The trial court granted summary judgment to respondent District Council 16 International Union of Painters and Allied Trades on
District Council 16 International Union of Painters and Allied Trades (council) is a group of 16 local unions of drywall finishers, glaziers, painters, and floor coverers. One member union is Glaziers Local No. 718. Raymond E. Horne — an African-American male — was a glazier and a member of that glazier's union. Since 2004, he served as a member of the executive board of his union. Since 2006, he was an officer of that union. He also served as a member of the council for many years.
The council employs more than 40 people in California. In 2009, Horne applied for an organizer position with the council, without success. The man chosen to fill the position was White. In February 2010, Horne again applied for an organizer position with the council. He was not hired and the position was again filled by a White male.
In July 2010, Horne challenged the council's February 2010 decision not to hire him. A hearing was conducted before the council, which found that its officials had not violated its bylaws. Horne also filed a complaint for racial discrimination with the state Department of Fair Employment and Housing. In August 2010, he received a right-to-sue letter from the department.
In September 2010, Horne filed an employment discrimination action, alleging that the council's failure to hire him was based on his race. In January 2011, he filed his first amended complaint in this matter.
During discovery, Horne admitted that he had been convicted of possession of narcotics for sale in April 1997, that he had served a prison term for that conviction, and that he was paroled after that term of imprisonment on May 30, 2003. Horne denied that his citizenship rights, which were revoked as a result of this conviction, had not been fully restored. His right to vote had been restored since he was paroled in May 2003, but Horne admitted that he did not possess the right to carry a firearm. The council did not know these facts at the time of the February 2010 failure to hire.
In August and September 2011, knowing these facts, the council demanded that Horne dismiss his lawsuit. It asserted that federal law barred him from
In September 2011, the council moved for summary judgment, arguing that undisputed facts established that Horne was unqualified for the position he sought. It also asked the trial court to take judicial notice of November 2011 and January 2012 letters from the U.S. Department of Labor, Office of Labor-Management Standards (OLMS), asserting that federal law rendered Horne ineligible for the position. A "fact sheet" issued by OLMS explaining its interpretation of the statutory prohibition in general terms was attached to one of the letters. Opposing the motion for summary judgment, Horne objected to the proffered evidence of his prior conviction, asserting that the council could not rely on evidence obtained after its failure to hire to justify its employment decision. He also objected to any consideration of the proffered OLMS evidence.
After the hearing, the trial court granted the council's motion for summary judgment. It found that Horne was unable to establish a prima facie case of discrimination because he did not show that he was qualified for the job for which he applied. It relied on evidence that at the time of the employment decision in 2010, federal law prohibited him from serving as a union organizer. It found that the 13-year disability period established by that federal statute had not been shortened — that is, his citizenship rights had not been fully restored — because he did not have a right to carry a firearm. In so doing, it necessarily rejected Horne's objections to the evidence of his prior conviction and the OLMS evidence — evidence that was acquired by the council after the time it declined to hire him. In April 2012, Horne's case was dismissed.
In his key contention on appeal, Horne asserts that the after-acquired evidence doctrine precluded the trial court from considering the council's proffered evidence of his disqualification for the position. The council counters that this evidence was admissible and precluded Horne from establishing a prima facie case of racial discrimination.
California has adopted the three-stage burden-shifting approach established by the United States Supreme Court for trying these types of discrimination claims. (Guz, supra, 24 Cal.4th at p. 354; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 [125 Cal.Rptr.3d 1]; see Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-260 [67 L.Ed.2d 207, 101 S.Ct. 1089] (Burdine); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 [36 L.Ed.2d 668, 93 S.Ct. 1817] (McDonnell).) Horne bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. (Sada, supra, 56 Cal.App.4th at p. 151; see Burdine, supra, 450 U.S. at pp. 252-253; McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 354; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806 [85 Cal.Rptr.2d 459] (Horn).) If he does so, then the burden shifts to the council to offer any legitimate, nondiscriminatory reasons for failing to hire him. The trial court then assesses whether the proffered reasons might be pretextual. (See St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 508, 515 [125 L.Ed.2d 407, 113 S.Ct. 2742]; Burdine, supra, 450 U.S. at p. 256; Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806; see also Code Civ. Proc., § 437c, subd. (c).)
