DRAFT 2/22/2007 Do Not Cite or Circulate without Permission The Uses and Abuses of After-Acquired Evidence In Employment Discrimination Litigation Melissa Hart1 Introduction In a 1995 decision that has received markedly little attention, the Supreme Court blessed the use of the “after-acquired evidence” doctrine in employment discrimination litigation.2 The doctrine allows an employer to significantly limit its damages, even when found to have discriminated. In order to take advantage of the defense, the employer must show that evidence uncovered after the illegal firing would have prevented the plaintiff’s continued employment even absent discrimination. In McKennon v. Nashville Banner Publishing, for example, the employer conceded that it had fired the plaintiff because of her age. However, after the firing, the defendant learned that Ms. McKennon had stolen documents from the company. The Court concluded that, while the defendant was still liable for its discriminatory conduct, the plaintiff was not entitled to reinstatement, front pay or back pay beyond the time when the company discovered the theft of the documents because, at that point, she would have been fired anyway. The after-acquired evidence doctrine is one of a relatively small handful of specific affirmative defenses available to an employer seeking to limit damages in Title VII or other federal employment litigation. As such, one might expect to see the defense raised with some frequency. Its mention in judicial opinions over the past 12 years,

1

Associate Professor of Law, University of Colorado Law School. I am grateful to Rachel ArnowRichman, Jonathan Fineman, Marty Katz, Nantiya Ruan and Catherine Smith for early feedback on this paper and to Grant Sullivan for his research assistance. 2 McKennon v. Nashville Banner Publishing, 512 U.S. 339 (1995).

1

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission however, has been relatively rare. Since 1995, the after-acquired evidence doctrine has merited discussion in about 180 judicial opinions.3 While this number is high enough to permit interesting patterns to emerge in the deployment and consideration of the defense, it is a smaller number than might be expected given the doctrine’s considerable impact on a plaintiff’s potential to recover damages. This article will consider why after-acquired evidence is so little represented in reported opinions. While one explanation might be that employees don’t often engage in conduct that could support the after-acquired evidence defense, available research from human resources experts suggests quite the opposite. The kinds of employee misconduct that might support the defense are actually quite prevalent. In fact, after-acquired evidence is missing from the pages of the federal reporters because it often ends litigation before it ever gets as far as a judicial opinion. When defendants search for, use, or threaten to use after-acquired evidence in employment litigation, plaintiffs are less likely to pursue their claims. This chilling effect raises the question whether employees may be able to claim that use of the after-acquired evidence doctrine constitutes impermissible retaliatory conduct. The Supreme Court’s recent decision in Burlington Northern RR v. White concluded that retaliation encompassed any employer action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”4 The aggressive discovery that leads to information about application or resume fraud that was of no importance prior to

3

My survey found about 300 cases in both state and federal courts in which the plaintiff brought claims under a federal antidiscrimination statute and the defendant appears to have raised the after-acquired evidence argument. In 78 of them, the after-acquired evidence issue was not discussed in any substance or ruled upon. In about 220, after-acquired evidence merited at least brief, and in many cases extended discussion. About 40 of these cases pre-dated the Supreme Court’s McKennon decision. 4 126 S. Ct. 2405, 2409 (2006).

2

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission litigation, or about plaintiff conduct that entirely post-dates the at-issue employment could certainly have a chilling effect on the willingness of potential plaintiffs to challenge illegal employer conduct. Taking the language of White seriously, a retaliation charge premised on the aggressive use of after-acquired evidence seems entirely plausible. The intersection of the two doctrines, however, raises a variety of questions about the conduct of litigation, the employer’s right to assert available defenses, and the purposes of federal antidiscrimination law.

II.

After –Acquired Evidence in Federal Employment Litigation The after-acquired evidence doctrine is not unique to employment discrimination

cases. Its use in the employment discrimination context only became a matter of regular litigation in the 1980s, when courts around the country began accepting defendants’ argument that a plaintiff who had engaged in conduct that would have lost him the job even absent discrimination had essentially not been discriminated against in the eyes of the law. These courts concluded that after-acquired evidence would operate as a complete bar to liability.5 The doctrine thus framed was a powerful tool for defendants. As one lawyer put it at the time, “[I]t was a goldmine or a godsend. All you have to do is take an employee and find out something that they have done wrong, some misconduct that you never knew about and, boom, there goes their civil rights claim.”6 The Supreme Court’s decision in McKennon took some of the teeth out of the defense by giving it the power to limit damages, but disapproving its use to eliminate liability entirely. Despite this modification, the doctrine continues to play an important 5

513 U.S. at 356 (describing circuit split, with majority view that after-acquired evidence eliminated liability). 6 Michael Terry, attorney for Christine McKennon, NPR, 1995.

