1

Filed 2/18/15 On remand from Supreme Court

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.

DISTRICT COUNCIL 16 

INTERNATIONAL UNION OF 

PAINTERS AND ALLIED TRADES,

Defendant and Respondent.

 A135470

 (Alameda County Super. Ct.

 No. RG 10534651)

This matter comes before us on remand from the California Supreme Court, which 

granted review of our previous decision in the case. After issuing its opinion in Salas v. 

Sierra Chemical Co. (2014) 59 Cal.4th 407 (Salas), (cert. den. Dec. 8, 2014, ___ U.S. 

___ [135 S.Ct. 755]), the Supreme Court transferred these proceedings back to our court 

for reconsideration in light of Salas. By order dated September 9, 2014, we vacated our 

prior decision and requested that the parties file supplemental briefing pursuant to 

California Rules of Court, rule 8.200(b)(1). Both parties have done so. 

The genesis of this dispute is an employment discrimination action filed by 

appellant Raymond E. Horne (Horne) in which the trial court granted summary judgment 

in favor of respondent District Council 16 International Union of Painters and Allied 

Trades (District Council 16). In particular, the trial court held that—because Horne was 

unable to establish that he was qualified for the union organizer position he 

unsuccessfully sought—he had failed to state a prima facie case of racial discrimination 

in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, 

§ 12900 et seq.) On appeal, Horne contends that the trial court improperly considered 
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after-acquired evidence of a prior narcotics conviction in determining that he was 

ineligible for the organizer job. Horne also claims that, even if the after-acquired 

evidence was admissible, the trial court erred in concluding that the conviction 

disqualified Horne from employment as a union organizer. District Council 16, for its 

part, disagrees with Horne’s assertions, argues that his discrimination claim is preempted 

by the federal Labor-Management Reporting and Disclosure Act (LMRDA), and seeks 

sanctions from Horne for filing a frivolous appeal. Upon due consideration, and in light 

of the holding and rationale in Salas, we reverse the judgment of the trial court. We also 

deny District Council 16’s request for sanctions.

I. BACKGROUND

A. Horne’s Employment History

District Council 16 is a labor organization comprising 16 local unions of drywall 

finishers, glaziers, painters, and floor coverers. One member union is Glaziers Local No. 

718 (Local 718). Horne—an African-American male—was a glazier and a member of 

Local 718. Since 2004, he served as a member of the executive board of Local 718. 

Since 2006, he was an officer of, and the recording secretary for, that union. He was also

a member of District Council 16 (or its predecessors) for many years. 

District Council 16 employs more than 40 people in California. In 2009, Horne 

applied for an organizer position with District Council 16, without success. The man 

chosen to fill the position was white. In February 2010, Horne again applied for an 

organizer position with District Council 16. He was not hired, and the position was again 

filled by a white male. 

In July 2010, Horne challenged District Council 16’s decision not to hire him as a 

union organizer, arguing that it was made in violation of the anti-discrimination 

provisions of the union’s constitution and bylaws. After hearing on July 29, 2010, 

District Council 16 concluded that no violation had occurred. Thereafter, Horne filed a 

complaint for racial discrimination with the California Department of Fair Housing and 

Employment and received a right-to-sue letter in August 2010.
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B. The FEHA Litigation

In September 2010, Horne filed this employment discrimination action, alleging 

that District Council 16’s failure to hire him was based on his race. In January 2011, he 

filed his first amended complaint in the 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 as a result, and that he was discharged from parole with respect to the 

conviction on May 30, 2003. Horne claimed, however, that his citizenship rights, which 

were revoked as a result of his criminal behavior, had been fully restored. Specifically, 

Horne asserted that his rights to vote and serve on a jury had been restored when he 

completed his parole in May 2003, although he admitted that he still did not possess the 

right to carry a firearm. At the time of its February 2010 failure to hire Horne, District 

Council 16 did not know about Horne’s prior narcotics conviction: Neither it nor Local 

718 had ever asked Horne if he had previously been convicted of a felony, and Horne had 

never volunteered the information.

In August and September 2011, having learned of Horne’s conviction, District 

Council 16 demanded repeatedly that Horne dismiss his lawsuit. Specifically, it asserted 

that the LMRDA barred Horne from employment as an organizer because of his criminal 

record. (See 29 U.S.C. § 504(a) (Section 504(a)).)1 District Council 16 argued that, 

since Horne was statutorily disqualified in 2010 from the union organizer position, he 

could not maintain a discrimination suit based on the union’s failure to hire him in that 

 

1

Section 504(a) of the LMRDA provides in relevant part: “No person . . . who has been 

convicted of, or served any part of a prison term resulting from his conviction of, . . . 

violation of narcotics laws . . . shall serve or be permitted to serve . . . as an officer, 

director, trustee, member of any executive board or similar governing body, business 

agent, manager, organizer, employee, or representative in any capacity of any labor 

organization, . . . during or for the period of thirteen years after such conviction or after 

the end of such imprisonment, whichever is later, . . . unless prior to the end of such 

period . . . his citizenship rights, having been revoked as a result of such conviction, have 

been fully restored . . . .” 
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capacity.

2 Horne did not know of the federal statute until it was brought to his attention 

during the course of this litigation. He disputed District Council 16’s claim that the 

statute rendered him ineligible for the union organizer position in 2010.

