1

Filed 12/3/13 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

RAYMOND E. HORNE, 

 Plaintiff and Appellant, 

v. 

INTERNATIONAL UNION OF 

PAINTERS AND ALLIED TRADES, 

DISTRICT COUNCIL 16, 

 Defendant and Respondent. 

 A135470 

 (Alameda County 

 Super. Ct. No. RG10534651) 

 The trial court granted summary judgment to respondent District Council 16 

International Union of Painters and Allied Trades on appellant Raymond E. Horne’s 

employment discrimination action. Horne appeals, contending inter alia that the afteracquired evidence doctrine precluded consideration of evidence of the impact of his prior 

conviction on the issue of his qualification for a union organizer position. The council 

seeks sanctions from Horne for filing a frivolous appeal. We deny the request for 

sanctions and affirm the judgment. 

I. FACTS 

 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 AfricanAmerican 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. 
2

 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 filed 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 Housing and Employment. In August 2010, he received a right-tosue 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 employment as an 

organizer because of his prior narcotics conviction. (See 29 U.S.C. § 504(a).) Horne did 

not know of this federal statute until that time. He disputed the council’s claim that the 

statute rendered him ineligible for that position. 

 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 
3

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-yeardisability 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. 

II. AFTER-ACQUIRED EVIDENCE DOCTRINE 

 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. 

 Horne necessarily contends that the trial court erred in granting summary 

judgment to the council on his causes of action for failure to hire. He alleged in his 

complaint that the council’s decision not to hire him was racially motivated. (See Gov. 

Code, § 12940, subd. (a).) In California, the Fair Employment and Housing Act (FEHA) 

makes it unlawful for an employer to refuse to hire an applicant for this reason. (Ibid.; 

Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148 (Sada).) 

Although Horne alleged a cause of action for discrimination in violation of state law, the 

similar purposes and objectives of the FEHA and title VII of the federal Civil Rights Act 
4

of 1964 allow California courts to look to pertinent federal precedent when applying our 

state law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Sada, supra, 

56 Cal.App.4th at p. 148; see 42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940, subd. (a).) 

 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; see 

Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-260 (Burdine); 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 (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 (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; 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).) 

 Before getting to the issue of the council’s motive, Horne must first establish his 

prima facie case. In a failure-to-hire case, the applicant must show inter alia that he or 

she was qualified for the position. (Sada, supra, 56 Cal.App.4th at p. 149; see Burdine, 

supra, 450 U.S. at pp. 253-254, fn. 6, 258; McDonnell, supra, 411 U.S. at p. 802; Guz, 

supra, 24 Cal.4th at p. 355.) The adequacy of his prima facie case is initially a question 

of law for the trial court to resolve. (Caldwell v. Paramount Unified School Dist. (1995) 

41 Cal.App.4th 189, 201-202.) The trial court found that he did not establish this prima 

facie case. On appeal, we consider anew whether he did so. (See Guz, supra, 24 Cal.4th 

at p. 334; Horn, supra, 72 Cal.App.4th at p. 807.) 

 We conclude that Horne did not establish a prima facie case of racial 

discrimination because the undisputed evidence shows that he was unqualified for the 

organizer position for which he was not hired. Federal law bars any person convicted of 
5

a violation of narcotics law from serving as a labor organizer. (Tit. 29, U.S.C. 

§ 504(a)(2).) Horne was not hired for a labor organizer position. In February 2010, the 

council was unaware that he had suffered two prior convictions, one of which was for 

felony possession of narcotics for sale. At trial, the council offered his later admission 

that he had suffered this criminal conviction and documentary evidence from OLMS in 

support of its contention that Horne was unqualified for the position and, thus, could not 

state a prima facie case of discrimination. 

 Horne objects, asserting that neither the trial court nor our court may consider this 

evidence of ineligibility because it did not come to light until after February 2010 when 

the council decided not to hire him. The after-acquired evidence doctrine precludes 

consideration of evidence bearing on the employer’s motive that was unknown to the 

employer before the decision not to hire was made. (McKennon v. Nashville Banner 

Publishing Co. (1995) 513 U.S. 352, 359-360.) The reasoning behind this rule focuses 

on the employer’s motive: an employer could not have been motivated not to hire a job 

applicant based on information that it did not have at the time of the employment 

decision. Unless the information was known to the employer at that time, it cannot bear 

on the issue of whether the decision not to hire the applicant was based on a nondiscriminatory reason. (McKennon v. Nashville Banner Publishing Co., supra, 513 U.S. 

at p. 360.) 

