O'Day v. McDonnell Douglas Helicopter Company Brief of Defendant/Appellee

    UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 92-1565

DENNIS O’DAY

Plain tiff-Appellant,

McDo n n e l l  d o u g l a s  h e l ic o p t e r  c o m p a n y ,

Defendant/Appellee.

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

BRIEF OF DEFENDANT/APPELLEE

TIBOR NAGY, JR.
SNELL & WILMER 
1500 Citibank Tower 
One South Church Avenue 
Tucson, Arizona 85701 
(602) 882-1228
Attorneys for Defendant/Appellee



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 92-1565

DENNIS O ’DAY

Plaintiff-Appellant,

v.

McDo n n e l l  d o u g l a s  h e l ic o p t e r  c o m p a n y ,

Defendant/ Appellee.

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

BRIEF OF DEFEND ANT/APPELLEE

TIBOR NAGY, JR.
SNELL & WILMER 
1500 Citibank Tower 
One South Church Avenue 
Tucson, Arizona 85701 
(602) 882-1228
Attorneys for Defendant/Appellee



TABLE OF CONTENTS

STATEMENT OF JU R IS D IC T IO N ..............................................................................................1

ATTORNEYS’ FEES ........................................................................................................................1

STATEMENT OF ISSUES PRESENTED FOR R E V I E W .......................................... 1

STATEMENT OF THE C A S E ......................................................................................................2

STATEMENT OF THE FACTS .   3

TABLE OF AUTHORITIES . ............................................................................................ iii

ARGUMENTS

I. THE AFTER-ACQUIRED EVIDENCE DOCTRINE PRECLUDES
RECOVERY OF ALL AVAILABLE REMEDIES UNDER THE ADEA . . .  7

II. THE FACTUAL BASIS SUPPORTING THE COURT’S FINDING 
THAT MDHC WOULD HAVE TERMINATED PLAINTIFF IS
SUFFICIENT TO SUPPORT THE SUMMARY JU D G M E N T ..............................17

III. THE EVIDENCE PRODUCED IN SUPPORT OF DEFENDANT’S 
MOTION FOR SUMMARY JUDGMENT IS SUFFICIENT TO 
ESTABLISH THAT MDHC WOULD HAVE TERMINATED 
PLAINTIFF FOR MISCONDUCT UNDER EITHER THE 
PREPONDERANCE OR CLEAR AND CONVINCING STANDARD
OF P R O O F ...............................................................................................................  . 21

IV. PLAINTIFF’S CONDUCT WAS NOT PROTECTED UNDER THE
ADEA AS A MATTER OF L A W ......................................................................  . 24

V. THE PLAINTIFF’S STATE LAW CLAIMS WERE PROPERLY
D IS M IS S E D ...................................    27

A. THE ACRA CLAIM WAS PROPERLY DISM ISSED....................................27

B. THE WRONGFUL DISCHARGE CLAIM WAS PROPERLY
D IS M IS S E D ....................................................................................................  27

l



c. THE BREACH OF CONTRACT CLAIM WAS PROPERLY 
D IS M IS S E D ....................... ..... .................................................... 28

C O N C L U S IO N ................................................................................................................................. 29

STATEMENT OF RELATED CASES .......................................................................................... 30

CERTIFICATE OF S E R V IC E ..........................................................   31

l i



TABLE OF AUTHORITIES

Alaniz v. California Processors, Inc.,
785 F . 2d 1412, 1416 (9th Cir. 1986)............ 9

Albermarle Paper Co. v. Moody, 422 U.S. 405, 418,
95 S.Ct. 2362, 45 L.Ed.2d 280, 297 (1975).....  8,9

Anastasio v. Sphering Corn., 838 F.2d 701, 709
(3rd Cir. 1988).................................  8

Anderson v. Liberty Lobby, Inc.. 477 U.S. 242,
106 S.Ct 2505, 91 L.Ed.2d 202 (1986)........... 23

Arizona Civil Rights Division v. Olson.
132 Ariz. 20, 643 P.2d 723 (App. 1982)......... 27

Benson v. Ouanex Corn., 58 FEP Cases 743
(D.C. E.Mich. 1992)...................    13

Blum v. Witco Chemical Co.. 829 F.2d 367, 373
(3rd Cir. 1987).................................  8

Bonqer v. American Water Works. 789 F. Supp 1102
(D. Colo. 1992)............................... . . 13

Bouman v. Block. 940 F.2d 1211, 1234 (9th Cir. 1991).. 9
Brennan v. Ace Hardware Corporation, 495 F.2d 368,

376 (8th c i r .  1974).............................  8
Broomfield v. Lundell. 159 Ariz. 349, 767 P.2d 697

(App. 1988)...................................... 27

Bucholz v. Symons Mfq. Co.. 445 F.Supp. 706
(E.D. Wis. 1978)................................  17

CASES PAGE(S)

iii



TABLE OF AUTHORITIES (cont'd)
CASES (cont'd) PAGE f S)
Cancellier v. Federated Dept. Stores.

672 F . 2d 1312, 1319 (9th Cir. 1982)............. 8
Castle v. Sangamo Weston, Inc.. 837 F.2d 1550, 1561

(11th Cir. 1988)................................  8
Churchman v. Pinkerton's. Inc.. 756 F.Supp. 515

(D.Kan. 1991)............................... . 13,21
Civil Rights Division v. Superior Court.

146 Ariz. 419, 706 P.2d 745 (App. 1985).......  27
DeVoe v. MediDvn, Inc.. 782 F.Supp. 546

(D. Kan. 1992)..................................  13
Eddleman v. Switchcraft, Inc.. 927 F.2d 316

(7th Cir. 1991).................................  16,17
E.E.O.C. v. Crown Zellerbach Corp.. 720 F.2d 1008

(9th Cir. 1983).... ................. ..........  24,25
EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539

(9th Cir. 1987)....... . ........................  16
Fadhl v. City and County of San Francisco.

741 F . 2d 1163 (9th Cir. 1984)..................  18,19
George v. Meyers, No. 91-2308-0, WL 97777

(D. Kan. April 24, 1992)........................ 13
Gibson v. Mohawk Rubber Co.. 695 F.2d 1093, 1097

(8th Cir. 1982).................... ............  8
Goldstein v. Manhattan Industries. Inc., 8

758 F . 2d 1435, 1448 (11th Cir. 1985)........... 8
Graefenhain v. Pabst Brewing Co.. 870 F.2d 1198,

1212 (7th Cir. 1989)............................ 8
Grant v. Hazelett Strip-Casting Corp.. 880 F.2d 1564

(2nd Cir. 1989)................... .............. 25
Guillorv-Wuerz v. Brady, 58 FEP Cases 1264

(D.Colo. 1992)..................................  7
Hagelthorn v. Kennecott Corp.. 710 F.2d 76

(2nd Cir. 1983).................................  16

xv



TABLE OF AUTHORITIES (cont'd)
CASES (cont'd) PAGEfS)
Hampton v. Sandy Cowen Agency, Inc., 154 Ariz. 14,

739 P . 2d 1331 (Ariz. App. 1987)................  28,29
Hansard v. Pepsi-Cola Metropolitan Bottling Co.,

865 F .2d 1461, 1469 (5th Cir. 1989),
cert, denied. 493 U.S. 842, 110 S.Ct. 129.....  8

Harris v. Amoco Prod. Co., 768 F.2d 669
(5th Cir. 1985)................................. 16

Hedrick v. Hercules. Inc.. 658 F.2d 1088, 1095
(5th Cir. 1981) .... ............................ 8

Hensley v. Eckerhart. 461 U.S. 424, 103 S.Ct 1933,
76 L. Ed. 2d 40 (1983)........................... 17

Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982).......    16

Higdon v. Evergreen Intern. Airlines, Inc.,
138 Ariz. 163, 673 P.2d 907 (1983), 
vacated on other grounds, 149 Ariz. 452,
719 P . 2d 1068...................................  27

Hochstadt v. Worcester Foundation for Experimental
Biology. 545 F.2d 222 (1st Cir. 1976)........ . 24

Hung Ping Wang v. Hoffman, 694 F.2d 1146
(9th Cir. 1982)................................  18

Hybert v. Hearst Corp., 900 F.2d 1050, 1056
(7th Cir. 1990)................................  8

Jefferies v. Harris Ctv. Community Action Ass'n.
615 F . 2d 1025 (5th Cir. 1980)..................  25,26

