Synopsis: The after-acquired evidence doctrine has evolved to permit the introduction and consideration in evidence of an employee's wrongdoing although the employer was unaware of the evidence at the time it made its employment decision. This article traces the history and rationale behind the doctrine and explains its practical uses and effects under federal and Missouri law.
Introduction
One of the most controversial and contested areas of litigation is the field of employment discrimination. Whether the offending conduct is based upon race, gender, religion, national origin, age or disability, employment discrimination claims are creatures of statute. Nevertheless, a host of decisional authority has evolved to account for contingencies not specifically contemplated by Congress. In one such opinion, Summers v. State Farm Mutual Auto. Ins. Co.,1 the Tenth Circuit of the United States Court of Appeals popularized what has come to be known as the After-Acquired Evidence Doctrine. In Summers, the court held evidence of a plaintiff's misconduct could be considered in determining whether the plaintiff would be barred from all remedies, even though the misconduct was discovered after the employment decision was made.
The Summers decision represented a critical departure from the usual focus in employment discrimination cases. Typically, an employment discrimination case focuses on an adverse employment decision and the employer's intent. From an employer's perspective, the question of intent is ordinarily so fact specific that summary judgment is elusive at best. The After-Acquired Evidence Doctrine, as conceived in Summers, provided employers with a more realistic opportunity for summary judgment because, under the doctrine, discriminatory intent became irrelevant. Instead, the focus became employee misconduct, and a decision the employer never had to make; that is, whether the employee's previously undiscovered conduct warranted discharge.
Since Summers, various other courts have applied or modified the After-Acquired Evidence Doctrine.2 Recently, the Supreme Court was called upon to resolve the differences between the circuits in McKennon v. Nashville Banner Pub. Co.3 In McKennon, the Supreme Court embraced a modified version of the Summers rule, which reduced the remedies available to the plaintiff but did not completely bar recovery.4 However, just prior to the decision in McKennon, the Eastern District of the Missouri Court of Appeals adopted the unmodified Summers rule in Swyers v. Thermal Science, Inc.5
Though McKennon has blunted, to some extent, the effect of the Summers decision by eliminating the additional possibility of summary judgment, the After-Acquired Evidence Doctrine will continue to provide a viable defense, even if only to limit the remedies available to employees. This article will examine the Summers, McKennon and Swyers decisions, with a view toward the practical effects of after-acquired evidence in employment discrimination cases.
The Summers Rule and the Road to McKennon
Ultimately, the McKennon and Summers courts agree that after-acquired evidence is admissible and should effect the plaintiff's recovery. Their differences lie in application: Summers applied the doctrine on the liability side of the equation, while McKennon focused on remedies.
Ray Summers began working for State Farm as a claims adjuster in 1963. He was fired in 1982. In explaining his termination, State Farm referred to his poor attitude, the poor quality of his work and his falsifications of company records. In fact, prior to his termination, Summers had been disciplined for falsifying various records and was warned that future falsification would result in discharge. In 1983, Summers filed suit alleging that his termination had been the result of unlawful discrimination on the basis of his age and religion.
While the litigation was pending, State Farm discovered an additional 150 falsifications of which it had been previously unaware. Eighteen of these instances occurred after Summers had been disciplined. State Farm took the position that if these falsifications had been discovered while Summers was employed, he would have been fired. Summers filed a motion in limine to prevent the additional falsifications from coming into evidence. State Farm filed a motion for summary judgment.
In reaching its decision, the Summers court relied on Mt. Healthy City Sch. Dist. Bd. of Education v. Doyle,6 which was at the time the leading mixed-motive case. In Mt. Healthy, the plaintiff was a school teacher who was not rehired by the board of education for two reasons: he had released an internal school memorandum to a local disc jockey; and he had made obscene gestures to two female students. The teacher sued, claiming that the board had violated his First and Fourteenth Amendment rights by discharging him because he had released the memorandum. The Supreme Court required the plaintiff to prove that his protected speech was a motivating factor in the board's decision. The burden of proof then shifted to the defendant to establish that the same employment decision would have been made absent the civil rights violation. The court reasoned the object of the burden-shifting arrangement was to put the plaintiff in the same position, no better, no worse, as would have existed absent his protected conduct.7 In other words, this framework was designed to ferret out the cause of the board's decision, not just the result.
