McKennon v. Nashville Banner Publishing Co. Petition for a Writ of Certiorari

    No. 93-

In  T h e

Supreme Court of ttje Mmtetr H>tatE£
O c t o b e r  T e r m , 1993

Ch ristine  McKen n o n , 

v.
Petitioner,

N ash ville  B a n n e r  P ublishing  Co.,
Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael E. Terry 
150 Second Avenue, North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 
(Counsel of Record)

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
E ric Schnapper 
NAACP Legal Defense & 

E ducational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



Q u e st io n  P r e se n t e d

Whether an employee who is dismissed in violation 
of the Age Discrimination in Employment Act is barred 
from obtaining any remedy if, solely as a result of the 
unlawful dismissal and the litigation challenging it, the 
employer discovers another basis for dismissal, a question 
previously accepted for review by the Court in Milligan- 
Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th
Cir. 1992), cert, granted,__ U.S.___ , 125 L.Ed.2d 686, cert.
dismissed, 125 L.Ed.2d 773 (1993)



11

P a r ties

All of the parties who participated below are set out 
in the caption.



Ill

TABLE OF CONTENTS

Q u e s t io n  P r e s e n t e d ............................ .. .................................  i

Pa r t i e s ................................................................................................ ii

O pin io n s  B e l o w ............................................................................  1

Jurisdiction ..........................   2

Statute Involved .......................................................  2

St a t e m e n t  o f  t h e  Ca se  .........................   3

A. The Proceedings Below ...............................  3

B. Statement of F ac ts............................................ 4

R e a so n s  f o r  G r a n t in g  t h e  W r it  ..................................  7

T his Ca se  R a ises  a n  Im p o r t a n t  Issu e  
R e g a r d in g  t h e  In t e r p r e t a t io n  o f  t h e  
A n t i-D isc r im in a t io n  in  E m p l o y m e n t  
St a t u t e s  Co n c e r n in g  W h ic h  T h e r e  is 
a  C o n flic t  B e t w e e n  t h e  C ir c u its  . . .  7

C o n c l u sio n  ...........................      11

A p p e n d ix  o f  D ec isio n s  B elo w



IV

TABLE OF AUTHORITIES

Cases: Pages:

ABF Freight System, Inc. v. National 
Labor Relations Board,
510 U.S.__ , 127 L. Ed. 2d 152 (1994)...........  10

Kristufek v. Hussmenn Foodservice Co.,
985 F.2d 364 (7th Cir. 1993) ............................. 9

Massey v. Trump’s Castle Hotel & Casino,
828 R Supp. 314 (D.N.J. 1993) ......... .. 9

Milligan-Jensen v. Michigan Technological Univ.,
975 F.2d 302 (6th Cir. 1992), cert, granted,

_ U.S.__ , 125 L. Ed. 2d 686 cert.
dismissed, 125 L. Ed. 2d 773 (1993) ...........passim

Moodie v. Federal Reserve Bank of New York,
831 F. Supp. 333 (S.D.N.Y. 1993)......................  9

O’Day v. McDonnell Douglas Helicopter Co.,
784 F. Supp. 1466,
appeal pending No. 92-15625 .......................... .. . 9

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ......................................  8, 11

Redd v. Fisher Controls,
814 F. Supp. 547 (W.D. Tex. 1992) ............... .. 9

Russell v. Microdyne Corp.,
830 F. Supp. 305 (E.D. Va. 1993)...................... 9

Summers v. State Farm Insurance,
864 F.2d 700 (10th Cir. 1988) ......................  8, 9



Pages:

Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248 (1981)   10

Wallace v. Dunn Construction Co.,
968 F.2d 1174 (11th Cir. 1992).......................... 8

Statutes: Pages:

28 U.S.C. §1254(1)    2

29 U.S.C. § 621 .......................................................  2, 3

29 U.S.C. § 623 ...........................................................  2, 3

Tennessee Human Rights Act, Tenn.
Code Ann. § 4-21-101, et seq. ...... ................... 3

Miscellaneous: Pages:

Attorneys Still Looking for Answers on Effect of 
Misconduct in Bias Cases,
2 BNA Employment Discrimination
Report, p. 273 (March 2, 1994) ...........    10

V



No. 93-

In  T h e

Supreme Court of tfjc Umteb States:
O c to b er  T e r m , 1993

Ch r ist in e  M cKe n n o n ,
Petitioner,

v.

N a sh v il l e  B a n n e r  P u b l ish in g  C o .,
Respondent.

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

PETITION FOR A WRIT OF CERTIORARI

Christine McKennon respectfully prays that a writ of 
certiorari issue to review the judgment and opinion of the 
United States Court of Appeals for the Sixth Circuit entered 
in this proceeding on November 15, 1993.

O pin io n s  Belo w

The opinion of the Sixth Circuit is reported at 9 F.3d 
539, and is set out at pp. la-9a of the Appendix hereto 
("App."). The opinion of the United States District Court 
for the Middle District of Tennessee, Nashville Division, is 
reported at 797 F.Supp. 604, and is set out at pp. 10a-18a of 
the Appendix.



2

Ju r isd ic t io n

The decision of the Sixth Circuit was entered on 
November 15, 1993. An extension of time until March 30, 
1994, for filing this petition was granted by Justice Stevens.1 
Jurisdiction of this Court is invoked under 28 U.S.C. § 
1254(1).

St a t u t e  In v o lv ed

This case involves the Age Discrimination in 
Employment Act, 29 U.S.C. § 621, et seq., which provides in 
pertinent part as follows:

§ 623. Prohibition of age discrimination

(a) Employer practices. It shall be unlawful 
for an employer—
(1) to fail or refuse to hire or to discharge 
any individual or otherwise discriminate 
against any individual with respect to his 
compensation, terms, conditions, or privileges 
of employment, because of such individual’s 
age;

(2) to limit, segregate, or classify his 
employees in any way which would deprive or 
tend to deprive any individual of employment 
opportunities or otherwise adversely affect his 
status as an employee, because of such 
individual’s age; or
(3) to reduce the wage rate of any employee 
in order to comply with this [Act].

’Docket Number 93-300635.



