McKennon v. Nashville Banner Publishing Co. Reply Brief

    No. 93-1543

Supreme
I n  T h e

C ourt o f  tf)t Mmtefci S ta tes
O c t o b e r  T e r m , 1994

Ch r is t in e  M cKe n n o n ,
Petitioner,

V.

N ashv ille  Ba n n er  P u b l ish in g  Co .,
Respondent.

On W rit Of C ertio ra ri to the  
U nited S ta tes Court of Appeals 

fo r the  Sixth C ircuit

REPLY BRIEF

M ic h a el  E. T erry  
150 Second Avenue North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 
(Counsel of Record)

E lain e  R, J o n e s  
D ir ec to r  Co u n sel  

T h eo d o r e  M. Shaw  
Ch a r les  S t e p h e n  Ralsto n  
E ric  S c h n a ppe r  
NAACP Lega l  D e f e n s e  And 

E ducatio na l  F u n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioner



TABLE OF CONTENTS

I. In t r o d u c t i o n ........................ .. ..................................  1

II. A f t e r  A c q u ir e d  In f o r m a t io n  Sh o u l d
b e  T r e a t e d  in  t h e  Sa m e  M a n n e r  
U n d e r  t h e  ADEA as U n d e r  O t h e r  
F e d e r a l  L aws R e g u l a t in g  E m p l o y e r - 
E m pl o y e e  R ela t io n s  ................................  4

III. R e s p o n d e n t ’s P r o p o s e d  P e r  Se  R u l e  is 
I n c o n siste n t  W it h  D ec isio n s  o f  t h is
C o u r t  ........................   6

A. Scope of Coverage of the ADEA .........  6
B. Prima Facie Case .................................... 8
C. Standing.................................................  10
D. The Clean Flands D octrine..................  11

IV. A ny  I n ju r y  Su sta in ed  by R e s po n d e n t  
Sh o u l d  b e  R e d r e sse d  U n d e r  St a t e
L a w ........................................................................ 13

V. W h e t h e r  R e spo n d e n t  W o u l d  H a v e
D ism issed  P e t it io n e r  f o r  t h e  A sse r t e d  
M isc o n d u c t  C a n n o t  be  R e so l v e d  by 
Su m m a r y  J u d g m e n t .............................................  17

C o n c l u sio n  ....................................................    20



TABLE OF AUTHORITIES

Cases: Pages:

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................. .. 5, 12, 15

Allen v. Wright,
468 U.S. 737 (1984) ........................................  11

Brennan v. Reynolds & Co.,
367 F. Supp. 440 (N.D. 111. 1973) ........... .. 20

Burnett v. Grattan,
468 U.S. 42 (1984)............................................. 16

Calloway v. Partners National Health Plans,
986 F.2d 446 (11th Cir. 1993) ..... 12, 13

Deweese v. Reinhard,
165 U.S. 386 (1897) ............................... .. 11

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ......................................  5, 9

Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978) ........................ .. 6, 9

Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91 (1979)............................... .. . 10

Goldberg v. Bama Mfg. Corp.,
302 F.2d 152 (5th Cir. 1962) .................... .. 4

Harris v. Forklift Systems, Inc.,
126 L. Ed. 2d 295 (1993).................................... 5

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ............................. . 9

ii



Pages:

Jenkins v. United Gas Corp.,
400 F.2d 28 (5th Cir. 1968) .............................  20

John Cuneo Inc,
298 N.L.R.B. 856 (1990) . ..................................  3

Johnson v. Honeywell Information Systems, Inc.,
955 F.2d 409 (6th Cir. 1992) .............................  1

Keystone Driller Co. v. General Excavator Co.,
290 U.S. 240 (1933) ........................................  11

Kiefer-Stewart Co. v. Seagram & Sons, Inc,
340 U.S. 211 (1951) ...................... ...................  4

Lorillard v. Pons,
434 U.S. 575 (1978) ........................................  11

Lujan v. Defenders of Wildlife,
119 L. Ed. 2d 351 (1992).................................  10

Mandarin,
228 N.L.R.B. 930 (1977) ............................... 3

Mardell v. Harleysville Life Insurance Co., 1994 WL
396512 (3d Cir. 1994) ............................. 3, 13, 17

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) .................................  7, 8, 12

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ...................................  7, 8, 9

McKennon v. The Nashville Banner Publishing Co.,
No. 92-5917 (6th Cir.) ............... ........................ 8

Meritor Savings Bank v. Vinspn,
477 U.S. 57 (1986)..............................................  5



Milligan-Jensen v. Michigan Technological Univ.,
975 F.2d 302 (6th Cir. 1992),
vacated, 114 S. Ct. 22 (1993) , _____ . . .  8

NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983) ............................. ............. 6

Northeastern Florida Gen. Contractors v.
Jacksonville, 124 L. Ed. 2d 586 (1993) ...........  10

O’Daniel Oldsmobile,
179 N.L.R.B. 398 (1969) .................................... 3

Omar v. Sea-Land Service, Inc.,
813 F.2d 989 (9th Cir. 1987) ...................... .. . 13

Owens Illinois Inc.,
290 N.L.R.B. 1193, enf. without opinion, 872 
F.2d 413 (3d Cir. 1989) ............................. 3

Regents of University of Cal. v. Bakke,
438 U.S. 265 (1978) ........................................  11

St. Mary’s Honor Center v. Hicks,
125 L. Ed. 2d 407 (1993).................... ............. 16

Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984) ..........................................  8

Swan v. Charlotte-Mecklenburg Bd. of Ed.,
402 U.S. 1 (1971) ........... .............................. .. 17

Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248 (1981) ...................... ...............  9, 19

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1985) ........................................... 9

iv
Pages:



V
Pages:

United States v. SCRAP,
412 U.S. 669 (1973) ............................... 10

Wallace v. Dunn Construction Co.,
968 F.2d 1174 (11th Cir. 1992), rehearing en 
banc granted,__ F.3d___ (11th Cir. 1994) . . .  1

Statutes: Pages:

28 U.S.C. §1367 ...........................................................  14

29 U.S.C. § 160(c)................................................  6

29 U.S.C. §623(a)(l)................................................  7

29 U.S.C. §623(f)(3) ........... ......................................   5

29 U.S.C. §626(b)....................................      11

29 U.S.C. §626(c)(l) ..................................................  11

29 U.S.C. §630(0 ................................... ................... - 7

29 U.S.C. §631(a)     7

Miscellaneous: Pages:

H.L. McClintock, Handbook of Equity (1936)............. 12

J. Pomeroy. A Treatise on Equity
Jurisprudence (1941) ........................................  12

M. Rubinstein, The Use of Predischarge Misconduct
Discovered After an Employee’s Termination as a 
Defense in Employment Litigation, 24 Suffolk 
U. L. Rev. 1 (1990) . . ..................    13



I. In t r o d u c t io n

Respondent urges this Court to adopt a per se rule1 
that would "bar all relief' (R.Br. 22-42) and require dismissal 
of all ADEA claims whenever its proposed after-acquired 
information doctrine applies. As now enunciated by 
respondent, that per se rule would mandate dismissal of any 
employment discrimination complaint if a court concludes 
that three distinct requirements have been met:

(a) the plaintiff engaged in "serious wrongdoing 
related to employment";

1 As we noted in our opening brief (P.Br. 2-4), the complaint 
in this action expressly sought several distinct types of relief. The 
proceedings in the district court were controlled by Sixth Circuit 
precedent, which required — where the after-acquired information 
doctrine applied — that a complaint be dismissed completely and that 
all relief be denied. (Pet. App. 13a-17a) (District Court decision 
citing Sixth Circuit precedent). The Sixth Circuit decision in Johnson 
v. Honeywell Information Systems, Inc., 955 F.2d 409 (6th Cir. 1992), 
was issued on January 30, 1992, six weeks before petitioner’s district 
court brief, and four months before the district court decision. (J. 
App. 2a, 3a). By the time this case came before the court of appeals, 
there were four Sixth Circuit cases imposing this per se rule. (Pet. 
App. 5a, 6a, 6a n.6). Respondent now insists that petitioner was 
obligated to set out in her briefs in the lower courts how each remedy 
sought in her complaint would be affected if those courts utilized, 
instead of that per se rule, the remedy-specific approach in Wallace 
v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992), rehearing
en banc granted,___F.3rd___ (11th Cir. 1994). (R. Br. 3, 3 n.7, 11).
But such arguments would have been pointless, since the Sixth Circuit 
had already rejected the Wallace approach. Operating within the 
constraints of Sixth Circuit precedent, petitioner defended, and 
respondent attacked, the complaint in its entirety. Neither party can 
fairly be said, on that account, to have waived its right to advance 
arguments regarding the particular remedies sought in the complaint 
if this Court, as we urge, adopts a remedy-specific rather than a per 
se rule. Respondent itself advances in this Court just such arguments 
(R.Br. 42 n.59), although it did not do so in the courts below.



2

(b) discharge for that misconduct would be 
"objectively reasonable";

(c) the employer would in fact have terminated 
the plaintiff for the misconduct had that 
employer been cognizant of it.

(R.Br.17-18)2.

Respondent offers no standard for distinguishing 
"serious" misconduct, which would be fatal to any ADEA 
claim (if the other requirements are met), from non-serious 
misconduct which, presumably, would have no impact 
whatever on such a claim. In reply to our objection to the 
lack of any specific standard, respondent retorts that the 
distinction is so obvious that a request for a standard "defies 
reason and experience and is insulting to the federal 
judiciary." (R.Br.17 n.26). Respondent also proffers no 
explanation of how to determine when a dismissal would be 
"objectively reasonable", other than to suggest that this is not 
a question that should be left to a jury. (R.Br.19 n.30). 
These amorphous formulations provide no meaningful 
guidance for assessing employee actions in the infinite 
variety of employment disputes that arise at plants and 
offices with widely divergent standards, practices, and 
corporate cultures3.

2 Respondent appears to suggest yet a fourth requirement, that 
there be no "direct evidence" of discrimination. (R.Br.13-14 n. 22; see 
also id. at 49).

3 Few employers would dismiss a worker who made a single 
personal telephone call from a company phone; most employers 
would probably fire a worker who covertly made $10,000 in personal 
long distance calls at the firm’s expense. But courts have no 
authority or capacity to establish a federal common law rule as to 
how many personal telephone calls on an office phone constitute 
"serious" wrongdoing.



3

In our view the threshold question is a narrower and 
simpler one — would the employer in fact have dismissed the 
plaintiff had it known of the asserted misconduct? The 
seriousness of the asserted misconduct, and the 
reasonableness of the dismissal are, we suggest, merely 
evidence the finder of fact may consider in determining what 
the employer would have done had it learned of the 
misconduct.4 Satisfaction of this single requirement,5 
however, entitles an employer, not to dismissal of all claims, 
but only to certain limitations on the available relief.6 The 
analysis which we advance is similar to that of the Third 
Circuit in Mardell v. Harleysville Life Insurance Co., 1994 WL 
396512 (3d Cir. 1994).