The after-acquired evidence doctrine applies to bar consideration of Horne's criminal record and the federal law rendering him ineligible for the organizer position if the issue is the council's motive for not hiring him in February 2010. (See Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 11 [109 Cal.Rptr.2d 762].) This doctrine renders the proffered evidence inadmissible on the second aspect of the three-part employment decision inquiry on which the council bore the burden of proof — its motive in deciding not to hire Horne. But the council's motive in declining to hire Horne is not at issue unless he first establishes a prima facie case of racial discrimination, including evidence that he was qualified for the organizer position.
Horne's burden of establishing a prima facie case was quite minimal. (See Burdine, supra, 450 U.S. at p. 253; Wills v. Superior Court, supra, 195 Cal.App.4th at p. 159.) On that threshold inquiry, we conclude that evidence bearing on his statutory disqualification from a union organizing position was not barred by the after-acquired evidence doctrine. When the issue before the trial court is not employer motive but applicant qualification, evidence that
Alternatively, Horne contends that the trial court's judgment must be reversed because he established that he was qualified for the position. He argues that his civil rights have been restored within the meaning of title 29, section 504 of the United States Code even though he is not entitled to possess a firearm.
On appeal from a dismissal after an order granting summary judgment, we conduct an independent review of the facts before the trial court. (Guz, supra, 24 Cal.4th at p. 334; Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563 [10 Cal.Rptr.3d 34]; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 469-470 [84 Cal.Rptr.2d 810].) We exercise our independent judgment about the legal effect of the facts. (See Federal Deposit Ins. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 345 [62 Cal.Rptr.2d 713].) We determine whether the council — as the party seeking summary judgment — has conclusively negated a necessary element of Horne's case, such that it is entitled to
Horne concedes that he did not have the right to possess a firearm because he was a convicted felon. The trial court found that this disability flowing from his criminal conviction meant that his civil rights had not been fully restored, and thus, that he was not qualified for the union organizer position. However, Horne contends that even if the evidence of his prior conviction was properly before the trial court, that conviction did not bar him from holding the organizer position under federal law. (29 U.S.C. § 504.)
Horne argues that because the right to possess a firearm is not a right expressly provided by the California Constitution, his inability to lawfully possess a firearm does not deprive him of his full civil rights. (See Kasler v. Lockyer (2000) 23 Cal.4th 472, 481 [97 Cal.Rptr.2d 334, 2 P.3d 581].) We disagree. The most reasonable interpretation of the federal law precluding his union organizer employment until his civil rights have been fully restored is that he must have reacquired all of the civil rights he had before his conviction, including the statutory right to possess firearms. (See 29 U.S.C.
The motion for sanctions is denied.
The judgment is affirmed. The council, as the prevailing party on appeal, is entitled to recover its costs on appeal. (California Rules of Court, rule 8.278.)
Ruvolo, P. J., concurred.
The majority concludes that it is perfectly lawful for an employer to intentionally discriminate against a job applicant on the basis of race when the employer uncovers — long after the discrimination occurred — a reason why the applicant was disqualified for the job. I disagree with this conclusion and respectfully dissent. I believe that such an employer is and should be accountable under the law, especially when the applicant, as in this case, did not misrepresent any job qualification. I would conclude that Raymond E. Horne is entitled to have his claim heard even though his available remedies may be limited.