3

St a t e m e n t  o f  t h e  Ca se

A. The Proceedings Below

This action was filed by petitioner, Christine 
McKennon, in the United States District Court for the 
Middle District of Tennessee on May 6, 1991. The 
complaint alleges that Ms. McKennon was discharged from 
her employment because of her age, in violation of the Age 
Discrimination in Employment Act [ADEA], 29 U.S.C. § 
621, et seq., and the Tennessee Human Rights Act, Tenn. 
Code Ann. § 4-21-101, et seq. App. 11a.

Following discovery, the defendant, Nashville Banner 
Publishing Co., respondent here, filed a motion for summary 
judgment based on evidence obtained during discovery. 
App. 12a. For the purpose of the motion, the defendant and 
the courts below assumed that petitioner had been the victim 
of age discrimination in violation of the ADEA. App. 3a.

The district court granted the motion based on the 
"after-acquired evidence" doctrine that governs in the Sixth 
Circuit. Petitioner was precluded from any recovery, even 
if she had in fact been subjected to age discrimination. The 
court rejected petitioner’s argument she should be given a 
chance to establish at trial that her copying and removing 
documents was not such misconduct as to justify her 
termination.

On appeal, the Sixth Circuit affirmed, rejecting 
arguments that the "after-acquired evidence" doctrine should 
not be applied in cases (1) where the alleged misconduct 
only happened because of the employer’s discriminatory 
action and (2) where the alleged misconduct occurred during 
employment rather than where there was employment 
application fraud. In its decision, the Sixth Circuit 
specifically relied upon its earlier decision in Milligan-]ensen 
v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.



4

1992), cert, granted, __  U.S. __ , 125 L.Ed.2d 686, cert.
dismissed, 125 L.Ed.2d 773 (1993). This petition for a writ 
of certiorari follows.

B. Statement of Facts

Since the district court granted summary judgment in 
favor of the defendant, the facts below must be viewed in 
the light most favorable to the plaintiff. Petitioner was 
employed by respondent since May, 1951, and held a variety 
of positions. At all times, her performance was consistently 
rated as excellent. Her employment was terminated on 
October 31, 1990, when she was sixty-two years old. App. 
lOa-lla.

For more than a year prior to her termination, 
petitioner began to experience a pattern of conduct designed 
to force her resignation and/or retirement. For example, 
petitioner’s parking privileges were altered, her lunch hour 
privileges modified, and she was denied an appropriate pay 
raise. Furthermore, the newspaper’s Comptroller 
(petitioner’s immediate supervisor) began to suggest 
retirement. Petitioner was informed that the newspaper’s 
finances were precarious and terminations were necessary 
and imminent.

In April, 1990, the Comptroller informed petitioner 
that the Publisher had requested a memorandum regarding 
petitioner’s "retirement plans." Petitioner responded to the 
Comptroller that she did not seek retirement and was not 
interested in retirement options. Nevertheless, the 
Comptroller independently made written inquiry to the 
newspaper’s pension administrators, and presented the 
information to petitioner.



5

Shortly thereafter, petitioner, certain she was going 
to lose her job, took certain documents2 home and shared 
them with her husband of thirty-six years. Petitioner did not 
share the information with any individual other than 
husband. Several months later, on October 31, 1990, 
petitioner was summarily terminated, without notice. The 
only explanation given for her termination was "staff 
reduction."3

During the course of petitioner’s deposition on 
December 18, 1991, after suit was filed, she admitted to 
copying the documents, removing the documents from the 
company’s premises, and sharing the information with her 
husband. Petitioner claimed that she had copied and 
removed the documents because of her concern that she was 
going to be terminated and she wanted them "in an attempt 
to learn information regarding my job security concerns." 
App. 12a.

On December 20, 1991, the company sent her a post­
termination letter of termination allegedly based on the 
discovery that she had copied and removed these documents. 
App. 12a. Petitioner disputed that her copying and removal 
of the documents constituted such misconduct that would 
justify application of the after-acquired evidence defense. 
She also urged that her actions were justified for her own 
protection. Therefore, she argued, these questions should 
be left to the jury. App. 12a-13a.

2TTie documents were one executive employment-severance 
agreement and four pages of newspaper financial information. All of 
this information was maintained or possessed by petitioner in the 
normal course of her job. Thus, the information was already known 
to her. Therefore, the alleged wrongful conduct was removing the 
documents and sharing the information with her husband.

3The staff reduction included the termination of the two oldest 
secretaries. Two days before, on October 29, 1990, the Banner hired 
a 26-year-old secretary.



6

The district court, however, held that these questions 
were not material; rather, it found that petitioner’s copying 
and removal of the confidential documents constituted 
misconduct in violation of her obligations as a confidential 
secretary. App. 13a. The court further found, based solely 
on conclusory affidavits from four management employees4 
of the company, that petitioner would have been terminated 
from employment had her misconduct been learned of at 
any time prior to her discharge on October 31, 1990. App. 
16a. The court also held that the copying and removal of 
the documents was not conduct protected by 29 U.S.C. § 
623(d), the "opposition clause" of the ADEA.5 The Court 
of Appeals affirmed, based on its prior decisions applying 
the "after-acquired evidence" doctrine.

4The record shows that the affidavits were all drafted by the 
Banner’s attorney. When the publisher executed his affidavit he had 
not reviewed petitioner’s 38 year-long personnel file and did not 
know what documents she had copied. Furthermore, the respondent 
introduced no evidence of a company rule that prohibited petitioner’s 
conduct, or that anyone else had ever been terminated for a similar 
infraction.

529 U.S.C. § 623(d) provides:
(d) Opposition to unlawful practices; participation in 
investigations, proceedings, or litigation. It shall be unlawful 
for an employer to discriminate against any of his employees 
or applicants for employment, for an employment agency to 
discriminate against any individual, or for a labor 
organization to discriminate against any member thereof or 
applicant for membership, because such individual, member 
or applicant for membership has opposed any practice made 
unlawful by this section, or because such individual member 
or applicant for membership has made a charge, testified, 
assisted, or participated in any manner in an investigation, 
proceeding, or litigation under this [Act],



7

R ea son s  f o r  G r a n t in g  t h e  W r it

T his Ca se  R a ise s  a n  Im p o r t a n t  Is s u e  R e g a r d in g  
t h e  In t e r p r e t a t io n  o f  t h e  A n t i-D isc r im in a t io n  in  
E m p l o y m e n t  Sta t u t e s  Co n c e r n in g  Wh ic h  T h e r e  is 

a  C o n flic t  B e t w e e n  t h e  C ir c u it s .