4 The ADEA does not establish its own code of employee 
conduct or level of sanctions. Federal anti-discrimination law permits 
an employer to dismiss workers for trivial offenses, and to take 
actions a judge or jury may regard as unreasonable, so long as the 
employer’s actions are not animated by a discriminatory motive and, 
in some instances, so long as they do not have a discriminatory effect.

5 In enforcing the NLRA, the NLRB imposes a second 
requirement, that the employer prove the employee engaged in 
"misconduct so flagrant as to render the employee unfit for further 
service or a threat to the efficiency of the plant." See John Cuneo 
Inc, 298 NLRB 856, 857 (1990); Owens Illinois Inc., 290 NLRB 1193, 
enf. without opinion, 872 F.2d 413 (3d Cir. 1989); Mandarin, 228 
NLRB 930, 931-32 (1977); O’Daniel Oldsmobile, 179 NLRB 398, 405 
(1969). However, because the federal courts which enforce the 
ADEA and Title VII, unlike the NLRB, lack the experience and 
expertise in employment matters necessary to evaluate readily such 
fitness issues, and because the EEOC Guidelines contain no such 
restriction, we do not advocate imposing this additional requirement 
on employers in discrimination cases.

6 As we note in our opening brief (P.Br. 30-42), an employer 
which can prove that absent discrimination it would have discovered 
the misconduct prior to the date of entry of judgment may be able to 
limit relief, specifically pre-judgment backpay, even further.



4

After-the-fact discovery of misconduct on the part of 
an ADEA plaintiff cannot legalize nunc pro tunc unlawful 
action by an employer. See Kiefer-Stewart Co. v. Seagram & 
Sons, Inc, 340 U.S. 211, 214 (1951). Unlike purely private 
contract disputes between employers and employees, civil 
actions under the ADEA enforce statutory norms of 
transcendent public importance. Nothing in the language of 
the ADEA authorizes dismissal of otherwise meritorious 
discrimination claims as a method of recompensing 
employers for injuries sustained by reason of employee 
misconduct; the appropriate remedy for an employer 
aggrieved by such injuries is an action under applicable state 
law.

II. A f t e r  A c q u ir e d  In f o r m a t io n  Sh o u l d  be  
T r e a t e d  in  t h e  Sa m e  M a n n e r  U n d e r  t h e  
A D E A  as U n d e r  O t h e r  F e d e r a l  L aw s 
R e g u l a t in g  E m p l o y e r -E m p l o y e e  R e la t io n s

The established interpretations of five other federal 
laws regarding employer-employee relations have rejected a 
per se rule denying all relief. (P.Br.13-21). Respondent does 
not challenge the correctness of these interpretations of 
those statutes,7 but insists that the ADEA should be 
construed differently.

Respondent suggests that reference to the 
unquestioned interpretation of other statutes is never

7 Goldberg v. Bamn Mfg. Corp., 302 F.2d 152 (5th Cir. 1962) 
does not support respondent’s suggestion that the Fifth Circuit 
awarded back pay because the employer had "waived" its right to 
dismiss the plaintiff. On the contrary, the Fifth Circuit insisted that 
some remedy was always required for a proven violation of the FLSA. 
302 F.2d at 156 ("it is impossible for us to imagine cases when a 
denial of both reinstatement and reimbursement would be justified 
(once a court has concluded that an employee was discharged in 
violation of the Act)"). See also id at 155 (employer "was not 
informed of several of Mrs. Powell’s actions until after her 
discharge.")



5

appropriate, because the ADEA is simply a distinct statute 
with its own purpose and legislative history. (R.Br. 43). 
Respondent objects particularly to reliance on the settled 
interpretation of the NLRA and the FLSA. (R.Br. 43 n.60). 
But this Court has expressly relied on the NLRB’s 
interpretation of the NLRA, and on judicial interpretation 
of the FLSA, in construing Title VII. Franks v. Bowman 
Transportation Co., 424 U.S. 747, 768-770 (1976)(NLRA); 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (FLSA), 
419-20 (NLRA)(1975). There is no reason to ignore this 
same body of law when construing the ADEA.

Respondent urges that the established interpretation 
of statutes such as the Federal Employers’ Liability Act is 
irrelevant because those laws provide redress for physical 
injuries which are "palpable and tangible". (R.Br. 44-45). 
But the injuries subject to redress under federal anti- 
discrimination law are equally real and substantial. Plaintiffs 
who are dismissed in violation of the ADEA or Title VII 
suffer "tangible, economic" harm, see Mentor Savings Bank 
v. Vinson, A ll U.S. 57, 64 (1986); the economic loss of an 
employee dismissed in violation of the ADEA is 
indistinguishable from the economic loss of an FELA 
plaintiff unable to work because of a physical injury. 
Discriminatory on-the-job harassment also causes "tangible 
effects"; it may "affect employees’ psychological well being ... 
and often will detract from employees’ job performance, 
discourage employees from remaining on the job, or keep 
them from advancing in their careers." Harris v. Forklift 
Systems, Inc., 126 L.Ed.2d 295, 302 (1993). Injuries caused 
by invidious discrimination are certainly as important as the 
injuries redressed by the FELA. Federal anti-discrimination 
laws address an "historic evil of national proportions." 
Albemarle Paper Co. v. Moody, 422 U.S. at 416.

