Noted for
LARRY E. PITTMAN and SYLVESTER )
PITTMAN, MICHAEL PITTMAN, ) No.
99-2-52345-8 KNT
TERRANCE A. DAVIS, KEITH KERN, )
YOLANDA ESKRIDGE, MICHAEL ) RESPONSE IN OPPOSITION TO
DAVIS, GREGORY CODY, DAVID ) DEFENDANT’S MOTION FOR
LISTIOWEL ABRUQUAH, ARTHUR ) SUMMARY JUDGMENT BASED ON
JOSEPH A. DONKOR, DARREL CODY, )
MARY COLEMAN, ERIC ARHIN, )
SHABAE DIQUAN, SIDNEY LANIER, )
RE-LASHIA SEARLES, JAMES GOODE, )
CURTIS HOLLIS, and BENJAMIN )
BARNES, individually, )
)
plaintiffs, )
v. )
)
a
defendant. )
____________________________________)
Plaintiffs
LARRY E. PITTMAN, et al, through their undersigned attorney, respond in
opposition to the Defendant’s Motion for Summary Judgment Based on After
Acquired Evidence. The plaintiff hereby
incorporates by reference, the facts set forth and the legal authorities cited
and argued in the Standards for Summary Judgment, the Material Facts, and the
Relevant Substantive Law sections of the
Response in Opposition to Defendant’s
Motion for Summary Judgment to Dismiss Plaintiffs Michael Pittman, Sylvester
Pittman, Relashia Searles and James Goode, in
Opposition to the Defendant’s
Motion for Summary Judgment to Dismiss Plaintiffs Abruquah, Barnes, Forest,
Kilcrease,
and Hollis; and in Opposition to the Defendant’s Motion for Summary
Judgment to Dismiss Plaintiffs Michael Davis, Joe Donker, Yolanda Eskridge and
Sidney Lanier (Plaintiffs’ Response I); the facts set forth and legal
authorities cited and argued in the Material Facts with Respect to Plaintiffs
Mary Coleman, Darrel Cody, and Gregory Cody and the Relevant Substantive Law
sections of the
Response in Opposition to the Defendant’s Motion for Summary
Judgment to Dismiss Plaintiffs Mary Coleman, Darrel Cody and Greg Cody
(Plaintiffs’ Response II); the facts set forth and legal authorities cited and
argued in the Material Facts with Respect
to Plaintiffs Terrance Davis, Shabae Diquan, Keith Kern, and Eric Arhin; the
New Non-Plaintiff Declarations; Other Non-Plaintiff Declarations; and the
Relevant Substantive Law sections of the
Response in Opposition to the
Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Terrance Davis,
Shabae Diquan and Keith Kern, and to Defendant’s Motion to Dismiss Eric Arhin
and Request for Sanctions (Plaintiffs’ Response III) and the facts set forth
and legal authorities cited and argued in the Material Facts with Respect to
Plaintiff Larry Pittman section of the
Response in Opposition to Defendant’s
Motion for Summary Judgment to Dismiss Plaintiff Larry Pittman.
The
defendant cites after acquired evidence of application fraud allegedly committed
by David Abruquah, Benjamin Barnes, Michael Davis, Terrance Davis, Shabae
Diquan, Yolanda Eskridge,
After acquired evidence is not relevant to any
determination of wrongful termination because it could not have been considered
by an employer defendant when the decision to fire was made. This is a claim under
The defendant correctly identifies
Goehle v. Fred Hutchinson Cancer Research Center, (2000) 100
Sondra Goehle worked for many years at the
The
United States Supreme Court held that evidence of an employee’s misconduct that
is discovered after litigation is admissible and may reduce the damage award
calculation, but it does not bar all relief.
See McKennon v. Nashville Banner
Publ’g Co., 513
At
100
In this present case, Larry Pittman filled out the
employment application during a break after he was already working at
King’s
Command Foods, Inc., as directed by King’s Command management. He was told that it was only a formality
because he was already hired. While the
application appears to list a high school diploma, Mr. Pittman also informed
King’s Command, specifically its agent Terry Smith, at the time that he did not
finish high school. Mr. Smith indicated that it was all
right and that Mr. Pittman can go ahead and state that he had the high school
diploma and that there would be no problem.
Declaration of Larry Pittman in Opposition to Defendant’s Motion for
Summary Judgment Based on After Acquired Evidence. Furthermore, the defendant corporation’s own
guidelines for the blue collar jobs do not list a high school graduation to be
a requirement for these positions. See
Exhibits 14-16 to the Seventh Declaration of Terry Smith in Support of
Defendant’s Motion for Summary Judgment to Dismiss Plaintiff Larry
Pittman. Exhibit 14 is the defendant
corporation’s job description for Laborer, it lists no specific educational
requirements. Exhibit 15 is the
defendant’s job description for Line End (Pack off Line Lead Person), it lists
no specific educational requirements. Exhibit
16 is the defendant’s job description for Red Meat Cutter, it lists its
educational requirement to include “Less than high school education, or up to
one month related experience or training: or equivalent combination of
education and experience.” This is a far
cry from a cancer research laboratory where completion of certain college
degrees would bear directly upon the qualifications of an employee to perform such
highly technical work.
