864 F.

2d 700
48 Fair Empl.Prac.Cas. 1107,
48 Empl. Prac. Dec. P 38,543, 12 Fed.R.Serv.3d 1375

V. Ray SUMMERS, Plaintiff-Appellant,

v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Defendant-Appellee.
No. 87-1087.

United States Court of Appeals,

Tenth Circuit.
Dec. 30, 1988.

John B. Wilson (Mark S. Webber of Parsons, Behle & Latimer, with him
on the brief), Salt Lake City, Utah, for plaintiff-appellant.
Glenn C. Hanni (Robert A. Burton and Kevin P. McBride of Strong &
Hanni, with him on the brief), Salt Lake City, Utah, for defendantappellee.
Before LOGAN, MOORE, and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.

On May 19, 1982, V. Ray Summers, a field claims representative for State
Farm Mutual Automobile Insurance Company, was fired. A written notice
explained that State Farm's reasons for Summers' discharge included his
falsification of company records, untimely and poor quality of reporting,
problems with settlement negotiations and customer relations, and his generally
poor attitude.

On April 19, 1983, Summers brought the instant action in the United States
District Court for the District of Utah. The gist of Summers' complaint was that
State Farm had unlawfully fired him because of his age and religion. Summers
was a 56 year old member of the Mormon Church at the time of his discharge.
The complaint named State Farm and four individuals who were Summers'

supervisors at State Farm as defendants.

3

In 1984, the district court granted summary judgment in favor of all individual
defendants on all claims. The district court also granted summary judgment in
favor of State Farm on Summers' pendent claims of wrongful discharge and
intentional infliction of emotional distress. However, the district court denied
State Farm's motion for summary judgment on Summers' claims based on
unlawful firing because of age and religion. Summers has not appealed the
1984 order dismissing all of his claims against the individual defendants and
his pendent claims against State Farm.

The case thereafter proceeded against State Farm only on Summers' claims of
wrongful termination because of age, 29 U.S.C. Secs. 621-634 (1967 as
amended), and because of religion, 42 U.S.C. Secs. 2000e-2(a), 3(a) (1964 as
amended). After extensive discovery, State Farm moved a second time for
summary judgment. The district court, with only limited comment, granted the
motion and entered judgment in favor of State Farm. Summers appeals. We
affirm.

The facts in this case, all of which were before the district court when the
hearing was held on State Farm's second motion for summary judgment, are not
seriously disputed. Summers began working for State Farm in 1963, initially
working for one year in State Farm's office at Ogden, Utah. In 1964, he was
transferred to State Farm's office in Logan, Utah, where he continued to work
until his discharge in 1982. Summers' basic duties were to settle claims made
against State Farm, which included an investigation of the facts giving rise to a
claim, a review of the policy provisions concerning coverage, a determination
and verification of damages claimed, and the issuance of a draft in exchange for
a release. Summers was encouraged by State Farm to adjust claims quickly, but
was also told of the importance of "covering the file," or insuring that all sums
paid by State Farm were "backed up" by documentation.

From 1963 to July, 1980, Summers' employment record with State Farm was
satisfactory. However, in July, 1980, it was discovered that Summers had
forged the signature of a representative of Monsanto Chemical Company to
document a "loss-of-wages" claim made by one of Monsanto's employees.
Summers did not dispute the falsification and was warned that another such
falsification could result in dismissal.

In September, 1981, State Farm discovered evidence regarding a 1977 incident

where Summers had falsified various medical and pharmacy bills for medical

services and drugs which State Farm's insured supposedly had received, though,
in fact, she had not. Again Summers was advised that he should not falsify
company records and was warned that future falsifications would result in
discharge.
8

As a result of the September, 1981, discovery, State Farm examined

approximately 90 randomly selected files involving claims Summers had
handled for State Farm, and concluded that seven or eight of these were
"suspicious." Again Summers was confronted with these additional suspected
falsifications, and warned that he should never again falsify company records.
Notwithstanding his admission that he had falsified some records, Summers
was not fired, but was placed on probationary status for two weeks without pay.
In opting for probationary status as opposed to discharge, State Farm officials
indicated they were influenced by the fact that Summers did not personally
profit from any of these falsifications.

On October 8, 1981, Summers returned to work from his probationary status

and was again warned about the consequence of any future falsifications of
State Farm records. Summers continued to work for State Farm until he was
discharged on May 19, 1982. State Farm officials conceded that Summers was
not fired because of his falsification of records, but because of his poor attitude,
inability to get along with fellow employees and customers, and similar
problems in dealing with the public and co-workers.

