Akin Gump: "After-Acquired Evidence" and Employment Law

Jessica Weisel, Esq., Senior Counsel at the Los Angeles office of the law firm of Akin, Gump, Strauss, Hauer & Feld, is the co-author of "The After-Acquired Evidence Doctrine: Is There Life After McKennon," California Law Employment Reporter (1995).

In Freedman v. D.C. Department of Human Rights, the appellee D.C. Office of Corporation Counsel, included a substantial quantity of "after-acquired evidence" in its pleadings filed in D.C. Superior Court and the D.C. Court of Appeals in support of my job termination by Akin Gump, which took place in late October 1991.

In neither the D.C. Superior Court proceedings in 1996 nor in the D.C. Court of Appeals proceedings in 1997 did the D.C. Office of Corporation Counsel in its responsive pleadings label or indicate in any way to the court that the evidence it was foisting on the court was after-acquired evidence.  The Office of Corporation Counsel did not file a motion with either the D.C. Superior Court or the D.C. Court of Appeals to grant it leave to proffer legally-irrelevant evidence, although I do not know whether counsel is required to do so either by law or rule of court.

In my Reply Brief before the D.C. Court of Appeals I offered the following arguments about the "after acquired evidence" proffered by the appellee District of Columbia:

I. THE OFFICE OF CORPORATION COUNSEL'S RECITAL OF INCIDENTS THAT PURPORTEDLY SUMMARIZES APPELLANT'S COMPLAINT OF HARASSMENT RELIES EXTENSIVELY ON LEGALLY-IRRELEVANT AFTER-ACQUIRED EVIDENCE.

In its recital of incidents that purportedly summarizes appellant's complaint of harassment, the Office of Corporation Counsel (the "District") relies improperly--and extensively--on evidence acquired by the Department of Human Rights (DHR) after appellant's job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer"): so-called after acquired evidence that played no role in the employer's termination decision or in DHR's no probable cause determination. See Brief of Appellee at 5-12. In relying extensively on legally-irrelevant evidence to support its cause the District unwittingly exposes--with meretricious abundance--the fundamental paucity of its position.

DHR made an express finding of fact that appellant's complaint of harassment to the employer--which comprises the exclusive recital of harassing incidents that appellant made prior to termination--comprised ten incidents only [Finding of Fact 4(a) through 4(j)]. [R. 12-16]. DHR found that the employer's "concern for [appellant] was based on the nature of the ten incidents that [appellant] submitted that he perceived as harassment. The details of these ten incidents are set forth in the Findings of Facts." [R. 7]. 2/

The District has unilaterally expanded the justification for the employer's termination decision by including in its brief a body of seventeen additional allegations that appellant never made to the employer and which therefore played absolutely no role in the employer's termination decision. See Brief of Appellee at 5-12.

An employer could not have been motivated to terminate an employee by knowledge it did not have at the time of termination and it cannot use after-acquired evidence to claim that the employee was fired for the nondiscriminatory reason. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995). The after-acquired evidence at issue in McKennon concerned plaintiff's misconduct: evidence that would have justified plaintiff's termination had the employer known of it at the time of discharge. In the present case, the after-acquired evidence is derived largely from two memoranda--prepared after the job termination and submitted by appellant to DHR prior to the agency's discretionary decision to institute the complaint--that memorialize appellant's retrospective perceptions of his work environment. [R. 178-201, 334-349]. The District admits that its own enumeration of twenty-seven incidents is derived from "materials submitted by [appellant] to [DHR] during its subsequent investigation," but fails to call attention to the fact that, of those twenty-seven incidents, appellant had previously reported only ten incidents to the employer [R. 12-16], and that the additional allegations, therefore, played no role in the employer's termination decision. See Brief of Appellee at 5.

