Opinion
B162878.
11-4-2003
ESMERALDA MOREJON, Plaintiff and Appellant, v. TERRY HINGE AND HARDWARE et al., Defendants and Respondents.
Sosa, Simonson & Associates and John L. Simonson for Plaintiff and Appellant. Jackson Lewis, Robert E. Campbell and Parnell G. Kirby for Defendants and Respondents.
The trial court granted summary judgment on appellant Esmeralda Morejons complaint against respondent Amersham, Inc. dba Terry Hinge and Hardware (Amersham) for medical condition discrimination, physical disability discrimination, and termination in violation of public policy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
There are no material disputes about the following facts. Respondent manufactures industrial and nonindustrial hinges at a facility in Van Nuys. On November 4, 1999, respondent hired Morejon for what was initially expected to be a one-month period of employment. Morejons employment application stated that she was eligible to work in the United States, and she also submitted a Social Security card and resident alien card. However, Morejon is an undocumented alien, and the cards that she presented were invalid.
Morejon assembled hinges for respondent from November 1999 until August 2000. She sometimes requested time off, and each request was granted. Morejon was terminated in August 2000.
On August 6, 2001, Morejon filed her complaint against respondent. The complaint contains causes of action for violation of FEHA and wrongful termination in contravention of public policy, and sought compensatory and punitive damages. It alleges that respondent terminated her shortly after she told a supervisor that she needed a medical leave to undergo surgical removal of a cancerous ovary.
On August 9, 2002, respondent filed its motion for summary judgment, or in the alternative, summary adjudication. The motion contended that Morejons claims failed because respondent had a legitimate business reason for terminating her: a downturn in respondents business. It also cited evidence that Morejon is an undocumented alien, and argued that the after-acquired-evidence rule and unclean hands doctrine barred her claims. Finally, the motion contended that her requests for lost wages, emotional distress damages, and punitive damages were improper because she had failed to mitigate damages, she had no evidence of emotional distress, and the employees involved in her discharge were not respondents managing agents.
Following a hearing on the motions, the trial court granted summary judgment on September 9, 2002. Citing Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833 and Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, the trial court concluded that the after-acquired-evidence rule and unclean hands doctrine barred Morejons claims. Judgment was filed on September 17, 2002.
DISCUSSION
Morejon contends that the trial court erred in granting summary judgment. She is mistaken.
A. Standard of Review
"A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. Both are reviewed de novo. [Citations.]" (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.)
"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) "`Review of a summary judgment motion by an appellate court involves application of the same three-step process required of the trial court. [Citation.]" (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponents claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.)
In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action — for example, that the plaintiff cannot prove element X." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. omitted.) Nonetheless, all doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
B. Parties Showings
We begin by describing the parties showings in the context of the issues framed by the complaint.
Although the parties asserted numerous objections to the respective adversarial showings, the trial court declined to rule on these objections because they were not relevant to the facts upon which it relied in granting summary judgment. Under these circumstances, the objections are not waived through a failure to obtain rulings from the trial court. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 783-785.)
Nonetheless, Morejons objections are waived to the extent that she fails to press them on appeal. (Los Angeles Equestrian Center, Inc. v.City of Los Angeles (1993) 17 Cal.App.4th 432, 449-450; Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, 1422.) Here, her opening brief raises only one such objection pertinent solely to the application of the after-acquired-evidence doctrine. Because we conclude that no triable issues exist regarding this doctrine (see pt. C., post), Morejons objection is immaterial to our analysis, and we do not address it. For similar reasons, it is unnecessary for us to address respondents contentions about Morejons showing, with one exception that we discuss in the text (see pt. C.2., post).
Morejons complaint contains two claims for wrongful termination due, respectively, to physical disability and medical condition under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). In addition, it asserts a claim for wrongful termination in contravention of the public policy stated in FEHA, predicated on the factual allegations underlying her FEHA claims. The crux of her factual allegations was that respondent fired her as soon as it knew that she had cancer, and as the result of this knowledge.
Respondent submitted evidence that it discharged Morejon solely because of a downturn in business. This evidence supports the following version of the underlying facts: Respondents practice and policy is to require new employees to submit proof of eligibility to work, and to terminate employees upon discovery that such proof is fraudulent. In addition, it provides employees with leaves of absence and promulgates written medical leave policies in compliance with the Americans With Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), FEHA, and the California Family Rights Act (CFRA) (Gov. Code, § 12945.2).
