Wallace v. Dunn Constr. Co. - 62 F.3d 374, 1995 U.S. App. LEXIS 24413, 68 Fair Empl. Prac. Cas. (BNA) 990, 130 Lab. Cas. (CCH) P33,278, 66 Empl. Prac. Dec. (CCH) P43,709, 9 Fla. L. Weekly Fed. C 458

Rule:

The after-acquired evidence rule applies to cases in which the after-acquired evidence concerns the employee's misrepresentations in a job application or resume, as well as cases in which the after-acquired evidence relates to employee wrongdoing during employment.

Facts:

Appellee Joyce Annette Neal filed suit against Dunn Construction Company, Inc. ("Dunn"), alleging that: (1) she was not paid the same as her male coworkers, in violation of the Equal Pay Act, (2) she was subject to retaliatory discharge in violation of the Equal Pay Act, (3) she was sexually harassed in violation of Title VII, and (4) she was subject to retaliatory discharge in violation of Title VII. Neal also raised Alabama state law claims for assault and battery and invasion of privacy. During one of Neal's depositions, Dunn learned that Neal had pleaded guilty to possession of marijuana and cocaine in state court in 1987. In her job application, filled out on April 13, 1988, however, Neal had answered "no" to the question, "Have you ever been convicted of a crime?" Dunn moved for partial summary judgment on the federal claims contending, inter alia, that Dunn "discovered that [Neal] falsified her employment application and that she has violated company policy against convictions for drug offenses which are legitimate, non-discriminatory reasons for which she would have been terminated in any event, without regard to sex or retaliation."

The district court denied summary judgment, noting that the Eleventh Circuit had never held that after-acquired evidence bars recovery in a discrimination case. Neal and Dunn jointly filed a motion to certify the order denying Dunn's motion for partial summary judgment for an interlocutory appeal. The district court granted the motion and a panel of the appellate court granted Dunn permission to appeal. In a separate case, another panel granted Dunn’s suggestion for rehearing en banc, vacating the former panel opinion. During the pendency of the en banc proceedings, the Supreme Court rendered its decision in McKennon v. Nashville Banner Publishing Co. wherein it held that after-acquired evidence of wrongful conduct during employment that would have resulted in termination does not "operate[], in every instance, to bar all relief for an earlier violation of the Act." The Court held, however, that "the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered." The Court determined that in cases in which an employee commits an act during employment that would lead to termination and the employer finds out about the act during the course of litigation, "neither reinstatement nor front pay is an appropriate remedy." The Court then discussed backpay, holding that it should be calculated "from the date of the unlawful discharge to the date the new information was discovered," with the court "taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party."

Issue:

Did Dunn prove that "the misconduct revealed by the deposition was so grave that [Neal's] immediate discharge would have followed its disclosure in any event”, thereby making McKennon applicable?

Answer:

Yes.

Conclusion:

There is no genuine issue of material fact that Neal would have been fired when Dunn learned that Neal had lied on her job application about her prior conviction. The Employee Handbook, a copy of which Neal received when she began work, states that falsification of records is conduct for which the company will impose a penalty that may include termination. Two defense witnesses, Tina Fuller and Becky Wallace, stated at their depositions that if someone lied on a job application and Dunn found out, the person could be fired. Dunn's Accountant and Manager for Administration and its Safety Training Director submitted affidavits that Dunn would have fired Neal upon learning that she lied on her application about her drug conviction. In the face of this evidence, Neal provided only her own testimony that she thought that there was a woman who lied on her job application and kept her job. She submitted no proof that anyone who lied on the application about a drug offense was retained after Dunn learned of the misrepresentation. Thus, Dunn has sufficiently demonstrated that Neal would have been fired when it learned of her misrepresentation.