FARBER v. ARLEN ELECTRONICS, INC. TASK A MEMORANDUM TO: Jack Gates FROM: Applicant SUBJECT: Farber v. Arlen Electronics July 30, 1996
Jurisdictional Basis Jurisdiction of the above matter of Farber v. Arlen Electronics, Inc. is proper in the US District Court for Eastern District of Columbia. Farber is suing Arlen under the federal Age Discrimination in Employment Act (ADEA). Statement of Facts – NOT THAT IMPORTANT UNLESS THEY SAY IT IS. DON’T GO NUTSO ON IT. BE BRIEF AND MENTION THE LEGALLY SIGNIFICANT FACTS! In 1991, Arlen Electronics (“Arlen”) sought the expertise a manufacturing engineer with new product experience, in anticipation of new computer technology. The minimum qualifications for the position was a BS in Industrial Engineering, with a salary range of $2100 to $2800 a month. Sam Farber sent in an application form in 1991, stating that he was currently employed at Farnham, and listing an impressive resume, including a MS from both the Cransford Institute and the State University of Arizona. In fact, Farber had resigned from Faber after threatening to sue them for discrimination, and had been untruthful about his degrees. Farber never took any gradutate courses at State, rather he took 3-unit courses in business management. Farber never earned a MS from the Cranford Institute. His sole experience at Cranford was a 6 week management type seminar for which he was issued a certificate in 1987, which is not remotely equivalent to a Master’s Degree. Furthermore, Farber stated his last salary at Farnham was $3,500, when in fact it was $2,800. Farber was also dishonest on his company documents he filed with Arlen. He stated on his Beneficiary Change Form that he was married to a Leanne Williams, who’s last name he was unable to tell us. In fact, Farber claims he was only engaged to “Leanne” and put her down on the form because he planned to marry her and wanted her covered by Arlen’s health insurance. Farber never married Leanne Williams. Leanne Williams states they were never even engaged. When Leanne Williams was injured in a bicycle accident, Farber charged the medical treatment to the company’s health plan. In addition, Faber again misstated his educational background on Arlen’s Career Planning Questionnaire. Arlen has a company policy that falsification on Company documents is
ground for immediate termination. At least 4 times in the past few years employees have been fired for such conduct. Farber’s tenure at Arlen was uninspiring. His initial performance reviews of 4/15/1991 and 6/15/1991 are listed as satisfactory, and his yearly performance reviews in 1992, 1993, and 1994 are listed as satisfactory (minus), below requirements, and below requirements, respectively. He was twice denied a raise. On 1/15/1995, Farber was terminated from his employment at Arlen due to a workforce reduction. He now claims that Arlen discriminated against him because of his age, in violation of the federal ADEA. The “After-Acquired Evidence” shows that Farber would not have been hired had he been forthcoming with the truth on his employment application and in his interviews. The After Acquired Evidence doctrine stands for the proposition that the injury complained of would have and should have occurred despite the discrimination which allegedly occurred. Under the “Would have been hired” standard laid out in Baab v. AMR Services Corp., an employee will be denied relief for wrongful termination where the misrepresentation is material, directly related to measuring a candidate for employment, and was relied upon by the employer in making the hiring decision. Farber claims in his employment application that he received an (1) MS degree from Cranford Inst. in England, (2) an MS degree from State University in Arizona, and a (3) a BS from Columbia University. In its job requisition form, Arlen states that it needs a mid-level engineer with new product experience because it was anticipating the introduction of new 370x computer technology. Nancy Sanders, Arlen’s Director of Personnel states that Arlen would not have hired Farber if it had known that he had lied on his application form about his education. Charles Oster, the hiring manager at Arlen who initially interviewed Farber states that Farber made a very good first impression and spent much of the interview time touting his past experience and education. Farber told Oster that he was receiving $3500/mo from Farnham, his old company, andthat he was due for an imminent raise and maybe a promotion. According to Farnham, Farber received only $2800/mo and was no longer working at Farnham, after they terminated his employment. The salary Farber said he was being paid in his interview with Oster was consistent with the a senior engineer, but again, Faber was untruthful about his salary. Farber also told Oster that he would not accept a midlevel engineer’s position, and said that because he had a master’s degree, he should be a senior engineer. In fact, Farber did not have a master’s degree. Oster and Harry Peterson, VP at Arlen, determined that based on what Faber told them, that he was an appropriate hire at the higher level. The Company was about to begin manufacturing its new 370x computer and were misled to believe that Farber had the qualifications to assist.
