Miller v. Beneficial Management Corp. (855 F. Supp. 691, 1994)

OPINION

LECHNER, District Judge.

This is an action by plaintiff Elizabeth G. Miller (“Miller”) against defendants Beneficial Management Corporation, Beneficial Management Corporation of America and Beneficial Corporation (collectively, “Beneficial”), alleging gender and age discrimination in employment in violation of Federal and state law. Jurisdiction is alleged pursuant to the Equal Pay Act, as amended, 29 U.S.C. §§ 206(d)(1) and 216(b) (“EPA”), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 626, et seq. (“ADEA”), the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 28 U.S.C. §§ 1331 and 1367.

Currently before the court is the motion by Beneficial for summary judgment dismissing the action pursuant to Fed.R.Civ.P. 56. Also before the court is the cross-motion of Miller for partial summary judgment striking certain of Beneficial’s affirmative defenses. For the reasons set forth below, both motions are denied.

Procedural History

Miller’s claims of gender and age discrimination relate to her transfer from Beneficial’s Legal Department to its Government Relations Department. Complaint and Jury Demand (“Complaint”), ¶ 7. In early 1984, Beneficial vice president David Ward (“Ward”) informed Miller that Charles Walsh, vice president and Counsel for Government Relations (‘Walsh”), and Ken Raatz, an employee in the Government Relations Department (“Raatz”), were to be terminated from their posts; Ward invited Miller to replace them. Id., ¶¶ 7-8. Miller alleges she formally began working in the Government Relations Department on 1 July 1984, at which time she took over for both Walsh and Raatz. Id. According to Miller, despite assuming greater responsibilities than those handled by either Walsh or Raatz, her base salary was less than that of either of her predecessors. Id., ¶¶ 9-12.

Miller commenced this action on 20 July 1989. As originally filed, the Complaint alleged violations of the EPA, ADEA, New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 et seq. (“NJLAD”), and the New Jersey Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (“CEPA”). Id., ¶ 4. The Complaint requested “backpay, frontpay, compensatory damages, damages for psychological and emotional distress and/or humiliation, double damages, liquidated damages and punitive damages, as may be permitted under [F]ederal and state statute and common law.” Id., ad damnum clause, ¶ A. The Complaint further requested that Miller be restored “to the full pension and other benefits to which she would have been entitled and which she would have attained but for defendant’s illegal conduct.” Id., ¶ B.

On 29 September 1989, Beneficial filed an answer to the Complaint, asserting six affirmative defenses. On 21 November 1989, Miller amended the Complaint, adding a claim under Title VII (the “Amended Complaint”). On 11 December 1989, Beneficial filed an answer to the Amended Complaint (the “Answer”).

By letter opinion, dated 23 July 1990, Miller’s claim under CEPA was dismissed pursuant to Fed.R.Civ.P. 12(b)(1). As a result of the dismissal of her CEPA claim, Miller’s claims for prospective relief such as frontpay and reinstatement are no longer at issue. Miller has, in fact, conceded that the Amended Complaint no longer seeks prospective relief. See Miller Moving Brief at 16.

On 7 August 1991, Beneficial moved for summary judgment on, and/or dismissal of, the remaining claims in the Amended Complaint. By opinion, filed 18 October 1991 (the “18 October 1991 Opinion”), summary judgment was granted to Beneficial and the Amended Complaint was dismissed. See Miller, 776 F.Supp. at 970. On 19 November 1992, the Third Circuit reversed the 18 October 1991 Opinion and remanded the matter, holding that genuine issues of material fact existed as to whether Miller had been subjected to unlawful discrimination. See Miller, 977 F.2d at 847. Miller’s claims under the EPA, ADEA, Title VII and the NJLAD were thereby reinstated.

On 9 July 1993, Beneficial moved before Magistrate Judge Dennis M. Cavanaugh (the “Magistrate Judge”) for leave to amend the Answer to assert two additional affirmative defenses. By letter-opinion and order, dated 20 July 1993 (the “20 July 1993 Opinion and Order”), the Magistrate Judge denied Beneficial’s request for leave to amend the Answer. By opinion, dated 20 September 1993, the 20 July 1993 Opinion and Order was reversed and Beneficial was granted leave to amend the Answer. See Miller v. Beneficial Management Corp., 844 F.Supp. 990 (D.N.J. 1993).

On 24 September 1993, Beneficial filed an amended answer (the “Amended Answer”). In the Amended Answer, Beneficial asserted two affirmative defenses in addition to those six asserted in the Answer. The first of these (the “Seventh Affirmative Defense”) alleges: “[Miller’s] claims are barred by her misrepresentation and fraud as to her resume and applications for health, death and pension benefits related to her employment at Beneficial.” Amended Answer at 10. The second of the additional affirmative defenses (the “Eighth Affirmative Defense”) alleges: “[Miller’s] claims are barred as a result of her unauthorized removal of documents from Beneficial.” Id.

By its instant motion, Beneficial seeks summary judgment dismissing the Amended Complaint based on Miller’s misconduct as alleged in the Seventh and Eighth Affirmative Defenses. Miller’s cross-motion seeks partial summary judgment striking the Seventh and Eighth Affirmative Defenses.

Facts

A. Miller’s Employment History and the Misconduct Originally Alleged as the Basis for the Seventh and Eighth Affirmative Defenses

In support of the Seventh and Eighth Affirmative Defenses, Beneficial asserts that pre-trial discovery revealed certain misconduct on Miller’s part. Beneficial asserts that had it known of this misconduct at the time of its occurrence, it would have terminated Miller. Beneficial argues this state of facts should bar any recovery by Miller.

Miller contends Beneficial knew of her misconduct before the institution of this action and did not, in fact, terminate her employment. The undisputed facts with regard to Miller’s employment history at Beneficial and her alleged misconduct are as follows:

In the fall of 1979, Miller submitted a resume (the “Resume”) to Beneficial, seeking employment as an attorney. See Deposition of Miller, dated 20 November 1993 (the “20 Nov. 1993 Miller Dep.”), attached as Exhibit S to Anderson Cert., at 5. At that time, Miller was interviewed by Beneficial and was offered employment in Beneficial’s Legal Department effective 2 September 1980. Id. at 7; Beneficial Moving 12G, ¶7.