When Morejon was hired, nothing in her application or her proof of eligibility to work raised any suspicion of fraud or illegality. A check on the Social Security card indicated that her Social Security number was valid. In addition, Morejon passed the physical examination for new employees with no indication of any disability or injury. Production manager Ellis Voyagis explained to Morejon that her employment was temporary and that he could not be certain how long she would be employed.
During Morejons employment, her work was supervised at different times by Ruben Munoz, Luz Rojero, and Oka Soehono. Morejon sometimes requested time off, and each request was granted. Prior to her termination, she never presented respondent with any documentation showing that she had been diagnosed with cancer or that she was scheduled for surgery in August 2000. The medical appointment slips that she presented to supervisors did not mention cancer, a tumor, surgery, or a need for time off. She never requested any accommodation or stated that she was unable to perform her job.
In mid-2000, respondent experienced a drop in business, and Voyagis was instructed to cut costs. Following a review of employee performance, he and Rojero determined that Morejon was among the least productive employees, and she had a relatively poor attendance record. In early August 2000, Voyagis decided to terminate Morejon and five other employees.
Voyagis met with Morejon on August 10, 2000, to tell her about his decision, convey her final paycheck, and inform her about unemployment benefits. She responded that she was not eligible for such benefits because she had been working illegally, but added that she would pursue medical benefits. This was the first time that Voyagis ever heard that Morejon was ineligible to work.
Morejon conceded that she was not mistreated while she worked for respondent, and that her claims concerned only her termination. She focused on raising triable issues about respondents knowledge of her immigration status and the grounds for her termination. She pointed to her deposition testimony that she told Voyagis that she was ineligible to work when he hired her.
In addition, Morejon submitted deposition testimony and a declaration concerning the circumstances of her termination. According to Morejon, in February 2000, she sought treatment for abdominal pain, and thereafter on eight occasions she requested a full day off for medical appointments. To obtain these absences, she told Voyagis, Rojero, Munoz, and others about the growing evidence that she had uterine cancer and that she needed surgery. On August 11, 2000, she told Voyagis that she was to undergo surgery to remove the tumor on the following Monday. Voyagis initially told her that her job was secure, and then 15 minutes later, he fired her, saying that she was too sick to work.
C. Analysis
The key question is whether summary judgment is properly affirmed on the basis of the after-acquired-evidence rule or unclean hands doctrine.
In general, the after-acquired-evidence rule shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. (Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th at p. 632.) Similarly, wrongful conduct by employees may eliminate or limit their claims against employers under the unclean hands doctrine, which "rests on the maxim that `he who comes into equity must come with clean hands." (Id. at pp. 638-639, quoting Ellenberg v. Brockway, Inc. (9th Cir. 1985) 763 F.2d 1091, 1097.)
As we explain below, triable issues exist regarding the after-acquired-evidence rule (see pt. C.1., post), but not the unclean hands doctrine (see pt. C.2., post). Summary judgment was therefore properly granted under the latter principle.
1. Case Authority
Because existing case law intertwines these two principles, we examine their joint development in the employment context. When addressing FEHA, California courts often look to federal cases interpreting title VII of the Civil Rights Act of 1964 (title VII) (42 U.S.C. § 2000e et seq.), which resembles FEHA in many respects. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498.) We therefore start our inquiry by examining federal law.
In McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 354-355, a 62-year-old employee who had worked for an employer for 30 years was terminated by that employer. She sued the employer, alleging age discrimination under the federal Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. § 621 et seq.). (McKennon, supra, 513 U.S. at pp. 354-355.) During discovery, the employer learned that the employee had made personal copies of confidential materials in violation of the employers policies. (Id. at p. 355.) On summary judgment, the employer conceded that it had terminated the employee for an improper reason, but nonetheless asserted that it was not liable under the ADEA because it would have terminated the employee had it known of the employees misconduct when it occurred. (Ibid.)
