The opinion of the court was delivered by: THOMAS A. HIGGINS
The Court has before it the motion for summary judgment of the defendant, Nashville Banner Publishing Co., Inc. (filed January 7, 1992; Docket Entry No. 7), and the response thereto by the plaintiff Christine McKennon (filed March 16, 1992; Docket Entry No. 25). For the reasons discussed below, the Court grants the motion for summary judgment of the Banner.
Mrs. McKennon was employed by the Banner in May 1951, initially as an ad taker, subsequently as a secretary for six different individuals. In each of these positions, Mrs. McKennon was evaluated and her performance was consistently rated as excellent. From February 26, 1982, until March 6, 1989, Mrs. McKennon held the position of secretary to Jack Gunter, Executive Vice President. In 1989, Mr. Gunter's job assignment changed, and Mrs. McKennon was reassigned as secretary to Imogene Stoneking, Comptroller. In this position, her duties included maintaining personnel files, working on preparation of the annual budget, maintaining petty cash vouchers for expense reimbursements, processing time sheets, making travel arrangements, directing the personnel department regarding employee changes, and other duties, including miscellaneous tasks assigned directly by Ms. Stoneking. Complaint at 3 (filed May 6, 1991; Docket Entry No. 1).
Mrs. McKennon was an employee at will. Either party could terminate the employment relationship at any time. Acknowledgement of receipt of Nashville Banner employee handbook, dated February 28, 1990, appendix A to the Banner's memorandum to support motion for summary judgment (filed January 7, 1992; Docket Entry No. 8). Mrs. McKennon's employment was terminated on October 31, 1990, at which time she was sixty-two years old. According to the Banner, its need to reduce the size of its work force led to the decision to terminate her employment. She filed this lawsuit on May 6, 1991, alleging age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. and the Tennessee Human Rights Act (THRA) Tenn. Code Ann. § 4-21-101, et. seq.
During the course of Mrs. McKennon's deposition on December 18, 1991, the Banner discovered that when Mrs. McKennon was a secretary to Ms. Stoneking, she copied and removed from the Banner's premises the following confidential documents: Nashville Banner Fiscal Period Payroll ledger dated 9/30/89; Nashville Banner Publishing Co., Inc., Profit and Loss Statement dated 10/30/89; a note from Elise to Simpkins; a memorandum from Imogene Stoneking to Irby C. Simpkins, Jr., dated 2/3/89; a handwritten note dated 2/8; and an Agreement between the Banner and one of its managing employees (notarized 3/1/89). Memorandum in support of defendant's motion for summary judgment, appendices D, F, H (filed January 7, 1992; Docket Entry No. 8). She took them home and showed them to her husband. Defendant's statement of undisputed facts at paras. 7-9 (filed January 7, 1992; Docket Entry No. 9). Mrs. McKennon argues that she copied and removed the documents for her "insurance" and "protection," "in an attempt to learn information regarding my job security concerns." Deposition of Christine McKennon taken December 18, 1991, at 241 (filed April 10, 1992; Docket Entry No. 39); affidavit of Christine McKennon at para. 12 (filed March 16, 1992; Docket Entry No. 28). As a result of this discovery, the Banner sent her a letter of termination on December 20, 1991. Exhibit A to appendix I of memorandum in support of defendant's motion for summary judgment.
On January 7, 1992 the Banner filed its motion for summary judgment based on the after-acquired evidence doctrine. Mrs. McKennon argues that the doctrine is inapplicable in the instant case and therefore summary judgment is improper.
The Court has subject matter jurisdiction over Mrs. McKennon's ADEA claim under 28 U.S.C. § 1331, the federal question statute. The Court has pendent jurisdiction over Mrs. McKennon's claim under the THRA.
Summary Judgment Standard
Summary judgment is proper when there are no genuine issues of material foot and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The parties do not dispute the duration and nature of Mrs. McKennon's employment with the Banner; nor do they dispute that she copied and removed confidential materials from the Banner's premises without permission. There is an apparent dispute, however, about the dates Mrs. McKennon took the documents. Further, Ms. McKennon disputes that her copying and removal of the documents constituted such misconduct that would justify the application of the after-acquired evidence defense. She argues that her actions were justified for her own protection. She argues that those issues should be left to the jury.
None of these disputes are material to the resolution of this case. The Court finds that what is material in this case is that Ms. McKennon's copying and removal of the confidential documents constituted misconduct, which was in violation of her obligations as a confidential secretary. The dates on which she took the documents are irrelevant as long as she took them prior to ...