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Unformatted text preview: ply, but Wright-Bradley’s criminal record could not have
been a motive for Dial's not hiring her since it was unaware of it at the time.
Dial's general counsel represented in the court's telephone conference that its
offers of employment in 2000 were contingent on passing a background check.
Counsel also stated that Dial had not previously dismissed an employee due to such
a check since it had not discovered felony convictions before but that Dial had
terminated five employees with criminal records. EEOC objected that "we've got a
factual problem here," that Dial had offered no evidence to establish that the described
policy existed, and that Dial's job application stated only that a hiring offer was
contingent on a drug test and a check of previous employment. EEOC added that it
had asked Dial during discovery for copies of background checks completed on
employees hired near the time Wright-Bradley took the WTS, but Dial responded that
it did not have such evidence.
After examining the record we conclude that there are disputed factual issues
here on the question of whether Wright-Bradley should be awarded back pay. The
statements of Dial's counsel on which the district court relied were not made under
oath, and no other evidence of Dial's policy has been proffered. Like the employer in
McKennon, Dial learned about Wright-Bradley's wrongdoing only after its
discriminatory hiring decision was made. Under the after acquired evidence framework, Dial
has the burden of proving that Dial would have terminated Wright-Bradley in 2000
because of her criminal background. See McKennon, 513 U.S. at 362-63. If Dial
produces such proof, the district court should consider whether Wright-Bradley is entitled
to any amount of back pay. See id.
In sum, we affirm the district court's denial of judgment as a matter of law, its findings of
disparate impact, and its award of back pay and benefits to all claimants except WrightBradley. Her claim for back pay is remanded for further proceedings consistent with this
opinion. 268 269 Case # 28 WALSH vs...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08