Plaintiff, an African American, twice applied to become a union organizer, but both times the position was filled by white men. He filed a discrimination complaint with the Department of Fair Employment and Housing, and received a right to sue letter. He then filed an employment discrimination action. During discovery, he admitted he had been convicted of possession of narcotics for sale and served time in prison. Although the union was unaware of plaintiff’s felony previously, upon learning about it, the union demanded that plaintiff dismiss his action because, pursuant to 29 U.S.C. § 504(a), he was legally unqualified for the position he sought. Later, the union sought dismissal through a motion for summary judgment, which the trial court granted. On appeal, plaintiff contended the after-acquired evidence doctrine precluded the trial court from considering his felony conviction, and that the decision not to hire him was racially motivated. In affirming, the appellate court found that, since plaintiff was not qualified for the organizer position, he cannot show a prima facie case for racial discrimination.” (Horne v. District Council 16 Internat. Union of Painters & Allied Trades (December 3, 2013) 221 Cal.App.4th 1132, [165 Cal.Rptr.3d 144].) — NOT CITABLE.
Update after Supreme Court ordered the case remanded to the Court of Appeal: Trial Court Erred In Relying On After-Acquired Evidence.
This time around, the Court of Appeal discussed Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, [173 Cal.Rptr.3d 689, 327 P.3d 797], with regard to plaintiff’s argument the trial court improperly considered after-acquired evidence of his prior narcotics conviction and concluding he was ineligible for the organizer job. Salas states: “The doctrine of after-acquired evidence refers to an employer’s discovery, after an allegedly wrongful termination of employment or refusal to hire, of information that would have justified a lawful termination or refusal to hire” and “[t]o allow such after-acquired evidence to be a complete defense would eviscerate the public policies embodied in the FEHA by allowing an employer to engage in invidious employment discrimination with total impunity.” The Court of Appeal held the trial court erred when it granted summary judgment after relying on after-acquired evidence. (Horne v. District Council 16 Internat. Union of Painters & Allied Trades (Cal. App. First Dist., Div. 4; February 18, 2015) 234 Cal.App.4th 524, [183 Cal.Rptr.3d 879].)