Jimenez-Fuentez v. Torres Gaztambide, 807 F.2d 230
(1st Cir. 1986)................................  13

Johnson v. Honeywell Information Systems. Inc.,
955 F . 2d 409 (6th Cir. 1992).... ............... 13,21

28,29
Leftwich v. Harris-Stove State College,

702 F . 2d 686, 693 (8th Cir. 1983)............. 8

v



TABLE OF AUTHORITIES (cont'd)
CASES (cont'd) PAGE(S)
Lillev v. BTM Coro., 958 F.2d 746 (6th Cir. 1992)....  17
LULAC v. City of Salinas Fire Dept.. 654 F.2d 557

(9th Cir. 1981)................................  18
Marotta v. Userv. 629 F.2d 615 (9th Cir. 1980).......  18
Mathis v. Boeing Military Airplane Co.,

719 F.Supp 991 (D. Kan. 1989)...................  13
McKennon v. Nashville Banner Publishing Co..

___ F.Supp.___, 59 FEP Cases 60 (M.D. Tenn.
June 3 , 1992)...... ........................ . 13

Milliqan-Jensen v. Michigan Technological University.
1992 U.S. App. LEXIS 22236 (6th Cir.
September 17, 1992)...... ........... ..........  12

Morgan v. Servicemaster Co., Ltd. Partnership.
57 FEP Cases 1423 (N.D. 111. 1992)....... ..... 7

Mt. Healthy City Board of Education v. Doyle,
429 U.S. 274, 97 S .Ct 568,
50 L. Ed 2d 471 (1977)........................... 9,10

Muntin v. State of Calif. Parks and Rec. Dept..
738 F . 2d 1054 (9th Cir. 1984)........ .........  18

Nantv v. Barrows. 660 F.2d 1327 (9th Cir. 1981)......  18
O'Day v. McDonnell Douglas Helicopter Company,

784 F.SUPP. 1484 fD.Ariz. 1992)................  3,22
29

O'Driscoll v. Hercules. Inc., 745 F.Supp. 656
(D.Utah 1990)........ ..........................  13,21

28
Poller v. Columbia Broadcasting Co.. 368 U.S. 464,

82 S.Ct 486, 7 L.Ed.2d 458 (1962)..............  24
Powers v, Chicago Transit Authority. 890 F.2d 1355

(7th Cir. 1989).................................  13
Price Waterhouse v. Hopkins, 490 U.S. 228,

109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)........  10,11
18,19

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TABLE OF AUTHORITIES (cont'd)
CASES (cont'd) PAGE(S)
Rosser v. Laborers' International Union of North

America, 616 F.2d 221 (5th Cir.) cert, denied, 
449 U.S. 886 (1980) .............................. 24

Silver v. KCA, Inc., 586 F.2d 138
(9th Cir. 1978)................................. 25

Smallwood v. United Airlines, Inc.,
728 F .2d 614, 618 (4th Cir. 1984).............. 11,12

13,20
Spagnuolo v. Whirlpool Coro.. 717 F.2d 114. 118

(4th Cir. 1983)................................. 8
Summers v. State Farm Mutual Auto Insurance Co.,

864 F . 2d 700 (10th Cir. 1988).................. 10,11 
13,15 
28

Texas Teachers v. Garland School Dist..
489 U.S. 782, 109 S .Ct 1486, 103 L.Ed.2d 866 
(1989)................. ......................... 17

Trans World Airlines, Inc. v. Thurston,
469 U.S. Ill, 105 S.Ct 613, 83 L.Ed.2d 523 
(1985)................... ....................... 17

Verbraeken v. Westinghouse Elec. Coro.,
885 F .2d 1041, 1052 (11th Cir. 1989)........... 8,16

Wallace v. Dunn Construction Co., 968 F.2d 1174
(11th Cir. 1992)................................ 12,15

16,20
Washington v. Lake Countv, 111., 969 F.2d 250

(7th Cir. 1992)................................. 13,15 
20,21 
23,

Wehr v. Burroughs Corp., 619 F.2d 276 (3rd Cir. 1980).,. 17

V l l



TABLE OF AUTHORITIES

ADEA 29 U.S.C. § 621.................................... 1,2
ADEA 29 U.S.C. § 623 (d)................................  24
Ariz. Rev. Stat. Ann. § 12-341.01(A)................... 1
Ariz. Rev. Stat. Ann. § 41-1481........................ 1
Ariz. Rev. Stat.42-1461................................  1,2
Rule 56(e), Fed. R. Civ. P ........................... . 22
28 U.S.C. § 2201....................................... 16
29 U.S.C. § 201......................................... 7
29 U.S.C. § 626(b), applying

29 U.S.C. § 216 (b).............................  16
TITLE VII 42 U.S.C. § 2 000e-5 (g) (2 ) (B)................  11

RESTATEMENTS
Restatement (2d) of Contracts § 385...................  28

STATUTES AND RULES PAGE(S)

1413n

v i i i



STATEMENT OF JURISDICTION

Defendant/Appellee McDonnell Douglas Helicopter Company (hereinafter "Defendant" 

or "McDonnell Douglas" or "MDHC") does not dispute Plaintiff/Appellant’s (hereinafter 

"Plaintiff") Statement of Jurisdiction.

ATTORNEYS’ FEES

Defendant will seek attorneys’ fees for this appeal pursuant to Ariz. Rev. Stat. Ann. 

§ 12-341.01(A) and Ariz. Rev. Stat. Ann. § 41-1481.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether the district court could grant summary judgment dismissing the Plaintiff’s 

age discrimination claims (pursuant to the federal Age Discrimination in Employment Act 

("ADEA"), the Arizona Civil Rights Act ("ACRA"), A.R.S. 42-1461, et seq.), his state law 

wrongful discharge claim, and his breach of contract claim based upon its determination that 

Plaintiff had engaged in misconduct that would have resulted in his dismissal even in the absence 

of alleged unlawful discrimination on the part of MDHC.

2. Whether the district court applied the appropriate evidentiary standard in granting 

Defendant’s motion for summary judgment.

3. Whether there is a genuine issue of material fact as to whether Plaintiff would have 

been terminated had Defendant known of Plaintiffs misconduct before his layoff.



STATEMENT OF THE CASE

This case arises out of a complaint filed by Plaintiff in the Maricopa County Superior 

Court for the State of Arizona alleging four causes of action: (1) Discrimination in Promotion 

(pursuant to the ADEA, 29 U.S.C. § 621, et seq. and the ACRA, A.R.S. 42-1461, et seq.); (2) 

Discrimination in Discharge From Employment (also pursuant to the ADEA and the ACRA); 

(3) Wrongful Discharge (alleging that Plaintiffs discharge violated Arizona public policy against 

age discrimination); and (4) Breach of Contract (alleging that Plaintiffs layoff violated his 

employment contract with MDHC). The case was timely removed to the Federal District Court 

for the District of Arizona. The Plaintiff appeals from an order of the district court granting the 

Defendant’s motion for summary judgment on all counts based upon the "after-acquired 

evidence" doctrine.

Plaintiff filed his initial charge with the Equal Employment Opportunity Commission on 

July 10, 1990, alleging that he was denied a promotion on June 8, 1990 because of his age and 

retaliation. Plaintiff filed a second charge of discrimination on October 26, 1990, alleging that 

he was laid off from his employment with Defendant on July 20, 1990, because of age and 

retaliation. Plaintiff withdrew his charges and received a Notice of Right to Sue from the 

EEOC. Thereafter, Plaintiff filed his complaint on April 19, 1991, which Defendant removed 

to the district court on May 15, 1991. The district court asserted pendant jurisdiction over 

Plaintiffs state law claims.

Counsel for Defendant took Plaintiffs deposition on August 1 and 2, 1991, at which time 

Plaintiff admitted to misappropriating, copying and disseminating sensitive personnel documents 

belonging to his supervisor. On September 24, 1991, Defendant filed its motion for summary

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judgment on all four counts of the complaint, alleging that had it known of Plaintiffs admitted 

misconduct at the time, Defendant would have immediately terminated Plaintiffs employment. 

The district court granted summary judgment on the basis of this after-acquired evidence 

doctrine and this appeal followed. See O ’Day v. McDonnell Douglas Helicopter Company, 784 

F.Supp. 1484 (D.Ariz. 1992).