In addition to the causation analysis in Mt. Healthy, the Summers court relied on precedent from other circuits to support the premise that an inquiry into facts and evidence discovered after the employment decision was permissible. In Murnane v. American Airlines, Inc.8 and Smallwood v. United Airlines, Inc.,9 the D.C. and Fourth Circuits interpreted Mt. Healthy to allow a court to rely on an after-the-fact rationale. In both cases, the courts permitted the defendants to rely on the defense that the plaintiff "would not have been hired in any event." In Murnane, the defendant refused to consider the 43-year-old plaintiff's application for the position of flight officer because of the defendant's policy not to hire applicants over 40 years of age. The court found American Airlines' age guideline to be a bona fide occupational qualification, and therefore not a violation of the Age Discrimination In Employment Act Of 1967 (ADEA). However, the court went on to hold that, assuming a violation of the statute had occurred, the plaintiff suffered no injury because his poor judgment and flight skills eventually would have eliminated him from consideration.
The Smallwood case also involved an airline's refusal to hire a flight officer applicant because of his age. The court declined to follow the Murnane court's holding that the age guideline was a bona fide occupational qualification, instead holding the defendant's refusal to hire the 48-year-old applicant was age discrimination in violation of the ADEA. Nevertheless, the court permitted the defendant to prove that the plaintiff would not have been hired in any event because of his gross misconduct at another airline. Based upon the defendant's showing, the court reversed the lower court's decision to award back pay and grant injunctive relief which required the defendant to process the plaintiff's application.
The Summers decision also relied on a similar rationale that was employed in Blalock v. Metal Trades, Inc.,10 even though Blalock was not technically an after-acquired evidence case. In Blalock, the plaintiff complained he was fired because of his religious views. The defendant claimed the plaintiff was terminated because of his poor job performance. The court found the defendant engaged in preferential treatment based on religion. Nevertheless, the court permitted the employer the opportunity to prove the plaintiff's work was so intolerable that he would have been fired regardless of his religious views.
Rather than focus on the issue of discrimination, the Summers court, relying on Mt. Healthy, looked at the causation issues. The court noted that, while after-acquired evidence is not technically a cause, it is relevant to the claim of injury. To illustrate the point, the court hypothesized a person who is hired as a doctor and later fired because of his age, race, religion and sex. While defending the Title VII action, the employer discovers that the discharged employee was never a doctor. Under such circumstances, the court stated that the masquerading doctor should not be entitled to any relief. In fact, the court found Summers to be in the same position as the doctor.
After the Summers case, courts began to formalize the elements of the After-Acquired Evidence Doctrine. In Washington v. Lake County,11 the after-acquired evidence defense was raised, not in the context of a failure to hire, but in the context of a termination. The plaintiff claimed he was terminated because of his race. The defendant denied the allegations of unlawful discrimination and further asserted that the plaintiff was not entitled to relief because he had lied on his employment application. In an effort to cover all of the bases, the defendant asserted that, had it known of the falsification, it would never have hired the plaintiff. Moreover, the defendant claimed that had the falsification come to light while the plaintiff was employed, he would have been fired. The court was faced with a choice between a "would not have hired" standard and a "would have fired" standard. Drawing from mixed-motive case analysis, the court determined the after-acquired evidence defense requires the defendant to prove that, acting in a race-neutral manner, it would have made the same employment decision had it known of the evidence that was discovered after-the-fact. In its analysis, the court drew a distinction between cases in which the defendant had refused to hire the plaintiff and cases in which the plaintiff was fired. The court reasoned the "would not have hired" standard to be appropriate in refusal to hire cases, while the "would have fired" standard would govern termination cases.12
The Eleventh Circuit had a significantly different view of after-acquired evidence. In Wallace v. Dunn Constr. Co.,13 the plaintiff alleged a number of gender-based discrimination claims. During her deposition, the plaintiff admitted she had been convicted of cocaine and marijuana possession prior to being employed by the defendant. The plaintiff failed to mention her convictions in her employment application. The defendant sought summary judgment, claiming the convictions and application fraud served as legitimate causes for terminating the plaintiff's employment irrespective of any alleged unlawful motives.