In September 2011, District Council 16 moved for summary judgment, arguing 

that undisputed facts established Horne’s inability to lawfully occupy the organizer 

position he sought in 2010 and that this circumstance was fatal to his discrimination 

claim. In support of its motion, District Council 16 asked the trial court to take judicial 

notice of November 2011 and January 2012 letters from the United States Department of 

Labor, Office of Labor-Management Standards (OLMS), which asserted that federal law 

rendered Horne ineligible for the union organizer position unless he had somehow 

obtained relief from the disability imposed by the federal statute. A “fact 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 District Council 

16 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 hearing, the trial court granted District Council 16’s motion for summary 

judgment. It found that Horne was unable to establish a prima facie case of 

discrimination because he could not show that he was qualified for the job for which he 

applied. Specifically, the trial court relied on after-acquired evidence that, at the time of 

the employment decision in 2010, federal law prohibited Horne from serving as a union 

organizer. It further found that the 13-year disability period established by that federal 

statute had not been shortened—that is, Horne’s citizenship rights had not been fully 

restored—because he did not have a right to carry a firearm. In reaching these 

conclusions, the trial court necessarily rejected Horne’s objections to the evidence of his 

 

2

To support this assertion, District Council 16 cited, among other things, the Third 

District’s opinion in Salas v. Sierra Chemical Co. (2011) 198 Cal.App.4th 29, superseded 

and reversed after grant of review by Salas, supra, 59 Cal.4th 407.
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prior conviction and the OLMS evidence. In April 2012, Horne’s case was dismissed. 

His timely notice of appeal followed. 

II. DISCUSSION

A. Framework for Analysis and Standard of Review

Horne contends that the trial court erred in granting summary judgment to District 

Council 16 on his cause of action for failure to hire. In his first amended complaint, 

Horne alleged that District Council 16’s decision not to hire him was racially motivated. 

(See Gov. Code, § 12940, subd. (a).) In California, the FEHA makes it unlawful for an 

employer to refuse to hire an applicant for this reason. (Gov. Code, § 12940, subd. (a); 

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 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).) Specifically, 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).) Thus, 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 District Council 16

to offer any legitimate, non-discriminatory reasons for failing to hire him. Thereafter, the

trial court assesses whether any proffered reasons might be pretextual. (See Burdine, 

supra, 450 U.S. at p. 256; Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 

Cal.App.4th at pp. 806-807.)
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Before getting to the issue of District Council 16’s motive, then, Horne must first 

establish his prima facie case. This initial burden is not meant to be an “onerous” one, 

but is designed merely “to eliminate at the outset the most patently meritless claims, as 

where the plaintiff is not a member of the protected class or was clearly unqualified, or 

where the job he sought was withdrawn and never filled.” (Guz, supra, 24 Cal.4th at pp. 

354-355, citing Burdine, supra, 450 U.S. at pp. 253-254.) Although the specific elements 

necessary to establish a prima facie case may vary depending of the underlying facts, 

“[g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected 

class, (2) he was qualified for the position he sought or was performing competently in 

the position he held, (3) he suffered an adverse employment action, such as termination, 

demotion, or denial of an available job, and (4) some other circumstance suggests 

discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355; see also Burdine, supra, 450 

U.S. at pp. 253-254, fn. 6; McDonnell, supra, 411 U.S. at p. 802; Sada, supra, 56 

Cal.App.4th at p. 149.) In the instant proceedings, as stated above, the trial court found 

that Horne did not establish a prima facie case because he failed to show that he was 

qualified for the union organizer position. 

The adequacy of Horne’s prima facie case was 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.) “On appeal after a motion for summary judgment has been 

granted, we review the record de novo, considering all the evidence set forth in the 

moving and opposition papers except that to which objections have been made and 

sustained. [Citation.]” (Guz, supra, 24 Cal.4th at p. 334.) A motion for summary 

judgment is properly granted “if all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Put in the context of this particular 

case, we must determine whether District Council 16—as the party seeking summary 

judgment—has conclusively negated a necessary element of Horne’s case, such that the 

union is entitled to summary judgment. (See Guz, supra, 24 Cal.4th at p. 334.) As we 
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conduct this analysis, any issues of statutory interpretation are also subject to our de novo

review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

B. Horne’s Prima Facie Case

Horne advances two reasons why the trial court erred in concluding that he had 

failed to establish the prima facie elements of his race discrimination claim. First, Horne 

asserts that, despite his 1997 narcotics conviction, he was not disqualified from 

employment as a union organizer in 2010, because, by that time, his citizenship rights 

had been fully restored within the meaning of Section 504(a) of the LMRDA. Second, 

Horne claims that the after-acquired evidence of his narcotics conviction should not have 

been used to negate the elements of his prima facie case, thereby completely foreclosing 

his discrimination claim. We address each argument in turn.

1. Restoration of Citizenship Rights

As stated above, pursuant to Section 504(a), an individual convicted of certain 

enumerated crimes is barred for a 13-year period from holding various union positions, 

including employment as an organizer, “unless prior to the end of such period . . . his 

citizenship rights, having been revoked as a result of such conviction, have been fully 

restored . . . .” Horne argues that he was not disqualified from the union organizer job in 

2010 because his citizenship rights were fully restored for purposes of Section 504(a) 

upon completion of his parole in 2003. District Council 16, in contrast, argues that 

Horne’s citizenship rights have not been fully restored under that statute because his right 

to possess a firearm in California, which was revoked as a result of his felony conviction, 

has never been reinstated. 

