In Salas v. Sierra Chemical Co. (8/9/11) 198 Cal.App.4th 29, the Court of Appeal affirmed a trial court order granting summary judgment in a disability discrimination action.
Vicente Salas sued his former employer, Sierra, for disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and denial of employment in violation of public policy. Specifically, Salas alleged that Sierra Chemical failed to make reasonable accommodation for his disability and failed to engage in an interactive process to determine such a reasonable accommodation. He also alleged that Sierra denied him employment to punish him for filing a claim for workers' compensation benefits, and to intimidate and deter him and others from bringing such claims.
Prior to trial, Salas filed a motion in limine stating that he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status. Sierra apparently then discovered that his Social Security number belonged to someone else. Sierra moved for summary judgment, arguing that the after-acquired evidence doctrine barred Salas's causes of action because there was no genuine factual dispute concerning: (1) his use of a counterfeit Social Security card with another person's Social Security number in order to secure employment; and (2) that Sierra would not have hired him had it known that he was using a counterfeit Social Security card. Sierra also claimed the unclean hands doctrine barred his causes of action because the misrepresentation of his eligibility to work in the United States and fraudulent use of another person's Social Security number amounted to inequitable conduct that directly related to his causes of action.
In opposition to the motion, Salas declared that Sierra knowingly employed a number undocumented workers, a number of whom had received Social Security "no match" letters while employed by Sierra. Salas declared that his supervisor told him and others that they "need not worry about any discrepancies with Social Security numbers... [and that] as long as [defendant] remained happy, he would not fire us over a discrepancy with a Social Security number." Salas also declared that he "never heard of Sierra Chemical discharging any person due to a discrepancy with a Social Security number, or for any other immigration-related issue."
The trial court (San Joaquin Superior, Judge Elizabeth Humphreys) originally denied the motion, but the Court of Appeal issued an order directing the court either to grant the relief requested or show cause why it should not be granted. The trial court granted the relief, and Salas appealed.
The Court of Appeal affirmed. It held that Sierra produced evidence that the SSN did not belong to Salas and that it had "a long-standing policy" that "precludes the hiring of any applicant who submits false information or false documents in an effort to prove his or her eligibility to work in the United States." The Court held that Salas failed to raise a triable issue of fact in opposition:
Salas also claims that he raised a triable issue of fact with respect to Sierra Chemical's policy of refusing to hire applicants who submit a false Social Security number. We are not persuaded. Unlike [Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833], where plaintiff submitted direct evidence that the company knowingly hired undocumented aliens and took no steps to discharge them, Salas submitted mere speculation. According to his declaration, he and several other employees had an informal meeting with Huizar to discuss the letters they received from the Social Security Administration. Huizar told the employees that Kinder “was happy with [their] work and that as long as he remained happy, he would not fire [them] over a discrepancy with a Social Security number.” In order to find a triable issue of fact, we would have to draw the inference that Sierra Chemical did not have a settled policy of refusing to hire an applicant who submits a false Social Security number from the fact that Huizar told Salas that he would not be fired over a discrepancy with a Social Security number. However, as Salas himself observed in his opposition to the summary judgment motion, a discrepancy with a Social Security number could be caused by typographical errors, unreported name changes, or inaccurate or incomplete records. Thus, the fact that Sierra Chemical would not fire him over a discrepancy with a Social Security number is not inconsistent with Kinder's declaration that Sierra Chemical had a settled policy of refusing to hire applicants who submit a false Social Security number.
198 Cal.App.4th at 38-39. The Court also held that Salas's claims were barred by the unclean hands doctrine:
Similarly, here, Salas's use of another person's Social Security number to obtain employment with Sierra Chemical went to the heart of the employment relationship and related directly to his claims that Sierra Chemical wrongfully failed to hire him following his seasonal lay off and discriminated against him by failing to provide a reasonable accommodation for his back injury. Because Salas was not lawfully qualified for the job, he cannot be heard to complain that he was not hired. This is so even though he alleges that one reason for the failure to hire was Sierra Chemical's unwillingness to accommodate his disability.
198 Cal.App.4th at 45.
The opinion is available here.
On November 16, 2011, the California Supreme Court granted review (Case No. S196568). The Court stated the issues as follows:
Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance?
Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.)
The Court's Case Summary page is here. I have added the case to our watch list.