On 27 August 1980, in preparation for her employment, Miller submitted the Resume and an employment application (the “Application”) to Beneficial’s Personnel Department. On the Application, Miller’s signature appears below the following statement:

I certify that the answers given by me to all of the questions on this application and any attachments are, to the best of my knowledge and belief, true and correct and that I have not willingly or knowingly withheld any pertinent facts or circumstances. I understand that any omission or misrepresentation of fact in this application may result in refusal of or separation from employment upon discovery thereof. I understand that as part of the employment process the employer has the authority and privilege to investigate and verify the information that I have provided.

Application, attached as Exhibit A to Anderson Cert., at 3.

In the course of Miller’s “job orientation,” she signed and submitted to Beneficial a “Service Record Employment Contract” (the “Employment Contract”). Beneficial Moving 12G, ¶ 9. On the Employment Contract, Miller represented her date of birth as “2-20-1931.” Employment Contract, attached as Exhibit B to Anderson Cert.

On 2 September 1980, Miller signed and submitted to Beneficial an “Employee’s Death Benefit Plan Enrollment Card” (the “Death Benefit Card”). On the Death Benefit Card, Miller stated her date of birth as 20 February 1931. See Death Benefit Card, attached as Exhibit C to Anderson Cert. On 22 September 1980, Miller signed and submitted to Beneficial an “Enrollment Card— Group Health Insurance” (the “Health Insurance Card”). On the Health Insurance Card, Miller represented her date of birth as 20 February 1931. See Health Insurance Card, attached as Exhibit C to Anderson Cert.

In September 1980, shortly after Miller began work at Beneficial, Beneficial obtained Miller’s high school, college and law school transcripts (the “Academic Transcripts”). See Academic Transcripts, attached as Exhibit P-136 to Miller Opp. Transcripts. The Academic Transcripts showed Miller’s true date of birth to be 20 February 1928. Id. They also, of course, contained a true listing of Miller’s grades and dates of graduation from high school, college and law school. Id. Beneficial employed a person for the specific purpose of “cross-check[ing] transcripts and information like that against what was put down on employment applications.” 17 Nov. 1993 Cole Dep. at 45.

Miller began her employment as an attorney with Beneficial on 2 September 1980. At that time, she joined Beneficial’s Legal Department as an associate counsel. Beneficial Moving 12G, ¶ 2. Miller’s employment at Beneficial was her first since graduation from law school. Id., ¶ 8. In a “job description,” Miller’s duties were summarized as follows: “Provides legal advice to consumer finance subsidiaries regarding various aspects of operations.” Beneficial Job Description, dated October 1982 (the “1982 Job Description”), attached as Exhibit D to Anderson Cert. Miller’s duties also involved “working] with representatives from various departments on developing and modifying practices and procedures to conform with legal requirements” and “providing] legal advice in areas such as [Fjederal regulations, state license examinations, computer and credit bureau contracts ... [and] compliance with [F]ederal laws and regulations such as the Truth in Lending Act, the Equal Credit Opportunity Act, etc.” Id.

While employed in the Legal Department, Miller’s performance was regarded unevenly by her superiors. On 16 November 1983, Charles E. Hance (“Hance”), head of the Legal Department and Miller’s immediate supervisor, completed an evaluation form, known as a “Bentrak,” regarding Miller’s performance (the “1983 Bentrak”). In the 1983 Bentrak, Hance stated Miller exhibited “good planning and organizing skills” and that her “motivation and cooperation,” as well as her “initiative, energy and ambition,” were “good.” 1983 Bentrak, attached as Exhibit G to Anderson Cert., at 2. Hance further reported Miller’s “job knowledge regarding] bankruptcy” and other areas of law was “developing well.” Id. Hance cautioned, however, that “senior field and headquarters personnel were dissatisfied with [Miller’s] advice.” Id. at 3. In a section marked “summary rating,” Hance checked a box marked “Below Expectations].” Id.

Testifying in a deposition in this action, Richard Bate (“Bate”), another of Miller’s supervisors in the Legal Department, disagreed with the evaluation of Miller in the 1983 Bentrak. Bate stated Miller “was a very competent, solid, reliable attorney, and [that he] had complete confidence in her work.” 23 June 1993 Bate Dep. at 45. Bate stated he did not find Miller to be lacking in any area of her performance. Id.

Following her receipt of the 1983 Bentrak, Miller “made some efforts towards finding other employment.” Miller Opp. 12G, ¶ 17. To this end, she contacted a “headhunter” and transmitted her resume to other employers. See Beneficial Moving 12G, ¶ 17; Miller Opp. 12G, ¶ 17.

In or about March 1984, Ward, head of Beneficial’s Government Relations Department, approached Miller and asked her to join the Government Relations Department. 20 May 1993 Hance Dep. at 51-52. Miller accepted Ward’s offer and began work in the Government Relations Department on 1 July 1984. Miller Opp. 12G, ¶ 12. The Government Relations Department “consists of a corporate staff operating out of Beneficial’s headquarters and Government Relations Directors (“GRDs”), who function primarily as lobbyists in the field.” Beneficial Moving 12G, ¶ 13. “Its functions include developing and presenting Beneficial’s positions on issues to legislative and regulatory bodies at the [Fjederal and state levels” and coordinating political contributions. Id. These “lobbying and contribution activities are subject to disclosure and filing requirements, and the [Government Relations] Department must keep informed of, and comply with, these requirements.” Id.

Miller’s responsibilities in the Government Relations Department included “the preparation and filing of lobbying and political contribution reports and providing advice to the GRDs regarding compliance with laws governing their activities.” Id., ¶ 14; see Beneficial Job Description, dated October 1985 (the “1985 Job Description”), attached as Exhibit F to Anderson Cert. Miller was also responsible for creating and coordinating political action committees (“PACS”) and monitoring laws regarding political contributions. See 1985 Job Description.

Miller was promoted to assistant vice president on 1 July 1985. Id., ¶ 15. Even at this time, Miller’s performance within the Government Relations Department was regarded unevenly by her superiors. For example, in a “Bentrak” evaluation form, dated 7 March 1986 (the “1986 Bentrak”), Miller’s interpersonal and management skills were rated as “below expectations].” 1986 Bentrak, attached as Exhibit H to Anderson Cert., at 2, 4. Similarly, in a “Bentrak” evaluation form, dated 14 October 1988 (the “1988 Bentrak”), Ward evaluated Miller as below expectations in administrative, interpersonal, professional and management skills. See 1988 Bentrak, attached as Exhibit I to Anderson Cert., at 2-7. Other evaluations, however, gave Miller higher marks for her performance. See Miller Opp. 12G, ¶ 16.

