After-Acquired Evidence of Wrongdoing May Defeat Wrongful Termination Claim

Even after you get sued for wrongful termination, it is not too late to come up with a reason for firing an employee. In appropriate circumstances, an employer may invoke the doctrine of after-acquired evidence as a complete or partial defense. The question in such cases is whether the evidence establishes that the employee would have been fired upon discovery of the wrongdoing that the employer learned about after the termination. Here are some examples of application of the doctrine:

Salas v. Sierra Chemical Co., Case No. C064627 (Aug. 9, 2011): A laid off employee had provided a social security number that was not his own when he was hired. The employer was entitled to summary judgment on his disability discrimination claim for failure to rehire. The employer had a long-standing policy that precluded hiring any applicant who submitted false information to establish his eligibility to work in the United States, although the employer did not discover this until after it refused to rehire him. Federal law prohibits applicants from using false documents to establish eligibility to work, and requires employers  to make accurate reports. Because his wrongdoing made him ineligible for rehire, the employee could not sue for discrimination.

Murillo v. Rite Stuff Foods, Inc., 77 Cal.Rptr.2d 12, 65 Cal.App.4th 833 (1998): An undocumented worker obtained employment through use of forged documents, but summary judgment dismissing her sexual harassment claim was not appropriate. She was damaged during her employment by the harassment, and there was evidence that the employer knowingly employed those who were not eligible to work in the United States.

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995): Post-discharge discovery that the plaintiff had wrongfully made copies of confidential documents was not a complete defense to her age discrimination claim. But, she was not entitled to reinstatement or front pay, and any back pay award would be limited to the period from the discharge to when the wrongful conduct would have been discovered.

Camp v. Jeffer, Mangels, Butler & Marmaro, 35 Cal.App.4th 620, 41 Cal. Rptr.2d 329 (1995): A husband and wife who worked as legal secretaries at a law firm lied on their applications when they said that they had not been convicted of felonies. In fact, they had both been convicted of bank fraud. As a condition of representing federal agency, the law firm had to certify periodically that none of its employees had been convicted of a felony. After the wife reported alleged insider training by one of its lawyers, the law firm discharged the couple. The law firm was entitled to summary judgment dismissing their retaliation claims, because they misrepresented a job qualification imposed by the federal government, such that they were not lawfully qualified for their jobs.