McKennon v. Nashville Banner Publishing Co. Respondent's Brief in Opposition

    No. 93-1543

In The

Ji^uprttm (Court of tlje ptmiefr Jltates

October Term, 1993 

CHRISTINE McKENNON,

Petitioner,

v.

NASHVILLE BANNER PUBLISHING CO.,

Respondent.

On Petition fo r  a Writ o f Certiorari to the United States Court 
o f Appeals fo r  the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

R. EDDIE WAYLAND 
Counsel o f Record 

M. KIM VANCE 
ELIZABETH B. MARNEY 
RACHEL W. SOKOLOWSKI 
KING & BALLOW 

Attorneys fo r  Respondent 
1200 Noel Place 
200 Fourth Avenue, North 
Nashville, Tennessee 37219 
(615)259-3456

5173
lutz
■“Appellate 

” §ervices, inc.
(800) 3 APPEAL • (800) 5 APPEAL • (800) BRIEF 21



QUESTION PRESENTED

Whether the courts properly denied Petitioner any remedy 
based on her admittedly serious misconduct, her concession that 
the doctrine of after-acquired evidence of wrongdoing applies to 
the facts of her case, and her inability to show any pretext.



TABLE OF CONTENTS

Question Presented ............................. ................................  i

Table of Contents ..................................    ii

Table of Citations ...........................................................   iii

Statement of the C a s e ..........................................................  1

A. The Proceedings B elo w .........................................  1

B. Counter Statement of the Facts ............................. 3

Summary of A rgum ent........................................................ 7

Reasons for Denying the Writ ...........................................  8

I. RELIEF WAS PROPERLY DENIED TO 
PETITIONER BECAUSE PETITIONER 
ADMITS BOTH SERIOUS WRONGDOING 
AND THE APPLICABILITY OF THE 
DOCTRINE.............................................................. 8

A. All Circuits That Have Considered The
Doctrine Have Adopted It...........................   9

B. The Doctrine Fully Applies To The
Undisputed Facts Of This Case........... 11

C. The Facts Of This Case Would Entitle
Petitioner To No Relief. .................................. 13

II

Page



Ill

Contents

Page

II. SUMMARY JUDGMENT WAS PROPER
BECAUSE PETITIONER SHOWED NO 
PRETEXT. .......................    18

III. PETITIONER RELIES ON INAPPLICABLE
LAW AND POLICY.............................     21

Conclusion .............................................     22

TABLE OF CITATIONS

Cases Cited:

ABF Freight System, Inc. v. NLRB, 114 S. Ct. 835 (1994)
........ ............................ .......................................... . . .1 5 ,1 6 ,1 7

Agborv. Mountain Fuel Supply Co., 810 F. Supp. 1247 (D.
Utah 1993) ......................... ...................... ......................  10

Anderson v. Liberty Lobby, Inc., A ll  U.S. 242 (1986) . . . .  19,20

Benson v. Quanex Corp., 58 Fair Empl. Prac. Cases (BNA)
743 (E.D. Mich. 1992) ............................. ......................  10

Bonger v. American Water Works, 789 F. Supp. 1102 (D.
Colo. 1992) ............ .......................................................  10

Celotex Corp. v. Catrett, A ll  U.S. 317 (1986) . . . . . . . . . .  19

Churchman v. Pinkerton’s, Inc., 756 F. Supp. 515 (D. Kan.
1991) ......................................... .......................... 10



IV

DeVoe v. Medi-dyn, Inc., 782 F. Supp. 546 (D. Kan. 1992)
.................................................................................................. 10

Dotson v. United States Postal Service, 977 F.2d 976 (6th
Cir. 1992), cert, denied, 113 S. Ct. 263 (1992) ............. 9

Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir.
1993) ..............................................................................  9

George v. Meyers, No. 91-2308-0,1992 U.S. Dist. LEXIS 
6419 (D. Kan. April 24,1992) ........................................ 10

Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir.
1992)................ .................................................................. 3,9,10

Kristufek v. Hussmann Food Service Co., 985 F.2d 364 (7th
Cir. 1993) ................................................................... 9,11,13,14

Landgrafv. USI Film Prods., 1994 U.S. LEXIS 3292 (April 
26,1994) ........................................................................  21

Malone v. Signalj Processing Technologies, Inc., 826 F.
Supp. 370 (D. Colo. 1993).............................................  10

Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314
(D.N.J. 1993)..................................................................  10

Mathis v. Boeing Military Airplane Co., 719 F. Supp. 991
(D. Kan. 1989)......................................    10

Mitushita Electrical Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ............  18,19,20

Contents

Page



V

Contents

Page

Milligan-Jensen v. Michigan Technological Univ., 975 
F.2d 302 (6th Cir. 1992), cert, granted, 113 S. Ct. 2991, 
cert, dismissed, 114 S.Ct. 22(1993) ........ .. .3 ,9,17,18,21

Moodie v. Federal Reserve Bank, 831 F. Supp. 333 (S.D.
N.Y.1993) ................... ................................................ .. 10

O ’Day v. McDonnell Douglas Helicopter Co., 784 F. Supp.
1466 (D. Ariz. 1992), appeal docketed, No. 92-15625 
(9thCir. 1992)  .......... ............................  10

O ’Driscoll v. Hercules, Inc., 12 F.3d 176 (10th Cir. 1994)

Pagliov. Chagrin Valley Hunt Club Corp., 1992U.S.App.
Lexis 15,399 (6th Cir. June 2 5 ,1 9 9 2 )........ ................ .. 9

Punahele v. United Air Lines, Inc., 756 F. Supp. 487 (D.
Colo. 1991) ............ ......................................................  10

Redd v. Fisher Controls, 814 F. Supp. 547 (W.D. Tex. 1992)