In or about May or June 1988, Miller covertly taped a conversation with Helen Perry (“Perry”), another Beneficial employee (the “Perry Conversation”). Miller Opp. 12G, ¶ 18; Beneficial Moving 12G, ¶ 18. Miller subsequently informed Perry the conversation was recorded. 9 June 1993 Miller Dep. at 461. On the day after the Perry Conversation took place, Miller informed Ward she had taped the Perry Conversation. Id. at 466. According to Miller, Ward did not respond verbally to this disclosure. Id. at 467.

Ward testified during a deposition in this action that he considered discharging Miller for her covert recording of the Perry Conversation. See Deposition of Ward, dated 30 June 1993 (the “30 June 1993 Ward Dep.”), attached as Exhibit E to Anderson Cert., at 171. Hance, according to Ward, advised such action was inappropriate “since there was no company policy on the subject.” Id. Ward’s dissatisfaction with Miller’s taping of the Perry Conversation was reflected in the 1988 Bentrak. See 1988 Bentrak at 4.

On 3 June 1988, in spite of the mixed evaluations of Miller’s performance, Ward discussed with Finn M.W. Caspersen (“Caspersen”), then a member of Beneficial’s Executive Committee, the possibility of promoting Miller to vice president. See 6 April 1994 Miller Cert., ¶¶ 12-13, Ex. F; Beneficial Moving 12G, ¶ 21. In February 1988, Miller had approached David Farris (“Farris”), president of Beneficial, regarding a promotion. Beneficial Moving 12G, ¶ 21. During a meeting on 1 September 1988 (the “September 1988 Bentrak Meeting”), Ward informed Miller she would not be promoted because of her evaluation in the 1988 Bentrak. 30 June 1993 Ward Dep. at 186.

By letter, dated 19 September 1988 (the “19 Sept. 1988 Letter”), Miller informed Ward of her opinion that Beneficial’s refusal to promote her was motivated by her age, which she stated was sixty. See 19 Sept. 1988 Letter, attached as Exhibit M to Anderson Cert. In the 19 September 1988 Letter, Miller also accused other members of the Government Relations Department of engaging in unspecified illegal activities. Id.

Prompted by the 19 September 1988 Letter, Beneficial commenced an internal investigation of the Government Relations Department (the “Internal Investigation”). See Beneficial Moving 12G, ¶ 27. On 20 October 1988, Miller was transferred back to the Legal Department. Id., ¶ 28.

In or about September 1988, Ward became “puzzled” by Miller’s statements, in the 19 September 1988 Letter and at the September 1988 Bentrak Meeting, that she was sixty years old. Id., ¶ 31. Ward thereupon reviewed Beneficial’s personnel records regarding Miller. Deposition of Ward, dated 10 December 1993 (the “10 Dec. 1993 Ward Dep.”), at 9. Ward discovered Miller’s age, according to Beneficial’s personnel records, was fifty-seven. Id. at 14.

On 8 September 1988, Ward drafted an addendum to the 1988 Bentrak (the “1988 Addendum”). In the 1988 Addendum, Ward stated:

[S]ince you brought up the subject of your age, I looked in the personnel records after you left for home on September 1 [after the September 1988 Bentrak Meeting] to see what they showed. You told the company that you were born in 1931 and would now be 57 years of age. You repeated a number of times in the [September 1988 Bentrak Meeting] that you were 60 years old. A misrepresentation was made on one of those occasions, although I don’t know which one.

1988 Addendum,- attached as Exhibit P-132 to Miller Opp. Transcripts, at 2. The 1988 Addendum was circulated to Farris, Hance, Maryann Schneider (“Schneider”), Beneficial’s Senior Vice President for Planning and Administration, and Lawrence X. Cole (“Cole”), Beneficial’s Vice President for Human Resources. Id. at 1.

On 18 October 1988, Ward circulated a memorandum to Schneider, Hance and Cole (the “18 Oct. 1988 Memo”). In the 18 October 1988 Memo, Ward complained of several instances of “outright gratuitous fabrication” on Miller’s part. 18 Oct. 1988 Memo, attached as Exhibit P-133 to Miller Opp. Transcripts. These included a “blatant lie by [Miller] to cover up her poor judgment in [a] business situation” and “her lying about her age on her employment application.” Id.

On 15 November 1988, Miller submitted to Beneficial’s Payroll Department a “Temporary Disability Benefits Claim” (the “1988 Claim”). In the 1988 Claim, Miller listed her date of birth as 20 February 1928. See 1988 Claim, attached as Exhibit P-136 to Miller Opp. Transcripts. Shortly thereafter, Beneficial vice president Marilyn Maher (“Maher”) noted the discrepancy between the date of birth listed in the 1988 Claim and that listed on the Health Insurance Card. On 17 November 1988, Maher circulated a memorandum on the subject to Hance and Cole (the “17 Nov. 1988 Memo”). In the 17 November 1988 Memo, Maher informed Hance and Cole:

As information, there is a discrepancy on the disability form which [Miller] completed with regard to her age. On our health and life records, she shows her age [sic ] as 2/20/31 and on the disability form she shows it as 2/20/28.

17 Nov. 1988 Memo, attached as Exhibit P-136 to Miller Opp. Transcripts. Beneficial’s “upper level managers in charge chose not to pursue the matter with [Miller] at that time____” Beneficial Moving 12G, ¶34.

Miller does not dispute that she wilfully falsified her date of birth on her Employment Contract, Resume, Death Benefit Card and Health Insurance Card. Miller Opp. 12G, ¶38. Nor does she dispute that she failed to inform anyone at Beneficial of these misrepresentations during her employment. Id., ¶ 43. She asserts, however, that she did so “because she was afraid she would have a difficult time finding [and keeping] employment due to age discrimination.” Id., ¶ 39; see 20 November 1993 Miller Dep. at 27.

Miller also admits that, throughout her employment at Beneficial, she routinely removed files from the office. 20 Nov. 1993 Miller Dep. at 69. Miller kept some of these files at home and some in her briefcase. Id. at 72. In explanation of this practice, Miller states she “worked a lot at home.” Id. at 69. Miller states she did not ask anyone at Beneficial whether it was permitted to bring records home because “[e]veryone did this.” Id. at 71. Miller admits, however, that she transmitted some of these documents to her attorney in the instant matter between October 1988 and January 1989. Id. at 231, 235.