The United States Supreme Court in McKennon held that summary judgment was improperly granted. (McKennon v. Nashville Banner Publishing Co., supra, 513 U.S. at p. 356.) Citing case authority regarding the unclean hands doctrine, it reasoned that the after-acquired-evidence rule, like the unclean hands doctrine, must promote the goal of the ADEA and title VII—namely, the elimination of discrimination in the workplace—while respecting the employers legitimate interests in regulating its employees. (Id. at pp. 360-363.) 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. (Id. at p. 615.) During discovery, the employer learned that the employee had made false statements about his work history on his job application, namely, that he had been laid off by a prior employer, and that subsequently he had been self-employed. (Id. at p. 618.) In reality, the prior employer had fired the employee for having an accident in a company van, and the employee had subsequently been fired by a second employer for moonlighting. (Ibid .) Thereafter, the employer obtained summary judgment on the basis of the after-acquired-evidence rule. (Id. at p. 615.)
We reversed, concluding that this rule is not an absolute defense to claims that employment was wrongfully terminated, and that the facts of the case did not support a complete bar to relief, noting that the employee had a spotless and competent work record with the employer until he was terminated. (Cooper v. Rykoff-Sexton, Inc., supra, 24 Cal.App.4th at pp. 617-619.) We reasoned that "[a]lthough resume fraud is a serious social problem, so is termination of employment in violation of antidiscrimination laws or in breach of contract. Automatic forfeiture of all employment rights regardless of the circumstances can be too harsh a penalty in many cases. Where an employer has fired a worker in violation of a statutory ban on discrimination in the workplace, 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." (Id. at pp. 618-619.)
In Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th 620, 627-628, 635, a law firm discharged two employees, and they sued the law firm for, inter alia, wrongful termination under the FEHA, in violation of public policy. During discovery, the law firm learned that one of the employees had improperly retained client-related materials, and that both employees had falsely denied on their job applications that they had ever been convicted of felonies. (Id. at p. 628.) Thereafter, the law firm obtained summary judgment on the basis of the after-acquired-evidence doctrine. (Ibid.) The court in Camp affirmed. (Id. at p. 625.)
The Camp court distinguished McKennon and Cooper, and concluded that the after-acquired-evidence doctrine raised a complete bar to the employees wrongful termination claims. (Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th at pp. 632-641.) In so concluding, it placed special emphasis on the fact that the law firm was a contractor for the Resolution Trust Corporation (RTC), and as such, it had represented that none of its employees had been convicted of a felony. (Id. at pp. 636-639.) Thus, unlike the employees in McKennon and Cooper, whose misconduct or misrepresentations violated only the employers "internal, self-imposed requirements for the job" or its "voluntarily adopted policy," the misrepresentations by the employees in Camp jeopardized the law firms contract with the RTC and potentially subjected it to accusations that it had made false statements to the RTC. (Camp, supra, 35 Cal.App.4th at pp. 636-637.) The Camp court therefore concluded because the misrepresentations went to the heart of the employment relationship and the employees "were not lawfully qualified for their jobs, they [could not] be heard to complain that they improperly lost them." (Id. at pp. 637, 639.)
Like the court in McKennon, the Camp court found additional support for its conclusion in the unclean hands doctrine. Noting that misconduct triggering the unclean hands doctrine must relate directly to the transaction at issue, it reasoned that the employees could not be "heard to complain" that they were improperly denied their positions when they were not lawfully qualified for them. (Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th at pp. 638-639.)
Finally, in Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th 833, 838-839, the rationale in Camp was extended to a situation closely resembling the facts before us. In Murillo, an undocumented alien secured employment through the presentation of fraudulent resident alien and Social Security cards. She then sued her employer for, inter alia, sexual harassment, breach of employment contract, and wrongful termination in violation of public policy, alleging that her supervisor had harassed her, and that she had been terminated shortly after she complained of harassment. (Ibid.)
During discovery, the employer learned that the employee was an undocumented alien, and it sought summary judgment on the basis of the after-acquired-evidence doctrine. (Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th at pp. 839-840.) While this motion was pending, the employee voluntarily dismissed her wrongful termination claims, but not her sexual harassment claim. (Id. at p. 839.) Summary judgment was granted on this claim. (Id. at p. 840.)