Reed v. AMAX Coal Co., 971 F.2d 1295 (7th Cir. 1992)
................................. ................ ...................................... 9,14,15

Rich v. Westland Printers, 62 Fair Empl. Prac. Cases
(BNA)379(D.Md. 1993) ................................... .. 10

Russell v. Microdyne Corp., 830 F. Supp. 305 (E.D. Va.
1993)  .......................... ........................ .. 10



Vi

Contents

Smith v. General Scanning, Inc., 876 F.2d 1315 (7th Cir.
1989) ............................................................................... 9

St. Mary’s Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993) . .18,19,20

Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700
(10th Cir. 1988)  ...................................3,9,13,14,21,22

Page

Sweeney v. U-Haul Co. o f Chicago, 55 Fair Empl. Prac.
Cases (BNA) 1257 (N.D. 111. 1991)...............................  10

Trentham v. K-Mart Corp., 806 F. Supp. 692 (E.D. Tenn.
1991) ....................    2

Wallace v. Dunn Constr. Co., Inc., 968 F.2d 1174 (11th Cir.
1992) ...................................................................9,11,14,15,21

Washington v. Lake County, III., 969 F.2d 250 (7th Cir.
1992) .....................................................   9,10,11,14

Statutes Cited:

29U.S.C. § 6 2 1 ...........................................................   2

Tenn. CodeAnn. §4-21-101...............................................  2

Section 107 of the Civil Rights Act of 1991 21,22



vu

Contents
Page

Other Authority Cited:

Policy Guidance on Recent Developments in Disparate 
Treatment Theory, N-915.063, EEOC Compl, Man. 
(BNA)N:2119 ..................................... ..........................  22



1

No. 93-1543 

In The

JSupmne (ttouri erf t\\t plmtefr
—  ♦ .......— ------------

October Term, 1993 

CHRISTINE McKENNON,

Petitioner,

v.

NASHVILLE BANNER PUBLISHING CO.,

Respondent.

On Petition for a Writ o f Certiorari to the United States Court o f 
Appeals for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE 

A. The Proceedings Below

On May 6, 1991, Petitioner filed this lawsuit in the United 
States District Court for the Middle District of Tennessee alleging 
that her discharge from employment with Respondent the



2

Nashville Banner Publishing Co. (“the Banner”)1 violated the Age 
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, 
and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21- 
101.2 (R. 1). After Petitioner’s responses to the Banner’s requests 
for documents and Petitioner’s deposition revealed that she had 
stolen proprietary and confidential documents from the Banner 
during her employment as a confidential secretary for the Banner’s 
Comptroller, the Banner moved for summary judgment. (R. 7-9). 
The grounds for the motion for summary judgment (“Motion”) 
were that Petitioner’s admission of theft left no genuine disputes of 
material fact. Specifically, the Motion posited that Petitioner’s 
admission that had the Banner known of the theft she could and 
would have been discharged and the undisputed testimony of four 
of the Banner’s principals precluded Petitioner from any relief 
under the doctrine of after-acquired evidence of wrongdoing (“the 
doctrine”). (R. 21-24).

Petitioner sought and was granted an extension of time to 
respond to the Banner’s Motion. (R. 10 & 12). Both before and 
during that time, Petitioner conducted discovery, taking the 
depositions of four of the Banner’s principals.3

1. The Banner is a closely held private corporation, with no parent or 
subsidiary company, in the business of publishing a daily newspaper known as 
the Nashville Banner.

2. Analysis of Plaintiff’s age discrimination claim under Tenn. Code Ann. 
§ 4-21-101 is the same as under the ADEA. Trentham v. K-Mart Corp., 806 F. 
Supp. 692 (E.D. Tenn. 1991).

3. Specifically, Petitioner deposed Irby C. Simpkins, Jr., President of the 
Banner and Publisher of the Nashville Banner; Edward F. Jones, Editor of the 
Nashville Banner; Imogene Stoneking, Comptroller of the Banner and 
Petitioner’s supervisor; and Elise D. McMillan, General Counsel and Executive 
Vice President of the Banner.



3

After these depositions, Petitioner opposed the Banner’s 
Motion by arguing that summary judgment should be denied 
because her wrongdoing was not serious enough to warrant 
termination. (R. 25). The district court granted the Banner’s 
Motion, finding that the undisputed facts revealed that the nature 
and materiality of Petitioner’s misconduct provided “adequate and 
just cause for her dismissal as a matter of law, even though her 
misconduct was unknown to the Banner at the time of her 
discharge.” App. 17a.

On appeal, the United States Court of Appeals for the Sixth 
Circuit affirmed, holding that, based on the facts of this case, the 
district court properly granted summary judgment. App. 2a. 
Specifically, the Sixth Circuit relied on Summers v. State Farm 
Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988), and two prior 
Sixth Circuit cases4 to hold that the doctrine applied to Petitioner’s 
misconduct during her employment. App. 4-8a. In addition, the 
Sixth Circuit rejected Petitioner’s argument that she was justified 
in having a “lever with which to resist” a possible discharge, App. 
8a, noting that adoption of this theory would justify an employee’s 
taking money from her employer to support herself in anticipation 
of unlawful discharge. App. 9a.

In her Petition for a Writ of Certiorari, Petitioner concedes the 
applicability of the doctrine but asks this Court to select the 
Eleventh Circuit’s approach to the remedies available under the 
doctrine rather than that taken by the Sixth Circuit. Petition at 11.

B. Counter Statement of the Facts

In reviewing the Motion, the district court viewed the facts 
in the light most favorable to Petitioner. However, the statement of

4. Johnson v. Honeywell Info. Sys. Inc., 955 F.2d 409 (6th Cir. 1992); 
Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir. 1992), 
cert, granted, 113S.Ct. 2991, cert, dismissed, 114S.Ct. 22(1993).