Some of the documents Miller removed were “personnel documents [ (the “Personnel Files”) ] that [she] would want for [her] records.” Id. at 70. Some of these Personnel Files related to other employees. Id. at 73; see Anderson Cert., Ex. LL. Miller states she took some of these “to protect [her]self because of the things ... that [she was] asked to do that were illegal.” 20 Nov. 1993 Miller Dep. at 69. Others, she states, she took home because “they weren’t perhaps as secure as they should have been in [her] office.” Id. at 73.

Between about 1984 and 1 September 1988, Miller also routinely brought home several confidential memoranda containing legal advice given to Beneficial by her and by other attorneys (the “Opinion Memos”). Id. at 108-118. Miller states she brought the Opinion Memos home “to protect [her]self.” Id. at 109. Miller elaborated: “If Beneficial got in trouble I wanted to be sure that I could protect myself by showing I was no part of that trouble.” Id. at 109-10.

Between October 1988 and January 1989, Miller removed from Beneficial’s offices several “lists of retainers and ... list[s] of political contributions” made by Beneficial and its employees (the “Contribution Lists”). Deposition of Miller, dated 8 June 1993 (the “8 June 1993 Miller Dep.”), attached as Exhibit J to Anderson Cert., at 23-24; see Anderson Cert., Exs. MM, NN. Miller states she removed the Contribution Lists because she thought they might aid her in a lawsuit against Beneficial. See 8 June 1993 Miller Dep. at 24.

There is at least some evidence in the record that officers of Beneficial knew prior to the institution of this action that Miller was removing documents from Beneficial’s offices. In or about September 1988, for example, Ward suggested to Cole that “Miller might have removed company documents.” 17 Nov. 1993 Cole Dep. at 32. Cole did not follow up this information with further inquiry. Id. at 33.

On 3 October 1988, Ward addressed a memorandum to Hance entitled “Elizabeth G. Miller” (the “3 October 1988 Memo”). In the 3 October 1988 Memo, Ward stated several concerns regarding Miller prompted by her 19 September 1988 Letter. See 3 October 1988 Memo, attached as Exhibit P-140 to Miller Moving Transcripts. Among these concerns, Ward stated: “You are also aware, I believe, that she has been asking for files relating to contributions____” Id. Ward concluded the 3 October 1988 Memo by stating: “It is my feeling that she has simply decided some sort of litigation is what she wants.” Id. Copies of the 3 October 1988 Memo were circulated to Schneider, Farris and Eileen Caulfield (“Caulfield”), the Beneficial attorney in charge of the Internal Investigation. Id.

In or about October 1988, while conducting the Internal Investigation, Caulfield learned Miller had been removing documents from Beneficial over an extended period of time. See 13 Dec. 1993 Caulfield Dep. at 25-27. At some point during the Internal Investigation, Caulfield transmitted this information to Ward. See 10 Dec. 1993 Ward Dep. at 49-54. During “the first couple of weeks” of the Internal Investigation, Caulfield was informed by Miller that Miller had retained an attorney. 13 Dec. 1993 Caulfield Dep. at 33.

On 20 October 1988, Hance took notes of a phone conversation he had with James Gilliam (“Gilliam”), a senior vice president at Beneficial (the “Hance Phone Notes”). The Hance Phone Notes are captioned: “B. Miller ... Priv & Conf & written in contemp of anticip litigation.” Hance Phone Notes, attached as Exhibit P-147 to Miller Moving Transcripts. In the Hance Phone Notes, Hance notes Miller “asked for some time to work on her files (she has at home).” Id. Hance testified that, shortly after he took the Hance Phone Notes, he became aware that Miller was sending Caulfield documents related to the Internal Investigation “from someplace other than the office.” 17 Nov. 1993 Hance Dep. at 165.

On 13 December 1988, Ward addressed a memorandum to Caspersen (the “13 Dec. 1988 Memo”). In the 13 December 1988 Memo, Ward stated, among other complaints about Miller: “[0]f course, we now know that she has been secretly accumulating files of company documents at home.” 13 Dec. 1988 Memo, attached as Exhibit P-151 to Miller Moving Transcripts.

The next day, 14 December 1988, Hance addressed a memorandum to Miller (the “14 December 1988 Memo”), reporting that the Internal Investigation had been concluded and that there had been no indication of wrongdoing. See 14 Dee. 1988 Memo, attached as Exhibit Gilliam-1 to Miller Moving Transcripts. Hance also wrote:

Beneficial ... believes that much of the information and many of the documents that you have were obtained by you in the course of your acting as an attorney for the company and its affiliated companies. Please be advised that the company and its affiliated companies do not waive any attorney-client rights and privileges in connection with these matters, and we caution you to act accordingly. In this regard, please make sure that you do not breach any obligation owed to the company and its affiliated companies.

Id.

On 6 January 1989, Miller left Beneficial’s employ. Beneficial contends Miller “voluntarily terminated her employment.” Beneficial Moving 12G, ¶36. Miller counters she was “constructively discharged.” Miller Opp. 12G, ¶ 36.

In the days following Miller’s departure from Beneficial, Hance had discussions with Gilliam regarding offering Miller “the opportunity to continue in the employ of Beneficial.” 17 Nov. 1993 Hance Dep. at 142. Hance recommended offering Miller continued employment because Miller “might have acted in leaving the company in a manner that she would subsequently decide was not as constructive as continuing employment with Beneficial.” Id. at 143. Hance explained he thought Miller “might decide after a little reflection that it would be better for her to continue with her job at Beneficial and that [Beneficial] ought to make that opportunity available to her.” Id. Gilliam agreed with Hance’s assessment that an offer of reemployment “was the right thing to do.” Id.

On 10 January 1989, Hance addressed a letter to Miller (the “10 Jan. 1989 Letter”). In the 10 January 1989 Letter, Hance wrote:

On January 8,1 advised you that we will keep your position for you, for two weeks, to give you the chance to reconsider continuing to work here. As I told you on January 8, we are not trying to get you to leave. We are trying to provide you with the opportunity of continuing to work here in a position that is meaningful and productive.

