dissenting and concurring.
I respectfully dissent to this Court’s refusal to adopt the after-acquired evidence defense as same relates to Anti-Retaliation Law claims.
Our majority agrees with the dissenting opinion in Jordan v. Johnson Controls, Inc., 881 S.W.2d 363, 371 (Tex.App. — Dallas 1994, writ denied), overlooking or failing to recognize numerous authorities, both State and Federal, supportive of the Jordan court’s adoption of the after-acquired evidence doctrine in article 8307c cases.1
Something is sadly wrong with protecting job applicants who lie in order to obtain *265employment. Something is also ■wrong when we attempt to “flower” the word “he” by use of synonyms such as “falsification,” “falsehood,” “misrepresentation,” “fib,” “prevaricate,” “equivocate,” “falter,” seeking to avoid full blunt import. I suppose it is through the avoidance of blunt import, that we more readily fault the victim of the “fabrication,” than the fabricator. Actually, we reward the “equivocator” to the detriment of the innocent for in the long-haul, the employer, the comp-carrier and society generally, must step forward and make recompense for the “prevaricator’s” “faux pas.” There exist so many restrictions on employers as to what they can and cannot ask potential employees prior to hiring. Justice Chapman, by dissenting opinion states: “It [Johnson Controls, Inc.] could have investigated him to discover prior convictions, but, for whatever reason, it hired him.” Jordan, 881 S.W.2d at 371. Obviously, the “whatever reason” was that Johnson Controls believed Jordan’s application which verified that he had “never been convicted of a felony or other serious crime.” Id. at 364. After terminating Jordan for absenteeism, Johnson Controls discovered Jordan had been convicted of armed robbery and served time in a state penitentiary. Id. at 365. Clearly, Johnson Controls would not have hired this convicted felon had they known these very material facts. Id.
Justice Chapman’s statement that “It could have investigated him ...” deserves some retort. How does an employer adequately “investigate” a job applicant even with effective consent of the applicant? How can a potential employer adequately check the possible criminal history of an applicant without running afoul of restrictive access to law enforcement data? A trip to the local courthouse for open record search may not reveal the applicant was convicted in forty-nine other states.
I believe Jordan to be good and sound law. Jordan follows Swanson v. American Mfg. Co., 511 S.W.2d 561 (Tex.Civ.App. — Fort Worth 1974, writ ref'd n.r.e.) which is also sound law.2
Now, to my reasons for agreeing that remand is proper here. Appellant Mitchell’s employment application stated Mitchell had a high school diploma when, in fact, Mitchell had a high school equivalency diploma, to wit, a G.E.D. With very little effort, appellee, at the time of employment and as a condition of employment, could have requested a copy of appellant’s high school credentials. For whatever reason, appellee was not concerned enough, at the time of employment, to attempt verification. Appellee, now, after the fact of employment and after the fact of job-related injury, attempts to capitalize on a technical misrepresentation.
Unfortunately, it is difficult, if not judicially impossible, to design a hard, fast and static rule relating after-acquired evidence to justifiable discharge. It appears the ends of justice through appropriate due process require a ease by case appraisal, leaving the general rule announced by Jordan in tact.
In weighing these cases, courts should be mindful of McKennon v. Nashville Banner Pub. Co., 513 U.S.-, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), which requires an employer, seeking to rely on such after-acquired evidence, to first establish 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 such wrongdoing at the time of discharge.
Thus, my dissent and my concurrence.
. See, e.g., Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302, 304-305 (6th Cir.1992), cert. dism'd, 509 U.S. 943, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993); Washington v. Lake County, Ill, 969 *265F.2d 250, 256 (7th Cir.1992); Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409, 415 (6th Cir.1992); Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 708 (10th Cir.1988); Bonger v. American Water Works, 789 F.Supp. 1102, 1105-07 (D.Colo.1992); Churchman v. Pinkerton's Inc., 756 F.Supp. 515, 520-21 (D.Kan.1991); Mathis v. Boeing Military Airplane Co., 719 F.Supp. 991, 994-95 (D.Kan.1989); but see Wallace v. Dunn Constr. Co., Inc. 968 F.2d 1174, 1178 (11th Cir.1992) (court rejects Summers approach). Swanson v. American Mfg. Co., 511 S.W.2d 561 (Tex.Civ.App. — Fort Worth 1974, writ ref'd n.r.e.).
. Our majority places heavy reliance upon the dissenting opinions in Jordan. It should be noted that the two dissenting Justices in Jordan were not on the panel assigned to that case. The three assigned Justices were unified in the majority opinion. Also worthy of note, our Texas Supreme Court denied writ in Jordan.