Oster states that he relied entirely on the application form and what Farber told him in the interview in his decision to hire him, and that if he’d known Farber was lying, he would not have considered hiring him. The “After-Acquired Evidence” shows that Farber would have been fired had his misrepresentations on his employment application and in his interviews been known to Arlen. Under the “Would have been Fired” standard laid out in Baab v. AMR Services Corp., an employee will be denied relief for wrongful termination where the employee would have been fired had his misrepresentations been known by the employer. When the falsification of the employment application, if discovered during his employemnet, would have resulted in plaintiff’s termination, it becomes irrelevant whether or not she was discriminated against. This is true because plaintiff suffered no legal damage by being fired. Arlen has a company policy that falsification on Company documents is ground for immediate termination. At least 4 times in the past few years employees have been fired for such conduct. On Arlen’s Career Planning Questionnaire, Farber stated that the highest level of education he received was a MS in Industrial Engineering at Cranford Institute. Furthermore, Farber stated that he was married on his Beneficiary Change Form, when in fact, he was not. Nancy Sanders, Arlen’s Director of Personnel states that Arlen would have fired Farber if it had known that he had lied on his application form about his education. The After Acquired Evidence should be admitted by the Court to IMPEACH Farber’s character for untruthfulness. Under Federal Rule of Evidence 608(b), Specific Instances of conduct of a witness may, in the discretion of the court, be inquired into on cross examination of a witness concerning the witness’ character for truthfulness or untruthfulness. Farber lied on his Career Planning Questionnaire about his education in order to improve his chances for an undeserved raise and promotion within Arlen. Farber also lied on his Beneficiary Change Form about his marital status, acquiring coverage for his girlfriend and jeopardizing Arlen’s entire contractual relationship with its Health Insurance Carrier. Farber lied in his interview with Mr. Oster about his prior salary and skills. Farber’s pattern of untruthfulness to secure more money for himself is relevant to show that he is doing so in the present case with his claim that Arlen violated the ADEA by firing him. The numerous misrepresentations Farber has made in the past to Arlen has a highly probative value and will not be substantially outweighed by the slight prejudice or confusion it may create. (2) The “After-Acquired” Evidence Should Bar or Limit the Remedies Being Sought by Farber.
(a) The After-Acquired Evidence Should Bar Farber’s claim for loss of future wages The 8th Circuit Court in Wallace states that where after acquired evidence provides the employer with a legitimate reason to fire the employee, front-pay is unavailable. The Supreme Court states that it would be both inequitable and pointless to order the front pay of someone the employer would have terminated, and will terminate, had the employee’s wrongdoing been made known. As a result, it is a general rule that front pay is not an appropriate remedy. As discussed above, Arlen had a legitimate reason to fire Farber because he falsified company documents, which are grounds for immediate dismissal. 4 or 5 times in the past the company has fired people for similar offenses. (b) The After-Acquired Evidence Should Bar Farber’s claim for reinstatement. The 8th Circuit Court in Wallace states that where after acquired evidence provides the employer with a legitimate reason to fire the employee, reinstatement is unavailable. The Supreme Court states that it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, had the employee’s wrongdoing been made known. Again, once Arlen discovered Farber’s misrepresentations on his Beneficiary Change Form and Career Planning Form, they would have a legitimate ground for terminating his employment. As a result, reinstatement is unavailable. (c) The After-Acquired Evidence Should Bar Farber’s claim for permanent injunctive relief. The 8th Circuit Court in Wallace states that where after acquired evidence provides the employer with a legitimate reason to fire the employee, injunctive relief is unavailable. Farber seeks permanent injunctive relief against future discrimination and retaliatory termination by Arlen. Again, once Arlen discovered Farber’s misrepresentations on his Beneficiary Change Form and Career Planning Form, they would have a legitimate ground for terminating his employment. As a result, permanent injunctive relief is unavailable. (d) The After-Acquired Evidence Should Limit Farber’s claim for Attorney’s Fees. The 8th Circuit Court in Wallace states that where after acquired evidence provides the employer with a legitimate reason to fire the employee, attorney’s fees are available, but may be reduced in appropriate cases. Courts have the authority to award Attorneys fees to prevent abuse in discovery by employer’s into an employee’s background to resist claims under the ADEA. It would be appropriate to limit attorney’s fees because Arlen did not abuse its discovery privileges by researching Farber’s background. The more Arlen researched
into Farber’s employment history, the more misrepresentations it discovered. Arlen should not have to pay proportionally more because of the number of misrepresentations Farber made. (e) The After-Acquired Evidence Should limit Farber’s claim for loss of past wages because that information would have inevitably come to Arlen’s attention independent of Arlen’s conduct. The Supreme Court found in McKennon that the object of compensation for past wages is to restore the employee to the position he or she would have been in absent the discrimination, but that principle is difficult to apply with precision where there is afteracquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it. The Court further states that the beginning point in the trial court’s formulation of a remedy should be calculation of back-pay from the date of the unlawful discharge to the date the new information was discovered. Arlen admits that there is no way to speculate on when and how Arlen would have learned the truth about Farber had it not been for the pretrial discovery, so Arlen can’t say with certainty that Farber would have been fired at any certain time before the workplace reduction. However, Arlen asks the court to consider that it is Farber who made this claim, and Farber knew that Arlen would look into his background as a result. Because Farber made this claim, Arlen learned of Farber’s Misrepresentations. As a result, any past wages that Farber may receive should be halted at the point where Arlen discovered his misrepresentations. In no way would this preclude a person from filing suit, so as to challenge public policy, rather it would prevent people from misrepresenting their qualifications and prevent them from bringing frivolous lawsuits.