4

the facts in the Petition is so misleading that Petitioner has in effect 
attempted to recast the facts as developed by the record. Petitioner 
has omitted many material facts developed in the proceedings 
below and misstated other facts that are relevant to the disposition 
of the Petition. Accordingly, the Banner presents the facts as they 
appear in the record.5

Petitioner was an at-will employee who was one of nine 
employees laid off October 31,1990, as part of a reduction in force 
the Banner instituted to address financial concerns.6 (R. 2). From 
March, 1989, through October 31, 1990, Petitioner held the 
position of secretary to Imogene Stoneking, the Banner’s 
Comptroller.7 (R. 1). Petitioner’s duties in this position included 
maintaining personnel files, assisting in the preparation of the 
Banner’s annual budget, processing time sheets, and doing various 
other tasks assigned to her by Ms. Stoneking. (R. 1).

As secretary to the Comptroller, Petitioner had access to 
confidential documents and information, including payroll data, 
financial information, personnel files, and other confidential 
records. (R. 8). In her deposition, Petitioner admitted that she

5. It should be noted that Petitioner fails to cite to any record other than the 
district and appellate courts’ decisions.

6. In her statement of the facts, Petitioner concedes that she was aware of 
the Banner’s financial concerns, but she adds an incorrect gloss to her factual 
statement when she states that the Comptroller “began to suggest retirement,” 
implying that the question of Petitioner’s retirement came up more than once. In 
her deposition, Petitioner admitted that the Comptroller asked Petitioner about 
her retirement plans once, and only once. (R. 39).

7. Contrary to her statement in her Petition, Petitioner was not employed 
by the Nashville Banner Publishing Co. since May, 1951. Petitioner was 
employed by the corporate defendant in this case only since 1971. (See 
generally, R. 39).



5

understood that all of this information was confidential and 
proprietary business information. (R. 39). Petitioner also admitted 
that she understood that the Banner was relying upon her to 
safeguard the confidentiality of the business and proprietary 
information to which she had access as the Comptroller’s 
secretary. (R. 39). She further admitted knowing that she was to 
keep this information strictly confidential and that the failure to do 
so could and would result in termination. (R. 39).

Thus, despite holding a position of trust with the Banner and 
despite being fully aware of her obligation to maintain the 
confidentiality of the information to which she was privy, 
Petitioner admitted during her deposition that she surreptitiously 
photocopied and removed from the Banner’s premises several 
sensitive financial documents and personnel records.

Contrary to Petitioner’s implication in her Petition that the 
documents she copied and took home were nothing more than 
published “newspaper financial information,” Petition at 5 n. 2, the 
stolen documents contained financial data of the Banner, its 
officers, and others. Specifically, the Banner discovered during 
Petitioner’s deposition that, before she was terminated, Petitioner 
had copied the Nashville Banner Fiscal Period Payroll Ledger that 
set forth salaries and related information pertaining to the Banner’s 
owners, several management personnel, and certain administrative 
staff. (R. 39). She also copied the Nashville Banner Publishing 
Co.’s 1989 Profit and Loss Statement. (R. 39).

Petitioner admitted that in copying these documents she 
intentionally disobeyed the Comptroller’s specific instructions to 
shred them. (R. 39). Instead, she photocopied the documents and 
used them for her own purposes. (R. 39). Knowing full well the 
highly confidential nature of these documents and her duty to 
maintain their confidentiality, Petitioner removed them from the



6

Banner’s premises and shared the information with her husband.8 
(R. 39). Because Petitioner knew that she was not authorized to 
take and use these documents for her own purposes, she copied and 
removed them secretly, not telling the Comptroller or anyone else 
at the Banner that she had copied these documents or that she was 
removing them from the premises. (R. 39).

In addition to the documents she had been instructed to shred, 
Petitioner secretly copied and removed from the Banner’s 
premises several documents contained in the personnel file of a 
Banner manager. (R. 39). Among these documents was a 
confidential agreement entered into between the Banner and the 
manager and a series of documents relating to that agreement. (R. 
39). Petitioner admitted that she understood she was not authorized 
to copy any of these documents, much less remove them from the 
Banner’s premises and share the contents with anyone. (R. 39).

The first time the Banner became aware that Petitioner had 
secretly copied and removed confidential financial and personnel 
documents was during her deposition on December 18,1991.9 (R.

8. Petitioner divulged to her husband confidential and proprietary salary 
information concerning the following individuals: Irby Simpkins, President of 
the Banner and Publisher of the Nashville Banner; Brownlee Currey, Chairman 
of the Board of the Banner; Elise McMillan, the Banner’s General Counsel and 
Executive Vice-President for Administration; Imogene Stoneking, Comptroller; 
Edward F. Jones, Editor of the Nashville Banner; Jack Gunter, Director of 
Special Projects; and various secretaries. (R. 39).

Although Petitioner tries to understate the severity o f her misconduct, the 
Banner was forced to obtain a protective order in the district court in order to 
protect the proprietary and confidential information that Petitioner had put at the 
unfettered disposal o f herself and her husband. (R. 6).

9. During discovery, Petitioner produced confidential and proprietary 
documents belonging to the Banner. However, the Banner did not know when or 
how Petitioner obtained these documents until her deposition.