As far as honesty being a major criterion for employment
at King’s Command, there is plenty of evidence in the record to indicate that
honesty is NOT a major criterion for management employment at
King’s
Command.
As to the other plaintiffs for which the defendant
requests limitation of damages:
Defendant complains that David Abruquah left Ikea because
of inconvenient hours and then accepted full time employment at
King’s
Command. These are not inconsistent
statements as to fact. Mr. Abruquah can
be motivated by inconvenient hours to look for employment elsewhere. When he finds it, then he can leave the
previous employment. Any
misrepresentations of his family relationships with other
King’s Command
employees is not relevant to any issue in this case and would not be grounds
for dismissal. As it is, the most that the defendant can allege is a difference
in cultural viewpoints. Mr. Abruquah
testified in his deposition that he considered other people from
Benjamin Barnes left The Boeing Company in 1983. Whether he was laid off or voluntarily quit
is so immaterial to the issues of whether he qualified for employment in a blue
collar position at King’s Command that to classify the distinction as a “severe
misrepresentation” is ridiculous.
Furthermore, The Boeing Company has a procedure where an employee may be
“voluntarily laid off”. See
Declaration
of Roger W. Knight in Opposition to Defendant’s Motion for Summary Judgment
Based on After Acquired Evidence.
Therefore, Mr. Barnes characterization of the reason for leaving
Boeing
as “Lay Off” is not a false statement of fact.
As to the issue of Mr. Barnes statement on his application
that he was never “cited for safety violations” the violation alleged against
him at the Department of Corrections was sleeping on the job, which he
denied. Sleeping on the job may be a
safety violation, but it may not, the defendant does not supply evidence one
way or the other. The assault charge was
not on the job, it was allegedly the reason that he was asked to resign. Nevertheless, the application form did not
have room to list more than one reason for leaving a prior job. Therefore, it is not a falsification if the
applicant lists “too stressful” as the reason for leaving the job. Serving as a guard in a prison might well be
quite stressful, as testified by Mr. Barnes on his application.
Mr. Barnes left Nichirei because he believed that plant
was going to shut down. That is what he indicated on his application. That the plant continued operation after
being sold to new ownership was something that he could not anticipate at the
time he quit his job there. Predicting
the future can be difficult. No
falsification there.
Mr. Barnes understands that there is a difference between
“prison” and “jail”. This is another
cultural issue, similar to the above example of Ghanaian “relatives.” People convicted of felonies and sentenced to
terms longer than one year are usually sent to the state prison system. They may serve their time at
As to Mr. Barnes’ admission that he was convicted of
assault in 1990 while he listed no criminal convictions within past ten years
on his 1997 application, the questions of severity of this misrepresentation in
the context of a blue collar job and any limitation of backpay award is a
question for the jury. It certainly does
not preclude a finding that Mr. Barnes was discriminated against because of his
race.
Same is true for Michael Davis. His failure to list a criminal conviction
within ten years prior to his 1999 application presents a question of severity
of this misrepresentation in the context of a blue collar job and any
limitation of backpay award is a question for the jury. It certainly does not preclude a finding that
Mr. Barnes was discriminated against because of his race. The defendant does not presently present evidence
as to what the crime was, though he argues that it was a “drug crime”. That could be anything from a minor marijuana
misdemeanor to trafficking in ton quantities of crack cocaine. Perhaps the defendant can be more forthcoming
with the specific details of this alleged conviction so this court and the jury
can appropriately evaluate for severity and limitation of backpay award.
The same thing can said for whether or not either Michael
Davis or Terrance Davis received a high school diploma considering the blue
collar positions they held. Let the jury
evaluate the value of completing sufficient credits in Trigonometry, English,
Social Studies, History, Spanish, and Physical Education to qualify for a
diploma from Wilson High School to the meat processing positions the plaintiffs
held at King’s Command, and whether falsely stating the such a diploma was
earned constituted a fraud in any way upon the defendant corporation.
Terrence Davis mistakenly believed the question about
felony convictions was limited to such convictions within the State of
Shabae Diquan’s misrepresentation that Larry Pittman was
his in-law is quite irrelevant to his qualifications for employment, that to
classify it as a “severe misrepresentation” is ridiculous. Mr. Diquan’s education at
Similarly, let the jury evaluate the value of any
certificate degree from Seattle Vocational Institute to the blue collar
position held by Yolanda Eskridge at King’s Command and whether her false
listing of such certificate on her application constituted a fraud in any way
upon the defendant corporation. She
studied word processing and computers at Seattle Voc-Tech, and her job at
King’s Command was physically handling meat and other foods. She did not work in the office at
King’s
Command. If the defendant corporation
actually believed that she completed a certificate, then perhaps race played a
role in its decision not offer her a job in the office. Also, let the jury evaluate the value of not
listing her employment at
As to
This is very interesting.
