This reads much more like an opinion from, say, Judge O'Scannlain, which it's not, than from Judge Wardlaw, which it is.
It's a seemingly straightforward "after acquired evidence" issue. What do you do when Employer fires Employee for (allegedly discriminatory) Reason X and then, during the litigation, discovers that Employee had done something totally wrong (Reason Y; e.g., faking his resume, stealing company property, etc) that would absolutely justify firing the guy?
You could see the arguments on both sides. Maybe that newly acquired evidence should bar the lawsuit entirely, since Employee should definitely be fired anyway, regardless of why he was fired in the first place. By contrast, maybe that newly acquired evidence shouldn't matter at all, since that was not the reason the Employee was, in fact, fired, and post hoc evidence dug up during a lawsuit shouldn't get Employer off the hook for its actual illegal and discriminatory conduct.
The Supreme Court unanimously adopted a middle ground approach in 1995. It said that the after acquired evidence doesn't entirely bar the lawsuit (since the employer still in fact fired the person illegally), but it does bar the employee from obtaining damages for the period after this new-found reason was discovered (since the employer legitimately could fire the person at that point anyway).
Okay. That's the rule. On which everyone seems to agree.
But this case is slightly different. That Supreme Court case was an ADEA (age discrimination) case. This one's slightly different; it's a ADA (disability discrimination) case. When an employer illegally fires you because you're old, the fact that you, say, faked your resume and hence aren't in fact actually qualified for your job cuts off your damages. Does that same rule apply, in that same situation, apply when the employer illegally fires you because you're disabled (instead of old)?
The Ninth Circuit says . . . no. It doesn't. A different rule applies.
The appropriate rule, the Ninth Circuit says, is harsher to the employee. The employee who's fired because he's old still gets some damages. But the employee who's fired because he's disabled gets nothing. His lawsuit's dismissed.
Not really the result you're facially expecting from a Ninth Circuit panel, right? Much less one on which Judge Fletcher sits and in an opinion by Judge Wardlaw. Particularly when other circuits have expressly held that the rule is the same in both age and disability discrimination cases; although the circuits are split, you'd probably expect the Ninth Circuit (at least with this panel) to come out on the more progressive side of the equation, no?
But it's not really the result here that's so surprising. You could make reasonable arguments in the employer's favor here, both just as did the losing party in the Supreme Court's case in 1995 as well as based upon the underlying statutory language here.
Nope, it's not necessarily the result of the opinion that struck me as somewhat odd. It's instead the tenor.
This is an opinion that's relentlessly hostile to the employee's position. Its language is not nuanced and balanced and appreciative of the nuances on both sides. It's instead just straightforward "It's this way and no other." Which might make sense for someone who's unrelentingly adverse to plaintiffs or employee rights or to the underlying doctrinal principles. But that's not particularly how I would normally describe Judge Wardlaw. I'd expect that an opinion from her (particularly one joined by Judge Fletcher) would be moderate and reflective of the equities of the employee's arguments -- particularly given a unanimous Supreme Court opinion that strongly supports that side -- even if she ultimately came out (as here) in favor of the contrary position advanced by the employer.
But, with respect, I see very little of that here. It's really a very categorical opinion. The cases and arguments on the other side are "unpersuasive" and rapidly dismissed. The analysis is staccato and harsh. Given the eminently reasonable arguments on both sides, it's just not what I would have, on first principles, expected.
Even little tiny points stick out. To take but one example: In describing and distinguishing the Supreme Court's arguably controlling 1995 opinion, which allowed the employee to sue (albeit with reduced damages), Judge Wardlaw describes the case in the following manner:
"But
McKennon was a case in which the defendant conceded it had unlawfully discriminated against the plaintiff on the
basis of age and was attempting to use after-acquired
evidence of wrongdoing to assert that the plaintiff would
have been fired anyway and to excuse its discriminatory
conduct. 513 U.S. at 355–56. This is what the Supreme
Court held impermissible, even as it allowed the evidence as
relevant to the remedies available to the plaintiff. Id. at 356,
360."
Well, yeah, that's one way to describe the case. You start out by saying that the defendant "conceded that it had unlawfully discriminated against the plaintiff," and then go on to explain why, in light of that concession, any rational tribunal with a sense of fairness would hold it "impermissible" to use such after-acquired evidence "to excuse its discriminatory conduct." Whereas, here, the defendant doesn't concede that it has done anything illegal, and is just saying that the employee shouldn't be allowed to recover because it turns out she didn't actually graduate from college with an English degree as she said she did on her resume (and as the job requires). That's a totally different type of fairness, right?
Except one thing. The defendant in that 1995 Supreme Court case didn't "concede[] that it had unlawfully discriminated against the plaintiff," and certainly not any more than the defendant here made an identical such concession. The defendant in that 1995 case totally denied that it fired the plaintiff based on her age; rather, it vociferously asserted that she was the legitimate victim of a reduction-in-force (RIF) because the company was losing money. And then it said that, during discovery, when the plaintiff admitted (allegedly) to stealing company documents about the financial condition of the company (allegedlly for "insurance" and "protection"), yeah, that after-acquired evidence definitely justified firing her, so she shouldn't be allowed to sure.
Now, Judge Wardlaw's description isn't entirely factually inaccurate. The defendant in that 1995 case was moving for summary judgment, and given the procedural context of that motion, it was necessarily arguing that even assuming that it unlawfully discriminated (i.e., even if it "conceded" such discrimination), it would still have a defense. Just as the defendant in the present case was also moving for summary judgment, and hence, in that context, was "conceding" that it too illegally discriminated against the plaintiff. (Even though the defendant here, too, actually denied on the merits that this was in fact the case.)
It's a somewhat minor point, to be sure. But it just struck me as representative of the type of labels and description that were contained in the opinion. Yes, you could introduce an opinion that you were eager to distinguish by saying that in that case the employer had "conceded" that it had illegally discriminated and was using after-acquired evidence to "excuse its discriminatory conduct," all in the service of establishing that your case is different because here the employer is saying it did not fire the plaintiff on the basis of her disability and was instead seeking to dismiss her lawsuit because it found out during discovery that she didn't have a B.A. in English as the contract requires. That might not be a factually wrong way of describing that case. But it nonetheless seems a description that is somewhat distant from neutral. And not that far off from other examples of a similar nature that appear (albeit to a lesser degree, I think) throughout the opinion.
Again, I can see the Ninth Circuit coming out this way. I can see definite arguments on the merits on the other side as well. but I see the arguments on this side as well.
I just was surprised that the opinion was written in such a black-and-white manner. For something that seems to me such a more obvious shade of gray.
