McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)

Background of the Case 

Christine McKennon, who had been a staff at the secretarial position for Nashville Banner Publishing Company (Banner), was fired when she was sixty-two years. The reason given by her employer was that the dismissal was meant to cut down on the expenses and workforce of the company. Contrary to that reason, the company had hired a twenty-six-year-old replacement for McKennon a couple of days before her firing. During the time when she worked at the newspaper company, McKennon was assigned to work under to six different individuals in the newspaper company and had excellent and consistent work performance evaluations. After working for several years as a vice president’s secretary, she was reassigned to work under the comptroller, a position where she had access to sensitive material and information. One year to McKennon’s termination, she made copies of several of those documents and shared them with her husband (Barry & Boland, 2004). 

McKennon was fired from the Banner on October 1990 and filed a lawsuit for her dismissal on May the following year. The basis of the lawsuit was that McKennon’s discharge from employment violated the ADEA and the THRA Acts. McKennon was deposed on December 1991, during the normal discovery process for such cases (O'Brien, 1996). Here, she made an admission stating how she had taken and copied documents from the office as her protection and insurance for her job. However, after that admission, the company wrote her a termination letter explaining that her actions were in breach of her employment agreement and responsibilities. This letter was sent two days after the deposition even though she had been dismissed from work many months earlier. In the letter, the Banner declared that McKennon would have been dismissed anyway had the company learnt of her misconduct. 

In the case between the two parties, the District Court in Tennessee’s ruled in favor of the employer, after making findings that the removal of information from the offices of the company were in violation of McKennon’s obligations as a secretary (Dau-Schmidt & Dvorak, 2010). This summary judgment was based on the nature of McKennon’s misconduct as well as the admission by the Banner that it would have dismissed her from employment immediately had it learnt of her actions. The court concluded that the misconduct of McKennon provided adequate grounds for her termination, although those actions were unknown to her employer at the time of her dismissal. 

The summary judgment given in this case forestalled the employee from getting her case heard in court to show that she was discriminated against by her employer defendant on the basis of her age. Although the employee argued that her actions regarding the sensitive material was for her insurance because of job security concerns, the district court established that the misconduct was the main issue with regard to the applicability of the after-acquired evidence precedence. Having not been satisfied by this judgment, McKennon appealed to the US Court of Appeal for the Sixth Circuit. This court upheld the summary judgment made by the previous court by stating that the after-obtained proof was relevant because the employee would have been fired by her employer because of the misconduct had that misconduct been known earlier. This judgment made here relied on the evidence provided by the officials of the company (Whitney, 1996). 

Main Issue 

Although McKennon’s case has many legal issues, the main issue here was whether the evidence that is discovered after an employee has been terminated should be used by the employer to evade liability in a legal complaint concerning age discrimination. This issue extends to whether after-acquired proof should be used to alter the expected legal remedy. Should the company, upon demonstrating that a discovery has been made about another basis for dismissal, a basis that was not in consideration during the decision-making process for the dismissal, be allowed to bar the employee from going ahead with her original complaint? Should the contents of the after-acquired evidence be applied to bar liability on the part of the defendant? (Seiner, 2019).  

After failing to get any judgment in her favor, McKennon moved this issue to the United States Supreme Court. This court consented to hear her case so as to determine issues regarding with conflicts that were associated with situations where after-gained proof was utilized. The primary issue here was on the use of after-gained proof of offense that affected the plaintiff. This court determined that employees who file their suits under the ADEA legislation were not denied remedial relief if their employers make discoveries of after-obtained proof, and if that evidence would have led to their dismissal from employment on legal grounds (Seiner, 2019). Therefore, the court stated that such evidence is admissible for altering the remedial relief if it can be established that the severity of the evidence would have prompted the firing of the employee. 