This case presents precisely the same issue on which 
this Court granted certiorari in the case of Milligan-Jensen v. 
Michigan Technological Univ., 975 F.2d 302 (6th Cir. 1992),
cert, granted,__ U.S.___ , 125 L.Ed.2d 686, cert, dismissed,
125 L.Ed.2d 773 (1993). Certiorari was dismissed in that 
case solely because the parties reached a settlement. The 
issue presented in Milligan-Jensen and the present case 
remains a recurrent and vitally important question about 
which the circuits are irreconcilably in conflict.6

The "after-acquired evidence" doctrine deals with 
evidence that the employer discovers after the challenged 
employment decision was made, and which the employer 
alleges would (if known) provide a non-discriminatory basis 
for adverse employment action. The evidence is usually, as 
in this case, discovered only as a direct result of the filing of 
a claim of employment discrimination. Some circuits have 
held that "after-acquired evidence" totally bars the

6The instant case presents facts that are arguably more compelling 
than Milligan-Jensen. First, here the wrongful conduct was caused by 
the discrimination and petitioner’s efforts to protect herself from it. 
Second, Milligan-Jensen involved application fraud where the employer 
could argue that the employee was not qualified for the job and 
would never had been hired pursuant to neutral and objective criteria. 
The instant case involves nearly forty years of employment by a 
qualified and excellent employee. Yet, the employer is allowed to 
avoid liability by essentially a discretionary, post-litigation decision to 
terminate.



8

employee’s claim. That is, it defeats any liability and all 
relief under the statute. Other circuits, however, have held 
that such evidence is relevant only in determining whether 
the relief for the employer’s discriminatory action should be 
limited in that reinstatement would be inappropriate or back 
pay cut off.

The Sixth and the Tenth Circuits have held that 
after-acquired evidence is a basis for absolving an employer 
of any liability for discriminatory practices. Summers v. State 
Farm Insurance, 864 F.2d 700 (10th Cir. 1988);7 8 Milligan- 
Jensen v. Michigan Technological Univ., supra.8 The present 
case applies the Sixth Circuit’s "after-acquired evidence" 
doctrine to an action brought under the ADEA.

The Eleventh Circuit, on the other hand, has held 
that an employer is liable under the same circumstances. 
Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 
1992). Wallace expressly rejected the reasoning of the Tenth 
Circuit,9 and held that an employer may escape a finding of 
liability only by showing that it had relied on a 
nondiscriminatory reason at the time of the employment 
decision, citing Price Waterhouse v. Hopkins, 490 U.S. 228 
(1989). 968 F.2d at 1180-81. Thus, "after-acquired evidence" 
cannot defeat liability, but may limit the relief available in

7". . . while such after-acquired evidence cannot be said to have 
been a ‘cause’ for Summers’ discharge in 1982, it is relevant to 
Summers’ claim of ‘injury’ and does itself preclude the grant of any 
present relief or remedy to Summers." 864 F.2d at 708.

8"This circuit. . . has committed itself to the Summers rule..........
[I]f the plaintiff would not have been hired, or would have been fired, 
if the employer had known of the falsification, the plaintiff suffered 
no legal damage by being fired." 975 F.2d at 304-05.

9".. .  we reject the Summers rule that after-acquired evidence may 
effectively provide an affirmative defense to Title VII liability." 968 
F.2d at 1181.



9

that reinstatement may be precluded and backpay available 
only to the date that the employer demonstrates that the 
new evidence would have been discovered in the absence of 
the litigation. 968 at 1182-83.

The Seventh Circuit has taken a third and 
intermediate position on this issue. Thus, newly discovered 
evidence that shows that the employee had made 
misrepresentations on his or her employment application will 
not defeat liability unless the misrepresentation is related to 
a critical job element. Further, in the Seventh Circuit back 
pay is cut off as of the date the after-acquired evidence was 
in fact discovered. Kristufek v. Hussmenn Foodservice Co., 
985 F.2d 364, 369-70 (7th Cir. 1993).

As the United States and the Equal Employment 
Opportunity Commission pointed out in their brief as amici 
curiae in support of the grant of certiorari in Milligan-Jensen, 
there has been a proliferation of cases "in which employers 
offer ‘after-acquired evidence’ to defend their discriminatory 
actions" and that the defense has "broadly destructive impact 
. . . on nondiscrimination goals." Brief for the United States 
and the Equal Employment Opportunity Commission as 
Amici Curiae in No. 92-1214, p. 11, citing, inter alia, the 
present case as one of "many recent cases in which the 
‘after-acquired evidence’ defense has been raised." Id., 
n.4.10

10The issue is currently pending in the Fourth Circuit in Russell v. 
Microdyne Corp., 830 F. Supp. 305 (E.D. Va. 1993), appeal pending 
Nos. 93-1895 & 93-2078 and in the Ninth Circuit in O ’Day v. 
McDonnell Douglas Helicopter Co., 784 F. Supp. 1466 (D. Ariz. 1992), 
appeal pending No. 92-15625. District courts in the Fifth Circuit 
have adopted the no recovery rule of the Sixth and Tenth Circuits. 
See, e.g. , Redd v. Fisher Controls, 814 F. Supp. 547 (W.D. Tex. 1992). 
District courts in the Second and Third Circuits, on the other hand, 
have rejected Summers and have followed the Eleventh Circuit’s 
decision in Wallace. See, e.g., Moodie v. Federal Resen’e Bank of New 
York, 831 F. Supp. 333 (S.D.N.Y. 1993); Massey v. Trump’s Castle



10

The impact of the "after-acquired evidence" doctrine 
on the rights of Title VII and ADEA claimants can be 
significant because of the manner in which the lower courts 
have generally enforced the doctrine. For example, if the 
Banner had discovered Ms. McKennon’s allegedly wrongful 
conduct before October 31, 1990, and had fired her for 
removing the documents, then she could have filed an 
ADEA claim, alleged that the Banner’s reason was a pretext 
for age discrimination, and had a jury trial on the issue. In 
the typical "after-acquired evidence" case, however, the 
employer can avoid the jury and obtain summary judgment 
with self-serving affidavits supporting a post-litigation 
termination. This result subverts this Court’s decision in 
Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248 
(1981), which depends on plaintiffs having "a full and fair 
opportunity to demonstrate pretext." 450 U.S. at 256. Such 
a result is not justified, since both situations present equally 
difficult questions of fact that deserve full exploration.

