Becky Wallace, Annette Neil v. Dunn Construction Company, Inc. , 968 F.2d 1174 ( 1992 )

JOHNSON, Senior Circuit Judge:

Defendant Dunn Construction Company (“Dunn”) appeals the district court’s denial of its motion for partial summary judgment in this employment discrimination case. We reverse.

I. STATEMENT OF THE CASE

In May 1990, plaintiff Joyce Annette Neil filed a complaint against Dunn, her former employer, that alleged the following four causes of action under federal law: (1) an inadequate compensation claim under the Equal Pay Act (EPA), see 29 U.S.C.A. §§ 206(d)(1), 215(a)(2) (West 1978), (2) a retaliatory discharge claim under the EPA, see 29 U.S.C.A. § 215(a)(3) (West 1965); EEOC v. White and Son Enterprises, 881 F.2d 1006, 1010-12 (11th Cir.1989),¹ (3) a hostile work environment sexual harassment claim under Title VII, see 42 U.S.C.A. § 2000e-2(a)(1) (West 1981) Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-69, 106 S.Ct. 2399, 2403-06, 91 L.Ed.2d 49 (1986), and (4) a retaliatory discharge claim under Title VII alleging that her numerous objections to sexual harassment caused her termination, see 42 U.S.C.A. § 2000e-3(a) (West 1981). Neil also alleged two tort claims under Alabama law — one for invasion of privacy and one for assault and battery.

As a result of litigating this case, Dunn became aware, when Neil admitted as much in a deposition, that Neil had pled guilty to the Alabama crime of possession of cocaine and marijuana prior to filing her application fot employment with Dunn. This after-acquired evidence established that Neil lied in her application for employment with Dunn.² Soon after discovering this evidence, Dunn filed a motion for partial summary judgment, the grounds for which included the contention that the after-acquired evidence of Neil’s narcotics convictions and application fraud served as a legitimate cause for terminating Neil’s employment irrespective of any alleged unlawful motives.³ In its order denying this motion, the district court rejected Dunn’s after-acquired evidence theory as a matter of law.

Subsequently, Neil and Dunn jointly filed a motion to certify, for an interlocutory appeal, the order denying Dunn’s motion for partial summary judgment. See 28 U.S.C.A. § 1292(b) (West Supp.1991). The district court granted the motion, and Dunn filed a timely petition for permission to appeal to this Court.⁴ A. panel of this Court granted the petition for permission to appeal, and Dunn thereafter filed a timely notice of appeal.

II.ISSUE

The principal issue presented in this appeal is one of law concerning the effect of the after-acquired evidence of' Neil’s drug conviction and application fraud on Neil’s claims.⁵

III.STANDARD OF REVIEW

We review summary judgment orders de novo. Akins v. Snow, 922 F.2d 1558, 1560 (11th Cir.), cert. denied, - U.S. -, 111 S.Ct. 2915, 115 L.Ed.2d 1079 (1991). Summary judgment is mandated if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In order for a genuine issue of material fact to exist after full discovery, the evidence regarding the material fact must be “significantly probative.” Hudson v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir.1988).⁶

IV.ANALYSIS

Initially, we note that the principal, issue on appeal may be reduced to whether the after-acquired evidence in this case mandates summary judgment on the federal claims. If the federal claims are due to be dismissed, then the state law claims would likely be dismissed for lack of pendent jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988). If the federal claims are viable, then the state law claims survive because Dunn has cited no authority indicating that the Alabama law claims are due to be dismissed in whole or in part on independent state law grounds because of the after-acquired evidence, and we are aware of no such authority.

The proper role of after-acquired evidence under federal employment discrimination statutes raises an issue of first impression in this Circuit and has been explicitly addressed at length by only one other Circuit, the Tenth, in Summers v. State Farm Mutual Automobile Insur. Co., 864 F.2d 700 (10th Cir.1988). See also Johnson v. Honeywell Information Sys., Inc., 955 F.2d 409, 415 (6th Cir.1992) (summarily adopting Summers rule in alternative holding in case brought under state employment discrimination provision construed in same manner as Title VII). Dunn contends that the Summers approach is correct. We disagree.