Ironically, a portion of the after-acquired evidence that the District now attempts to use to justify DHR's no probable cause determination is the very evidence that persuaded DHR to institute the complaint in the first place. [R. 178-185]. See Appendix A to this reply. Appellant's letter to DHR dated January 14, 1992, which contains some of the after-acquired evidence cited in the Brief of Appellee, predates and supports DHR's complaint filed on February 4, 1992. [R. 178-185]. DHR was apprised of most of the after-acquired evidence in the period before DHR's discretionary decision to institute the complaint. [R. 178-201, 334-349]. See Appendix A to this reply.

Moreover, the after-acquired evidence that the District now attempts to foist on this Court as additional justification for DHR's no probable cause determination played absolutely no role in the agency's own factual determinations and final action [R. 1-9, 12-17] and is therefore not legally relevant to this Court's assessment of whether the agency action should be upheld. It is well-established that a reviewing court may not accept appellate counsel's post hoc rationalization for agency action; such action must be upheld, if at all, on the basis articulated by the agency itself. Motor Vehicle Mfr's. Ass'n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50 (1983), appeal after remand, State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474 (D.C. Cir. 1986), cert. denied, New York v. Dole, 480 U.S. 951 (1987).

The issue before this Court is whether DHR's final determination is supported by the facts articulated by the agency; the issue is not whether there is any evidence in the record that supports the agency's action. "Administrative agency decisions must stand or fall on the basis used by the agency." Club 99 v. D.C. Alcoholic Beverage Control Board, 457 A.2d 773, 775 (D.C. 1982). Facts recited by appellate counsel that do not form a part of the agency's decision are not legally relevant to a reviewing court's assessment of whether an administrative order should be upheld. Cooper v. Department of Employment Services, 588 A.2d 1172, 1176 (D.C. 1991).

This is not a case in which after-acquired evidence of an employee's improperly concealed wrongdoing would have justified the employer's termination decision had the employer known of the wrongdoing; appellant owed the employer no duty to refrain from believing that he was a victim of harassment nor did appellant owe a duty to his employer to reveal his private thoughts about his perceptions of his work environment. Moreover, this is not a case in which an administrative agency itself relied on after-acquired evidence as a basis of its final determination.

Accordingly, this Court should deem the after-acquired evidence proffered by the District, see Brief of Appellee at 5-12, not legally relevant to this Court's assessment of the merits of appellant's cause. Rather, this Court should deem the District's offer of legally-irrelevant evidence a frivolous attempt to divert the Court's attention from the persuasive circumstantial evidence of pretext that emerges from a reasoned consideration of the following statistics:

Of the ten incidents appellant submitted to the employer as constituting his complaint of harassment, three of the incidents (30%) involved his direct supervisor, Christine Robertson ("Robertson"), an individual known by the employer's minority employees to have engaged in a pattern of racially-inappropriate conduct and who, following appellant's termination, was found by the U.S. District Court for the District of Columbia to have engaged in racially-inappropriate conduct in her dealings with minority employees under her supervision. See Brief of Appellant at 23-24. The employer's personnel records designate Robertson one of the three decisionmakers who terminated appellant's employment. [R. 167].

Of the ten incidents found by DHR to constitute appellant's complaint of harassment to the employer, the employer reported to DHR in its interrogatory response only six incidents. See Brief of Appellant at 23-24 and Appendix A attached thereto. The employer omitted in its own enumeration to DHR the three incidents relating to appellant's direct supervisor (Robertson) and the one incident relating to a coworker (Stacey Schaar) who was reportedly terminated for gross misconduct. See Brief of Appellant at 23-24 and Appendix A attached thereto. The interrogatory response submitted by the employer to DHR was prepared by attorney manager Dennis M. Race ("Race") [R. 130], designated by the employer's personnel records a member of the group of three decisionmakers (which included Robertson) who terminated appellant's employment. [R. 167].

FOOTNOTE 2:

2/ An emended version of pages 5-12 of the brief of appellee indicates the extent of the District's improper reliance on after acquired-evidence. See Appendix A to this reply.