In addition, the importance of the issue is 
demonstrated by this Court’s recent decision in ABF Freight
System, Inc. v. National Labor Relations Board, 510 U.S.__ ,
127 L.Ed.2d 152 (1994), which deals with a related question. 
There, this Court upheld the NLRB’s discretion to grant full 
relief for a violation of the National Labor Relations Act 
even though the employee had given a false reason for being 
late to work and had repeated that falsehood in testimony 
under oath in a formal proceeding before a NLRB 
Administrative Law Judge. There has been substantial 
dispute and speculation as to the impact and relevance of 
the decision in ABF Freight System to the "after-acquired 
evidence" issue in employment discrimination cases. See 
"Attorneys Still Looking for Answers on Effect of 
Misconduct in Bias Cases," 2 BNA Employment 
Discrimination Report, p. 273 (March 2, 1994).

Hotel & Casino, 828 F. Supp. 314 (D.N.J. 1993).



11

Petitioner urges that the approach of the Eleventh 
Circuit is correct and should be adopted by this Court. 
"After-acquired evidence" cannot absolve an employer of 
discriminatory action, although it may affect the remedy to 
be granted the employee. This rule would be consistent with 
the decision of this Court in Pace Waterhouse v. Hopkins, 
supra, and with section 107 of the Civil Rights Act of 1991, 
which provides that if a reason for an employment decision 
violates Title VII, then there is liability under the statute; 
only the remedy is affected if there is another, legal reason 
for the action. As the United States has pointed out, the 
"after-acquired evidence" doctrine of the Sixth and Tenth 
Circuits, as applied in this case, is "an unwarranted 
obstruction to proper and effective enforcement of the 
nondiscrimination requirements" of the civil rights statutes, 
and should be rejected.11

Co n c lu sio n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

“Brief for the United States and the Equal Employment 
Opportunity Commission as Amici Curiae in No. 92-1214, p. 11-12.



12

Respectfully submitted,

M ichael  E. Te r r y  
150 Second Avenue, North 
Suite 315
Nashville, TN 37201 
(615) 256-5555 

(Counsel of Record)

E laine  R. Jones 
D irector  Co unsel

T h e o d o r e  M. Shaw  
Charles Steph en  R alston  
E ric  Schnapper  

NAACP Leg al  D efense  & 
E d u c a tio n a l  Fu n d , In c . 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner



Appe n d ix



la

No. 92-5917

United States Court of Appeals, 
Sixth Circuit

CHRISTINE McKENNON, 

Plaintiff-Appellant,

v.

NASHVILLE BANNER PUBLISHING COMPANY, 

Defendant-Appellee.

Decided Nov. 15, 1993

Before: KENNEDY and RYAN, Circuit Judges; and 
BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge

In this age discrimination suit under the Age 
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 
621, et seq., the plaintiff, Christine McKennon, appeals the 
district court’s grant of summary judgment in favor of 
defendant Nashville Banner Publishing Co. ("the Nashville 
Banner" or "the Banner"). The Equal Employment 
Opportunity Commission filed an amicus cutiae brief in 
support of Mrs. McKennon, and the Equal Employment 
Advisory Council filed one in support of the Nashville 
banner.

The plaintiff claims that the Nashville Banner 
violated her rights by discharging her at the age of sixty-two 
on the basis of age and that the district court misapplied the 
"after-acquired evidence" doctrine by allowing evidence of



2a

certain misconduct during her employment, discovered by 
the Banner after her termination, to negate her claim. See 
McKennon v. Nashville Banner Publishing Co. 797 F.Supp. 
604 (M.D. Tenn. 1992). Because we determine the district 
court properly applied the after-acquired evidence doctrine 
to the facts of this case, we AFFIRM the district court’s 
grant of summary judgment.

I
The Nashville Banner employed Mrs. McKennon 

from May 1951 to October 31, 1990, when she was 
terminated. Mrs. McKennon worked primarily as a 
secretary, and over the years the company consistently 
evaluated her work performance as excellent. On May 6, 
1991, Mrs. McKennon field suit claiming age discrimination. 
While deposing her in December 1991. the Nashville Banner 
discovered Mrs. McKennon had, while employed as secretary 
to the Comptroller, Ms. Stoneking, copied and removed 
from the newspaper’s premises several confidential 
documents to which she had access as such secretary. She 
took the documents home and showed them to her 
husband.1 Mrs McKennon asserted she copied the
documents "in an attempt to learn information regarding my 
job security concerns" and for her "insurance" and 
"protection." As a result, the Banner sent Mrs. McKennon 
a "termination letter" in December 1991, asserting it would 
have terminated her immediately during her employment if 
it had known of her acts. It is undisputed, from the 
testimony of Banner executives, that the Banner would have 
discharged Mrs. McKennon when she took and copied the

1 The documents included: Nashville Banner Fiscal period 
Payroll Ledger dated 9/30/89; Nashville Banner Publishing Co., Inc., 
Profit and Loss Statement dated 10/30/89; a note from Elise 
McMillan to Simpkins; a memorandum from Imogene Stoneking to 
Irby C. Simpkins, Jr., dated 2/3/89; a handwritten note dated 2/8; and 
an Agreement between the Banner and one of its managing 
employees, notarized 3/1/89.



