prima facie case of discrimination. In cases involving a charge of discriminatory discharge, such a prima facie case requires evidence that the plaintiff belongs to a minority, that she applied for and satisfied the requirements for a job for which the employer was seeking applicants, and that she was rejected for discriminatory reasons. See McDonnell Douglas (establishing the basic framework for the prima facie case and noting that it must be flexible to accommodate the wide variety of circumstances).
While this motion for summary judgment does not directly address the prima facie case, it is noted that Smith has established it. Larkin's affidavit states that "Galotti and I both agreed that . . . Smith was the most qualified candidate" but that he was told that she would not be acceptable for the receptionist job at the corporate office because she was Black. In his deposition, Larkin said that he informed Smith that "no one had been offered the job officially, but it looked like she wasn't going to get the position. . . . [The reason he gave her was] that she was black."
While Conway has asserted that Smith was not hired because the receptionist position paid significantly less than Smith received in her previous job and therefore might not stay,
and because the director of Human Resources felt that another candidate had a personality that was more suited for the position,
Reisel Dep. at 106-09, 122-24, Smith has demonstrated enough in the affidavits and deposition testimony submitted to preclude a finding of summary judgment on her claim of discrimination.
After-Acquired Evidence Does Not Provide a Defense
The thrust of Conway's argument, however, is not directed at Smith's prima facie case, rather the argument is that because Smith failed to complete her application accurately, and because on those grounds alone she would not have been hired, there is no cause of action against Conway. The use of after-acquired evidence as a defense in employment discrimination cases is an area of law that is still developing.
The Second Circuit has not addressed this issue and there is a split among the five circuits that have addressed it.
There are two groups. The Tenth, Sixth and Eighth Circuits have held that after-acquired evidence of resume/application fraud may be used as a total bar to a discrimination claim. The Third and Eleventh Circuits have held that while after-acquired evidence may be used to determine remedies, it is inadmissible at the stage of determining liability.
In the first group, the courts generally followed the lead of the Tenth Circuit's Summers decision. In Summers v. State Farm Mut. Ins. Co., 864 F.2d 700 (10th Cir. 1988), the Court, based on evidence of extensive on the job misconduct and ruling on a motion for summary judgment, held that the after-acquired evidence of Summers' misconduct would preclude Summers from any relief and would, effectively, avert the defendants liability. Id. at 702-03.
Following Summers, courts have used after-acquired evidence to bar the employers' liability and to preclude any relief in resume and/or application fraud cases and in misconduct on the job cases. In either sort of case, the employer alleges that had it known of the fraud or improper conduct it would have taken the adverse employment action. See Milligan v. Michigan Tech Univ., 975 F.2d 302 (6th Cir. 1992) (summary judgment granted on after-acquired evidence of omission of drunk driving conviction on employment application), cert. dismissed 114 S. Ct. 22, 125 L. Ed. 2d 773 (1993); Welch v. Liberty Mach. Works, Inc., 23 F.3d 1403, 1405 (8th Cir. 1994) (adopting Summers holding regarding after-acquired evidence of omission from application, but denying summary judgment for failure to establish that it would not have hired worker because of the misrepresentation).
The Third and the Eleventh Circuit have adopted a different approach to after-acquired evidence in the employment context. Namely, these courts have held that while after-acquired evidence is inadmissible, because it is irrelevant, at the liability stage of a cause of action, it may serve a useful purpose at the remedies stage. See Mardell v. Harleysville Life Insurance Co., 31 F.3d 1221 (3d. Cir. 1994) ("Mardell ") (after-acquired evidence of resume/application misrepresentations not relevant to issue of liability in a discriminatory discharge case); Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992).
In summarizing its rational for not precluding liability on the basis of after-acquired evidence of resume/application misrepresentation, the Mardell court explained:
A quick review of the overarching framework erected for employment discrimination claims . . . discloses why after-acquired evidence cannot be a defense to liability. What sets an after-acquired evidence case far apart from a mixed-motives case like Price Waterhouse or a pretext case like McDonnel Douglas is that the articulated "legitimate" reason, which was non-existent at the time of the adverse decision could not possible have motivated the employer to the slightest degree. After-acquired evidence, simply put is not relevant in establishing liability under Title VII . . . because the sole question to be answered at that state is whether the employer discriminated against the employee on the basis of an impermissible factor.
Mardell 31 F.3d at 1228.
The Court went on to find that victims of invidious employment discrimination have standing Id. at 1230 and that "where a federal right has been violated, federal courts must provide a remedy." Id. at 1232. The Court goes on to say that the rule developed in Summers (and followed by the other three circuits) "disregards that an act of employment of discrimination is much more than an ordinary font of tort law. The anti-employment discrimination laws are suffused with a public aura for reasons that are well known." Id. at 1234.
Neither party has pointed to any cases in this district that have addressed the relevancy of after-acquired evidence of resume and/or application fraud in the context of racial discrimination in a failure to hire context. The parties have pointed to five cases in the district that all involve claims of discriminatory dismissal; one of the courts followed the Summers approach, two determined that the after-acquired evidence would not act as a bar to liability, and two provided no guidance on the use of after-acquired evidence in this context.
In Moodie v. Federal Reserve Bank of New York, 831 F. Supp. 333, 336 (S.D.N.Y. 1993), the Court adopted the position of the Eleventh Circuit as the sounder approach "as it balances the competing public interests of deterring discrimination while still allowing employers appropriate latitude in personnel decisions." That Court also stated that "allowing the use of after-acquired evidence as a complete defense 'would have the perverse effect of providing a windfall to employers who, in the absence of their unlawful act and the ensuing litigation, would never have discovered the wrongdoing." Moodie, 831 F. Supp. at 336 quoting Wallace v. Dunn Construction Co., Inc., 968 F.2d 1174, 1182 (11th Cir. 1992).
The approach adopted by the Mardell and Moodie courts is the more appropriate given that a primary purpose of Title VII is to eliminate employment discrimination. See Albemarle Paper Co. v. Moody. 422 U.S. 405, 417-18, 95 S. Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). In addition, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) which sets forth the shifting burdens in a Title VII case, presupposes a legitimate, nondiscriminatory reason known to the employer at the time of the employment action. The after-acquired evidence is therefore not admissible to address the issue of liability and as such summary judgment is not appropriate on this record.
The defendant also argues that failure to hire cases are different and cites Court decisions in other circuits that have so held. The basic argument in those cases is that in the failure to hire context, there can be no harm because the plaintiff who might not have been hired is no worse off after the refusal to hire. The plaintiff is still jobless. The circuit court cases deciding this issue, however, were all decided prior to the enactment of the Civil Rights Act of 1991.
The Civil Rights Act of 1991 modified the position the Courts had taken in mixed motive cases
and declared that "on a claim in which an individual proves a violation . . . and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court . . . may grant declaratory relief, injunctive relief . . . and attorney's fees . . . and . . . shall not award damages or issue any order requiring any admission, reinstatement, hiring, promotion or payment." codified at 42 U.S.C. § 2000e-5 (1981 & Supp. 1994).
The Mardell court noted that:
In the Civil Rights Act of 1991, by authorizing the court to grant a victim of discrimination in a mixed motives case declaratory and injunctive relief and partial attorneys' fees and costs, Congress again recognized the public interest in eradicating discrimination even when the employer had acted at the time of its decision for a legitimate reason that would have propelled it to take the same actions standing alone.