If previous criminal convictions did not disqualify Mr. Forest, then how
could such convictions disqualify other applicants? If the only issue is the honesty of the job
applicant, then where is the concrete assurance for most applicants that a
criminal conviction does not disqualify them if revealed? It may be that applicants with records have
long and bitter experience of being turned down for employment when they are
honest about their previous problems, and would have no reason to believe that
King’s Command is different, in spite of the assurance on the application. And if such previous convictions are not a
barrier or disqualification, then why ask the question on the application at
all? Would it not be of greater fairness
for a corporation to only ask for convictions of crimes on a specific list,
which would directly bear on employability, while specifying that applicants
need not list misdemeanor marijuana convictions if they can pass a current
urine analysis test?
West
Coast Hotel v. Parrish, (1937) 300
School teachers are forever telling their students that
their grades will follow them around for the rest of their lives. Actually grades don’t. But convictions do, even two-bit misdemeanors,
such as possession of an ounce or less of marijuana or drinking while underage.
As to Curtis Hollis, he was in jail after being arrested
on a warrant for a theft committed in 1992.
But he does not testify that he was convicted and the defendant does not
present evidence of a conviction. He
testifies that he was held for four days in King County Jail before he found
out what it was all about. He did not
plead guilty but believes the resolution was to pay the money back. There does not appear to have been a trial,
bench or jury. Perhaps with the payment
of the money in question, the charges were dropped. Plenty of people are released from jail
without convictions. Here is how it
works: police have probable cause that a person committed a crime. The person is arrested and placed in
jail. It turns out that either he did
not do it or that it cannot be proven that he did it. He is released. To require that a person put through such an
experience reveal such a fact on job applications for the next ten years is an
unfair punishment for a crime without the criminal conviction. This is one reason for the distinction
between “prison” and “jail”. The
question on the application appears to be patterned on Evidence Rule 609(b),
which applies to admissibility of conviction of a crime of the witness and the
time limit for old convictions. The rule
reads in part:
Evidence
of a conviction under this rule is not admissible if a period of more than 10
years has elapsed since the date of the conviction or of the release of the
witness from the confinement imposed for that conviction, whichever is the
later date, unless the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.
It is perfectly reasonable
for Mr. Hollis to conclude that what the question on the application is asking
is if he had ten years of living outside of prison with a clean record. Being imprisoned for four days after an
arrest on a warrant that does not result in a conviction is clearly not
included in the Evidence Rule, and it is patently unfair for the defendant
corporation to consider the failure to list such a confinement on an
application a fraud in any way, shape, or form.
Let the jury determine the value to the blue collar
positions filled at King’s Command by Curtis Hollis of his previous employment
history and whether his omissions on his applications constitute a fraud upon the employer and should limit
the award if the defendant corporation is found to have discriminated on the
basis of race.
With Nathan Kilcrease, a high school diploma seems to be
unimportant to the job he was hired to perform and the promotions he earned
after he was employed, but the false listing of such educational achievement is
argued to constitute a fraud upon the employer.
As above, let the jury evaluate the value of completing sufficient
credits in Trigonometry, English, Social Studies, History, Spanish, and
Physical Education to qualify for a diploma from a high school to the cleaning
and supervisory positions he held at King’s Command, and whether falsely
stating the such a diploma was earned constituted a fraud in any way upon the
defendant corporation. Likewise, let the
jury similarly evaluate his failure to list his driving without a license
conviction in 1995, given that a conviction did not disqualify
As for Sidney Lanier, he had more than one reason for
quitting his employment at National Service Company. The application only had room list one reason
for leaving. He managed to list two
reasons. There is no false statement as
to fact here. He listed Interim as his
employer for a period of time and did not list all of the contractors to whom
he was farmed out. This is claimed as a
serious misrepresentation. This claim is
patently frivolous. His failure to
disclose a previous firing from King’s Command cannot constitute a fraud
because King’s Command certainly knew about it and hired him anyway.
As to the issue of disparate treatment, did the defendant
also engage in a background check of non-plaintiff employees to the same extent
as the plaintiffs and if so, did it find evidence that any of the
non-plaintiffs misrepresented educational achievements and absence of criminal
convictions on their applications?
Because the defendant now, at this late date in the proceedings, raises
this issue, the plaintiff has the right to question whether there was disparate
treatment between the races as to effect of past criminal convictions not
listed on applications and of the listing of educational achievements in excess
of the truth on such applications.
CONCLUSION
For
these reasons, the Defendant’s Motion for Summary Judgment Based on After
Acquired Evidence should be denied.
RESPECTFULLY
SUBMITTED,
____________________________________
Paul
H. King WSBA
#7370
Attorney
for Plaintiff
[1] Founded by Dr. William Hutchinson, who named the
center after his brother Fred Hutchinson, a standout pitcher for the Seattle Rainiers
and the Detroit Tigers who was taken by lung cancer.