 
because the wrongdoing went fortuitously undiscovered. For 
example, if an employee who is laid off in a force reduction 
sues for age discrimination, and during a later audit is found 
to have embezzled money from company accounts, under the 
Commission's theory that employee may be entitled to backpay 
up until the date the embezzlement is discovered. This view 
converts Title VII and ADEA remedies into a reward for lying 
and other misconduct rather than simply providing a remedy for 
discrimination.

Indeed, the argument that 0'Day himself might be eligible 
for some backpay rests on the tenuous ground that MDHC 
discovered O'Day's misconduct only because of the litigation. 
Otherwise, O'Day and his amicus would argue, MDHC would never 
have known that one of its employees surreptitiously had 
stolen, copied and disseminated confidential personnel 
documents. Thus, O'Day asks this Court to reward his 
wrongdoing because MDHC remained unaware of for a period of 
time until it came to light in the course of the litigation. 
The only thing impressive about this argument is that both 
O'Day and the EEOC have made it with apparent straight faces.

As noted, the overwhelming case law holds that a 
discrimination claimant who would have been discharged for 
misconduct is not entitled to reinstatement or any backpay.
The Commission offers no explanation for its sudden inverted 
position. EEAC respectfully suggests that the Commission's



29
newly-formed position calling for some relief is ill-advised 
and should not be adopted by this Court. Accordingly, 0'Day 
is not entitled to any backpay.

III. THE COURT BELOW PROPERLY GRANTED SUMMARY JUDGMENT
The EEOC concedes in its brief:
We recognize, of course, that a plaintiff must state 
a claim for relief in order to maintain a 
discrimination suit. Thus, it might be possible for 
a court to resolve a case by summary judgment, 
without deciding the issue of liability, if it were 
clear that no relief could possibly be awarded to 
the plaintiff.

EEOC Brief at 12-13. This is precisely that case. MDHC has
produced unrebutted evidence that O'Day would have been
discharged had the company known of his misconduct.
Accordingly, he is not entitled to any remedy. For this
reason, summary judgment is appropriate. See, e.g.. Summers
v. State Farm Mut. Auto. Ins. Co.. 864 F.2d 700 (10th Cir.
1988) ; Bonqer v. American Water Works. 58 Fair. Emp. Prac.
Cas. (BNA) 1430 (D. Colo. 1992); McKennon v. Nashville Banner
Publ. Co.. 59 Fair. Emp. Prac. Cas. (BNA) 60 (M.D. Tenn.
1992). As the Fourth Circuit stated in Smallwood:

Ordinarily, the procedure would be to remand the 
cause to the district court for resolution.

± 0 /  in arguing that O'Day might be entitled to relief other 
than reinstatement or backpay, the Commission cites only to 
the Supreme Court's decision in Albemarle Paper Co. v. Moody. 
422 U.S. 405 (1975). Albemarle stands solely for the 
proposition that backpay should be awarded where appropriate. 
I d .  a t  4 2 1 .  T h e  Commission's reliance o n Albemarle i s  
illogical in light of its concession that O'Day may not be 
entitled to backpay anyway.



30
However, this appears to be one of those exceptional 
cases . . . where it is obvious from a thorough 
review of the undisputed record that there is but 
one possible resolution of the critical issue on 
this appeal and that "any other resolution by the 
district court would be clearly erroneous." In that 
situation it is not necessary to follow the usual 
rule of remanding the cause to the district court 
for further action.

728 F.2d at 627.

CONCLUSION
For the foregoing reasons, the Equal Employment Advisory 

Council respectfully submits that the decision below granting 
summary judgment in favor of Defendant-Appellee MDHC should be 
affirmed.

Respectfully submitted,

Robert E. Williams 
Douglas S. McDowell 
Ann Elizabeth Reesman*

McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
EQUAL EMPLOYMENT ADVISORY 

COUNCIL

September 29, 1992 *Counsel of Record