A. The Summers Proposition

In Summers, the plaintiff alleged that he was discharged because of his age and his religion. 864 F.2d at 702. His employer asserted that the reason for Summers’ termination was a bad attitude and a poor rapport with co-workers and customers. Id. at 702-03. Even though his employer knew at the time of the discharge that Summers had falsified records on several occasions, the employer conceded that falsification of records was not the reason for Summers’ discharge. Id. During preparation for trial almost four years after the termination of Summers, however, the employer discovered 150 additional falsifications attributable to Summers. Id. at 703. The Tenth Circuit panel held that such after-acquired evidence mandated summary judgment for the employer. Id. at 709.

The Summers Court acknowledged that the after-acquired evidence was theoretically irrelevant to whether the employer was liable vel non to Summers for the discharge because the existence of liability depends, on the actual motivation for the discharge, rather than a post hoc hypothetical motivation based on knowledge acquired subsequent to the discharge decision. Id. at 704-05. Nevertheless, the Summers panel ultimately held that the after-acquired evidence barred the existence of liability as a practical matter and thus provided the employer with the equivalent of an affirmative defense. The Court held that the after-acquired evidence was “relevant to Summers’ claim of ‘injury,’ and does itself preclude the grant of any present relief or remedy to Summers.” Id. at 708. The Court punctuated its holding with an analogy:

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.

Id. Thus, the Summers case fashioned a rule that an employer may avoid all liability for a discharge based solely on unlawful motives by proving that it would have discharged the plaintiff absent any unlawful motives if it had possessed full knowledge of the circumstances existing at the time of the discharge.⁷

In its analysis, the Summers Court relied primarily on Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). See Summers, 864 F.2d at 705-06.⁸ After careful consideration, we agree with the Summers Court that Mt. Healthy provides important and persuasive guidance concerning after-acquired evidence; however, we take issue with the Tenth Circuit’s interpretation of Mt. Healthy and find that Mt. Healthy and related principles actually subvert, rather than support, the Tenth Circuit’s rule.

B. The Mt. Healthy Principle

The plaintiff in Mt. Healthy, a teacher, claimed that his employer failed to rehire him in retaliation for exercising his First Amendment rights. Mt. Healthy, 429 U.S. at 276, 97 S.Ct. at 570. At the time of the decision not to rehire, the employer stated that there were two reasons for the discharge — the plaintiff’s protected speech and the plaintiff’s use of obscene gestures toward students. Id. at 283 n. 1, 97 S.Ct. at 574 n. 1. The Supreme Court held that, if the plaintiff had met his burden of showing that his exercise of his First Amendment rights was a “ ‘substantial factor’ ” in the refusal-to-rehire decision, then the school board could avoid liability only if it satisfied the burden of proving “that it would have reached the same decision ... even in the absence of the protected conduct.” Id. at 287, 97 S.Ct. at 576 (emphasis added). The Court reasoned that in the absence of such an affirmative defense the law 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.

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

The Summers rule constitutes an unwarranted extension of Mt. Healthy in that the Summers rule ignores the lapse of time between the employment decision and the discovery of a legitimate motive for that decision. Whereas the Mt. Healthy rule excuses all liability based on what actually would have happened absent the unlawful motive, the Summers rule goes one step further: it excuses all liability based on what hypothetically would have occurred absent the alleged discriminatory motive assuming the employer had knowledge that it would not acquire until sometime during the litigation arising from the discharge.⁹ In doing so, the Summers rule clashes with the Mt. Healthy principle (adapted for use in statutory discrimination cases) that the plaintiff should be left in no worse a position than if she had not been a member of a protected class or engaged in protected opposition to an unlawful employment practice. See id. at 285-86, 97 S.Ct. at 575. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975) (one purpose of Title VII is “to make persons whole for injuries suffered on account of unlawful employment discrimination”). The Tenth Circuit clearly placed Summers in a worse position than if he had not been a member of a protected class. According to the facts assumed by the Court, absent his age and his religion, Summers would have remained employed for at least some period of time after he was actually discharged. Nevertheless, the Tenth Circuit denied him any relief for that lost period of employment.