10

In early 1986, nearly four years after Summers' discharge, State Farm, when
preparing for trial, made a thorough examination of records prepared by
Summers and discovered over 150 instances where Summers had falsified
records, with 18 of those falsifications occurring after Summers returned to
work from his probationary status. Summers, in his depositions, did not deny
these falsifications.

11

On April 24, 1986, counsel for Summers filed a motion in limine, seeking a
pretrial ruling which would bar State Farm from using at trial the falsifications
discovered in its 1986 investigation of Summers' files. On May 22, 1986, the
district court held a status conference to determine, in view of all the
circumstances, whether the trial date of June 2, 1986 was realistic. Finding that
it was not realistic, the court reset the case for trial on January 5, 1987, and
ordered that a final pretrial and status conference be held on December 2, 1986,
at which time "motions may be heard and evidentiary and other pretrial matters
may be discussed."

12

On November 26, 1986, State Farm filed a renewed motion for summary

12

On November 26, 1986, State Farm filed a renewed motion for summary
judgment based "on the depositions, exhibits, records, and files of this case,
together with the brief herewith submitted in support of this motion." The basis
for this renewed motion for summary judgment was State Farm's discovery of
150 "new" falsifications.1

13

The final pretrial conference was held on December 2, 1986, with the case set
for trial on January 5, 1987. At that time the only two pending motions were
Summers' motion in limine filed April 24, 1986 and State Farm's motion for
summary judgment filed November 26, 1986. Summers was present at the
December 2 hearing and personally participated in that hearing. After argument
by counsel, the district court granted State Farm's second motion for summary
judgment, which rendered a formal order on Summers' motion in limine
unnecessary.

I. 10-Day Rule
14

Fed.R.Civ.P. 56(c) provides that a motion for summary judgment shall be

served at least 10 days before the time fixed for hearing. The purpose behind
the 10-day rule is to allow the nonmover the opportunity to prepare responsive
pleadings and counteraffidavits and to otherwise oppose the motion. C. Wright,
A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d Sec. 2719
(1983). In the instant case, State Farm's motion for summary judgment was
filed November 26, 1986, and was heard and determined 7 days later, on
December 2, 1987. Although the 10-day rule was not urged to the district court
by trial counsel, different counsel, on appeal, argue that the judgment should be
reversed for failure to observe the 10-day rule and that the case should be
remanded to allow Summers the opportunity to respond to State Farm's motion
for summary judgment. The 10-day rule contained in Fed.R.Civ.P. 56(c) is not
an absolute and can be waived. Prospero Assocs. v. Burroughs Corp. 714 F.2d
1022 (10th Cir.1983), and Mustang Fuel Corp. v. Youngstown Sheet and Tube
Co., 480 F.2d 607 (10th Cir.1973). In our view, the 10-day rule was waived in
the instant case.

15

At the December 2 hearing, the district court noted that there were two pending
motions: Summers' motion in limine and State Farm's motion for summary
judgment. The district court also noted that the latter motion "may not be ripe
for full argument." Despite this signal, there was no request by counsel that the
hearing on the motion for summary judgment be delayed. Instead counsel
stated that the "law" involved in the summary judgment motion "is the same
law that we're talking about in our motion in limine." As stated above,
Summers' motion in limine sought to preclude State Farm's use at trial of the
evidence of additional falsifications which State Farm found in early 1986.

These additional falsifications, in turn, were also the basis for State Farm's
renewed motion for summary judgment. Argument relating to both motions
ensued. Summers' presented a six-page affidavit which he had personally
prepared. The affidavit was not notarized, but counsel commented concerning
the contents of the affidavit, as did Summers himself. The affidavit proper was
formally filed with the court sometime after December 2, 1986. The contents
related primarily to instructions given Summers by State Farm officials when
he was starting his employment and did not bear, for example, on the 18
falsifications made by Summers after he resumed his employment upon coming
back from his probationary period.
16

Under similar circumstances, the Sixth Circuit has found a waiver of the 10-day
rule. Thacker v. Whitehead, 548 F.2d 634 (6th Cir.1977). In Thacker, a motion
for summary judgment filed by the defendant was heard and granted three days
after it was filed. In affirming, the Sixth Circuit noted that plaintiff's counsel
participated in the oral argument and did not request additional time to file
counteraffidavits or indicate that additional time was needed. The court further
indicated that trial counsel did not assert the 10-day argument in the district
court, nor did they move in the district court to vacate the summary judgment
on the grounds of insufficient time to respond. All things considered, we find
Thacker persuasive and hold that Summers has waived the conditions of
Fed.R.Civ.P. 56(c).