3

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission and largely unexamined role in employment discrimination litigation. This Part will consider the current use of the after-acquired evidence doctrine. It will first describe the Supreme Court’s McKennon decision, and will then go on to evaluate how the doctrine has been used in the years since that opinion was handed down. One part of this evaluation consists of an analysis of all of the cases in state and federal court in which the after-acquired evidence defense has been raised in a federal antidiscrimination claim. A second part of the analysis uses interviews with both plaintiffs’ and defendants’ employment attorneys about their experiences with the doctrine and how and when it becomes important in federal discrimination litigation.

A.

McKennon v. Nashville Banner Publishing Co.

McKennon arrived at the Supreme Court after almost a decade of lower court application of the rule in employment discrimination litigation. In the years leading up to the Supreme Court’s decision to grant certiorari in the case, the defense was discussed in about 40 state and federal opinions. These opinions reveal a deep divide between those courts that viewed the defense as an absolute bar to liability and those that were concerned about permitting discriminatory actions to go unsanctioned because of essentially unrelated conduct by the plaintiff. The case came to the Court through the employment history of Christine McKennon, a xx-year employee of the Nashville Banner who lost her job in a reduction in force at the newspaper. She filed a claim of age discrimination and, during discovery, acknowledged that she had certain confidential company documents in her possession. She had taken the documents, she explained, when she became concerned that she was

4

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission going to lose her job. Immediately after learning of the improperly removed documents, the Nashville Banner’s attorney sent Ms. McKennon a letter informing her that she had, once again, been fired – this time for violating company policy. The district court dismissed Ms. McKennon’s claim of age discrimination, concluding that the afteracquired evidence of misconduct that would have been sufficient grounds for termination eliminated the defendant’s liability for age discrimination. As the case came to the Supreme Court, the defendant conceded age discrimination. The only question before the Court is what effect the after-acquired evidence should have on the discrimination claim. A unanimous Court rejected the rule that found no liability. The Court observed that this draconian rule did not accord with the congressional desire to have private litigants vindicate the important antidiscrimination goals embodied in the Age Discrimination in Employment Act.7 Afteracquired evidence of employee wrongdoing cannot, however, be irrelevant to the remedies available to a plaintiff, the Court concluded. “In determining appropriate remedial action, the employee’s wrongdoing becomes relevant not to punish the employee, or out of concern for the relative moral worth of the parties, but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.”8 The Court held that an employment discrimination plaintiff would lose her right to reinstatement and front pay in the face of after-acquired evidence, and that an employer’s

7 8

513 U.S. at 358. 513 U.S. at 361.

5

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission liability for backpay would end, as a general rule, as of the date of the discovery of the new evidence.9 Attorneys litigating McKennon raised the concern that permitting after-acquired evidence to limit a defendant’s liability will encourage defendants to use discovery as an aggressive fishing expedition for some kind of evidence that would have this ameliorating effect. While acknowledging this concern, the Court concluded that “[o]nce an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer, and even if the information might have gone undiscovered absent the suit.”10 The Court expressed faith in lower courts to limit the incidence of overly-aggressive efforts to invoke the doctrine. “The concern that employers might as a routine matter undertake extensive discovery into an employee’s background or performance on the job to resist claims under [federal antidiscrimination laws] is not an insubstantial one, but we think the authority of the courts . . . to invoke the appropriate provisions of the Federal Rules of Civil Procedure will deter most abuses.” By concluding that the affirmative defense would only limit available damages, but not eliminate liability, the Court was widely perceived as benefiting employment discrimination plaintiffs. Certainly a limit on available damages is a less serious penalty than a complete bar to liability. In the years since McKennon was decided, however, the after-acquired evidence has remained a steady tool in the arsenal of defendants’ attorneys.

9

513 U.S. 361-62. 513 U.S. at 362.

10

6

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission B.