Preliminarily, we note that Horne objects to consideration of the OLMS evidence 

on restoration of citizenship rights which was judicially noticed by the trial court, at least 

to the extent it is offered for the truth of its contents. While we take judicial notice of the 

OLMS fact sheet and letters as public records, we do not accept the truth of the 

statements contained therein, which are obviously subject to dispute. (See Evid. Code, 

§§ 452, subd. (c), 459, subd. (a); Herrera v. Deutsche Bank National Trust Co. (2011) 

196 Cal.App.4th 1366, 1375.) More importantly, we do not find the OLMS materials 
8

offered particularly helpful as they do not actually reach the issue of whether Horne’s 

citizenship rights have been fully restored for purposes of Section 504(a). For instance, 

the OLMS fact sheet simply states: “Citizenship rights that may be revoked and restored

as the result of state criminal convictions generally include the rights of a state citizen in 

the jurisdiction of conviction to vote in public elections, to serve in public office, to sit on 

a jury, and to possess firearms” (italics added). Thus, it makes no definitive statement 

regarding the restoration of citizenship rights based on a California conviction. Further, 

the November 2011 opinion letter from OLMS says only that Horne is disqualified from 

holding various union positions for 13 years from the date of his conviction or the date of 

his release from any resulting imprisonment, whichever was later, unless his “citizenship 

rights were revoked as a result of such conviction and have been fully restored.” This 

statement simply parrots the statutory language without resolving the question of 

statutory interpretation here at issue. Finally, the January 2012 OLMS opinion letter 

merely references the OLMS fact sheet and indicates an understanding that Horne’s right 

to carry a firearm has not been restored, without reaching any conclusion as to the 

consequence of that fact. Under these circumstances, the OLMS materials supplied by 

District Council 16 are of little value in the resolution of this matter. 

Nor do we find particularly useful the case law discussing the restoration of “civil 

rights” in the context of 18 U.S.C. § 922(g)(1) (Section 922(g)(1)), the federal statute 

criminalizing the possession of a firearm by a felon.3 (See, e.g., United States v. 

Andaverde (9th Cir. 1995) 64 F.3d 1305 (Andaverde); United States v. Cassidy (6th Cir. 

1990) 899 F.2d 543 (Cassidy); Enos v. Holder (E.D. Cal. 2012) 855 F.Supp.2d 1088.) 

When determining what constitutes a prior felony conviction for purposes of Section 

922(g)(1), federal law looks to the “law of the jurisdiction in which the proceedings were 

held” and expressly excludes “[a]ny conviction which has been expunged, or set aside or 

 

3 At least one court has treated the terms “civil rights” and “citizenship rights” as 

interchangeable for purposes of the restoration analysis. (See United States v. Cullison

(D.D.C. 2006) 422 F.Supp.2d 65, 73, fn. 13 (Cullison).) Because we do not find the 

Section 922(g)(1) precedent dispositive, we need not decide the issue here.
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for which a person has been pardoned or has had civil rights restored . . . unless such 

pardon, expungement, or restoration of civil rights expressly provides that the person may 

not ship, transport, possess, or receive firearms.” (18 U.S.C. § 921(a)(20), italics added.) 

Although the federal statute does not define “civil rights” for purposes of this exemption, 

“courts have held . . . that the civil rights relevant under the above-quoted provision are 

the rights to vote, hold office, and serve on a jury.” (Logan v. United States (2007) 552 

U.S. 23, 28; see also Andaverde, supra, 64 F.3d at p. 1309.) 

Horne argues that since the right to bear arms is not included within these 

identified civil rights, it is irrelevant to the determination of whether his citizenship rights 

have been restored for purposes of Section 504(a). However, Section 922(g)(1) excludes 

convictions for which a person “has had civil rights restored.” (18 U.S.C. § 921(a)(20).) 

Section 504(a), in contrast, requires the full restoration of citizenship rights. Under such 

circumstances, prior cases analyzing Section 922(g)(1) are not persuasive with respect to 

the issue before us. (See Cassidy, supra, 899 F.2d at p. 549 [discussing restoration of 

civil rights in the context of Section 922(g)(1) as follows: “We do not read into the 

statutory language, however, a requirement that there be a ‘full’ restoration of rights. If 

Congress had intended a requirement of a complete restoration of all rights and privileges 

forfeited upon conviction, it could easily have so stated”].) 

In fact, the parties have cited no authority, nor have we discovered any, discussing 

the meaning of Section 504(a)’s full restoration of citizenship rights in the context of a 

California criminal conviction. We note, however, that the federal sentencing guidelines 

applicable to Section 504(a) state that “a disqualified person whose citizenship rights 

have been fully restored to him or her in the jurisdiction of conviction, following the 

revocation of such rights as a result of the disqualifying conviction, is relieved of the 

disability.” (18 USCS Appx § 5J1.1, italics added.) Moreover, in a case involving the 

Employee Retirement Income Security Act of 1974 (ERISA)—a statute which contains 

an employment disqualification provision identical to Section 504(a)—a federal district 

judge held that an individual convicted of federal crimes must show restoration of 

citizenship rights under federal law in order to be relieved of his employment disability. 
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(Viverito v. Levi (N.D. Ill. 1975) 395 F. Supp. 47, 48.) Although the Viverito plaintiff 

had state citizenship rights restored upon the successful termination of his probation, his 

federal citizenship rights—including his rights to sit on a jury and to possess firearms—

had not been restored. (Ibid.) He therefore remained subject to employment 

disqualification under ERISA. (Id. at pp. 48-49.) The same result was reached in a 

similar case brought under Section 504(a), itself. (Cullison, supra, 422 F.Supp. at pp. 73-

74 [noting that “the greater weight of the authority suggests that a state’s restoration of 

citizenship rights does not restore citizenship rights lost pursuant to a federal 

conviction”].) Thus, it seems clear that the relevant inquiry under Section 504(a) is 

whether Horne’s citizenship rights have been fully restored under California law.

