Does evidence of an employee’s wrongdoing discovered by the employer after a case is filed require dismissal of the case before trial?
On February 18, 2015, the First District Court of Appeal considered whether dismissal of an employee’s discrimination case during a pre-trial proceeding is proper when based on “after-acquired evidence” (e.g., the employer learns of an employee’s ineligibility for hire after making the hiring decision). In Horne v. District Council 16 International Union of Painters & Allied Trades (Cal. App. 1st Dist. Feb. 18, 2015) 2015 Cal. App. LEXIS 148, the court concluded that an employer’s discovery of an employee’s wrongdoing after making an employment decision is not relevant for purposes of deciding whether there are disputed facts that require submission of the case to a trier of fact (“summary judgment”).
In this case, Raymond Horne sued District Council 16 contending that he was not hired for a union organizer position in 2009 and 2010 because of his race. After the case was filed, the union learned for the first time that Mr. Horne had been convicted of a narcotics sale in 1997. The union filed a motion for summary judgment, in which the court may use a three-stage analysis. The first stage requires the employee to provide evidence supporting a “prima facie” case of discrimination, including evidence that he was qualified for the position he sought. The union contended Mr. Horne could not establish a prima facie case because the conviction rendered him ineligible for the position: the Labor-Management Reporting and Disclosure Act of 1959 bars individuals convicted of violating narcotics laws from serving as organizers (29 U.S.C. section 504(a)). The trial court agreed with the union and granted summary judgment.
On appeal, Mr. Horne asserted that the trial court improperly considered the after-acquired evidence of the narcotics conviction. The court of appeal noted that the 2014 decision in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407 “put to rest” the question of the appropriateness of using after-acquired evidence to negate a prima facie case. The court in Salas decided that after-acquired evidence is not a complete defense to claims under the California employment discrimination law, but does affect the available remedies. The union contended that the Salas decision did not apply because that court did not consider after-acquired evidence in the context of the summary judgment three-stage analysis. The court in Horne disagreed because Salas precludes the use of after-acquired evidence to completely bar an employee’s claim, and provides that such evidence is only relevant in the damages phase of the case. Because the three-stage analysis at summary judgment concerns liability only, after-acquired evidence is irrelevant for summary judgment purposes.
The court of appeal concluded that the trial court impermissibly relied on the after-acquired evidence of Mr. Horne’s felony conviction to support its grant of summary judgment. Accordingly, the court in Horne reversed the grant of summary judgment. This decision makes clear that after-acquired evidence cannot be used to dismiss an employee’s case.