APPEAL from a judgment of the Superior Court of San Joaquin County, Elizabeth Humphreys, Judge. (Super. Ct. No. CV033425)
The opinion of the court was delivered by: Hoch, J.
CERTIFIED FOR PUBLICATION
Plaintiff Vicente Salas appeals from a summary judgment entered in favor of defendant Sierra Chemical Co. (Sierra Chemical). We affirm the judgment.
Sierra Chemical manufactures, packages, and distributes chemicals primarily used for water treatment. Demand for Sierra Chemical's products rises in the spring and summer due to the increased use of swimming pools, and declines during the fall and winter. Because of this, the company employs a number of seasonal production line workers.
In May 2003, Sierra Chemical hired Salas to work on its production line, filling containers with various chemicals. Salas provided the company with a resident alien card and a Social Security card. After Salas signed an Employment Eligibility Verification Form (I-9), on which he wrote the Social Security number, Sierra Chemical's general manager used the resident alien card as verification of Salas's identity and eligibility to work in the United States. Salas also signed an Employee's Withholding Allowance Certificate (W-4), which included the same Social Security number. Salas also printed this number on his employment application and signed the application verifying the truth of the information contained therein and acknowledging that any false statements would be grounds for dismissal.
In October 2003, Salas was laid off as part of Sierra Chemical's annual reduction in production line staff. He was recalled to work in March 2004, laid off in December 2004, and again recalled to work in March 2005. When Salas was rehired in 2004, he provided Sierra Chemical with the same resident alien card and Social Security card used to secure his initial employment. He also filled out and signed an I-9 and W-4, both of which included the same Social Security number. By December 2005, Salas had accrued enough seniority to avoid being laid off that year.
In March 2006, Salas injured his back while stacking crates at the last stage of the production line. He reported the injury to Leo Huizar, the production manager, and went to Dameron Hospital Occupational Health Services (Dameron Hospital) for treatment. The next day, Salas returned to work with the following restrictions: "1) no lifting over 10-15 pounds, 2) no prolonged sitting, 3) no prolonged standing or walking, and 4) limited bending, twisting or stooping at the waist." Sierra Chemical accommodated these restrictions by allowing Salas to sweep the work area, rinse empty containers, and perform other production line duties that did not require lifting crates. When Salas provided Huizar with a doctor's release in June 2006, he was returned to full duty.
In August 2006, Salas again injured his back while stacking crates at the end of the production line. He returned to Dameron Hospital for treatment and was placed on the same work restrictions. Following this injury, Salas brought a workers' compensation claim against Sierra Chemical and its insurance carrier, State Compensation Insurance Fund. In December 2006, Salas was again laid off as part of Sierra Chemical's annual reduction in production line staff.
In May 2007, Salas received a letter informing him that Sierra Chemical was recalling employees who were laid off the previous year. The letter instructed Salas to contact Huizar to "make arrangements to return to work" and also stated: "Bring a copy of your doctor's release stating that you have been released to return to full duty." According to Huizar, Salas contacted him after receiving this letter and stated that he could not return to work because he had not received a medical release, but that he expected to receive such a release following his doctor's appointment in June. Huizar agreed to hold the job open until Salas received the release, but never heard back from Salas.
However, according to Salas, Huizar contacted him in March 2007. When Salas said that he wanted to return to work, Huizar asked whether he was "100% recovered" from his back injury. Salas informed Huizar that he was "not completely healed," to which Huizar responded that allowing him to return to work would violate Sierra Chemical's policies. After receiving the recall letter in May 2007, Salas again talked to Huizar, who said that "he wanted [Salas] to work with them but only if [he] was fine, a hundred percent well with [his] back. If not, then [he] should not show up to work." Salas did not return to work.
Salas sued Sierra Chemical, alleging 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. (Gov. Code, § 12940, subds. (a), (m), (n).) Salas also alleged that Sierra Chemical 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 a claim.
Following an in limine motion filed by Salas in which he advised the trial court that he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status, Sierra Chemical discovered that the Social Security number used by Salas to secure employment with the company belonged to a man in North Carolina named Kelley R. Tenney.
The Summary Judgment Motion
Sierra Chemical moved for summary judgment claiming the doctrine of after-acquired evidence barred Salas's causes of action as a matter of law. This was so, argued Sierra Chemical, because there was no genuine factual dispute concerning (1) Salas's use of a counterfeit Social Security card with another person's Social Security number in order to secure employment with the company, and (2) Sierra Chemical would not have hired or recalled Salas had it known that he was using a counterfeit Social Security card with another person's Social Security number. Sierra Chemical also claimed the doctrine of unclean hands barred Salas's 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.*fn1
In support of the motion, Sierra Chemical provided a declaration from Tenney stating that the Social Security number Salas used to secure employment with the company was Tenney's Social Security number and declaring that Tenney neither knew Salas nor gave Salas or anyone else permission to use his Social Security number. Sierra Chemical also provided a declaration from the president of the company, Stanley Kinder, stating that Sierra Chemical had "a long-standing policy that precludes [the] hiring of any job applicant who is prohibited by federal immigration law from working in the United States. That policy also 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." Kinder further stated: "If it is learned that a Sierra Chemical employee submitted false information and/or false documents to establish his or her eligibility to work in the United States, that employee would be immediately terminated."
Salas opposed the motion, arguing that whether or not he misrepresented his Social Security number to Sierra Chemical is irrelevant because the company "may be held liable for disability discrimination under FEHA, regardless of [his] immigration status." Salas also argued that Tenney's statement that the Social Security number in question belonged to him was "a mere conclusion, unsupported by any foundation and completely uncorroborated," and was therefore insufficient to establish that the Social Security Administration assigned the number to Tenney as opposed to Salas, or that the number was not mistakenly assigned to both Tenney and Salas. Salas further argued that, even if Tenney's declaration is "taken at face value," because Salas swore under penalty of perjury when he filled out his employment paperwork that the Social Security number belonged to him, this created a triable issue of material fact. Finally, Salas argued that Sierra Chemical provided no evidence that he submitted a counterfeit Social Security card to secure employment with the company.
In opposition to the motion, Salas submitted his own declaration. This declaration did not state that the Social Security number Salas used to secure employment with Sierra Chemical, and claimed by Tenney to belong to him, actually belonged to Salas. Instead, Salas declared: "In late 2004 or early 2005, I received a letter from the Social Security Administration, stating my name and Social Security number do not match their records. During the same period, several of my co-workers . . . at Sierra Chemical also received letters from the Social Security Administration. We talked among ourselves at work, and at an informal meeting we compared the letters we received. We all received identical form letters. A few days later, [Huizar] spoke to us as a group and stated we need not worry about any discrepancies with Social Security numbers. [Huizar] said [Kinder] was happy with our work and that as long as he remained happy, he would not fire us over a discrepancy with a Social Security number." Salas also stated: "During the three years I worked for Sierra Chemical, ...