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 judgme nt to respondent District Council 16
International Union of Painters and Allie d Trades on appellant Raymond E. Horne’s employment discrimination action. Horne app eals, contending inter alia that the afteracquired evidence doctrine precluded considerati on of evidence of the impact of his prior conviction on the issue of his qualification fo r a union organizer position. The council seeks sanctions from Horne for filing a frivo lous 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 finish ers, 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 me mber 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 th e council, without success. The man chosen to fill the position was white. In February 2010, Horne again applied fo r 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 Febr uary 2010 decision not to hire him. A hearing was conducted before the coun cil, which found that its officials had not violated its bylaws. Horne also filed a comp laint for racial discri mination 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 em ployment discrimination action, alleging
that the council’s failure to hire him was base d 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 impr isonment on May 30, 2003. Horne denied that his citizenship rights, which were revoked as a result of this conv iction, had not been fully restored. His right to vote had been re stored since he was paroled in May 2003, but Horne admitted that he did not possess the ri ght 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 c onviction. (See 29 U.S.C. § 504(a).) Horne did
not know of this federal statute until that tim e. He disputed the council’s claim that the statute rendered him ineligible for that position. In September 2011, the council move d 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 Labo r, Office of Labor-M anagement Standards (OLMS), asserting that federal law rendered Horne ineligible for the position. A “fact3 sheet” issued by OLMS explai ning its interpretation of the statutory prohibition in general terms was attached to one of the letters. Op posing the motion for summary judgment, Horne objected to the proffered evidence of hi s prior conviction, asserting that the council could not rely on evidence obtaine d 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 gr anted the council’s motion for summary judgment. It found that Horne was unabl e 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—evi dence 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 considerin g the council’s proffered evidence of his disqualification for the position. The council co unters that this ev idence was admissible and precluded Horne from establishing a prim a facie case of racial discrimination. Horne necessarily contends that the trial court erred in granting summary judgment to the council on his causes of acti on for failure to hire. He alleged in his complaint that the council’s de cision not to hire him was raci ally motivated. (See Gov. Code, § 12940, subd. (a).) In California, th e Fair Employment a nd 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 di scrimination in violation of state law, the similar purposes and objectives of the FEHA and title VII of the federal Civil Rights Act4 of 1964 allow California courts to look to pertinent federal preceden t 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); Go v. Code, § 12940, subd. (a).) California has adopted the three-stage bur den-shifting approach established by the United States Supreme Court for trying th ese 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 faci e case of discrimina tion 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 burd en 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 counc il’s motive, Horne must first establish his prima facie case. In a failure-to-hire case, th e 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 esta blish a prima facie case of racial discrimination because the undisputed eviden ce shows that he was unqualified for the organizer position for which he was not hired. Federal law bars a ny person convicted of5 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 or ganizer position. In February 2010, the
council was unaware that he had suffered tw o prior convictions, one of which was for felony possession of narcotics for sale. At tr ial, the council offered his later admission
that he had suffered this criminal convic tion and documentary evidence from OLMS in support of its contention that Horne was unqu alified 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 hi re him. The after-acquired evidence doctrine precludes consideration of evidence bearing on the em ployer’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, 35 9-360.) 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 Bann er Publishing Co., supra, 513 U.S. at p. 360.) The after-acquired evidence doctrine a pplies 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.) Th is doctrine renders the proffered evidence inadmissible on the second aspect of the three-part employment decision inquiry on which the council bo re 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 estab lishing 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 conc lude that evidence bearing on his statutory disqualification from a union or ganizing position was not ba rred by the after-acquired