The After-Acquired Evidence Defense in Judicial Opinions

I have reviewed all of the reported cases through December 31, 2006 raising federal employment discrimination claims in both state and federal courts that have included mention of the after-acquired evidence defense. By reported cases, I mean cases available on either LEXIS/NEXIS or Westlaw, including unpublished decisions.11 After narrowing the search results appropriately, I was left with 315 judicial opinions.12 Of this number, the after-acquired evidence defense was entirely tangential to 78 of the opinions. In most of these cases, the employer won a summary judgment motion on the merits, obviating the need for any discussion of the doctrine. In the remaining 237 cases, the after-acquired evidence doctrine merited some discussion by the court. In these cases, a few patterns are evident. First, the substantial majority of after-acquired evidence cases involve the discovery by the employer that something in the plaintiff’s initial job application or resume was inaccurate. In 150 cases, falsified documents constituted at least one of the grounds for assertion of the defense. (118 cases involved false statements in the job application. Another 32 involve alleged false statements in the application process (resume, interview or other similar context).) No other category was even close to that prevalent. Among the cases, only 22 involved unauthorized removal of company documents, similar to that involved in McKennon. Another thing that was apparent was that the assertion of the after-acquired evidence defense does not generally get employers out of court. Of the 315 cases 11

A search for “after acquired evidence” on Westlaw yielded 823 hits. A first cut through those cases narrowed the field to 435 cases involving employment disputes. I then narrowed the field to eliminate cases involving state employment law or federal labor law, which left 315 [this number may change slightly, as we are still refining the data set] cases under federal anti-discrimination statutes. 12 In some instances, a single litigation produced more than one judicial opinion – either a district court decision and an appellate decision or a discovery order and a summary judgment ruling, as examples. I included each judicial opinion as a separate data point in this analysis.

7

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission included in this analysis, the defendant lost its summary judgment argument on the issue in 129 cases. In these instances, courts concluded most of the time that issues of fact remained about the seriousness of the violation or some other aspect of the after-acquired evidence defense such that the question should go to a jury. In 88 of the opinions, the courts sided with the defendant on the merits of the after-acquired evidence argument. Most of these defendant victories meant that the case would go forward, but with the plaintiff entitled to significantly limited damages. A number of other interesting patterns emerge from these cases. In only a handful of cases have courts been willing to limit a defendant’s use of discovery calculated to uncover after-acquired evidence, despite the fact that the McKennon Court clearly anticipated that district courts would use such limitations. Recent years have seen employer efforts to expand the doctrine beyond its early limits. For example, courts have been asked with increasing frequency to limit an employee’s damages for a discriminatory firing on the basis of conduct she engaged in after she was fired (and that was, necessarily, “after-acquired”). This effort has received mixed response. And some employers have sought to deploy the doctrine as an alternative to the traditional legitimate non-discriminatory reason (I fired him because he was stealing; alternatively, I did not know he was stealing when I fired him, but I would have fired him had I known he was stealing). [I am still going through these cases, and working through some of the implications of these results. I would be very interested in feedback from readers as to questions that could be posed about this data set.]

8

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission B.

The After-Acquired Evidence Doctrine at the Early Stages of Litigation

The incidence of after-acquired evidence in reported opinions is lower than one would expect of a defense with the potential to dramatically limit liability. It could be that the defense isn’t asserted often because very few potential plaintiffs engage in conduct that would support the defense. Evidence from human resources experts suggests, however, that quite the opposite is true. The kind of conduct that most frequently supports the defense is extremely common. The explanation, then, might be found in the early conduct of litigation: potential plaintiffs whose conduct would support an after-acquired evidence defense might not be getting far enough into litigation for their cases to appear in reported opinions with any frequency. Interviews with both plaintiffs’ and defendants’ lawyers suggest that this is, indeed, the case. This Part will first consider the available evidence that employee conduct supporting an after-acquired evidence defense is relatively common. It will then use lawyer interviews to describe how afteracquired evidence affects the earliest stages of a potential plaintiff’s efforts to vindicate the rights granted by the federal laws prohibiting discrimination.

1.

Common Employee Misconduct

A significant majority of after-acquired evidence claims are based on application or resume fraud that the employer does not notice before the plaintiff files suit, but that is discovered during discovery in the litigation of the discrimination claim. Studies show that resume fraud is extremely prevalent. Some recent studies by human resources experts suggest that 40 or 50 percent of resumes contain inaccuracies.

9

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission [This section needs to be developed. I will be incorporating the results of studies not only on resume fraud, but also on office theft and other misconduct. All of the studies suggest that these types of workplace misconduct are relatively common.]

2.