Despite the dismissal of the wrongful termination claims, the court in Murillo discussed the application of the after-acquired-evidence rule and unclean hands doctrine to these claims. (Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th at pp. 844-847.) It observed that that the Immigration Reform and Control Act of 1986 (ICRA) prohibits employers from knowingly hiring or continuing to employee unauthorized aliens (8 U.S.C. § 1324a(a), (e), (f)), and thus proper immigration status is a government-imposed employment qualification. (Murillo, supra, 65 Cal.App.4th at p. 845.) As a result of the employees misrepresentations, the employer had submitted an I-9 form attesting to the federal government, under penalty of perjury, that to the best of the employers knowledge, the employee was eligible to work (8 U.S.C. § 1324a(b)). Accordingly, the employees misrepresentations about her immigration status "went to the heart of the employment relationship." (Murillo, supra, 65 Cal.App.4th at p. 845.)
Nonetheless, the Murillo court reached different conclusions about the applicability of the after-acquired-evidence rule and the unclean hands doctrine. (Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th at pp. 845-847.) It determined that the after-acquired-evidence rule would not have supported summary adjudication of the wrongful termination claims, reasoning that there was a triable issue as to whether the employer would have terminated the employee had it known that she was an undocumented alien. (Ibid.) Although nothing indicated that the employer knew that the employee in question was ineligible to work, there was evidence that the employer had hired other undocumented aliens despite knowledge of their immigration status and fraudulent documents. (Ibid.)
However, the Murillo court concluded that the unclean hands doctrine barred the wrongful discharge claims, notwithstanding the triable issues regarding the after-acquired-evidence rule. (Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th at p. 845.) It observed that the employee had obtained and presented false identification cards to secure employment, and that the presentation of these cards led to the submission of a misleading I-9 form to the federal government regarding her eligibility. (Ibid.) Furthermore, it noted that, as in Camp, the employees misrepresentations about her immigration status threatened serious consequences for her employer. (Ibid.)
Finally, the court in Murillo concluded that neither the after-acquired-evidence rule nor the unclean hands doctrine is applicable to claims of sexual harassment for acts occurring in the course of the employment relationship. (Murillo v. Rite Stuff Foods, Inc., supra , 65 Cal.App.4th at pp. 848-851.) Citing Camp, it stated: "It may be that plaintiff cannot complain of having lost her employment, in that she was never entitled to it in the first place. [Citation.] Nonetheless, she was employed by defendant." (Id. at p. 848.) It thus determined that summary judgment on the plaintiffs sexual harassment claim was improper, and that she was entitled to the protection of FEHA and other antidiscrimination statutes against employer misconduct prior to her termination. (Id . at pp. 848-851.)
2. After-Acquired-Evidence Rule
Morejons claims concern only her termination, and thus under Camp and Murillo, the after-acquired-evidence doctrine would bar her claims, provided that there are no triable issues of fact regarding its application. However, here, as in Murillo, there are such issues. Morejon testified in her deposition that at the inception of her employment she told Voyagis that she was not eligible to work. For this reason, the after-acquired-evidence doctrine does not support summary judgment on Morejons claims.
Citing Thompson v. Williams (1989) 211 Cal.App.3d 566, 573, respondent contends that Morejons deposition testimony cannot raise a triable issue because she made conflicting statements during deposition regarding whether she told Voyagis about her eligibility to work when she was hired. We are not persuaded.
Thompson stands for the proposition that a party opposing summary judgment cannot create a triable issue by submitting a self-serving declaration from a witness at odds with the witnesss deposition testimony or discovery responses. (Thompson v. Williams, supra, 211 Cal.App.3d at p. 573.) However, this rule applies when the declaration is prepared after the deposition testimony or discovery responses (see ibid.), and even in such cases, the rule is inapplicable if the declaration provides a compelling explanation of the prior testimony or responses. (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 545-546.) Appellate courts have repeatedly cautioned that uncritical application of the rule can lead to "anomalous results[] inconsistent with the general principles of summary judgment law." (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482; accord, Mason v. Marriage & Family Center, supra, 228 Cal.App.3d at pp. 545-546; Scheiding v.Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77-78.)
Here, the record discloses that on March 5, 2002, Morejon testified in deposition that someone else had filled out her employment application. She then responded affirmatively to the question, "Were you eligible to work as a resident alien at the time of your hire at the company?" When she was asked, "Did you at any time become ineligible as an alien to work at [respondents facility]?," she answered, "I dont understand."
