Josephs v. Pacific Bell

• Decision Date: 27 December 2005
• Docket Number: No. 03-56412.,03-56412.
• Citation: 443 F.3d 1050
• Parties: Joshua Liam JOSEPHS, aka Joshua Liam Joesphs, Joshua Liam Josepths, Plaintiff-Appellee, v. PACIFIC BELL, Defendant-Appellant, Does, 1-30, inclusive, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1050

443 F.3d 1050

Joshua Liam JOSEPHS, aka Joshua Liam Joesphs, Joshua Liam Josepths, Plaintiff-Appellee, v. PACIFIC BELL, Defendant-Appellant Does, 1-30, inclusive, Defendants.

No. 03-56412.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2005.

Filed December 27, 2005.

Amended April 10, 2006.

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Richard A. Paul, Paul, Plevin, Sullivan & Connaughton, LLP, San Diego, CA, for the defendant-appellant.

Reza Keramati, Western Legal Group, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, District Judge, Presiding. D.C. No. CV-99-00843-RMB.

Before EDWARD LEAVY, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION AND AMENDED DISSENT

LEAVY, Circuit Judge.

ORDER

The Opinion filed December 27, 2005, and appearing at 432 F.3d 1006 (9th Cir. 2005), is hereby amended, as follows:

1. On slip opinion page 16708, and appearing at 432 F.3d at 1014, the heading "a. Equitable Tolling" and the following five paragraphs are deleted and the following heading and paragraphs substituted:

a. Equitable Exception

An individual plaintiff must first file a timely EEOC complaint against the allegedly discriminatory party before bringing an ADA suit in federal court. See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994). Because California is a "deferral" state, the claim must be filed within 300 days of the claimed event of discrimination. 42 U.S.C.A. § 2000e-5(e) (2003). The filing of a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to filing suit, but is a requirement subject to equitable doctrines such as waiver and tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

An equitable exception to the exhaustion requirement is available when an EEOC representative misleads the plaintiff concerning his claim. See Rodriguez v. Airborne Express, 265 F.3d 890, 901-02 (9th Cir.2001). Such relief may be granted to a plaintiff who:

(1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for processing his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time.

Id. at 902.

While Josephs' EEOC claim was not filed within 300 days of his termination, these factors all favor the application of an equitable exception to the EEOC claim. Josephs diligently pursed his claim by going to the EEOC office shortly after his termination. He was pro se at the time and was misled by the EEOC representative, Holmes, who told Josephs that he needed to retain counsel before filing a claim. Following the advice of Holmes, Josephs retained counsel, but by the time the EEOC responded to counsel's inquiries, the time for filing the claim had expired.

PacBell argues that Josephs' affidavit, which describes his dealings with the EEOC, is a "self-serving" statement that cannot form the basis for an equitable exception. We rejected an identical argument in Rodriguez: "self-serving affidavits are cognizable . . . so long as they state facts based on personal knowledge and are not too conclusory." Id.

Therefore, the district court did not abuse its discretion in finding an equitable exception to the exhaustion requirement for Josephs' EEOC complaint.

2. On slip opinion page 16712-13, and appearing at 432 F.3d at 1016-17, the paragraph beginning with "PacBell's final argument" is deleted and the following paragraphs substituted:

PacBell's final argument challenges the jury's finding that Josephs was qualified for the service technician position. PacBell argues that Josephs' past violent acts made him unqualified for the position, while the dissent asserts that, in assessing his qualifications, the jury had no opportunity to consider Josephs' potential dangerousness to PacBell customers. As a preliminary matter, we note that the ADA allows an employer to adopt a job qualification standard that an individual not pose a direct threat to the health or safety of others in the work place. See 42 U.S.C. § 12113(b) (2005); 29 C.F.R. § 1630.2(r) (2005); see also, Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1258-59 (9th Cir.2001). Therefore, unquestionably, PacBell properly required that its service technicians be safe in customers' homes. PacBell does not complain on appeal that it was prevented from presenting whatever evidence it deemed relevant on the subject of Josephs' qualifications, including its perception that he might be a danger to customers. It is a factual question for the jury whether PacBell's perception was unfounded. See Senger v. United States, 103 F.3d 1437, 1443-44 (9th Cir.1996) (issue of fact for jury whether an employee's dangerousness could be foreseen). The issue for us to decide is only whether the jury's finding that Josephs was, in fact, not dangerous, is supported by the record.