STATEMENT OF THE FACTS

Plaintiff was employed by MDHC at its Mesa, Arizona facility from December 12, 1983, 

until his layoff on Friday, July 20, 1990. He was 46 years old at the time of his layoff (CR 14- 

SOF at 1 l ) .1

Plaintiff filed charges of age discrimination with the Equal Employment Opportunity 

Commission on or about July 10, 1990, and again on or about October 26, 1990 (CR 14-SOF 

at 5 2). The first charge alleged that on June 8, 1990, MDHC failed to promote Plaintiff to a 

higher level position and that said failure to promote was motivated by age discrimination and 

in retaliation for complaints Plaintiff allegedly had made to management about age discrimination 

in 1989 (CR 14-SOF at 1 3). The second charge alleges that Plaintiffs selection for layoff on 

July 20, 1990 was motivated by age discrimination and retaliation (CR 14-SOF at 1 4). Before 

the EEOC could issue any findings, Plaintiff requested that the EEOC terminate its investigation, 

which it did on May 9, 1991, prior to Plaintiff filing the Complaint (CR 14-SOF at 1 5).

In his deposition, Plaintiff admitted that on the evening of June 8, 1990 (the day he 

allegedly was denied a promotion), he returned to the Defendant’s Mesa facility after his regular

1 For simplicity, Defendant will use the same designation system as used in the Plaintiff s 
Opening Brief, unless otherwise stated.

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shift had ended and surreptitiously accessed his manager’s desk drawer and removed a file 

marked "personal/sensitive" or "private/sensitive." Plaintiff did not have permission to enter 

his manager’s desk or to remove, review or copy any documents or files contained therein. 

Plaintiff read and copied (on a Company photocopier) portions of this file and then returned the 

file to his manager’s desk drawer. Plaintiff then removed the copies he had made from 

Company premises and used certain of the documents as exhibits to two witness depositions 

taken by his attorney during the litigation (CR 14-SOF at 1 8).

Plaintiff never advised management about his removal of private/sensitive files from his 

manager’s desk. However, Plaintiff later told a co-worker that some of the documents contained 

in the file appeared to place the co-worker low on a "totem" list of employees within Plaintiffs 

department, thereby making him a likely candidate for layoff (CR 14-SOF at ^ 9).

MDHC never intended "totem" information to be divulged to its employees other than 

management and human resources personnel involved in the process of selecting employees for 

layoff. The disclosure of layoff related information would have been damaging to employee 

relations and morale and would have made an already difficult situation even worse.2 Plaintiff 

had never participated in, nor had he ever taken part in any of MDHC’s layoff selection 

procedures. He had no authority whatsoever to handle, review or disseminate any layoff 

selection information (CR 14-SOF at 1 10).3

2 MDHC underwent three separate company-wide layoffs in 1990: February, July, and 
September (CR 14-SOF at 1 11).

3 Plaintiff seeks to minimize the seriousness of his conduct by citing to his former 
supervisor’s deposition testimony regarding the handling and disposal of Company personnel and 
layoff-related documents. What Plaintiff fails to point out is that Plaintiffs supervisor did not 
publish such documents to his employees, and when he disposed of any, he duly deposited them

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Plaintiffs purported reason for originally entering his supervisor’s desk drawer on June 

8, 1990, was to review his personnel file. However, he became so enamored by the sight of 

the private/sensitive file that Plaintiff "forgot" about his personnel file. His proffered reason 

for smuggling private/sensitive documents out of his manager’s desk drawer (and ultimately out 

of the Company), was because he believed he had an age discrimination claim against the 

Company (CR 14-SOF at 1 12).

On or about June 15, 1990, Plaintiff again returned to the plant after work and 

surreptitiously accessed his manager’s desk drawer, only this time Plaintiff removed and copied 

his entire personnel file. Once again, Plaintiff failed to obtain permission to engage in any of 

these activities from any member of MDHC management (CR 14-SOF at 1 13).

Plaintiffs conduct on June 8, 1990, as well as June 15, 1990, constituted direct 

infractions of Defendant’s "Group I" rules. These infractions are deemed "extremely serious 

and will normally result in discharge...." Specifically, Plaintiff violated the following rules:

3. Deliberate or negligent destruction, damage or misuse of 
Company property or property of others.

4. Theft or unauthorized removal from  premises o f  Company 
property or property of others.

(Emphasis added) (CR 14-SOF at f  14).

Although, Defendant was unaware of Plaintiffs misconduct at the time of his layoff on 

July 20, 1990, MDHC would have terminated Plaintiffs employment immediately had it known 

of the infractions prior to the layoff (Olinda Willis Affidavit, CR 14-Exhibit 6). Indeed, since

in a "mailbox" type bin which was designated for sensitive documents to be shredded (CR 17- 
Edwards at pp. 177-181).

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discovering the above-described misconduct, MDHC converted Plaintiffs "layoff status to 

"terminated" due to the seriousness of his misconduct (CR 14-SOF at 1 15).

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ARGUMENTS

I. THE AFTER-ACQUIRED EVIDENCE DOCTRINE PRECLUDES 
RECOVERY OF ALL AVAILABLE REMEDIES UNDER THE 
ADEA.

(slpl2vsb4101T Neither the Plaintiff nor amicus EEOC dispute that after-acquired evidence can be used

to limit the remedies available to a plaintiff in a discrimination action under the ADEA. Rather,

the central issue in this case is whether a district court has the authority to apply the after-

acquired evidence doctrine so broadly as to preclude recovery o f  all available remedies permitted

under the ADEA. For the reasons discussed below, after-acquired evidence can and should be

applied broadly in cases such as this one. Thus, the district court did not abuse its discretion

in dismissing Plaintiffs entire action pursuant to the after-acquired evidence doctrine.

Unlike Title VII, for which Congress created its own remedial scheme, the ADEA

borrows its remedial structure from the Fair Labor Standards Act (''FLSA"), 29 U.S.C. § 201,

et seq. Section 216(b) of the FLSA states in pertinent part:

In any action brought to enforce this chapter the court shall have jurisdiction to 
grant such legal or equitable relief as may be appropriate to effectuate the 
purposes of this chapter, including without limitation judgments compelling 
employment, reinstatement or promotion, or enforcing the liability for amounts 
deemed to be unpaid minimum wages or unpaid overtime compensation under this 
section.

Despite a remedial scheme statutorily distinct from that of Title VII, courts consistently have 

recognized the same underlying remedial purpose for both statutes.4 That purpose is "to make

4 Both Plaintiff and the EEOC point out that Congress expanded Title VII remedies under 
the 1991 Civil Rights Act. However, these amendments are not applicable to this case not only 
because the Act should not be applied retroactively, but more importantly, because the 1991 
amendments to Title VII do not affect or even address the ADEA. See Morgan v. Servicemaster 
Co., Ltd. Partnership, 57 FEP Cases 1423 (N.D. HI. 1992); Guillory-Wuerz v. Brady, 58 FEP 
Cases 1264 (D.Colo. 1992).

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persons whole for injuries suffered on account of unlawful employment discrimination." 

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280, 297 

(1975); See Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1052 (11th Cir. 1989); 

Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989), cert, 

denied, 493 U.S. 842, 110 S.Ct. 129; Graefenhain v. PabstBrewing Co., 870 F.2d 1198, 1212 

(7th Cir. 1989); Anastasio v. Sobering Corp., 838 F.2d 701, 709 (3rd Cir. 1988); Castle v. 

Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988); Blum v. Witco Chemical Co., 

829 F.2d 367, 373 (3rd Cir. 1987); Spagnuolo v. Whirlpool Corp., I l l  F.2d 114, 118 (4th Cir. 

1983); Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1097 (8th Cir. 1982).

A corollary to this "make whole" objective is the principle that a district court has broad 

discretion in selecting legal or equitable remedies so long as the relief granted is consistent with 

the purposes of the ADEA. See Verbraeken v. Westinghouse Elec. Corp., 881 F.2d at 1052; 

Hedrick v. Hercules, Inc., 658 F.2d 1088, 1095 (5th Cir. 1981); Brennan v. Ace Hardware 

Corporation, 495 F.2d 368, 376 (8th Cir. 1974). That remedy cannot be disturbed unless it is 

deemed an abuse of the court’s discretion. See Hybert v. Hearst Corp., 900 F.2d 1050, 1056 

(7th Cir. 1990); Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1448 (11th Cir. 1985); 

Leftwich v. Harris-Stowe State College, 702 F.2d 686, 693 (8th Cir. 1983); Cancellier v. 

