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Alberto Pastrana v. Communications Workers of America

January 3, 2011


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Plaintiff has filed his fifth motion for reconsideration of the November 20, 2008 order limiting his damages as a matter of law pursuant to defendant AT&T's after-acquired evidence defense. For the reasons discussed below, Plaintiff's motion is DENIED.


In 2005, Pacific Bell Telephone Company ("PacBell"), a subsidiary of AT&T, Inc., terminated the employment of Plaintiff after discovering that Plaintiff was listed on the Megan's Law website for a 1997 conviction for lewd and lascivious acts upon a minor. Plaintiff's union (Local, 9509, Communications Workers of America, AFL-CIO) filed a grievance on behalf of Plaintiff, challenging his termination. PacBell denied Plaintiff's grievance, and the union decided not to pursue arbitration. Plaintiff has sued PacBell and the union for (1) unlawful discharge and breach of the duty of fair representation in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185; (2) violation of Cal. Penal Code § 290.46; and (3) wrongful termination in violation of public policy.

In an order dated November 20, 2008 ("MSJ Order") [Doc. No. 93], Judge Whelan granted in part and denied in part motions for summary judgment filed by Defendants. Judge Whelan held that PacBell had established that it would have terminated Plaintiff based on after-acquired evidence that Plaintiff had taken sick leave on December 30 and 31, 1999, even though he was not sick but, rather, was incarcerated for possession of methamphetamine. Accordingly, Plaintiff's damages were limited to the period from his termination until PacBell's discovery of his wrongdoing.

In the year after the MSJ Order was filed, Plaintiff filed four ex parte applications seeking reconsideration of the Order. Each of these ex parte applications was denied. [Doc. Nos. 97, 117, 133, 140].

On August 12, 2010, this case was reassigned to Judge Moskowitz.


For the fifth time, Plaintiff seeks reconsideration of the MSJ Order. Plaintiff contends that reconsideration is warranted based on newly discovered evidence showing that AT&T did not have a "settled" company policy of terminating employees for violating its sick leave policy. As discussed below, the Court finds that the "new evidence" does not merit reconsideration of the prior ruling on AT&T's after-acquired evidence defense.

Although the MSJ Order was issued two years ago, the Court may still consider Plaintiff's motion for reconsideration under Fed. R. Civ. P. 54(b). Under Rule 54(b), any interlocutory order "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Generally, reconsideration is deemed appropriate if the district court (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is an intervening change in controlling law. School Dist. No. J, Multnomah County, Oregon v. AC & S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Plaintiff claims that he has newly discovered evidence in the form of the deposition testimony of four witnesses, Belinda Gonzalez, Joseph Atilano, Cherie Brokaw, and Trinidad Yessenia Batt. These depositions were taken in August and September 2010 in the case of Valdez v. AT&T, et al., 09cv0811 JAH (AJB).

Even assuming that the deposition testimony of these individuals could not have been discovered earlier with the exercise of due diligence, the Court concludes that the evidence does not warrant reconsideration. Plaintiff contends that the "new evidence" demonstrates that AT&T did not have a "settled" policy of firing employees for violating the sick leave policy. However, as discussed below, AT&T is not required to show that it had a "settled" policy under which it would have been required to fire Plaintiff for making a false sick leave claim.

If an employer wishes to rely upon the after-acquired evidence defense, "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 Pub. Co., 513 U.S. 352, 362-63 (1995). The Ninth Circuit explains, "The inquiry focuses on the employer's actual employment practices, not just the standards established in its employee manuals . . . ." O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 762 (9th Cir. 1996). An employer is entitled to rely on sworn affidavits from its employees in proving that it would have discharged the plaintiff for the alleged misconduct. Id. at 762. Although an employer may not be able to prevail "based only on bald assertions that an employee would have been discharged for the later-discovered misconduct," the assertions may be corroborated by proof that the employer discharged other employees for the precise misconduct at issue, evidence of a company policy forbidding the conduct, or even common sense. Id. at 762. No Supreme Court or Ninth Circuit cases impose a requirement that the employer demonstrate the existence of a "settled" company policy requiring the termination of employees who engage in the conduct at issue. *fn1

In support of PacBell's motion for summary judgment, managers Connie Green and Jeff Smith declared that (1) Plaintiff had violated PacBell's Code of Business Conduct by making misrepresentations regarding his sick leave; and (2) they would have dismissed Plaintiff for his deception if they had known of it. (Green Decl. ¶ 19.; Smith Decl. ¶ 11.) PacBell also presented evidence that between January 1, 1998 and December 31, 2005, Alfred Buck Carter, an Area Manager in Asset Protection, investigated nine cases in which employees were found to have falsely reported their reason for absence so that they would be paid for their time away from work. (Carter Decl. ¶ 10.) In all but one of these nine instances, ...

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