Piutau

MEMORANDUM **

Federal Express Corporation (Fed Ex) appeals the district court’s decision granting Taufui Piutau’s motions for summary judgment and denying Fed Ex’s motions for summary judgment. Fed Ex also appeals the district court’s decision to allow Piutau to amend his complaint. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Fed Ex suspended Piutau from his position as a driving courier after he was arrested for driving under the influence but before he had been tried on the charge. Piutau explained to Fed Ex that he had been drinking kava tea. Piutau was later acquitted.

California Labor Code § 432.7(a) prohibits employers from utilizing as a factor in determining any condition of employment “any record of arrest or detention that did not result in conviction....” In the only decision interpreting this provision, the California Court of Appeals held that “the statute cannot be read as permitting the employer to utilize the information of a mere arrest for disciplinary purposes.” Pitman v. City of Oakland, 197 Cal.App.3d 1037, 1044 , 243 Cal.Rptr. 306, 309 (Cal.Ct.App.1988) (emphasis original). We adhere to Pitman’s interpretation of this provision because, in…