As detailed above, Question 3 of the special verdict form asked: "Was plaintiff a qualified individual who could satisfy the requisite skill, experience, education, and other job-related requirements of the Service Technician position?" The jury answered "Yes." When answering Question 3 affirmatively, the jury knew that customer contact, in customers' homes, was an important and integral function of the Service Technician position; trustworthiness in that context was a basic qualification for the job. Before making its determination that Josephs was qualified, the jury was instructed that an employer may take into account a past history of violence in making employment-related hiring decisions.

Josephs did not come to work for PacBell until about 16 years after his violent act, about 15 years after his plea of not guilty by reasons of insanity, and about 12 years after his release from a mental institution. The jury knew that, before being hired by PacBell, Josephs worked successfully for Cox Communications for a decade; as a Repair Service Technician for Cox, he entered thousands of customers' homes without incident. The jury knew that Josephs performed his job duties well at PacBell, too. The jury heard Maches' testimony that Josephs was performing well on the job and that Maches considered Josephs a potential asset to PacBell. When the jury found that Josephs was "qualified" and that he satisfied all "job-related requirements," it necessarily found that he could be trusted in customers' homes and was presently mentally stable, not dangerous.

The jury also heard evidence that PacBell was willing to assess present dangerousness objectively when the employee was not mentally ill or perceived to be so. For example, the jury heard evidence that PacBell had reinstated one service technician who had a felony domestic violence conviction.

It is undisputed that, if a person were in fact untrustworthy or dangerous in customers' homes, for whatever reason, the person would not be qualified. The jury simply found, based on the evidence, the Josephs was, in fact, safe and qualified, and that PacBell's fears were objectively unreasonable and based on a discriminatory, incorrect assumption.⁵

3. On slip opinion pages 16714-15, and appearing at 432 F.3d at 1018, the three consecutive paragraphs beginning with "PacBell first argues" are deleted and the following substituted:

PacBell first argues that the district court "gave only the first part of the mixed motive instruction, imposing liability if plaintiff's `regarded as' disability was `a motivating factor,' without including the second part — in effect defendant's affirmative defense [that it would have terminated plaintiff for other reasons anyway]."⁷ PacBell asserts that these instructions violate Supreme Court precedent in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded in part by statute, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1074, as recognized in Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003).

In Price Waterhouse, the Supreme Court set forth the "respective burdens of proof of a defendant and plaintiff in a suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives." Id. at 232, 109 S.Ct. 1775. The Supreme Court rejected the defendant's argument that the statute required the plaintiff to show "but-for causation" for the employment decision, holding that the plaintiff could meet her burden of proof by simply showing that the employer "relied upon sex-based considerations in coming to its decision." Id. at 242, 109 S.Ct. 1775. The defendant then had an affirmative defense if it could prove that "even if it had not taken gender into account, it would have come to the same decision regarding a particular person." Id. Thus, "once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id. at 244-45, 109 S.Ct. 1775 (footnote omitted).

Here, while the jury instructions included the term "motivating factor," that term, as defined in the instructions, required Josephs to show "but-for" causation. The jury was specifically told that "a motivating factor" was "something that moves the will and induces action." In addition, the jury was instructed that Josephs had to prove that PacBell would not have made the same decision but for his "regarded as" disability. Therefore, Josephs had a heavier burden of proof than that required by Price Waterhouse. Moreover, in rendering a verdict for Josephs, the jury necessarily decided that PacBell...