Mort v. Brennan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, Case No. 1:19-cv-0652-JLT-SKO 12 Plaintiff, 13 v. ORDER AMENDING DEFENDANT’S MOTION IN LIMINE NO. 3 14 LOUIS DEJOY, Postmaster General United States Postal Service, 15 (Doc. 167) 16 Defendant. 17 18 On August 10, 2022, the Court entered an order addressing the parties’ several motions in 19 limine. (Doc. 160.) The Court granted in part USPIS’s Motion in Limine No. 3 (Id. at 9-11), 20 which sought to introduce evidence and testimony of Mr. Mort’s misconduct that occurred before 21 USPIS hired him. (Doc. 101 at 3.) USPIS argued this information was found in prior OIG 22 investigations that concern Mr. Mort’s employment history at Treasury OIG. Id. USPIS 23 uncovered the prior OIG investigations during discovery of this litigation, and the investigations 24 revealed, inter alia, that Mr. Mort provided false and misleading statements to investigators and 25 while under oath. (Id. at 5.) Based on the arguments and authorities presented by the parties in the 26 original briefing regarding this evidence, the Court granted the motion in limine as to the damage 27 claim. (Doc. 160 at 10-11.) However, the Court prohibited USPIS from presenting the OIG 28 investigations to the jury as a defense to Mr. Mort’s claim that USPIS acted discriminatorily by 1 requiring multiple fitness for duty examinations, placing him on administrative leave, and 2 terminating his employment. (Id.) The Court relied upon the McKennon rule, which does not 3 permit employers to rely on evidence that it acquired after the alleged discriminatory decision to 4 negate liability under the Age Discrimination in Employment Act but allows such evidence to 5 limit equitable remedies. (Id.); see also McKennon v. Nashville Banner Publishing, 513 U.S. 352, 6 359-62 (1995) (holding information not known to the employer at the time of the adverse 7 employment decision had no relevance to its discriminatory motive). 8 After the Court’s order, USPIS filed a motion for reconsideration1 which includes 9 authority not previously presented or relied upon (Anthony v. Trax Int’l Corp., 955 F.3d 1123 (9th 10 Cir. 2020)). (Doc. 167 at 3.) Mr. Mort did not oppose USPIS’s motion for reconsideration. In 11 Anthony, the Ninth Circuit held that the McKennon rule, prohibiting after-acquired evidence as a 12 defense to discriminatory motive, does not apply to the “qualified individual” element of an ADA 13 claim. Anthony, 955 F.3d at 1134. The plaintiff and the amicus EEOC argued plaintiff’s lack of a 14 bachelor’s degree, which was a prerequisite for her position as a “technical writer,” was irrelevant 15 to the decision to terminate her employment because the defendant learned of this information 16 after the adverse employment action occurred. Id. at 1128. The Court disagreed. Although 17 plaintiff’s lack of a bachelor’s degree had no relevance to discriminatory intent, the evidence was 18 probative of whether plaintiff was qualified at the time of her termination from employment, 19 regardless of when the employer learned of the information. Id. 1129. Because “an employee 20 must show she was qualified at the time of the of the adverse employment action, rather than 21 some earlier or later time,” the qualification determination is not limited to “facts known to the 22 employer at the time of challenged employment action.” Id. The Court explained that “an 23 employer’s subjective knowledge has no bearing on the skill, experience, education and other job- 24 related qualifications that a person in fact possesses.” Id. (internal citations and modifications 25 omitted). 26 The Ninth Circuit further explained the McKennon rule does not contradict its holding in 27 28 1 Although USPIS styled the motion as one for “clarification,” the Court construes it as a motion for reconsideration 1 Anthony. In McKennon, the Supreme Court addressed a claim for discrimination under the Age 2 Discrimination in Employment Act, which does not contain a separate element requiring the 3 plaintiff to be a “qualified individual.” Id. at 1128-30. On the other hand, the statutory language 4 of the ADA “expressly limits its protections to qualified individuals.” Id. at 1130. The inquiry 5 into whether the employer had a legitimate, nondiscriminatory reason for plaintiff’s discharge 6 depends in part on the employer’s subjective knowledge at the time of the adverse employment 7 action; on the other hand, the employer’s subjective awareness of plaintiff’s credentials does not 8 impact whether plaintiff was, in fact, qualified or not for her position. Id. Thus, the Supreme 9 Court’s reasoning behind the McKennon rule does not apply to the “qualified individual” element. 10 The OIG investigations contain information bearing on whether Mr. Mort had the 11 necessary qualifications to be a postal inspector at the time USPIS took the alleged adverse 12 employment actions. These investigations revealed that Mr. Mort had lied to investigators and 13 under oath prior to starting his position at USPIS. (Doc. 101 at 5.) A jury could find that a 14 documented history of making false statements under oath impacted Mr. Mort’s credibility to 15 serve as a witness in court and administrative proceedings, which is an expressly listed job 16 requirement of a postal inspector. (Doc. 99-6 at 1.) In deposition, Mr. Mort admitted that 17 impeachment evidence may make a postal inspector “Giglio-impaired” and thus, unable to testify 18 in court. (99-5 at 3.) The Ninth Circuit case law makes clear the OIG Investigations regarding Mr. 19 Mort’s qualifications may be used to negate the “qualified individual” element of his prima facia 20 case for discrimination under the ADA, regardless of when USPIS discovered the information. 21 Anthony, 955 F.3d at 1129; see also Armijo v. Costco Wholesale Warehouse, Inc., 2022 WL 22 1267254, at 8-9 (D. Haw. Apr. 28, 2022) (finding plaintiff unqualified for his position under the 23 ADA based upon evidence discovered after the alleged adverse employment action and that 24 showed plaintiff did not actually have the experience listed on his resume). 25 Accordingly, the Court amends its prior order, and USPIS may present testimony and 26 evidence regarding the OIG investigations to the jury as relevant to the “qualified individual” 27 element of the ADA claim and Rehabilitation Claim. See Mantolete v. Bolger, 767 F.2d 1416, 28 1424-25 (9th Cir. 1985) (affirming trial court’s admission of evidence of after-acquired medical 1 | and employment history showing plaintiff's epilepsy rendered her unable to perform essential 2 | functions under her Rehabilitation Act claim). Therefore, USPIS’s motion for reconsideration 3 | (Doc. 167) is GRANTED. 4 5 IT IS SO ORDERED. 6 | Dated: _ September 7, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28