7

8). Petitioner testified that she took these documents without 
authorization from and without asking anyone at the Banner, that 
she had been instructed to shred two of the documents she copied, 
and that she understood that these actions could and would subject 
her to termination. (R. 39). In her deposition, she testified that the 
reason she copied and removed the documents was for her 
“insurance” and “protection.” App. 12a.10

As a result of the discovery of Petitioner’s misconduct, the 
Banner informed her by letter that her actions constituted 
deliberate misconduct involving breach of trust and confidentiality 
obligations essential to her position as a confidential secretary. (R. 
8). In this letter, in his Affidavit, and in his deposition, the Banner’s 
President stated that had the Banner been aware of Petitioner’s 
breach of trust and misconduct at the time that it occurred or at any 
time thereafter the Banner would have terminated her immediately. 
(R. 8; R. 29). Similarly, in affidavits and again in deposition 
testimony, every other member of the Banner’s management 
involved in Petitioner’s employment stated unequivocally under 
oath that they would have terminated or recommended termination 
of Petitioner. (R. 8). Even though Petitioner’s counsel deposed 
each of these managers, she is able to offer nothing to rebut their 
testimony. App. 17a.

SUMMARY OF ARGUMENT

This Court should not grant certiorari because the facts of this 
case would entitle Petitioner to no relief in any of the circuits that 
have applied the doctrine. Therefore, summary judgment was 
properly granted against Petitioner.

10. It was only in an affidavit filed three months after her deposition to 
resist the Banner’s Motion that Petitioner decided that her intent in taking the 
documents was to learn information about her job security concerns. (R. 28). The 
Banner’s objection to Petitioner’s effort to recast the facts by way o f a sham 
affidavit was mooted by the district court’s grant of the Motion.



8

All of the circuits that have considered the doctrine have 
applied it, and Petitioner concedes the applicability of the doctrine. 
Further, all of the circuits have recognized that the doctrine is to be 
applied on a case-by-case basis and that there is no absolute rule 
regarding the doctrine. Based on the facts of each case and on the 
employer’s proof, the circuits have applied the doctrine either to 
preclude all relief or to allow only limited relief. Therefore, 
contrary to Petitioner’s contention, the circuits are not 
“irreconcilably in conflict.” Close inspection of the cases reveals 
that the differences between the circuits result not in the 
application of the doctrine but from each set of facts presented.

In the present case, Petitioner disputes only the denial of back 
pay by the Sixth Circuit. However, based on a case-by-case review, 
the unique facts of this case would bar Petitioner from any relief, 
including back pay, because the undisputed facts established that 
she engaged in serious on-the-job misconduct and that this 
misconduct would have led to her termination if her employer had 
known about it while she was employed. Thus, based on the 
undisputed material facts of this case, Petitioner would have been 
denied relief under the approaches taken by all of the circuits that 
have addressed the doctrine.

Therefore, this case is not a proper vehicle for the Court to 
review the availability of back pay under the doctrine.

REASONS FOR DENYING THE WRIT

I.

RELIEF WAS PROPERLY DENIED TO PETITIONER 
BECAUSE PETITIONER ADMITS BOTH SERIOUS 
WRONGDOING AND THE APPLICABILITY OF THE 
DOCTRINE.

Petitioner misleads the Court when she inaccurately states



9

that this case presents the same issue as Milligan-Jensen v. 
Michigan Technological Univ., 975 F.2d 302 (6th Cir. 1992), and 
that the circuits are in irreconcilable conflict over the issue. All that 
Petitioner has done is to restate the question presented from 
Milligan-Jensen, ignoring the obvious differences that the two 
cases present. Based on the unique facts of the present case, any 
conflicts between the circuits dissolve, making Petitioner’s 
statement misleading and inaccurate.

A. All Circuits That Have Considered The Doctrine Have 
Adopted It.

Specific articulation of the doctrine arose in Summers v. State 
FarmMut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988). The Tenth 
Circuit in Summers reasoned that, even though the employee’s on- 
the-job misconduct was not the actual cause for the discharge, 
summary judgment for the employer was proper because the 
employee’s misconduct precluded any relief. Id. at 708. Since the 
Summers decision11, the Sixth12, Seventh13, and Eleventh Circuits14

11. In addition to the Summers case, the Tenth Circuit has applied the 
doctrine in two other cases: O ’Driscoll v. Hercules, Inc., 12 F.3d 176 (10th Cir. 
1994) and Faulkner v. SuperValu Stores, Inc., 3F.3d 1419 (10th Cir. 1993).

12. Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th 
Cir. 1992), cert, granted, 113 S. Ct. 2991, cert, dismissed, 114 S. Ct. 22 (1993); 
Paglio v. ChagrinValley Hunt Club Corp., 1992U.S.App. Lexis 15,399 (6th Cir. 
June 25, 1992); Dotson v. United States Postal Service, 977 F.2d 976 (6th Cir. 
1992), cert, denied, 113 S. Ct. 263 (1992); Johnson v. Honeywell Info. Sys., Inc., 
955 F.2d 409 (6th Cir. 1992).

13. Kristufekv. Hussmann Foodservice Co., 985 F.2d 364 (7th Cir. 1993); 
Washington v. Lake County, III., 969 F.2d 250 (7th Cir. 1992); Reed v. AMAX 
Coal Co., 971 F.2d 1295 (7th Cir. 1992); Smith v. General Scanning, Inc., 876 
F.2d 1315 (7th Cir. 1989).

14. Wallace v. Dunn Constr. Co., Inc., 968F.2d 1174 (11th Cir. 1992).



10

have recognized the applicability of the doctrine under certain 
circumstances. In addition, district courts in many circuits15 have 
applied the doctrine. Therefore, the circuits are not in 
irreconcilable conflict over the doctrine.