17

There is the definite suggestion on appeal that counsel representing Summers at

the hearing on December 2 wanted to withdraw because of differences between
himself and his client. Counsel did advise the court of such differences and
indicated that he might not be able to proceed to trial on the appointed trial date
of January 5, 1987. However, we find nothing in the transcript of the December
2 hearing indicating that counsel wanted to withdraw at that time. Rather he
proceeded to argue his motion in limine, which, if granted, would necessarily
have defeated State Farm's motion for summary judgment. Consequently,
Summers was adequately represented in the hearing and the fact that counsel
expressed some reservations has no bearing on this appeal.

II. Use of Evidence of Employee Misconduct Not Known by the

18
Employer at Date of Discharge
19

As indicated, in the process of preparing for trial, State Farm discovered 150
additional falsifications. After they were apprised of these additional
falsifications, Summers' counsel filed a motion in limine seeking a pretrial
order that State Farm be precluded from offering any evidence relating to the

newly found falsifications and that it be limited to presenting evidence which

related to the reasons given by State Farm in 1982 for Summers' firing. It was
Summers' position in the district court, as it is in this court, that since they were
not discovered until 1986, these additional falsifications are irrelevant and
inadmissible, and that, accordingly, the fact finder should not even know of
them.
20

State Farm's position is that although the additional falsifications discovered in

1986 could not have been a "cause" or "reason" for Summers' discharge in 1982
since they were unknown to State Farm at the time of the dismissal, these
additional falsifications may, and should be, considered in determining what
relief, or remedy, is available to Summers. Under the circumstances of this
case, State Farm argues, Summers should not be given any relief. We are in
general accord with State Farm's position.

21

At the outset we believe that the litany of McDonnell Douglas has little
application to the present case. McDonnell Douglas v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). In that case the Supreme Court held that in
a Title VII case a discharged employee has the initial burden of establishing a
prima facie case of racial discrimination, and that when that burden is met, "the
burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at
1824. Once such a legitimate reason is articulated, the employee should "be
afforded a fair opportunity to show that petitioner's [employer's] stated reason
was pretext." Id. at 804, 93 S.Ct. at 1825. McDonnell Douglas clearly
presupposes a "legitimate, nondiscriminatory reason" known to the employer at
the time of the employee's discharge. Id. at 802, 93 S.Ct. at 1824. McDonnell
Douglas was applicable when the district court considered State Farm's first
motion for summary judgment which brought into play the reasons given by
State Farm in 1982 for discharging Summers. But we are not here concerned
with the reasons for discharge given by State Farm in 1982. Rather, we are
concerned with the significance, if any, of State Farm's 1986 discovery of the
additional falsifications made by Summers when he was an employee of State
Farm. As indicated, Summers' position is that evidence of these multitudinous
falsifications, not known in 1982 and discovered in 1986, should play no role in
the present proceeding and should be ignored. We cannot agree.

22

Counsel has not directed us to any reported case on all fours with the present
one. In support of its argument that evidence of Summers' pervasive misconduct
discovered in 1986, which State Farm did not know about when it discharged
Summers in 1982, bars Summers from any relief, State Farm relies on the
rationale of such cases as Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Blalock v. Metals
Trades, Inc., 775 F.2d 703 (6th Cir.1985); Smallwood v. United Airlines, Inc.,
728 F.2d 614 (4th Cir.1984), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83
L.Ed.2d 62 (1984); and Murnane v. American Airlines, 667 F.2d 98
(D.C.Cir.1981).
23

In Mt. Healthy, a teacher was not rehired because of a "notable lack of tact in
handling professional matters." More specifically, the School Board gave the
teacher two reasons for its decision: (1) the teacher conveyed to a local disc
jockey the substance of an internal memorandum concerning a possible dress
code for teachers which the disc jockey promptly announced on the air as a
news item; and (2) the teacher made obscene gestures to two female students.
The teacher then sued the Board claiming that the Board violated his First and
Fourteenth Amendment rights by discharging him for engaging in
constitutionally protected conduct. After a bench trial, the district court found
that the teacher's call to the radio station was clearly protected by the First
Amendment and that the call played a "substantial part" in the Board's decision
not to rehire. At the same time, the district court indicated that the Board, in
fact, had another reason for the discharge. This other reason, the obscene
gesture incident, was "independent of any First Amendment right." In spite of
this independent reason, the district court still found that the teacher was
entitled to reinstatement with backpay. On appeal, the Sixth Circuit affirmed.

