After Acquired Evidence and the ADA

Originally published by William Goren.

Today’s blog entry is a topic that I have never discussed before. Since December 2011, my records show that I have put up 408 blog entries. In not one of them, have I discussed today’s entry. Today’s entry discusses the doctrine of after-acquired evidence and how it works with title I and logically, to a lesser extent, title II as well. As usual the blog entry is divided into categories and they are: just what is the after-acquired evidence doctrine; Anthony introduction/facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Just What Is the After-Acquired Evidence Doctrine

 

The after-acquired evidence doctrine comes from the case of McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995), a unanimous decision by Justice Kennedy. That case involved ADEA. In that case, the employer terminated an employee because of her age. There was absolutely no dispute about that. After termination and during discovery, the employer found out that the employee had engaged in misconduct that would have justified her termination in any event. In particular, she copied certain files and kept them for herself in order to protect herself later. The case goes all the way to the United States Supreme Court and the Court holds that after-acquired evidence can be used but it only affects remedies not liability. With respect to remedies where after-acquired evidence justifies a termination, reinstatement and front pay are out. Also, when it comes to backpay, backpay is calculated from the date of the unlawful discharge to the date the new information was discovered. The judge also has a lot of discretion with respect to remedies in such cases as well. In short, with respect to ADEA after-acquired evidence goes to remedies and not to liability.

 

II

Anthony Introduction/Facts

 

Our case of the day is Anthony v. Trax international Corporation, a published decision from the Ninth Circuit decided on April 17, 2020. This case asked the question of whether after-acquired evidence works the same way with respect to title I of the ADA matters. There are two critical facts that need to be mentioned before proceeding further. First, plaintiff was fired because she never gave her employer a full return to work release. Second, the particular job that the plaintiff had was a technical writer. That position required per her employer’s contract with the government that any technical writer must have a bachelor’s degree. Plaintiff represented on her employment application that she had such a degree when in fact she did not. Finally, the party cross moved for summary judgment.

 

II

Court’s Reasoning

 

1. Unlike the ADEA, the ADA in title I only protects people with disabilities who are both qualified and who are a person with a disability. Under title I of the ADA’s final implementing regulations at 29 C.F.R. §1630.2(m), which has been adopted uniformly throughout the courts, a person with a disability is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. Accordingly, to be protected under the ADA a person with a disability must be a person with a disability And also be qualified. So, since qualified and being a person with a disability are two independent prerequisites for protection under the ADA, after-acquired evidence showing that the individual was not qualified knocks them out from any ADA recovery whatsoever.
2. An employer’s ignorance cannot create a credential where there is none.
3. Whether a person is qualified is a question decided at the time of the adverse employment action.
4. The parade of horrible’s argument from this decision simply doesn’t work. Currently, employers sued for discrimination already have to hunt for such disqualifiers because after-acquired evidence can be used to limit damages. Also, employers are unlikely to purposefully expose themselves to significant liability on the off chance they might discover some after missing qualification during the already costly discovery process. Finally, employers cannot invent new requirements to avoid liability because the employer must actually require the missing qualification at the time of the allegedly discriminatory action.
5. Accepting plaintiff’s argument would extend coverage to those who do not meet a job’s prerequisites, including those who successfully deceived their employer as to their qualification. That outcome would be at odds with Congress’s expressed decision to limit the ADA’s protection to qualified individuals.
6. The EEOC filed an amicus brief in the case. If they disagree with this reasoning, they are free to reconsider its own implementing regulations and interpretive guidance elaborating upon the statutory definition of qualified individual.
7. Plaintiff’s claim that the employer failed to engage in the interactive process fails for the same reason because plaintiff was not qualified per 29 C.F.R. §1630.2(m). That is, the obligation to engage in the interactive process only applies to a person with a disability who is qualified.

 

III

Thoughts/Takeaways

 

1. The reasoning in this case appears to me to be very solid. I don’t see how an appeal to the Supreme Court would be successful given the Ninth Circuit’s reasoning and the Supreme Court’s current configuration.
2. Title I of the ADA is not the only place you find the term qualified. You also find it in title II of the ADA at 42 U.S.C. §12132 and in DOJ’s final implementing regulations for title II of the ADA at 28 C.F.R. §35.104. That particular provision states that a person with a disability is qualified if he or she can, with or without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barrier; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. So, if a person seeking services from a nonfederal governmental entity misrepresents their eligibility for that particular program, service, or activity, then there is absolutely no reason why the nonfederal governmental entity cannot use this particular case as a means of saying that they never had to provide the service, program, or activity in the first place because the person was not qualified to begin with. Admittedly, in the title II context this is going to be a much harder lift because essential eligibility requirements are often not an issue with respect to whether they are met. Nevertheless, I can foresee certain governmental programs, services, or activities where this might be an issue.
3. Title III of the ADA does not have a qualified component to it either in its statutory text  or in its final implementing regulations. As a practical matter, in order to deal with undue burden and fundamental alteration in title III you are applying qualified principles even if they don’t exist. However, the fact remains that qualified does not appear in title III of the ADA nor does it appear in its final implementing regulations. Accordingly, very unclear whether this decision would apply to a title III situation. The question may be very theoretical, but nevertheless it exists. At the moment, I am having trouble coming up with a situation that would mimic our case of the day in the title III context, but that doesn’t mean such a situation doesn’t exist.
4. The bottom line is that with respect to title I and II matters after-acquired evidence can knock out a plaintiff’s case entirely because both titles statutory text and their final implementing regulations use the term qualified.
5. From all the cases I have read over the years, I have always found it interesting when I see the statement from the court that the parties cross moved for summary judgment for a couple of reasons. First, plaintiffs very rarely get a summary judgment granted in their favor, though it does happen sometimes. Second, if on the plaintiff side, the object is to get to a jury trial. Cross moving for summary judgment as a practical matter often turns it into a bench decision without the benefit of trial testimony. Also, many courts use summary judgment as a screening out tool to only get the strongest cases to the jury. So, I have always wondered about a plaintiff moving for summary judgment in light of these considerations.
6. The employer here got off on a technicality so to speak. That said, full return to work is not something an employer should be doing as we discussed here.

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