C. The Price Waterhouse Opinion

After the Summers decision, the Supreme Court handed down its decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), which clarified the role of Mt. Healthy in Title VII cases and reemphasized the principal source of our disagreement with the Summers rule. In Price Waterhouse, the Court addressed the issue of “the respective burdens of proof of a defendant and plaintiff in a suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives.” Id. at 232, 109 S.Ct. at 1781 (plurality opinion). The Court essentially confirmed that the Mt. Healthy analysis applied to Title VII and held that, in a mixed-motive case, if the plaintiff bears her burden of proving by direct evidence that an impermissible criterion was a “ ‘substantial factor’ ” in the adverse employment decision, then the burden of persuasion shifts to the employer to establish by a preponderance of the evidence that the same decision would actually have been made absent an unlawful motive. Id. at 261, 276, 109 S.Ct. at 1796, 1804 (O’Connor, J., concurring in judgment); id. at 259-60, 109 S.Ct. at 1795 (White, J., concurring in judgment); id. at 241-46, 109 S.Ct. at 1785-88 (plurality opinion). But see Civil Rights Act of 1991, Pub.L. No. 102-166, § 107, 105 Stat. 1071, 1075-76 (1991) (amending Title VII to overturn an aspect of Price Waterhouse holding). Both concurrences and the plurality relied on the Mt. Healthy principle discussed supra in deriving the Price Waterhouse holding. Id. at 248-49, 109 S.Ct. at 789-90 (plurality opinion); id. at 258-60, 109 S.Ct. at 1794-95 (White, J., concurring in judgment); id. at 277, 109 S.Ct. at 1804 (O’Connor, J., concurring in judgment). The holding and reliance on Mt. Healthy in the Price Waterhouse opinion constitute implicit approval of the Summers Court’s extension of Mt. Healthy to Title VII; however, they confirm our initial conclusion that the Summers Court misinterpreted Mt. Healthy and the guidance it provides for after-acquired evidence eases by ignoring the time lapse between the unlawful act and discovery of a legitimate motive and thus putting the plaintiff in a worse position than if she had not been a member of a protected class or engaged in protected conduct. See supra Part IV.B. See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 n. 54, 98 S.Ct. 2733, 2764 n. 54, 57 L.Ed.2d 750 (1978) (Powell, J.) (refusing to order remand for consideration of whether plaintiff, who was rejected through unlawful process, would have been rejected if defendant had employed a lawful process).

D. The Principal Purpose of Title VII

The Summers rule is antithetical to the principal purpose of Title VII — “ ‘to achieve equality of employment opportunity’ ” by giving employers incentives “ ‘to self-examine and self-evaluate their employment practices and to endeavor to eliminate, so far as possible,’ ” employment discrimination. Albemarle Paper, 422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971), and United States v. N.L. Indus., 479 F.2d 354, 379 (8th Cir.1973)). The Summers rule does not encourage employers to eliminate discrimination. Rather, it invites employers to establish ludicrously low thresholds for “legitimate” termination and to devote fewer resources to preventing discrimination because Summers gives them the option to escape all liability by rummaging through an unlawfully-discharged employee’s background for flaws and then manufacturing a “legitimate” reason for the discharge that fits the flaws in the employee’s background. Even more troubling is the incentive to “sandbag.” Summers encourages an employer with a proclivity for unlawful motives to hire a woman — despite knowledge of a legitimate reason that would normally cause the employer not to employ her — to destroy any evidence of such knowledge, to pay her less on the basis of her gender, to sexually harass her until she protests, to discharge her, and to “discover” the legitimate motive during the ensuing litigation, thus escaping any liability for the unlawful treatment of the erstwhile employee.

