Where an employer seeks to rely upon after-acquired evidence of wrongdoing, in a case brought under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq., it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.
McKennon was 62 years old when she lost her job. McKennon, claiming that she had been discharged because of her age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), filed suit against her employer in the United States District Court for the Middle District of Tennessee. In a pretrial deposition, the employee testified that she had removed and copied several of the employer's confidential documents during her final year of employment. A few days after these deposition disclosures, the employer sent the employee a letter declaring that her actions had been in violation of her job responsibilities, advising her once again that she was terminated, and reciting that if the employer had known of her misconduct, then the employer would have discharged her at once for that reason. However, for purposes of summary judgment, the employer conceded its discrimination against the employee. The District Court, granting summary judgment for the employer, stated that the employee's misconduct had been the grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale.
Was McKennon barred from all relief because of after-acquired evidence of her wrongdoing that would have resulted in discharge?
The United States Supreme Court reversed and remanded. It was held that (1) an employee discharged in violation of the ADEA is not barred from all relief under the ADEA where, after the discharge, the employer discovers evidence of the employee's wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds; but (2) a court must consider how such after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered; (3) an employer seeking to rely on such after-acquired evidence must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of such wrongdoing at the time of the discharge; and (4) for purposes of determining appropriate relief in cases of this type--where the beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date on which the new information was discovered--(a) neither reinstatement nor frontpay is an appropriate remedy as a general rule, but (b) an absolute rule barring any recovery of backpay would undermine the ADEA's objectives.