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July 30, 1993

WARREN MASSEY, SR., Plaintiff,

The opinion of the court was delivered by: JOHN F. GERRY

 GERRY, Chief Judge

 This is an action for damages arising from an employment termination allegedly based upon race in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-4, 10:5-12a. Plaintiff also alleges that his termination was in breach of an implied contract between plaintiff and defendant. We have jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. The parties are presently before the court upon defendant's motion for summary judgment. *fn1"


 On September 12, 1984, plaintiff applied for a job with the Atlantic City Hilton. The Hilton had not yet opened but was taking applications in anticipation of opening in the spring of 1985. The Hilton never opened, however, and defendant, Trump's Castle Hotel & Casino (defendant or "Trump's Castle"), took over its operations, retaining plaintiff and other Hilton employees. Plaintiff worked as a chauffeur for Trump's Castle until 1989 when, because of his demonstrated leadership abilities and commitment to hard work, he was selected by defendant for participation in its minority professional training program, the Professional Intern Training for Casino Hotel ("PITCH"). This program was designed to develop minority and female professionals to fill management positions as they became available. Plaintiff was the only person ever admitted into the PITCH program. These facts are not in dispute.

 Plaintiff alleges he was told that he would be transferred into a management position upon successful completion of eight weeks' training in the PITCH program. He states, however, that although he received consistently excellent reviews between May 1989 and July 1990, he was never assigned a management position and was terminated on September 30, 1990. Plaintiff's Complaint at 4-5. Defendant denies that plaintiff was promised a management position and that plaintiff consistently received good reviews. Defendant's Answer at 4-5. Defendant does not, however, state that poor job performance had anything to do with plaintiff's dismissal. Rather, defendant intends to prove that plaintiff was terminated because of economic and financial considerations. Defendants Brief in Support of Motion to Dismiss, at 2.

 After this action was initiated, defendant discovered that plaintiff had made misrepresentations on his employment application. Specifically, defendant alleges that plaintiff stated he left a former job with Resorts International Hotel and Casino for personal reasons when in fact he was forced to resign because of a sexual harassment claim. In addition, defendant maintains that plaintiff failed to disclose that he had been asked to resign from a former position as an Atlantic city policeman in 1968 because he had misplaced his gun.


 Defendant contends that the "after acquired" evidence of plaintiff's misrepresentations, though admittedly not the basis of its decision to discharge plaintiff, precludes plaintiff from obtaining any relief on both his federal and state discriminatory discharge claims and his state claim for breach of contract. *fn2" Defendant's argument is based on the rationale that an illegally discharged employee has suffered no injury if his/her previous misconduct, had it been known to the employer, would have resulted in his/her legal discharge. Although the majority of courts addressing the preclusive effect of such after acquired evidence support defendant's position, neither the Third Circuit, any district courts within the circuit, nor any New Jersey courts have confronted this issue. Therefore, before we can decide the merits of defendant's motion for summary judgment, we must first determine whether and to what extent the law of after acquired evidence should be applied. *fn3"


 The use of after acquired evidence in employment discrimination cases has been addressed by four circuits: the Tenth, Sixth, Seventh, and Eleventh. While no court has rejected the admission of after acquired evidence, they differ over whether such evidence should preclude the entire claim or only the remedies of reinstatement and front-pay, *fn4" and whether any distinction must be drawn between employee misconduct in falsifying an employment application and misconduct that occurred during the plaintiff's tenure as an employee.

 A. The Tenth Circuit

 The seminal case involving this issue is Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988). In that case an employee brought suit against his employer under Title VII and the Age Discrimination in Employment Act, alleging that he was terminated because of age and religious discrimination. At one time, the employee, an insurance claims representative, had been reprimanded and placed on probation for falsifying between seven and nine insurance claims. He returned to work but was fired approximately six months later. The employer conceded that the plaintiff was not fired because of the falsifications, but rather because of his attitude and inability to get along with co-workers and customers. Id. at 702-03. Four years after the termination, while preparing for trial, the employer discovered an additional 150 falsifications. Id. at 703. The question before the court was whether the discovery of the additional falsifications should have any effect on the appropriate remedy. Id. at 703, 707 n.3. The court determined that, because the after acquired evidence constituted a legitimate reason to fire the employee, the plaintiff had not sustained an injury and no relief was warranted. Id. at 708.

 The Tenth Circuit stressed the Supreme Court's reasoning in Mt. Healthy that an employee's engagement in protected conduct or membership in a protected class cannot preclude the employer from assessing the employee's performance and firing him on the basis of that record, and that employers must be allowed to show that the same employment decision would have been made absent those illegitimate motives. Summers, 864 F.2d at 706 (citing Mt. Healthy, 429 U.S. at 285-86). The court also cited a Fourth Circuit opinion for the proposition that Mt. Healthy directed district courts to "make [an] after-the-fact rationale" regarding the circumstances that would have existed absent the discriminatory conduct. 864 at 707 (citing Smallwood v. United Air Lines, Inc., 728 F.2d 614, 623 (4th Cir.), cert. denied, 469 U.S. 832, 83 L. Ed. 2d 62, 105 S. Ct. 120 (1984)). The Tenth Circuit stated, however, that it was not concerned with the actual cause of dismissal, but rather with the "appropriate remedy." 864 at 707 n.3. It held that the after acquired evidence, though not the "cause" of the discharge, was relevant to the plaintiff's claim of "injury" and precluded any relief. Id. at 708. *fn6" It analogized the case to the hypothetical situation wherein a company fired a doctor "because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a 'doctor' . . . the masquerading doctor would be entitled to no relief." Id. at 708. The court concluded that the plaintiff had no injury because he would have been legitimately fired if the employer knew of the falsifications, though, in fact, he had been fired for illegitimate reasons. *fn7" Id. Thus, the fact that he had been discriminated against was irrelevant.