Respondent seeks to distinguish these established 
interpretations of other laws by pointing to the section of the 
ADEA which provides that an employer may "discharge or 
otherwise discipline an individual for good cause". 29 U.S.C.



6

§623(f)(3). (R.Br. 43). But the NLRA contains an 
essentially identical provision:

No order of the Board shall require the 
reinstatement of any individual as an employee who 
has been suspended or discharged, or the payment to 
him of any back pay, if such individual was 
suspended or discharged for cause.

29 U.S.C. §160(c). In both statutes the preposition "for" 
means "because of'8, and refers to the employer’s reason for 
acting at the time of the discharge. NLRB v. Transportation 
Management Coip., 462 U.S. 393, 401 n.6 (1983).

Respondent urges, finally, that the Court should 
ignore these established interpretations of other federal 
statutes because those statutes, unlike the ADEA, "do not 
focus on the employee’s negligence or misconduct." 
(R.Br.45). But nothing in the language of the ADEA 
suggests that its purpose is to "focus on the employee’s ... 
misconduct". On the contrary, as experience has already 
indicated, the central vice of respondent’s proposed per se 
rule is precisely that it requires federal court’s to "focus on 
the employee’s ... misconduct", rather than to "focus ... [on] 
whether the employer is treating ‘some people less favorably 
than others’" for unlawful reasons. Fumco Construction 
Corp. v. Waters, 438 U.S. 567, 577 (1978).

III. R e s p o n d e n t ’s P r o p o s e d  P e r  Se  R u l e  is 
I n c o n sist e n t  W it h  D ec isio n s  o f  t h is  C o u r t

A. Scope of Coverage of the ADEA

Respondent contends that the complaint in this 
action should be dismissed because the ADEA does not 
apply to a person who has committed serious misconduct. 
(R. Br. 27 n.42). "[A]n employee who knowingly engages in

See Webster’s Seventh New Collegiate Dictionary, 325
(1967).



7

discharge-worthy misconduct is ... simply not protected ... 
under the statute". (R. Br.28). The plain language of the 
ADEA, however, contains no such exception for the 
"undeserving" (R. Br. 27 n.42), but applies broadly to "any 
individual." 29 U.S.C. § 623 (a)(1). Where Congress wished 
to exclude a group of persons from coverage by the inclusive 
statutory language, it did so expressly, excepting, for 
example, persons under forty, 29 U.S.C. § 631 (a), and 
certain elected and policy-making government officials. 29 
U.S.C. § 630 (f).

This Court has repeatedly refused to exclude 
employees or job applicants from the protection of federal 
law because they may have engaged in misconduct. 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), held 
that Title VII applied to the discrimination claims of a job 
applicant who had previously been arrested and convicted 
for deliberately obstructing the road to the plant at issue, 
despite the "seriousness and harmful potential" of the 
applicant’s conduct. 411 U.S. at 806 n. 21; see also id. at 
806 ("a seriously disruptive act"). In McDonald v. Santa Fe 
Trail Transportation Co., 427 U.S. 273 (1976), this Court 
rejected an argument, indistinguishable from that of 
respondent, that Title VII did not apply to employees who 
had stolen property from their employer:

Respondents contend that ... Title VII affords 
petitioners no protection in this case, because their 
dismissal was based upon the commission of a serious 
criminal offense against their employer. We think 
this argument is foreclosed by our decision in 
McDonnell Douglas Corp. v. Green .... We cannot 
accept respondents’ argument that the principles of 
McDonnell Douglas are inapplicable where the 
discharge was based ... on participation in serious 
misconduct or crime directed against the employer. 
The Act prohibits all racial discrimination, without 
exception for any group of particular employees ....



427 U.S. at 282-83 (Emphasis added). In Sure-Tan, Inc. v. 
NLRB, 467 U.S. 883 (1984), the Court rejected a similar 
argument that the NLRA should be construed not to protect 
undocumented alien workers who had violated federal 
criminal laws by entering the United States illegally.9
B. Prima Facie Case

Respondent suggests that McDonnell Douglas Corp. 
v. Green, 411 U.S. 792 (1973), makes proof of qualification 
a necessary element of any cause of action for 
discrimination, without which a plaintiff can never establish 
a prima facie case. (R. Br. 35-40). At this stage of the 
proceedings, however, the Sixth Circuit properly assumed 
that petitioner could establish a prima facie case. (Pet.App. 
5a, 6a, 6a n.6)10. The question is whether after-acquired 
information constitutes a complete defense to a proven 
violation of the ADEA. See Milligan-Jensen v. Michigan 
Technological Univ., 975 F.2d 302 (6th Cir. 1992)(complaint 
dismissed despite district court finding of Title VII 
violation), vacated, 114 S.Ct. 22 (1993).

Proof of qualification is not a necessary element of a 
prima facie case. The touchstone of a disparate treatment 
claim, under Title VII or the ADEA, is not whether a 
plaintiff was qualified, but "whether the employer is treating

9 "Hie breadth of [the statutory language] is striking: The Act 
squarely applies to ‘any employee’. The only limitations are specific 
exceptions.... Since undocumented aliens are not among the few 
groups expressly exempted by Congress, they plainly come within the 
statutory definition of employee." 467 U.S. at 891-92.

