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

California Court of Appeals, First District, Fourth Division

February 18, 2015

RAYMOND E. HORNE, Plaintiff and Appellant,

Trial Court: Alameda Superior Court, No. RG 10534651, Hon. Marshall Whitley, Trial Judge.

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Burton Employment Law and Jocelyn Burton for Plaintiff and Appellant.

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



This matter comes before us on remand from the California Supreme Court, which granted review of our previous decision in the case. After issuing its opinion in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407 [173 Cal.Rptr.3d 689, 327 P.3d 797] (Salas) (certiorari denied (2014) 574 U.S. ___ [190 L.Ed.2d 627, 135 S.Ct. 755]), the Supreme Court transferred these

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proceedings back to our court for reconsideration in light of Salas. By order dated September 9, 2014, we vacated our prior decision and requested that the parties file supplemental briefing pursuant to California Rules of Court, rule 8.200(b)(1). Both parties have done so.

The genesis of this dispute is an employment discrimination action filed by appellant Raymond E. Horne (Horne) in which the trial court granted summary judgment in favor of respondent District Council 16 International Union of Painters and Allied Trades (District Council 16). In particular, the trial court held that-because Horne was unable to establish that he was qualified for the union organizer position he unsuccessfully sought-he had failed to state a prima facie case of racial discrimination in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) On appeal, Horne contends that the trial court improperly considered after-acquired evidence of a prior narcotics conviction in determining that he was ineligible for the organizer job. Horne also claims that, even if the after-acquired evidence was admissible, the trial court erred in concluding that the conviction disqualified Horne from employment as a union organizer. District Council 16, for its part, disagrees with Horne’s assertions, argues that his discrimination claim is preempted by the federal Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) (29 U.S.C. §401 et seq.), and seeks sanctions from Horne for filing a frivolous appeal. Upon due consideration, and in light of the holding and rationale in Salas, we reverse the judgment of the trial court. We also deny District Council 16’s request for sanctions.


A. Horne’s Employment History

District Council 16 is a labor organization comprising 16 local unions of drywall finishers, glaziers, painters, and floor coverers. One member union is Glaziers Local No. 718 (Local 718). Horne-an African-American male-was a glazier and a member of Local 718. Since 2004, he served as a member of the executive board of Local 718. Since 2006, he was an officer of, and the recording secretary for, that union. He was also a member of District Council 16 (or its predecessors) for many years.

District Council 16 employs more than 40 people in California. In 2009, Horne applied for an organizer position with District Council 16, without success. The man chosen to fill the position was white. In February 2010, Horne again applied for an organizer position with District Council 16. He was not hired, and the position was again filled by a white male.

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In July 2010, Horne challenged District Council 16’s decision not to hire him as a union organizer, arguing that it was made in violation of the anti-discrimination provisions of the union’s constitution and bylaws. After hearing on July 29, 2010, District Council 16 concluded that no violation had occurred. Thereafter, Horne filed a complaint for racial discrimination with the Department of Fair Employment and Housing and received a right-to-sue letter in August 2010.

B. The FEHA Litigation

In September 2010, Horne filed this employment discrimination action, alleging that District Council 16’s failure to hire him was based on his race. In January 2011, he filed his first amended complaint in the 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 as a result, and that he was discharged from parole with respect to the conviction on May 30, 2003. Horne claimed, however, that his citizenship rights, which were revoked as a result of his criminal behavior, had been fully restored. Specifically, Horne asserted that his rights to vote and serve on a jury had been restored when he completed his parole in May 2003, although he admitted that he still did not possess the right to carry a firearm. At the time of its February 2010 failure to hire Horne, District Council 16 did not know about Horne’s prior narcotics conviction: Neither it nor Local 718 had ever asked Horne if he had previously been convicted of a felony, and Horne had never volunteered the information.

In August and September 2011, having learned of Horne’s conviction, District Council 16 demanded repeatedly that Horne dismiss his lawsuit. Specifically, it asserted that the LMRDA barred Horne from employment as an organizer because of his criminal record. (See 29 U.S.C. § 504(a) (Section 504(a)).)[1] District Council 16 argued that, since Horne was statutorily disqualified in 2010 from the union organizer position, he could not maintain

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a discrimination suit based on the union’s failure to hire him in that capacity.[2] Horne did not know of the federal statute until it was brought to his attention during the course of this litigation. He disputed District Council 16’s claim that the ...

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