Dennis v. O'Day v. McDonnell Douglas Helicopter Company, a Foreign Corporation, (Two Cases)

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge FLETCHER.

We consider whether an employer found to have violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., can avoid all liability for its discrimination by proving with “after-acquired evidence” that the plaintiff could have been discharged for a legitimate reason.

I

On June 8,1990, Dennis O’Day was denied a promotion to the position of Lead Engineer at the McDonnell Douglas Plelicopter Company’s plant in Mesa, Arizona. One month later, he was laid off as part of a general workforce reduction. O’Day was 46 years old, had worked for the company for 14 years, and was convinced he had been denied the promotion and laid off because of his age.

After first exhausting his administrative remedies with the Equal Employment Opportunity Commission, O’Day filed this lawsuit against McDonnell Douglas challenging the promotion denial and layoff. He states four causes of action: (1) discrimination in employment under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 , et seq.; (2) discrimination in employment under the Arizona Civil Rights Act (ACRA), Ariz.Rev.Stat. Ann. §…

concurring in part and dissenting in part.

I concur in that portion of the majority opinion that reverses the district court’s grant of summary judgment to McDonnell Douglas on the grounds that after-acquired evidence barred O’Day from obtaining any remedy for his employer’s alleged discrimination. I dissent from the remainder of the opinion because it is entirely advisory, substantively wrong, and does violence to our circuit’s precedents.

The district court granted summary judgment in favor of McDonnell Douglas because it reasoned that even if it were assumed that McDonnell Douglas fired O’Day on account of his age, the company would have fired him anyway for wrongfully acquiring and disseminating confidential company information. As the majority recognizes, this analysis was flawed. Under McKennon v. Nashville Banner Publishing, Co., - U.S. -, 115 S.Ct. 879 , 130 L.Ed.2d 852 (1995), after-acquired evidence of an employee’s wrongdoing is not a ground for avoiding liability under the anti-discrimination laws if the employer initially terminated the employee for a discriminatory motive. The evidence’s only benefit to the employer is to limit the extent of the remedy.

Whether…

79 F.3d 756 70 Fair Empl.Prac.Cas. (BNA) 615 , 67 Empl. Prac. Dec. P 43,964 , 64 USLW 2617 , 96 Cal. Daily Op. Serv. 2004 , 96 Daily Journal D.A.R. 3398 Dennis V. O'DAY, Plaintiff-Appellant, v. McDONNELL DOUGLAS HELICOPTER COMPANY, a Foreign Corporation, Defendant-Appellee. (Two Cases). Nos. 92-15625, 92-16512. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 7, 1994. Submission Withdrawn April 12, 1994. Submission Further Suspended Nov. 8, 1994. Resubmitted June 9, 1995. Decided March 26, 1996. Francis G. Fanning, Tempe, Arizona, for the plaintiff-appellant. Tibor Nagy, Jr., Snell & Wilmer, Tucson, Arizona, for the defendant-appellee. Robert J. Gregory, Attorney, Equal Employment Opportunity Commission, Washington, D.C., for amicus Equal Employment Opportunity Commission, on behalf of the plaintiff-appellant. Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. Before: FLETCHER, KOZINSKI, and TROTT, Circuit Judges. Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge FLETCHER. KOZINSKI, Circuit Judge. 1 We consider whether an employer found to have violated the…