10 Respondent acknowledges that in the proceedings below "for 
purposes of summary judgment, the Banner assumed petitioner was 
subject to discriminatory discharge." (R.Br.49 n. 69). See Brief on 
Behalf of Defendant - Appellee, McKennon v. The Nashville Banner 
Publishing Co., No. 92-5917 (6th Cir.), 28 ("For the purpose of 
summary judgment, a discriminatory motive in discharging the 
plaintiff is assumed....")



9

‘some people less favorably than others’" because of some 
criterion, such as age, forbidden by federal law. Fumco 
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). In 
order to establish a prima facie case, a plaintiff need only 
adduce evidence "from which one can infer, if [the 
employer’s] actions remain unexplained, that it is more likely 
than not that such actions were ’based on a discriminatory 
criterion illegal under the Act’". 438 U.S. at 567. In 
determining the actual motives of an employer, the 
qualification vel non of a plaintiff may well be relevant 
evidence, since it tends to undermine or support a possible 
non-discriminatory explanation for the employer’s actions. 
But qualifications or disqualifications of which an employer 
was unaware are simply irrelevant to a determination of the 
employer’s state of mind; in the instant case petitioner’s 
actions in copying the disputed documents, even if in some 
sense relevant to her qualifications, were of course unknown 
to respondent when it dismissed her in October, 1990.

This Court has repeatedly stressed, moreover, that 
the formula in McDonnell Douglas was not "the only means 
of establishing a prima facie case .... Our decision in that 
case ... did not purport to create an inflexible formulation." 
International Brotherhood of Teamsters v. United States, 431 
U.S. 324, 358 (1977); see also Texas Dept, of Community 
Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981); Fumco 
Construction Corp. u Waters, 438 U.S. at 575-76. This Court 
has twice expressly held that a plaintiff can establish a prima 
facie case without evidence of individual qualifications. 
Teamsters v. United States, 431 U.S. at 358-60; Franks v. 
Bowman Transportation Co., 424 U.S. 747, 772 (1976). 
Direct evidence of discrimination, such as a smoking gun 
memorandum directing personnel officials to "fire all black 
workers," would obviously suffice to establish a prima facie 
case, regardless of whether the McDonnell Douglas formula 
was satisfied. Trans World Airlines, Inc. v. Thurston, 469 U.S. 
I l l ,  121 (1985).

A



10

C. Standing

Respondent’s standing argument can fairly be 
described as an "academic exercise in the conceivable." 
United States v. SCRAP, 412 U.S. 669, 688 (1973). 
Respondent does not deny that what actually occurred in 
this case is that petitioner was fired on October 31, 1990, for 
reasons that necessarily had nothing to do with the copied 
documents; respondent dismisses those events, however, as 
a mere "historical fact". (R.Br. 34). In applying this Court’s 
standing decisions, respondent insists, actual events should 
be ignored; the "only real issue" is what circumstances should 
be "deemed to have occurred ... based on policy 
considerations." (Id.). Respondent urges this Court to 
pretend that petitioner was fired for misconduct in the fail 
of 1989, a year before her actual dismissal. In this make- 
believe scenario, the discriminatory policy alleged to have 
existed in the fall of 1990 would have had no impact on 
petitioner, since by then she would not have worked for 
respondent for a year. This hypothesized scenario, 
respondent urges, "trumps the actual event[s]". (Id.)

Petitioner’s standing, however, should be determined 
in light of what actually occurred in the real city of 
Nashville, Tennessee, in October 1990, not on the basis of 
non-existent occurrences in an imaginary world hypothesized 
to exist "based on policy considerations." The linchpin of 
standing, this Court has repeatedly held, is "injury in fact". 
Northeastern Florida Gen. Contractors v. Jacksonville, 124 
L.Ed. 2d 586, 595 (1993)(emphasis added); Lujan v. 
Defenders of Wildlife, 119 L.Ed. 2d 351, 364 (1992). Standing 
issues are controlled by the "actual ... not ... hypothetical" 
events. Northeastern Floiida Gen. Contractors, 124 L.Ed. at 
595; Lujan, 119 L.Ed.2d at 365. The existence of standing, 
where controverted, is determined, not on the basis of policy 
based speculation, but by "evidence adduced at trial." 
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 
n.30 (1979). Standing can neither be created nor eliminated 
by hypothesizing circumstances which did not in fact occur.



11

Cf Allen v. Wright, 468 U.S. 737, 751 (1984). "Having 
injured [petitioner] solely on the basis of an unlawful 
classification, [respondent] cannot now hypothesize that it 
might have employed lawful means of achieving that same 
result." Regents of University of Cal. v. Bakke, 438 U.S. 265, 
320 n.54 (1978).

D. The Clean Hands Doctrine
The clean hands doctrine cannot support the per se 

rule advocated by respondent. That doctrine, where 
applicable, limits only the availability of equitable relief; the 
ADEA, however, expressly authorizes the award of all 
appropriate "legal or equitable relief."11 29 U.S.C. §§ 626 
(b), 626 (c)(1) (Emphasis added). Even as to equitable 
relief, the clean hands doctrine is not a mechanical rule, but 
turns on the particular circumstances of each case and 
involves the "free and just exercise of discretion" by the 
court. Keystone Driller Co. v. General Excavator Co., 290 
U.S. 240, 246 (1933). The discretion of a district judge to 
deny some relief in some cases cannot justify a per se rule 
mandating denial of all relief in every case.