The Eleventh Circuit acknowledged after-acquired evidence is relevant to the relief due to a plaintiff who has proven a case of employment discrimination; however, the court declined to follow the Summers holding that after-acquired evidence should act as an absolute bar to recovery. Instead, the court adopted the position that after-acquired evidence would only effect the types of remedies imposed by the trial court.14 The court found reinstatement and front pay to be unwarranted, and similarly discounted injunctive relief because of plaintiff's lack of standing. However, the court determined the plaintiff should be entitled to an award of back pay. In determining the period of back pay, the court added to the elements of the after-acquired evidence defense. Normally, back pay is awarded through the date of judgment, and the court held the back pay period should not be shortened unless the defendant could prove that it would have discovered the after-acquired evidence in the absence of the allegedly unlawful acts and resulting litigation. Without proof the falsifications in the plaintiff's application would have been discovered prior to the date of judgment, the court reasoned, the back pay award should not be reduced.15
In 1995, the United States Supreme Court issued an opinion that has, to a large extent, clarified the conflicting views among the courts of appeals on the question of whether or not all relief should be denied in after-acquired evidence cases. In McKennon v. Nashville Banner Pub. Co.,16 the plaintiff filed a claim against her employer alleging she had been discharged in violation of the ADEA. During the plaintiff's deposition, the defendant discovered the plaintiff had copied and retained certain sensitive documents in violation of company policy. Shortly after the deposition, plaintiff received a new termination notice, listing the policy violation as cause for her termination. The Supreme Court refused to give full effect to the Summers rule, preferring instead to leave the plaintiff with some remedies. Citing Albemarle Paper Co. v. Moody,17 the Court noted the ADEA and Title VII share common purposes: Each is designed to deter discriminatory conduct, as well as to compensate plaintiffs for injuries caused by prohibited discrimination.18 Moreover, the Court repudiated the analysis adopted by several courts which analogized after-acquired evidence cases to mixed-motive cases. The Court explained that mixed-motive cases, by definition, assume both proper and unlawful motives have contributed to an employment decision, and the purpose of the analysis is to determine whether the same decision would have been made had the unlawful motive not existed. The Court found after-acquired evidence cases to be completely distinguishable, since they are based on the premise that the unlawful motive is the sole basis for the employment decision.19
Nevertheless, the McKennon Court recognized that Title VII and the ADEA do not negate the legitimate interests of employers to exercise nondiscriminatory prerogatives in the course of hiring, promoting and discharging employees. Accordingly, the Court determined the employee's previously undiscovered misconduct would affect the remedies otherwise available under the statutes; however, the Court refused to set a hard and fast rule governing which remedies would be available in after-acquired evidence cases. Under the facts in McKennon, the Court found reinstatement and front pay to be inappropriate remedies; but it awarded back pay from the date of discharge to the date the new information was discovered.20 This result was nearly identical to the ruling in Wallace; however, the Supreme Court did not require the defendant to prove the after-acquired evidence would have been discovered absent the pending litigation.
Hence, the McKennon decision clarified the nature and purpose of the after-acquired evidence defense. The Court, by emphasizing the remedial and deterrent purposes of anti-discrimination statutes, refused to completely bar plaintiffs from recovering damages for discrimination. On the other hand, the Court recognized that the equitable nature of these remedies permitted employers to raise evidence of the plaintiff's wrongdoing on the job or during the application process, even though the malfeasance was not discovered until after the employment decision was made.