This does not necessarily mean, however—as Horne urges—that only citizenship 

rights expressly recognized by the California Constitution are relevant to a restoration 

analysis under Section 504(a). In particular, Horne argues that, since the right to bear 

arms is not a right granted by the California Constitution, his inability to possess a 

firearm is irrelevant to the question of whether his citizenship rights have been fully 

restored in California for purposes of Section 504(a). (See Kasler v. Lockyer (2000) 23 

Cal.4th 472, 481 [noting that no mention is made in the California Constitution of the 

right to bear arms].) We disagree. As a citizen of the United States, Horne possesses an 

individual right to bear arms. (McDonald v. City of Chicago (2010) 561 U.S. 742, 748-

750; District of Columbia v. Heller (2008) 554 U.S. 570, 595.) As a result of his 1997 

felony narcotics conviction, Horne lost this right under California law. (Pen. Code, 

§ 29800, subd. (a)(1).) And, all parties agree that it has not been restored. The most 

reasonable interpretation of the federal law precluding Horne’s employment until his 

citizenship rights have been fully restored is that he must have reacquired, under relevant 

California law, all of the citizenship rights he lost pursuant to that law as a result of his 

conviction. We therefore conclude, applying the express language of Section 504(a), that 

Horne’s citizenship rights were not fully restored at the time of the February 2010 

employment decision because, under California law, he remained unable to possess a 

firearm.
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2. After-Acquired Evidence Doctrine

District Council 16’s summary judgment motion was based on the single argument 

that Horne could not establish a prima facie case of discrimination because he was 

disqualified under federal law from the union organizer position at issue due to his 1997 

narcotics conviction. As stated above, the record is clear that District Council 16 was 

unaware of Horne’s conviction in 2010 when it made its decision not to hire him as an 

organizer. It is similarly undisputed that Horne was unaware of the federal statute until it 

was brought to his attention during the course of this litigation. The parties have argued 

extensively regarding the appropriateness of using the “after-acquired” evidence of 

Horne’s narcotics conviction to negate his prima facie case, thereby foreclosing all 

possibility for relief under the FEHA.4This dispute, however, was essentially put to rest 

in June 2014, when the California Supreme Court issued its opinion in Salas, holding, 

among other things, that “the doctrines of after-acquired evidence and unclean hands are 

not complete defenses to a worker’s claims under California’s FEHA, although they do 

affect the availability of remedies.” (Salas, supra, 59 Cal.4th at p. 414.)

In Salas, the plaintiff (Salas) had worked on a seasonal basis for a number of 

years for Sierra Chemical Company (Sierra), a business which manufactures, packages 

and distributes chemicals for treating water, including swimming pool water. (Salas, 

supra, 59 Cal.4th at p. 415.) When demand for its products decreased in the fall and 

winter, Sierra typically laid off many of its production line employees. However, those 

laid-off workers were generally rehired in the spring when consumer demand increased. 

(Ibid.) Salas injured his back twice in 2006 and was, at times, only able to perform 

modified duties. He filed a worker’s compensation claim with respect to his workplace 

injury. Thereafter, Salas was told by Sierra in 2007 that he would not be re-hired after 

the seasonal layoffs unless he obtained a doctor’s release indicating that he had been 

 

4

“The doctrine of after-acquired evidence refers to an employer’s discovery, after an 

allegedly wrongful termination of employment or refusal to hire, of information that 

would have justified a lawful termination or refusal to hire.” (Salas, supra, 59 Cal.4th at 

p. 428.)
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cleared for full duty. (Id. at p. 416.) In response, Salas filed suit against Sierra under the 

FEHA, claiming that Sierra failed to provide reasonable accommodations for his 

disability and that the chemical company’s refusal to re-hire him was in retaliation for the 

filing of his workers compensation claim and for his being disabled. (Id. at pp. 416-417.) 

While preparing for trial, Sierra investigated the authenticity of the documents

Salas had provided to the company regarding his immigration status and eligibility to 

work in the United States. It discovered that Salas had apparently used another person’s 

Social Security number when seeking employment with Sierra. (Salas, supra, 59 Cal.4th 

at pp. 415, 417.) Thereafter, Sierra filed a motion for summary judgment, arguing that it 

was entitled to judgment as a matter of law, under the legal doctrines of after-acquired 

evidence and unclean hands, based on Salas’ fraudulent use of another person’s Social 

Security information to obtain employment. (Ibid.) After the trial court ultimately 

granted Sierra’s summary judgment motion, the appellate court affirmed, concluding that 

Salas’ causes of action were barred under both the after-acquired evidence doctrine and 

the doctrine of unclean hands. (Id. at p. 418.)

The California Supreme Court reversed. With respect to the doctrine of afteracquired evidence, the high court observed that the FEHA “seeks ‘to protect and 

safeguard the right and opportunity of all persons to seek, obtain, and hold employment 

without discrimination or abridgment on account of race, religious creed, color, national 

origin, ancestry, physical disability, mental disability, medical condition, genetic 

information, marital status, sex, gender, gender identity, gender expression, age, sexual 

orientation, or military and veteran status.’ (Gov. Code, § 12920; see id., § 12940, 

subd. (a) [unlawful employment practice for employer to refuse to hire or to discharge a 

person on any of these bases].)” (Salas, supra, 59 Cal.4th at p. 430.) It also noted that, 

“[i]n after-acquired evidence cases, the employer’s alleged wrongful act in violation of 

the FEHA’s strong public policy precedes the employer’s discovery of information that 

would have justified the employer’s decision.” (Ibid.) Thereafter, adopting the 

reasoning of the United States Supreme Court in McKennon v. Nashville Banner 

Publishing Co. (1995) 513 U.S. 352 (McKennon), the Salas Court concluded that “[t]o 
13

allow such after-acquired evidence to be a complete defense would eviscerate the public 

policies embodied in the FEHA by allowing an employer to engage in invidious 

employment discrimination with total impunity.” (Salas, supra, 59 Cal.4th at p. 430.) 

Given all of these circumstances, the high court determined that after-acquired evidence 

cannot be used as an absolute bar to a worker’s FEHA claims. (Salas, supra, 59 Cal.4th 

at p. 414.) 

