O'DAY v. McDonnell Douglas Helicopter Co.

• Citation: 784 F. Supp. 1466
• Decision Date: 09 March 1992
• Docket Number: No. CIV 91-777 PHX PGR.,CIV 91-777 PHX PGR.
• Parties: Dennis V. O'DAY, Plaintiff, v. McDONNELL DOUGLAS HELICOPTER COMPANY, a foreign corporation, Defendant.
• Court: U.S. District Court — District of Arizona

784 F. Supp. 1466

Dennis V. O'DAY, Plaintiff, v. McDONNELL DOUGLAS HELICOPTER COMPANY, a foreign corporation, Defendant.

No. CIV 91-777 PHX PGR.

United States District Court, D. Arizona.

March 9, 1992.

Francis G. Fanning, Tempe, Ariz., for plaintiff.

Tibor Nagy, Jr., Tucson, Ariz., for defendant.

MEMORANDUM and ORDER

ROSENBLATT, District Judge.

This matter is before the Court on defendant McDonnell Douglas Helicopter Company's (MDHC) motion for summary judgment on plaintiff Dennis O'Day's (O'Day) complaint that his employment with MDHC was wrongfully terminated. Having reviewed the record and the arguments of the parties, the Court finds that MDHC is entitled to entry of judgment in its favor, as O'Day has no remedy for the claims alleged in his complaint under the rationale of Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (10th Cir. 1988).

O'Day, an engineer, was employed by MDHC from December 12, 1983, until his layoff on July 20, 1990. O'Day was 46 years old at the time of the layoff. On July 10, 1990, and again on October 26, 1990, O'Day filed age discrimination charges with the Equal Employment Opportunity Commission (E.E.O.C.). The first charge alleged that MDHC's failure to promote him was based on unlawful age discrimination and was also in retaliation for complaints O'Day had made to management in 1989. The October charge alleged that O'Day's selection for layoff was motivated by age discrimination and retaliation.

On the evening of June 8, 1990, O'Day surreptitiously entered his supervisor's office and removed his confidential personnel file from the desk. O'Day claims his purpose was to gather information to prepare for his charge with the E.E.O.C. The file was marked "personal/sensitive" or "privates sensitive" and was not intended to be divulged to MDHC employees, except management and human resource representatives. The file contained information on individual engineer's rankings called "totems". These totems were used for layoffs, assignments, and promotions. MDHC management had completed two such totems, one in February when MDHC conducted its first company-wide layoff, and another in June. In February O'Day was ranked above several engineers, and in June O'Day ranked at the bottom. This low ranking was the criterion for his layoff in July.

After O'Day removed the file, he photocopied portions of the materials on the company photocopier and replaced the file in the desk drawer. He then left the premises with the documents. Later, he showed the photocopied totems to a friend and co-worker, to warn the co-worker of his low ranking.

A week later, again without the authorization of MDHC, O'Day returned to MDHC after his shift, and removed and copied his entire confidential personnel file from his supervisor's desk. As in the case the week before, he removed these copied documents from the premises.

Before the E.E.O.C. had made any findings, O'Day terminated the investigation, and in April of 1991 he filed a suit in Maricopa County Superior Court.

The suit alleged four causes of action: (1) Discrimination in Promotion, pursuant to the federal Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") and the Arizona Civil Rights Act, A.R.S. § 41-1401 et seq., ("ACRA"); (2) Discrimination in Discharge of Employment; (3) Wrongful Discharge (alleging that the action violated Arizona public policy against age discrimination), and (4) Breach of Employment Contract. MDHC timely removed the action to this court on the basis of original jurisdiction as the controversy arose under the federal Age Discrimination Act, pursuant to 28 U.S.C. § 1441. The court has pendent jurisdiction of the state law claims as all claims arise from a common nucleus of operative fact.

MDHC did not know of the unauthorized removal of the files until MDHC's counsel deposed O'Day in preparation for its defense of this action. MDHC contends that O'Day's conduct constituted a direct violation of MDHC's "Group I" company rules, and as such would have resulted in O'Day's immediate termination. MDHC, after learning of the violation, converted O'Day's "layoff" status to "terminated".

MDHC has moved for summary judgment on the ground that the "after acquired evidence" doctrine, created by the Tenth Circuit in Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir.1988), precludes any relief to O'Day. O'Day disputes the applicability of the after-acquired evidence doctrine. In addition, O'Day claims that his alleged misconduct was protected activity under the ADEA's "opposition clause".