10 January Letter, attached as Exhibit P-152 to Miller Moving Exhibits, at 1. Hance then proceeded to address certain concerns Miller had expressed with respect to working conditions at Beneficial. Id. at 1—1. Hance concluded:

I hope [this] explains my understanding of the developments and the current situation. I also hope it will serve as a basis for your reconsidering the opportunity to work here.

Id. at 5.

On 13 January 1989, Hance addressed another letter to Miller, enclosing checks for sums due Miller from Beneficial (the “13 Jan. 1989 Letter”). Hance concluded the 13 January 1989 Letter by stating:

We are still keeping your position for you (as set forth in [the 10 January 1989 Letter]), and the issuance of these checks in no way affects that.

13 Jan. 1989 Letter, attached as Exhibit P-153 to Miller Moving Transcripts.

On 16 January 1989, Hance completed a form regarding Miller entitled “Beneficial Management Corporation Termination Form” (the “Termination Form”). In response to the question ‘Would you re-employ?,” Hance checked the space marked “Yes.” Termination Form, attached as unmarked exhibit to Miller Moving Transcripts, at 1. After the query “Please explain,” Hance wrote: “Re-employment would be to continue to provide ... Miller with the opportunity of a meaningful and productive position here.” Id.

On 20 January 1989, Hance wrote yet another letter to Miller (the “20 Jan. 1989 Letter”), addressing her concerns about Beneficial and again offering her employment in Beneficial’s Legal Department:

I believe the position can be a meaningful and productive one, equivalent to your former position in the Government Relations Department.

I believe that you can work here in a meaningful and productive way, if you choose to do so, and if you can separate your working here from you dissatisfaction regarding the [Internal] [investigation and related matters.

If you are interested in this position, please let me know within the next two weeks.

20 Jan. 1989 Letter, attached as Exhibit P-154 to Miller Moving Transcripts.

After Hance had offered Miller re-employment with Beneficial, he discussed the offer with Cole. Though Cole did not agree with Hanee’s actions, he “accepted” Hance’s decision. 17 Nov. 1993 Cole Dep. at 38. Cole did not express to Hance his reservations concerning the offer to re-employ Miller. Id. at 37.

Miller did not accept Beneficial’s offers of re-employment. On 20 July 1989, as indicated, Miller commenced the instant suit. See Complaint.

B. Misconduct Alleged After Filing of Amended Answer

Beneficial contends that, in preparing for trial, it discovered other fraudulent misrepresentations made by Miller on her Application and Resume. Miller disputes Beneficial’s assertion that these representations were fraudulent.

First, Beneficial contends Miller misrepresented her high school grade point average and class standing on her Application. Beneficial Moving 12G, ¶ 48. Miller admitted during deposition that her representations regarding her high school grade point average were inaccurate. 20 Nov. 1993 Miller Dep. at 51. She stated, however, that those inaccuracies were not the result of fraud, but of faulty memory and mistaken estimation on her part. Id.

Beneficial further contends that, during discovery, it found that Miller misrepresented on the Application and Resume that she was first in her college class. Beneficial Moving Brief at 14. In support of this assertion, Beneficial has submitted letters from officials of the University of Illinois. The first of these, dated 2 November 1993 (the “2 November 1993 Letter”), is from William F. Fierke (“Fierke”), Associate Director for Records and Registration. In the 2 November 1993 Letter, Fierke states Miller was awarded a Bachelor of Science degree, with high honors, in 1952. See 2 November 1993 Letter, attached to Fierke Cert, as Exhibit A. Fierke states Miller did not receive “University Honors,” but instead received “College Honors.” Id. Fierke explains University Honors is awarded to students who, “based on their cumulative grade point average of 4.5 or better through the academic term prior to their graduation, also rank in the top three percent of the graduating class....” Id. Fierke states the University of Illinois does “not have any records listing a valedictorian.” Id.

Beneficial has also submitted a letter, dated 30 November 1993 (the “30 Nov. 1993 letter”), from Cheri Carlson (“Carlson”), Admissions/Records Officer at the University of Illinois. In the 30 November 1993 Letter, Carlson affirms Miller graduated with high honors in 1952. See 30 Nov. 1993 Letter, attached as Exhibit A to Carlson Cert. Carlson states:

Although the University of Illinois does not rank its students, it is possible for us to determine whether ... Miller graduated first in her class ... by examining the Bronze Tablet records for the year in question.

The Bronze Tablet honor is awarded in Spring semesters to the top three percent of the graduates in each college for that particular academic year. [] Miller did not receive Bronze Tablet recognition which indicates that she was not within the top three percent of our graduates for that year.

Id.

Miller contends she had reason to believe, when she submitted her Application and Resume, that she had graduated first in her college class. Miller provided documentation of her receipt of the Outstanding Senior in Education Award from the honorary society of Kappa Delta Pi in May 1952. See 6 April 1994 Miller Cert., Ex. A. The Chairperson of Kappa Delta Pi has certified: “Currently, [on 5 April 1994,] the Kappa Delta Pi Outstanding Senior Award is given to the student with the highest grade point average. As far as I am aware, the award has always been based on the highest grade point average.” Smith Cert., ¶ 4. Miller testified in a deposition that she was told upon her graduation from the College of Education at the University of Illinois that she “was first—I was told I had the highest average from the College of Education.” 20 Nov. 1993 Miller Dep. at 38; see 6 Apr. 1994 Miller Cert., ¶ 5 (certifying Miller was told by a professor upon her graduation that she had the highest grade point average in her class).

Edith Terwilliger (“Terwilliger”), Associate Dean of the College of Education at the University of Illinois, states in a letter to Miller, dated 31 January 1994 (the “31 Jan. 1994 Letter”), that Miller graduated from the College of Education with a cumulative grade point average of 4.598. 31 Jan. 1994 Letter, attached as Exhibit A to Terwilliger Cert. Terwilliger indicates that, based on this grade point average, and on Miller’s receipt of the Outstanding Senior in Education Award, “it is clear that [Miller was] among the top students academically in [her] class.” Id.

Beneficial also argues Miller misrepresented her college grade point average on her Application. Beneficial Moving Brief at 15. Miller has admitted the 3.8 average represented on her Application is inaccurate. See 20 Nov. 1993 Miller Dep. at 52. As indicated, the 31 January 1994 Letter confirms that Miller graduated from the University of Illinois with a grade point average of 4.598. 31 Jan. 1994 Letter; see also Academic Transcripts at 3.