This does not mean, however, that after-acquired evidence has no relevance in a 

FEHA case. Rather, again relying on McKennon, the Salas Court went on to hold that 

after-acquired evidence should be considered when determining the appropriate remedies 

for a FEHA violation. Specifically, the Court declared: “In after-acquired evidence 

cases, . . . both the employee’s rights and the employer’s prerogatives deserve 

recognition. The relative equities will vary from case to case, depending on the nature 

and consequences of any wrongdoing on either side, a circumstance that counsels against 

rigidity in fashioning appropriate remedies in those actions . . . .” (Salas, supra, 59 

Cal.4th at p. 430.) Under such a balancing of the equities, the high court concluded that 

remedies such as reinstatement, promotion, and back pay for periods after the employer 

learned of the after-acquired evidence would, generally speaking, be inappropriate. (Id.

at pp. 430-431.) Rather, “[t]he remedial relief generally should compensate the employee 

for loss of employment from the date of wrongful discharge or refusal to hire to the date 

on which the employer acquired information of the employee’s wrongdoing or 

ineligibility for employment.” (Id. at p. 431.) In summary, the Salas Court opined: 

“Fashioning remedies based on the relative equities of the parties prevents the employer 

from violating California’s FEHA with impunity while also preventing an employee or 

job applicant from obtaining lost wages compensation for a period during which the 

employee or applicant would not in any event have been employed by the employer. In 

an appropriate case, it would also prevent an employee from recovering any lost wages 

when the employee’s wrongdoing is particularly egregious.” (Ibid.)

Horne, unsurprisingly, argues that Salas is on all fours with the present case and 

mandates that that the trial court’s grant of summary judgment be reversed. District 
14

Council 16, in contrast, offers several arguments suggesting why the reach of Salas

should be limited, none of which we find persuasive. For instance, District Council 16 

attempts to distinguish Salas by arguing that the case did not consider the admission of 

after-acquired evidence in the context of the three-stage burden-shifting approach 

applicable in FEHA cases. While it is true that the case does not expressly address the 

burden-shifting analysis adopted in California , Salas unambiguously states that afteracquired evidence cannot be used to completely bar a worker’s FEHA claims. (Salas, 

supra, 59 Cal.4th at p. 414.) Allowing such evidence to vitiate a plaintiff’s prima facie 

case would do precisely that. Moreover, Salas makes clear that after-acquired evidence 

is only relevant in the damages phase of a FEHA proceeding. (Id. at pp. 414, 430-431.) 

Since the burden-shifting analysis is applicable solely in the liability phase, it was 

unnecessary for the Salas Court to specifically address the impact of its holding on that 

analysis. (See Avina v. Target Corp. (C.D. Cal. July 18, 2014) 2014 U.S. Dist. LEXIS 

101470, pp. 22-23 [citing Salas for proposition that after-acquired evidence is only 

applicable in determining the particular remedies available to a plaintiff after a conclusive 

determination has been reached as to liability].) Rather, the clear import of Salas is that 

after-acquired evidence is simply irrelevant during all phases of the three-stage burdenshifting approach designed to establish liability. 

Nor do we find availing District Council 16’s attempt to distinguish Salas on 

various factual grounds. For instance, District Council 16 notes that, unlike Salas, Horne 

was not employed by District Council 16 for years despite his disqualifying criminal 

history, nor was he rehired repeatedly regardless of that history. District Council 16 also 

highlights the lack of any evidence in this case that it had a practice of violating Section 

504(a) of the LMRDA. Finally, District Council 16 avers that the strong public policy to 

provide employment protections to undocumented workers does not apply in this case as 

there is no corresponding public policy interest in protecting convicted felons’ rights to 

employment by labor organizations. We doubt that the state’s strong interest in providing 

employment conditions free of invidious discrimination applies any less to citizens 

previously convicted of crimes than it does to undocumented workers. Moreover, we 
15

could recite additional facts which, in contrast to those identified by District Council 16,

would tend to support recovery by Horne if discrimination is ever proved (such as his 

apparent lack of knowledge that his employment as a union organizer would violate 

federal law). However, under Salas’ clear mandate, none of these factors are relevant 

during the liability phase of this FEHA litigation and therefore cannot be used as a basis 

for denying Horne relief at this stage in the proceedings. (See Salas, supra, 59 Cal.4th at 

p. 431 [disputed facts related to after-acquired evidence “could affect application of the 

after-acquired evidence doctrine and thus the remedies available to plaintiff employee,”

italics added].) Instead, District Council 16’s factual arguments would be more 

appropriately addressed—should a conclusive determination ever be reached as to 

liability—during the trial court’s balancing of the equities for purposes of fashioning 

appropriate remedies. 

The trial court in this case impermissibly relied on the after-acquired evidence of 

Horne’s felony conviction to support its grant of summary judgment, concluding that, 

since Horne was not qualified for the position of union organizer in 2010, he could not 

establish a prima facie case of discrimination. This determination was clearly contrary to 

the Salas Court’s express holding that after-acquired evidence cannot be used as an 

absolute bar to a worker’s FEHA claims. (Salas, supra, 59 Cal.4th at p. 414.) Under 

such circumstances, the trial court’s grant of summary judgment must be reversed. 

C. Preemption

As a final matter, we address District Council 16’s argument—made in passing in 

its initial briefing and argued more vigorously in the wake of Salas—that Horne’s 

discrimination claim, even if it would otherwise be permitted to proceed, is preempted by 

the LMRDA. In particular, District Council 16 asserts that these proceedings are subject 

to express preemption pursuant to subdivision (a) of section 532 of the LMRDA (Section 

523(a)); that application of the FEHA to these facts conflicts with the LMRDA because it 

constitutes an obstacle to accomplishing federal objectives (obstacle preemption); and 

that the LMRDA also directly conflicts with the FEHA because, in the present context, 

compliance with both laws is impossible (direct conflict preemption). (Cf. Salas, supra, 
16

59 Cal.4th at p. 421.) In considering these varied arguments, we are mindful that “the 

presumption is against federal preemption of state law. In preemption analysis, therefore, 

‘courts should assume that “the historic police powers of the States” are not superseded 

“unless that was the clear and manifest purpose of Congress.” ’ ” (Ibid, quoting Arizona 

v. United States (2012) 567 U.S. ___ [132 S.Ct. 2492, 2501].)

