After-acquired Evidence in Employment Litigation
| Publication year | 1993 |
| Pages | 737 |
| Citation | Vol. 04 No. 1993 Pg. 737 |
1993, April, Pg. 737. After-Acquired Evidence in Employment Litigation
During an employment lawsuit, the defendant-employer may learn of evidence casting doubt on whether the employer would ever have hired the plaintiff-employee or would have dismissed the employee sooner. Typically, the evidence concerns réAsumé fraud or evidence of employee misconduct that occurred during the employment relationship but which escaped detection.
The U.S. Supreme Court has not directly addressed the question. However, as discussed in this article, many lower federal courts have accepted the defensive value of so-called "after-acquired" evidence.
The Tenth Circuit recognized that after-acquired evidence may be a complete defense to an employee's suit in Summers v. State Farm Mutual Automobile Insurance Co.(fn1) State Farm secured summary judgment on the basis of 150 instances of records falsified by Summers that were unknown to the insurer until it audited Summers' files shortly before trial. The Tenth Circuit Court of Appeals upheld State Farm's position that, due to the falsifications, Summers should not be given any relief on claims of age and religious discrimination arising from his termination.
The court based its decision on the "mixed motive" analysis in Mt. Healthy City School District v. Doyle.(fn2) There, the U.S. Supreme Court had held that while protected conduct may have played a role in the district's decision to dismiss Doyle, if the school district would have dismissed Doyle based on other misconduct had the protected conduct never occurred, the dismissal could not be the basis for any relief.
The Summers court rejected Summers' attempt to limit the defense to circumstances of prehire misrepresentation.(fn3) It assumed that the termination had been discriminatory but concluded that Summers was entitled to no relief:
The present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a "doctor." In our view, the masquerading doctor would be entitled to no relief, and Summers is in no better position.(fn4)
The U.S. District Court for the District of Colorado has considered Summers in two reported opinions, Bonger v. American Water Works(fn5) and Punahele v. United Air Lines, Inc.(fn6) In Bonger, a sex and national origin discriminatory termination case, American sought summary judgment on the basis that (1) contrary to information on her application, Bonger did not have a college degree and (2) while employed, she had taken several thousand pages of confidential personnel files from American to turn over to her attorney.
The court framed the test as requiring proof that the employer "would have discharged the employee had it known of the misconduct."(fn7) The court explained as follows:
This requirement is intended to prevent an employer, after being charged with unlawful discrimination, from reviewing an employee's file to discover minor or technical infractions for use in a Summers defense.(fn8)
In weighing the résumé fraud aspect of American's motion, the court considered whether American (1) would not have hired Bonder but for the résumé esume fraud and (2) would have discharged her on discovery of the misrepresentation. The court pointed out situations in which résumé fraud might not lead to termination, such as an excellent work record, an extensive investment in training or extenuating circumstances for the misrepresentation. Why the court rejected the "would not have hired" test is unclear.(fn9)
The court accepted American's affidavits that referenced "a policy of American that dishonesty in the application process is grounds for termination."(fn10) Alternately, the court found ample evidence that misappropriation of the confidential personnel files would have led to termination.
In Punahele, an age discrimination refusal-to-hire case, the court read Summers as providing "a defense that Punahele would not have been hired even absent discrimination."(fn11) United made a Summers argument on the basis...
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