The Ninth Circuit very favorably applied the after acquired evidence doctrine to completely bar a disability discrimination claim. In Anthony v. TRAX International Corporation, 955 F.3d 1123 (9th Cir. 2020), the plaintiff employee took a leave of absence under the FMLA. At the end of her leave, plaintiff failed to submit the return to full activity note from her doctor that her employer required. The employer terminated the employment relationship, and the plaintiff sued for disability discrimination. During discovery in the litigation, the employer learned that the plaintiff had lied on her job application by stating that she had a college degree when, in fact, she did not. A bachelor’s degree indisputably was a requirement for the position. The employer filed a motion with the district court arguing that the disability discrimination claim should be thrown out because the after-acquired evidence demonstrated that the plaintiff was not a “qualified individual with a disability”—an essential element of plaintiff’s disability discrimination claim. The district court agreed and entered judgment for the employer. Plaintiff unsurprisingly appealed to the Ninth Circuit.
Out of character for the Ninth Circuit, the court issued a decision agreeing with the district court’s ruling. The court held that on the facts of this case, the after-acquired evidence doctrine operated as a complete bar to the plaintiff’s claim. (More often, the after-acquired evidence doctrine can be used to limit damages, but not outright bar the claim). The Ninth Circuit acknowledged that there is a split of authority among the federal Circuit Courts of Appeal on this issue, potentially indicating that this issue will make its way to the U.S. Supreme Court to ultimately decide. For now, employers should enjoy this all-too-infrequent favorable decision out of the Ninth Circuit.
