California Civil Jury Instructions (CACI)

2506. Affirmative Defense - After-Acquired Evidence

[Name of defendant] claims that [he/she/it] would have discharged [name of plaintiff] anyway if [he/she/it] had known that [name of plaintiff] [describe misconduct]. You must decide whether [name of defendant] has proved all of the following:

1. That [name of plaintiff] [describe misconduct];

2. That [name of plaintiff]'s misconduct was sufficiently severe that [name of defendant] would have discharged [him/her] because of that misconduct alone had [name of defendant] known of it; and

3. That [name of defendant] would have discharged [name of plaintiff] for [his/her] misconduct as a matter of settled company policy.

Directions for Use

The after-acquired-evidence doctrine is an equitable defense that is determined by the court based on the facts of the case. This instruction assists the judge where the facts are in dispute. (See, e.g., Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1173 [104 Cal.Rptr.2d 95].)

Sources and Authority

"In general, the after-acquired-evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. Employee wrongdoing in after-acquired-evidence cases generally falls into one of two categories: (1) misrepresentations on a resume or job application; or (2) posthire, on-the-job misconduct." (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d 329].)

"The after-acquired-evidence doctrine serves as a complete or partial defense to an employee's claim of wrongful discharge . . . To invoke this doctrine, '. . . the employer must establish "that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it"

. . . [T]he employer . . . must show that such a firing would have taken place as a matter of "settled" company policy.' " (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845-846 [77 Cal.Rptr.2d 12], internal citations omitted.)

"Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." (McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 362-363 [115 S.Ct. 879, 130 L.Ed.2d 852].)

"Courts must tread carefully in applying the after-acquired-evidence doctrine to discrimination claims . . . . Where, as here, the discriminatory conduct was pervasive during the term of employment, therefore, it would not be sound public policy to bar recovery for injuries suffered while employed. In applying the after-acquired-evidence doctrine, the equities between employer and employee can be balanced by barring all portions of the employment discrimination claim tied to the employee's discharge." (Murillo, supra, 65 Cal.App.4th at pp. 849-850.)

"As the Supreme Court recognized in McKennon, the use of after-acquired evidence must 'take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing.' We appreciate that the facts in McKennon . . . presented a situation where balancing the equities should permit a finding of employer liability—to reinforce the importance of antidiscrimination laws—while limiting an employee's damages—to take account of an employer's business prerogatives. However, the equities compel a different result where an employee who is disqualified from employment by government-imposed requirements nevertheless obtains a job by misrepresenting the pertinent qualifications. In such a situation, the employee should have no recourse for an alleged wrongful termination of employment." (Camp, supra, 35 Cal.App.4th at pp. 637-638, internal citation omitted.)

"We decline to adopt a blanket rule that material falsification of an employment application is a complete defense to a claim that the employer, while still unaware of the falsification, terminated the employment in violation of the employee's legal rights." (Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 617 [29 Cal.Rptr.2d 642].)

"The doctrine [of after-acquired evidence] is the basis for an equitable defense related to the traditional defense of 'unclean hands' . . . [¶] In the present case, there were conflicts in the evidence concerning respondent's actions, her motivations, and the possible consequences of her actions within appellant's disciplinary system. The trial court submitted those factual questions to the jury for resolution and then used the resulting special verdict as the basis for concluding appellant was not entitled to equitable reduction of the damages award." (Thompson, supra, 86 Cal.App.4th at p. 1173.)

Secondary Sources

2 Witkin, Summary of California Law (2002 supp.) Agency and Employment, § 164A, pp. 59-62

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.107, pp. 82-83; id., Defending the Action, at § 10.88, pp. 604-605

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.92 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.54[2] (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (2001 supp.) Discrimination in Employment, § 2.82.2, pp. 87-89

(New September 2003)