Mardell v. Harleysville Life Ins. Co.

• Decision Date: 27 April 1993
• Docket Number: Civ. A. No. 91-1493.
• Parties: Nancy MARDELL, Plaintiff, v. HARLEYSVILLE LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

854 F. Supp. 378

Nancy MARDELL, Plaintiff, v. HARLEYSVILLE LIFE INSURANCE COMPANY, Defendant.

Civ. A. No. 91-1493.

United States District Court, W.D. Pennsylvania.

April 27, 1993.

Joel S. Sansone, Sansone & Associates, Pittsburgh, PA, for plaintiff.

Roslyn M. Litman, Vikram Chandhok, Litman, Litman, Harris, Brown & Watzman, Pittsburgh, PA, C. Stephens Vondercrone, Jr., Harleysville, PA, for defendant.

MEMORANDUM AND ORDER

McCUNE, Senior District Judge.

We consider a motion for summary judgment filed by Defendant Harleysville Life Insurance Company ("Harleysville"). Plaintiff Nancy Mardell alleges that she was terminated from her position as Regional Director of Life Insurance for Harleysville in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.S. § 621, et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, et seq. We have jurisdiction pursuant to 28 U.S.C.S. § 1331. For the reasons discussed below, the motion for summary judgment will be granted.

FACTS

Nancy Mardell applied for the position of Life Manager at Harleysville in December 1987.¹ Ms. Mardell submitted a résumé and completed a job application. Contained on the job application Ms. Mardell signed is the following language:

"The information provided on this employment application is correct and complete to the best of my knowledge. I realize that falsification and/or incomplete information may jeopardize my employment now or in the future."

Both Glyn D. Mangum, then vice-president of sales, and William J. Forloine, then vice-president of marketing, interviewed Ms. Mardell. Mr. Forloine communicated to Mr. Mangum his impressions of Ms. Mardell. After considering Ms. Mardell's résumé, job application and personal interview and Mr. Forloine's remarks, Mr. Mangum made the decision to hire Ms. Mardell. Ms. Mardell started work for Harleysville in February 1988.

Mr. Forloine, who became Ms. Mardell's direct supervisor when he became senior vice-president of marketing and sales, made the decision to terminate Ms. Mardell in February 1990 for stated reasons of poor performance. The within wrongful discharge action was filed September 6, 1991.

During the course of discovery, Harleysville learned for the first time that Ms. Mardell had misrepresented herself on her résumé and job application. Harleysville has submitted the affidavits of Messrs. Mangum and Forloine which state that had they known of the alleged misrepresentations prior to hiring Ms. Mardell, they would not have hired her and had the alleged misrepresentations become disclosed during Ms. Mardell's employment with Harleysville, she would have been discharged immediately. According to Harleysville, Ms. Mardell misrepresented on her résumé and job application that she had a college degree when she applied for the position at Harleysville and had had professional experience in various positions for which she had been paid.

DISCUSSION

When there is no issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is no genuine issue of material fact. Id. All inferences from the underlying facts are to be viewed in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Once the moving party has sustained his burden of proof, "the opposing party must introduce specific evidence showing that there is a genuine issue for trial." Williams v. West Chester, 891 F.2d 458, 464 (3d Cir.1989) (citation omitted).

1. The Law

The issue we address is whether after-acquired evidence of Plaintiff's résumé and application fraud precludes Plaintiff from seeking relief under Title VII and the ADEA. The appellate courts are split on the issue and it has not been addressed by the Third Circuit Court of Appeals.