3a

records if it had then known that she had done so.
The Banner’s summary judgment motion assumed, 

for purposes of the motion, that it would be liable to Mrs. 
McKennon under the ADEA in discharging her for age 
discrimination2 but for the undisputed fact that, before she 
was discharged, Mrs McKennon was guilty of conduct which, 
if known by the Banner, would have caused her discharge.3 
The district court, in granting summary judgment, agreed 
with this proposition. It determined that, because it was 
undisputed that Mrs. McKennon was guilty of misconduct, 
prior to her discharge, that would, if known by the Banner, 
have caused her discharge, the Banner was entitled to 
summary judgment. The district court concluded that this 
result must follow because Mrs. McKennon did not suffer 
injury from the claimed violation. McKennon, 797 F.Supp. 
at 608.

Mrs. McKennon contends on appeal that the after- 
acquired evidence rule should not apply to defeat her age 
discrimination claim. She argues that her situation is distinct 
from other cases involving after-acquired evidence because 
her action concerns employee misconduct during 
employment rather than employment application fraud and 
also because a nexus exists between her wrongful conduct

2 The summary judgment record contains substantial 
deposition testimony of Mrs. McKennon that she was indeed 
discharged because of age. This contention, however, is disputed by 
other testimony.

3 Several officers of the banner have sworn in affidavits that 
Mrs. McKennon would have been discharged for such conduct, and 
McKennon testified at one point in her deposition that she would 
have been terminated for this conduct. There, then, is no substantial 
issue here. See Anderson v. Liberty Lobby, Inc., A ll U.S. 242, 251-52, 
106 S.Ct. 2505, 2511-12, 91 L.Ed!2d 202 (1986).



4a

and her discrimination claim.4

II

This court reviews the district court’s grant of 
summary judgment de novo, making all reasonable 
inferences in favor of the non-moving party. EEOC v. 
University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990). 
Summary judgment is appropriate where there is no genuine 
issue of material fact and the moving party is entitled to 
summary judgment as a matter of law. Fed.R.Civ.P. 56(c); 
Celotex Corp. v. Catrett, M l U.S. 317, 322-23, 106 S.Ct. 2548, 
2552-53, 91 L.Ed.2d 265 (1986).

III
We first address in this case the question whether the 

district court erred in granting summary judgment for the 
nashville Banner based on after-acquired, undisputed 
evidence of Mrs. McKennon’s misconduct in copying and 
removing confidential files and that she would have been 
discharged for such conduct. More specifically, the issue is 
whether the after-acquired evidence doctrine applies 
exclusively to cases of employment application fraud or 
whether it also applies, as here, to cases of employee 
misconduct during employment.

The seminal case establishing the after-acquired 
evidence doctrine in employment discrimination cases is 
Summers v. State Farm Mat. Auto. Ins. Co., 864 F.2d 700 
(10th Cir. 1988). The doctrine mandates judgment as a 
matter of law for an employer charged with discrimination 
if evidence of the plaintiff employee’s misconduct surfaces at 
some time after the termination of the employee, and the 
employer can prove it would have fired the employee on the

As we understand the appellant’s "nexus" argument, it is 
that her improper taking of the records cannot be a basis for a denial 
of her claim under the ADEA because she took the records to give 
her a basis to contest her expected discharge because of her age.



5a

basis of the misconduct if it had known of it. In Summers, 
the employee claimed he was fired on the basis of his age 
and race, in violation of the ADEA and Title VII. Four 
years after the discharge, while preparing for trial, the 
employer discovered evidence that the employee falsified 
records in 150 instances.5 The Tenth Circuit affirmed 
summary judgment for the employer, reasoning that while 
the after-acquired evidence could not have been the actual 
cause of the employee’s discharge, it was relevant and 
determinative as to the employee’s claim of injury, and 
precluded the grant of any relief or remedy. Id. at 708.

This circuit adopted the Summers after-acquired 
evidence rule in Johnson v. Honeywell Info. Sys. Inc., 955 
F.2d 409 (6th Cir. 1992), a diversity action under Michigan 
law. In Johnson, the plaintiff sued her former employer 
alleging that she was discharged in violation of Michigan’s 
Elliott-Larsen Civil Rights Act. During discovery, the 
employer learned that the plaintiff had misrepresented her 
educational background on her employment application, for 
example, claiming to have a bachelor’s degree when in fact 
she did not. The court held that:

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

J Tire employer was also aware during Summer’s employment 
that he had falsified some company records. The company placed 
him on probationary status for two weeks and warned him never 
again to falsify company records, but he did not heed that advice. 
864 F.2d at 702.



6a

Id. at 415. The Johnson court noted, however, that evidence 
of an employee’s resume fraud "must establish valid and 
legitimate reasons for the termination of employment." Id. 
at 414.

We reiterated our commitment to the Summers after- 
acquired evidence rule in Milligan-Jensen v. Michigan 
Technological Univ. 975 F.2d 302 (6th Cir. 1992), cert.
granted___ U.S. _ ,  113 S.Ct. 2991, 125 L.Ed.2d 686, cert.
dismissed, _  U.S. _ ,  114 S.Ct. 22, 125 L.Ed.2d 773 (1993). 
In Milligan-Jensen, the plaintiff produced evidence that her 
employer violated Title VII by discriminating against her on 
the basis of her sex. After the employee’s discharge, 
however, the defendant discovered the employee had 
omitted a DUI conviction from her employment application. 
We held that this omission was material and explained that 
because the plaintiffs falsification, "if discovered during her 
employment, would have resulted in [her] termination, it 
becomes irrelevant whether or not she was discriminated 
against...." Id. at 305. The Supreme Court granted certiorari 
to review this case, but dismissed it after the parties settled. 
Thus, in Johnson and Milligan-Jensen, we have firmly 
endorsed the principle that after-acquired evidence is a 
complete bar to any recovery by the former employee where 
the employer can show it would have fired the employee on 
the basis of the evidence.6

See also Paglio v. Chagrin Valley Hunt Club Corp., 966 F.2d 
1453, 1453 (6th Cir. 1992) (unpublished) ("even if the Club was 
motivated to discharge Paglio because of his age, the misuse of Club 
funds discovered after Paglio’s retirement provided an independent 
basis for termination."); Dotson v. United States Postal Sen’., 977 F.2d
976, 978 (6th Cir.), cert, denied, __  U.S. __ , 113 S.Ct. 263, 121
L.Ed.2d 193 (1992) ("Even though plaintiffs failure to complete the 
application truthfully was discovered post-termination, he is not 
entitled to handicap discrimination relief when he was not initially 
qualified for the position."); Baab v. AMR Sendees Corp., 811 F.Supp. 
1246 (N.D. Ohio 1993) (interpreting Ohio law and holding former

(continued...)