What Lawyers Say About the Defense and Its Early Impact

Interviews with X plaintiffs’ lawyers and X defendants’ lawyers in major metropolitan areas around the country reveal that after acquired evidence has a significant impact on potential suits both before litigation ever occurs and in the early stages of litigation. [These interviews are ongoing, so this section is a summary of what the interviews are showing at this point.] Plaintiffs’ attorneys who regularly take employment discrimination claims generally use some form of early client screening process. Lawyers report that they take fewer than five percent of the clients who initially approach them with potential claims. These screening interviews will eliminate potential clients for many reasons; one is the client’s admission of some serious misconduct that, in the lawyer’s judgment, is likely to support a successful after-acquired evidence defense. Even if the lawyer doesn’t decline representation, several of the attorneys interviewed had had at least one client decide on her own not to pursue a case because some past misconduct might come to light in the course of the litigation. Although most plaintiffs’ lawyers report that after-acquired evidence comes up during the client screening process, not all potential after-acquired evidence will lead lawyers to turn a client away. In some cases, the reported misconduct will be minor

10

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission enough that the plaintiff’s lawyer believes it will not support the defense. Even in those cases, some lawyers report that they debate whether to take the case, given that the afteracquired evidence arguments are likely to “sidetrack” or “derail” the litigation off of the employer’s discriminatory actions and onto the question of whether the employee would have been fired even absent the discrimination. Whether the plaintiffs lawyer first learns of potential after-acquired evidence during the discovery process or, less commonly, during discovery, both plaintiffs and defendants lawyers report that after-acquired evidences increases the chances that a case will settle, and that it will settle at a lower value than it would have absent the afteracquired evidence. These accounts suggest that the small number of reported opinions of afteracquired evidence is at least in part explained by the fact that a plaintiff with misconduct in her record that might support the defense is unlikely to proceed very far in litigation. Some certainly take the view that this is entirely appropriate – one defendant’s lawyer interviewed, for example, said the presence of after-acquired evidence of misconduct should “absolutely” affect a plaintiff’s right to remedies, as it “shows the plaintiff is dishonest.” But it may also be seen as raising a problem with the defense – if the possibility of discovery of after-acquired evidence is chilling legitimate claims of discrimination, is it interfering with full enforcement of laws prohibiting discrimination. If it is, should courts reconsider the defense? Moreover, if a defendant knows that including the defense in its answer is likely to scare a plaintiff away from pursuing her claims, has the defendant engaged in misconduct of its own?

11

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission III.

Assertion of the Defense as a Form of Retaliation In addition to prohibiting discrimination on the basis of race, sex, national origin

and religion, Title VII also makes it illegal to retaliate against an employee for asserting his or her rights under the statute.13 The precise scope of the anti-retaliation provision has been a subject of debate for years. Last Term, however, the Supreme Court interpreted the provision very broadly, concluding that it prohibited any employer conduct that is “reasonably likely to deter the charging party of others from engaging in protected activity.” This broad interpretation, together with the available evidence about the use and impact of the after-acquired evidence defense, raises the question whether assertion of the defense could plausibly support a claim for retaliation. This Part will take up that question, first examining the Court’s decision in Burlington Northern v. White and lower courts’ subsequent treatment of retaliation claims, then considering arguments for and against treating assertion of the after-acquired evidence defense as a form of retaliatory conduct. The substantive anti-discrimination provisions of Title VII are quite specific in their focus on eliminating discrimination on the job.14 The anti-retaliation provision does not contain any similarly focused language; instead, it states simply that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice… or because he has made a charge, testified, assisted 13

42 U.S.C. 2000e-3(a). 42 U.S.C. 2000e-2(a). Title VII’s core antidiscrimination provisions specifically provide that “It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate or classify his employees or applicants for employment 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 individuals race, color, religion, sex, or national origin.” Id.

14

12

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission or participated in any manner in an investigation, proceeding or hearing” under the statute. Until 2006, there was a deep and expanding divide among the circuits over the proper interpretation of the anti-retaliation provisions, and in particular over what kind of employer conduct constituted an adverse employment action for purposes of triggering this provision. Some circuits required that the allegedly retaliatory conduct be employment-related, essentially applying the same standard for retaliation that they applied for the underlying prohibition on discrimination.15 Other circuits did not require that the employer’s conduct be related to employment in order to constitute prohibited retaliation. These courts concluded that any “adverse treatment that is based on a retaliatory motive and that is reasonably likely to deter the charging party or others from engaging in protected activity” would meet the statutory requirement.16 In Burlington Northern v. White,17 the Supreme Court agreed with those courts that had taken a relatively expansive view of Title VII’s anti-retaliation mandate, holding that the provision “does not confine the actions and harms it covers to those that are related to employment or occur at the workplace.”18 In reaching this conclusion, the Court observed that the purpose of the antiretaliation provision is to secure the goals of non-discrimination “by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.”19 Merely preventing retaliation on the job would not achieve that goal, since “an employer can effectively retaliate against 15

