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Ohio Employment Discrimination Attorney Best Answers: Can my discrimination claim be blocked by my employer’s claims that I lied on my application? What is the after-acquired evidence rule? Can me employer change the reason that I was fired when it is defending my discrimination lawsuit?

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One day while at work, your employer tells you that you are being terminated from your job. They give you a specific reason for terminating your employment and you do not agree with the reason. Rather, you think your termination was based on unlawful discrimination (race/color, religion, sex /gender, national origin, disability, or age); because you engaged in a protected activity (for taking medical leave under the Family and Medical Leave Act (“FMLA”); taking leave to serve in the military under Uniformed Services Employment and Reemployment Rights Act (“USERRA”); requesting her maternity rights to express milk under the Pregnancy Discrimination Act of 1978 (“PDA“); or because your boss is retaliating against you (for filing a Worker’s Compensation claim or for whistle blowing to OSHA). Maybe you were fired because you would not give into your boss’s sexual harassment demands. So, you file a lawsuit. During the lawsuit, you discovery evidence showing that your employer did not terminate you for the reason they gave you, however, evidence also arises showing that you lied on your application for employment when you were first hired. The bad news is that such a discovery by your former employer may severely damage your employment discrimination claims, even if the employer did not discover your misconduct until after they terminated you. This is called the after-acquired evidence rule, and employer-defendants like to use it a lot during litigation.

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In O’Brien v. Ohio State University, the Ohio Court of Claims conducted an in-depth look at the after-acquired evidence rule and its application to an employment claim. This case actually involved a lawsuit filed by former OSU basketball coach, Jim O’Brien regarding his employment contract with the University. During the litigation, OSU raised the argument that O’Brien engaged in misconduct during his tenure as coach which violated his employment contract. However, none of this “misconduct” was raised during O’Brien’s employment; rather, OSU argues that this misconduct was “after-acquired” evidence that provided an independent ground for termination of O’Brien.

Specifically, the Court of Claims summarized OSU’s argument as follows:

Defendant’s primary argument is that other misconduct on the part of plaintiff and his staff that occurred during his tenure as coach constitutes independent grounds for plaintiff’s termination under the “after-acquired evidence” doctrine. Specifically, defendant argues that the improper third-party benefits provided to Slobodan Savovic during plaintiff’s tenure as coach justify plaintiff’s termination for cause under Section 5.1(a) of the contract because such conduct constitutes both a violation of plaintiff’s duties under Section 4.1(d) and a material breach of the entire agreement.

Importantly, the Court of Claims determined that in order for the after-acquired evidence rule to apply, the employer could not have known about the alleged misconduct during the employee’s employment. Rather, “after-acquired” evidence truly means that it was discovery after the employee’s employment ended. In O’Brien, that was not the case. Rather, the evidence showed that OSU knew about the alleged misconduct by O’Brien prior to his termination, the same misconduct that OSU was attempting to use as “after-acquired” evidence.

OSU then appealed to the Tenth District Court of Appeals, which again ruled against the school, holding:

The after-acquired evidence doctrine applies to cases where, subsequent to terminating an employee, the employer learns about independent facts or circumstances that were alternatively sufficient grounds for the employee’s termination. See McKennon v. Nashville Banner Pub. Co. (1995), 513 U.S. 352, 362-363, 115 S.Ct. 879; see, also, San v. Scherer (Feb. 5, 1998), Franklin App. No. 97APE03-317. Typically, this type of situation arises when a former employee brings a Title VII (discriminatory discharge) action against their former employer. See, ibid. The doctrine serves to limit the employee’s damages at trial if the employer can show after-acquired evidence of facts or circumstances unknown at the time of termination, which provide an independent basis for the termination. This doctrine has very limited application. For example, the afteracquired evidence must relate to facts not known at the time the employer terminated the employee. Also, the doctrine does not serve as a complete bar to relief. McKennon, at 360-361.

Clearly, the after-acquired evidence doctrine has no application in this case. First of all, OSU does not point to a specific piece of evidence that was later-acquired, which would have been an independent basis for O’Brien’s termination. OSU does point to the March 2006 NCAA infractions report, however, the facts therein were already known to OSU prior to terminating O’Brien. Therefore, that report does not satisfy the requirement of the after-evidence doctrine. Furthermore, OSU’s argument that the NCAA report is after-acquired evidence is counterintuitive because it tends to suggest that OSU acknowledges the lack of a legal basis for O’Brien’s termination on June 8, 2004. Secondly, the after-acquired evidence doctrine does not serve as a complete bar to a former employee’s claims.

In short, because OSU knew about the alleged conduct by O’Brien prior to his termination, the same conduct could not, as a matter of law, be used to support an “after-acquired” evidence defense for OSU.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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