During the Supreme Court proceedings, one of the Justices indicated that the issue of whether the petitioner would have been dismissed from employment for removing the information was determined inappropriately during the summary judgment stage of the case. This remark was based on the fact that it was depositions and not witness statements in court that were used to carry the motion for the summary judgment. Had it been the statements of a witness in court, then there would have been a chance to conduct cross-examination. However, the Supreme Court did not pursue the propriety of that process in the case because there were no specifications made to that effect in the presentation of the petition. 

The primary focus of the Sixth Circuit in this case was the issue of after-obtained proof by focusing on whether the defendant employer would have had sufficient legal grounds to fire the plaintiff employee for the actions had those actions been discovered earlier. The court of appeal, in turn, refused to acknowledge the presence of any connection between McKennon’s removal of confidential information and her allegations against the company for employment discrimination based on McKennon’s age. The lack of acknowledgement for any connection between those two entities was because of the irrelevance of that argument to the after-acquired proof doctrine. The argument from the petitioner that her actions were protected because they were steps of caution against unlawful practices by the employer did not persuade the court. 

Role of Legislation 

The Age Discrimination enactment of 1967 contains protections for people who are forty years or more from employment discrimination. The protections contained in this legislation, therefore, applied to the case of McKennon. This legislation is closely related to the Civil Rights Act of 1964 that seeks to protect employees from workplace discrimination based on various factors such as racial background, religious beliefs, and sexual orientation. The Age Discrimination legislation was formulated as enforcement to the earlier enacted Civil Rights Act. This enforcement was created to protect employees from the stated age bracket from discriminatory termination of employment (Dau-Schmidt & Dvorak, 2010). 

These two laws are related to the case of McKennon because the case was about discrimination on the basis of age. McKennon was fired at the age of sixty-two and a younger individual hired in her place. The reason that McKennon was given for her discharge was that the company was cutting back on expenses and was, therefore, laying off employees. However, this firm had already recruited a twenty-six-year-old replacement a couple of days before the dismissal. This series of events showed that McKennon was fired by the Banner on the basis on her age. Therefore, the 1967 Age Discrimination legislation, as well as the 1964 Civil Rights Act, formed the grounds of her lawsuit against the Banner (Dau-Schmidt & Dvorak, 2010). 

Analysis of Decisions made by the Court 

In this case, the first assumption that the court made was that the cause for McKennon’s dismissal from employment was her age. This assumption was arrived at because the initial issue of the lawsuit was employment discrimination on that basis. This reason alone would be in violation of the protections contained in the ADEA. However, in the light of the after-acquired proof that was introduced, the court also made the assumption that an earlier discovery of McKennon’s actions concerning the removal of secret documents would have led to immediate removal from employment had it happened earlier (Dau-Schmidt & Dvorak, 2010). The court, therefore, determined that the severity of the misconduct on the part of the employee had become a threshold issue that needed to be looked at before the after-obtained proof of wrongdoing by the employee was deemed relevant in the case. Here, the court needed to establish from the employer that the conduct of the employee amounted to a legitimate and nondiscriminatory basis for dismissal. 

The court made considerations on various issues that related to the impact that the after-acquired proof would have on the remedy available for the plaintiff worker. To begin with, the court considered the question of whether there was equitable relief available for the plaintiff despite the presence of the misconduct. Here, the court determined that there was no extraordinary relief available for an employee who has taken part in reprehensible behavior in the transactional period of the matter. However, the court acknowledged that there was a need to have a balance on the interests of both parties in consideration of the remedies provided by the ADEA. 

This balance would ensure that the interests of the employer or those of the employee are not ignored. Therefore, the employer’s normal discretions and prerogatives to make final and nondiscriminatory decisions in the workplace were recognized. The court made the conclusion that for any actions that would have led to legitimate and nondiscriminatory firing upon discovery then it would be pointless and inequitable to rule in favor of reinstatement of someone that would have been dismissed, and will be dismissed on lawful grounds. Therefore, it was also deemed inappropriate to consider the award of front pay in this case. 