After-acquired information which might have 
prompted an employer to dismiss an employee need not 
involve employee misconduct sufficiently egregious to 
warrant application of the clean hands doctrine. Deweese v. 
Reinhard, 165 U.S. 386, 390 (1897) (misconduct must be 
"offensive to the dictates of natural justice."). The often

11 Although backpay has for other purposes been characterized 
by this Court as equitable, it is difficult to see how the discretionary 
maxims of equity could readily be applied in an ADEA case in which 
the jury awards backpay. The ADEA provides a statutory right to 
trial by jury without regard to the nature of the relief being sought. 
Lori Hard v. Pons, 434 U.S. 575 (1978). Lorillard concludes that 
Congress intended monetary awards under the FLSA to be treated 
as legal remedies. 434 U.S. at 583 n.11. The ADEA incorporates the 
FLSA remedial scheme.



12

mundane workplace rules enforced by employers need not, 
and frequently do not, involve transgressions of such 
magnitude; an employer may dismiss a worker for simple 
inefficiency, or for actions that other employers might 
tolerate or even approve of. Similarly, the clean hands 
doctrine can bar relief only where the plaintiffs 
unconscionable actions have caused the defendant significant 
harm. J. Pomeroy, A Treatise on Equity Jurisprudence, v.ii, 
p. 99 (1941). Manifestly not eveiy rule violation which 
might lead to the dismissal of an employee will necessarily 
involve such injury. The doctrine is also limited to cases in 
which the plaintiffs actions were part of the same 
transaction which gave rise to the claim for equitable relief, 
H.L. McClintock, Handbook of Equity 34 (1936), a 
requirement that clearly is not met where, as here, the 
employer complains of employee action that occurred a year 
before the alleged unlawful dismissal. Calloway v. Partners 
National Health Plans, 986 F.2d 446, 450-51 (11th Cir. 1993).

Like any other limitation on relief, moreover, the 
clean hands doctrine cannot be invoked in a manner "which, 
if applied generally, would ... frustrate the central statutory 
purposes of eradicating discrimination ... and making persons 
whole for injuries suffered through past discrimination." 
Albemarle Paper Co. v Moody, 422 U.S. 405, 421 (1975). 
Employee misconduct which might otherwise warrant 
application of the clean hands doctrine, for example, may 
not be invoked to limit relief against an employer which 
discriminates in the sanctions it imposes for such 
misconduct, see, e.g., McDonald v. Santa Fe Trail 
Transportation Co., 427 U.S. 273 (1976), or which 
investigates only, or more thoroughly, employees over forty, 
or former employees who file ADEA charges.

In its attempt to invoke the clean hands doctrine, 
respondent resorts to somewhat inflated rhetoric, accusing 
petitioner of "betrayal" (R.Br. 42), "theft" (R.Br. 1, 15) and



13

a "cover-up." (R.Br. 41 )12. The instant case, however, does 
not involve Aldrich Ames, Michael Milken or the Watergate 
conspirators. Petitioner is an ordinary secretary, employed 
by a small circulation newspaper, who, anticipating that she 
might be unlawfully dismissed, copied several company 
documents that she thought showed that she was being 
mistreated. Respondent cannot plausibly invoke the clean 
hands doctrine with regard to employee actions precipitated 
by an impending violation of federal law.

IV . A ny  In ju r y  Su st a in e d  by  R e s p o n d e n t  Sh o u l d  
b e  R e d r e sse d  U n d e r  St a t e  La w .

Respondent argues vociferously that it has been 
grievously wronged by petitioner’s asserted conduct. 
Respondent’s characterization of that conduct goes well 
beyond the actual record in this case. (See pt. V, infra). Be 
that as it may, if respondent wishes to assert any claim 
against petitioner, respondent, like any other employer in 
Tennessee, must base that claim on state law.13

12 This particular allegation is somewhat ironic, since the effect 
and purpose of the per se rule advanced by respondent are to 
preclude the federal courts, and EEOC, from investigating or 
determining whether there had been a violation of federal law. See 
M. Rubinstein, "The Use of Predischarge Misconduct Discovered 
After an Employee’s Termination as a Defense in Employment 
Litigation," 24 Suffolk U. L. Rev. 1, 28 (1990) ("There is something 
wrong with a body of law which allows an employer to cover up its 
illegal activities by searching an employee’s past for unknown 
fabrications.")

13 Mardell v. Harleysville Life Insurance Co., 1994 WL 396512, 
*12 (3d Cir. 1994) ("such evidence may serve as the foundation for a 
claim of fraud, conversion, or the like by the employer against the 
employee in the appropriate forum"); Otnarv. Sea-Land Sendee, Inc., 
813 F.2d 989, 991 (9th Cir. 1987)("If Sea-Land wanted to sue Omar 
for breach of contract, its action could not be under the Jones Act.")



14

Respondent asserts that petitioner "stole" a dozen 
sheets of paper on to which she had photocopied certain 
information. (R.Br. 1). Respondent may conceivably have 
an action for conversion under Tennessee law. Respondent 
also argues that all wages which petitioner received from the 
fall of 1989 until her October 31, 1990, dismissal, were 
obtained by "deception". (R.Br. 41). If Tennessee law gives 
to an employer in such a situation a right to sue for return 
of those wages, respondent may also be able to pursue such 
a state claim. In some instances these or other state causes 
of action might offset, substantially or completely, a 
plaintiffs federal claim. There may be circumstances in 
which a federal court would have supplemental jurisdiction 
to consider a counter-claim based on state law. 28 U.S.C. § 
1367.