In sum, the analysis underlying the Supreme Court’s jurisprudence in mixed-motive cases convinces us that the law governing after-acquired evidence should not ignore the time lapse between the unlawful act and the discovery of a legitimate motive and therefore should not replicate the law applicable to mixed motives. Furthermore, the primary objective of Title VII would be disserved by such an approach. Therefore, we reject the Summers rule that after-acquired evidence may effectively provide an affirmative defense to Title VII liability.¹⁰

E. The Proper Approach

We agree with the abstract proposition, espoused by the Summers Court, that after-acquired evidence is relevant to the relief due a successful Title VII plaintiff under 42 U.S.C.A. § 2000e-5(g) (1981). Summers, 864 F.2d at 708. Simply put, Title VII does not limit an employer’s freedom to make decisions for reasons that are not unlawful. Price Waterhouse, 490 U.S. at 239, 109 S.Ct. at 1784 (plurality opinion). Cf. Mt. Healthy, 429 U.S. at 285-86, 97 S.Ct. at 575 (disapproving of reinstatement of former employee when a legitimate reason supported decision against rehiring). However, one of the purposes of Title VII is “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). A sufficient showing of after-acquired evidence mandates the drawing of a boundary between the preservation of the employer’s lawful prerogatives and the restoration of the discrimination victim.¹¹ To be sure, the boundary will vary depending on the facts of each case. Therefore, the effect of after-acquired evidence on Title VII remedies is best decided on a case-by-case basis.

In the case at bar, assuming that the after-acquired evidence in and of itself would have caused Dunn to discharge Neil, it would be inappropriate for a court to order reinstatement or front pay regarding her Title VII discharge claim. See Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 n. 2 (7th Cir.1989) (dicta in Title VII case stating that reinstatement improper if plaintiff lied to obtain job and was dis-chargeable for that lie); Milligan-Jensen v. Michigan Tech. Univ., 767 F.Supp. 1403, 1417 (W.D.Mich.1991) (denied front pay on basis of after-acquired evidence). Cf. Mt. Healthy, 429 U.S. at 285-86, 97 S.Ct. at 575 (disapproving of reinstatement of former employee when a legitimate reason supported decision against rehiring). In other words, if Dunn now has a legitimate motive that would cause Neil’s discharge, then reinstatement or front pay would go beyond making Neil whole and would unduly trammel Dunn’s freedom to lawfully discharge employees. Because Neil would no longer be employed at Dunn, she also would not be entitled to an injunction against further unlawful practices. See Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982) (if Title VII plaintiff not reinstated, injunction “unlikely” because such injunction would not affect her). See also In re National Airlines, Inc., 700 F.2d 695, 697 (11th Cir.) (injunction not mandated under Title VII where it is clear that unlawful practice will not recur), cert. denied, 464 U.S. 933, 104 S.Ct. 337, 78 L.Ed.2d 306 (1983). Cf. Powers v. Chicago Transit Authority, 890 F.2d 1355, 1360 (7th Cir.1989) (in § 1983 employment discrimination suit, plaintiff’s unethical conduct relevant to right to injunction).

With regard to the period of Title VII backpay for the allegedly retaliatory discharge, the boundary between the competing concerns shifts such that Neil’s backpay period should not terminate prematurely unless Dunn proves that it would have discovered the after-acquired evidence prior to what would otherwise be the end of the backpay period in the absence of the allegedly unlawful acts and this litigation.¹² In this way, both Neil’s interest in make-whole relief and Dunn’s interest in freedom to make lawful decisions will be served. We realize that an alternative approach exists — to end the period of backpay on the day that Dunn actually learned of the after-acquired evidence in the course of litigating this case. See Smith, 876 F.2d at 1319 n. 2. Cf. Milligan-Jensen, 767 F.Supp. at 1417 (reduced backpay award by 50% due to after-acquired evidence). We reject this alternative approach for two reasons. First, it overlooks the teaching of Price Waterhouse and Mt. Healthy that the victim should be placed in no worse a position than if she were not a member of a protected class and had not engaged in protected conduct — if the allegedly unlawful acts did not occur, and this litigation never existed, then Dunn would not have discovered Neil’s prior conviction at her deposition. Moreover, the alternative approach would have the perverse effect of providing a windfall to employers who, in the absence of their unlawful act and the ensuing litigation, would never have discovered any after-acquired evidence.