The determination of back pay was also considered. Back pay involves the restoration of the plaintiff to the place that she would have been had the discrimination not taken place. Here, the court did not find any grounds to compel the company to ignore the discovered after-acquired evidence even though there were possibilities that the evidence might not have discovered in the absence of the lawsuit. Since the court was focused on the determination of remedies using the equities and facts involved with the case, it was determined that any back pay computations would run from the date of dismissal to the day when the deposition happened (O'Brien, 1996). 

In a clarification of the relationship between liability and proof acquired afterwards, the Supreme Court stated that such discovery does not bar the accountability for employment discrimination. This clarification put a stop to a pattern that had been adopted by government courts following the promulgation of the after-obtained proof doctrine by the United States Supreme Court in Summers v. State Farm Mutual Automobile Co (O'Brien, 1996). Here, the Supreme Court dismissed the precedent that had been used to support all the cases where the doctrine of evidence after the fact had been used. The scenario where the employer does not know of the existence of unlawful misconduct, or whether such misconduct provides sufficient grounds for lawful dismissal means that cases where after-acquired evidence is used cannot be analyzed in the same way as other cases, such as mixed motive cases. 

In the McKennon case, the court also discussed the Price Waterhouse v. Hopkins case that had some similarities. In the Hopkins case, there were legitimate arguments for termination as well as for discrimination. In that case, the Supreme Court considered the presence of a any legitimate reason that might have influenced the termination at the time that it was done. The discovery of damaging information after an employee has been dismissed from employment is not relevant in the establishment of the motives for the dismissal. Since an employer cannot fire an employee using information that has not been discovered, then the after-acquired proof doctrine does not fall within the scope of the factors that motivate the decision made by that employer (O'Brien, 1996). 

The choice made by the Supreme Court to refuse the application of after-acquired proof of dismissible actions in barring the employer’s liability follows not only judicial precedence but also rudimentary logic. That decision is also in line with the specifications of the Equal Employment Opportunity Commission that support employer liability in discriminatory dismissals even in the presence of after-acquired proof. The approach used by the Supreme Court on the issue of after-obtained proof in the McKennon case is, therefore, consistent with prior antidiscrimination cases that presented similar circumstances. In addition to that, the approach is consistent with the guidelines of the National Labor Relations Act, which is an updated and current case law. 

In the McKennon case, the court stated that when an employee’s misconduct is present, the legitimate concerns of the employer have to be considered. The court, therefore, recognized the need for the other lower courts to provide solutions in accordance with the available facts and the suitability of each case. Here, the court stated that upon the discovery of evidence with the threshold of a dismissible offense, and the establishment that the employee would have been dismissed from employment had the discovery of the offense been made, then any considerations for front pay and reinstatement would be precluded (Bourne, 2000). 

Recommendations 

Although the presence of liability for employment discrimination might be ascertained in cases where an employee sues an employer for termination, the employer can present after-obtained proof of terminable employee actions to show that, if such evidence had been discovered earlier, then the employee would have been dismissed from employment. If the employer succeeds in showing that the severity of the misconduct meets that threshold, then the remedies of front pay and reinstatement become unavailable. However, back pay can be applied for the number of days between the termination and the discovery of the evidence. If back pay were to be also made unavailable under those circumstances, then the employer would be rewarded for wrongdoing because the evidence of the actions would not have been discovered in the absence of the deposition. 

The McKennon case is one where the employee had worked for the employer for four decades in a consistently exemplary manner. Therefore, it can be argued that there was a minimal likelihood of the employee violating confidentiality had she not been a target of the employer’s discrimination. Although the courts should not ignore the breach of confidentiality by the employee, consideration should also be made to the harm done to the employer as a result of that breach. Here, McKennon states that she removed the confidential documents as insurance for herself against potential discriminatory termination based on her age. 

Furthermore, the employer did not suffer any damages emanating from the removal of those documents by the employee. Therefore, although there was a breach of confidentiality on the part of the employee, there was no significant harm to the employer. The worst that happened here is the sharing of confidential information to the spouse of the employee. Since the employee misconduct did not result to any damage on the part of the employer, then the weight and significance carried by the discovery of that evidence should not be similar to cases where misconduct leads to losses. 