7a

Moreover, the Summers case, from which this circuit 
adopted the after-acquired evidence rule, did not involve 
resume fraud, but like this case involved evidence of 
employee misconduct. In Summers, the plaintiff falsified 
company records more than 150 times. 864 F.2d at 703

Finally, we agree with a district court which recently 
applied the after-acquired evidence doctrine in a factually 
similar situation. O’Day v. McDonnell Douglas Helicopter 
Co.., 784 F.Supp. 1466 (D. Ariz. 1992). In O’Day, a former 
employee who alleged he was discriminated against under 
the ADEA surreptitiously removed his confidential 
personnel file, photocopied portions of the file, and showed 
some of the material to a co-worker. Id. at 1467. The court 
noted that the issue of whether an employer would actually 
fire an employee for misconduct could generate a genuine 
issue of material fact in some cases. Citing an employee 
handbook and an affidavit by a company official indicating 
that the plaintiff would have been immediately fired for his 
conduct, however, the court determined there was no 
question the employer would have fired the plaintiff and the 
employer was therefore entitled to summary judgment. Id. 6

6(...continued)

employee’s state discriminatory discharge claims were barred by after- 
acquired evidence of employee’s misstatements on employment 
application); Brayv. Forest Pharmaceuticals, Inc., 812 F.Supp. 115, 117 
(S.D. Ohio 1993) ("as the Defendant has shown that the 
misrepresentations or omissions [on former employee’s application] 
were material, were relied upon by the employer in making its 
decisions, and are clearly directly related to measuring the candidate 
for this type of employment, the post-discharge discovery of 
falsification renders summary judgment appropriate in this case."); 
and Benson v. Quanex Corp., 1992 WL 63013 (E.D. Mich. 1992) 
(unpublished) (granting summary judgment to employer in racial 
harassment and constructive discharge action under Michigan Elliott- 
Larsen Civil Rights Act because the employer showed it would not 
have hired the employee had it known of the employee’s prior felony 
conviction and incarceration).



8a

at 1468-70. Similarly, statements of the Banner officials that 
McKennon would have been fired had the newspaper known 
she had removed confidential documents support summary 
judgment in favor of the Banner.

IV

We next turn to whether the after-acquired evidence 
doctrine applies to cases where there is an alleged nexus 
between the employee’s misconduct and the discrimination 
claim. Mrs. McKennon claims she copied and removed the 
confidential documents only because she feared for her job 
and thus her conduct was justified. We thus understand her 
contention to be that, if the Banner should discharge her, 
she would have a lever with which to resist that action. We 
find that such an alleged nexus is irrelevant to the 
application of the after-acquired evidence doctrine.7 The

7 Of course, if the employee’s "misconduct" falls into the 
category of protected activities set forth in the "opposition clause" to 
the ADEA, 29 U.S.C. § 623(d), the employer could not avoid liability 
for discriminatory actions based upon the employee’s conduct. Under 
§ 623(d),

Opposition to unlawful practices; participation in 
investigations, proceedings, or litigation

It shall be unlawful for an employer to discriminate 
against any of his employees or applicants for employment ... 
because such individual ... has opposed any practice made 
unlawful by this section, or because such individual ... has 
made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or litigation under 
this chapter.

See Jeffries v. Hairis County Community Action Ass’n, 615 F.2d 1025 
(5th Cir. 1980) (holding plaintiff employee’s copying of confidential 
documents interfered with the employer’s interest in maintaining the 
confidentiality of employee records, and thus was not protected 
conduct); and O ’Day v. McDonnell Douglas Helicopter Co., 784 
F.Supp. 1466, 1470 (D. Ariz. 1992) (holding "no reasonable jury

(continued...)



9a

sole issue in after-acquired evidence cases is whether the 
employer would have fired the plaintiff employee on the 
basis of the misconduct had it know'n of the misconduct. See 
Milligan-Jensen, 975 F.2d at 304-305.8

V
For the aforementioned reasons, we AFFIRM the 

district court’s grant of summary judgment for the 
defendant.

’(...continued)

would find that O’Day’s conduct, surreptitiously removing confidential 
management files from his supervisor’s desk, photocopying them, and 
showing the file to a co-worker, was reasonable in light of the 
circumstances."). Copying and removing confidential documents is 
clearly not protected conduct.

8 We note, incidentally, that if Mrs. McKennon’s nexus theory 
were adopted, it would apply where an employee takes money from 
her employer for support of herself in anticipation of an unlawful 
discharge.



10a

No. 3-91-0346

United States District Court 
M.D. Tennessee 

Nashville Division

CHRISTINE McKENNON,

v.

THE NASHVILLE BANNER PUBLISHING 
COMPANY,

Decided June 3, 1992 

MEMORANDUM 

HIGGINS, District Judge.

The Court has before it the motion for summary 
judgment of the defendant, Nashville Banner Publishing Co., 
Inc. (filed January 7, 1992; Docket Entry No. 7), and the 
response thereto by the plaintiff Christine McKennon (filed 
March 16, 1992; Docket Entry No. 25). For the reasons 
discussed below, the Court grants the motion for summary 
judgment of the Banner.

I .

Mrs. McKennon was employed by the Banner in May 
1951, initially as an ad taker, subsequently as a secretary for 
six different individuals. In each of these positions, Mrs. 
McKennon was evaluated and her performance was 
consistently rated as excellent. From February 26, 1982, 
until March 6, 1989, Mrs. McKennon held the position of 
secretary to Jack Gunter, Executive Vice President. In 1989, 
Mr. Gunter’s job assignment changed, and Mrs McKennon 
was reassigned as secretaiy' to Imogene Stoneking, 
Comptroller. In this position, her duties included



11a

maintaining personnel files, working on preparation of the 
annual budget, maintaining petty cash vouchers for expense 
reimbursements, processing time sheets, making travel 
arrangements, directing the personnel department regarding 
employee changes, and other duties, including miscellaneous 
tasks assigned directly by Ms. Stoneking. Complaint at 3 
(filed May 6, 1991; Docket Entry No. 1).

