O'Day v. McDonnell Douglas Helicopter Company Brief Amicus Curiae
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September 29, 1992

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Brief Collection, LDF Court Filings. O'Day v. McDonnell Douglas Helicopter Company Brief Amicus Curiae, 1992. 011cf414-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a00f18b0-56ae-43c7-94fb-63a0abe4c6c9/oday-v-mcdonnell-douglas-helicopter-company-brief-amicus-curiae. Accessed July 09, 2025.
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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