There is no likelihood that the Banner would have made discoveries copncerning McKennon’s removal of confidential documents were it not for the lawsuit. In the absence of discrimination, therefore, McKennon would not have been terminated from work. This is the logic upon which the courts needed the company to establish in the absence of the lawsuit and in the presence of the after-obtained proof; the plaintiff would have been discharged. This premise would then be used to determine whether back pay would be curtailed or not. Using this rule, the victim of employment discrimination is placed in the position where she would have been if the discrimination had not happened instead of using the actual date when the information was discovered. Using the actual discovery date would be more convenient than the rule that says ‘the evidence would have been discovered anyway.’ Convenience, however, is not the prioritized concern when there are violations of statutory rights. 

The burden of proof here was placed on the company to show the severity of the after-obtained proof for it to be considered in the case. This fact shows that courts are not ready to let cases of employment discrimination change course easily without concrete grounds to do so. Furthermore, the courts demonstrated that the presence of after-acquired evidence did not rationalize acts of employment discrimination by determining that the employer was liable for back pay. However, since both parties have their own shares of wrongdoing, neither of them should be let go without fitting consequences being applied (O'Brien, 1996). 

Conclusion 

The purpose of policies that guide employment laws is to balance any inequalities between employees, as well as between employers and employees. This purpose is served when plaintiff employees seek court redress in genuine complaints where statutory violations have happened and get appropriate remedies for presenting the truth of their cases. The doctrine of using evidence acquired after the fact, which was promulgated by the Supreme Court in the Summers case, has been applied by a majority of government courts, including the courts of appeal. This doctrine allows for the use of after-obtained proof of employee wrongdoings that meet the threshold of independent and legitimate termination to bar defendant employees’ liability in employment discrimination lawsuits. 

In the case of McKennon, the United States Supreme Court clarified that evidence acquired after the fact in termination cases might not translate to the barring of employer accountability in workplace discrimination. Since after-acquired evidence could not have been used in the decision-making process for employee discharge, then employment discrimination cases with such evidence cannot be determined in the same way as mixed motive cases. If, for example, an company is found to be liable for workplace discrimination, but makes a discovery of evidence that could have had provided independent and legitimate grounds for termination, then the redress of front pay and reinstitution cannot be available. However, the availability of back pay would by itself terminate on the date that the discovery of the evidence was made. 

References 

Barry, D., & Boland, P. (2004). Debating the use of statistical evidence in allegations of age discrimination. The American Statistician 58 , 102-109. doi:10.1198/0003130043222. 

Bourne, J. (2000). Protecting the Wolf in Sheep's Clothing: Perverse Consequences of the McKennon Rule . Retrieved from https://www.researchgate.net/publication/228178074_Protecting_the_Wolf_in_Sheep's_Clothing_Perverse_Consequences_of_the_McKennon_Rule 

Dau-Schmidt, K., & Dvorak, T. (2010). Review of Labor and Employment Decisions from the United States Supreme Court’s 2008-2009 Term. Retrieved from https://www.researchgate.net/publication/228167560_Review_of_Labor_and_Employment_Decisions_from_the_United_States_Supreme_Court's_2008-2009_Term 

O'Brien, C. (1996). The impact of after-acquired evidence in employment discrimination cases after McKennon v. Nashville Banner Publishing Company . Retrieved from https://www.researchgate.net/publication/228201343_The_Impact_of_After-Acquired_Evidence_in_Employment_Discrimination_Cases_after_McKennon_v_Nashville_Banner_Publishing_Company/citation/download 

Seiner, J. A. (2019).  Employment discrimination: Procedure, principles, and practice . New York: Wolters Kluwer. 

Whitney, M. M. (1996). Employment discrimination - the after-acquired evidence doctrine and its effect on recovery in employment discrimination claims. McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995). Land and Water Law Review, 31, 2, 663-681.