O'Driscoll v. Hercules Inc., 92-4164

Citation12 F.3d 176
Decision Date05 January 1994
Docket NumberNo. 92-4164,92-4164
Parties63 Fair Empl.Prac.Cas. (BNA) 906, 63 Empl. Prac. Dec. P 42,806, 62 USLW 2450 Dorothea O'DRISCOLL, Plaintiff-Counter-Defendant-Appellant, v. HERCULES INC., a Delaware corporation; John F. Baker; Edward D. McDonald, Defendants-Counter-Claimants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Phillip B. Shell of Day & Barney, Murray, UT, for plaintiff-counter-defendant-appellant.

Keith E. Taylor (Spencer C. Austin, Douglas R. Davis with him on the brief), of Parsons, Behle & Latimer, Salt Lake City, UT, for defendants-counter-claimants-appellees.

Before BALDOCK, BARRETT, and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Dorothea O'Driscoll appeals the district court's grant of summary judgment in favor of Defendants, 745 F.Supp. 656. The district court certified the judgment in this multiple-claim litigation under Fed.R.Civ.P. 54(b), and we exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Plaintiff was employed as a Quality Control Inspector for Hercules, Inc. Bacchus Works in Magna, Utah ("Hercules") from January 7, 1980 until she was terminated on April 25, 1986. Upon termination, Plaintiff filed suit against Hercules and others alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., the Fair Labor Standards Act, 29 U.S.C. Secs. 201-219, as well as violations of state law including breach of employment contract and wrongful termination.

While preparing for trial, Hercules discovered evidence of misconduct on the part of Plaintiff that it was unaware of when it terminated Plaintiff. The uncontroverted after-acquired evidence of misconduct included the following: (1) on her employment application, Plaintiff misrepresented her age so as to appear five years younger, falsely represented that she had never previously applied for employment with Hercules, and failed to disclose a previous employer; (2) on her pre-employment forms, Plaintiff misrepresented her age, date of graduation from high school, ages of her children, and falsely represented that she had completed two quarters of study at Salt Lake City Technical College; (3) on her application for membership with Blue Cross-Blue Shield of Utah, Plaintiff misrepresented the age of her son, who would have been otherwise ineligible for coverage as Plaintiff's dependant; and (4) on her "Application and Authorization for Access to Confidential Information" ("Security Clearance"), a United States Government form, Plaintiff misrepresented her age.

In support of its motion for summary judgment, Hercules provided evidence of the foregoing misrepresentations made by Plaintiff as well as a copy of Plaintiff's employment application which contained the following language above Plaintiff's signature:

I understand that any misrepresentation made by me herein may result in the cancellation of this employment application, withdrawal of any offer of employment or if already employed by Hercules [ ] termination of employment without any obligation or liability to me other than payment of the rate agreed upon for services actually rendered.

Hercules also submitted a copy of Plaintiff's Security Clearance form which read:

I certify that I know that any misrepresentation or false statement made by me herein may subject me to prosecution under Title 18, United States Criminal Code, Sections 911 and 1001 with penalties up to five (5) years imprisonment and $10,000 fine.

Plaintiff's signature appeared directly beneath this language. In addition, Hercules provided affidavits by two former Vice Presidents of Hercules wherein each asserted that Plaintiff would have been terminated if Hercules had known of Plaintiff's misrepresentations. Finally, Hercules presented evidence that terminating Plaintiff for the misconduct would have been consistent with company policy.

In defense of Hercules' summary judgment motion, Plaintiff provided evidence of misconduct on the part of various employees which did not result in their termination. These incidents included unexcused absences, false statements concerning an employee's whereabouts while on duty, falsification of time cards, tardiness, and sleeping while on duty. Plaintiff also pointed to a statement in Hercules' Management Manual Procedure indicating that, unless otherwise stated, violations that occurred more than twelve months prior to a current violation should not be considered by the supervisor in determining the disciplinary action for the current violation.

The district court, relying on Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (10th Cir.1988), granted Defendants' motion for summary judgment. The court determined that under Summers, Plaintiff's employment claims failed because even if she was unjustly terminated, she had no right to a remedy due to Hercules' unrefuted evidence that it would have terminated Plaintiff had it known of Plaintiff's misconduct.

On appeal, Plaintiff claims the district court erred in granting Hercules' motion for summary judgment with respect to her age discrimination, breach of contract, and wrongful termination claims because (1) Plaintiff's conduct was not serious and pervasive, (2) Plaintiff's misrepresentations on her employment application and pre-employment forms were not material, and (3) there remained a genuine issue of material fact regarding whether Hercules would have terminated Plaintiff if it had known of her misconduct. 1 Plaintiff does not dispute the district court's conclusion that Summers applies to claims for breach of contract and wrongful termination; rather, Plaintiff claims that the court erred in applying Summers to these facts. We review the district court's grant of summary judgment de novo, applying the same standard as the district court. Osgood v. State Farm Mut. Auto Ins. Co., 848 F.2d 141, 143 (10th Cir.1988).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, we do not weigh the evidence; rather, we determine whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), see also Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Once the movant points to those portions of the record which demonstrate an absence of a genuine issue of material fact, the burden shifts to the nonmovant to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

In Summers, the plaintiff employee sued his employer, claiming he was terminated because of his religion and age. 864 F.2d at 701-02. Prior to being terminated, Summers had been placed on probation for falsifying several claims documents, and had been warned that he would be terminated if he engaged in further falsifications. Id. at 702. After several months, Summers was terminated for reasons unrelated to the claim falsifications. Id. at 702-03. During preparation for trial, the employer discovered that Summers had falsified over 150 documents, including eighteen that were falsified after Summers' probation. Id. at 702. The employer moved for summary judgment, arguing that even if Summers could prove that he was terminated for discriminatory reasons, Summers should have no remedy because the employer had an independent basis for terminating him and would have terminated him had it known of the misconduct. Id. at 704. We agreed with the employer that the after-acquired evidence of Summers' misconduct could be considered stating:

[W]hile such after-acquired evidence cannot be said to have been a "cause" for Summers' discharge in 1982, it is relevant to Summers' claim of "injury," and does itself preclude the grant of any present relief to Summers.... The present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil...

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