California Civil Jury Instructions (CACI) (2017)

2506. Affirmative Defense - After-Acquired Evidence

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2506.Limitation on Remedies—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
New September 2003; Revised June 2016, December 2016
Directions for Use
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 v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 428 [173 Cal.Rptr.3d 689, 327 P.3d 797].)
There is some uncertainty as to whether or not it is an equitable doctrine.
(Compare Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156,
1173 [104 Cal.Rptr.2d 95] [doctrine is the basis for an equitable defense related to
the traditional defense of “unclean hands,” italics added] with Salas, supra, 59
Cal.4th at p. 428 [omitting “equitable”].) If it is an equitable doctrine, then the fact-
finding in the elements of the instruction would be only advisory to the court, or
the elements could be found by the court itself as the trier of fact. (See Thompson,
supra, 86 Cal.App.4th at p. 1173; see also Hoopes v. Dolan (2008) 168
Cal.App.4th 146, 156 [85 Cal.Rptr.3d 337] [jury’s factual findings are purely
advisory because, on equitable causes of action, the judge is the proper fact
After-acquired evidence is not a complete defense to liability, but may foreclose
otherwise available remedies. (Salas, supra, 59 Cal.4th at pp. 430−431.)
After-acquired evidence cases must be distinguished from mixed motive cases in
which the employer at the time of the employment action has two or more motives,
at least one of which is unlawful. (See Salas supra, 59 Cal.4th at p. 430; CACI
No. 2512, Limitation on Remedies—Same Decision.)
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
• “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.)
• “By definition, after-acquired evidence is not known to the employer at the time
of the allegedly unlawful termination or refusal to hire. In 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. To 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.
• “In after-acquired evidence cases, therefore, 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 where an employer relies on
after-acquired evidence to defeat an employee’s FEHA claims.” (Salas, supra,
59 Cal.4th at p. 430.)
• “Generally, the employee’s remedies should not afford compensation for loss of
employment during the period after the employer’s discovery of the evidence
relating to the employee’s wrongdoing. When the employer shows that
information acquired after the employee’s claim has been made would have led
to a lawful discharge or other employment action, remedies such as
reinstatement, promotion, and pay for periods after the employer learned of
such information would be ‘inequitable and pointless,’ as they grant remedial
relief for a period during which the plaintiff employee was no longer in the
defendant’s employment and had no right to such employment.” (Salas, supra,
59 Cal.4th at pp. 430−431.)
• The 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. 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.” (Salas, supra, 59 Cal.4th
at p. 431, footnote omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 7-A, Employment
Discrimination—Title VII and the California Fair Employment and Housing Act,
¶¶ 7:930–7:932 (The Rutter Group)
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses--After-Acquired Evidence of Employee Misconduct, ¶¶ 16:615–16:616,
16:625, 16:635–16:637, 16:647 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
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)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)