Shortly thereafter, in response to questions about whether she told Voyagis that she was an undocumented alien when she was terminated, she said, "Well, they knew that my papers werent good." At this point, her counsel advised her not answer any further questions on the matter and to assert her privilege against self-incrimination under the Fifth Amendment of the United States Constitution.
The following dialogue occurred:
"Q. Why do you believe that the company knew you were working illegally at the company?
"A. Because I imagine that they noticed that.
"Q. Noticed what?
"A. I dont know, but I imagine that they must have known.
"Q. Must have known what?
"A. I dont know."
Morejons counsel again interposed objections, and the questioning on this matter ended.
On July 23, 2002, before respondent filed its summary judgment motion, Morejons deposition reconvened. Morejon then testified that she knew that her Social Security card was invalid when she applied for employment, and that she told Voyagis that her papers were "no good" when he hired her. Nothing in the record indicates that respondent asked Morejon to clarify her prior testimony.
The record thus indicates that the conflicts within Morejons testimony emerged before respondent filed its motion for summary judgment. Generally, even conflicting evidence submitted by the party opposing summary judgment can raise a triable issue. (Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158.)
Furthermore, "summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence." (Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482.)
In our view, it is unreasonable to infer on summary judgment that Morejon cannot explain the conflicts in her deposition testimony when respondent did not ask her for an explanation during her deposition, and the record otherwise suggests that Morejon had difficulty understanding the questions that generated the conflict. (Cf. Scheiding v. Dinwiddie Construction Co., supra, 69 Cal.App.4th at pp. 77-78 [discovery responses that do not identify party as cause of injury fail to support summary judgment in partys favor when there was little discovery on issue and party asked no questions during deposition it attended].)
3. Unclean Hands
The remaining issue is whether the unclean hands doctrine, unassisted by the after-acquired-evidence rule, bars Morejons wrongful termination claims. As we have explained (see pt. C.1, ante), Camp and Murillo conclude that in suitable circumstances, this doctrine precludes wrongful termination claims under FEHA, as well as claims for wrongful termination in contravention of public policy. Our inquiry, therefore, is whether Morejons claims fall under Camp and Murillo.
We recognize that Government Code section 7285, which was enacted after the judgment but before the parties submitted their appellate briefs (Stats. 2002, ch. 1071, § 1, No. 13 Wests Cal. Legis. Service, pp. 5339-5341), states in subdivision (a) that "[a]ll protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status . . . who have been employed [] in this state," and in subdivision (c) that "[t]he provisions of this section are declaratory of existing law."
Neither party has cited this statute or three similarly-worded statutes enacted at the same time (Civ. Code, § 3339; Health & Saf. Code; § 24000; Lab. Code, § 1171.5), and thus any contention based on them is waived on appeal. For this reason, it is unnecessary for us to address whether the statute is retroactively applicable to the appeal, and if so, whether it fails to respect the supremacy of federal law or is otherwise constitutionally infirm. On these matters, we observe solely that the statute in question appears to change, rather than declare, existing law, and thus the language in its subdivision (c) does not establish that the statute is retroactively applicable absent extrinsic evidence that this was the Legislatures intent. (See Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 603-607.) There is no such evidence in the record before us.
We focus on Murillo, which is closest in point. The discussion in Murillo, although dicta, is persuasive on the issue addressed there, namely, "Is the unclean hands doctrine an independent barrier to wrongful discharge claims when the pertinent employee-employer relationship involves only ICRA violations by the employee?" However, unlike Murillo, there are triable issues here about violations of ICRA by respondent when it hired Morejon.
The question thus before us is whether the unclean hands doctrine bars wrongful termination claims when employee and employer alike violate ICRA at the inception of the employment relationship. We conclude that it does because the parties are in pari delicto. "In pari delicto means, `[i]n equal fault; equally culpable or criminal; in a case of equal fault or guilt." (Jacobs v. Universal Development Corp. (1997) 53 Cal.App.4th 692, 699.) Under the doctrine of unclean hands, "[a] court will neither aid in the commission of a fraud by enforcing a contract, nor relieve one of the two parties to a fraud from its consequences, where both are in pari delicto." (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 8, p. 684.)