Respondent, however, does not seek to assert any 
state law claims. Rather, evidently regarding the provisions 
of Tennessee law as deficient, respondent urges this Court 
to craft a federal common law of employer rights and 
remedies. Respondent apparently acknowledges that 
Tennessee law gives it no right in these circumstances to 
obtain repayment of wages paid to petitioner. (R.Br. 35 
n.51). Respondent does not claim it was injured by any 
disclosure of confidential information to the public or to its 
competitors, since no such disclosure occurred. Respondent 
understandably has little interest in recovering the fair 
market value of a few pages of photocopying. Similarly, the 
amicus Chamber of Commerce, evidently broadly dissatisfied 
with state laws throughout the nation, insists that a per se 
federal rule regarding "serious misconduct" is necessary to 
"maintain important workplace standards of conduct."14 
Deeming insufficient state law claims and regulations in this 
area, the Chamber of Commerce urges this Court to devise 
a defense to the ADEA which would provide to its 220,000

14 Motion of the Chamber of Commerce of the United States 
for Leave to File Brief Amicus Curiae, par. 3, p. i.



15

members "a powerful incentive to combat employee fraud 
and misconduct".15

This Court, however, has no general mandate to 
fashion judicial rules to police the American workplace. 
From among the wide variety of issues that arise in the 
nation’s offices, factories and farms, Congress has selected 
only a limited number for control by federal law, leaving the 
rest for regulation by the states, or to less formal resolution 
by employers, unions, and individual workers. The care and 
specificity with which Congress has selected only certain 
subjects for federal regulation compels considerable caution 
when the federal courts are urged to resolve issues which 
Congress has deliberately chosen not to address.

Fashioning standards of conduct for workers and job 
applicants would require the sort of legislative line drawing 
that courts are ill-equipped to engage in. Respondent urges 
that a per se federal rule should distinguish "serious" 
employee misconduct from moderate, minor, or technical 
infractions. The Chamber of Commerce insists the rule 
should extend to resume "fraud", but apparently not to mere 
puffing, exaggeration, or minor mistakes in resumes or job 
applications. Any sensible standard of employee conduct 
would undoubtedly distinguish between levels of infractions, 
but it is difficult to see how a federal court would have the 
ability, or authority, to establish such a classification system.

Adoption by the federal courts of the proposed per 
se rule would have little effect on the actions of employees 
or job applicants. Such a rule would impose sanctions on

15 Id., par. 5. The ADEA, of course, was enacted, not to 
police employee misconduct, but to end invidious discrimination by 
employers. The paramount incentive under the ADEA is that "the 
reasonably certain prospect" of a monetary award constitutes an 
"incentive ... which causes employers ... to self-examine and to self- 
evaluate their employment practices." Albemarle Paper Co. v. Moody, 
422 U.S. at 417-18. i



16

only those errant workers or job applicants who had 
meritorious discrimination claims. Less than .005% of 
Americans workers file employment discrimination lawsuits 
in federal court in any given year16; not all of these are 
found to be meritorious. For 99.995% of American 
employees — those who are not discrimination victims, and 
those victims who choose not to sue — the per se rule would 
be largely irrelevant. It would be exceedingly peculiar to 
interpret the ADEA to impose on discrimination victims 
burdens which neither federal nor state law places on 
otherwise indistinguishable non-victims17.

Even where the proposed per se rule would apply, 
the redress it would provide to aggrieved employers would 
be entirely arbitrary. Ordinarily the size of a monetary 
award is based primarily on the magnitude of the injury 
sustained by the victim. But under the per se rule, the 
"remedy" accorded to an employer would consist of 
cancellation of the employee’s discrimination claim, the 
magnitude of which turns on the amount of injury that had 
been sustained by the employee. Thus an employer which 
had suffered a $10 injury might receive the windfall of 
cancellation of a $100,000 liability. Here, as in St. Mary’s 
Honor Center v. Hicks, 125 L. Ed. 2d 407 (1993), federal 
anti-discrimination law cannot be converted into a vehicle 
for solving largely unrelated problems. "The elimination of 
... discrimination ... is a large task and one that should not 
be retarded by efforts to achieve broader purposes lying

16 Brief Amicus Curiae of the Chamber of Commerce of the 
United States, p. 9 n. 8.

17 If Tennessee were to enact such a strangely selective rule, 
giving employers a right to a refund of wages from errant workers 
who filed meritorious ADEA suits, but from no other employees, 
such a state statute would certainly be struck down as inconsistent 
with the ADEA. See Burnett i>. Grattan, 468 U.S. 42, 53 n.15 (1984).



17

beyond the jurisdiction of [the federal courts]". Swan v. 
Charlotte-Mecklenburg Bd. of Ed., 402 U.S, 1, 22 (1971).

V. W h e t h e r  R e s p o n d e n t  W o u l d  H a v e  D ism issed  
P e t it io n e r  f o r  t h e  A sse r t e d  M is c o n d u c t  
Ca n n o t  b e  R e so l v e d  by  Su m m a r y  J u d g m e n t

Under both the standard now advanced by 
respondent and the standard advanced by petitioner, an 
employer cannot invoke after-acquired information without 
proving that it would have dismissed the plaintiff on the 
basis of that information. The district court below did not 
purport to resolve that question. Respondent now asks this 
Court to grant partial summary judgment regarding this 
issue. This Court, however, does not ordinarily undertake 
to consider fact-bound questions that have not been squarely 
addressed by the lower courts. This issue is one that should 
be determined by the district court on remand.