Turning first to District Council 16’s express preemption claim, we note that the 

LMRDA has an express preemption provision, which states as follows: “Except as 

explicitly provided to the contrary, nothing in this Act shall reduce or limit the 

responsibilities of any labor organization or any officer, agent, shop steward, or other 

representative of a labor organization, or of any trust in which a labor organization is 

interested, under any other Federal law or under the laws of any State, and except as 

explicitly provided to the contrary, nothing in this Act shall take away any right or bar 

any remedy to which members of a labor organization are entitled under such other 

Federal law or law of any State.” (29 U.S.C. § 523(a).) District Council 16 argues that 

this is a situation “explicitly provided to the contrary” for purposes of express preemption 

because Horne was expressly prohibited by Section 504(a) from employment as a union 

organizer. We disagree. 

As stated above, California law imposes a responsibility on employers, including 

labor organizations, to refrain from refusing to hire a prospective employee on the basis 

of race. (Gov. Code, § 12940, subd. (a).) Nothing in the LMRDA expressly limits the 

responsibilities of a labor organization to make hiring decisions free of racial 

discrimination. (Cf. Smith v. International Brotherhood of Electrical Workers (2003) 109 

Cal.App.4th 1637, 1653 (Smith) [“[n]othing in the LMRDA even remotely condones the 

practice of age or disability discrimination on the part of elected union officials”].) Thus, 

“[b]ecause the LMRDA does not ‘explicitly provide[] to the contrary,’ these 

responsibilities are neither ‘reduced’ nor ‘limited’ by the provisions of the act.” (Fn. 

omitted.) (Cf. ibid.) Indeed, if anything, the LMRDA’s catch-all anti-preemption 

provision compels the conclusion that Congress did not generally intend to preempt such 

state anti-discrimination laws. (See Brown v. Hotel & Rest. Employees & Bartenders 
17

Inter. Union Local 54 (1984) 468 U.S. 491, 505-506 (Brown) [by “affirmatively 

preserving the operation of state laws,” the LMRDA express preemption provision 

“indicates that Congress necessarily intended to preserve some room for state action 

concerning the responsibilities and qualifications of union officials”].)5

For similar reasons, we find equally unpersuasive District Council 16’s assertion 

of obstacle preemption. Obstacle preemption “exists when the state regulation would 

frustrate the federal law’s purpose.” (Salas, supra, 59 Cal.4th at p. 425.) “Whether there 

is obstacle preemption is determined by ‘examining the federal statute as a whole and 

identifying its purpose and intended effects.’ [Citation.] If the federal law’s purpose 

cannot otherwise be achieved, ‘ “the state law must yield to the regulation of Congress 

within the sphere of its delegated power.” ’ [Citation.]” (Ibid.) 

Congress enacted the LMRDA “as remedial legislation intended to combat union 

corruption and protect the rights of union members.” (Cullison, supra, 422 F.Supp.2d at 

pp. 66-67; see also Finnegan v. Leu (1982) 456 U.S. 431, 435-436 [the LMRDA was a 

“product of congressional concern with widespread abuses of power by union 

leadership;” the LMRDA’s “primary objective” was to ensure that “unions would be 

democratically governed and responsive to the will of their memberships”].) In fact, the 

statute, itself, indicates that it was a reaction to “a number of instances of breach of trust, 

corruption, disregard of the rights of individual employees, and other failures to observe 

high standards of responsibility and ethical conduct.” (29 U.S.C. § 401(b).) Thus, 

Congress enacted the provisions of the statute to “eliminate or prevent improper practices 

on the part of labor organizations, employers, labor relations consultants, and their 

 

5 As District Council 16 correctly highlights, the final clause of Section 523(a) speaks in 

terms of rights and remedies available to “members of a labor organization” rather than to 

employees or prospective employees. (29 U.S.C. § 523(a).) We do not find this 

distinction particularly useful to our express preemption analysis. Regardless of whether 

or not Section 523(a) applies to Horne as a union member and/or as a prospective 

employee, it evinces a general intent not to preempt state laws absent an explicit 

statement to the contrary. No such explicit statement has been made with respect to state 

anti-discrimination laws. 
18

officers and representatives.” (29 U.S.C. § 401(c).) The actual provision of the LMRDA 

at issue in this case—Section 504(a)—attempts to further this general purpose “by 

preventing individuals convicted of specified crimes from pursuing employment with 

labor organizations in certain enumerated capacities.” (Cullison, supra, 422 F.Supp.2d at 

p. 67; see 29 U.S.C. § 504(a).) As the Cullison court opined: “The point is that Congress 

intended to secure high standards of responsibility and ethical conduct in labor 

organizations by locking out, at least for a period of 13 years after conviction, those 

people who demonstrate an inability to abide by such standards, as evidenced by their 

commission of one of the specified crimes.” (Cullison, supra, 422 F.Supp.2d at p. 68.)

