|
|
|
|
|
        |
|
|
 |
II. JUDICIAL UPDATES Joshua Josephs (“Employee”) was hired as a service technician for Pacific Bell (“PacBell”), a job that would entail entering the homes of PacBell’s customers. On his PacBell application, Employee checked “no” in answer to the question “Have you ever been convicted of, or are you awaiting trial for, a felony or misdemeanor?” After he had worked for approximately three months, PacBell discovered that Employee had been arrested fifteen years earlier for attempted murder, and had been found not guilty by reason of insanity. PacBell also learned that Employee had spent 2-1/2 years in a California state mental hospital and six months in a board-and-care mental health facility. When he was released from parole in 1986, he changed his name. PacBell also learned that Employee had been convicted in 1985 for a 1982 misdemeanor battery on a police officer. Employee was suspended during PacBell’s investigation. Employee’s immediate supervisor recommended that he be restored to his position because he was performing well and “would probably be an asset to PacBell,” but that individual’s supervisor did not want to employ anyone that had “an emotional dysfunction that might cause this type of behavior.” Ultimately, Employee was discharged because the fraudulent entries on his application constituted a violation of the company’s code of conduct. Employee filed a grievance seeking reinstatement of his employment through the Service Technicians Union. While the grievance process was pending, Employee’s misdemeanor battery conviction was expunged. Employee’s union representative informed PacBell of the expungement and argued that Employee should be treated similarly to an employee who had previously been reinstated after his conviction was expunged. A PacBell vice president distinguished Josephs’ situation, stating 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 reinstatement was denied, Joseph filed a lawsuit claiming unlawful termination and unlawful refusal to reinstate in violation of the Americans With Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”). He argued that PacBell refused to reinstate him because it “regarded him” as being mentally disabled.” PacBell argued that a plea by an employee to be reinstated simply “seeks to redress the original termination” and therefore is not separately actionable from a wrongful termination claim. A federal trial court disagreed and the matter was appealed. The Ninth Circuit Court of Appeals refused to overturn the decision, holding that since PacBell’s denial of reinstatement was based on a “new element of unfairness” (the perception that he was mentally ill), a separate cause of action for “failure to reinstate” was appropriate. Under the ADA, an employee is considered disabled if he is regarded by his employer as having a physical or mental impairment that substantially limits one or more major life activities. An individual falls within this definition even when the employer “mistakenly believes” that such an impairment exists. PacBell’s statements that it considered Employee unemployable because he had spent time in a “mental ward” and might “go off” on a customer supported this theory. Perhaps the final straw was the fact that when the union representative requested that Employee be reassigned to a position that did not involve unsupervised access to customer’s homes, PacBell rejected the suggestion because “people can still walk by.” Clearly, PacBell would have been better off arguing that Employee’s fraudulent application eliminated him from ever gaining employment or reemployment by PacBell. When PacBell opined as to Employee’s mental condition, however, it created the inference that the decision to refuse to reemploy him was based upon a perception that he suffered from a mental or medical condition which rendered him disabled, thereby creating liability under both the ADA and FEHA.
If you would like to discuss these or any
other employment law matters, please do not hesitate to contact any member
of Klinedinst's Employment Law
Department.
|
|
|
|
|
 |