Federated Dept. Stores, 672 F.2d 1312, 1319 (9th Cir. 1982).

The above-described principles were considered by the United States Supreme Court in 

its Albemarle Paper Co. v. Moody decision. Albemarle defined the scope of a trial court’s 

discretion to award or deny backpay under Title VII. The Supreme Court noted that backpay 

is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which

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the courts ’may’ invoke." (Emphasis added). 422 U.S. at 415, 45 L.Ed.2d at 295. However, 

the Court also emphasized:

Congress’ purpose in vesting a variety of "discretionary" powers in the courts 
was not to limit appellate review of trial courts, or to invite inconsistency and 
caprice, but rather to make possible the Mfashion[ing] [of] the most complete 
relief possible."

It follows that, given a finding of unlawful discrimination, backpay should 
be denied only for reasons which, if applied generally, would not frustrate the 
central statutory purposes of eradicating discrimination throughout the economy 
and making persons whole for injuries suffered through past discrimination, 
[footnote omitted] The courts of appeals must maintain a consistent and 
principled application of the backpay provision, consonant with the twin statutory 
objectives, while at the same time recognizing that the trial court will often have 
the keener appreciation of those facts and circumstances peculiar to particular 
cases.

422 U.S. at 421, 45 L.Ed.2d at 299. See Alaniz v. California Processors, Inc., 785 F.2d 1412, 

1416 (9th Cir. 1986). The Court further held "that if a district court does decline to award 

backpay, it [should] carefully articulate its reasons." Id. at footnote 14. See Bouman v. Block, 

940 F.2d 1211, 1234 (9th Cir. 1991).

Since its Albemarle decision, the Supreme Court has decided a number of cases involving 

"mixed motives" in which it determined that even where the employee could prove that his or 

her employer had engaged in unlawful discrimination, the employer could completely avoid 

liability for such discrimination.

In Mt. Healthy City Board o f Education v. Doyle, 429 U.S. 274, 97 S .C t5 6 8 ,5 0 L .E d  

2d 471 (1977), a case involving an alleged violation of the Fourteenth Amendment of the U.S. 

Constitution, the Court held that even if an employee’s exercise of constitutionally protected 

conduct was a "motivating factor" in his employer’s adverse employment action, the employer 

still may prove "by a preponderance of the evidence that it would have reached the same

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decision ... even in the absence of the protected conduct." 429 U.S. at 287, 50 L.Ed 2d at 484.

The Supreme Court applied this "mixed motive" analysis to Title VII cases in Price 

Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price 

Waterhouse, the Court "concluded that the plaintiff who shows that an impermissible motive 

played a motivating part in an adverse employment decision has thereby placed upon the 

defendant the burden to show that it would have made the same decision in the absence of the 

unlawful motive." 490 U.S. at 250, 104 L.Ed.2d at 287. The Court decided that in order to 

avoid liability, an employer must establish by a preponderance of the evidence that it would have 

made the same adverse employment decision even in the absence of an impermissible motive. 

490 U.S. at 252-254, 104 L.Ed.2d at 289-290.

The Mount Healthy and Price Waterhouse decisions demonstrate that the "make whole" 

purpose for remedies under anti-discrimination statutes such as the ADEA and Title VII can be 

offset by countervailing circumstances and purposes. Thus, in "mixed motive" cases, proof of 

an employer’s lawful reasons for an adverse employment action will deprive the plaintiff of any 

remedy for unlawful discrimination, despite uncontradicted proof that the employer harbored an 

unlawful motive for its adverse employment action.

The after-acquired evidence doctrine is simply a variant of the "mixed motive" test. The 

source of the after-acquired evidence doctrine used by the district court sub judice to support its 

summary judgment is the Tenth Circuit’s decision in Summers v. State Farm Mutual Auto 

Insurance Co., 864 F.2d 700 (10th Cir. 1988). Summers determined that the only significant 

difference between mixed motive cases and after-acquired evidence cases is one of causation. 

The court, citing to Mt. Healthy, acknowledged that in mixed motive cases, the employer

-10-



completely avoids Title VII and ADEA liability if it establishes that (1) a non-discriminatory 

"cause" was at least one of the reasons for its adverse employment decision and (2) absent the 

discriminatory cause, the employer still would have made the adverse employment decision.5 

In after-acquired evidence cases, Summers determined that the "cause" for the plaintiffs 

discharge could not have been the plaintiffs misconduct, since the employer did not learn of it 

until after the discharge. Therefore, Summers concluded that in such cases the employer is 

presumed "liable" for the discrimination, but that the plaintiff may be denied all available 

remedies under the applicable statute if the employer can establish that it would have made the 

same decision had it known of the employee’s misconduct.6

Plaintiffs and EEOC’s arguments amount to nothing more than an exploitation of this 

distinction between "liability" and "remedy." The deficiency in Plaintiffs and the EEOC’s 

reasoning, as well as that of cases which adopt a less-than-total denial of remedies approach, 

rests with the false premise that since the after-acquired evidence doctrine is remedy-driven, the 

court should sift through each available remedy allowed under the ADEA (or Title VII) and 

determine the appropriate balance between the plaintiffs and employer’s interests. While this

5 Under the 1991 amendments to Title VII, such complete avoidance of liability is no longer 
guaranteed in Tide VII cases. See 42 U.S.C. §2000e-5(g)(2)(B). However, since Congress did 
not see fit to amend the ADEA, the principles espoused in Price Waterhouse should still apply.

6 The Fourth Circuit in Smallwood v. United Air Lines, Inc., 728 F.2d 614, 618 (1984) 
reached essentially the same result, only in a case where the court had earlier ruled that the 
employer had engaged in discriminatory conduct: "Th[e] specific issue-one of violation-was 
decided by our decision in the first appeal in this case and is the law of the case. But that 
determination did not trigger anything more than a mere presumption of a right in the plaintiff 
to the remedy of employment and backpay, a presumption which was subject to being defeated 
by proof by the preponderance of the evidence on the part of the defendant that the plaintiff 
would not have been hired anyway if there had been no discrimination."

-11-



approach might make sense were one to extend the remedy-driven analysis to its logical extreme, 

one need only examine the result reached by the Eleventh Circuit in Wallace v. Dunn 

Construction Co., 968 F.2d 1174 (11th Cir. 1992) to realize the absurdity of this approach.

In Wallace, a two-member majority determined that the after-acquired evidence doctrine 

may be used to limit availability of certain remedies, such as reinstatement and front pay, but 

could only be used to limit backpay if the employer could establish that it would have discovered 

the employee’s misconduct prior to the end of the backpay period. The court then engaged in 

a tortured analysis regarding what additional remedies might or might not be available to the 

plaintiff in such cases. The court found that while injunctive relief was not available, 

declaratory relief was possible. The court also found that full liquidated damages would also 

be available in appropriate cases, even though backpay might be not be. As for attorneys’ fees, 

those might also be awardable to the plaintiff, but would be dependent upon whether the plaintiff 

"prevailed" and, if  so, to what extent. The Eleventh Circuit concluded that remedies under the 

after-acquired evidence doctrine should be decided on a case-by-case basis, thus leaving courts 

with the unenviable task of picking and choosing between remedies while balancing the 

"interests" of plaintiffs who have engaged in serious misconduct with those of employers guilty 

of discrimination.

Unlike Wallace, the majority of the courts that have applied the after-acquired evidence 

doctrine have chosen to avoid this piece-meal approach.7 Rather, they accept that having

7 See e .g ., Smallwood v. United Air Lines, Inc., 728 F.2d 614 (4th Cir. 1984) (relief denied 
in ADEA case where employer established it would not have hired plaintiff because of after- 
acquired evidence of plaintiffs preemployment misconduct); Milligan-Jensen v. Michigan 
Technological University, 1992 U.S. App. LEXIS 22236 (6th Cir. September 17, 1992)(Title 
VII claim dismissed due to after-acquired evidence that plaintiff committed resume fraud);

-12-



determined a plaintiffs serious misconduct, he or she has suffered no "injury" under Title VII 

or the ADEA. While Plaintiff and the EEOC find this reasoning repugnant to the purposes of 

these statutes, the result is really quite consistent with them. Thus, in mixed motive cases, 

plaintiffs who have established that they were the victims of unlawful discrimination are deemed 

to have suffered no injuries as a result of such conduct, provided the employer can establish that 

it had other lawful reasons for engaging in the questioned conduct. Although the approach is 

somewhat different, the outcome is the same under the after-acquired evidence doctrine. Having 

established a legitimate basis for its adverse employment decision, the employer avoids any 

damages because the plaintiff has suffered no "injuries." See e.g., Summers, 864 F.2d at 708.