Mrs. McKennon was an employee at will. Either 
party could terminate the employment relationship at any 
time. Acknowledgement of receipt of Nashville Banner 
employee handbook, dated February 28, 1990, appendix A 
to the Banner’s memorandum to support motion for 
summary judgment (filed January 7, 1992; Docket Entry No. 
8). Mrs. McKennon’s employment was terminated on 
October 31, 1990, at which time she was sixty-tw'o years old. 
According to the Banner, its need to reduce the size of its 
work force led to the decision to terminate her employment. 
She filed this lawsuit on May 6, 1991, alleging age 
discrimination under the Age Discrimination in Employment 
At (ADEA), 29 U.S.C. § 621, et seq., and the Tennessee 
Human Rights Act (THRA) Tenn. Code Ann. § 4-21-101 se 
seq.

During the course of Mrs. McKennon’s deposition on 
December 18, 1991, the Banner discovered that when Mrs. 
McKennon was a secretary to Ms. Stoneking, she copied and 
removed from the Banner’s premises the following 
confidential documents: Nashville Banner Fiscal Period 
Payroll Ledger dated 9/30/89; Nashville Banner Publishing 
Co. Inc., Profit and Loss Statement dated 10/30/89; a note 
from Elise to Simpkins; a memorandum from Imogene 
Stoneking to Irby C. Simpkins, Jr., dated 2/3/89; a 
handwritten note dated 2/8; and an Agreement between the 
Banner and one of its managing employees (notarized 
3/1/89). Memorandum in support of defendant’s motion for 
summary judgment, appendices, D, F, H (filed January 7, 
1992; Docket Entry No. 8). She took them home and 
showed them to her husband. Defendant’s statement of



12a

undisputed facts at paras. 7-9 (filed January 7, 1992; Docket 
Entry No. 9). Mrs. McKennon argues that she copied and 
removed the documents for her "insurance" and "protection," 
"in an attempt to learn information regarding my job security 
concerns." Deposition of Christine McKennon taken 
December 18, 1991, at 241 (filed April 10, 1992; Docket 
Entry No. 39); affidavit of Christine McKennon at para. 12 
(filed March 16, 1992; Docket Entry No. 28). As a result of 
this discovery, the Banner sent her a letter of termination on 
December 20, 1991. Exhibit A to appendix I of 
memorandum in support of defendant’s motion for summary 
judgment.

On January 7, 1992 the Banner filed its motion for 
summary judgment based on the after-acquired evidence 
doctrine. Mrs. McKennon argues that the doctrine is 
inapplicable in the instant case and therefore summary 
judgment is improper.

II.
The Court has subject matter jurisdiction over Mrs. 

McKennon’s ADEA claim under 28 U.S.C. § 1331, the 
federal question statute. The Court has pendent jurisdiction 
over Mrs McKennon’s claim under the THRA.

A .'

Summary Judgment Standard

Summary judgment is proper when there are no 
genuine issues of material fact and the moving party is 
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). 
The parties do not dispute the duration and nature of Mrs. 
McKennon’s employment with the Banner; nor do they 
dispute that she copied and removed confidential materials 
from the Banner’s premises without permission. There is an 
apparent dispute, however, about the dates Mrs. McKennon 
took the documents. Further, Mrs. McKennon disputes that 
her copying and removal of the documents constituted such 
misconduct that would justify the application of the after-



13a

acquired evidence defense. She argues that her actions were 
justified for her own protection. She argues that those 
issues should be left to the jury.

None of these disputes are material to the resolution 
of this case. The Court finds that what is material in this 
case is that Mrs. McKennon’s copying and removal of the 
confidential documents constituted misconduct, which was in 
violation of her obligations as a confidential secretary. The 
dates on which she took the documents are irrelevant as 
long as she took them prior to her termination. Therefore 
the Court holds that there are no genuine issues as to 
material facts.

B.

The After-Acquired Evidence Doctrine

The Banner argues that it is entitled to summary 
judgment on the basis of the after-acquired evidence 
doctrine. This doctrine was stated clearly by the Tenth 
Circuit in Summers v. Stale Farm Mat. Auto. Ins. Co., 864 
F.2d 700 (10th Cir. 1988). It was adopted by the Sixth 
Circuit in Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 
(6th Cir. 1992).

The Banner argues that under Summers and 
Honeywell, Mrs. McKennon is precluded from recovery, even 
assuming that she had been subjected to age discrimination, 
since Mrs. McKennon’s unauthorized copying and removal 
of confidential materials, if known to it at the time, would 
have resulted in her immediate termination. Defendant’s 
supplemental authority in support of summary judgment at 
3 (filed March 3, 1992; Docket Entry No. 17).

In Summers, the plaintiff alleged he was wrongfully 
discharged from his position as a field claims representative 
due to his age and religious beliefs. In preparing for trial, 
the defendant employer examined the plaintiffs records and 
discovered that he had falsified over 150 records. The Tenth



14a

Circuit agreed with the defendant’s argument, that although 
this after-acquired evidence might not be relevant to show 
why the plaintiff was discharged, it was relevant in deciding 
what relief, if any, was available to the plaintiff. Summers, 
864 F.2d at 704, 708.

In Honeywell, the plaintiff made false statements as 
to her college degree, other college courses taken and her 
job experience when she applied for the job. The job 
advertisement stated that Honeywell required a college 
degree in order for a candidate to be eligible Honeywell, 955 
F.2d at 411-12. The Sixth Circuit held that "under Michigan 
law', an employer may rely upon an employee’s false 
representations made at the time of employment, of which 
the employer was unaware, and which were not the grounds 
for the employee’s wrongful discharge, as a just cause 
defense to the employee’s wrongful discharge and state civil 
rights claims." / i d .  at 410-11. The Sixth Circuit in Honey well 
adopted the reasoning of Summers

while evidence acquired by an employer during 
discovery regarding plaintiff’s 150 falsified claims 
during his employment as a field claims 
representative could not be said to constitute the 
actual "cause" for plaintiff’s discharge, it was relevant 
to his claim of "injury" and precluded the grant of 
any relief or remedy under the federal civil rights 
law.