Beneficial further contends Miller misrepresented her teaching experience on her Resume. As indicated, Miller represented on her Resume that she had eleven years of teaching experience at the “high school and junior high school levels.” Resume at 1. During deposition, Miller admitted she had taught “some” of those eleven years at the elementary school level. See 20 Nov. 1993 Miller Dep. at 41. Miller states, however, that when drafting her Resume, she believed it to be an “accurate summary of her teaching experience and had no intention of providing inaccurate information____” 6 Apr. 1994 Miller Cert., ¶ 8.

On her Resume, Miller also represented she participated in several community organizations. See Resume at 2. In support of its motion, Beneficial submitted letters from certain of these community organizations which were unable to confirm Miller’s involvement. Beneficial contends the letters indicate Miller did not, in fact, participate in these organizations. Beneficial Moving Brief at 16. The letters submitted by Beneficial, however, state the community organizations listed by Miller on her Resume do not have sufficient records to verify Miller’s involvement with them. See Anderson Cert., Exs. EE, FF, UU, HH.

Finally, Beneficial contends the Resume misrepresented the reasons Miller left her teaching jobs. For this contention, Beneficial relies on Miller’s representation in her Resume that she left her teaching positions “because of pregnancies.” Resume at 1. During a deposition, Miller stated she left teaching jobs for reasons other than her pregnancies, such as when she and her husband were moving “or [her] husband had taken a job.” 20 Nov. 1993 Miller Dep. at 55. Beneficial contends that, in light of this deposition testimony, Miller’s representation that she had left her teaching jobs because of pregnancies was an intentional misrepresentation. Beneficial Moving Brief at 15.

C. Beneficial’s Employment Policies

Beneficial, as stated, contends it would have terminated Miller’s employment had it known of these instances of misconduct when they occurred. In support of this assertion, Beneficial offers evidence relating to its employment policies and practices in general and as applied to other employees.

Beneficial’s “Staff Service Bulletin” (the “Bulletin”) provides “general guidance, direction and assistance concerning the [Company’s employment policies and procedures.” Bulletin, attached as Exhibit BB to Anderson Cert., at 1. Section 13.12 of the Bulletin is entitled “Termination Policy.” Under this heading, the Bulletin provides:

Employees may be released without notice or salary ... for misconduct. Misconduct is defined as a violation of company policy or conduct inconsistent with an orderly workplace. Misconduct may include by way of example, but not limitation, commission of an illegal or violent act, violation of Beneficial’s alcohol and drug abuse policy, dishonesty, mismanagement of company funds or property, wilful failure or refusal to discharge duties or harassment of fellow employees or supervisors in the workplace.

Bulletin § 13.12 at GC59934.

Schneider, Beneficial’s Vice President for Human Resources, and Farris, Beneficial’s president, both testified during depositions that it was Beneficial’s practice, pursuant to the policy stated in the Bulletin, to terminate employees who had provided false information on their employment applications or resumes. See Deposition of Schneider, dated 9 November 1993 (the “9 Nov. 1993 Schneider Dep.”), attached as Exhibit Q to Anderson Cert., at 43; Deposition of Farris, dated 11 January 1994 (the “11 Jan. 1994 Farris Dep.”), attached as Exhibit DD to Anderson Cert., at 18.

Responding to interrogatories, Beneficial stated that, between 1 January 1985 and 31 December 1992, it “terminated approximately 320 employees for violation of a company policy, dishonesty or willful misconduct.” Anderson Cert., Ex. CC. at 16. After reviewing the personnel files of twenty-three employees terminated during this period, Beneficial found seven instances where employees were terminated for making false representations on company documents. Id. at 17-19. Of these seven terminations, three were for resume or job application fraud. Id. In addition, in 1986, Beneficial placed an employee on probation for misrepresenting that she had graduated from high school. Id. at 19.

Discussion

A. Standard for Grant of Summary Judgment

To prevail on a motion for summary judgment, the moving party must establish “there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); see also Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir.1992) (“threshold inquiry is whether there are ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party’ ”) (citations omitted); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992) (“We apply the test ... (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?”) (quotations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991) (“summary judgment is inappropriate when a conflict of a material fact is present in the record”); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir.1991) (summary judgment may not be granted “if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed”).

All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir.1992); Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 75 (3d Cir.1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir.1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir.1989). “Any ‘unexplained gaps’ in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment.” Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir.1990) (quoting O’Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir.1989)).

Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a genuine issue of material fact,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no “genuine issue for trial.”

Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56 (emphasis in original, citations and footnotes omitted). In other words, the inquiry involves determining “ “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.1990) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12), cert. denied sub nom., Borough of Roselle v. Brown, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991); see also Gray, 957 F.2d at 1078 (“there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party”).

The Supreme Court elaborated on the summary judgment standard in Anderson: “If the evidence [submitted by a party opposing summary judgment] is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986): “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Id. at 323-24, 106 S.Ct. at 2553 (footnote omitted); see also Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.1993) (“nonmoving party must adduce more than a mere scintilla of evidence in its favor”); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir.1990) (non-moving party may not rest upon mere allegations); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990) (neither unsupported allegations in pleadings and memoranda of law nor conclusory allegations in affidavits will establish genuine issue of material fact); Aronow Roofing v. Gilbane Building Co., 902 F.2d 1127, 1128 (3rd Cir.1990) (“summary judgment will be granted where the non-moving party fails to ‘establish the existence’ of an element essential to the case”).

“As a general rule, summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer’s motivation and intent.” Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 644 (11th Cir.1987); see Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir.1989) (“When the defendant’s intent has been called into question, the matter is within the sole province of the factfinder.”), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988) (Summary judgment “should be used sparingly” where “the material fact at issue is an employer’s intent, motivation and state of mind.”). Nevertheless, “the summary judgment procedure is not per se improper simply because issues of motive and intent are involved.” Washington v. Lake County, Illinois, 969 F.2d 250, 254 (7th Cir.1992); see Oliver v. Digital Equipment Corp., 846 F.2d 103, 109 (1st Cir.1988) (“Although we have advocated caution and restraint in th[e] context [of employment discrimination], we will not refuse to affirm a grant of summary judgment where it is warranted.”).

B. The ‘After-Acquired Evidence’ Defense and Miller’s Federal Discrimination Claims

Beneficial, as indicated, contends that, had it known of Miller’s misconduct at the time it occurred, it would have terminated Miller’s employment immediately. Beneficial asserts this state of facts bars Miller’s right to recovery and warrants dismissal of the instant action.