Washington v. Lake County, 111., 969 F.2d 250 (7th Cir. 1992)(Title VII claim dismissed due 
to after-acquired evidence that plaintiff committed resume fraud); Johnson v. Honeywell 
Information Systems, Inc., 955 F.2d 409 (6th Cir. 1992)(Michigan Civil Rights claim dismissed 
due to after-acquired evidence that plaintiff committed resume fraud); McKennon v. Nashville
Banner Publishing C o .,__ _ F.Supp.__ , 59 FEP Cases 60 (M.D. Tenn. June 3, 1992)(ADEA
claim dismissed due to after-acquired evidence that plaintiff had copied and removed confidential 
materials without authorization); Bonger v. American Water Works, 789 F.Supp 1102 (D. Colo. 
1992) (Title VII claim dismissed due to after-acquired evidence that plaintiff committed resume 
fraud and because employee copied and removed confidential personnel information without 
authorization); Benson v. Quanex Corp., 58 FEP Cases 743 (D.C. E.Mich. 1992)(Title VII 
claim dismissed due to after-acquired evidence that plaintiff committed resume fraud); George 
v. Meyers, No. 91-2308-0, WL 97777 (D. Kan. April 24, 1992) (Title VII claim dismissed due 
to after-acquired evidence that plaintiff committed resume fraud; intentional fraud not necessary 
to establish defense); Churchman v. Pinkerton’s, Inc., 756F.Supp. 515 (D.Kan. 1991)(Title VII 
claim dismissed due to after-acquired evidence that plaintiff committed resume fraud); O ’Driscoll 
v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990)(Title VII, Utah civil rights statute, and state 
common law claims dismissed due to after-acquired evidence that plaintiff committed resume 
fraud); Mathis v. Boeing Military Airplane Co., 719 F.Supp 991 (D.Kan. 1989)(Title VII claim 
dismissed due to after-acquired evidence that plaintiff committed resume fraud); see also Powers 
v. Chicago Transit Authority, 890F.2d 1355, 1360 (7th Cir. 1989)(acknowledges after-acquired 
evidence principles espoused in Smallwood)', Jimenez-Fuentez v. Torres Gaztambide, 807 F.2d 
230, 233 (1st Cir. 1986) (acknowledges after-acquired evidence principles espoused in 
Smallwood)', DeVoe v. Medi-Dyn, Inc., 782 F.Supp. 546 (D. Kan. 1992)(accepts principles of 
Summers but declines to dismiss due to lack of proof that plaintifFs resume fraud deemed 
material).

-13-



The partial remedy approach advocated by Plaintiff and the EEOC suffers from other 

deficiencies. Both the Plaintiff and the EEOC contend that since McDonnell Douglas did not 

learn of P laintiffs misconduct until months after his layoff, he is entitled to backpay for the 

period up to the time MDHC discovered the misconduct. Plaintiff and the EEOC reason that 

Plaintiff would have remained employed up to that time but for his age discrimination claim, and 

therefore, his filing of an ADEA claim puts him in a worse position than if he had done nothing 

at all. This reasoning distorts one of the underlying premises for the after-acquired evidence 

doctrine. That premise presumes that an employer’s legitimate basis for terminating the plaintiff 

accrues at the moment the employee engages in the serious misconduct, not when the employer 

first learns of it. Therefore, such misconduct, ab initio, extinguishes the right to any remedies 

for harm the plaintiff suffers thereafter as a result of unlawful discrimination. Consequentiy, 

any argument that the plaintiff should accrue backpay until such time as the employer 

"discovers" the misconduct must fail.

The corollary argument that an employer reaps a "windfall" because, but for its unlawful 

conduct, it would not have discovered the after-acquired evidence, is equally deficient. Once 

again, in after-acquired evidence cases the legitimate basis for termination preexists the allegedly 

unlawful discrimination. As in the case at bar, the employer generally learns of the misconduct 

through the fortuity of the litigation process. While one might characterize the discovery of such 

misconduct as a "windfall" to the employer, to deny or limit the employer’s preexisting right 

to discipline the employee because the employee’s misconduct was not previously discovered 

rewards not only the misconduct but also the plaintiff s ability to conceal it from the employer.

The absurdity of the Plaintiffs and EEOC’s argument is highlighted in the example used

-14-



by the court in Summers v. State Farm Mutual Auto Insurance Co., supra:

The present case is akin to the hypothetical wherein a company doctor is fired 
because of his age, race, religion, and sex and the company in defending a civil 
rights action, thereafter discovers that the discharged employee was not a 
"doctor." In our view, the masquerading doctor would be entitled to no relief, 
and [the plaintiff] is in no better position.

864 F.2d at 704. Under the Plaintiff and EEOC’s reasoning, the "masquerading doctor" is 

entitled to backpay for as long after the termination as it took the employer to discover the 

plaintiffs fraud. The better reasoned approach, as implied by Summers, would find that the 

"doctor" was not a legitimate candidate for the position and, therefore, would not have been 

hired had the employer known of the misrepresentation. Consequently, the hypothetical plaintiff 

would have had no claim whatsoever to remedies for unlawful discrimination arising out of the 

ensuing employment.8

Absent any entitlement to substantive remedies such as backpay, front pay, and

8 In Washington v. Lake County, III., 969 F.2d 250 (7th Cir. 1992), the Seventh Circuit 
pointed out a distinction in "resume fraud" cases between situations where the employer "would 
not have hired" the applicant because of the fraud versus whether it "would have fired” the 
employee after discovering the fraud. The court noted that the former standard is more 
appropriate in failure to hire cases, while the latter is more appropriate in cases where the 
applicant is hired and the employer does not discover the fraud until later. The latter standard 
was deemed appropriate for post-hire cases because "an employer might by less willing to fire 
an employee if the misrepresentation is discovered after the employee has started the job and has 
proven himself to be capable." Examined more closely, however, this distinction is superficial, 
since in every after-acquired case, the ultimate question is whether the employer would have 
made the same adverse employment decision in the absence of the unlawful motivating factor. 
Whether the employer would have been less likely to terminate the employee for resume fraud 
after the employee had already worked for the company is a question to be considered by the 
trier of fact, assuming some factual dispute exists as to this issue. Indeed, if the passage of time 
and other intervening circumstances after the misconduct would have resulted in the employer 
not making the same adverse employment decision as it would have at the time of the event, then 
those facts would be relevant to the overall after-acquired evidence analysis. Cf. Wallace v. 
Dunn Const. Co., Inc., 968 F.2d at 1179, wherein the court accuses Summers of failing to 
acknowledge this lapse of time and events.

-15-



reinstatement, it follows that Plaintiff is not entitled to any other remedies such as declaratory 

or injunctive relief, liquidated damages and attorneys fees.

With respect to declaratory or injunctive relief, other than Plaintiffs demand for 

reinstatement (to which he is not entitled because of his misconduct), his complaint is silent with 

respect to any other form of injunctive or declaratory relief.9 Moreover, since Plaintiff s layoff 

status was amended to "terminated" because of his misconduct, he is not entitled to an injunction 

against further unlawful practices. See Wallace v. Dunn Construction Co., 968 F.2d at 1182; 

Henson v. City o f  Dundee, 682 F.2d 897, 905 (11th Cir. 1982). Additionally, since the EEOC 

is not a party to this litigation, it has no standing to argue that its right to pursue the "public 

interest" remains after termination of the individual’s private right of action. See EEOC  v. 

Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987).10

Plaintiff also is not entitled to any attorneys’ fees. As a general rule, a prevailing 

plaintiff in an ADEA action is entitled to an award of reasonable attorneys fees. 29 U.S.C. § 

626(b), applying 29 U.S.C § 216(b). See Eddleman v. Switchcraft, Inc., 927 F.2d 316, 317 (7th 

Cir. 1991); Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1051 (11th Cir. 1989); 

Hagelthom  v. Kennecott Corp., 710 F.2d 76, 86 (2nd Cir. 1983). In order to establish he 

prevailed, Plaintiff must establish that he has "succeeded on any significant issue in litigation

9 Plaintiffs complaint fails to state any claim for declaratory relief, nor has he ever 
requested such relief at any point before the district court. See 28 U.S.C. § 2201.

