After-acquired Evidence in Employment Cases in Alaska: an Alternative Approach

• Citation: Vol. 18
• Publication year: 2001

§ 18 Alaska L. Rev. 59. AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT CASES IN ALASKA: AN ALTERNATIVE APPROACH

Alaska Law Review
Volume 18
Cited: 18 Alaska L. Rev. 59

AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT CASES IN ALASKA: AN ALTERNATIVE APPROACH

TERRY A. VENNEBERG ^[*]

I. INTRODUCTION

II. THE MODEL'S APPROACH TO AFTER-ACQUIRED EVIDENCE

III. PROBLEMS WITH THE MODEL'S APPROACH

IV. AN ALTERNATIVE APPROACH TO APPLICATION OF THE AFTER-ACQUIRED EVIDENCE RULE

A. Application of the McKennon Standard

B. Adoption of the Clear and Convincing Evidence Standard

C. Barring Evidence of Post-Termination Misconduct

V. CONCLUSION

FOOTNOTES

In this Comment, the author critiques a proposed model for the use in employment cases of evidence of employee misconduct acquired after the employee's discipline or dismissal on other grounds. The author argues that the model fails to address concerns about possible employer abuse of the rule allowing introduction of such after-acquired evidence. The author recommends an alternative approach in which employee wrongdoing must be severe and must be proved by clear and convincing evidence, which uses the date of discovery of the wrongdoing as the cutoff for damages, and which prohibits any use of evidence of employee misconduct engaged in after the employee's termination.

I. INTRODUCTION

This Comment will address the points and arguments made in the recent article, A Brief Analysis of After-Acquired Evidence in Employment Cases: A Proposed Model for Alaska (and Points South). ^[1] In the article, the author suggests that, when it next faces [*pg 60] the issue, the Alaska Supreme Court should adopt new rules for the application of the after-acquired evidence doctrine in employment cases. The author contends that the initial approach to after-acquired evidence offered by the Court, as set out in Brogdon v. City of Klawock, ^[2] "conflicts with existing legal principles, represents questionable policy, and needlessly fosters confusion in an already complicated area of law." ^[3]

As this Comment will illustrate, it is the author's proposed approach to after-acquired evidence ("the Model") that would conflict with existing legal principles, implement questionable policy, and needlessly foster confusion in this area of the law. This Comment will examine the proposed Model, describe how it fails to address concerns that have been expressed regarding the after-acquired evidence doctrine, and recommend an approach to after-acquired evidence in Alaska that takes into account those concerns.

II. THE MODEL'S APPROACH TO AFTER-ACQUIRED EVIDENCE

The Model's author notes that "[a]fter-acquired evidence is evidence independent of employee misconduct that the employer discovers after it has already disciplined the employee on different grounds." ^[4] Typically, an employer will raise the "after-acquired evidence" defense in the following scenario: an employee who has been dismissed alleges that his termination was either contrary to a specific provision of law or in breach of the employment contract. The employer, during the course of litigation concerning the dismissal, discovers evidence of alleged misconduct by the employee during that person's employment. The employer then claims that, even if the dismissal at issue in the case is found to be wrongful or illegal, the employee would have been dismissed anyway, in light of the discovery of the alleged misconduct. The employer goes on to assert that it cannot be held liable for the termination, or any damages stemming from the termination, because of the "after-acquired evidence" that it has identified.

The Model incorporates several suggestions concerning the use of after-acquired evidence in employment cases. First, the Model seeks a definition of after-acquired evidence that would not take into account the "significance or materiality" of the conduct in question. ^[5] In order to use after-acquired evidence as a defense, the [*pg 61] employer would be required to establish only that the conduct would warrant a "disciplinary action" of some type. ^[6] The employer would not be required, under this approach, to prove that the employee conduct constituted a terminable offense; the employer would be required to show only that the conduct was in some way a violation of employer rules. ^[7]

Second, the Model would not require that an employer actually prove that the employee engaged in the misconduct alleged. The employer would be required to prove only that it had a "good faith belief" that the employee engaged in the conduct in question. ^[8] This good faith belief may be "based on facts supported by substantial evidence." ^[9] Under this approach, the credibility of witnesses and evidence could not be tested. If one person gave a statement that the employee engaged in the misconduct or rules violation, and numerous others gave a statement to the contrary, the employer could claim "good faith belief" in the validity of the charge based on the single statement and offer the incident as after-acquired evidence.

The author also advances the position that "[a]fter-acquired evidence should bar suit in all wrongful termination cases except those alleging employment discrimination or civil rights claims." ^[10] This position is based primarily on the equitable and contractual nature of the employment relationship and the argument that no employee should be allowed to claim breach of contract where the employee has been shown to have "unclean hands" or to have concealed misconduct from the employer. ^[11] The author goes on, however, to state that suit should not be barred in all cases where after-acquired evidence is offered, distinguishing between cases where there is evidence that "may relate to misconduct which leads to an outcome less severe than termination," and evidence that would support a termination. ^[12] In the former situation, the after-acquired evidence "should bar prospective relief and limit the employee's remedy to damages between the date of wrongful discipline . . . and the date when the employee actually committed the misconduct related to the after-acquired evidence." ^[13]

[*pg 62]

The author also argues for application of a "preponderance of evidence" standard to the after-acquired evidence defense, as opposed to a "clear and convincing evidence" test, claiming that there is no indication that such a heightened level of proof is needed. ^[14] The author adds that "[s]ome commentators, apparently under the assumption that any decision by an employer is inherently pretextual, have suggested an analysis that effectively would impose a clear and convincing standard of proof on employers. . . . No study, empirical or otherwise, has established that employers use after-acquired evidence in an impermissible manner." ^[15]

Finally, the Model posits that evidence of post-termination misconduct should be admissible as after-acquired evidence. ^[16] The author notes that "[i]t is difficult to see how post-discipline misconduct is not relevant and should not be admissible because such misconduct directly relates to an employee's potential remedies." ^[17]

III. PROBLEMS WITH THE MODEL'S APPROACH

The primary difficulty with the proposed Model for application of the after-acquired evidence rule is that it fails, on several levels, to address the concerns expressed by the Alaska Supreme Court and the U.S. Supreme Court regarding potential abuses associated with this defense. Virtually no safeguards are provided in the Model to protect against enthusiastic overuse of the defense by employers in almost every conceivable case where wrongful termination has been alleged. The proposed Model essentially would provide for self-immunization by employers against wrongful termination claims, turning almost any transgression of employer rules, actual or perceived, into a basis for dismissal of such claims. No court that has considered application of the after-acquired evidence rule has offered such facile treatment of concerns associated with the defense.

Any analysis of the after-acquired evidence rule in Alaska must begin with the decision in Brogdon v. City of Klawock. ^[18] In that case, the City of Klawock had issued a supplemental termination notice stating new grounds for terminating Brogdon from his [*pg 63] employment. ^[19] The trial court held that the after-acquired evidence in support of the City's supplemental termination notice could be admitted only if it was evidence that the City reasonably could have discovered had Brogdon not been terminated. ^[20]...