Honeywell, 955 F.2d at 415 (citing Summers, 864 F.2d at 
70S). "To argue ... that this after-acquired evidence should 
be ignored is utterly unrealistic." Honeywell. 955 F.2d at 415 
(quoting Summers, 864 F.2d at 708).

The Banner also has brought to the Court’s attention 
a very recent case: O’Day v. McDonnell Douglas Helicopter 
Co., 784 F.Supp. 1466 (D. Ariz. 1992), which relied on 
Summers in applying the after-acquired evidence defense. 
O’Day is factually similar to the case presently before this 
Court. In ODay, the plaintiff, approximately six weeks



15a

before he was selected for a company-wide lay off, 
surreptitiously entered his supervisor’s office, removed his 
confidential personnel file from the desk, photocopied 
portions of the file, removed the copied documents from the 
premises, and showed the documents to another individual. 
A week later, without any authorization, Mr. O’Day returned 
to his supervisor’s office after his shift, copied his entire 
personnel file, and removed the copied documents from the 
premises. Mr. O’Day claimed his purpose was to gather 
information to prepare his charge with the EEOC. O’Day, 
784 F.Supp. at 1467. The employer discovered Mr. O’Day’s 
wrongdoing only when counsel deposed him in defending the 
age discrimination lawsuit. Id. at 1468. The court in O’Day 
applied the after-acquired evidence doctrine. Finding that 
there was "no question as to the outcome of Mr. O’Day’s 
employment status" had his employer known of his 
misconduct, the court granted summary judgment to the 
defendant. Id. at 1469.

Mrs. McKennon disputes the applicability of the 
after-acquired evidence doctrine. In addition, she claims 
that her conduct was justified for her own protection. She 
argues that the instant case differs from Summers and 
Honeywell1 in that, in those cases, the alleged misconduct 
concerned material misrepresentations as to the plaintiffs’ 
qualifications whereas it is not so here.2 The Court agrees 
that Mrs. McKennon’s misconduct was not identical to the 
misconduct in those cases. However, what matters is not 
whether the alleged misconduct is of exactly the same 
pattern. The central issue is the nature and materiality of

1 Mrs. McKennon has not filed a response to the defendant’s 
second supplemental authority (/.<?., the O ’Dav case).

2 The court in Summers found "no meaningful distinction 
between a case involving the rejection of an application and a case 
involving the discharge of an employee." Summers, 864 F.2d at 707 
n.3.



16a

the alleged misconduct. Cf Honeywell, 955 F.2d at 413. 
Mrs. McKennon admits that, as a confidential secretary to 
the managing staff of the Banner, she was obligated to not 
violate her duty of confidentiality. Affidavit of Imogene L. 
Stoneking at 1-2 (filed March 10, 1992; Docket Entry No. 
24); McKennon deposition at 136, 137, 158. By copying and 
removing confidential materials without any authorization, 
she violated this duty of confidentiality.

In order to rely on the after-acquired evidence 
doctrine, the Banner must prove that, had it known of Mrs. 
McKennon’s misconduct, it would have terminated her 
employment. O’Day, 784 F.Supp. at 1468.

[Tjhe after-acquired evidence must establish valid 
and legitimate reasons for the termination of 
employment.... These requirements are necessary to 
prevent an employer from combing a discharged 
employee’s record for evidence of any and all 
misrepresentations, no matter how minor or trivial, 
in an effort to avoid legal responsibility for an 
otherwise impermissible discharge.

Honeywell, 955 F.2d at 414.
In this case, the Banner has established just cause for 

firing Mrs. McKennon by producing undisputed evidence 
establishing the nature and materiality of Mrs. McKennon’s 
misconduct. Mr. Irby C. Simpkins, Jr., President of the 
Banner, stated that he would have terminated her 
immediately had he learned of her misconduct at any time 
prior to her discharge from the Banner on October 31, 1990. 
Affidavit of Irby C. Simpkins, Jr. at para. 5, appendix I to 
memorandum in support of defendant’s motion for summary 
judgment.

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



17a

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. Mrs. 
McKennon has brought forth no evidence tending to prove 
that the Banner would have continued her employment had 
it learned of her misconduct prior to her termination.

Mrs. McKennon next argues that this case is different 
from Honeywell, in that she established apiima facie case of 
age discrimination and that a nexus exists between her 
misconduct and her discrimination claim. Plaintiffs 
response to defendant’s motion for summary judgment (filed 
March 16, 1992; Docket Entry No. 25). The court in 
Summers, which was adopted by the Sixth Circuit in 
Honeywell, assumed age discrimination and still found that 
the after-acquired evidence doctrine prohibited recovery. 
Summers, 864 F.2d at 708. The nexus argument is irrelevant 
for the resolution of this case. If a plaintiff has engaged in 
misconduct severe enough to warrant termination upon 
discovery by the employer, then that plaintiff has no grounds 
that justify recovery for her termination. Whether the 
misconduct is related to the plaintiffs claim is irrelevant. 
Cf. Honeywell, 955 F.2d at 414; Summers, 864 F.2d at 704-07.

Mrs. McKennon’s argument that she copied and 
removed the confidential materials for her own protection 
must also fail. It is recognized under the ADEA that an 
employee may not be discharged on the basis of the 
"opposition clause."3 Mrs. McKennon has not made such a

3 29 U.S.C. § 623(d) provides:

Opposition to unlawful practices; participation in 
investigations, proceedings, or litigation

It shall be unlawful for an employer to discriminate against
(continued...)



18a

claim and her conduct does not fall into that category.

III.
CONCLUSION

For the reasons stated above, the Banner’s motion 
for summary judgment is granted. 3

3(...continued)

any of his employees or applicants for employment, for an 
employment agency to discriminate against any individual, or 
for a labor organization to discriminate against any member 
thereof or applicant for membership, because such individual, 
member or applicant for membership has opposed any 
practice made unlawful by this section, or because such 
individual, member or applicant for membership has made a 
charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or litigation under this chapter.