Further, all of the circuits have applied the doctrine with care 
to avoid having employers rummage through a discharged 
employee’s file and ferret out minor infractions to justify after-the- 
fact an otherwise discriminatory discharge. See, e.g., Johnson v. 
Honeywell Info. Sys. Inc., 955 F,2d 409, 414 (6th Cir. 1992); 
Washington v. Lake County, III., 969 F.2d 250, 255-56 (7th Cir. 
1992). The standard for the doctrine is high to avoid just such 
abuse. Thus, where — and only where — the employee’s 
wrongdoing is of the magnitude that there would be just and proper 
cause for termination and the evidence is undisputed that the 
employer would in fact have discharged the employee does the 
doctrine come into play.

15. The following is a representative, not exhaustive, list: Moodie v. 
Federal Reserve Bank, 831 F. Supp. 333 (S.D. N.Y. 1993); Massey v. Trump’s 
Castle Hotel & Casino, 828 F. Supp. 314 (D.N.J. 1993); Rich v. Westland 
Printers, 62 Fair Empl. Prac. Cases (BNA) 379 (D.Md. 1993); Russell v. 
Microdyne Corp., 830 F. Supp. 305 (E.D. Va. 1993); Agbor v. Mountain Fuel 
Supply Co., 810 F. Supp. 1247 (D. Utah 1993); Malone v. Signalj Processing 
Technologies, Inc., 826 F. Supp. 370 (D. Colo. 1993); O ’Day v. McDonnell 
Douglas Helicopter Co., 784 F. Supp. 1466 (D. Ariz. 1992), appeal docketed, 
No. 92-15625 (9th Cir. 1992); Benson v. Quanex Corp., 58 Fair Empl. Prac. 
Cases (BNA) 743 (E.D. Mich. 1992); Redd v. Fisher Controls, 814 F. Supp. 547 
(W.D. Tex. 1992);Bongerv. American Waterworks, 7 8 9 F. Supp. 1102 (D. Colo. 
1992); DeVoe v. Medi-dyn, Inc., 782 F. Supp. 546 (D. Kan. 1992); George v. 
Meyers, No. 91-2308-0,1992 U.S. Dist. LEXIS 6419 (D. Kan. April 24,1992); 
Sweeney v. U-Haul Co. of Chicago, 55 Fair Empl. Prac. Cases (BNA) 1257 (N.D. 
111. 1991); Churchman v. Pinkerton’s, Inc., 756 F.Supp. 515 (D. Kan. 1991); 
Punahele v. United Air Lines, Inc., 756 F. Supp. 487 (D. Colo. 1991); Mathis v. 
Boeing Military Airplane Co., 719F. Supp. 991 (D. Kan. 1989).



11

Those circuits that have adopted the doctrine have taken 
slightly different approaches to how an employee’s serious and 
material misconduct should affect his or her remedy. The Tenth and 
Sixth Circuits and the Seventh Circuit in Washington have agreed 
that serious misconduct should bar any remedy. The Eleventh 
Circuit and the Seventh Circuit in Kristufek v. Hussmann 
Foodservice Co., 985 F.2d 364 (7th Cir. 1993), have declined to cut 
off all prospect of back pay under the specific facts that those cases 
presented. Indeed, the Eleventh Circuit has stated unequivocally 
that the scope of the remedy is best determined on a case-by-case 
basis. Wallace v. Dunn Constr. Co., Inc., 968 F.2d 1174,1181 (11th 
Cir. 1992).

B. The Doctrine Fully Applies To The Undisputed Facts Of 
This Case.

All of the facts necessary to apply the doctrine are undisputed 
in the present case. Petitioner admitted that she secretly copied 
confidential and proprietary business information from the Banner 
while she was employed there. Petitioner then removed the 
documents from the Banner’s premises and shared the contents 
with her husband and attorney.

Petitioner admitted knowing that this information was to be 
kept strictly confidential and that the failure to do so could and 
would result in termination. She also admitted that she 
intentionally disobeyed specific instructions by her superior to 
shred some of the documents. Petitioner also testified under oath 
that she took confidential documents from a manager’s personnel 
files, including information about the manager’s salary and related 
matters, to use for her own benefit. Petitioner did not have 
permission to take any of these documents.

The district court found Petitioner’s actions to be both 
undisputed and the type of misconduct contemplated by the 
doctrine.



12

The Court does not hold that any or all 
misconduct during employment constitutes 
just cause for dismissal or serves as a complete 
defense to a wrongful discharge action. The 
Court concludes, however, that Mrs. 
McKennon’s misconduct, by virtue of its 
nature and materiality and when viewed in the 
context of her status as a confidential secretary, 
provides adequate and just cause for her 
dismissal as a matter of law, even though her 
misconduct was unknown to the Banner at the 
time of her discharge.

App. 16a-17 a.

In addition, the district court found that the undisputed 
evidence showed that the Banner fully met its burden of proving 
that Petitioner would have been terminated for her misconduct had 
the Banner known about it while she was still employed there. 
Under oath, the President and three top-level Banner managers all 
testified unequivocally that had the Banner been aware of 
Petitioner’s breach of confidentiality and misconduct at the time 
that it occurred, or at any time thereafter, the Banner would have 
terminated her immediately.16 The district court also found that 
Petitioner was unable to offer any evidence even tending to show 
that the Banner would have continued her employment had the 
Banner known of her misconduct before her termination. App. 17 a. 
Indeed, Petitioner admitted that she knew she could and would 
have been discharged had she breached her duty of confidentiality. 
(R. 39).

16. Contrary to the misleading impression in the Petition, the Banner’s 
proof that it would have fired Petitioner was not based “solely” on affidavits 
from the Banner’s principals. Petitioner’s counsel also took depositions of these 
principals.



13

The district court properly applied the summary judgment 
standard to the facts of this case and found that because there were 
no genuine issues of material fact the Banner was entitled to 
summary judgment as a matter of law.

C. The Facts Of This Case Would Entitle Petitioner To No 
Relief.

The facts of this case differ from those in the cases Petitioner 
cites.