 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.) 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. 
6

 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 the applicant was disqualified as a matter of law at 

the time of the employment decision is relevant, whenever the employer acquired that 

information. (Finegan v. County of Los Angeles, supra, 91 Cal.App.4th at pp. 8-13; see 

also Green v. State of California (2007) 42 Cal.4th 254, 260-262 [FEHA plaintiff must 

prove qualification to show employment discrimination].) The council was entitled to 

present evidence rebutting Horne’s claim that he was qualified for the position, even if 

that evidence would not have been admissible on its reasons for its decision not to hire 

him. (See Finegan v. County of Los Angeles, supra, 91 Cal.App.4th at pp. 11-12.)1

 We 

are satisfied that the trial court properly considered the evidence of Horne’s prior 

conviction and the OLMS. (See Finegan v. County of Los Angeles, supra, 91 

Cal.App.4th at pp. 8-13.)2

 The council’s motion for summary judgment put the issue of Horne’s 

qualifications before the trial court. Its evidence that he was disqualified for the 

organizer position as a matter of law negated an essential element of his prima facie case 

of racial discrimination. (See Wills v. Superior Court, supra, 195 Cal.App.4th at p. 160.) 

In these circumstances, the council was entitled to summary judgment as a matter of law. 

(See Guz, supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 

612; see also Code Civ. Proc., § 437c, subd. (c).) 

III. QUALIFICATION 

 1

 We acknowledge that at least one federal court has rejected this distinction. 

(O’Neal v. City of New Albany (7th Cir. 2002) 293 F.3d 998, 1003.) We find the 

reasoning of Finegan to be more persuasive. 

2

 In light of this conclusion, we necessarily reject Horne’s related contention that 

the trial court erred by not sustaining his objections to this evidence. 
7

 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; Kelly v. First 

Astri Corp. (1999) 72 Cal.App.4th 462, 469-470.) 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.) 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 summary judgment as a matter of law. (See Guz, supra, 24 

Cal.4th at p. 334; Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 612; see also Code Civ. 

Proc., § 437c, subd. (c).) 

 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. (Tit. 29 U.S.C. 

§ 504.) 

 Typically, one convicted of a barring offense is ineligible for employment as a 

union organizer for 13 years, unless his or her citizenship rights have been “fully 

restored. . . .” (Tit. 29 U.S.C. § 504(a).)3

 The OLMS takes the view that Horne’s civil 

 3

 In some contexts, a felon’s citizenship rights are considered restored if he or she 

has the right to vote, to sit on a jury, and to hold public office. (United States v. 

Andaverde (9th Cir. 1995) 64 F.3d 1305, 1309.) As the federal statute applicable to 

Horne’s case requires the full restoration of the citizenship rights and the Andaverde

statute does not, we do not view that case as persuasive to the issue before us. (Compare 

tit. 29, § 504(a) with tit. 18, § 922(g)(1).) 
8

rights have not been fully restored because he cannot possess a firearm.4

 Although not 

binding, we give some deference to an agency interpretation of the meaning and legal 

effect of a statute that it is charged to enforce. The agency’s interpretation is more 

persuasive than binding, as we undertake to fulfill our judicial duty to interpret statutory 

law. Our acceptance of the agency interpretation of the statute turns on those factors that 

support or undermine that statutory construction. (Yamaha Corp. of America v. State Bd. 

of Equalization (1998) 19 Cal.4th 1, 7.) 

 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.) 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 tit. 29, § 504(a).) Applying the express language of that 

federal statute, we conclude that Horne’s civil rights were not fully restored at the time of 

the February 2010 employment decision because he could not then possess a firearm. As 

such, he was not qualified for the organizer position, he cannot show a prima facie case 

of racial discrimination, and the trial court properly granted summary judgment to the 

council and it properly dismissed Horne’s employment discrimination action. 

IV. SANCTIONS 

 The council requests that we award attorney fees and costs on appeal as sanctions 

for bringing a frivolous appeal. An appeal is frivolous when it is disputably without 

merit—when any reasonable attorney would agree that the appeal is totally and 

 4

 While we take judicial notice of the OLMS letters and fact sheet as public 

records, we do not accept the truth of the statements contained therein. The truthfulness 

and proper interpretation of the statements in that document are subject to dispute. (See 

Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Love 

v. Wolf (1964) 226 Cal.App.2d 378, 403.) We conclude that the agency takes a certain 

view of the meaning of its enabling statute, but our legal conclusion of that matter—not 

that of the agency—is what is determinative of the issues in this appeal. 
9

completely meritless. (Computer Prepared Accounts, Inc. v. Katz (1991) 235 Cal.App.3d 

428, 434-435.) Having considered the issue presented on appeal, we find that a 

reasonable attorney could find some merit in Horne’s argument. (See fn. 1, ante.) As the 

appeal was not frivolous, we deny the motion to dismiss this appeal. 

 The motion for sanctions is denied. 

V. DISPOSITION 

 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.) 
10

 _________________________ 

 REARDON, J. 

