Resorts International for alleged sexual harassment. Such conduct could certainly be deemed material by any employer considering an employee for advancement, especially in a situation as here where the employer was selecting someone as a model for a pilot program.
Nevertheless, as discussed earlier, defendant has not demonstrated the absence of a material issue of fact regarding plaintiff's alleged misrepresentation of the circumstances surrounding that discharge. Absent a misrepresentation, defendants erroneous assumption that it was dealing with an employee with a spotless background is merely a unilateral mistake, insufficient to hold the contract voidable. Therefore, we cannot grant summary judgment on the contract claim.
We hold that after acquired evidence of employee misconduct may be used in employment discrimination cases to bar the specific remedies of reinstatement and front-pay if the employer demonstrates that, based solely upon that misconduct, it would have made the same employment decision regarding that employee. If the employer can demonstrate that it would have inevitably discovered such evidence independent of its actual decision regarding the employee, back-pay will be limited to the time between the discharge or failure to hire and the discovery of the misconduct. Otherwise, back-pay awards will be measured from the time of the discriminatory conduct to the time of judgment. After acquired evidence of misconduct, however, will not act as a bar to any other remedies available to the plaintiff under the statutes upon which his suit is based. We find also that New Jersey courts would apply the identical standard to cases arising under the New Jersey anti-discrimination statutes.
In the instant case, because defendant has failed to show an absence of material fact regarding whether plaintiff misrepresented the reasons he left his former employment or that it would have fired plaintiff had it known of the misrepresentation and underlying facts, summary judgment on the federal and state discrimination claims is denied. Although a different standard applies to the state contract claim, defendant's failure to demonstrate an absence of material fact regarding the misrepresentation similarly requires denial of summary judgment on that claim as well.
The accompanying order has been entered.
JOHN F. GERRY, CHIEF JUDGE
DATED: July 30, 1993
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 828 F. Supp. 314.
ORDER - July 30, 1993, Filed
This matter having come before the court upon motion of defendant, Trump's Castle Hotel & Casino, to dismiss plaintiff's Title VII claim for failure to file a timely administrative claim, and defendant's motion for summary judgment on all claims raised in the complaint, and the court having considered the submissions, and for good cause shown;
It is, this 30th day of July 1993, hereby ORDERED that Trump's Castle Hotel & Casino's motion for dismissal of plaintiff's Title VII claim is DISMISSED WITHOUT PREJUDICE; and
It is FURTHER ORDERED that Trump's Castle Hotel & Casino's motion for summary judgment is DENIED on all claims.
JOHN F. GERRY, CHIEF JUDGE