 Some courts applying this rule have stated that the civil rights statutes were not meant to protect employees who have committed misconduct of a nature that, had their employers known of it, the employer would have fired them. O'Driscoll v. Hercules, Inc., 745 F. Supp. 656, 660-61 (D. Utah 1990). The Summers methodology has been followed in other circuits in the following cases: Rich v. Westland Printers, Inc., 1993 U.S. Dist. LEXIS 8526, 1993 WL 220453, (D. Md. June 9, 1993); Kravit v. Delta Airlines, Inc., 1992 U.S. Dist. LEXIS 19087, 1992 WL 390236, (E.D.N.Y. Dec. 4, 1992); Redd v. Fisher Controls, 814 F. Supp. 547 (W.D. Tex. 1992); O'Day v. McDonnell Douglas Helicopter Co., 784 F. Supp. 1466 (D. Ariz. 1992); Sweeney v. U-Haul Co. of Chicago Metroplex, 1991 U.S. Dist. LEXIS 268, 1991 WL 1707 (N.D. Ill. 1991).

 B. The Sixth Circuit

 The Sixth Circuit has adopted the Tenth Circuit's approach, see Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 305 (6th Cir. 1992) (if employer shows that plaintiff would have been fired had after acquired evidence been known to employer during employee's tenure, actual discrimination is irrelevant), but has modified it for cases involving resume fraud. In Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir. 1992), the court formulated a fraud type analysis for cases involving misrepresentations in a resume or employment application, as differentiated from cases involving on the job misconduct. It held that the employer would be entitled to summary judgment only if the "misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon by the employer in making the hiring decision." Id. at 414 (citing Churchman v. Pinkerton's, Inc., 756 F. Supp. 515, 520 (D. Kan. 1991)). The court deemed these requirements necessary to prevent employers from "combing a discharged employee's record for evidence of any and all misrepresentations, no matter how minor or trivial, in an effort to avoid legal responsibility for an otherwise illegal discharge." Id.

 This fraud analysis has been applied in other circuits as well. See, e.g., Agbor v. Mountain Fuel Supply Co., 810 F. Supp. 1247 (D. Utah 1993); Churchman v. Pinkerton's, Inc., 756 F. Supp. 515, 520 (D. Kan. 1991); compare Wallace v. Dunn Construction Co., 968 F.2d 1174, 1187 (11th Cir. 1992) (Godbold, J., dissenting) (plaintiffs having committed fraud in application, as distinguished from employee properly hired who commits misconduct after hire, have no standing under Title VII).

 C. The Seventh Circuit

 The Seventh Circuit has rejected the Sixth Circuit's standard for resume or application fraud. Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir. 1992), involved a suit under Title VII, and 42 U.S.C. §§ 1981 & 1983 in which the trial court had granted defendant summary judgment based on after acquired evidence that the plaintiff had lied on his application by indicating he had no criminal convictions. Id. at 251. In affirming that judgment, the seventh Circuit held that, regardless of whether the after acquired evidence involved application fraud or on the job misconduct, such evidence barred an employment discrimination claim only if the employer demonstrates that it would have made the decision to fire the plaintiff had it known of the misconduct. Id. at 255. The court required this potentially more stringent standard because "there are many situations . . . in which an employer would not discharge an employee if it subsequently discovered resume fraud, although the employee would not have been hired absent that resume fraud." Id. at 256 n.5.

 While acknowledging the equitable appeal of denying a plaintiff any relief when that plaintiff was hired, in part, based upon his own fraudulent conduct, the court found the Sixth Circuit's approach misguided. Id. at 256. The court noted that, in mixed-motive cases, the Supreme Court focused on whether the employment decision at issue would have been made. Id. It reasoned that to focus on whether the plaintiff would have been hired would unjustifiably depart from that standard and, by concentrating on job entitlement, would import "'property right' concepts into employment discrimination law." Id. The court stated that "'property rights'. . . [are] not a requirement for showing injury in a federal discrimination claim." Id. Finding that the criminal convictions, their concealment, and defendant's affidavits sufficiently established as a matter of law that the employer would have fired the plaintiff, the court affirmed the lower court's grant of summary judgment. Id. at 256-57.

 The court also noted that in an earlier case, it had implied that a plaintiff proving discrimination would be entitled to back-pay between the time of discharge and the time after acquired evidence of fraud or other misconduct was discovered. *fn8" Id. at 253 n.2 (citing Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 n.2 (7th Cir. 1989)); see also Kristufek v. Hussmann Foodserv. Co., 985 F.2d 364, 371 (7th Cir. 1993) (back-pay award reduced to amount lost between time of discharge and discovery of misconduct). The court refused to consider this issue, however, because it was not advanced by the plaintiff. Washington, 969 F.2d at 253 n.2. *fn9"

 D. The Eleventh Circuit

 The Eleventh Circuit, however, has expressly rejected both the Tenth Circuit's analysis that illegally terminated employees guilty of sufficient misconduct can claim no injury and the Seventh Circuit's limitation on back-pay. In Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992), the court held that where after acquired evidence provides the employer with a legitimate reason to fire the employee, reinstatement, front-pay, and injunctive relief are unavailable, but back-pay -- from ...

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