The defense asserted by Beneficial, commonly referred to as the ‘after-acquired evidence’ defense, was first articulated in Summers v. State Farm Mutual Auto Insurance Co., 864 F.2d 700 (10th Cir.1988). There, an employee brought suit against his employer under the ADEA and Title VII, alleging he was wrongfully discharged for reasons of age and religion. See 864 F.2d at 702. During discovery in the ensuing action, the defendant employer “made a thorough examination of records prepared by [the plaintiff] and discovered over 150 instances where [the plaintiff] had falsified records....” Id. at 703. The employee did not deny having made these falsifications. Id.

The employer subsequently moved for summary judgment, asserting it would have fired the employee if it had known of the falsifications when they had occurred. The employer conceded that the falsifications could not have motivated the discharge since they were not known at the time of the discharge. Id. at 704. The employer argued, however, that the misconduct “may, and should be, considered in determining what relief, or remedy, is available to [the plaintiff].” Id. Specifically, the employer argued the employee was entitled to no relief. Id. The district court granted summary judgment in favor of the employer and the employee appealed.

On appeal, the Tenth Circuit affirmed the district court’s grant of summary judgment based on the after-acquired evidence of the employee’s misconduct. After reviewing the history of mixed-motive cases, the Circuit assumed for the purposes of the motion that the employer had violated Title VII and the ADEA. The Circuit reasoned, however, that the employee’s misconduct invalidated any claim to damages from the date of the misconduct forward:

[I]t is assumed that [the employer] was motivated, at least in part, if not substantially, because of [the plaintiffs] age and religion.... [However], while [the] after-acquired evidence [of misconduct] cannot be said to have been a “cause” for [the plaintiffs] discharge ..., it is relevant to [the plaintiffs] claim of “injury,” and does itself preclude the grant of any present relief or remedy to [the plaintiff].

Id. at 708 (emphasis in original).

The Circuit explained that allowing the plaintiff to recover under the circumstances would be akin to providing economic relief to a plaintiff who had no protectable economic interest in his job:

The present case is akin to the hypothetical wherein a company doctor is fired 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.” In our view, the masquerading doctor would be entitled to no relief____

Id.

The Third Circuit has not yet addressed the defense of after-acquired evidence. Other circuits and numerous district courts, however, have adopted the defense to bar or limit claims for back pay brought under Title VII and/or the ADEA. See, e.g., O’Driscoll v. Hercules, Inc., 12 F.3d 176, 180 (10th Cir.1994) (relying on after-acquired evidence to affirm summary judgment to defendant in action under Title VII and ADEA); McKennon v. Nashville Banner Publishing Co., 9 F.3d 539, 543 (6th Cir.1993) (same; ADEA), cert. granted, — U.S.-, 114 S.Ct. 2099, 128 L.Ed.2d 661 (1994); Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369 (7th Cir.1993) (considering after-acquired evidence to limit damages in action under ADEA); Russell v. Microdyne Corp., 830 F.Supp. 305, 307 (E.D.Va.1993) (Title VII); Mackey v. Board of Pensions of United Methodist Church, No. 91-C-5739, 1993 WL 11674 at *2, 1993 U.S.Dist.LEXIS 424 at *5 (N.D.Ill. 15 Jan. 1993) (Title VII); Redd v. Fisher Controls, 814 F.Supp. 547, 552 (W.D.Tex.1992) (Title VII and ADEA); O’Day v. McDonnell Douglas Helicopter Co., 784 F.Supp. 1466, 1469 (D.Ariz.1992) (ADEA). But see Wallace v. Dunn Construction Co., 968 F.2d 1174, 1179 (11th Cir.1992) (rejecting after-acquired evidence doctrine).

In addition, at least two other circuits have indicated a willingness to consider after-acquired evidence in limiting recovery in discrimination actions. See Smallwood v. United Air Lines, Inc., 728 F.2d 614, 707 (4th Cir.) (directing entry of judgment for employer in ADEA refusal-to-hire case because of after-acquired evidence that plaintiff was unqualified for employment), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984); Murnane v. American Airlines Inc., 667 F.2d 98, 102 (D.C.Cir.1981) (“Even assuming, arguendo, that the company’s failure to consider the applications was discriminatory, the company was entitled to prove at trial that the [plaintiffs] had not been injured because they were not qualified and would not have been hired in any event.”), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982).

Courts have, moreover, applied the doctrine of after-acquired evidence under facts substantially similar to those at bar. For example, employees’ claims of discriminatory refusal to promote have been barred by after-acquired evidence of their misconduct. See Russell, 830 F.Supp. at 308; O’Day, 784 F.Supp. at 1467.

Also relevant to the facts at bar, most cases employing the after-acquired evidence defense have done so where the defense is based on after-acquired evidence of resume or job application fraud. Particularly apposite is the decision in O’Driscoll, 12 F.3d 176, where an employee sued her former employer for wrongful termination in violation of the ADEA. While preparing for trial, the employer discovered evidence of several misrepresentations on the plaintiffs employment application materials:

(1) on her employment application, [plaintiff misrepresented her age so as to appear five years younger, falsely represented that she had never previously applied for employment with [the defendant], and failed to disclose a previous employer; (2) on her pre-employment forms, [p]laintiff misrepresented her age, date of graduation from high school, ages of her children, and falsely represented that she had completed two quarters of study at Salt Lake City Technical College; (3) on her application for membership with Blue Cross-Blue Shield of Utah, [p]laintiff misrepresented the age of her son, who would have been otherwise ineligible for coverage as [plaintiffs dependant.

Id. at 178.

On the plaintiffs employment application in O’Driscoll, she signed beneath the following statement:

I understand that any misrepresentation made by me herein may result in the cancellation of this employment application, withdrawal of any offer of employment or if already employed by [defendant] termination of employment without any obligation or liability to me other than payment of the rate agreed upon for services actually rendered.

Id.

Upon discovering these misrepresentations, the defendant moved for summary judgment, asserting it would have terminated the plaintiff if it had known of the misrepresentations. Relying on Summers, the district court granted summary judgment in favor of the defendant. See O’Driscoll v. Hercules, Inc., 745 F.Supp. 656, 659-60 (D.Utah 1990). The district court, moreover, so held over the plaintiff’s assertion that she made the misrepresentations “only because she believed [the defendant] would discriminate against her if she revealed her true age.” Id. at 657.