Further, we fail to see how after-acquired evidence which would cause Neil’s legitimate discharge could affect the availability of declaratory relief for either of Neil’s Title VII claims, see 28 U.S.C.A. § 2201 (West Supp.1991), or of nominal damages for Neil’s hostile-environment sexual harassment claim, see Henson, 682 F.2d at 905. The after-acquired evidence could not have been discovered in time to alter the employment relationship so as to obviate these forms of relief.¹³

The effect of- after-acquired evidence on the .more customary forms of Title VII relief will determine the manner in which such evidence affects the availability and amount of an attorney fee award. See 42 U.S.C.A. § 2000e-5(k) (West 1981). With regard to the availability vel non of a fee award, if Neil succeeds in obtaining at least “ ‘some of the benefit ... sought in bringing suit’ ” or a “ ‘material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute’ ” despite the after-acquired evidence, then she will be a “prevailing party” and thus entitled to an attorney fee award of some sort. Walker v. Anderson Elec. Connectors, 944 F.2d 841, 846 (11th Cir.1991) (quoting Texas Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93, 109 S.Ct. 1486, 1492-98, 103 L.Ed.2d 866 (1989)). However, assuming that Neil does cross the threshold inquiry and becomes entitled to a fee award of some kind, after-acquired evidence may decrease the amount of the award under traditional attorney fee principles. See Texas Teachers, 489 U.S. at 789-90, 109 S.Ct. at 1491-92 (discussing fee award under 42 U.S.C.A. § 1988 (1981)); Hensley v. Eckerhart, 461 U.S. 424, 433-40, 103 S.Ct. 1933, 1939-43, 76 L.Ed.2d 40 (1983) (same). See also Walker, 944 F.2d at 846 n. 10 (attorney fee standards under § 1988 same as those under § 2000e-5(k)).

Because the traditional remedial possibilities under Title VII and the EPA are quite similar, we find the foregoing general approach applicable to Equal Pay Act claims as well. Compare 42 U.S.C.A. § 2000e-5(g) with 29 U.S.C.A. § 216(b) (West Supp.1991). We acknowledge that the liquidated damages provision of the EPA varies from the “make whole” purpose of Title VII relief. See White and Son, 881 F.2d at 1013 (referring to this aspect of EPA relief as “punitive”). Nevertheless, we find this distinction insignificant because the calculation of the liquidated damages under the EPA is wedded to the “make whole” concept — the liquidated damages provision of the EPA provides the plaintiff with double the amount of “make whole” relief. See id.

Thus, after-acquired evidence should affect the prospective remedies of reinstatement, front pay, and injunctive relief under the EPA in the same way it affects them under Title VII. Cf. 29 U.S.C.A. § 216(b) (private plaintiff alleging inadequate compensation not provided right to injunctive relief). Moreover, the effect of after-acquired evidence on the time period for the EPA retaliatory discharge remedies of lost wages and liquidated damages is analogous to its effect on the Title VII backpay period.¹⁴ Further, as with Title VII, we find that the after-acquired evidence in this case cannot affect the availability of declaratory relief for either of the EPA claims. We also find that, similar to nominal damages for hostile-environment sexual harassment, the after-acquired evidence cannot affect the availability of unpaid equal wages and liquidated damages for the EPA inadequate compensation claim.

