Mckennon v. Nashville Banner Publishing Company: Progression of the After-acquired Evidence Doctrine - Lauren L. Logan

• Jurisdiction: United States,Federal
• Publication year: 1996
• Citation: Vol. 47 No. 3

McKennon v. Nashville Banner Publishing Company: Progression of the After-Acquired Evidence Doctrine

In McKennon v. Nashville Banner Publishing Co.,¹ the United States Supreme Court held that after-acquired evidence of employee wrongdoing that would have led to termination on lawful and legitimate grounds does not bar the employee from all relief sought under an employment discrimination action.² The plaintiff, Christine McKennon, had worked for the defendant, Nashville Banner Publishing Company, for thirty years when, as claimed by Banner, she was discharged as part of a work force reduction plan.³ McKennon, who was sixty-two years old at the time of her discharge, claimed that her termination was based on her age.⁴ She filed suit in the United States District Court for the Middle District of Tennessee, alleging a violation of the Age Discrimination in Employment Act of 1967 ("ADEA")⁵ and seeking the legal and equitable remedies available under the statute—back pay and liquidated damages.⁶ During discovery, Banner took McKennon's deposition and learned she had copied confidential documents concerning the company's financial condition.⁷ McKennon maintained she copied the documents for her own protection.⁸ Banner sent McKennon a letter saying that her actions were in violation of her job responsibilities and again notified her that she was terminated.⁹ The letter indicated that if Banner had known of McKennon's misconduct at the time of her termination, it would have discharged her at once for that reason.¹⁰ Both parties agreed that had Nashville Banner known of McKennon's misconduct before discharge, the company would have had lawful grounds for discharge based on the neutral application of Banner's employment policies.¹¹ In order to reach summary judgment, Banner conceded discrimination against McKennon.¹² The district court held that McKennon's misconduct constituted grounds for termination and that, based on the after-acquired evidence doctrine, she was not entitled to any remedies under the ADEA.¹³ The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale.¹⁴ The United States Supreme Court granted certiorari to resolve conflicting views among the circuit courts of appeals and held that an employee discharged in violation of the ADEA is not barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing, that in any event, would have led to the employee's termination on lawful and legitimate grounds.¹⁵ In addition, the Court determined that back pay, but not reinstatement or front pay, is appropriate under the ADEA if all relief is not barred.¹⁶

When dealing with employment discrimination cases, there is a continuum to which a court must refer concerning the severity of an employer's discrimination versus the degree of an employee's wrongdoing.¹⁷ Employment discrimination cases may be separated into three categories: inferential disparate treatment cases, mixed motive cases, and after-acquired evidence cases.¹⁸ An example of an inferential disparate treatment case is McDonnell Douglas Corp. v. Green.¹⁹ In McDonnell Douglas, the plaintiff established prima facie requirements for disparate treatment.²⁰ Defendant McDonnell Douglas maintained that the company refused to rehire the employee based on his illegal action concerning civil rights demonstrations directed at McDonnell

Douglas.²¹ The Court concluded when the prima facie requirements of disparate treatment exist, an employer may not use employee conduct as a pretext for refusing to rehire.²² A legitimate, nondiscriminatory reason must be shown with evidence that clearly explains its proffered reason.²³ The prima facie elements will be applied to each case in a flexible manner.²⁴ Prima facie evidence establishes disparate treatment unless the defendant employer can show a legitimate reason for termination.²⁵ This legitimate reason for termination, or even disciplinary action, forms a natural transition by courts to the application of the "mixed motive" doctrine. The Supreme Court dealt with the issue of mixed motive in Price Waterhouse v. Hopkins.²⁶ In order for a case to meet the mixed motive doctrine, an employer must show (1) there was both a legitimate reason for termination as well as an illegal reason at the time of termination, and (2) that the legitimate reason would have resulted in termination without any reliance on the unlawful reason.²⁷ This approach has been termed the "same decision" rationale.²⁸ Remedies available under the mixed motive doctrine vary depending on the discrimination statute involved.²⁹ Title VII³⁰ allows for compensatory and punitive damages while the ADEA allows for back pay and injunctive relief.³¹ After-acquired evidence varies from mixed motive in that when dealing with after-acquired evidence, at the time of termination, no lawful or legitimate reason for termination was known to the employer.³² It is important to distinguish an after-acquired evidence situation from a mixed motive situation.³³ For a case to fall under the after-acquired evidence doctrine, an employer must be able to establish that if it had known of the employee's misconduct prior to unlawful termination, such knowledge would have resulted in immediate termination.³⁴ Prior to the decision in McKennon, there was disparity among the circuits concerning the effects of after-acquired evidence. In Milligan-Jensen v. Michigan Technological University,³⁵ the Sixth Circuit determined that an employee suffered no legal damage from EEOC sexual discrimination because of after-acquired evidence that the employee had falsified her employment application.³⁶ In like fashion, the Seventh Circuit in Washington v. Lake County,³⁷ initially called what was in fact an after-acquired evidence case, a mixed motive case, and applied a similar rationale as the Sixth Circuit in Milligan, barring the employee's relief.³⁸ However, more recently, the Seventh Circuit in Kristufek v. Hussmann Foodservice Co.,³⁹ and the Eleventh Circuit in Wallace v. Dunn Construction Co.,⁴⁰ both found, to varying degrees, that after-acquired evidence does not bar all relief.⁴¹ The Seventh Circuit, in Washington, originally found that such evidence barred relief, but later found in Kristufek that such evidence only limits relief.⁴² Whereas, the Eleventh Circuit in Wallace "expressly rejected" that the doctrine of after-acquired...