This issue cannot be resolved by summary judgment 
in this case. The inherently speculative nature of this 
question places on the party bearing the burden of proof, 
the employer, a substantial burden. The Chamber of 
Commerce of the United States urges, correctly in our view, 
that an employer seeking to prove that it would have 
dismissed an employee must adduce "evidence of uniform 
rules applied in an even-handed manner"18. As the Third 
Circuit has observed: "At one time or another probably
every employee commits an infraction at work and hopes 
that the boss never finds out." Mardell v Harleysville Life 
Insurance Co., 1994 WL 396512, *14 n. 28 (3d Cir. 1994). 
The Chamber of Commerce asserts that at least "30% of job

18 Brief Amicus Curiae of the Chamber of Commerce of the 
United States, p. 16; see also Motion for Leave to File Brief Amicus 
Curiae of the Chamber of Commerce of the United States, par. 5 
(employer must demonstrate the existence of "objective rules and ... 
uniform administration").



18

applicants materially misrepresent their credentials."19 
Manifestly, however, no rational employer would dismiss 
every employee guilty of misconduct. As other business 
amici note, an employer which fired every worker guilty of 
some infraction "would soon find itself with no experienced 
workers, no productivity, no profits, and an abundance of 
self-inflicted lawsuits."20 Thus the mere fact that a worker 
committed some infraction, on the job or during the 
application process, proves little; the critical burden on the 
employer is to establish by reference to both objective rules 
and actual practice which types of infractions, if any, 
necessarily led to dismissal. In the instant case respondent 
adduced neither type of evidence. Respondent’s conclusive 
affidavits were contradicted or undermined in a number of 
respects. (P.Br. 5-6).

Respondent attempts to avoid these difficulties by 
repeatedly asserting that petitioner herself testified that her 
conduct, if known to respondent, "would have led to 
discharge"21. However, the testimony at issue, set out at 
pages 153a-155a of the Joint Appendix, reveals that 
petitioner actually insisted she would not have been 
terminated for taking the documents home, since she did not 
make them public22.

19 Motion for Leave to File Brief Amicus Curiae of the 
Chamber of Commerce of the United States, par. 4.

20 Brief Amici Curiae of the Equal Employment Advisory 
Council, et al., p. 21.

21 R. Br. 14; see also id. at 1, 6, 7, 9, 11, 15, 18, 41, 48, 49.

22 "Q -  [Didn’t you know that if] Mr. Simpkins, had found out 
that you had copied these documents and taken them home without 
permission, these confidential documents, that he would have 
terminate[d] you?

"A. No, I don’t know that.
*  *  *



19

Counsel for respondent seeks to offer in this Court 
additional arguments for dismissal. But see Texas Dept, of 
Community Affairs v. Burdine, 450 U.S. 248, 255 n. 9 (1981). 
Counsel objects that the documents at issue were shown to 
petitioner’s husband and attorney23. But the company 
officials who signed respondent’s affidavits and dismissal 
letter evidently did not believe those actions were grounds 
for dismissal, since they mentioned neither in the affidavits 
and letter. (J. App. 35a-43a). Counsel for respondent 
accuses petitioner of "fraud", "deceit" and a "coverup"24, 
words redolent with implications of perjury and forgery. 
Nothing in the record supports any such charge. 
Respondent does not deny that the documents may contain 
evidence supporting petitioner’s discrimination claim (see P. 
Br. 4); rather than dismissing the documents as irrelevant, 
respondent complains it has been "sandbagg[ed]" (R. Br. 22 
n. 33) because it did not learn until after this suit was filed 
that petitioner had them. Respondent concedes company 
officials had previously sought to destroy several of the 
documents, and had actually directed petitioner to shred 
them. (R. Br. 7,15).

Respondent urges, finally, that petitioner should be 
denied relief if this Court finds that "any reasonable 
employer would have terminated an employee under the 
circumstances that the present case presents." (R.Br. 19). 
This argument fundamentally misconceives the role of 
federal courts in enforcing the ADEA. "The Federal Judge 
... does not sit as a sort of high level industrial arbiter",

"Q. And you understood if you took them home, you would 
have been terminated?

"A. No, I really didn’t understand that because they were 
safe in the house." (J. App. 154a).

23 R. Br. 6 n. 12, 7, 15.

24 R. Br. 21 n. 34, 26, 27 n. 42, 41, 41 n. 57, 43.



20

Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968), 
authorized to dispense mercy to employees of "unreasonably" 
harsh employers, or to penalize employees of "unreasonably" 
lax employers. In a disparate treatment case the 
responsibility of the federal courts is limited to determining 
whether the employer engaged in intentional discrimination, 
and to providing to victims of discrimination the remedies 
authorized by federal law.25

C o n c l u sio n

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

Respectfully submitted,

M ic h a e l  E. T e r r y  
150 Second Avenue North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 
(Counsel of Record)

A t t o r n e y  fo r  Pe t it io n e r

25 See Brennan v. Reynolds & Co., 367 F. Supp. 440, 444 (N.D. 
111. 1973) ("['Die ADEA] is concerned about age discrimination. Its 
purpose is not to solve other problems about employment.... [The 
Act] does not cast upon the Court the duly of determining that a 
discharge was, for reasons other than age, a justifiable discharge. Its 
serves only to prevent discharge because of age alone”).