10 In Goodyear Aerospace, this court held that an employee who enters into a private 
settlement agreement with his employer to resolve his Title VII claims does not thereby moot 
the EEOC’s right to seek injunctive relief to protect employees as a class and to deter the 
employer from discrimination. See Harris v. Amoco Prod. Co., 768 F.2d 669, 682 (5th Cir. 
1985).

-16-



which achievefd] some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 

461 U.S. 424, 433, 103 S.Ct 1933, 76 L.Ed.2d 40 (1983), accord, Texas Teachers v. Garland 

School D ist., 489 U.S. 782, 789, 109 S.Ct 1486, 103 L.Ed.2d 866, 875 (1989).11 Applying this 

standard to the present case, since Plaintiff has not achieved any benefit sought in bringing his 

suit, he is not entitled to any attorneys’ fees.

Additionally, Plaintiff is not entitled to any liquidated (double) damages. Only prevailing 

plaintiffs in ADEA cases are entitled to double damages in cases of willful violations. See Trans 

World Airlines, Inc. v. Thurston, 469 U.S. I l l ,  125, 105 S.Ct 613, 83 L.Ed.2d 523, 535 

(1985). Plaintiff has not "prevailed" for purposes of assessing liquidated damages, since he is 

not entitled to recover any back wages under the ADEA. See e.g., Wehr v. Burroughs Corp. , 

619 F.2d 276, 278 (3rd Cir. 1980)("In a private action for damages under the ADEA, a plaintiff 

may initially recover lost wages. In addition, he may recover liquidated damages in an amount 

equal to the unpaid wages."); Buchholz v. Symons Mfg. Co., 445 F.Supp. 706, 713 (E.D. Wis. 

1978) (measure of liquidated damages is the sum of "amounts owing" to plaintiff as a result of 

defendant’s violation of the ADEA).

II. THE FACTUAL BASIS SUPPORTING THE COURT’S FINDING 
THAT MDHC WOULD HAVE TERMINATED PLAINTIFF IS 
SUFFICIENT TO SUPPORT THE SUMMARY JUDGMENT.

Plaintiff attacks the sufficiency of the evidence used to support the district court’s 

determination that MDHC would have terminated Plaintiff had it known of his misconduct.

11 Although the Supreme Court’s standard enunciated in Hensley and Garland apply 
specifically to Title VII fee awards pursuant to 42 U.S.C. § 1988, circuit courts have applied 
the same standard to ADEA fee awards. See Lilley v. BTM Corp., 958 F.2d 746, 755 (6th Cir. 
1992); Eddleman v. Switchcraft, Inc., 927 F.2d at 317.

-17-



At the outset, Defendant concurs that it bears the burden of proof to establish that it

would have terminated Plaintiff for his misconduct. Plaintiff and the EEOC, however, allege

that Defendant must meet the heightened "clear and convincing" standard, as opposed to the

typical "preponderance" standard applied in most civil cases. Both Plaintiff and EEOC cite a

number of cases from this circuit in support of this argument, each of which involved the

question of whether the employer would have refused to hire or promote the plaintiff even in

the absence of unlawful discrimination. See Muntin v. State o f  Calif. Parks and Rec. D ept., 738

F.2d 1054 (9th Cir. 1984); Nanty v. Barrows, 660 F.2d 1327 (9th Cir. 1981); Hung Ping Wang

v. Hoffman, 694 F.2d 1146 (9th Cir. 1982); LULAC  v. City o f  Salinas Fire D ept., 654 F.2d 557

(9th Cir. 1981). See also Fadhl v. City and County o f  San Francisco, 741 F.2d 1163 (9th Cir.

1984) (not cited by Plaintiff or EEOC but applied the same standard); Marotta v. Usery, 629

F.2d 615 (9th Cir. 1980) (not cited by Plaintiff or EEOC but applied the same standard).

The United States Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 109

S.Ct. 1775, 104 L.Ed.2d 268 effectively overruled each of these cases by holding that the more

appropriate evidentiary standard in such cases was the "preponderance" standard. As discussed

above, Price Waterhouse was a "mixed motive" case. Each of the above-cited Ninth Circuit

cases also were mixed motive cases. The Supreme Court in Price Waterhouse acknowledged

that the Ninth Circuit’s approach to such cases was unique among the circuits:

The Court of Appeals for the Ninth Circuit also requires clear and convincing 
proof, but it goes further by holding that a Title VII violation is made out as soon 
as the plaintiff shows that an impermissible motivation played a part in an 
employment decision-at which point the employer may avoid reinstatement and 
an award of backpay by proving that it would have made the same decision in the 
absence of the unlawful motive. See, e.g., Fadhl v. City and County o f  San 
Francisco, 741 F.2d 1163, 1165-1166 (9th Cir. 1984)(Kennedy, J.)("significant 
factor").

-18-



490 U.S. at 238, fat. 2, 104 L.Ed.2d at 280.

Price Waterhouse rejected this approach, along with several other variations developed 

by the circuits, and held that in cases where an employer is found to have relied in part on 

unlawful discrimination in making an adverse employment decision, it could nevertheless avoid 

liability by establishing by a preponderance o f the evidence, that it would have made the same 

decision absent the unlawful discrimination.12 490 U.S. at 258, 104 L.Ed.2d at 293. The Court 

declined to apply the more stringent "clear and convincing" evidentiary standard to such cases, 

finding that exceptions to the "preponderance" standard are uncommon and only rarely applied 

where the "action defended against seeks only conventional relief...." 490 U.S. at 253, 104 

L.Ed.2d at 290. The Court further noted that "this standard ordinarily serves as a shield rather 

than, as [plaintiff] seeks to use it, as a sword." Id.

The EEOC’s brief points out that Price Waterhouse, in dicta, distinguishes between the 

standard of proof to be applied where liability is at issue (preponderance), versus where liability 

has been determined and only the amount of the remedy is at issue (clear and convincing) 

(EEOC brief at p.21, fat. 8). The EEOC contends that since the "after-acquired" evidence 

doctrine is relief-based, the "clear and convincing" standard should survive Price Waterhouse.

The distinction advocated by the EEOC should not impact after-acquired evidence cases. 

The two types of cases (mixed motive vs. after-acquired) are simply too similar to justify a 

different evidentiary standard. By definition, in mixed motive cases the trier of fact would find

12 The Supreme Court characterized the employer’s avoidance as an "affirmative defense: 
the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to 
prevail, must prevail on another." 490 U.S. at 246, 104 L.Ed.2d at 285.

-19-



that the employer was motivated by an unlawful discriminatory motive.13 The employer may 

avoid liability in such cases only if it can assert and sustain an affirmative defense that it would 

have acted the same even if the unlawful discrimination were not in the picture. In after- 

acquired evidence cases, the trier of fact also finds (or the fact is assumed) that the employer’s 

adverse employment decision was motivated by an unlawful discriminatory motive. In order to 

prevail, the employer must affirmatively establish that it would have terminated the plaintiff (or 

not hired him) had it known of his misconduct. In both cases, the trier of fact must weigh 

hypothetical evidence of what "would have happened" had events unfolded differently. The only 

difference is that in the mixed motive case, the employer is aware of a lawful basis for the 

adverse employment action at the time it acts, while in the after-acquired evidence situation, the 

employer finds out after the fact.

This similarity between the two types of cases has prompted the Seventh Circuit recently 

to adopt the "preponderance" evidentiary standard in after-acquired evidence cases. See 

Washington v. Lake County, III., 969 F.2d 250, 255 (7th Cir. 1992). The Fourth Circuit also 

applied this standard in Smallwood v. United Air Lines, Inc., 728 F.2d 614, 616, fat.5 (4th Cir. 

1984). No other court has required the heightened standard advocated by Plaintiff and the 

EEOC.14 Most courts are satisfied with the requirement that an employer must establish that it

13 Where the trier of does not find such unlawful motive played a part in the employer’s 
conduct, the employer would prevail without having to establish separately that a lawful motive 
would have alone resulted in the same outcome.

14 Even the Eleventh Circuit, which in Wallace v. Dunn Construction Co., 968 F.2d 1174 
(11th Cir. 1992), limited the scope of after-acquired evidence in Title VII cases, held that the 
"preponderance" standard is the appropriate evidentiary standard in such cases. Id. at 1181, 
fat. 11.