With regard to the effect of after-acquired evidence on attorney fee awards under the EPA, we note that the test for the availability vel non of a fee award differs slightly under the two statutes. Compare 42 U.S.C.A. § 2000e-5(k) (plaintiff must be “prevailing party”) with 29 U.S.C.A. § 216(b) (plaintiff must obtain “judgment”). The Title VII standard appears to be more stringent than the EPA standard. See Walker, 944 F.2d at 846-47 (possible to obtain judgment and not be “prevailing party” and implying that judgment is necessary but not sufficient for entitlement to Title VII fee award). That is, in marginal cases, an EPA plaintiff may be entitled to a fee award because she has a judgment whereas a similarly-situated Title VII plaintiff may not be so entitled because, although she obtained a judgment, the contents of that judgment might not suffice to qualify her as a prevailing party. Thus, after-acquired evidence is somewhat less likely to preclude an EPA fee award than a Title VII fee award. However, with regard to EPA fee award amounts, we contemplate that the analysis will generally proceed in a manner quite similar to the approach under Title VII. See Jones v. Central-Soya Co., 748 F.2d 586, 588-89 n. 1 (11th Cir.1984) (equating standards governing amount of EPA fee award with those governing Title VII and § 1988 awards).

V. APPLICATION

Applying the foregoing principles to this case, we find no genuine issue of fact regarding whether the after-acquired evidence would have caused Dunn to discharge Neil from her job as a flagperson on road crews absent any unlawful motive. The employee handbook, a copy of which Neil admitted to possessing in her deposition, details Dunn’s policies against drug use and falsification of records and authorizes termination for both. Two of Neil’s own witnesses who were former Dunn employees testified in depositions that they understood that they could be fired if they lied on their applications.¹⁵ Dunn’s Safety and Training Director stated in an affidavit that Dunn tests all of its applicants for drug use and refuses to hire those who test positive. Finally, Dunn’s Manager of Administration and Accounting and its Safety and Training Director both stated in affidavits that Dunn had policies against falsification of documents and drug use, that Neil would not have been hired had she been truthful in her application, and, most importantly, that Neil would have been fired for lying on her application if Dunn had been aware of the lie. Faced with this unrelenting evidence, Neil has failed to produce any significantly probative evidence to rebut Dunn’s showing that it would have fired her for her application fraud. She relies solely on her own sworn statement that she thought one Dunn employee had lied on her application and retained employment with Dunn; however, she offered no evidence whatsoever indicating that Dunn knew that an employee had lied on an application regarding any subject (let alone narcotics convictions) and thereafter failed to terminate that employee. Dunn’s evidence is ample and persuasive, and Neil’s evidence consists solely of her own sworn statement regarding her unsubstantiated beliefs which fail to directly address the precise issue involved.

Thus, the prospective remedies of reinstatement, front pay, and injunctive relief are unattainable with respect to all of Neil’s federal claims. Our next inquiry concerns whether the after-acquired evidence mandates an early end to any period of backpay under Title VII or lost wages and liquidated damages under the EPA. Dunn has introduced no evidence whatsoever indicating when it would have discovered the after-acquired evidence if Neil had not been female and had not asserted her rights under Title VII or the EPA.¹⁶ Thus, summary judgment is not proper regarding a premature termination of any period of backpay, lost wages, or liquidated damages. Finally, the after-acquired evidence in this case does not in and of itself prevent a fee award regarding any of the federal claims; however, if a fee is ultimately awarded, then the after-acquired evidence would affect the amount.¹⁷

Consequently, Neil cannot as a matter of law obtain relief for her federal claims in the form of reinstatement, front pay, or an injunction. Dunn is entitled to partial summary judgment only as to these specific claims for relief.¹⁸

VI. CONCLUSION

We REVERSE the denial of Dunn’s motion for partial summary judgment and REMAND for further proceedings not inconsistent with this opinion.¹⁹

1 . To the extent the opinion in Wu v. Thomas, 863 F.2d 1543 (11th Cir.1989), overlooks the plain language of § 215(a)(3) and conflicts with the holding of White and Son regarding the statutory origin for EPA retaliation claims, we refuse to follow it. Compare Wu, 863 F.2d at 1546 n. 5 (no retaliation provision exists in the EPA; however, Title VII retaliation provision creates cause of action for retaliation against bringing of EPA claim) with White and Son, 881 F.2d at 1010-12 (§ 215(a)(3) creates EPA retaliation cause of action).