It is hard to understand how the laudable purpose of the LMRDA—to hold labor 

organizations to high standards of responsibility and ethical conduct—would somehow 

be thwarted by allowing a prospective union employee to pursue a state-law claim for

race discrimination against a labor union. In fact, far from frustrating the purpose of the 

LMRDA, allowing such claims would seem to advance the policies underlying the 

federal statute by requiring that hiring decisions by unions be made in an ethical and 

responsible manner. As the Smith court noted when concluding that the LMRDA did not 

preempt FEHA claims of age and disability discrimination: “It would be ironic indeed if 

a law enacted to curb ‘abuses of power by union leadership’ was used instead to protect 

such abuses.” (Smith, supra, 109 Cal.App.4th at p. 1649, fn. omitted.) Similarly, in 

Bloom v. Gen. Truck Drivers Union, Local 952 (9th Cir. 1986) 783 F.2d 1356 (Bloom), 

the Ninth Circuit found that a California wrongful termination cause of action brought by 

a former union employee who had been terminated for refusing to illegally alter a 

meeting’s minutes to hide his superior’s embezzlement was not preempted by the 

LMRDA. Noting that the state’s interest in allowing a wrongful discharge action under 

these circumstances was strong, the Bloom court concluded that “[p]rotecting such a 

discharge by preempting a state cause of action based on it does nothing to serve union 

democracy or the rights of union members; it serves only to encourage and conceal such 

criminal acts and coercion by union leaders.” (Id. at p. 1362.)
19

In Salas, the Supreme Court considered the applicability of obstacle preemption to 

Salas’ FEHA claim and determined that neither the FEHA nor California’s Senate Bill 

No. 1818—which extends the worker protection provisions of state employment and 

labor laws to all workers regardless of immigration status—frustrated the purposes of 

federal immigration law such that obstacle preemption was warranted. (Salas, supra, 59 

Cal.4th at pp. 418-421, 425-427; see also Gov. Code, § 7285.) In reaching this 

conclusion, the Salas Court was swayed by the fact that “not allowing unauthorized 

workers to obtain state remedies for unlawful discharge . . . would effectively immunize 

employers that, in violation of fundamental state policy, discriminate against their 

workers on grounds such as disability or race.” (Salas, supra, 59 Cal.4th at p. 426.) 

Moreover, the high court found it “highly unlikely” that an unauthorized alien’s decision 

to seek employment using false documents in violation of federal law would be based in 

any significant way on the availability of state law remedies for unlawful discharge, 

especially since pursuing such remedies might lead to the discovery of his or her 

wrongdoing and subject him or her to criminal prosecution. (Id. at pp. 425-426.) In 

contrast, the Court saw a “ ‘strong incentive’ ” for employers to exploit a black market 

for illegal labor if such workers were not afforded state labor law protections, a situation 

which would “frustrate rather than advance” the policies underlying federal immigration 

law. (Id. at p. 426.)

The Salas Court’s obstacle preemption analysis buttresses our conclusion that this 

is not a situation in which application of the FEHA would frustrate the purpose of the 

LMRDA, thereby mandating a finding of obstacle preemption.

6

 Here, as in Salas, 

precluding FEHA remedies would effectively immunize employers that discriminate 

against their workers in violation of fundamental state policy. (Cf. Salas, supra, 59 

Cal.4th at p. 426.) Moreover, as in Salas, it seems highly unlikely that an individual’s 

 

6 Arguably, the potential preemption of state-law remedies could be analyzed under 

theories of obstacle preemption. However, we believe such remedy preemption is most 

appropriately discussed in the context of direct conflict preemption, which we consider in 

a later portion of this opinion.
20

decision to seek union employment in violation of Section 504(a) of the LMRDA would 

be based in any significant way on the availability of state law FEHA remedies, 

especially since pursuing such remedies might subject him or her to criminal prosecution. 

(Cf. id. at pp. 425-426.) While we agree with District Council 16 that the narrow scope 

and application of Section 504(a) makes it unlikely to create any measurable impact on 

the market for union labor, we nevertheless find that affording state labor law protections 

in this context would advance the policies underlying the LMDRA. Indeed, under the 

present circumstances, if Horne’s FEHA claim was barred, District Council 16 would in 

effect be rewarded for its ignorance of Section 504(a)’s requirements and its failure to 

screen out disqualified applicants, an outcome which would clearly contravene the 

underlying purpose of the LMRDA.

7

 

Finally, we address District Council 16’s claim of direct conflict preemption. 

Such preemption occurs when state law conflicts with federal law such that compliance 

with both laws is impossible. (Salas, supra, 59 Cal.4th at p. 423.) In the present case, 

compliance with both the FEHA and Section 504(a) is, as a general matter, entirely 

possible, as a labor organization could both refuse to hire disqualified felons and make its 

hiring decisions free from any discrimination actionable under the FEHA. 

However, in Salas, the Supreme Court discussed direct conflict preemption in the 

context of available remedies for a FEHA violation and found certain otherwise available 

 

7 District Council 16’s attempt to distinguish this case from Salas based on the fact that 

there is no California law which expressly extends the worker protection provisions of 

state employment and labor laws to convicted felons is not well taken. Pursuant to 

section 12940 of the Government Code, it is unlawful “[f]or an employer, because of the 

race, religious creed, color, national origin, ancestry, physical disability, mental 

disability, medical condition, genetic information, marital status, sex, gender, gender 

identity, gender expression, age, sexual orientation, or military and veteran status of any 

person, to refuse to hire or employ the person.” (Gov. Code, § 12940, subd. (a), italics 

added.) Clearly, “any person” includes citizens who have previously been convicted of a 

crime. Thus, a statute such as Senate Bill 1818 (which extends such protections to all 

workers regardless of immigration status) would be surplusage.
21

state-law remedies to be preempted by federal immigration law. (Salas, supra, 59 

Cal.4th at pp. 423-425.) Specifically, the Salas Court distinguished between two 

timeframes: “(1) the period dating from the occurrence of the employer’s alleged 

wrongful act until the employer’s discovery of the employee’s ineligibility under federal 

immigration law to work in the United States (the prediscovery period) and (2) the period 

after the employer’s discovery of that ineligibility (the postdiscovery period).” (Id. at 

pp. 423-424.) Because federal immigration law makes it a crime for an employer to 

continue to employ a worker known to be an unauthorized alien, the Court concluded that 

any state law award that compensated such a worker for loss of employment during the 

postdiscovery period was preempted because it would be in direct conflict with federal 

law. (Id. at p. 424 [noting that such an award would impose liability on an employer for 

failing to perform an act that is “expressly prohibited by federal law”].) 