On the employee’s appeal, the Tenth Circuit affirmed. In so holding, the Circuit relied on Summers and the conclusion that the plaintiff would have been fired if the defendant had known of her misrepresentations. The Circuit rejected the plaintiff’s argument that the resume fraud was not material, serious or pervasive, stating that the “[plaintiffs repeated misrepresentations demonstrated a pattern of dishonesty and disregard for the truth.” 12 F.3d at 180. The Circuit concluded:

In light of the seriousness of these misrepresentations, the sheer number of misrepresentations indicating [plaintiffs general disregard for the truth, the sensitivity of her position with [the defendant] ..., and [the defendant’s] reservation of the right to discharge any employee making a misrepresentation on an employment application, we conclude that [plaintiffs misconduct would have justified her termination.

Id,

Also instructive is the decision reached in Rich v. Westland Printers, Inc., No. 92-2475, 1993 WL 220453 (D.Md. 9 June 1993). There, a plaintiff sued her employer under Title VII for “discrimination in the terms and conditions of her employment (specifically promotion and training practices).” Id. at *1. During discovery, the defendant uncovered evidence that the plaintiff had falsely represented her educational qualifications on her resume. Id. at *4. Relying on Summers and its progeny, the defendant subsequently moved for summary judgment.

In opposing the motion, the plaintiff argued “that her misrepresentation should be disregarded because it was not a qualification necessary to her position at [the defendant].” Id. at *6. The court rejected this argument, stating:

The relevance of the fraud to the instant action stems from the fact that the plaintiff wilfully and knowingly misrepresented information to the defendant and that if the defendant had known that [the plaintiff] had committed a fraud, the plaintiff would have been terminated.

Id. Accordingly, the court granted summary judgment to the defendant, adopting the rule enunciated in Summers. Id.

Other courts have barred relief to discrimination plaintiffs where the employer discovers during litigation that the employee was removing files or documents from the office. For example, in McKennon, 9 F.3d 539, an employee brought an action under the ADEA alleging unlawful discharge. While deposing the plaintiff, the defendant learned she had, while employed, copied and removed from the employer’s premises several confidential documents to which she had access in her professional capacity. See id. at 540. The plaintiff asserted “she copied the documents in an attempt to learn information regarding [her] job security concerns and for her insurance and protection.” Id. Upon gaining this information, the defendant moved for summary judgment, relying on Summers. The district court concluded summary judgment was warranted because the plaintiff did not suffer injury from the alleged discriminatory discharge. See McKennon v. Nashville Banner Publishing Co., 797 F.Supp. 604, 608 (M.D.Tenn.1992).

On appeal, the Sixth Circuit affirmed. The Circuit applied Summers and found that the defendant had established beyond a genuine issue of material fact that it would have fired the plaintiff had it known of the misconduct when it occurred. McKennon, 9 F.3d at 543; see also Bonger, 789 F.Supp. at 1104 (granting summary judgment to defendant where “plaintiff had taken either copies or the originals of nearly three thousand pages of ... confidential personnel files and turned them over to her attorney”); O’Day, 784 F.Supp. at 1468 (granting summary judgment to defendant based on after-acquired evidence that plaintiff “removed and copied his entire confidential personnel file” and other “personal/sensitive” personnel files in order to prepare discrimination action); see also Mackey, 1993 WL 11674 at *1, 1993 U.S.Dist.LEXIS 424 at *2 (applying after-acquired evidence defense based on allegations of plaintiffs “retention, copying and dissemination” of confidential personnel documents; denying summary judgment based on existence of genuine issue of material fact).

Miller asserts the after-acquired evidence defense runs contrary to the framework established by the Supreme Court for determining liability in discrimination actions. Miller Reply at 3. In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court pronounced the standard to be applied in determining liability in a ‘mixed-motive’ case—ie., a case where an employment decision was motivated in part by discriminatory reasons and in part by legitimate reasons. The Court stated that an employer may avoid liability if it can establish “that its legitimate reason, standing alone, would have induced it to make the same decision.” Id. at 252, 109 S.Ct. at 1791. In reaching this standard, the Court cautioned: “An employer may not ... prevail in a mixed-motive case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of decision.” Id.

Contrary to Miller’s assertion, the after-acquired evidence defense, as it has been cast by Summers and its progeny, does not run contrary to the Court’s holding in Hopkins. The decision in Hopkins addressed liability under Title VII. Ultimately, the after-acquired evidence defense speaks not to liability, but to damages; liability under the Federal discrimination laws, in that the defendant was motivated by impermissible factors, has been assumed under the doctrine of after-acquired evidence. See Summers, 864 F.2d at 708 (assuming defendant was motivated by plaintiffs age and religion but finding after-acquired evidence relevant to “claim of injury”).

A decision aptly delineating the distinction between the after-acquired evidence defense, as expressed in Summers, and the liability standard enunciated in Hopkins is Punahele v. United Air Lines, Inc., 756 F.Supp. 487 (D.Colo.1991). There, the plaintiff brought suit against an employer alleging discriminatory refusal to hire in violation of the ADEA. After discovering evidence of application fraud, the employer moved for summary judgment based on Summers. Opposing the motion, the plaintiff argued, as Miller argues here, that the application of the after-acquired evidence defense was barred by the Supreme Court’s decision in Hopkins.

The court rejected this argument, explaining:

[The plaintiff] misconstrues the holding in Hopkins, as relating to the relief to which a victim of forbidden discrimination in employment is entitled. Hopkins, however, dealt solely with the elements that constitute liability for forbidden employment discrimination____

This does not address the issue faced in Summers of whether [the plaintiff] was injured by the unlawful discrimination. In Summers, the Tenth Circuit assumed that [the defendant’s] motive in discharging the plaintiff! ] was illegal____ I am concerned with the appropriate remedy, rather than the cause of [the defendant’s] employment decision....

756 F.Supp. at 490 (emphasis in original); see O’Day, 784 F.Supp. at 1469 (“[T]he district court in Punahele correctly clarified that Hopkins dealt solely with the elements that constitute liability for unlawful employment discrimination. The issue faced in Summers and the present case deals with whether the or not the plaintiff was injured by the unlawful discrimination. As in Summers and Punahele, liability is not at issue.” (emphasis in original)).

Other courts have simil