-20-



would have terminated the employee had it known of the misconduct. This requirement is 

enough to "preventO an employer from combing an employee’s file after a discriminatory 

termination to discover minor, trivial or technical infractions...." O ’Driscoll v. Hercules, Inc., 

745 F.Supp. 656 (D.Utah 1990); See Johnson v. Honeywell Information Systems, Inc., 955 F.2d 

409, 414 (6th Cir. 1992); Washington v. Lake County, III., 969 F.2d at 255-256; Churchman 

v. Pinkerton’s, Inc., 756 F.Supp. 515 (D.Kan. 1991). None of these cases even suggest that 

this proof should be established by anything more than a preponderance of the evidence.

m . THE EVIDENCE PRODUCED IN SUPPORT OF DEFENDANT’S 
MOTION FOR SUMMARY JUDGMENT IS SUFFICIENT TO 
ESTABLISH THAT MDHC WOULD HAVE TERMINATED 
PLAINTIFF FOR MISCONDUCT UNDER EITHER THE 
PREPONDERANCE OR CLEAR AND CONVINCING STANDARD 
OF PROOF

Plaintiff challenges the district court’s finding that MDHC would have terminated 

Plaintiff had it known of his conduct on the evenings of June 8 and June 15, 1991, as well as 

his disclosure of sensitive personnel information to a co-employee. The main thrust of Plaintiff s 

argument is that a jury might conclude that the Company would not have terminated Plaintiff 

based upon the facts presented to the trial court.

MDHC presented unrefuted evidence that had MDHC known of Plaintiff s conduct, it 

would have terminated him based upon the rules cited above. Plaintiff suggests that this 

evidence was not enough to sustain the employer’s burden of proof because (1) MDHC did not 

establish that it had terminated others for similar infractions; (2) that the rules used to justify the 

termination were too vague; (3) the affidavit used to support MDHC s defense is conclusory, 

and (4) because Plaintiff had established evidence that MDHC had failed to discipline one other 

employee for a security infraction. None of these arguments have merit.

-21-



First, the contention that MDHC did not discipline another employee for violating 

security rules is pure fantasy. The contention arises out of an allegation made in Plaintiffs 

Separate Statement of Facts which he attached in support of his Response to Defendant’s Motion 

for Summary Judgment (see CR 17 SOF 4). That allegation states that one of Plaintiffs co­

workers, Greg Stoch, who did not have a security clearance to gain access to certain areas 

needed to perform his job, was accommodated by management when he was escorted by persons 

with the appropriate security clearance. Plaintiff then makes the following statement: "On 

occasions in which he violated security regulations, he was not terminated." Id. Plaintiffs 

references to the record in support of this statement simply fail to do so. The only record 

statement of alleged security violations by Mr. Stoch come from vague hearsay statements 

allegedly made by other co-workers to Plaintiff, which Plaintiff relates in his own deposition. 

These statements are inadmissible for the purpose of supporting a defense to summary judgment 

pursuant to Rule 56(e), Fed. R. Civ. P. because they are hearsay.

Even if the statements were admissible, they do not support Plaintiffs contention. There 

is nothing in the record to establish the nature of the alleged violations, what rules might have 

been violated as a result, or what MDHC would have done had it been aware of the violations. 

The district court correctly ruled that "[tjhere is no evidence that this type of violation is against 

MDHC policy, or that it would result in termination." 784 F.Supp. at 1469. At best, Plaintiff 

has made the proverbial comparison between apples and oranges.

As for Plaintiffs remaining arguments on the issue of sufficiency, MDHC has established 

enough for a jury, without more, to find that Plaintiff would have been terminated for his 

misconduct. MDHC presented uncontradicted evidence of its disciplinary rules and how those

-22-



rules would be interpreted and applied in a case with these facts. While an even stronger case 

could be made were MDHC to also cite examples of other employee terminations which resulted 

from similar rules infractions, it does not follow that an absence of such evidence should 

preclude summary judgment.15 Plaintiff contends that a trier of fact could draw contrary 

inferences from the uncontroverted evidence. However, the only basis offered by Plaintiff for 

such a conclusion is his unsupported assertion that the trier of fact could choose not to believe 

the proffered evidence.16

The trial court correctly determined that Plaintiff is required to establish some material 

factual dispute in order to avoid summary judgment. For example, had Plaintiff proffered 

evidence that the Company had treated others in similar circumstances differently than Plaintiff, 

the trier of fact might have had some legitimate basis for disbelieving the Defendant’s 

explanation.17 Absent such controverting proof, whether one applies a "preponderance" or "clear 

and convincing" standard, the trier of fact would have no proper basis to simply disbelieve the 

uncontroverted evidence. See Anderson v. Liberty Lobby, Inc., A l l  U.S. 242, 256, 106 S.Ct 

2505, 91 L.Ed.2d 202, 217 (1986).18

15 Indeed, in Washington v. Lake County, III., 969 F.2d 250 (7th Cir. 1992), the court held 
that once the employer establishes evidence that it would have terminated the plaintiff for his 
misconduct (resume fraud in this case), the burden shifts to the plaintiff to produce affirmative 
evidence that he would not have been fired if treated in a race-neutral fashion. Id. at 256-257.

16 Plaintiff also mentions that the rules cited as the basis for Plaintiffs termination are 
ambiguous. Not only are the rules perfectly clear, Defendant s undisputed interpretation of them 
eliminates any basis for a trier of fact to draw any contrary inferences.

17 Plaintiff certainly was no precluded from seeking such information through discovery.

18 In Anderson, the Court rejected the plaintiffs argument that it could defeat summary 
judgment by arguing that a jury could disbelieve the defendant s uncontroverted evidence.

-23-



IV. PLAINTIFF’S CONDUCT WAS NOT PROTECTED UNDER THE 
ADEA AS A MATTER OF LAW

Plaintiff contends that his actions were protected activity and could not be used as a basis 

to discharge him. Plaintiff asserts that he would not have violated MDHC rules had the 

Company not discriminated against him. Thus, Plaintiff characterizes his conduct as either 

"participation" activity or "opposition" activity under the ADEA and, therefore, "protected" 

within the meaning of the anti-retaliation section of the ADEA, 29 U.S.C. § 623(d).

While numerous federal courts have opined that "opposition" conduct is statutorily 

"protected," such protection is not absolute. See e .g ., E.E.O. C. v. Crown Zellerbach Corp, 720 

F.2d 1008, 1015 (9th Cir. 1983); Rosser v. Laborers’ International Union o f  North America, 

616 F.2d 221, 223 (5th Cir.), cert, denied, 449 U.S. 886 (1980); Hochstadt v. Worcester 

Foundation fo r  Experimental Biology, 545 F.2d 222, 234 (1st Cir. 1976). The Ninth Circuit has 

expressly stated that in order for a plaintiffs conduct to be protected, the means of opposition 

must be "reasonable in view of the employer’s interest in maintaining a harmonious and efficient

Respondents argue...that whatever may be true of the applicability of the "clear 
and convincing" standard at the summary judgment or directed verdict stage, the 
defendant should seldom if ever be granted summary judgment where his state of 
mind is at issue and the jury might disbelieve him or his witnesses as to this 
issue. They rely on Poller v. Columbia Broadcasting Co., 368 U.S. 464, 82 S.Ct 
486, 7 L.Ed.2d 458 (1962), for this proposition. We do not understand Poller, 
however, to hold that a plaintiff may defeat a defendant’s properly supported 
motion for summary judgment in a conspiracy or libel case, for example, without 
offering any concrete evidence from which a reasonable juror could return a 
verdict in his favor and by merely asserting that the jury might, and legally could, 
disbelieve the defendant’s denial of a conspiracy or of legal malice. The movant 
has the burden of showing that there is no genuine issue of fact, but the plaintiff 
is not thereby relieved of his own burden of producing in turn evidence that 
would support a jury verdict.

Id. at 256, 91 L.Ed.2d at 217.

-24-



operation." Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978), quoted in Crown 

Zellerbach, 720 F.2d at 1015, footnote 4.