24

On certiorari, the Supreme Court reversed and remanded for further

proceedings. The Supreme Court held that the fact that conduct protected by
the First Amendment played a substantial part in the Board's decision not to
rehire did not necessarily justify remedial action. The Supreme Court went on
to state that if the Board could have dismissed the teacher for the obscene
gesture incident, and would have done so even if the radio station incident had
never come to its attention, then the fact that the protected conduct played a
"substantial part" in the Board's decision to discharge would not justify
remedial action. In remanding, the Supreme Court spoke as follows:

25

A rule of causation which focuses solely on whether protected conduct played a

part, "substantial" or otherwise, in a decision not to rehire, could place an
employee in a better position as a result of the exercise of constitutionally
protected conduct than he would have occupied had he done nothing. The
difficulty with the rule enunciated by the District Court is that it would require
reinstatement in cases where a dramatic and perhaps abrasive incident is
inevitably on the minds of those responsible for the decision to rehire, and does
indeed play a part in that decision--even if the same decision would have been
reached had the incident not occurred. The constitutional principle at stake is

sufficiently vindicated if such an employee is placed in no worse a position

than if he had not engaged in the conduct. A borderline or marginal candidate
should not have the employment question resolved against him because of
constitutionally protected conduct. But that same candidate ought not to be able,
by engaging in such conduct, to prevent his employer from assessing his
performance record and reaching a decision not to rehire on the basis of that
record, simply because the protected conduct makes the employer more certain
of the correctness of its decision2 .
26

429 U.S. at 285-86, 97 S.Ct. at 575 (emphasis added).

27

In Blalock, a discharged employee brought a Title VII action against his

erstwhile employer claiming that he was fired because of his religion. The
district court found no religious discrimination and entered judgment for the
employer. On appeal, the Sixth Circuit reversed and remanded. In reversing,
the Sixth Circuit held that the district court erred in finding no religious
discrimination, and that, on the record, the employee had established, prima
facie, that his "change in religious views was at least a factor in the discharge."
775 F.2d at 709. However, the Sixth Circuit remanded the case to the district
court for further proceedings with the comment that the employer could avoid
liability under Title VII by showing "that the adverse employment action would
have been taken even in the absence of the impermissible motivation, and that,
therefore, the discriminatory animus was not the cause of the adverse
employment action." Id. at 712.

28

In Smallwood, Smallwood applied with United Airlines for employment as a

flight officer. United refused to process the application because Smallwood
was 48 years of age, and United had a rule that an application for a flight
officer would not be processed if the applicant was over 35 years of age.
Smallwood then sued United under the Age Discrimination in Employment
Act, 29 U.S.C. Secs. 621-634 (1967 as amended). United urged two defenses:
(1) the age requirement was a bona fide occupational qualification within the
Act, and (2) Smallwood would not have been hired even if there had been no
age discrimination. The district court considered only United's first defense and
upheld United's age rule. On appeal, the Fourth Circuit reversed, holding
United's age rule not to be a bona fide occupational qualification. The case was
then remanded with directions that the district court consider United's second
defense that Smallwood "wouldn't have been hired anyway." Smallwood v.
United Air Lines, Inc., 661 F.2d 303 (4th Cir.1981).

29

On remand, the district court found for Smallwood. In so doing, the district
court allowed United to submit evidence that because Smallwood had

previously been fired by another airline for fraud, United would not have hired
Smallwood regardless of his age. The district court indicated quite clearly,
however, that it was not impressed with this argument because it involved
evidence discovered "after the fact" since United did not learn of Smallwood's
discharge by another airline, and the circumstances surrounding that discharge,
until after United refused to process Smallwood's application because of age.
30

On appeal, the Fourth Circuit reversed and accepted United's defense that they
would not have hired Smallwood regardless of age because of his prior
discharge by another airline. The court indicated that any other resolution
would be clearly erroneous. In addition, the Fourth Circuit disapproved of the
district court's reluctance to rely upon an "after-the-fact rationale," commenting
that such skepticism was directly contrary to Mt. Healthy. In support of their
conclusion, the Fourth Circuit pointed to the following language:

31

Initially, in this case, the burden was properly placed upon respondent to show
that his conduct was constitutionally protected, and that this conduct was a
"substantial factor"--or, to put it in other words, that it was a "motivating factor"
in the Board's decision not to rehire him. Respondent having carried that
burden, however, the District Court should have gone on to determine whether
the Board had shown by a preponderance of the evidence that it would have
reached the same decision as to respondent's re-employment even in the
absence of the protected conduct (emphasis added).

