Jimmy Hodges is one of the wisest persons I know. He is an African-American man, about eighty years’ old, maybe older, no one really knows. Jimmy’s beard drops down to the floor so he wraps it with rubber bands in a bundle and it swings from shoulder to shoulder as he speaks. He’s not a lawyer and did not finish grade school. One day during my college years we sat in a park off Lake Shore Drive in Chicago, Illinois. After about an hour, Jimmy paused, took a long draw off his pipe and looked up at me and said, “Whenever you point your finger at someone else, you have the rest of your fingers pointing back at you.” Jimmy was strange, but where did this come? I was not winning our chess game and never have.

Several years later, I think about Jimmy’s comment daily. Those of us who fight to preserve our client’s civil rights in prosecuting wrongful termination actions are all too familiar with the defense tactic of blaming our clients of every conceivable wrongdoing. This defense tactic may date back to the time that these attorneys (or their clients) were accused by their parents of stealing cookies from the cookie jar. As children, they realized that it was easier to blame a sibling, or anyone else, rather than suffer the consequences and take personal responsibility for their actions. To date, my clients have been falsely accused of: bomb threats, physical threats against co-workers, prostitution, fraud, theft, and embezzlement, to name of few. No stolen cookies yet. And I mean yet!

The most recent twist on this tactic I have seen is an allegation that “I” (not my client) have conspired to fabricate the basis for a lawsuit? Where is Jimmy Hodges when I need him? And what was heck was he smoking in the pipe anyway? Here’s what he would say: “Be calm, and be patient---more will be revealed.” And of course, it usually is.

Of course, the blame game is the by-product of a frantic employer on the defense. Let us review a page from an unscrupulous employer’s game book: First, cloud the issues, burden the employee with harassing, personal discovery, delay the prosecution, accuse the employee of harboring terrorists, or anything else you can think of, spread falsities “work-product” interviews of employees. Then, when all else fails, attempt to trick the court and/or jury into believing that this case is really about how bad of a person the employee is, not about the employer’s violation of the employee’s civil rights.

Finally, when you find out about all of the bad stuff, give it a fancy name. How about weapons of mass destruction? That one didn’t work. Rip that page out of the game book and by all means do not list in on our privilege log. Hey, how about “after-acquired” evidence defense? Good idea! Or as Joe Posner, the father of employment law called it, how about the “after-invented” evidence defense?

Rest assured that after you file a lawsuit on behalf of your client, the Defendant will work frantically to uncover or “discover” any kind of evidence to show that your client engaged in an otherwise terminable offense. Here are some important points to remember when faced with this defense.

Contrary to defense assertions, the after-acquired evidence defense is extremely limited in its application. The case most frequently cited by Defendants to support application of the after-acquired evidence defense is Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 41 Cal.Rptr.2d 319 (“Camp”). The Camps were convicted felons and worked for the Defendants for awhile. Later, the firm was hired by a government agency. The government required the firm to confirm that it employed no convicted felons. The after-acquired evidence defense applied because the Plaintiffs were not lawfully qualified for their jobs.

Defendants love to claim resume fraud in an attempt to dismiss or limit your client’s claims. Do not let an unsuspecting Judge to improperly apply the holding in Camp to your case; Camp is simple to distinguish. In another resume fraud case, Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 29 Cal.Rptr.2d 642 (“Cooper”), the court of appeals reversed summary judgment for the defendant despite evidence of resume fraud on plaintiff’s age discrimination and breach of contract claims.

The court in Cooper correctly distinguished the holding in Camp because the Plaintiffs there misrepresented a job qualification imposed by the government. Accordingly, the plaintiffs were not lawfully qualified for the job whereas the plaintiff in Cooper was. “Where an employer has fired a worker in violation of the statutory ban on discrimination in the workplace, the purpose and effect of the anti-discrimination statutes are unacceptably undermined by a principle that would allow a fact that played no part in the firing decision to bar any recovery.” Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 618-619.

As a practical matter, obtain the resumes and/or employment applications of the individual defendants or persons who made the decision to terminate your client to determine whether or not they have lied in their representations to the employer.

Another common misconception is that the after-acquired evidence defense presents a total bar to recovery in your case. In fact, if the after-acquired evidence defense applies, it may serve to limit liability for back pay, front pay or reinstatement. McKennon v. Nashville Banner Publishing (1995) 513 U.S. 352, 115 S.Ct. 879. ¹

You may not have a case of alleged resume fraud. If met with the allegation that your client has committed another terminable offense, examine whether or not the terminable offense has any bearing on the harm alleged. In reality, the after-acquired evidence defense may not apply even if your client admits to acting improperly in the past.

For example, in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 851-852, 77 Cal.Rptr.2d 12, (“Murillo”) the Plaintiff, an undocumented worker, engaged in fraud in the course of applying for a position with the company. Nonetheless, the court held that a fraudulent job application process has no direct connection between plaintiff’s wrongdoing and the harm she suffered from sexual harassment. As such, her fraud could not bar such claims and could not be used as a defense to her claims that she suffered emotional distress as a result of sexual harassment. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 851-852, 77 Cal.Rptr.2d 12.

The Murillo case has another important holding. An employer cannot assert the after-acquired evidence defense where the employer knew about the alleged fraud but did nothing about it or aided and abetted the fraud. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 851-852, 77 Cal.Rptr.2d 12. In Murillo, summary judgment was reversed where the Plaintiff produced stuffiest evidence that the employer knew of the resume fraud at the time of the hiring, and/or may have assisted in facilitating the fraud.