We concur: 

_________________________ 

RUVOLO, P. J. 
1

Humes, J., Dissenting 

 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 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 (McDonnell Douglas). (See also Clark v. Claremont University Center

(1992) 6 Cal.App.4th 639, 662; Ibarbia v. Regents of University of California (1987) 

191 Cal.App.3d 1318, 1327-1328 (Ibarbia).) I also agree that plaintiffs must typically 

show that they were qualified for the job to satisfy their initial burden of establishing a 

prima facie case of discrimination under this framework.1

 (McDonnell Douglas, at 

p. 802; Clark, at p. 663.) Finally, I agree that title 29 of United States Code section 504 

(section 504) disqualified Horne from holding a union-organizer job at the time of his 

application because his full civil rights had not been restored as a result of his felony 

conviction and ensuing firearms restriction. Nonetheless, I would conclude that this 

disqualification does not prevent Horne from satisfying his initial burden under 

 

1

 Qualification for the position is sometimes also an essential element of the claim itself, 

such as in a claim of disability discrimination under the Fair Employment and Housing 

Act (FEHA). (See Green v. State of California (2007) 42 Cal.4th 254, 262, 264 [the 

FEHA does not protect those people with disabilities “who are not qualified, even with 

reasonable accommodation, to perform essential job duties” based on language of Gov. 

Code, § 12940, subd. (a)(1)].) In contrast, qualification for the position is not an essential 

element of Horne’s claim of race discrimination. (See Gov. Code, § 12940, subd. (b).) 
2

McDonnell Douglas because the disqualification played no part in the council’s decision 

to reject him for the position. 

 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 also U.S. Postal Service Bd. 

of Governors v. Aikens (1983) 460 U.S. 711, 715 [“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].)2

 After all, the point of the prima facie case 

is to screen out unworthy cases, not to screen out worthy ones. 

 Horne’s inability to show that he was qualified for the job does not necessarily 

defeat his claim for race discrimination at the prima facie stage because Horne can still 

establish an inference that the council’s intent was discriminatory since the council was 

unaware of his disqualification when his application was rejected. (See Teamsters v. 

United States (1977) 431 U.S. 324, 358, fn. 44 [to establish prima facie case when 

bringing failure-to-hire claim, a plaintiff must “demonstrate at least that his rejection did 

 

2

 Flexibility in applying the prima facie case requirements is routine in certain failure-tohire cases. For example, one prima facie element requires a showing that the position 

remained open and the employer continued to seek applicants. But this requirement “has 

not been applied strictly in tenure cases” because candidates must serve for several years 

before they are qualified for tenure, and open positions are not always immediately filled. 

(Clark v. Claremont University Center, supra, 6 Cal.App.4th at pp. 639, 663, fn. 5; see 

also Lyons v. England (9th Cir. 2002) 307 F.3d 1092, 1114 [discussing other situations in 

which plaintiffs may be excused from establishing they applied for or were qualified for 

the position sought].) 
3

not result from the two most common legitimate reasons on which an employer might 

rely to reject a job applicant: an absolute or relative lack of qualifications or the absence 

of a vacancy in the job sought”].) 

 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 (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.” (Id. 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-tohire 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 
4

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. 

 The closest failure-to-hire case on point is O’Neal v. City of New Albany (7th Cir. 

2002) 293 F.3d 998 (O’Neal). In O’Neal, the plaintiff claimed he was rejected for a 

position as a police officer because of his race. In granting summary judgment, the trial 

court held that he was unable to satisfy the prima facie requirement that he was qualified 

for the job because a state statute barred applicants who were plaintiff’s age or older from 

becoming police officers. (Id. at p. 1003.) The facts, however, revealed that the statutory 

age limit played no actual part in the hiring decision because the employer believed at the 

time that under federal law it could not enforce the age requirement. It was only later that 

the employer learned that the age requirement was valid. (Id. at p. 1004.) 

 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] unknown to 

the [the employer] at the time the decision was made could not have entered into the 
5

calculus of the decision and would be entirely irrelevant. Such after-acquired data cannot 

explain [the employer’s] decision not to hire [the applicant].” (Id. 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 (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 concluded 

that McKennon, supra, 513 U.S. 352 was inapplicable because the testimony was offered 

to prove that there were reasons supporting the employer’s decision to terminate the 

employee at the time he was terminated—not to provide “cover for an otherwise unlawful 

decision.” (Id. at p. 13.) 

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. 532, 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 
6

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.3

 (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. Jeffers, Mangels, 

Butler & Marmaro (1995) 35 Cal.App.4th 620, 626, 636, 638-639 [barring wrongfultermination 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. 

 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, 

 

3

 A case currently pending before our Supreme Court will address whether an employee 

who alleges disability discrimination in not being recalled after a layoff should be 

disallowed from pursuing his claim because after-acquired evidence shows that he 

submitted a false social security number when he was originally hired. (Salas v. Sierra 

Chemical Co. (2011) 198 Cal.App.4th 29, review granted and depublished Nov. 16, 

2011, S196568.) 
7

“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 (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 back pay]; 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, back pay, 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 back pay 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 practices,” and “ ‘reasonable attorney’s fees and 

costs’ ” are all available remedies and protect the FEHA’s objectives. (Id. at pp. 234-

235.) If Horne is able to prove that he was discriminated against, he should not be 

categorically excluded from seeking any available relief. 
8

 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. 

___________________________ 

Humes, J. 
1
2

Trial Court: Alameda County Superior Court 

Trial Judge: Hon. Marshall Whitley 

Counsel for Appellant: Burton Employment Law 

 Jocelyn Burton 

Counsel for Respondents: Weinberg Roger & Rosenfeld 

 Jannah Vanessa Manansala