Applying the facts of the instant case to the position taken by 
the Seventh Circuit in Kristufek would not change the result 
reached by the Sixth Circuit. The Seventh Circuit in Kristufek 
stated that an employee can recover back pay only where the after- 
acquired evidence involved a non-critical, non-fundamental job 
requirement and the employer did not adequately show that the 
employee would have been fired, not just that the employee might 
have been fired, for the misconduct in question.17 Kristufek, 985 
F.2d at 369.

In the present case, Petitioner admitted stealing confidential 
and proprietary documents from the Banner. The after-acquired 
evidence of theft clearly involved a critical and fundamental job 
requirement. In keeping with the standards of the doctrine, the 
district court found that Petitioner’s misconduct rose to the level of 
being serious and material. Also, the district court found that the 
Banner would have fired Petitioner for theft of the confidential and 
proprietary documents. Therefore, even under the Seventh

17. The court in Kristufek distinguished Summers based on significant 
factual and proof differences between the cases. In Kristufek, the employer did 
not prove that it would have fired  the employee for his misconduct, whereas in 
Summers the employer met this burden. As in Summers, the Banner proved 
unequivocally that it would have fired  Petitioner.



14

the Seventh Circuit’s approach in Kristufek, Petitioner would not 
be entitled to any relief.18

Only seven months before the Kristufek decision, the Seventh 
Circuit relied on Summers in deciding Washington. Applying the 
Summers rule, the Seventh Circuit panel affirmed summary 
judgment in favor of the employer and concluded that the 
employee was not entitled to relief because he would have been 
fired for the later-discovered serious misconduct.19 Washington, 
969 F.2d at 256-57. Curiously, the Seventh Circuit in Kristufek did 
not mention its prior decisions in Washington or Reed. However, 
from the different outcomes in Kristufek and Washington, it is clear 
that the Seventh Circuit, like the Eleventh Circuit, has not adopted 
a stringent rule regarding the doctrine but will decide each case on 
its facts. This is contrary to Petitioner’s assertion that the Seventh 
Circuit has taken an “intermediate position on this issue.” Petition 
at 9.

Like the other circuits that have addressed this issue, the 
Eleventh Circuit in Wallace, declined to adopt a rigid rule and 
specifically stated that it will review the issue of after-acquired

18. Significantly, the court in Kristufek addressed the issue of damages 
only after upholding the jury’s finding of discrimination. The court in Kristufek 
held that sufficient evidence of discrimination was presented for the jury to find 
pretext. Petitioner has presented no evidence of discriminatory pretext in this 
case. See Section II, infra. Most o f the cases allowing limited relief under the 
doctrine have involved evidence of discrimination.

19. Between the time of the decisions of Washington and Kristufek, the 
Seventh Circuit decided Reed v.AMAXCoal Co., 971 F.2d 1295 (7th Cir. 1992). 
In Reed, the court, upholding summary judgment for the employer on other 
grounds, stated that under Summers the employer would have been entitled to 
summary judgment had it proved that it would have fired the employee for the 
misconduct at issue. Id. at 1298. If the employer had met its burden of proof, then 
the employee would have been denied any relief. Id.



15

evidence on a case-by-case basis. 968 F.2d at 1178. Thus, in the 
absence of a hard and fast rule, the Eleventh Circuit has implicitly 
condoned denial of back pay in an appropriate situation, which the 
present case presents. Therefore, the Eleventh Circuit’s decision in 
Wallace is not “irreconcilably in conflict” with other circuits as 
Petitioner asserts.

Petitioner concedes that the Eleventh Circuit in Wallace 
recognized that wrongdoing can limit the relief available. 
Notwithstanding its acceptance of the doctrine, the Eleventh 
Circuit in Wallace hypothesized some extreme possibilities of 
employer abuse. See 968 F.2d at 1180-81. The present case defies 
the “parade of horribles” listed in Wallace, which do not occur in 
the after-acquired evidence situation if the standards of the 
doctrine are properly applied. The requirements that misconduct 
be material and job related and that the employer carry its burden of 
proving that it would have fired the employee had it known the 
truth fully protect against any employer abuse. Actually, this case 
presents the perfect scenario for the application of the doctrine: 
Petitioner voluntarily divulged to the Banner and later admitted to 
her serious misconduct. There is no evidence of employer abuse in 
the present case.

Petitioner cites to this Court’s recent decision in ABF Freight 
System, Inc. v. NLRB, 114 S. Ct. 835 (1994), stating that it deals 
with a related issue. However, ABF is significantly distinguishable 
from the present case and, therefore, is not applicable here.

First, ABF is not an after-acquired evidence case.20 The 
employer in ABF  knew prior to making the termination decision 
that the employee had lied about why he was late to work. After the 
employee was terminated, he again lied, this time under oath to an

20. The ABF decision does not mention or refer to the after-acquired 
evidence doctrine and does not cite any after-acquired evidence cases.



16

NLRB Administrative Law Judge. Second, this Court in ABF did 
not judge the merits of whether the employee should have been 
reinstated with back pay, even though he committed perjury. 
Rather, the only question was whether the agency had the 
discretion to fashion the remedy it did in the case.21

However, this Court did not completely ignore the merits of 
the agency’s decision. This Court agreed with the employer that, 
consistent with its appraisal of the employee’s false testimony, 
reinstatement and back pay should have been precluded. Id. at 839. 
Justices Scalia and O’Connor in their concurring opinion invoked 
the “unclean hands” doctrine and stated, “[t]he principle that a 
perjurer should not be rewarded with a judgment — even a 
judgment otherwise deserved — where there is discretion to deny 
it, has a long and sensible tradition in the common law.” Id. at 842. 
This statement applies with equal merit to the misconduct of theft 
and deceit in the present case.