Equally important is the concept that the after-acquired defense does not apply if the employee can show that the employer would not have fired the employee even if it had known of the conduct during the plaintiff’s employment. This argument shifts the burden of proving otherwise on the employer. McKennon v. Nashville Banner Publishing (1995) 513 U.S. 352, 362, 115 S.Ct. 879.

In Thompson v. Tracor Flight Systems, Inc., (2001) 86 Cal.App.4th 1, 109, Cal.Rptr.2d 762, a former employee took home copies of files and documents when she resigned. The employer contended that this conduct would have resulted in her termination had it known what the employee was doing. The jury found that the employee had not engaged in wrongdoing which would give the employer grounds to terminate her. The court held that substantial evidence permitted a reasonable jury to find that her motivation in taking the documents home constituted poor judgment and not theft. The court also held that the trial court did not err in not barring recovery or equitably reducing the damages award under the after-acquired evidence doctrine.

Be sure to check the Equal Employment Opportunity Commission’s guidelines on the application of the after-acquired evidence defense which may be found on the Commission’s website at www.eeoc.gov/policy/docs/mckennon.html. Contrary to defense assertions, punitive damages are not barred or otherwise limited by the defense and proof of retaliation warrants punitive damages. Also, compensatory damages for emotional harm caused by discrimination are available, even for the period after the after-acquired evidence is discovered.

A common method of searching for after-acquired evidence is by way of subpoenas to your client’s past and present employers. Oppose such attempts. First, evidence of employment with subsequent employers is relevant only to the issue of mitigation of damages. Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502. Second, personnel records pertaining to a plaintiff’s work performance with any other employer are not relevant; the records constitute inadmissible character evidence under California Evidence Code §1101(a). See also, Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110. But do start with the most important proposition that personnel files at a person's place of work are within a constitutionally protected zone of privacy. Board of Trustees v. Superior Court(1981) 119 Cal.App.3d 516.

What does all of this mean? Practically speaking, the defense must first show how the documents sought are “directly relevant.” This is because the standard applicable to general discovery, i.e., that items need only be reasonably calculated to lead to the discovery of admissible evidence, is inapplicable to discovery of items protected by a right to privacy in which the threshold requirement is that such items must be directly relevant. Britt v. Superior Court, 20 Cal.3d 844; Tylo v. Superior Court (1997) 55 Cal.App.4th 1379. If the defense can meet the showing that the subpoenaed documents are directly relevant, then, and only then, may the court apply the privacy balancing test. Most subpoenas should be quashed on these grounds.

Remember that Defendant’s purposeful attempts to obtain derogatory information about your client are retaliatory. Retaliation is one example of an extraordinary equitable circumstance that may warrant additional relief. “Evidence of

Such purposeful attempts may give rise to new employee claims of post-termination retaliation and/or defamation. Criticism of work performance is defamation per se. California Civil Code Section 46(3). Monitor the Defendant’s efforts to obtain such information through discovery. Find out when the attempts to obtain the information were made, by whom and through what means. Often, employers “interview” other employees and spread horrible falsities in the process. For example, in harassment cases, once an employer learns that harassment has occurred, it has a legal, statutory obligation to take effective remedial action to stop the individual harasser from continuing to engage in such conduct and discourage other potential harassers from engaging in similar unlawful conduct. Mockler v. Multnomah County (9th Cir. 1998) 140 F.3d 808, 813; Sarro v. City of Sacramento (E.D. Cal. 1999) 78 F. Supp. 2d 1057, 1062 (“In addition to ending the current harassment, an employer’s actions must also be reasonably calculated to deter future harassment from the same offender or others.”)

These interviews often fuel past defamatory statements and result in further retaliation of your client. Take the depositions of any and all persons interviewed by the employer. Ask the deponent about the employer’s interview. You will often find that the over-zealous interviewer spent more time attempting to elicit negative information about your client, rather than focusing asking questions about what should be the focus of the investigation: Were your client’s civil rights were violated?

In sexual harassment cases, the employer will often accuse your client in engaging in sexual conduct with others than the perpetrator of the harassment in an attempt to show that the work environment was not hostile or that your client participated and/or welcomed the harassing conduct. However, an employer must make a motion and obtain a court order prior to serving discovery or asking deposition questions on these topics. “In any civil action alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, any party seeking discovery concerning the plaintiff’s sexual conduct with individuals other than the alleged perpetrator is required to establish specific facts showing good cause for that discovery, and that the matter sought to be discovered is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence.” California Code of Civil Procedure §2017(d). If faced with this line of questioning, object and make the employer make a motion to obtain permission to engage in this type of discovery.

Finally, where appropriate, request a special jury instruction under Raytheon v. Hughes Missile Systems, Inc. (9th Cir. 2004) 362 F.3d 564, 569: "[W]hen a company, at different times, gives different and arguably inconsistent explanations [regarding its reasons for termination an employee], a jury may infer that the articulated reasons are pretextual."

Juries are made up of people, just like you and me and just like Jimmy Hodges. They will get it: Asserting a civil right often results in the perpetrator pointing the finger at the victim of invidious discrimination.

¹The defense applies only if the employer demonstrates that it would have fired or disciplined or not hired the employee had it known of the conduct previously. Id.

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