Wash. Court of Appeals published opinion — 723421.pdf

Citation: Wash. Court of Appeals published opinion — 723421.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/723421.pdf ↗

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the employer known of the misconduct." Rivera v. NIBCO. Inc.. 364 F.3d 1057,
1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ'g Co.. 513
U.S. 352, 360-63, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995)). An employer can

avoid back pay and other remedies by coming forward with after-acquired
evidence of an employee's misconduct, but only if it can prove by a

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preponderance of the evidence "that the wrongdoing was of such severity that

the employee in fact would have been terminated on those grounds alone if the

employer had known of it at the time of the discharge." McKennon, 513 U.S. at

362-63) (emphasis added); accord Janson v. N. Valley Hosp.. 93 Wn. App. 892,

971 P.2d 67 (1999) (adopting after-acquired evidence defense as articulated in

McKennon).

Herein, the second jury found not only that Lodis had improperly failed to

record his vacation time, but also that this misconduct constituted a breach of a

fiduciary duty that he owed to Corbis. As the trial court noted, this second finding

significantly elevates the perceived seriousness of Lodis's misconduct.

Therefore, the jury's breach of fiduciary duty verdict against Lodis was

independently relevant to Corbis's after-acquired evidence defense, particularly

whether Lodis's misconduct was of "such severity" that Shenk would have

discharged him on that basis alone. Furthermore, given the sprawling nature of
the litigation herein, the trial court's effort to limit the issues by permitting
evidence of Lodis's misconduct to be presented in an abridged manner, in the

context of the jury's determination that he breached a fiduciary duty, was well-

founded.12