evidence doctrine. Wh en the issue before the trial c ourt is not employer motive but applicant qualification, eviden ce that the applicant was disqua lified 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 disc rimination].) The council was entitled to present evidence rebutting Horn e’s claim that he was qualifie d 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 eviden ce 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 coun cil was entitled to su mmary 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 necessari ly 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 fo r the position. He argues that his civil rights have been restored with in the meaning of title 29, sec tion 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 th e 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 de termine whether the council—as the party seeking summary judgment—has conclusively negated a necessary element of Horne’s case, such that it is enti tled 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 th e right to possess a firearm because he was
a convicted felon. The trial court found th at this disability flowing from his criminal
conviction meant that his civil rights had not been fully restor ed, and thus, that he was not qualified for the union organizer position. However, Horne co ntends that even if the evidence of his prior conviction was properly before the tria l court, that conviction did not bar him from holding the organizer positi on under federal law. (Tit. 29 U.S.C. § 504.) Typically, one convicted of a barring offe nse is ineligible for employment as a union organizer for 13 years, unless his or her citizensh ip rights have been “fully restored. . . .” (Tit. 29 U.S.C. § 504(a).) 3 The OLMS takes the vi ew that Horne’s civil

3 In some contexts, a felon’s citizenship rights are consider ed restored if he or she has the right to vote, to sit on a ju ry, 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 citiz enship rights and the Andaverde statute does not, we do not view th at case as persuasive to th e 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 ag ency interpretation of the meaning and legal effect of a statute that it is charged to en force. 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 agen cy interpretation of the statut e 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 in terpretation 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, § 5 04(a).) Applying the express language of that federal statute, we conclude that Horne’s civ il 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 sh ow a prima facie case of racial discrimination, and the trial cour t properly granted su mmary judgment to the council and it properly dismissed Horne’ s employment discrimination action.
IV. SANCTIONS The council requests that we award attorn ey 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 stat ements 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 c onclude 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 determin ative 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 i ssue presented on appeal, we find that a reasonable attorney could find some me rit 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 pa rty on appeal, is entitled to recover its costs on appeal. (C alifornia 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 empl oyer to intentionally discriminate against a job applicant on th e basis of race when the employer uncovers— long after the discrimination occurred—a reas on 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 qualif ication. I would conclude that Horne is
entitled to have his claim h eard 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 treatm ent, such as Horne’s claim, are analyzed
under the burden-shi fting framework of McDonnell Dougla s 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 pl aintiffs must typically show that they were qualified for the job to satisfy th eir 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 civ il 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 Horn e from satisfying his initial burden under

1 Qualification for the position is sometimes al so an essential elemen t of the claim itself, such as in a claim of disability discrimina tion under the Fair Em ployment and Housing Act (FEHA). (See Green v. State of California (2007) 42 Cal.4th 254, 262, 264 [the FEHA does not protect t hose people with disabilities “who are not qualified, even with reasonable accommodation, to pe rform essential job duties” based on langua ge of Gov. Code, § 12940, subd. (a)(1)].) In c ontrast, qualification for the position is not an essential element of Horne’s claim of race discrimina tion. (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 in tent, “ ‘actions taken by the employer from which one can infer, if such ac tions remain unexplained, that it is more likely than not
that such actions were “based on a discri minatory 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 prim a facie case, however, “is not
intended to be an in flexible 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 w ill vary in [employment discrimination] cases, and the specification . . . of the prima facie pr oof . . . 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 th e job does not necessarily defeat his claim for race discrimination at the prima facie stage because Horne can still
establish an inference that th e council’s intent was discrimi natory 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 [t o 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 pr ima 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 s eek 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, 11 14 [discussing other situations in which plaintiffs may be excuse d from establishing they app lied for or were qualified for the position sought].)3 not result from the two most common legitimat e 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 th e job sought”].)