32

Smallwood, 728 F.2d at 623 (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at
576). The court concluded that:

33 short, the Supreme Court instructed district courts in cases where the issue is such
In
as here that they "should " proceed to make the "after-the-fact rationale" which the
district court in this case deprecates. Moreover, it nowhere countenanced the idea
that the evidence on this issue was to be treated with skepticism; the clear inference
is that such evidence was to be weighed by the same standards as other testimony.
34

Smallwood, 728 F.2d at 623.

35

In Murnane, Murnane's application for employment with American Airlines

was turned down because of an age rule similar to that in question in
Smallwood. Murnane brought suit under the Age Discrimination Act and the
district court, after trial, held for American on two grounds: (1) the age rule
was valid, and (2) Murnane wouldn't have been hired anyway because he was
not "competitively qualified" for flight office. On appeal, the District of

Columbia Court of Appeals affirmed both holdings of the district court. In

concluding that he "wouldn't have been hired anyway" was a valid defense, and
that American had proved such a defense, the District of Columbia Circuit cited
East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct.
1891, 52 L.Ed.2d 453 (1977), where the Supreme Court commented as follows:
36 assuming, arguendo, that the company's failure even to consider the
Even
applications was discriminatory, the company was entitled to prove at trial that the
respondents had not been injured because they were not qualified and would not
have been hired in any event.
Id. at 404, n. 9, 97 S.Ct. at 1897, n. 9. 3
37

In support of his position, Summers relies on such cases as Mantolete v.

Bolger, 767 F.2d 1416 (9th Cir.1985); and Nanty v. Barrows Co., 660 F.2d
1327 (9th Cir.1981). Our reading of those cases indicates that they are really
more supportive of State Farm's position on this matter.

38

In Mantolete, an applicant was denied employment by the United States Postal

Service because of a physical handicap, epilepsy, which disqualified her for
employment as a letter sorter. She brought suit under the Rehabilitation Act of
1973, 29 U.S.C. Secs. 701-796 (1973 as amended), alleging that the denial was
improper. After a trial, judgment was entered for the Postal Service. On appeal,
the plaintiff urged as error the denial by the district court of a motion in limine
to exclude evidence of her physical condition not known to the Postal Services
at the time of her rejection but acquired after its decision not to hire. The Ninth
Circuit held that although such evidence was not admissible to enlarge the basis
upon which the Postal Service rejected the applicant, it was admissible, even
though after acquired, to rebut the applicant's claim that she was physically
qualified for the position. 767 F.2d at 1424.

39

In Nanty, an American Indian's application for employment as a truck driver

was summarily rejected. Three days later two Caucasians were hired as truck
drivers. Nanty brought suit under Title VII. One defense was that the two
Caucasians hired after the Indian's job rejection were better qualified. The
district court found that the Indian was not qualified and entered judgment for
the employer. On appeal, that judgment was reversed by the Ninth Circuit. The
Ninth Circuit also stated that although the allegedly superior qualifications of
the two Caucasians hired were not relevant to a determination of whether there
was unlawful discrimination, such facts were relevant to the question of
whether Nanty, the American Indian, would have been hired absent such
discrimination. In other words, the Ninth Circuit held that even after a finding

of unlawful discrimination, an additional determination must be made regarding

the plaintiff's right to the job and monetary relief. 660 F.2d at 1333.
40

In light of these authorities, we think the present case boils down to several key
issues. As concerns both of State Farm's motions for summary judgment, it is
assumed that State Farm was motivated, at least in part, if not substantially,
because of Summers' age and religion. In its first motion for summary
judgment, State Farm argued, unsuccessfully, that there was no genuine issue
of material fact and that the reasons given Summers in 1982 for his discharge
constituted a nondiscriminatory, legitimate business reason which was
nonpretextual. In its second motion for summary judgment, State Farm argued
that facts which were discovered in early 1986 established serious and
pervasive misconduct by Summers, both predating and postdating his
probationary period, which, if known by State Farm in 1982, would have
justified discharge, and that State Farm, if it had known then what it learned in
1986, would, indeed, have discharged Summers. Finally, while such afteracquired evidence cannot be said to have been a "cause" for Summers'
discharge in 1982, it is relevant to Summers' claim of "injury," and does itself
preclude the grant of any present relief or remedy to Summers.

