Josephs v. Pacific Bell
| Decision Date | 27 December 2005 |
| Docket Number | No. 03-56412.,03-56412. |
| Citation | 432 F.3d 1006 |
| Parties | Joshua Liam JOSEPHS, aka Joshua Liam Joesphs, Joshua Liam Josepths, Plaintiff-Appellee, v. PACIFIC BELL, Defendant-Appellant, and Does, 1-30, inclusive, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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: LEAVY, GRABER, and CALLAHAN, Circuit Judges.
Opinion by Judge Leavy; Dissent by Judge Callahan
In this appeal we must resolve issues arising from the employment discrimination action brought against Pacific Bell Telephone Company (PacBell) by a former service technician, Joshua Liam Josephs. After the jury rendered a verdict for Josephs on his claim alleging that PacBell's decision to deny him reinstatement violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq. (ADA), and the California Fair Employment and Housing Act, CAL. GOV'T CODE § 12940 (FEHA), the district court entered judgment against PacBell. PacBell now appeals on grounds that the district court erred in failing to grant it judgment as a matter of law or a new trial. PacBell also contends that the district court made two erroneous evidentiary rulings and two errors in jury instructions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the judgment.
In late 1997, Josephs applied for a service technician position with PacBell. Service technicians perform unsupervised, in-home telephone installation or repair. Josephs had been employed for ten years in a similar position with Cox Communications. Josephs checked "NO" in answer to PacBell's employment application question, "Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?" He was hired for the position in January 1998.
Under California Penal Code § 11105(c)(9), PacBell is authorized to obtain the detailed criminal history of employees who will have unsupervised access to customers' homes. After Josephs had been working for approximately three months, PacBell obtained his criminal history. Following some initial internal confusion as to the contents of the report, PacBell determined that Josephs had been arrested in 1982 for attempted murder and was found not guilty by reason of insanity, and that Josephs had been convicted in 1985 for a 1982 misdemeanor battery on a police officer.
PacBell suspended Josephs pending further investigation. It confirmed the charge of attempted murder, the finding of not guilty by reason of insanity, and the 1985 misdemeanor conviction. PacBell also learned that Josephs had been committed to and had spent two and one-half years in a California state mental hospital between 1982 and 1985, then spent six months in a board-and-care mental health facility, was released from parole on July 30, 1986, and had changed his name following his release.
Josephs' immediate supervisor at PacBell, Steve Maches, testified at trial that during the suspension he had recommended Josephs be restored to his position because Josephs was performing well and would probably be an asset to PacBell. However, Maches also testified that his supervisor, Robert Shive, told him that Shive wanted to eliminate the possibility of having someone in the business that had an "emotional dysfunction" that might cause "this type of behavior." Ultimately, PacBell notified Josephs on April 23, 1998, that he was discharged "due to fraudulent entries on your application, in that you attempted to withhold information concerning his [sic] past" and that "this was a willful attempt, and a direct violation of [PacBell's] Code of Conduct, which is not tolerated by long term employees as well as newly hired ones."
Josephs filed a grievance with PacBell seeking reinstatement of his employment. PacBell's collective bargaining agreement with the Service Technician's union provided for a three-step grievance process. Linda Sexton, the union representative, testified at trial that at Step I, she was told that the reason for Josephs' termination was his failure to disclose his misdemeanor conviction and name change. She testified that during Step II, Jeff Smith, general manager for the San Diego labor force, expressed concerns about employing someone with Josephs' "background" to work in people's homes because he might "go off" on a customer. Sexton suggested that Josephs be given a different job at PacBell, such as a splicer, which didn't involve customer contact. Smith responded by stating "people can still walk by," and that "under the advisement of legal, ... they were not going to bring someone like that back ... they had an image to uphold." Sexton asked Smith whether Josephs could have his misdemeanor conviction expunged and be reinstated, as had happened with other PacBell employees. Smith did not answer.
Josephs' misdemeanor battery conviction was expunged a month before the Step III grievance proceeding. Sexton testified that she told Augie Cruciotti, a PacBell vice-president attending the Step III proceeding, of the expungement and argued that Josephs should be treated similarly to an employee who had been reinstated after his conviction was expunged. Cruciotti distinguished Josephs' situation, stating several times that, unlike the other employee, Josephs had spent time in a "mental ward," and that PacBell could not afford to have people out there who had been released from a mental institution. After the final Step III meeting, on November 23, 1998, Cruciotti denied reinstatement with no opportunity to reapply.
On November 30, 1998, Josephs went to the Equal Employment Opportunity Commission (EEOC) office and completed paperwork to file a charge of discrimination. He was told by an EEOC employee, Ron Holmes, to have his attorney contact the EEOC after he retained counsel. Holmes did not file a charge of discrimination on behalf of Josephs nor did he refer Josephs' case to the California Department of Fair Employment and Housing (DFEH). After Josephs retained counsel in February 1999, counsel unsuccessfully attempted to contact Holmes. In April 1999, counsel was informed by the EEOC's Raul Green that Holmes had retired without processing Josephs' paperwork, but that his complaint would be considered filed as of November 30, 1998. Josephs filed a complaint with DFEH on April 22, 1999.
The complaint filed with the EEOC describes Josephs' April 23rd termination, but not the grievance process. However, Josephs' supporting affidavit, also filed with the EEOC, describes PacBell's refusal to reinstate him. The complaint filed with DFEH alleges that Josephs was "terminated" because of a mental disability but does not discuss PacBell's refusal to reinstate him. Both the DFEH and EEOC issued Josephs right-to-sue notices without further investigation.
Josephs then brought this action claiming unlawful termination of employment and unlawful refusal to reinstate in violation of the ADA and FEHA based on allegations that PacBell both terminated and refused to reinstate him because they regarded him as mentally disabled. At trial, Josephs introduced, over the objection of PacBell, evidence of the statements made by Smith and Cruciotti during his grievance proceedings and evidence of PacBell's treatment of three other employees who, like Josephs, had been terminated for failure to disclose prior criminal convictions on their employment applications but, unlike Josephs, had been reinstated or offered a conditional reinstatement. One employee had a conviction for possession of marijuana with intent to sell, one had a petty theft conviction, and one had a felony domestic violence battery conviction.
Josephs' testimony at trial detailed his mental health problems leading up to the attempted murder and commitment to the state mental hospital, his treatment and recovery, and his employment with Cox Communications and PacBell. Cross-examination of Josephs focused on whether his mental health problems were caused by illegal drug use and whether he had intentionally lied on his PacBell application. Josephs also introduced his autobiography into evidence, which had been written during his stay in the state mental hospital and described his childhood and mental illness. Josephs had provided PacBell employees a copy of the autobiography during the grievance proceedings.
PacBell's in-house lawyer, Karen Haubrich, testified at trial that she believed that "somebody who has attempted to kill another individual should not be in a service technician position." While she testified that she had discussed this belief with Smith as she advised him during the Step II grievance process, she did not discuss with him whether Josephs, in particular, should be employed in a position with unsupervised access to customers' homes. Haubrich testified that she and Smith had discussed the fact that Josephs was properly terminated for failure to reveal the conviction or his name change on his employment application. According to Haubrich's testimony, when she advised Cruciotti during the Step III grievance process, their discussions focused primarily on Josephs' lack of honesty in his application.
On cross-examination, Haubrich admitted looking up and discussing with various PacBell employees news coverage of Josephs' 1985 release from the state mental hospital. This material included newspaper reports, introduced at trial, that Josephs had been under psychiatric care and counseling at the hospital and had been a "mentally disordered offender."
As framed by Josephs and PacBell in closing...
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