Applications of the in pari delicto principle must respect equitable considerations and public policy. As the court explained in Norwood v. Judd (1949) 93 Cal.App.2d 276, 288-289: "The rule that the courts will not lend their aid to the enforcement of an illegal agreement or one against public policy is fundamentally sound. The rule was conceived for the purposes of protecting the public and the courts from imposition. It is a rule predicated upon sound public policy. But the courts should not be so enamored with the Latin phrase `in pari delicto that they blindly extend the rule to every case where illegality appears somewhere in the transaction. The fundamental purpose of the rule must always be kept in mind, and the realities of the situation must be considered. Where, by applying the rule, the public cannot be protected because the transaction has been completed, where no serious moral turpitude is involved, where the defendant is the one guilty of the greatest moral fault, and where to apply the rule will be to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not be applied."
Here, the equities and public policy support the application of Murillo to the situation before us. We see no shift in the balance of equities, notwithstanding any factual differences between the situation in Murillo and the circumstances before us. Morejon, like the employee in Murillo, presented fraudulent proof of work eligibility to secure employment, a violation of ICRA (8 U.S.C. § 1324c(a)).
Morejons culpability in violating ICRA is not lessened by any ICRA violations by respondent. Nor is there unjust enrichment: respondent submitted undisputed evidence that Morejon received her final paycheck when she was terminated, and she does not suggest that she is owed wages earned.
Furthermore, the principal element of wrongdoing triggering the unclean hands doctrine in Murillo is present here. As the court in Murillo indicated, the employees presentation of fraudulent documents to her employer resulted in the submission of a misleading I-9 form to the federal government. The wrongdoing in Murillo thus involved two distinct misrepresentations: the employee misrepresented her immigration status to her employer, which in turn submitted a misleading I-9 form to the federal government.
In our view, the latter misrepresentation is crucial to the rationale in Murillo. As we have explained (see pt. C.1., ante), there was no evidence in Murillo that the employer actually knew that the employee was ineligible to work when it hired her. Nonetheless, the Murillo court acknowledged evidence that the employer might have hired the employee—and presumably, submitted a misleading I-9 form—even if it had been aware of the employees ineligibility to work. This evidence suggests that there were triable issues as to whether the employee in Murillo engaged in actual fraud with respect to the employer, that is, whether the employer actually relied on the validity of the documents in deciding to hire her and submit the I-9 form. We therefore conclude that the Murillo rationale rests primarily on the employees wrongdoing under ICRA, insofar as it facilitated or promoted misrepresentations directed at the federal government.
Quibbles aside, Morejon did not dispute that respondent routinely processes the forms necessary to establish work eligibility. Morejons presentation of fraudulent documents is thus sufficient to bar her wrongful termination claims, regardless of whether respondent relied on the validity of these documents in its subsequent conduct.
Finally, considerations of public policy support the application of the in pari delicto principle. As the United States Supreme Court explained in Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 147-148 [122 S.CT 1275, 1282]: "In 1986, . . . Congress enacted ICRA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. [Citation.] . . . ICRA `forcefully made combating the employment of illegal aliens central to `[t]he policy of immigration law. [Citation.] It did so by establishing an extensive `employment verification system, [citation] designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States [citation]. This verification system is critical to the IRCA regime." Thus, ICRA imposes penalties, including criminal sanctions, upon employers who knowingly hire or continue to employee ineligible workers, as well as upon workers who "subvert the employer verification system by tendering fraudulent documents [citation]." (Id. at p. 148 .)
We conclude that public policy dictates that Morejon and the employee in Murillo alike may not recover for wrongful termination, notwithstanding any differences in knowledge between their respective employers regarding their work eligibility. The presentation of fraudulent documents to an employer attacks ICRAs verification system, regardless of whether the employer is ignorant or knowledgeable of their falsity. If the employer is ignorant, the employer is duped into submitting a misleading I-9 form; if not, the unscrupulous employer is invited to violate ICRA with impunity because the documents support a defense that the employer acted in good faith (8 U.S.C. § 1324a(a)(3)).
Summary judgment was therefore proper.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., EPSTEIN, J.