Copyright (c) 1994 Wake Forest Law Review Association, Inc.
Wake Forest Law Review
COMMENTS: PLAINTIFF'S BANE: THE AFTER-ACQUIRED EVIDENCE DEFENSE AND TITLE VII DISCRIMINATION SUITS
29 Wake Forest L. Rev. 1325
R. Shawn Wellons
One need not search far to see how the impact of after-acquired evidence of employee misconduct can affect Title VII litigation. 1 For example, consider the case of Patricia Milligan-Jensen. In November 1987, Michigan Technological University hired Milligan-Jensen as its only female public safety officer. 2 Almost immediately, Milligan-Jensen experienced incidents of sexual discrimination and harassment from her supervisor. 3 As a result, she filed a complaint with the Equal Employment Opportunity Commission (EEOC). 4 Two weeks later Michigan Tech fired her. 5 In return, Milligan-Jensen filed suit against Michigan Tech alleging sexual discrimination and retaliatory firing in violation of Title VII. 6
As it conducted discovery, Michigan Tech learned that MilliganJensen had lied on her employment application because she failed to reveal that in 1982 she pled guilty to driving while impaired. 7 Using only
this after-acquired evidence, Michigan Tech successfully defeated Milligan-Jensen's Title VII claims. 8 Because Milligan-Jensen lied on her employment application, the Sixth Circuit held that she was precluded from relief under Title VII as a matter of law. 9 Thus, the court found that any actual wrongdoing by the university was irrelevant in resolving her claims. 10
Michigan Tech's successful defense of Milligan-Jensen's claim was based on the after-acquired evidence doctrine. 11 This doctrine allows a court to assume for summary judgment purposes that an employment action was unlawful. However, despite this assumption, the doctrine allows the court to defeat an employee's recovery with evidence of employee misconduct 12 discovered after ...
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