Case Analysis Revised

Case Analysis: 1995: McKennon v Nashville Banner
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Case Analysis: 1995: McKennon v. Nashville Banner.Popularly referred to as the McKennon case this is a case between Mrs. Christine McKennon who sued her former employer Nashville Banner Publishing Company. Mrs. McKennon aged 62 years had filled the suite claiming her dismissal from the publishing company amounted to wrongful termination under the discrimination Act legislated in 1967 (Bogardus, 2009). She had worked at the firm for 39 years as a secretary during which reports on her job evaluation were always excellent. During her stint, she served as secretary to six individuals including the executive vice president of the company Mr. Jack Gunther whom she worked under for seven years. In 1989 upon reassignment of Mr. Gunther to a new role, she moved to serve as secretary to the comptroller Ms. Immogene Stoneking. It is during this time that she received reports that Banner was placing their jobs on the line due to financial woes. Along the way she receives instructions from Ms. Stoneking to shred some records that were evidence of the liquidity problems the newspaper was facing. After being discharged from her position on 31st October 1990 and hired two 36-year-old secretaries, Mrs. McKennon then filled a suite at the United States district court for the middle district of Tennessee challenging the company’s decision in May 1991. The Company would later learn that during her final position held at the company she had made ten copies of confidential documents and took them home.

She admitted to obtaining the said documents using them to seek her husband’s advice on the security of her tenure at the company and as her ‘insurance’ and to accord her ‘protection.’ The newspaper then submits to the court that had the misconduct been detected earlier then the plaintiff would have been dismissed promptly (Bogardus, 2009). Nashville Banner then applies to the court to grant them a summary judgment in the light of the recent discovery. The court avers that it sees no tangible material evidence that Mrs. McKennon had suffered injury due to her dismissal and grants the respondent the sought for summary judgment. The court subsequently determines that her misconduct had been grave enough to guarantee immediate dismissal and as such relieves the employer of any liability. Based on this judgment, the company then ‘terminated’ her services again in December 1991, though they had actually carried out this nine months earlier. Her admission had led to barring of recovery of her age discrimination complaint that she had lodged at the Federal district court and her subsequent appeal at the sixth circuit court of appeal (O’Brien, 1995).
Logan (1996) alludes to employment discrimination cases being categorized into three groups including after acquired evidence, that is discussed here, inferential disparate treatment in addition to mixed-motive cases (Logan, 1996). Title VII part of Civil Rights law of 1964 is the pillar upon which these categories emanate. That part of the act focusses on individuals protected group status that should play no role in decisions touching on his employment. Disparate inferential cases occur where the employer seems to be treating the individual or a group differently. Title VII of the law is meant to dissuade racism and gender discrimination in the workplace but is being watered down by the circumstantial arguments by the plaintiff’ (Green, 1999). The employer’s action might in this case facially appear as neutral. In mixed motive cases, the employer could be having a valid reason for taking action on the employee and the employee also proves that the protected nature she belongs to contribute to the employer’s ultimate decision (Gerken, 1993). In an after acquired evidence case, upon being sued the employer might discover that the litigant’s involvement in some form of misconduct. The employer will then employ retaliatory litigation by bringing the evidence forth to the court and arguing that either way it would have formed the basis for employment decision it took (Hart, 2008). There is a distinction between mixed motive and after acquired litigations both in practice and in theory. The latter do not confer protection against injury to the litigant. This district court of Tennessee affirmed this while arguing that the plaintiff had not suffered a noticeable harm to warrant the overruling of the respondent’s prayer for summary judgment.
The after-acquired evidence doctrine is characteristic of several employment discrimination suits. It came into existence in 1988 after its establishment by the tenth circuit court. As noted above it involves a bid by the respondent in a discriminatory litigation case trying to escape liability by alleging misconduct on the plaintiff’s part while she was in active employment. Note that the adducing of the evidence follows the institution of the legal proceedings. The prayers of the employers while tabling the evidence in court, is usually for the granting of a summary judgment with the argument that the discovered evidence could have led to the plaintiff’s dismissal had they been unearthed earlier. The respondent in the discriminatory case thus paints the picture as that of the plaintiff gaining from her wrongdoing. Based on the rationale described here, the sixth circuit court decided to affirm the lower court’s decision in the McKennon vs. Banner case.
Commission for Equal Employment Opportunity appeared as Amicus curiae for the plaintiff while the Equal Employment Advisory Council did the same in for the respondent. The district court while delivering its ruling on summary judgment pointed out that Mrs. Christian McKennon had not suffered a physical injury during the perpetration of the alleged discrimination. Mckennon’s prayer was that the judges would award her compensation and she alluded to there being a nexus between her misconduct and the anti-discrimination proceedings. She further urged the court that the after-acquired evidence should not act as an impediment to following the ADEA. She pointed out that her misconduct did not entail employment application fraud but was committed while underemployment. This line of argument aimed at dissuading the court from granting summary judgment.