TASK B
Introduction Theory of Case & Story Arlen Electronics wanted to hire a manufacturing engineer with new product experience, in anticipation of new computer technology. It was surprised to receive the resume of Mr. Farber, who seemed overqualified for the job. The job position was for a manufacturing engineer, a person with a Bachelor in Science, with a starting salary of between $2100 and $2800 a month. So Arlen’s hiring agents met with Mr. Farber, accepted his employment application, and eventually accepted him. He was highly qualified. Mr. Farber had two Masters Degrees, not just a BS, from both the Cranford Institute in England and State University of Arizona. He had a job at a highly respected Computer Company, Farnham Computers, where they were paying him $3500 a month. In fact, he was due for an imminent raise, and maybe even a promotion. When Mr. Farber told the people at Arlen that he was not interested in a mid-level engineer’s position, because of his qualifications and master’s degree, Arlen’s hiring staff had to rethink their position. Mr. Farber wanted a senior engineer position, and according to his resume, he was certainly deserving of one. Charles Oster, who interviewed Mr. Farber and who you will hear from later, met with the Vice President at Arlen, Mr. Harry Peterson to determine what Arlen should do. Arlen was not looking for a senior engineer, but with Mr. Farber’s credentials, they thought, “how could they go wrong.” They hired Mr. Farber on the spot and gave him a Senior Engineer position and a $3800 a month salary. Mr. Farber’s tenure at Arlen was not what Charles Oster and Harry Peterson had anticipated. For the last 3 years, he received less than satisfactory reviews. And when Arlen decided to reduce its workforce, laying off its poorest of performers, Mr. Farber’s tenure at Arlen ended. Now Mr. Farber is claiming that Arlen discriminated against him because of his age, which is illegal under the federal law in this country. And so in its discovery, Arlen looked into Mr. Farber’s background a little more diligently, something they obviously should have done when they hired him. And you aren’t gonna believe what they found. IT WASN’T TRUE. NONE OF IT WAS TRUE. Mr. Farber never had a masters degree. He took a total of 3 units at State University of Arizona and a 6 week Seminar Course at Cransford. Neither of which comes close to a Master’s degree. But that’s not what he told Arlen before they decided to hire him. And Mr. Farber was certainly not making $3500 at Farnham Computers. He never did. In fact, he wasn’t even working there at the time. He had his own dispute with Farnham and left after he sued them for discrimination (try to prevent exclusion by showing habit evidence). And when he was there, he made only $2800, the typical salary
of a mid-level manufacturing engineer, the type of engineer Arlen was looking for in the first place. But of course, that’s not what he told Arlen before they decided to hire him. Mr. Farber’s deceptions didn’t end there. While working for Arlen, he misstated his marital status to get health coverage for his girlfriend. He put Arlen’s entire contractual relationship with its health care provider at jeopardy, possibly leading to the loss of health care for not just Mr. Farber, but every single one of Arlen’s employees. The deceptions do not end there either. Mr. Farber continued to misstate his educational background on Arlen’s Career Planning Questionnaire. He misrepresented himself to get the job and now he tried he misrepresented himself again to get a promotion. Arlen has a company policy that falsification on Company documents is ground for immediate termination. At least 4 times in the past few years employees have been fired for such conduct. Arlen employees will tell you that had they found out about Mr. Farber’s misrepresentations, they would have fired him for sure. Arlen is here today because they have been accused of firing Mr. Farber because of his age. But in reality, Arlen fired those that did not produce, that have proven to the Company’s Managers that they did not have the skill to produce. Conclusion