The Missouri Rule Under The MHRA
Only a few months before the Supreme Court decided McKennon, the Eastern District Court of Appeals decided Missouri's first state case involving after-acquired evidence, Swyers v. Thermal Science, Inc.21 Initially, before exploring Swyers, it should be noted that while the wording of federal and state statutes on employment discrimination varies, the courts have found a unity of purpose. Hence, Missouri state courts regularly look to federal decisions to interpret the Missouri Human Rights Act. Since neither the federal nor the state statutes address the after-acquired evidence doctrine, the statutory differences have not come into play, rather; as is shown below, federal decisions have been considered very persuasive by Missouri appellate courts in dealing with after-acquired evidence.22
In Swyers, the plaintiff claimed the defendant had failed to hire her because of her gender, in violation of the Missouri Human Rights Act (MHRA). Over the course of two years, the plaintiff had applied for employment with the defendant on three separate occasions. During the course of litigation, the defendant discovered misrepresentations on the plaintiff's job applications. Citing Summers, the defendant filed for summary judgment, claiming the plaintiff would not have been hired because she falsified her applications.
The Missouri Court of Appeals drew its analysis from Albemarle Paper Co. v. Moody,23 the same case relied upon by the U.S. Supreme Court in McKennon. However, in Swyers the court took note of the compensatory purposes of anti-discrimination legislation without discussing deterrence. After reviewing a number of federal decisions, including Wallace, the court distinguished Wallace by limiting it to cases of wrongful discharge, not wrongful refusal to hire.24 Since the defendant had never hired the plaintiff, the court applied Summers and upheld the summary judgment granted in the defendant's favor.
Swyers is one of three Missouri cases analyzing the After-Acquired Evidence Doctrine. The other two decisions were rendered by federal courts concerning federal statutes. In Welch v. Liberty Machine Works, Inc.,25 the Eighth Circuit adopted, if somewhat reluctantly, the Summers rule for resume fraud cases. Moreover, the United States District Court for the Eastern District of Missouri relied on Summers in granting an employer's summary judgment motion in Collor v. Thermal Science, Inc.,26 a failure to hire case.
Both Welch and Collor were decided before the Supreme Court handed down the McKennon decision. Since each of these cases adopted the premise from the Summers decision that after-acquired evidence should completely bar a plaintiff from recovery, they were overruled by the Supreme Court's decision in McKennon. The effect on Missouri's interpretation of the After-Acquired Evidence Doctrine under the MHRA is more open to question. On the one hand, Missouri courts often look to federal case law for guidance in interpreting discrimination statutes.27 Hence, a strong argument can be made Missouri courts will embrace the McKennon court's analysis. On the other hand, the Swyers court examined and rejected the Wallace rationale and its result, which bore tremendous similarities to the reasoning in the McKennon case. Since a Missouri court previously has refused to accept the rationale later adopted by the Supreme Court in McKennon, a Missouri court could justifiably choose to follow the Swyers decision in the future, thereby barring recovery under the MHRA in cases in which an after-acquired evidence defense is established. Therefore, the manner in which the After-Acquired Evidence Doctrine will be applied under the MHRA is not settled.
Practice Tips
Collateral Effects
The McKennon case and its predecessors unequivocally demonstrate that after-acquired evidence is admissible and will, in some measure, affect remedies awarded to plaintiffs. Perhaps as important as its effect on remedies is the collateral effect after-acquired evidence may have on the liability issue. Often a plaintiff's discrimination claim hinges on the plaintiff's own credibility. If the plaintiff's credibility is undercut by after-acquired evidence, the plaintiff's entire case could be jeopardized. Thus resume fraud or gross misconduct not known at the time of the employer's decision might seem less than probative; however, the After-Acquired Evidence Doctrine permits this type of evidence to be introduced, considered by the jury, and presumably argued -- not only to limit damages, but to attack the plaintiff's credibility.28
Counsel for plaintiffs and defendants alike need to consider and plan for the possibility that after-acquired evidence might be discovered and introduced at trial. Therefore, prior job histories should be verified and references on employment applications should be reviewed and contacted. Moreover, to the extent possible, a thorough review of the plaintiff's job performance should be conducted. These measures may uncover misrepresentations or misconduct, which may have a significant impact on the evaluation of an employment discrimination case.