41

When Summers was placed on probation, State Farm knew of two

falsifications, and suspected seven others. Despite that knowledge, State Farm
did not discharge Summers, but rather placed him on probation without pay for
two weeks. When he was discharged in 1982, the reason given was Summers'
generally unsatisfactory job performance. Four years later, State Farm
ascertained that there had been 150 falsifications, 18 of which occurred after
Summers was brought back from probation. To argue, as Summers does, that
this after-acquired evidence should be ignored is utterly unrealistic.4 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,
and Summers is in no better position.III. Summary Judgment

42

Summers alternatively argues that assuming the relevancy and admissibility of

State Farm's evidence of pervasive falsification by Summers of company
records, both before and after his probationary period, there still remains
genuine issues of material facts which would preclude summary judgment. We
agree that courts are, or perhaps were, slow to grant summary judgments in
discrimination cases. However, recent cases indicate that even in discrimination
cases, summary judgment is not an impossibility, and that obvious cases should
be weeded out before trial. See Schwenke v. Skaggs Alpha Beta, Inc., 858 F.2d

627 (10th Cir.1988) and the cases cited therein.

43

Our study of the present case convinces us that this is one of those cases that
should have been weeded out before any trial. As indicated, pretrial preparation
by State Farm indicated that Summers had continually falsified company
records both before and after warnings that such actions could result in
discharge. We do not find Summers, in his several depositions, denying any of
these falsifications. On the record before him, the district judge in the instant
case did not err in granting State Farm's motion for summary judgment.

44

JUDGMENT AFFIRMED.

As indicated above, State Farm filed a motion for summary judgment in 1984,
which was granted as to Summers' claim of wrongful discharge and intentional
infliction of emotional distress, but denied as to Summers' claims of
discrimination based on age and religion. State Farm's 1984 motion for
summary judgment related to the reasons given by it in 1982 for discharging
Summers

On remand, the district court found on the original record that "the Board has
established by a preponderance of the evidence that Doyle [the teacher] would
not have been renewed because of the incidents--exclusive of the radio
incident--which had occurred during the year or so prior to nonrenewal" and
accordingly denied the teacher any relief. On appeal, the Sixth Circuit affirmed,
holding that the district court's findings were not clearly erroneous. Doyle v.
Mt. Healthy City School District Board of Education, 670 F.2d 59 (6th
Cir.1982)

Summers attempts to distinguish the foregoing cases on the grounds that they
are all "application-rejection" cases where the next step in the application
process would have been to uncover the facts which establish the legitimate,
nondiscriminatory reason for rejecting the application. This distinction is not
persuasive for several reasons. First, we have already indicated that the
McDonnell-Douglas litany does not apply to the present facts. Since we are
concerned here with the appropriate remedy, rather than the cause of the
dismissal, the probability that Summers' transgressions would have been
discovered in the absence of the trial is immaterial. Second, even if we accept
Summers' argued-for standard, the evidence establishes that State Farm was
aware of Summers' prior transgressions and was monitoring his actions.
Consequently, there is a high probability that at least the 18 falsifications
occurring after the probationary period would have been discovered. Finally,

Mt. Healthy, the linchpin case, involved a discharge and was not an
application-rejection case. Consequently, we find no meaningful distinction
between a case involving the rejection of an application and a case involving
the discharge of an employee
4

The First Circuit has indicated that evidence of employee misconduct not
known at the time of demotion, but later ascertained, should be considered by
the court. Jimenez-Fuentes v. Torres Gaztambide, 807 F.2d 230, 233 (1st
Cir.1986), rev'd on reh'g on other grounds, 807 F.2d 236 (1st Cir.1986) (en
banc), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). See
also Leahey v. Federal Express Corp., 685 F.Supp. 127 (E.D.Va.1988)
(applying Smallwood to allow evidence of employee misconduct discovered
after discharge in wrongful termination suit)