See, e.g., courts See, e.g. courts 17 126 SCT 2405 (2006). 18 Id. at 2409. 19 126 S.Ct at 2412. 16

13

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”20 The standard articulated in Burlington Northern permits a claim of retaliation for “employer actions that would have been materially adverse to a reasonable employee or job applicant” – in other words actions that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”21 In the wake of Burlington Northern, courts and commentators have observed that its standard for retaliation seems very broad. [This section, discussing the response to the case, remains to be developed.]

A.

Other Litigation Conduct as Retaliation

Even before Burlington Northern, some cases had recognized use of the courts as a form of retaliation in other contexts. “[T]he filing of lawsuits, not in good faith and instead motivated by retaliation, can be the basis for a claim under Title VII.”22 In particular, “malicious prosecution can constitute adverse employment action” for purposes of the retaliation provisions of federal antidiscrimination law.23 In Berry v. Stevinson Toyota, the Tenth Circuit concluded that a plaintiff had established a prima facie case of retaliation where he demonstrated that, following his filing of an EEOC complaint, his employer encouraged another employee to report an alleged forgery to the district attorney’s office, prompting the pursuit of criminal charges against the plaintiff.24 20

Id. Id. at 2409. 22 Harmar v. United Airlines, Inc., 1996 U.S. Dist. LEXIS 5346, 1996 WL 199734 (April 23, 1996 N.D.Ill.). See also Cozzi v. Pepsi-Cola General Bottlers, Inc., 1997 U.S. Dist. LEXIS 7979 (N.D.Ill.). 23 Berry v. Stevinson Toyota, 74 F.3d. 980, 985 (10th Cir. 1996). 24 Id.. See also Beckham v. Grand Affair, Inc., 671 F.Supp. 415 (W.D.N.C. 1987) (charging a former employee with criminal trespass after the filing of an EEOC complaint constitutes retaliation). 21

14

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission In another case, an employer filed a civil defamation suit in response to a former employee’s filing of an EEOC sex discrimination charge, and the court concluded that the employer’s lawsuit was actionable retaliation.25 In Gill v. Rinker Materials Corp., the plaintiff filed a claim of discrimination under the Americans with Disabilities Act and defendants responded by bringing a counterclaim for breach of contract and other related claims.26 Plaintiff asserted a claim for retaliation, alleging that the filing of these counterclaims constituted an adverse action taken in response to his filing charges under the ADA. In Gill, the plaintiff argued “the filing of a suit against an employee who has engaged in protected activities can be unlawful retaliation under a broad construction of the anti-retaliation statutes.” In another case, the EEOC commenced an action against the defendant on the grounds that a counterclaim that the defendant had filed in a lawsuit brought by its former employee, who alleged sexual harassment, constituted retaliation.27 “It is certainly true that a lawsuit may be used by an employer as a powerful instrument of coercion or retaliation and that such suits can create a chilling effect on the pursuit of discrimination claims.”28 A potential difference between the filing of a lawsuit or assertion of a counterclaim and the assertion of a defense is the question of timing and the necessity of bringing the claim in the same action. In Gill, the defendants argued that the retaliation claim was inappropriate in part because their counterclaims were, they asserted, compulsory. That being the case, they had no choice but to bring them when the plaintiff

25

EEOC v. Virginia Carolina Veneer Corp., 495 F.Supp. 775, 778 (W.D. Va. 1980). 2003 U.S. Dist. LEXIS 2986 (ED Tenn. February 24, 2003). 27 EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756, 758 (N.D. Ohio 1999). 28 Gill at *11-*12 (internal quotations omitted) 26

15

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission brought his suit. In Gill, the court disagreed that the counterclaims were compulsory and concluded that the defendants could have brought them as independent claims at any time.29 By contrast, the after-acquired evidence defense could only be asserted in connection with a lawsuit pursued by the plaintiff.

B.