Attorneys for Employers
To develop and successfully present an after-acquired evidence defense, an employer's attorney will need to conduct a thorough investigation not only of the claimant's resume but, in a termination case, of job performance as well. Merely uncovering misconduct will not, in and of itself, support an after-acquired evidence defense. The attorney must be mindful that, in addition to misconduct, the employer must prove the same decision would have been made based on the misconduct alone. Thus, even if misconduct is discovered, additional evidence must be adduced to demonstrate the severity of the misconduct to lay a sufficient foundation. Otherwise, the evidence of misconduct will likely be inadmissible unless there is an independent basis for its admission. Therefore, if misconduct or resume fraud is discovered, additional investigation will be required to determine whether a policy violation occurred and the severity of the transgression. Written policies, employee handbooks and application forms are all sources that can be used to establish the existence of a policy. Additionally, evidence that the employer has refused to hire, or has fired, other individuals based upon the same type of misconduct is critical in demonstrating that the violation in question is taken seriously. During the discovery phase of litigation, the employer should use interrogatories to develop facts demonstrating the plaintiff's knowledge of the policy. Moreover, the plaintiff's deposition should be used to seek admissions concerning the plaintiff's misconduct, knowledge that a policy was violated, the severity of the violation, and that termination was the penalty for the violation in question.
Once sufficient evidence is developed to support an after-acquired evidence defense, the defense should be raised by the employer. Clearly, the burden of proof lies with the employer, and a motion to amend the answer to include the defense should be filed.29 Next, defense counsel will reach a fork in the road. One fork, filing a motion for partial summary judgment, may be a means to knock out some of the plaintiff's monetary claims and reduce the value of the case. The other fork would be to use the defense at trial, and get the full benefit of the evidence, including the adverse effect on the plaintiff's credibility. If the defense is to be presented at trial, a detailed trial brief should be prepared to educate the trial court about the admissibility of after-acquired evidence and its effect on the remedies available to the plaintiff.
Attorneys for Claimants
Attorneys for plaintiffs should also prepare for after-acquired evidence to come into play. The attorney should discuss the existence of possible resume discrepancies and misconduct with the claimant before proceeding with a claim. If, while the claim is pending, the After-Acquired Evidence Doctrine is raised, the discovery process should be used to expose weaknesses in the defense. Documents supporting the existence of the policy in question should be requested. Interrogatories should be used to determine the date the policy was put in place, the identities of individuals who have violated the policy, and the resulting disciplinary actions taken against the individuals. During depositions, the plaintiff's attorney should attempt to elicit testimony demonstrating whether the policy at issue is uniformly applied as to violation and result. Similar instances should be explored to determine whether other violations have automatically resulted in a refusal to hire or a termination. As part of any case evaluation, from a practical standpoint, the plaintiff's attorney should assess whether the defendant is likely to prevail on the merits of the defense. If so, consideration should be given to tailoring the relief requested, so as to render the after-acquired evidence irrelevant. For instance, in a case where the employee is fired and the after-acquired evidence establishes on-the-job misconduct severe enough to warrant termination, the plaintiff might want to drop claims for front pay and reinstatement, instead limiting claims to back pay, attorney's fees, emotional injury, and punitive damages. Then, at trial, the plaintiff could argue the after-acquired evidence should be excluded because it would not be probative to any of the issues before the court, and if successful avoid the collateral effects the evidence might have on liability issues and other damage claims.