Third, because of the facts presented by ABF and the narrow 
issue before it, this Court did not have to determine whether the 
employer could prove that it would have fired the employee for the 
misconduct as is required in after-acquired evidence cases. Again, 
however, this Court did not completely ignore this issue. This 
Court noted that “[t]he Board found that the record in this case 
unequivocally established that ABF did not treat Manso’s 
dishonesty ‘in and of itself as an independent basis for discharge or 
any other disciplinary action.’” Id. at 838 n. 5 (citing 304 N.L.R.B. 
585,590(1991)).

Fourth, as in after-acquired evidence cases that have allowed a 
plaintiff limited relief in the form of back pay, there was direct

21. This Court’s decision to uphold the NLRB’s ruling was based on 
mandatory deference to the agency in the absence of evidence that the agency’s 
decision was arbitrary, capricious, or manifestly contrary to law. AFB, 114 S. Ct. 
at 839.



17

evidence of unlawful conduct by the employer in support of the 
employee’s contention that the termination decision was 
pretextual. There is no evidence of pretext in the present case. See 
Section II, infra. Therefore, this Court’s decision in ABF  does not 
restrict the application of the after-acquired evidence doctrine to 
preclude relief in cases where the employer can prove that it would 
have terminated an employee for serious on-the-job misconduct 
discovered after the employee’s termination.

Contrary to Petitioner’s unfounded assertion, the facts 
presented in the present case are more obviously compelling than 
those in Milligan-Jensen, providing even stronger support to apply 
the doctrine to preclude relief to Petitioner. Unlike the present 
case, in Milligan-Jensen there was direct evidence of sex 
discrimination by the employer.22 Petitioner’s attempt to argue that 
Milligan-Jensen is somehow materially different from the present 
case because it involved application fraud is also misguided. The 
Sixth Circuit in both Milligan-Jensen and this case applied the 
same standard: whether the employee would have been fired  if the 
employer had known of the serious misconduct. Once there is a 
finding of “would have been fired,” whether the misconduct 
occurred prior to or during employment is irrelevant. Milligan- 
Jensen, 975 F.2d at 304-05 & n. 3.

Further, there is no proof that the Banner’s actions in any way 
caused Petitioner to steal confidential and proprietary documents, 
as Petitioner asserts.23 The district court found as a matter of law

22. Petitioner’s statement that this case presents facts that are arguably 
more compelling than those in Milligan-Jensen has a paradoxically boomerang 
effect because in that case there was direct evidence of discrimination, whereas 
there is none in this case. See 975 F.2d at 303 (“You’re the woman, aren’t you? 
. . .  You’ve got the lady’s job.”). In this case, there is neither direct nor 
circumstantial evidence of discrimination.

23. It goes without saying that stealing personal and proprietary 
information has no connection to protection from any future alleged 
discrimination.



18

that Petitioner’s motivation in stealing the documents was 
irrelevant to the application of the doctrine. Therefore, when 
compared to Milligan-Jensen,™the facts of the present case should 
compel this Court to deny certiorari because the Sixth Circuit 
clearly reached the proper result even in light of decisions from 
other circuits.

II,

SUMMARY JUDGMENT WAS PROPER BECAUSE 
PETITIONER SHOWED NO PRETEXT.

Petitioner offered no evidence to rebut the Banner’s proof that 
she would have been terminated had it discovered her misconduct 
while she was employed. App. 17a. In the absence of any showing 
that the Banner’s explanations were pretextual, summary 
judgment for the Banner was proper.

Just recently, this Court clarified the evidentiary formula for 
proving pretext: “a reason cannot be proved to be ‘a pretext for  
discrimination’ unless it is shown both that the reason was false 
and that discrimination was the real reason.” St. Mary’s Honor Ctr. 
v. Hicks, 113 S. Ct. 2742,2752 (1993) (emphasis in original). There 
are no facts in this case to support even an inference, much less 
proof, either that the Banner’s evidence that Petitioner would have 
been discharged was false or that the Banner fabricated this reason 
to discriminate against Petitioner.

Even if Petitioner had not admitted the applicability of the 
doctrine to her case, summary judgment against Petitioner would 
have been properly granted because she is unable to meet this 
Court’s standard to survive summary judgment under Matsushita 24

24. Significantly, the Sixth Circuit in Milligan-Jensen reversed the district 
court’s denial o f summary judgment and directed that judgment be entered in 
favor of the employer.



19

Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 
(1986); Anderson v. Liberty Lobby, Inc., A l l  U.S. 242 (1986); and 
Celotex Corp. v. Catrett, A l l  U.S. 317, (1986). “[T]he plain 
language of Rule 56(c) mandates the entry of summary judgment, 
after adequate time to conduct full discovery and upon motion, 
against a party who fails to make a showing sufficient to establish 
the existence of an element essential to that party’s case, and on 
which that party will bear the burden of proof at trial.” Celotex, 
477U.S,at322.25

As the facts show, Petitioner had adequate time to conduct full 
discovery. After Petitioner served interrogatories and document 
requests and received timely responses, Petitioner sought and was 
granted leave to complete additional depositions to rebut the 
Banner’s Motion. Both before and after the extension of time, 
Petitioner deposed four of the Banner’s principals.

Notwithstanding ample time to discover any pretext on the 
part of the Banner, Petitioner found none. Petitioner made no 
showing that the Banner fabricated evidence against her or treated 
her differently from other employees. The record is clear that the 
Banner fully carried its burden of proof and that Petitioner made no 
showing that this proof was pretextual. See St. Mary’s Honor Ctr., 
113 S. Ct. at 2748. Accordingly, under this Court’s 1986 trilogy of 
cases, summary judgment was proper.