The "after-acquired evidence" doctrine was originated by the Tenth Circuit Court of Appeals in Summers v. State Farm Mutual Auto. Ins. Co., 864 F.2d 700 (10th Cir.1988). In Summers, Summers alleged he was wrongfully terminated from his position as a field claims representative due to his age and religious beliefs in violation of the Civil Rights Act of 1964 and the ADEA. Almost four years after Summers' discharge, the employer discovered that Summers had falsified over 150 company records made during the course of his employment. The court relied on the rationale of Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In Mt. Healthy, the Court held that an adverse employment decision, although substantially motivated by the employee's constitutionally protected conduct, does not justify relief if the employer can show that it would have made the same decision for permissible reasons had the protected conduct not occurred. Mt. Healthy, 429 U.S. at 285-286, 97 S.Ct. at 575. In Summers, the court assumed that the employer's motive in discharging Summers was illegal in concluding that "while 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 or remedy to Summers." Id. at 708. In short, Summers suffered no legal damage. The court made it clear that the "litany of McDonnell Douglas" did not apply because it "presupposes a `legitimate nondiscriminatory reason' known to the employer at the time of the employee's discharge." Id. at 704-705 quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

The Sixth Circuit Court of Appeals has adopted the approach of Summers. However, to prevent situations where unscrupulous employers might rummage through an employee's file for evidence of résumé fraud in order to escape legal responsibility for an otherwise unlawful discharge, the Sixth Circuit Court of Appeals has devised a three-part test. The misrepresentation or omission must (1) be material, (2) be directly related to measuring a person for employment, and (3) have been relied upon by the employer in making the decision. Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 414 (6th Cir.1992); Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 304 (6th Cir.1992). The Sixth Circuit Court of Appeals views the problem of résumé fraud as one of causation. "If the plaintiff would not have been hired, or would have been fired, if the employer had known of the falsification, the plaintiff suffered no legal damage by being fired." Milligan-Jensen, 975 F.2d at 304.

The Seventh Court of Appeals has adopted a modified Summers approach. In Washington v. Lake County, 969 F.2d 250 (7th Cir. 1992), the court was concerned that in some cases, although an employer would be likely not to hire someone who misrepresents himself on an application, the employer might be less likely to discharge an employee who had started the job and who had proven himself capable prior to the discovery of the misrepresentation. The court found that a "résumé fraud" case was similar to the "mixed motive" cases discussed in Mt. Healthy, supra, and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). "In situations involving `after-acquired' evidence, the employer must show by a preponderance of evidence that, if acting in a nondiscriminatory manner, it would have made the same decision had it known of the after-acquired evidence." Washington, 969 F.2d at 255.

The Eleventh Circuit Court of Appeals is the only appellate court to reject the approach in Summers. In Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992), an application fraud case, the court reviewed Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), a suit which was brought under Title VII and decided after the Summers decision. The court understood Price Waterhouse to mean that the after-acquired evidence could not be used to ignore the "time lapse between the unlawful act and the discovery of a legitimate motive ..." Id. at 1180. The court held that after-acquired evidence is relevant to the relief due and then created a complex format concerning possible damages under Title VII and the Equal Pay Act, various remedies available to the plaintiff, and evidence an employer may use to restrict its exposure. In the dissent, Judge Godbold reasoned that the plaintiff did not have standing to maintain the suit. According to Judge Godbold, once it is determined that the plaintiff would not have been hired had the application fraud been known to the employer, that ends the inquiry. The status that would place the plaintiff in the protected group of employees "was fraudulently obtained and but for her fraud would have been denied." Id. at 1188. Judge Godbold distinguished Summers on the basis that it was late-discovered misconduct of an employee who was rightfully a member of the workforce.

We disagree with the majority opinion in Wallace. Price Waterhouse does not relate to the relief to which a victim of forbidden discrimination in employment is entitled. Rather, Price Waterhouse is concerned with the factors that constitute liability for unlawful employment discrimination. See Price Waterhouse, 490 U.S. at 244-45, 109 S.Ct. at 1787-88 ("The defendant may avoid a finding of liability footnote omitted only by proving that it would have made the same decision even if it had not allowed gender to play such a role."). The issue faced in Summers, and in the present action, is whether the plaintiff was injured by the forbidden discrimination. The focus is the appropriate remedy rather than the cause of a defendant's employment decision.

Accordingly, we hold that the after-acquired evidence doctrine is applicable to the facts in this action. To...