2 to the contrary walsh asserts that the complaints

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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.

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