Obviously, from the plaintiff's point of view, the best possible result would be the complete exclusion of after-acquired evidence. Therefore, a detailed motion in limine should be filed to challenge the introduction of such misconduct.30 The motion should include specific references to the record and seek, if necessary, a hearing without the jury present to determine the foundation and admissibility of the evidence. Alternatively, the plaintiff could seek to bifurcate the trial of liability and damage issues.31
Abuse of the Doctrine
Notwithstanding the fact that the United States Supreme Court has accepted the After-Acquired Evidence Doctrine, it is likely that some courts will view after-acquired evidence with a somewhat jaundiced eye. A few courts have expressed disdain for the doctrine simply because it seems to be an easy way out. For example, in Welch v. Liberty Machine Works, Inc., the Eighth Circuit accepted the After-Acquired Evidence Doctrine but reversed a summary judgment based upon the doctrine, even though the plaintiff apparently brought no evidence to contradict the policies relied upon by the defendant.32
The plaintiff in Welch had filed a falsified job application: He neglected to mention that he had worked for the defendant's competitor and had been fired for unsatisfactory work. The defendant presented an affidavit of its president claiming that had these facts been known, the plaintiff would not have been hired, and further the plaintiff would have been terminated for omitting this information from his application. The court was plainly skeptical of the affidavit, stating:
[W]e believe that the employer bears a substantial burden of establishing that the policy pre-dated the hiring and firing of the employee in question and that the policy constitutes more than mere contract or employment application boiler plate. Liberty presented no other evidence of its policies. By itself, [Liberty's president's] affidavit is a self-serving document and does not establish the material fact that Liberty would not have hired Welch but for the misrepresentation. As the movant for summary judgment, Liberty bore the significant burden of establishing that it had a settled policy of never hiring individuals similarly situated to Welch. Because of our concerns about creating perverse incentives for employers, we find that [the] affidavit alone is insufficient to establish this material fact.33
The Welch court was obviously wary of the defendant's motive to avoid or limit liability by creating policies retrospectively to fit a given plaintiff's situation. The McKennon Court acknowledged and addressed the general discomfort felt by the Eighth Circuit and others.34 However, rather than create a new rule, the Court relied upon the ability to award attorneys' fees, and in appropriate cases to invoke the provisions of Rule 11 of the Federal Rules of Civil Procedure to prevent abuses. Nevertheless, the Supreme Court clearly did not intend for after-acquired evidence to become an excuse for abusive discovery, fishing expeditions or red herrings at trial; a defense based upon after-acquired evidence must be pursued not only zealously, but in good faith.
Suggestions to Employers
This is one area of the law in which an ounce of prevention is better than a pound of cure, because the defense is based upon the employer's employment policies and practices: The stronger the policies and practices, the stronger the defense. Hence, employers should require written applications, which should notify the applicant that full and truthful disclosure is required. Disclaimers on the forms should state that any falsification will disqualify the applicant or, if discovered later, will result in immediate termination. Likewise, employment manuals should stress that honesty is required.
However, Welch teaches that these precautions, by themselves, may not be sufficient to support the after-acquired evidence defense. In deciding whether the doctrine should be applied, a trial judge is more likely to be impressed by an employer's consistent enforcement of the rules than the rules themselves. Employers should understand that making exceptions to the rules may affect the ability to rely upon them in the future. Therefore, rules related to honesty should be enforced as consistently and objectively as is practically feasible.
Conclusion
During the eleven years since Summers was decided, the After-Acquired Evidence Doctrine has evolved from an absolute defense to a partial bar of remedies. Nevertheless, at the time of trial its greatest impact may fall, albeit informally, on the liability side of the equation. By focusing on the plaintiff's misconduct, which by definition is completely unrelated to the adverse employment action taken against the plaintiff, the doctrine can weaken the plaintiff's credibility and reduce the attention paid to the employer's actual decision and potentially unlawful motivation. This shift in focus requires counsel for both sides to carefully investigate and evaluate their cases to determine whether after-acquired evidence will become a factor at trial.
Endnotes
1 864 F.2d 700 (10th Cir. 1988).
2 See, e.g., Washington v. Lake County, Ill., 969 F.2d 250 (7th Cir. 1992); Wallace v. Dunn Constr. Co., Inc., 968 F.2d 1174 (11th Cir. 1992); Swyers v. Thermal Science, Inc., 887 S.W.2d 655 (Mo. App. E.D. 1994).
