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Horne v. District Council 16 International Union of Painters & Allied Trades

California Court of Appeals, First District, Fourth Division

December 3, 2013

RAYMOND E. HORNE, Plaintiff and Appellant,
v.
DISTRICT COUNCIL 16 INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, Defendant and Respondent.

[REVIEW GRANTED BY CAL. SUPREME COURT]

Superior Court of Alameda County, No. RG10534651 Hon. Marshall Ivan Whitley, Judge.).

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[Copyrighted Material Omitted]

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COUNSEL

Burton Employment Law and Jocelyn Burton for Plaintiff and Appellant.

Weinberg Roger & Rosenfeld and Jannah Vanessa Manansala for Defendant and Respondent.

OPINION

REARDON, J.

The trial court granted summary judgment to respondent District Council 16 International Union of Painters and Allied Trades on

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appellant Raymond E. Horne’s employment discrimination action. Horne appeals, contending inter alia that the after-acquired evidence doctrine precluded consideration of evidence of the impact of his prior conviction on the issue of his qualification for a union organizer position. The council seeks sanctions from Horne for filing a frivolous appeal. We deny the request for sanctions and affirm the judgment.

I. FACTS

District Council 16 International Union of Painters and Allied Trades (“council”) is a group of 16 local unions of drywall finishers, glaziers, painters, and floor coverers. One member union is Glaziers Local No. 718. Raymond E. Horne—an African-American male—was a glazier and a member of that glazier’s union. Since 2004, he served as a member of the executive board of his union. Since 2006, he was an officer of that union. He also served as a member of the council for many years.

The council employs more than 40 people in California. In 2009, Horne applied for an organizer position with the council, without success. The man chosen to fill the position was white. In February 2010, Horne again applied for an organizer position with the council. He was not hired and the position was again filed by a white male.

In July 2010, Horne challenged the council’s February 2010 decision not to hire him. A hearing was conducted before the council, which found that its officials had not violated its bylaws. Horne also filed a complaint for racial discrimination with the state Department of Fair Employment and Housing. In August 2010, he received a right-to-sue letter from the department.

In September 2010, Horne filed an employment discrimination action, alleging that the council’s failure to hire him was based on his race. In January 2011, he filed his first amended complaint in this matter.

During discovery, Horne admitted that he had been convicted of possession of narcotics for sale in April 1997, that he had served a prison term for that conviction, and that he was paroled after that term of imprisonment on May 30, 2003. Horne denied that his citizenship rights, which were revoked as a result of this conviction, had not been fully restored. His right to vote had been restored since he was paroled in May 2003, but Horne admitted that he did not possess the right to carry a firearm. The council did not know these facts at the time of the February 2010 failure to hire.

In August and September 2011, knowing these facts, the council demanded that Horne dismiss his lawsuit. It asserted that federal law barred him from

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employment as an organizer because of his prior narcotics conviction. (See 29 U.S.C. § 504(a).) Horne did not know of this federal statute until that time. He disputed the council’s claim that the statute rendered him ineligible for that position.

In September 2011, the council moved for summary judgment, arguing that undisputed facts established that Horne was unqualified for the position he sought. It also asked the trial court to take judicial notice of November 2011 and January 2012 letters from the U.S. Department of Labor, Office of Labor-Management Standards (OLMS), asserting that federal law rendered Horne ineligible for the position. A “fact sheet” issued by OLMS explaining its interpretation of the statutory prohibition in general terms was attached to one of the letters. Opposing the motion for summary judgment, Horne objected to the proffered evidence of his prior conviction, asserting that the council could not rely on evidence obtained after its failure to hire to justify its employment decision. He also objected to any consideration of the proffered OLMS evidence.

After the hearing, the trial court granted the council’s motion for summary judgment. It found that Horne was unable to establish a prima facie case of discrimination because he did not show that he was qualified for the job for which he applied. It relied on evidence that at the time of the employment decision in 2010, federal law prohibited him from serving as a union organizer. It found that the 13-year-disability period established by that federal statute had not been shortened—that is, his citizenship rights had not been fully restored—because he did not have a right to carry a firearm. In so doing, it necessarily rejected Horne’s objections to the evidence of ...


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