(See, e.g., Summers v. State Farm Mut. Auto. Ins. Co. (10th Cir. 1988) 864 F.2d 700 [employee's misconduct on the job, discovered after discharge, warranted summary judgment for employer on claims of age and religious discrimination]; Washington v. Lake County (7th Cir. 1992) 969 F.2d 250 [employee's failure to disclose prior criminal convictions on job application, discovered after termination, entitled employer to summary judgment on race discrimination complaint]; Mathis v. Boeing Military Airplane Co. (D.Kan. 1989) 719 F. Supp. 991 [employee's failure to disclose on job application that she had been discharged by prior employers and convicted of a felony entitled employer to summary judgment on claims of race and sex discrimination; employer did not learn about application misrepresentations until after discharge].) While the present case was on appeal, the Court of Appeal decided Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614 [ 29 Cal.Rptr.2d 642]. There, the employee (Cooper) alleged that his termination violated a statutory prohibition on age discrimination and breached an implied-in-fact contract and the covenant of good faith and fair dealing.
Id. at 885. In Cooper v. Rykoff-Sexton, Inc., 29 Cal.Rptr.2d 642, 643 (Cal.Ct.App. 1994), the California Court of Appeal for the Second District, Division 4, held that an employee's claims for age discrimination were not barred by after-acquired evidence of material omissions in the employment application. The court expressly declined "to adopt a blanket rule that material falsification of an employment application is a complete defense to a claim that the employer, while still unaware of the falsification, terminated the employment in violation of the employee's legal rights."
The McKennon court thus concluded that the after-acquired-evidence rule should be applied on a case-by-case basis, with due attention to the particular facts and equitable considerations of the case. In Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, a case decided before McKennon, this court reached a similar conclusion about the doctrine. In Cooper, an employee who had been terminated asserted claims for breach of contract and age discrimination against his employer.
California courts have consistently stated the after-acquired evidence doctrine may serve as a complete or partial defense to an employee's wrongful discharge claim. See, e.g., Murillo, 77 Cal. Rptr. 2d at 17; Cooper v. Rykoff-Sexton, Inc., 29 Cal. Rptr. 2d 642, 644 (Ct.App. 1994). Like the Supreme Court in McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995), California courts balance the equities in deciding how the defense affects the plaintiff's relief. See, e.g., Murillo, 77 Cal. Rptr. 2d at 18-21.
California courts have consistently stated the after-acquired evidence doctrine may serve as a complete or partial defense to an employee's wrongful discharge claim. See, e.g., Murillo, 77 Cal.Rptr.2d at 17; Cooper v. Rykoff-Sexton, Inc., 24 Cal.App.4th 614, 29 Cal.Rptr.2d 642, 644 (Ct.App. 1994). Like the Supreme Court in McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), California courts balance the equities in deciding how the defense affects the plaintiff's relief.
We are not persuaded by the Court of Appeal's reasoning on this point. Why would the Legislature have focused only on those two Court of Appeal decisions (which provided support for the Court of Appeal's holding here on the issue of after-acquired evidence) while ignoring another Court of Appeal decision, Cooper v. Rykoff–Sexton, Inc. (1994) 24 Cal.App.4th 614, 29 Cal.Rptr.2d 642, which held that after-acquired evidence was not a defense to a wrongful termination action alleging age discrimination? Lacking is any indication that when the California Legislature enacted Senate Bill No. 1818 in 2002, it intended to endorse or codify the decisions in Camp, supra, 35 Cal.App.4th 620, 41 Cal.Rptr.2d 329, and Murillo, supra, 65 Cal.App.4th 833, 77 Cal.Rptr.2d 12, which specifically dealt with the doctrine of after-acquired evidence.
But although Salas, supra, 59 Cal.4th 407 was not decided until 10 days after the trial court had issued its order granting summary judgment, plaintiff's opening brief relies on cases that had long existed before he filed his opposition to defendant's summary judgment motion. In particular, plaintiff analogizes this case to Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, involving resume misrepresentation, which "decline[d] to adopt a blanket rule that material falsification of an employment application is a complete defense to a claim that the employer, while still unaware of the falsification, terminated the employment in violation of the employee's legal rights." (Id. at p. 617.)
The court held that the fact the omissions might or would have led to termination did not insulate the employer from liability for wrongful termination. (Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 617-619; see 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 211, pp. 267-268; 8 Witkin, id., Constitutional Law, § 860, pp. 307-308 [but after-acquired evidence may prevent reinstatement of the errant employee].) The doctrine does not address amendments to pending administrative discipline cases, based on evidence discovered during the proceedings, that is before the final decision to terminate is made.
The court held that the fact the omissions might or would have led to termination did not insulate the employer from liability for wrongful termination. (Cooper v. Rykoff–Sexton, Inc. (1994) 24 Cal.App.4th 614, 617–619, 29 Cal.Rptr.2d 642; see 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 211, pp. 267–268; 8 Witkin, id. Constitutional Law, § 860, pp. 307–308 [but after-acquired evidence may prevent reinstatement of the errant employee].) The doctrine does not address amendments to pending administrative discipline cases, based on evidence discovered during the proceedings, that is before the final decision to terminate is made.
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. (See, e.g., Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845, 849 [holding that harassment claims of plaintiff who lied about her immigration status to obtain job could go forward and would serve the FEHA's purposes, but indicating in dicta that any wrongful termination claims would be barred]; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 626, 636, 638-639 [barring wrongful termination and retaliation claims where plaintiffs misrepresented that they had never been convicted of a felony]; Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 617-619 ["declin[ing] to adopt a blanket rule that material falsification of an employment application is a complete defense" to wrongful discrimination claims because "the purpose and effect of the antidiscrimination statutes are unacceptably undermined by a principle that would allow a fact that played no part in the firing decision to bar any recovery"].) These cases have little bearing on Horne's case because, unlike the plaintiffs in those cases, Horne engaged in no misconduct and made no misrepresentations about his qualifications.