The employers, in their response argued that Mrs. McKennon’s dismissal was the result of a plan to cut down on their workforce for financial reasons contrary to her claim that it was due to her age. Company documents that the plaintiff had accessed and copied at the company included the company’s fiscal period payroll ledger, profit and loss statement, notes from McMillan addressed to Simpkins, a memorandum and an agreement between a top management employee and the newspaper. Banner argued that the action of copying the documents denied the company its lawful right to keep employees information confidential. The plaintiff’s actions, argued Banner, did not fall under the category of protected conduct. It was thus their prayer for summary judgment.
Awarding of a summary judgment requires a case to be devoid of genuine issue and tangible facts. While observing this, the court also determined that the after-acquired evidence was damaging to the claimant’s case and it closed the window on the relief or remedial action. As a precedent, the court referred to the litigation pitting Michigan Technological University versus Milligen Jensen. Ms. Jensen had apparently failed to disclose a case of Driving under the Influence incident she had undergone as she was making her job application. This formed part of the after-acquired evidence used in that case. Another case used as precedence was the case where Johnson had filed a discriminatory litigation proceeding against Honeywell Information Company. Here Johnson had been involved in an employment application fraud by stating on her resume that she had a bachelor’s degree yet this was false. These cases persuaded the judges that after-acquired evidence could thus act as a bar for any claims sought by the employee. The court further argues that the alleged nexus between the Mrs, McKennons misconduct and the case before the judges was irrelevant. The court stated that the nexus theory would only apply in an instance where an employee would take an employer’s money with the knowledge that they would suffer undue dismissal. In its final ruling the court upholds the district court’s decision.
The Supreme Court weighed in when the matter came before it and delivered a unanimous decision disagreeing with the position taken by the lower courts. The court ruled that any employee who is dismissed in contravention of the ADEA act would still be entitled to some form of relief even if the employer unearths some misconduct committed before their dismissal. This meant after-acquired evidence could not bar ADEA recovery. It, however, affirmed that after-acquired proof constitutes actions like alteration of resumes, concealing disclosure of misconduct and acts committed during ongoing employment. They argued that the after acquired evidence doctrine was a threat and was negating the values, underlying principles and deployed mechanisms that are brought forth by the federal anti-discrimination statutes. The bench further argues that use of the after-acquired evidence, as a means of escaping liability was against existing law. They aver to the antithetical nature of the doctrine to the provisions as well as goals exposed by the Federal Civil Rights statutes. The court prescribes that the after-acquired evidence should feature at the remedial stage of any litigation process to allow for the functioning of the Federal anti-discriminatory legal provisions. Guidelines to application of the after-acquired evidence at the end of a case formed part of the ruling. As a ground rule upon production of after-acquired evidence in court the claimant is barred from reinstatement or front pay. The respondent has lawful grounds for dismissal of the litigant. Award of Back pay will be from the period that the discriminatory action meted to the point where the after acquired evidence was unearthed. Supreme Court urges the lower courts to put into consideration the interests of all the parties when coming up with an equitable remedial action and to consider any extraordinary circumstance. The respondents concerns as captured through the after acquired evidence should apply when the judges are coming up with the remedial action. This in essence guaranteed a variance in the proposed remedies across the cases. The burden lies with the respondent to illustrate that the after-acquired evidence would be substantial as to warrant dismissal of the employee. In order to mitigate or even avoid ADEA the employee’s performance should influence the employer’s employment decision.
After enactment of several pieces of Civil Rights Act legislation between 1866 and 1963, the 1964 statute has proved to be the epitome of equal employment opportunity. Under the act, the Title VII is tailor-made to provide the foundation for an equal employment opportunity. It is the source of the so-called protected classes, and the employment practices termed as illegal. The Title categorizes the unlawful employment practices according to their mode of action as disparate treatment or impact. The former is whereby an action is towards treating others differently while the later are practices that appear harmless or are even as standard procedures yet they have an impact on those from the protected class. Members of the protected class include members of a particular race, nation, color, sex and religion. The alleged form of unlawful employment practice suffered by Mrs. McKennon is classified as disparate treatment as she deems she was treated differently (Bogardus, 2009). There is legislation that specifically targets those who are aged.
Antidiscrimination statute on age vouches for the employment of older person based on their performance and not their age. The act also aims at arbitrary discrimination based on age and provides an avenue for employers and employees to deliberate on age issues facing them in employment. The 1990 act called older worker benefit confers protection to employees aged forty years and above (Bogardus, 2009). If the employer intends on carrying out massive layoffs or reduction of staff, then he has to offer a waiver to those who are forty years and above. Moreover, the relief provides the employee with a 45-day window to consider the argument. It is under this act that Mrs. McKennon went to court after the company terminated her services and in her part hired two 36 years old.