Application of Summers

MDHC argues it is entitled to summary judgment on the basis of the Summers decision even assuming that O'Day had been subjected to age discrimination, since O'Day's unauthorized removal and copying of confidential materials, if known to MDHC, would have resulted in his immediate termination.

In Summers, the plaintiff alleged he was wrongfully discharged from his position as a field claims representative due to his age and religious beliefs. In preparing for trial, almost four years after the plaintiff's discharge, the defendant examined the plaintiff's records and discovered that he had falsified over 150 records. The Tenth Circuit agreed with the defendant's argument, that although this "after acquired" evidence might not be relevant to show why plaintiff was discharged, it was relevant in deciding what relief, if any, was available to the plaintiff. 864 F.2d at 704. The Tenth Circuit in Summers made clear that the seminal case of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which established the test for Title VII discrimination had little application to the issue of the significance of the defendant's discovery of the plaintiff's misconduct. 864 F.2d at 705.

Until now, the applicability of the Summers after acquired evidence doctrine has not been addressed in the Ninth Circuit. Courts in the Tenth and the Fourth Circuits have applied the doctrine. See, Churchman v. Pinkerton's, Inc., 756 F.Supp. 515 (D.Kan.1991); Punahele v. United Air Lines, Inc., 756 F.Supp. 487 (D.Colo.1991); O'Driscoll v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990); Mathis v. Boeing Military Airplane, Co., 719 F.Supp. 991 (D.Kan.1989); Smallwood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir.1981).

In order to rely on the after acquired evidence doctrine, the employer must prove that, had it known of the employee's misconduct, the employee would have been discharged immediately. O'Driscoll, 745 F.Supp. at 659. MDHC has met this burden by introducing the MDHC employee handbook together with an affidavit by an MDHC human resource representative stating that O'Day's conduct was in direct violation of company policy and as such, would result in immediate termination.¹ The Handbook states that violations entitle the employer to take "corrective action".

The question of whether or not an employer would actually terminate an employee could indeed, in some circumstances create a genuine issue of material fact. In Punahele v. United Air Lines, Inc., supra, the court denied United Airlines' motion for summary judgment, on the plaintiff's claim of discrimination in hiring practices, stating that the plaintiff had shown, through affidavits, that United Airlines may have acted differently, i.e., would have hired the plaintiff. 756 F.Supp. at 491. It concluded that whether United would have refused to hire the plaintiff was an issue for resolution by a jury. Id.

However, this court believes there is no question as to the outcome of O'Day's employment status. O'Day did not present any controverting evidence showing that MDHC would not have fired him. O'Day attempts to show that MDHC's firing practices are inconsistent, but it is insufficient to uphold an argument that a material fact exists as to defeat a motion for summary judgment. O'Day argues that another employee would on occasion violate security requirements by gaining access to equipment necessary to perform his job, but this employee was never terminated. However, this argument is not sufficiently supported in the record. There is no evidence that this type of violation is against MDHC policy, or that it would result in termination.

O'Day next argues that the Summers rationale should not apply to these facts. Instead, O'Day argues this is a "mixed motive" cases controlled by the Supreme Court case, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Hopkins, the Court held that when a plaintiff in a Title VII case proves that an impermissible factor played a part in the employment decision, the defendant may avoid a finding of liability by proving that it would have made the decision anyway. Hopkins, 490 U.S. at 244-45, 109 S.Ct. at 1787-88, 104 L.Ed.2d at 284.

However, later, the district court in Punahele, correctly clarified that Hopkins dealt solely with the elements that constitute liability for unlawful employment discrimination. 756 F.Supp. at 490. The issue faced in Summers, and the present case, deals with whether or not the plaintiff was injured by the unlawful discrimination.²

As in Summers and Punahele, liability of MDHC is not at issue. The after acquired evidence, i.e. the discovery of O'Day's unauthorized file removal, is relevant in determining whether O'Day was injured by the assumed discrimination and is subject to a summary judgment motion. Therefore, the reasoning in Summers, and not Hopkins, is appropriate in this case.

Protected Conduct

O'Day argues that the present case can be distinguished from Summers, in that O'Day's acts were protected activity under the "opposition clause", 29 U.S.C. § 623(d).³ As such, he would be protected from retaliatory acts by MDHC.

Although the ADEA does not define "protected activity", case law has created guidance as to when activity is protected from employer retaliation. In Hochstadt v. Worcester Foundation for...