Plaintiff contends that his "participation" or "opposition" conduct was reasonable because

he gathered documents he believed related to his age discrimination charge before those

documents were shredded.19 Plaintiff cites Jefferies v. Harris Cty. Community Action A ss’n, 615

F.2d 1025, 1036 (5th Cir. 1980) in support of his position.20 In Jefferies, the plaintiff xeroxed

and disseminated confidential personnel documents as part of her opposition to her employer’s

alleged discriminatory conduct. The employer ("HCCAA") terminated Jefferies because her

conduct was deemed "prejudicial" to the interests of HCCAA. The Fifth Circuit agreed with

the employer, noting that the employee’s "conduct [must] be reasonable in light of the

circumstances." 615 F.2d at 1036. The court further concluded that "HCCAA clearly had a

legitimate and substantial interest in keeping its personnel records and agency documents

confidential." Id. Plaintiff relies on dictum contained in Jefferies in which the court states:

Jefferies has not shown any need for surreptitious copying and dissemination of 
documents. She has not established that HCCAA would have destroyed the 
documents had she not taken action to preserve them, and has not made a

19 Although Plaintiff implies that the documents in question were somehow improperly 
destroyed by MDHC, there is absolutely no basis in the record to support such a scurrilous 
implication. Indeed, the record establishes that the documents copied by Plaintiff were shredded 
in the normal course of MDHC’s use and control of such documents. (see CR-17 Edwards 
Deposition at pp. 177-181).

20 Plaintiff also relies on Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564 (2nd Cir. 
1989), a case involving an plaintiff who was discharged in direct retaliation for his refusal to 
destroy a document he had generated and gotten his supervisor to sign in which the supervisor 
admits to age and sex discrimination. This case is inapposite inasmuch as Plaintiffs conduct 
in the case at bar involved a serious violation of existing Company rules. There was no 
assertion in Grant that the plaintiff had violated any company rule, policy, or practice by 
obtaining the statement or refusing to destroy it.

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colorable claim that she reasonably believed there was a need to act as she did.
(Emphasis added). Id.

Plaintiff asserts that the eventual destruction of the original documents in question 

justifies his conduct. This argument is defective in two significant ways.

First, as reflected by the court’s comments in Jefferies, the reasonableness of Plaintiffs 

conduct must be judged in light of both the circumstances and the Plaintiffs state of mind at the 

time Plaintiff engaged in the conduct. Contrary to the assertions in his brief, Plaintiff did not 

appropriate and copy the documents he found in Mr. Edward’s desk because he feared they 

would be destroyed. To the contrary, Plaintiff admitted under oath that he found the documents 

quite by accident while surreptitiously looking for his personnel file and copied them because 

he felt he could use them to support his charge (CR 14-SOF at 5 12). To now say that 

Plaintiffs conduct should be cloaked in a veil of statutory "protection" would condone such self- 

help "fishing expeditions," no matter how sinister the method or motive, as long as the result 

produced documents which might benefit the Plaintiff. Congress certainly could not have 

intended such an outcome when it enacted the ADEA.

Second, and perhaps more importantly, Plaintiffs conduct was not limited solely to 

penetrating his supervisor’s desk and surreptitiously copying sensitive documents. Plaintiff 

disseminated some of the sensitive layoff information he appropriated to at least one co­

employee, Joe Wise. He told Wise that based upon the information found in Edwards’ desk, 

Wise was a likely candidate for layoff. Plaintiff offers no excuse for this behavior, nor can any 

legitimate "protected” reason be inferred from it. Indeed, as explained at 1 7 of Olinda Willis’s 

affidavit (CR 14):

It is precisely because such layoff information can be very damaging to employee

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relations and morale that the Company does not share this information with any 
of its personnel, except management and human resources personnel who are 
directly involved in the layoff selection procedure. Such disclosures would make 
an already difficult situation even worse.

Disseminating sensitive layoff information to a coworker undermined M DHC’s legitimate 

interest in maintaining "a harmonious and efficient operation." Thus, Plaintiffs conduct was 

not protected as a matter of law.

V. THE PLAINTIFF’S STATE LAW CLAIMS WERE PROPERLY 
DISMISSED

A. THE ACRA CLAIM WAS PROPERLY DISMISSED

Plaintiffs argument that the state ACRA claim should not have been dismissed parrots 

his arguments relating to the federal ADEA claim. Plaintiff certainly does not deny that the 

court should apply the same evidentiary and substantive law standards to the ACRA as it applies 

to the ADEA. See e.g., Higdon v. Evergreen Intern. Airlines, Inc., 138 Ariz. 163, 673 P.2d 

907 (1983), vacated on other grounds, 149 Ariz. 452, 719 P.2d 1068; Broomfield v. Lundell, 

159 Ariz. 349, 767 P.2d 697 (App. 1988); Civil Rights Division v. Superior Court, 146 Ariz. 

419, 706 P.2d 745 (App. 1985); Arizona Civil Rights Division v. Olson, 132 Ariz. 20, fat. 2, 

643 P.2d 723 (App. 1982). Thus, Defendant relies on its arguments in support of dismissal of 

the ADEA claims as the basis for dismissal of the ACRA claims.

B. THE WRONGFUL DISCHARGE CLAIM WAS PROPERLY DISMISSED 

P laintiffs argument that his wrongful discharge claim should be dismissed because

compensatory and punitive damages are available under tort law is meritless. Once again, 

Defendant hereby relies upon its arguments supporting full dismissal of the ADEA claims in 

support of a denial of remedies to Plaintiff under any tort theory based upon age discrimination

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or retaliation, since there exists no policy reason for allowing remedies under a public policy

tort claim which would not otherwise be available under either the ADEA or the ACRA,

Indeed, this is the conclusion reached by the court in O ’Driscoll v. Hercules, Inc., 745 F.Supp.

656, 660-661 (D.Utah 1990), wherein the court stated:

Summers also provides a defense against the breach of contract and wrongful 
termination claims. Even if the plaintiff shows that Hercules breached its 
employment contract and terminated her wrongfully, this court believes she has 
no right to a remedy. It would distort the purpose of these causes of action to 
allow a plaintiff to recover from an employer against whom the plaintiff had 
committed misconduct such that, had the employer known of the misconduct, the 
employer would certainly have terminated the plaintiff.

Id.

C. THE BREACH OF CONTRACT CLAIM WAS PROPERLY DISMISSED

Finally, Plaintiff challenges the district court’s dismissal of the breach of contract claim. 

Plaintiffs contention that the district court misread Hampton v. Sandy Cowen Agency, Inc., 154 

Ariz. 14, 739 P.2d 1331 (Ariz. App. 1987) is meaningless. In Hampton, the plaintiff sued to 

enforce his employment contract and recover severance pay following his termination. Id. at 

15, 739 P.2d at 1332. Only after plaintiff filed suit did his employer learn for the first time that 

the plaintiff had made material misrepresentations in his resume. The employer sought to 

rescind its employment contract with the plaintiff on the theory that had the employer known of 

the misrepresentations, it would not have hired the plaintiff. The court of appeals agreed with 

this defense, citing the Restatement (2d) of Contracts § 385 as the basis for permitting the 

employer to avoid the contract. Id. at 15-16, 739 P.2d at 1332-33.21 For reasons not clear from

21 The court in Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 413 (6th 
Cir. 1992) reached a similar conclusion regarding the use of after-acquired evidence in wrongful 
discharges cases.

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the text of the case, the court remanded the case for trial on both the claim and the recision 

defense.

The district court below correctly interpreted Hampton. Instead of trying the recision 

issue, however, the court correctly determined that there is no factual basis for denying summary 

judgment on the recision defense. 784 F.Supp. at 1470. Plaintiff does not dispute that MDHC 

could avoid its "contract" with Plaintiff upon a showing of serious misconduct. Therefore, the 

district court properly dismissed the breach of contract claim.

CONCLUSION

For all of the foregoing reasons, the summary judgment should be affirmed.

RESPECTFULLY SUBMITTED this ffi^dav of September, 1992.

SNELL & WILMER

Tibor Nagy, Jr. /  (H  
1500 Citibank Tower 
One South Church Avenue 
Tucson, Arizona 85701

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STATEMENT O F RELATED CASES

MDHC is unaware of any related cases pending in this court.

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CERTIFICATE OF SERVICE

I hereby certify that two copies of the attached brief were mailed this 29th day of September,

1992, by United States Mail, to the following counsel of record and amici:

Francis G. Fanning, Esq.
Day, Kavanaugh & Blommel, P.C.
4025 South McClintock 
Suite 202
Tempe, Arizona 85282 

Julius L. Chambers
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 

Robert J. Gregory
Equal Employment Opportunity Commission 
1801 L Street, N .W ., Rm 7032

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