I begin by accepting much of the majority's decision. I agree that failure-to-hire claims based on a theory of disparate treatment, such as Horne's claim, are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] (McDonnell Douglas). (See Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662 [8 Cal.Rptr.2d 151]; Ibarbia v. Regents of
The purpose of the prima facie case is to require the plaintiff to show, when there is no direct evidence of discriminatory intent, "`actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the [applicable statute]." [Citation.]'" (Ibarbia, supra, 191 Cal.App.3d at pp. 1327-1328; see Green v. State of California, supra, 42 Cal.4th at p. 275.) The prima facie case, however, "is not intended to be an inflexible rule." (Ibarbia, at p. 1327; see U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 715 [75 L.Ed.2d 403, 103 S.Ct. 1478] ["The prima facie case method established in McDonnell Douglas was `never intended to be rigid, mechanized, or ritualistic'"].) "`The facts necessarily will vary in [employment discrimination] cases, and the specification ... of the prima facie proof ... is not necessarily applicable in every respect to differing factual situations.'" (Ibarbia, at p. 1327, quoting McDonnell Douglas, supra, 411 U.S. at p. 802, fn. 13.)
The conclusion that Horne can establish an inference that the council's intent was discriminatory, notwithstanding his now known disqualification, is compelled in part by McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352 [130 L.Ed.2d 852, 115 S.Ct. 879] (McKennon). In McKennon, the United States Supreme Court considered whether an employee who alleged she was unlawfully terminated in violation of the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) was "barred from all relief when, after her discharge, the employer discover[ed] evidence of wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds." (513 U.S. at p. 354.) For purposes of its motion for summary judgment, the employer conceded it had discriminated against the employee, but it argued that it would have fired her anyway upon learning she had wrongfully copied confidential documents. (Id. at p. 355.) The court rejected the argument. It reasoned that because the employer was unaware of the misconduct until after it fired the employee, "[t]he employer could not have been motivated by knowledge it did not have and it [could not] now claim that the employee was fired for the nondiscriminatory reason." (Id. at p. 360.) The court held that the after-acquired evidence of misconduct did not negate the employer's discriminatory intent and therefore did not defeat the employee's claim. (See ibid.)
McKennon, supra, 513 U.S. 352 was a wrongful termination case, not a failure-to-hire case, but that is a distinction of little logical consequence here. McKennon's basic principle — that after-acquired evidence playing no role in an employer's adverse employment decision has no bearing on whether the employer acted with discriminatory intent — is equally applicable in failure-to-hire cases, including at the prima facie stage where the issue is whether the plaintiff can establish an inference of discriminatory intent. In the case before us, Horne was denied the job for reasons that are unknown but that do not include his disqualification. Accordingly, we cannot rule out the possibility that the denial was for unlawful discriminatory reasons, and he should not be blocked at this stage of the case from trying to prove he was discriminated against.
In reversing summary judgment and allowing the plaintiff's case to proceed, the Seventh Circuit cited McKennon, supra, 513 U.S. 352 in holding that "[a]n employer may still be liable for race discrimination under [t]itle VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.] even though it later discovers information that would have otherwise disqualified the plaintiff from employment." (O'Neal, supra, 293 F.3d at p. 1003.) The court held that the employer's "belated recognition that [it] could not have hired [the plaintiff] because of his age" did not bar the race discrimination claims — even though, as here, that information established the applicant's statutory disqualification from the position sought. (Id. at p. 1004.) O'Neal's rationale is persuasive and squarely applicable to Horne's case.
The same rationale was applied in Norris v. City and County of San Francisco (9th Cir. 1990) 900 F.2d 1326 (Norris), a pre-McKennon case in which an applicant alleged that he was denied a job because of race discrimination. As did O'Neal, supra, 293 F.3d 998, Norris makes the point that information about the applicant's qualifications unknown to the employer at the time of the job denial has no bearing on determining whether discrimination occurred: "Clearly, information about [the applicant] which was unknown to [the employer] at the time the decision was made could not have entered into the calculus of the decision and would be entirely irrelevant. Such after-acquired data cannot explain [the employer's] decision not to hire [the applicant]." (Norris, at p. 1331.)
