Horne v. Dist. Council 16 Int'l Union of Painters

• Decision Date: 03 December 2013
• Docket Number: A135470
• Court: California Court of Appeals Court of Appeals
• Parties: Raymond E. HORNE, Plaintiff and Appellant, v. DISTRICT COUNCIL 16 INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, Defendant and Respondent.

165 Cal.Rptr.3d 144

Raymond E. HORNE, Plaintiff and Appellant,
v.
DISTRICT COUNCIL 16 INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, Defendant and Respondent.

A135470

Court of Appeal,
First District, Division 4, California.

Filed December 3, 2013

See 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 860.

Alameda County Superior Court, Hon. Marshall Whitley. (Alameda County Super. Ct. No. RG10534651)

Counsel for Appellant: Burton Employment Law, Jocelyn Burton

Counsel for Respondents: Weinberg Roger & Rosenfeld, Jannah Vanessa Manansala

REARDON, J.

The trial court granted summary judgment to respondent District Council 16 International Union of Painters and Allied Trades on appellant Raymond E. Horne's employment discrimination action. Horne appeals, contending inter alia that the after-acquired evidence doctrine precluded consideration of evidence of the impact of his prior conviction on the issue of his qualification for a union organizer position. The council seeks sanctions from Horne for filing a frivolous appeal. We deny the request for sanctions and affirm the judgment.

I. FACTS

District Council 16 International Union of Painters and Allied Trades (“council”) is a group of 16 local unions of drywall finishers, glaziers, painters, and floor coverers. One member union is Glaziers Local No. 718. Raymond E. Horne—an African–American male—was a glazier and a member of that glazier's union. Since 2004, he served as a member of the executive board of his union. Since 2006, he was an officer of that union. He also served as a member of the council for many years.

The council employs more than 40 people in California. In 2009, Horne applied for an organizer position with the council, without success. The man chosen to fill the position was white. In February 2010, Horne again applied for an organizer position with the council. He was not hired and the position was again filed by a white male.

In July 2010, Horne challenged the council's February 2010 decision not to hire him. A hearing was conducted before the council, which found that its officials had not violated its bylaws. Horne also filed a complaint for racial discrimination with the state Department of Fair Housing and Employment. In August 2010, he received a right-to-sue letter from the department.

In September 2010, Horne filed an employment discrimination action, alleging that the council's failure to hire him was based on his race. In January 2011, he filed his first amended complaint in this 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 for that conviction, and that he was paroled after that term of imprisonment on May 30, 2003. Horne denied that his citizenship rights, which were revoked as a result of this conviction, had not been fully restored. His right to vote had been restored since he was paroled in May 2003, but Horne admitted that he did not possess the right to carry a firearm. The council did not know these facts at the time of the February 2010 failure to hire.

In August and September 2011, knowing these facts, the council demanded that Horne dismiss his lawsuit. It asserted that federal law barred him from employment as an organizer because of his prior narcotics conviction. (See 29 U.S.C. § 504(a).) Horne did not know of this federal statute until that time. He disputed the council's claim that the statute rendered him ineligible for that position.

In September 2011, the council moved for summary judgment, arguing that undisputed facts established that Horne was unqualified for the position he sought. It also asked the trial court to take judicial notice of November 2011 and January 2012 letters from the U.S. Department of Labor, Office of Labor–Management Standards (OLMS), asserting that federal law rendered Horne ineligible for the position. 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 the council 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 the hearing, the trial court granted the council's motion for summary judgment. It found that Horne was unable to establish a prima facie case of discrimination because he did not show that he was qualified for the job for which he applied. It relied on evidence that at the time of the employment decision in 2010, federal law prohibited him from serving as a union organizer. It found that the 13–year–disability period established by that federal statute had not been shortened—that is, his citizenship rights had not been fully restored—because he did not have a right to carry a firearm. In so doing, it necessarily rejected Horne's objections to the evidence of his prior conviction and the OLMS evidence—evidence that was acquired by the council after the time it declined to hire him. In April 2012, Horne's case was dismissed.

II. AFTER–ACQUIRED EVIDENCE DOCTRINE

In his key contention on appeal, Horne asserts that the after-acquired evidence doctrine precluded the trial court from considering the council's proffered evidence of his disqualification for the position. The council counters that this evidence was admissible and precluded Horne from establishing a prima facie case of racial discrimination.

Horne necessarily contends that the trial court erred in granting summary judgment to the council on his causes of action for failure to hire. He alleged in his complaint that the council's decision not to hire him was racially motivated. (See Gov.Code, § 12940, subd. (a).) In California, the Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire an applicant for this reason. ( Ibid.; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148, 65 Cal.Rptr.2d 112 (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, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Guz ); Sada, supra, 56 Cal.App.4th at p. 148, 65 Cal.Rptr.2d 112; see 42 U.S.C. § 2000e–2(a)(1); Gov.Code, § 12940, subd. (a).)

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, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Wills v. Superior Court(2011) 195 Cal.App.4th 143, 159, 125 Cal.Rptr.3d 1; see Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252–260, 101 S.Ct. 1089, 67 L.Ed.2d 207 (Burdine ); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (McDonnell ).) 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, 65 Cal.Rptr.2d 112; see Burdine, supra, 450 U.S. at pp. 252–253, 101 S.Ct. 1089; McDonnell, supra, 411 U.S. at p. 802, 93 S.Ct. 1817; Guz, supra, 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806, 85 Cal.Rptr.2d 459 (Horn ).) If he does so, then the burden shifts to the council to offer any legitimate, non-discriminatory reasons for failing to hire him. The trial court then assesses whether the proffered reasons might be pretextual. (See St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 508, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407; Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. 1089; Guz, supra, 24 Cal.4th at pp. 355–356, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Horn, supra, 72 Cal.App.4th at p. 806, 85 Cal.Rptr.2d 459; see also Code Civ. Proc., § 437c, subd. (c).)

Before getting to the issue of the council's motive, Horne must first establish his prima facie case. In a failure-to-hire case, the applicant must show inter alia that he or she was qualified for the position. (Sada, supra, 56 Cal.App.4th at p. 149, 65 Cal.Rptr.2d 112; see Burdine, supra, 450 U.S. at pp. 253–254, fn. 6, 258, 101 S.Ct. 1089; McDonnell, supra, 411 U.S. at p. 802, 93 S.Ct. 1817; Guz, supra, 24 Cal.4th at p. 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) The adequacy of his prima facie case is 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, 48 Cal.Rptr.2d 448.) The trial court found that he did not establish this prima facie case. On appeal, we consider anew whether he did so. (See Guz, supra, 24 Cal.4th at p. 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Horn, supra, 72 Cal.App.4th at p. 807, 85 Cal.Rptr.2d 459.)

We conclude that Horne did not establish a prima facie case of racial discrimination because the undisputed evidence shows that he was unqualified for the organizer position for which he was not hired. Federal law bars any person convicted of a violation of narcotics law from serving as a labor organizer. (Tit. 29, U.S.C. § 504(a)(2).) Horne was not hired for a labor organizer position. In February 2010, the council was unaware that he had suffered two prior convictions, one of which was for felony possession of narcotics for sale. At trial, the council offered his later admission that he had suffered this criminal conviction and documentary evidence from OLMS in support of its contention that Horne was unqualified for the position and, thus, could not state a prima facie case of discrimination.

Horne objects, asserting that neither the trial court nor our court may consider this evidence of ineligibility because it did not come to...