The conclusion that Horne can establish an inference that the council’s intent was discriminatory, notwithstanding his now-known di squalification, is compelled in part by
McKennon v. Nashville B anner Publishing Co. (1995) 513 U.S. 352 ( McKennon ). In
McKennon , the United States Supreme Court c onsidered 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 “ba rred from all relief when, after her discharge, the employer discover[ed] evid ence of wrongdoing that, in any event, would have led to the empl oyee’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 ar gued 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 th at 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 defe at the employee’s claim. (See ibid. ) McKennon, supra , 513 U.S. 352 was a wrongful-t ermination case, not a failure-tohire case, but that is a distincti on of little logical consequence here. McKennon ’s basic principle—that after-acquired evidence play ing no role in an employer’s adverse employment decision has no bearing on whethe r the employer acted with discriminatory intent—is equally applicable in failure-to-hire cases, incl uding at the prima facie stage where the issue is whether the pl aintiff can establish an inferenc e of discriminatory intent. In the case before us, Horne wa s denied the job for reasons th at are unknown but that do not include his disqualification. Accordingly, we cannot rule out the possib ility that the4 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 applic ants 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 allowi ng 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 unde r [t]itle VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.] even thou gh it later discovers in formation 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” di d not bar the race disc rimination claims—even though, as here, that inform ation established the applican t’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 ab out the applicant’s qualifications unknown to the employer at the time of the job denial has no bearing on determining whether discrimination occurred: “Clearly, in formation about [the a pplicant] unknown to the [the employer] at the time the decision was made could not have entered into the5 calculus of the decision and would be entirely i rrelevant. 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 disa bility, 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 th e 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 supporti ng 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 th at 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-acquire d 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 qua lified” was an element of both his prima facie case and his substantive claim for disability discrimination. (See fn. 1, ante .) Thus, even if the expe rt evidence had been “aft er-acquired” within the meaning of McKennon , supra , 513 U.S. 532, it would none theless 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, “o therwise qualified” and thus protected by the
FEHA. Also not particularly helpful to reso lving the case before us are decisions involving after-acquired evid ence that applicants or em ployees falsified their job qualifications. Courts of appeal have come to different, and often fact-based, results6 when considering whether equitable princi ples—such as the uncl ean-hands doctrine— prevent employees from pursuing wrongful-ter mination 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 plain tiff who lied about her im migration status to obtain job could go forward and would serv e the FEHA’s purposes, but indicating in dicta that any wrongful-termina tion claims would be barred]; Camp v. Jeffers, Mangels,
Butler & Marmaro (1995) 35 Cal.App.4t h 620, 626, 636, 638- 639 [barring wrongfultermination and retaliation clai ms where plaintiffs misrepre sented 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 wr ongful-discrimination claims because “the purpose and effect of the antidiscriminati on 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 be aring on Horne’s case because, unlike the plaintiffs in those cases, Horne en gaged in no misconduct and made no misrepresentations about his qualifications. Disallowing claims such as Horne’s thwarts the policies be hind the laws at issue in this case. It undercuts section 504 by en couraging employers to be unaware of the section’s requirements and to ignore app licant screening. More importantly, it undermines the public policy against employ ment discrimination embodied in the FEHA. Although we now know that Horne was ineligible to ho ld the union-or ganizer job because of section 504, the FE HA not only aims to “resto re aggrieved persons to the position they would ha ve occupied had the discrimi nation not occurred,” but also,

3 A case currently pending be fore our Supreme Court will address whether an employee who alleges disability discrimination in no t being recalled after a layoff should be disallowed from pursuing his cl aim 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 co mpensatory purpose, . . . ‘t o provide effective remedies that will . . . prevent and deter unlawful em ployment practices.’ [Citation.] This forward-looking goal of preventing and dete rring unlawful discrimination goes beyond the tort-like objective of comp ensating 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 stri fe and unrest, deprives the state of the fullest utilization of its capacities for develo pment 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 dis qualification, 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 disqualific ation from the job may significantly limit his potential remedies and might prevent him from recovering damages. (See McKennon , supra , 513 U.S. at pp. 36 1-362 [after-acquired evidence of employee’s misconduct that
would have led to lawful termination if em ployer had known of it admissible to limit remedies, including reinst atement 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 reinstat ement, back pay, or noneconomic damages];
but see O’Neal
, supra , 293 F.3d at pp. 1004-1005 [indicati ng that failure-to-hire plaintiff might be entitled to back pay and noneconomi c damages even where state statute “would have ultimately voided his hiring”].) But regardless whet her damages woul d be awarded, Horne’s case should be allowed to proceed be cause “the unavailability of damages . . . does not make a finding of unlawful di scrimination an empty gesture.” ( Harris, at p. 234.) Rather, “a judicial declaration of employer wrongdoing,” “injunctive relief where appropriate to stop discriminatory prac tices,” 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 wa s discriminated against, he should not be categorically excluded from se eking 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 dis qualifying condition, and the re jected applicant will be unable to establish a prima facie case of a disc riminatory 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.12 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