In holding that Horne cannot make out a prima facie case of discrimination because of after-acquired evidence of his disqualification, the majority relies on Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1 [109 Cal.Rptr.2d 762] (Finegan). But in my view this reliance is misplaced. In Finegan, an employee alleged that he was wrongfully terminated because of a disability, and expert medical testimony was offered at trial to rebut the showing that the employee "was otherwise qualified to do his job." (Id. at pp. 4, 7.) In determining that the expert's testimony was admissible, Finegan
Finegan's unremarkable holding is that the after-acquired-evidence doctrine is inapplicable to an expert's opinion interpreting evidence that was known at the time of the adverse employment decision. The court's characterization of the expert's medical opinion as "later-acquired" evidence (Finegan, supra, 91 Cal.App.4th at pp. 9, 12) is thus not a reference to the kind of after-acquired evidence with which we are concerned here — new evidence that was unknown when the adverse employment action was taken. Moreover, whether the Finegan plaintiff was "otherwise qualified" was an element of both his prima facie case and his substantive claim for disability discrimination. (See fn. 1, ante.) Thus, even if the expert evidence had been "after-acquired" within the meaning of McKennon, supra, 513 U.S. 352, it would nonetheless have been admissible because it went to a core issue of the plaintiff's substantive claim having nothing to with intent: whether the plaintiff was, in fact, "otherwise qualified" and thus protected by the FEHA.
Also not particularly helpful to resolving the case before us are decisions involving after-acquired evidence that applicants or employees falsified their job qualifications. Courts of Appeal have come to different, and often fact-based, results when considering whether equitable principles — such as the unclean hands doctrine — prevent employees from pursuing wrongful termination claims when the employer later discovers that the employee misrepresented his or her qualifications in order to get the job.
Disallowing claims such as Horne's thwarts the policies behind the laws at issue in this case. It undercuts section 504 by encouraging employers to be unaware of the section's requirements and to ignore applicant screening. More importantly, it undermines the public policy against employment discrimination embodied in the FEHA. Although we now know that Horne was ineligible to hold the union organizer job because of section 504, the FEHA not only aims to "restore aggrieved persons to the position they would have occupied had the discrimination not occurred," but also, "separate and apart from its compensatory purpose, ... `to provide effective remedies that will ... prevent and deter unlawful employment practices.' [Citation.] This forward-looking goal of preventing and deterring unlawful discrimination goes beyond the tort-like objective of compensating an aggrieved person for the effects of any wrongs done in an individual case. It is rooted in the Legislature's express recognition that employment discrimination `foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.'" (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 225 [152 Cal.Rptr.3d 392, 294 P.3d 49] (Harris).) If Horne can prove that the council, not knowing of his disqualification, discriminated against him, the resulting public harm deserves judicial redress.
While I believe that the law extends to Horne the opportunity to prove his case, I also recognize that his statutory disqualification from the job may significantly limit his potential remedies and might prevent him from recovering damages. (See McKennon, supra, 513 U.S. at pp. 361-362 [after-acquired evidence of employee's misconduct that would have led to lawful termination if employer had known of it admissible to limit remedies, including reinstatement and backpay]; Harris, supra, 56 Cal.4th at pp. 232-233 [where discrimination played role in but was not but-for cause of employee's termination, plaintiff not entitled to reinstatement, backpay, or noneconomic damages]; but see O'Neal, supra, 293 F.3d at pp. 1004-1005 [indicating that failure-to-hire plaintiff might be entitled to backpay and noneconomic damages even where state statute "would have ultimately voided his hiring"].) But regardless whether damages would be awarded, Horne's case should be allowed to proceed because "the unavailability of damages ... does not make a finding of unlawful discrimination an empty gesture." (Harris, at p. 234.) Rather, "a judicial declaration of employer wrongdoing," "injunctive relief where appropriate to stop discriminatory
Employers normally ask job applicants to disclose facts that would bar their employment from the position they are seeking. If an applicant tells the truth, the employer knows about any disqualifying condition, and the rejected applicant will be unable to establish a prima facie case of a discriminatory failure to hire. If the applicant is untruthful, equitable principles may bar the applicant's claims. But a rule that blocks truthful applicants from pursuing claims of race discrimination because of after-acquired evidence of a disqualification contravenes the FEHA and undermines its objectives. I would therefore reverse the grant of summary judgment and remand to the trial court for further proceedings.