2 . Neil checked the “no" box after the question, "Have you ever been convicted of a crime?”

3 . In its motion for partial summary judgment, Dunn asserted this after-acquired evidence theory against only the discharge claims and not against the EPA inadequate compensation, the Title VII sexual harassment, or the state law tort claims. However, the district court, in its order denying partial summary judgment, interpreted Dunn's motion as asserting the after-acquired evidence theory against all of Neil’s claims. Thereafter, all pleadings, motions, and orders considered the after-acquired evidence theory as having been asserted against all of Neil’s claims.

4 . In its order granting the joint motion to certify, the district court stated that the "controlling question of law is whether or not Neil’s action should be dismissed because of the undisputed fact that she falsified the employment application by which she gained employment at Dunn.” It further stated that the case of Summers v. State Farm Mutual Automobile Insur. Co., 864 F.2d 700 (10th Cir.1988), "if it reflects the law of the Eleventh Circuit, would mandate summary judgment against Neil.”

5 . On appeal, Neil claims, for the first time in this case, that Dunn waived this principal issue by failing to raise it in any of its answers. Neil's argument is frivolous. Dunn’s motion for partial summary judgment, filed the same day as Dunn’s last answer, put Neil on notice of the after-acquired evidence issue. Thus, no violation of Fed.R.Civ.P. 8(c) occurred because Neil suffered no prejudice. See Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.1989). Therefore, the Summers issue is properly before this Court. Moreover, six days after Dunn filed its last answer and its partial summary judgment motion, the district court issued its pretrial order which explicitly incorporated all affirmative defenses raised by motion. See Fed. R.Civ.P. 16(e) (pretrial order "shall control subsequent course of action”). Cf. Automated Medical Laboratories, Inc. v. Armour Pharmaceutical Co., 629 F.2d 1118, 1122-23 (5th Cir.1980) (failure to assert affirmative defense in answer curable by insertion of the defense in pretrial order).

6 . The parties agreed in their joint motion to certify that the record was complete regarding the after-acquired evidence issue.

7 . At least two courts have extended the Summers rule to sexual harassment situations, each holding that a victim of sexual harassment suffered no injury because she lied on her employment application. Churchman v. Pinkerton’s, Inc., 756 F.Supp. 515, 519-21 (D.Kan.1991); Mathis v. Boeing Military Airplane Co., 719 F.Supp. 991, 994-95 (D.Kan.1989).

8 . The Summers court also placed significant reliance on three cases decided by other circuit courts. These cases are clearly distinguishable from the facts of Summers. Id. at 706-07. The first of these cases, Blalock v. Metals Trades, Inc., 775 F.2d 703 (6th Cir.1985), did not involve after-acquired evidence. The other two cases, Smallwood v. United Air Lines, Inc., 728 F.2d 614 (4th Cir.), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984), and Murnane v. American Air Lines, Inc., 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982), involved refusals to hire that would have occurred absent any unlawful motives because the employers proved that, in the next step of the hiring process, they would have uncovered a legitimate reason for not hiring the plaintiffs. Smallwood, 728 F.2d at 626-27; Murnane, 667 F.2d at 102. Thus, in Smallwood and Murnane, no injuries to the plaintiffs were possible because, in fact, they never would have been hired even absent the discriminatory motive. However, in Summers, injury to the plaintiff was obviously possible because the evidence is clear that he would have had a longer tenure with his employer absent the alleged discriminatory motive.

9 . We acknowledge that the Summers Court noted a "high probability” that a small number of Summers’ falsifications would have been discovered absent trial preparation. Summers, 864 F.2d at 707 n. 3. However, this finding was irrelevant to the holding in Summers.