25. The ultimate burden is on the non-moving party to show the existence 
of a genuine issue of material fact: “[w]hen the moving party has carried its 
burden under Rule 56(c), its opponent must do more than simply show that there 
is some metaphysical doubt as to the material facts . . . .  In the language of the 
Rule, the non-moving party must come forward with ‘specific facts showing that 
there is a genuine issue for trial.’ Fed. Rule Civ. Proc. 56(e).” Matsushita, 475 
U.S. at 586-87. (emphasis supplied). Finally, “the plaintiff must present 
affirmative evidence in order to defeat a properly supported motion for summary 
judgm ent,. . .  even where the evidence is likely to be within possession of the 
defendant, as long as the plaintiff had had a full opportunity to conduct 
discovery.” Anderson, A ll  U .S. at 257.



20

Petitioner’s hypothetical argument betrays a 
misunderstanding of this trilogy of cases and of her ultimate 
burden. Petitioner argues that if the Banner had known about and 
terminated her for stealing the documents she could simply have 
claimed that the reason for discharging her was pretextual and had 
a jury trial on the issue. Petition at 10. This argument is without 
merit.

Petitioner has the ultimate burden to come forward with more 
than “some metaphysical doubt as to the material facts” in order to 
present a jury question. Matsushita, 475 U.S. at 586-87. Petitioner 
could not merely have “alleged that the Banner’s reason was a 
pretext for age discrimination, and had a jury trial on the issue.” 
Petition at 10. Rather, in the face of a properly supported motion 
for summary judgment, Petitioner would be required to present 
affirmative evidence of pretext, Anderson, A ll  U.S. at 257, tending 
to show that the Banner’s reason for termination was false or that it 
would have continued her employment. St. Mary’s Honor Ctr. ,113 
S.Ct. at 2751-54.

In the present case, Petitioner has come forward with not even 
a scintilla of either pretext or discrimination. If Petitioner had been 
able to show pretext, her hypothetical might have some credibility, 
but the undisputed facts of the present case would not entitle 
Petitioner to a jury trial on the issue of pretext. Thus, even if 
Petitioner had not conceded that her misconduct warranted 
application of the doctrine to her claim of discrimination, her case 
would remain subject to summary judgment, contrary to 
Petitioner’s hypothetical.



21

III.

PETITIO N ER RELIES ON INAPPLICABLE LAW 
AND POLICY.

Petitioner’s reliance on Section 107 of the Civil Rights Act of 
1991 (“CRA 1991”) both is misplaced and undermines her plea 
that what she characterizes as the remedy “rule”26 by the Eleventh 
Circuit be adopted. First, CRA 1991 is inapplicable to the ADEAin 
regard to proof or remedy. Second, CRA 1991 does not apply to 
conduct that occurred before the effective date of this Act, 
November 21, 1991, and to a lawsuit filed before that date. 
Landgrafv. USI Film Prods., 1994 U.S. LEXIS 3292 (April 26,
1994). Here, both the Banner’s reduction in force and the lawsuit 
occurred well before November 21,1991.27

Petitioner points to the EEOC’s position taken in its amici 
curiae brief in support of the grant of certiorari in Milligan-Jensen. 
Whatever position that the EEOC takes when it is litigating in its 
advocacy role is irrelevant here, but its policy guidance statements 
are relevant. Before CRA 1991, which is the applicable time for 
this case, the EEOC issued guidance directing its own staff to 
follow Summers:

[/]n these circumstances, as in cases where 
discrimination is proved through 
circumstantial evidence, the employer may be 
able to limit other relief available to the 
plaintiff by showing that after-the-fact lawful 
reasons would have justified the same action.

26. The Eleventh Circuit has not adopted an inflexible “rule.” Rather, the 
Wallace decision adopted a case-by-case analysis.

27. Even if  CRA 1991 were applicable, § 107(b) specifically disallows 
any back pay, which is what Petitioner seeks.



22

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

Policy Guidance on Recent Developments in Disparate Treatment 
Theory, N-915.063, EEOC Compl. Man. (BNA) N:2119 at 2132- 
33 and n.17 (emphasis added).28 Under this guidance, then, the 
Commission would not have sought any individual relief on behalf 
of Petitioner where after-acquired evidence of misconduct showed 
that termination was inevitable.

CONCLUSION

The Petition before the Court should be denied because the 
Sixth Circuit’s judgment was proper in this case. Even under other 
circuits’ approaches to the application of the doctrine, the result in 
the present case would not be different. Petitioner concedes the 
applicability of the doctrine to her admitted theft of her employer’s 
confidential and proprietary documents. Petitioner admits that had 
her employer known about the theft she could and would have been 
discharged. At the same time that she concedes the applicability of 
the doctrine to her admittedly serious wrongdoing, Petitioner is

28. After CRA1991, the EEOC changed its view of Summers. However.it 
is the EEOC’s view of Summers before CRA 1991 that is instructive here 
because, as previously stated, CRA 1991 does not apply to the present case.



23

asking this Court to reward her with money damages. This position 
is untenable, especially in view of Petitioner’s failure to make any 
showing of pretext. Therefore, it would not be a judicious 
expenditure of the Court’s resources to review the present case.

Accordingly, the Banner respectfully requests that this Court 
deny the Petition for a Writ of Certiorari.

Respectfully submitted,

R. EDDIE WAYLAND 
Counsel o f Record 
M. KIM VANCE 
ELIZABETH B. MARNEY 
RACHEL W. SOKOLOWSKI 
KING &B ALLOW 
Attorneys fo r  Respondent 
1200 Noel Place 
200 Fourth Avenue, North 
Nashville, Tennessee 37219 
(615)259-3456