The Supreme Court delivered a ruling to overturn the decision made by the lower courts was rational after a close analysis of the case. If the Age Discrimination Employment Act confers protection to the aged employees, then it seems that none of the provisions that guarantee this applied to the plaintiff. Banner publishing company argues that her lay off was part of a workforce reduction plan due to financial constraints. It does not escape my imagination that the company went ahead to employ two younger employees as a replacement for Christine. Understandably, she moves to court once this happens. The workforce reduction seems to have had only her as its casualty. If it had been a workforce reduction as intimated by the company where was the 45 days waiver she was entitled to ponder on the arrangement. The Supreme Court is also right when it rules out reinstatement as a remedial action as this would have been illogical considering the company is already waving the misconduct flag. The judges seem to be fair when they allude to the fact that the judges have to consider the issues raised by the employer; they state that the issues have to inform the equitable remedy. The only grey area that caught my attention was when the judges set the back pay upon the period between the discriminatory terminations and when evidence of misconduct was unearthed. The employers are the ones who determine the period for discovery and can decide to set a date that reduces the period earmarked for back payment. When the employer argues that the plaintiff is benefitting from their own wrongdoing then they miss the point because no one would have planned to be discriminated in the future. It is my opinion the ruling by the Supreme Court was well done.
The Supreme Court leaves a leeway when it still grants the court discretion on the determination of the equitable remedial shares. I would advise the employer in such a scenario to ensure that they have credible evidence that can prove misconduct as this would first attract the general rule and thus rule out reinstatement and front pay and serve to limit the back pay (O’Brien, 1996). On this note, the employer should be aware that post-termination evidence of misconduct is still applicable in a court of law and would go a long way in reducing the amount of back pay if it can be proved that the misconduct was grave (Eubanks, 2014). When going through the Supreme Court’s decision, note that the judges aver to the concerns of the employer catching the presiding judges’ attention. I would also suggest to the employers to formulate policies that would limit cases of discrimination at their workplaces. As Whitford (1995) suggests, the employers should formulate policies on personnel to send a clear message to the employees that breach of the code of conduct serious. To counter misrepresentation, the employer should come up with processes to ensure that the checking and counterchecking of resumes is thorough before the employment stage. The employer should always be on top notch when it comes to monitoring the conduct if the employees to detect misconduct early. Before discharging an employee, the employer should see to it that extensive and thorough checks are on not only the employee’s background but also her overall performance at work. The employer should know whether ADEA applies to them since it applies to employers with over 20 employees working each day during the twenty or more calendar weeks during the current or previous calendar year (Feder, 2010). Suppose the plaintiff had doctored documents then the employer still has the option of fraud claims against him. If the scenario was such that the misconduct involved theft of company material then the employer can instigate a counterclaim suit against the employee. In conclusion, it is fair to say that not all was lost for the employers since the judges left the fate for determination of remedial action in the hands of the judges and even prescribe that it should be done in a case be basis. On the other hand, the court limited the presentation of the evidence of misconduct at a later stage of the hearing thus affording the respondent more time to build credible evidence against the plaintiff. I would let the newspaper know that the guidelines given out by the Supreme Court are silent when it comes to attorney fees. Counsel to the company should thus be on the lookout and see to it that he impresses it against the judges that the plaintiff gets to cover the attorney fees.
References
Bogardus, M.A. (2009). Professional in Human Resource Certification Study Guide. Wiley Publishing Incorporation, 3, 1-597.
Eubanks, G. H. (2014). Expanding the After Acquired Evidence Defense to Include Post Termination Misconduct. Chicago-Kent Law Review, 89, 823-848.
Feder, J. (2010). The Age Discrimination in Employment Act. Congressional Research Service, 1-14.
Gerken, K. H. (1993). Note, Understanding Mixed Model Claims Under the Civil Rights Act of 1991: An Analysis of Intentional Discrimination Claims Based on Sex Stereotyped Interview Questions. Yale Law School Legal Scholarship Repository, 91, 1824-1853.
Green, K. T. (1999). Making Sense of McDonnell Douglas Framework: Circumstantial Evidence and Proof of Disparate Treatment Under Title VII. California Law Review, 87, 983-1015.Hart, M. (2008). Retaliatory Litigation Tactics: The Chilling Effects of After-Acquired Evidence. Colorado Law Scholarly Commons, 40, 294.
Logan, L. L. (1996). McKennon v. Nashville Banner Publishing Co.: Progression of after Acquired Evidence Doctrine. Mercer Law Review, 47, 937-943.
O’Brien, N. C. (1995). McKennon v. Nashville Banner Publishing Co.: The Supreme Court Puts after Acquired Evidence in its Rightful Place. Business Law Review, 28, 47-67.
O’Brien, N. C. (1996). The Impact of After Acquired Evidence in Employment Discrimination Cases after McKennon v. Nashville Banner Publishing Co. Creighton Law Review, 29, 675-689.
Whitford, L. C. (1995). While the United States Supreme Court Waves Goodbye to the After Acquired Evidence Doctrine, It May Allow the Employer to Hold a Card up its Sleeves in McKennon v. Nashville Banner Publishing Co. Nebraska Law Review, 74, 374-410.