Assertion of After-Acquired Evidence Defense as Retaliation

Is it possible that a plaintiff might be able to assert a claim of retaliation in response to a defendant’s assertion of the after-acquired evidence defense? The fact that such a substantial number of cases in which defendants are asserting the defense have involved allegations that the plaintiff engaged in resume or application fraud means that in a significant plurality of these cases, the at-issue conduct would absolutely not have come to light if the plaintiff had not asserted her statutory rights. And the results of interviews with lawyers suggest that potential plaintiffs are sometimes dissuaded from bringing claims at all because of the possibility that evidence of misconduct will eviscerate their potential damages. I was able to find only one case in which a plaintiff actually asserted that use of the after-acquired evidence defense constituted retaliation. In Harmar v. United Airlines, the judge denied plaintiffs’ claim of retaliation, concluding that there is a substantial difference between filing a lawsuit and raising a defense, in terms of their potential as retaliatory adverse action.30 “Presenting an affirmative defense, even a frivolous one, will not support a retaliation claim.”31 In the court’s view, the fact that an affirmative defense would not require the plaintiff to hire a lawyer she had not already hired and 29

Gill at *15-*16. Harmar at *1. 31 Id. 30

16

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission would not chill exercise of rights through the possibility of damages were the key differences between the affirmative defense and filing of a lawsuit. On the other hand, a number of courts have recognized that evidence used to limit a plaintiff’s recovery that is discovered only because the plaintiff brought suit challenging the defendant’s illegal acts “ha[s] the stain of retaliation.”32 Essentially, “after acquired evidence penalizes the wronged employee twice because such ‘evidence would not have been discovered had the employer not discriminated against the employee [to begin with].’”33 In McKennon, the Court anticipated the possibility that defendants would be too aggressive in asserting the defense. The solution, the Court concluded, would lie in the hands of district courts, who could limit defendants’ use of the defense through proper application of the Federal Rules of Civil Procedure. One assumes that the Court meant that lower courts could exercise their authority to limit discovery in response to overaggressive efforts by defendants to find evidence of misconduct. Since McKennon, courts have, on occasion, entered protective orders or quashed subpoenas in instances where defendants’ discovery requests “look like nothing more than a fishing expedition, or, more accurately, an exercise in swamp-drudging and muckraking.”34 At least one court has concluded that the after-acquired evidence defense “should not be used as an independent basis to initiate discovery.”35 However, in other cases, courts have denied plaintiffs’ requests to limit discovery on this theory.36

32

Rivera v. NIBCO, Inc., 204 F.R.D. 647, 650 (E.D. Ca. 2001). See also Mardell v. Harleysville Life Ins., 31 F.3d 1221 (3rd Cir. 1994); Massey v. Trump’s Castle, 828 F.Supp. 314, 321-24 (D.N.J. 1993). 33 Rivera, 204 F.R.D. at 250 (quoting Massey, 828 F.Supp. at 321). 34 Graham v. Casey’s General Stores, 206 F.R.D. 251, 255 (2002) (internal quotation omitted). 35 Premer v. Corestaff Servs., L.P., 232 F.R.D. 692, 693 (D. Fla. 2005). 36 See, e.g. Serrano v. Cintas Corporation, 2006 U.S.Dist. LEXIS 12664 (E.D. Mich March 9, 2006).

17

DRAFT 2/22/2007 Do Not Cite or Circulate without Permission In at least some cases, it seems clear that the assertion of the defense, or the possibility that the defense might be asserted, will chill plaintiffs from filing legitimate claims of discrimination. The broad interpretation of the anti-retaliation provisions articulated by the Court in Burlington Northern would certainly cover this circumstance.

IV.

Conclusion: Should we Abandon the After-Acquired Evidence Doctrine? The after-acquired evidence doctrine risks filtering out serious instances of

discrimination because it puts the plaintiff on trial or, as importantly, because it raises that risk in the mind of the potential plaintiff. By contrast, the current standards for retaliation risk elevating frivolous allegations of discrimination into triable claims or, again, putting employers in a position where they fear taking legitimate action against difficult employees because of the fear of retaliation claims. There may be no good way to avoid either problem. But that does not mean we can ignore them. There may be plenty of good reasons not to allow plaintiffs to assert that a defendant who uses the after-acquired evidence defense is engaged in illegal retaliation. But to reach that conclusion, one has to read exceptions into the Court’s current retaliation doctrine that are not plain in the text of the Burlington Northern opinion. Moreover, I think the possibility that retaliation may be a motivator in assertion of the after-acquired evidence defense is one of many reasons that the defense should be reconsidered. After-acquired evidence is reaching beyond the borders imagined by the Court a decade ago in McKennon and becoming part of a more general effort by employers to call into question the moral worthiness of employment discrimination plaintiffs.

18