prove that the wrongdoing was of such severity that had the employer discovered
the misconduct earlier, it would have terminated the employee on those grounds
alone.41
NSI assigns error to the trial court's conclusion that NSI failed to prove an
after-acquired evidence defense. Sleeth and Franssen both testified at trial that
had they not already terminated Currier's contract, they would have done so
immediately upon discovering the condition of his truck. However, the trial court
found that "NSI would not have learned of the condition of Plaintiff's truck had
NSI not terminated his contract, because it was undisputed that NSI did not
perform regular truck inspections." NSI's subcontractor agreement required
contractor drivers to comply with all local, state, and federal laws and regulations,
and thus Currier arguably breached his contract. But NSI did not show that its
38 Blanev v. Int'l Ass'n of Machinists & Aerospace Workers. Dist. No. 160,
151 Wn.2d 203, 216, 87 P.3d 757 (2004) (citation omitted) (quoting Martini v.
Boeing Co., 137 Wn.2d 357, 368, 371, 971 P.2d 45 (1999)).
39 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63, 115 S.
Ct. 879, 130 L. Ed. 2d 852 (1995); Janson v. N. Valley Hosp., 93 Wn. App. 892,
900-01,971 P.2d67(1999).
40 Janson, 93 Wn. App. at 900.
41 Janson, 93 Wn. App. at 901 (citing McKennon, 513 U.S. at 362-63).
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response would have been termination, especially given the lack of evidence that
NSI had any policy to ensure its contractors' compliance.
NSI's tire expert, Dave Temple, testified that Sleeth's photographs showed
"there was [a] violation of the Code of Federal Regulations." Temple also