3 513 U.S. 352 (1995).
4 Id. at 862.
5 887 S.W.2d 655 (Mo. App. E.D. 1994).
6 429 U.S. 274 (1977).
7 Id. at 483.
8 667 F.2d 98 (D.C. Cir. 1981).
9 661 F.2d 303 (4th Cir. 1981).
10 775 F.2d 703 (6th Cir. 1985).
11 969 F.2d 250 (7th Cir. 1992).
12 Id. at 254.
13 968 F.2d 1174 (11th Cir. 1992) (harmonized with McKennon in 62 F.3d 374 (11th Cir. 1995)).
14 Id. at 1184.
15 Id.
16 513 U.S. 352 (1995).
17 422 U.S. 405 (1975).
18 513 U.S. 352 (1995).
19 Id.
20 Id.
21 887 S.W.2d 655 (Mo. App. E.D. 1994).
22 See Cook v. Atoma Int'l of America, Inc., 930 S.W.2d 43 (Mo. App. E.D. 1996); Swyers v. Thermal Science, Inc., 887 S.W.2d 655 (Mo. App. E.D. 1994); Wentz v. Industrial Automation, 847 S.W.2d 877, 879 (Mo. App. E.D. 1992).
23 422 U.S. 405 (1975).
24 887 S.W.2d at 657.
25 23 F.3d 1403 (8th Cir. 1994).
26 1992 U.s. Dist. LEXIS 21818 (E.D. Mo. 1992).
27 Swyers v. Thermal Science, Inc., 887 S.W.2d 655, 656 (citing Wentz v. Industrial Automation, 847 S.W.2d 877, 879 (Mo. App. E.D. 1992)).
28 See, M.A.I. 2.01 [1978 Revision] Explanatory Instruction for All Cases, which provides juries with some directions to judge witnesses' credibility, including "the inclination of the witness to speak truthfully or untruthfully. . . ." See also, M.A.I. 3.01 [1986 Revision] Burden of Proof-General, which directs that the jury must believe, based upon the evidence, certain propositions. Here, the plaintiff's credibility and the plaintiff's burden of proof are interwoven, and a misrepresentation on a job application may be used against liability issues.
29 See, Graf v. Wire Rope Corp. of America, 861 S.W.2d 588 (Mo. App. W.D. 1993), in which presumably the after-acquired evidence defense was not raised in the defendant's answer. The use of extrinsic evidence of the plaintiff's resume fraud was found to be prejudicial error and a new trial was ordered. Compare Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 927 P.2d 781 (Ariz. Ct. App. 1996), where the defense was raised and the evidence was properly admitted.
30 See, e.g., Finch v. Hercules, Inc., 809 F. Supp. 309 (D. Del. 1992).
31 Id.
32 23 F.3d 1403.
33 Id. at 1406.
34 513 U.S. 352 (1995).
Mr. Bangert is a shareholder and vice-president of the law firm of Sherman, Taff & Bangert, P.C., in Kansas City, Missouri. He received his J.D., with distinction, from the University of Missouri at Kansas City School of Law in 1976. He served as law clerk to the chief judge of the Missouri Court of Appeals, Western District, in 1977. He teaches trial advocacy at the University of Missouri at Kansas City School of Law and has served as coach on their moot trial team. He has authored several articles and spoken on topics ranging from uninsured motorist statutes to employment discrimination topics. He has been nominated and elected to the American Board of Trial Advocates and the International Association of Defense Counsel. He serves on the National Steering Committee for Trial Advocacy for the Defense Research Institute and the Missouri Organization of Defense Lawyers.
Mr. Katz is a shareholder at the law firm of Sherman, Taff & Bangert, P.C., in Kansas City, Missouri. He received his J.D. from the State University of New York at Buffalo in 1985, and is a member of the Employment Law Committee of Defense Research Institute and the Missouri Organization of Defense Lawyers.
1999, Jack Bangert and Mark Katz
© 1999, Thomas Bassett