In contrast, the Salas Court found no direct conflict preemption for an award of 

lost wages during the prediscovery period. The Court reasoned that—although an 

unauthorized alien worker who uses false documents to gain employment is guilty of 

violating federal immigration law—that federal law “does not prohibit an employer from 

paying, or an employee from receiving, wages earned during employment wrongfully 

obtained by false documents, so long as the employer remains unaware of the employee’s 

unauthorized status. Thus, allowing recovery of lost wages for the prediscovery period 

does not produce an ‘inevitable collision between the two schemes of regulation.’ ” (Id. 

at pp. 424-425.) 

Applying the reasoning of Salas in the present case, we conclude that the LMRDA 

would preempt any award of lost wages (or other prospective remedy such as instatement 

or front pay) during the postdiscovery period. Mirroring federal immigration law, 

Section 504(a) of the LMRDA make it a crime for an employer-labor organization to 

knowingly hire or retain an individual who is disqualified under the statute from holding 

certain enumerated union positions. (See 29 U.S.C. § 504(a) [“[n]o person shall 

knowingly hire, retain, employ, or otherwise place any other person to serve in any 

capacity in violation of this subsection”]; see also id. § 504(b) [authorizing fines and 
22

imprisonment for up to five years for willful violations of the statute].) Thus, any such 

award would “impose liability on the employer for not performing an act . . . expressly 

prohibited by federal law” (Salas, supra, 59 Cal.4th at p. 424, fn. omitted) and would 

therefore directly conflict with the LMRDA.

The viability of a lost wages award for the prediscovery period is less clear. 

Arguably, permitting such an award for an individual who is disqualified by the LMRDA 

from holding the position sought would compensate that individual for wages that he or 

she could not lawfully have earned and could therefore also be seen as conflicting with 

federal law. (Cf. Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 148-

150 [backpay award by the NLRB to an illegal alien employee runs counter to policies 

underlying federal immigration law where “Congress has expressly made it criminally 

punishable for an alien to obtain employment with false documents”]; Salas, supra, 59 

Cal.4th at p. 443 (conc. & dis. opn. of Baxter, J.) [noting his belief that any award of 

backpay should be “preempted and barred” because “California cannot award, as a 

remedy for wrongful termination under FEHA, lost wage damages to an alien who is 

unauthorized to work in this country, and who obtained the job at issue by submitting 

fraudulent eligibility documentation in direct criminal violation of federal immigration 

law”].) The Salas majority, however, rejected this approach. 

Focusing on the employer rather than any criminal wrongdoing by the employee, 

the Salas Court held that there was no direct conflict preemption because nothing in 

federal immigration law prohibited “an employer from paying, or an employee from 

receiving, wages earned during employment wrongfully obtained by false documents, so 

long as the employer remains unaware of the of the employee’s unauthorized status.” 

(Salas, supra, 59 Cal.4th at p. 424.) Here, similarly, the LMRDA does not forbid the 

payment or receipt of wages for employment wrongfully obtained in violation of Section 

504(a), where an employer is unaware of the statutory violation. Moreover, while it 

might be possible to distinguish Salas from the current case because nothing in federal 

immigration law makes it a crime for an illegal alien to actually engage in unauthorized 

work, while Section 504(a) states that no disqualified individual “shall serve or be 
23

permitted to serve” in the specified union positions, this seems a distinction without a 

difference. (See Salas, supra, 59 Cal.4th at p. 425; 29 U.S.C. § 504(a).) Under both 

scenarios, a backpay award for the prediscovery period would compensate an individual 

for wages that he or she earned in violation of federal law. In the immigration context, a 

violation of federal immigration law occurs when an unauthorized alien illegally presents 

false documents to obtain employment. (See Salas, supra, 59 Cal.4th at p. 425.) 

Similarly, under Section 504(a), if a disqualified individual serves or is permitted to serve 

in certain designated union positions, a violation of the LMRDA takes place. 

Nevertheless, in the prediscovery period, nothing in either statute prohibits an employer 

(ignorant of the true facts) from paying the unauthorized employee. Relying on the Salas

Court’s analysis of the issue, we therefore conclude that, under the facts of this case, an 

award for lost wages during the prediscovery period would not be barred under theories 

of direct conflict preemption.8

In sum, we hold that—other than with respect to certain postdiscovery period 

remedies—the FEHA is not preempted by Section 504(a) of the LMRDA. Further, 

although the trial court correctly concluded that Horne’s citizenship rights had not been

fully restored for purposes of Section 504(a), its grant of summary judgment in favor of 

District Council 16 must be reversed because consideration of the after-acquired evidence

upon which the court based its decision was inappropriate during the liability phase of 

this FEHA litigation. 

III. DISPOSITION

The judgment is reversed. Given this outcome, Horne’s appeal was clearly not 

frivolous, and thus we deny District Council 16’s request for sanctions in the form of 

attorney’s fees and costs. (See Cal. Rules of Court, rule 8.276(a); Computer Prepared 

 

8 We conclude in this case only that an award of prediscovery lost wages is not absolutely 

preempted by federal law. Of course, as previously discussed, any such remedy would be 

subject to a balancing of the equities based on the existence of the after-acquired 

evidence in this matter, and could, under appropriate circumstances, be limited or 

completely disallowed. 
24

Accounts, Inc. v. Katz (1991) 235 Cal.App.3d 428, 434-440.) Instead, as the prevailing 

party, Horne is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

HUMES, J.*

* Presiding Justice of the Court of Appeal, First Appellate District, Division One, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
25

Trial Court: Alameda Superior Court

Trial Judge: Hon. Marshall Whitley

Counsel for Appellant: Burton Employment Law

Jocelyn Burton

Counsel for Respondents: Weinberg Roger & Rosenfeld

Jannah Vanessa Manansala