of "warehouseman." (Id. P 4.) Consequently, although Conlin's deposition testimony indicates that he performed janitorial duties, it does not require the conclusion that he worked exclusively as a janitor or that he was not a warehouseman.
Next, Conlin continued to work in the warehouse after his reinstatement. Because "it was common . . . [at Safeway] to refer to employees who worked under the warehouse contract as 'warehousemen,'" including "order selectors, loaders, forklift operators, and sanitarians," it was not unreasonable for Conlin to represent that he had worked as a warehouseman after his reinstatement.
Finally, Conlin also submitted a resume during the application process. The resume claims 16 years of warehouse experience and elaborates upon the particulars of his experience. In his resume, Conlin clearly disclosed his janitorial experience. See Conlin Decl. Ex. B (noting that his duties required him to "empty trash bins, dust, mop and sweep warehouse and employee lunchroom areas"). Conlin's resume reveals that he did not mislead Mission Foods, but rather gave Mission Foods fair notice of his janitorial experience at Safeway.
In sum, Conlin's deposition does not preclude the conclusion that he worked under the general rubric of "warehouseman" both before and after his reinstatement at Safeway and, consequently, that he did not misrepresent his work history on the Mission Foods application or to his supervisor when he claimed 17 years experience as a warehouseman. The fact that during the application process Conlin also submitted a resume clearly outlining his janitorial duties at Safeway further dispels the allegation that he misrepresented his past experience.
The after-acquired evidence doctrine is not meant to protect employers from poor hiring decisions. It is intended to grant them some relief from their discriminatory acts when their initial decision was premised on false information submitted by an applicant. Here, Conlin submitted no false information. He accurately completed the application form and, additionally, submitted a resume which further detailed his skills.
Because, as a matter of law, Mission Foods cannot demonstrate that Conlin misrepresented himself, Mission Foods' motion for summary judgment predicated upon the doctrine of after-acquired evidence is DENIED.
Retroactive Enforcement of the ADA
Conlin's second cause of action, based on employment discrimination and retaliation for his complaints of discrimination, implicates both Title I of the ADA, prohibiting employment discrimination, and Title V of the ADA, prohibiting retaliation or coercion based on an individual's exercise of any right accorded by the ADA. 42 U.S.C. §§ 12112 and 12203. Mission Foods argues that Conlin cannot recover for violations that occurred before the effective date of Title I of the ADA. In response, Conlin distinguishes between the effective dates of the different titles of the ADA.
Title I of the ADA, codified at 42 U.S.C. § 12112, prohibits employment discrimination. The text of the ADA explicitly provided the Title I provision would become effective 24 months after the date of its enactment. The ADA was enacted on July 26, 1990; therefore, Title I became effective on July 26, 1992.
Courts considering the issue of retroactivity, including two courts in the Northern District, have refused to apply Title I retroactively to events occurring prior to its effective date. See Aramburu v. Boeing Co., No. 93-4064- SAC, 1993 U.S. Dist. LEXIS 18620, 1993 WL 544567 at *2 (D. Kan. 1993) (collecting cases and concluding that "virtually all of the courts considering whether the ADA applies retroactively have concluded that it does not"); Barraclough v. ADP Automotive Claims Servs., 818 F. Supp. 1310, 1312 (N.D. Cal. 1993); Raya v. Maryatt Indus., 829 F. Supp. 1169, 1174-75 (N.D. Cal. 1993);cf. Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483, 128 L. Ed. 2d 229, 1994 U.S. LEXIS 3292 (1994).
Conlin does not dispute that Title I should not be applied retroactively. Instead, he argues that Title V, which lacks an explicit effective date, became effective on the enactment of the ADA, July 26, 1990.
Title V of the ADA, codified at 42 U.S.C. § 12203, provides that:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203 (West 1994) (emphasis added). Although the ADA does not provide an effective date for Title V, Title V is contingent upon the substantive violations of other provisions of the Act, and in this case, Title I.
In other words, Mission Foods could not violate Title V by retaliating against Conlin for exercising rights guaranteed him under Title I that had not yet gone into effect.
Because Title I of the ADA became effective on July 26, 1992 and should not be applied retroactively, and because Title V of the ADA hinges on a Title I violation, Mission Foods' motion for summary judgment is GRANTED with respect to Conlin's second cause of action as to alleged violations of both Titles I and V of the ADA arising before July 26, 1992.
Conlin's present complaint does not make clear the conduct occurring after July 26, 1992 upon which he bases his Titles I and V claims. Thus, Conlin is ORDERED to file an amended complaint to allege specifically the actions of Mission Foods after July 26, 1992 that violate Titles I and V of the ADA.
IT IS HEREBY ORDERED that:
1. Summary judgment is DENIED on the ground that the after-acquired evidence doctrine is inapplicable to the facts of this case;
2. Summary judgment is GRANTED as to all events contained in the complaint occurring before July 26, 1992, on the ground that the ADA does not apply retroactively; and
3. Plaintiff is to file within ten days of the issuance of this Order an amended complaint enumerating the actions of Mission Foods occurring on or after July 26, 1992, that allegedly violate the ADA.
Dated: May 2, 1994.
William H. Orrick
United States District Judge