McKennon v. Nashville Banner Publishing

• Citation: 115 S.Ct. 879,513 U.S. 352,130 L.Ed.2d 852
• Decision Date: 23 January 1995
• Docket Number: 931543
• Parties: Christine McKENNON, Petitioner v. NASHVILLE BANNER PUBLISHING COMPANY
• Court: United States Supreme Court

513 U.S. 352

115 S.Ct. 879

130 L.Ed.2d 852

Christine McKENNON, Petitioner

v NASHVILLE BANNER PUBLISHING COMPANY.

No. 93-1543.

Supreme Court of the United States

Argued Nov. 2, 1994.

Decided Jan. 23, 1995.

Syllabus ^*

Alleging that her discharge by respondent Nashville Banner Publishing Company violated the Age Discrimination in Employment Act of 1967 (ADEA), petitioner McKennon filed suit seeking a variety of legal and equitable remedies available under the ADEA, including backpay. After she admitted in her deposition that she had copied several of the Banner's confidential documents during her final year of employment, the District Court granted summary judgment for the company, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. The Court of Appeals affirmed on the same rationale.

Held: An employee discharged in violation of the ADEA is not barred from all relief when, after her discharge, her employer discovers evidence of wrongdoing that, in any event, would have led to her termination on lawful and legitimate grounds had the employer known of it. Pp. __.

(a) Such after-acquired evidence is not a complete bar to ADEA recovery. Even if the employee's misconduct may be considered to be supervening grounds for termination, the ADEA violation that prompted the discharge cannot be altogether disregarded. The Act's remedial provisions, 29 U.S.C. § 626(b); see also 29 U.S.C. § 216(b), are designed both to compensate employees for injuries caused by prohibited discrimination and to deter employers from engaging in such discrimination. The private litigant who seeks redress for his or her injuries vindicates both of these objectives, and it would not accord with this scheme if after-acquired evidence of wrongdoing barred all relief. Mt. Healthy City School District Bd. of Ed. v. Doyle, 429 U.S. 274, 284-287, 97 S.Ct. 568, 574-576, 50 L.Ed.2d 471, distinguished. Pp. __.

(b) Nevertheless, after-acquired evidence of the employee's wrongdoing must be taken into account in determining the specific remedy, lest the employer's legitimate concerns be ignored. Because the ADEA simply prohibits discrimination, and does not constrain employers from exercising significant other prerogatives and discretions in the usual course of hiring, promoting, and discharging employees, employee wrongdoing is relevant in taking due account of such lawful prerogatives and the employer's corresponding equities arising from the wrongdoing. Pp. __.

(c) The proper boundaries of remedial relief in cases of this type must be addressed on a case-by-case basis. However, as a general rule, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, it cannot be required to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if it might have gone undiscovered absent the suit. The beginning point in formulating a remedy should therefore be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. The court can also consider any extraordinary equitable circumstances that affect the legitimate interests of either party. Pp. __.

(d) Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of it at the time of the discharge. The concern that employers might routinely undertake extensive discovery into an employee's background or job performance to resist ADEA claims is not insubstantial, but the courts' authority to award attorney's fees under §§ 216(b) and 626(b) and to invoke Federal Rule of Civil Procedure 11 in appropriate cases will likely deter most abuses. P. 10.

9 F.3d 539 (CA6 1993), reversed and remanded.

KENNEDY, J., delivered the opinion for a unanimous Court.

Michael G. Terry, Corpus Christi, TX, for petitioner.

Irving L. Gornstein, Washington, DC, for U.S. as amicus curiae, by special leave of Court.

R. Eddie Wayland, Nashville, TN, for respondent.

Justice KENNEDY delivered the opinion of the Court.

The question before us is whether an employee discharged in violation of the Age Discrimination in Employment Act of 1967 is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds.

I

For some 30 years, petitioner Christine McKennon worked for respondent Nashville Banner Publishing Company. She was discharged, the Banner claimed, as part of a work force reduction plan necessitated by cost considerations. McKennon, who was 62 years old when she lost her job, thought another reason explained her dismissal: her age. She filed suit in the United States District Court for the Middle District of Tennessee, alleging that her discharge violated the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. (1988 ed. and Supp. V). The ADEA makes it unlawful for any employer:

"to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).

McKennon sought a variety of legal and equitable remedies available under the ADEA, including backpay. App. 10a-11a.

In preparation of the case, the Banner took McKennon's deposition. She testified that, during her final year of employment, she had copied several confidential documents bearing upon the company's financial condition. She had access to these records as secretary to the Banner's comptroller. McKennon took the copies home and showed them to her husband. Her motivation, she averred, was an apprehension she was about to be fired because of her age. When she became concerned about her job, she removed and copied the documents for "insurance" and "protection." Deposition, Dec. 18, 1991; Record, Docket Entry No. 39, Vol. 2, p. 241. A few days after these deposition disclosures, the Banner sent McKennon a letter declaring that removal and copying of the records was in violation of her job responsibilities and advising her (again) that she was terminated. The Banner's letter also recited that had it known of McKennon's misconduct it would have discharged her at once for that reason.

For purposes of summary judgment, the Banner conceded its discrimination against McKennon. The District Court granted summary judgment for the Banner, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. 797 F.Supp. 604 (MD Tenn.1992). The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale. 9 F.3d 539 (1993). We granted certiorari, 511 U.S. ----, 114 S.Ct. 2099, 128 L.Ed.2d 661 (1994), to resolve conflicting views among the Courts of Appeals on the question whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier. Compare Welch v. Liberty Machine Works, Inc., 23 F.3d 1403 (CA8 1994); O'Driscoll v. Hercules Inc., 12 F.3d 176 (CA10 1994); 9 F.3d 539 (CA6 1993) (case below); Washington v. Lake County, 969 F.2d 250 (CA7 1992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (CA6 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (CA10 1988); Smallwood v. United Air Lines, Inc., 728 F.2d 614 (CA4), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984), with Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221 (CA3 1994); Kristufek v. Hussman Foodservice Co., Toastmaster Division, 985 F.2d 364 (CA7 1993); Wallace v. Dunn Construction Co., 968 F.2d 1174 (CA11 1992), vacated pending rehearing en banc, 32 F.3d 1489 (1994). We now reverse.

II

We shall assume, as summary judgment procedures require us to assume, that the sole reason for McKennon's initial discharge was her age, a discharge violative of the ADEA. Our further premise is that the misconduct revealed by the deposition was so grave that McKennon's immediate discharge would have followed its disclosure in any event. The District Court and the Court of Appeals found no basis for contesting that proposition, and for purposes of our review we need not question it here. We do question the legal conclusion reached by those courts that after-acquired evidence of wrongdoing which would have resulted in discharge bars employees from any relief under the ADEA. That ruling is incorrect.

The Court of Appeals considered McKennon's misconduct, in effect, to be supervening grounds for termination. That may be so, but it does not follow, as the Court of Appeals said in citing one of its own earlier cases, that the misconduct renders it " 'irrelevant whether or not [McKennon] was discriminated against.' " 9 F.3d, at 542, quoting Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 305 (CA6 1992), cert. granted, 509 U.S. ----, 113 S.Ct. 2991, 125 L.Ed.2d 686, cert. dism'd, 509 U.S. ----, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993). We conclude that a violation of the ADEA cannot be so altogether disregarded.

The ADEA, enacted in 1967 as part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions. T...