10 . We also reject two subsidiary arguments made by Dunn ostensibly based on Summers: that Neil lacks standing and that Neil is barred from any relief by the doctrine of clean hands. Aside from the fact that the Summers Court never mentioned standing or clean hands, these arguments fail because they ignore the effect of Title VII. Title VII and the EPA create standing for Neil. Warth v. Seldin, 422 U.S. 490, 514, 95 S.Ct. 2197, 2213, 45 L.Ed.2d 343 (1975) ("Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute”). Further, we are unaware of any binding authority that advocates withholding relief under Title VII or the EPA on the basis of a private plaintiffs unclean hands. But cf. EEOC v. Dresser Indus., Inc., 668 F.2d 1199, 1202 (11th Cir.1982) (application of laches doctrine to suit brought by EEOC). But see St. John v. Employment Dev. Dept., 642 F.2d 273, 275 (9th Cir.1981) (affirming refusal to order reinstatement evidently on basis of clean hands doctrine). However, even if the doctrine of clean' hands were applicable to this case, the effect of this equitable doctrine would be limited by the remedial goals of Title VII and the EPA in the manner which we prescribe in this opinion. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-17, 95 S.Ct. 2362, 2370-71, 45 L.Ed.2d 280 (1975).

11 . The employer bears the burden of persuasion to show by a preponderance of the evidence whether and in what manner after-acquired evidence would have legitimately altered the employment relationship and hence should affect Title VII relief under the approach prescribed herein. Cf. Price Waterhouse, 490 U.S. at 261, 109 S.Ct. at 1796 (O’Connor, concurring in judgment); id. at 259-60, 109 S.Ct. at 1795 (White, J., concurring in judgment); id. at 258, 109 S.Ct. at 1794 (plurality opinion).

12 . If Neil establishes that her discharge was in retaliation for asserting her Title VII rights, then she will be entitled to a presumption that a backpay award is appropriate. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1526 (11th Cir.1991). Thus, we find that the after-acquired evidence has no bearing on the availability vel non of a backpay award.

13 . For a similar reason, Dunn’s contention that knowledge of the narcotics conviction would have caused Dunn not to hire Neil in the first place is misguided except insofar as evidence of this contention constitutes indirect proof that Dunn would have discharged Neil for lying on her application regarding the narcotics conviction. By virtue of its after-acquired status, evidence of Neil’s conviction could not have influenced the decision regarding whether to hire Neil because that decision occurred well before the after-acquired evidence ever would have been discovered.

14 . If Neil establishes that her discharge was retaliatory, then Dunn will be liable for her lost wages. White and Son, 881 F.2d at 1012. Moreover, unless Dunn then shows that it acted in good faith on a reasonable belief that it was not violating the EPA, Neil will be entitled to liquidated damages. Id. Because the after-acquired evidence is irrelevant to the mental state underlying Neil's discharge, such evidence cannot affect the availability of liquidated damages.

15 . One of these witnesses is Neil’s erstwhile co-plaintiff, Becky Wallace. Wallace ceased to be a party to this litigation on April 18, 1991 when the court granted a joint motion, filed by Wallace and Dunn, to dismiss Wallace's claims.

16 . Because the record is silent on this issue, we need not at this time specify the type or quantum of evidence that should be required of an employer who seeks an early end to a period of backpay, lost wages, or liquidated damages based on after-acquired evidence.

17 . Neither party has argued the applicability of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991) (the Act). We therefore have refrained from expressing any opinion on this issue, and have applied Title VII as it existed when this suit was commenced, prior to the passage of the Act. As a result, we have no occasion to consider the effect of after-acquired evidence on the damages remedies provided in the Act. See id. § 102, 105 Stat. at 1072-74. We note, however, that the approach we have adopted is fully consistent with the treatment accorded mixed-motive employer decisions by the Act. See id., § 107, 105 Stat. at 1075-76.

18 . Summary judgment may be granted to a defendant regarding only part of a claim for relief. Fed.R.Civ.P. 56(b).

19 . Nothing in this opinion should be understood as affecting in any way Neil’s state law claims.