In Josephs v. Pacific Bell (2006 Daily Journal D.A.R. 4221, C.A.9 (Cal.), Apr. 10, 2006), the United States Court of Appeals considered an employee’s claim that his termination, and the employer’s subsequent refusal to rehire him because it believed he had a mental disorder, violated the Americans With Disabilities Act (ADA).
The Court upheld a trial court ruling that a claim for discriminatory refusal to reinstate is separately actionable under the ADA, and that the employer was therefore not entitled to judgment as a matter of law.
Facts
Joshua Josephs (“Josephs”) was employed by Pacific Bell as a service technician. Several months into his employment, Pacific Bell obtained his criminal record. It learned that Josephs had once been arrested for attempted murder and been found not guilty by reason of insanity, had been convicted of misdemeanor battery on a peace officer, and had spent two and a half years in a state mental institution and six months in a board and care mental health facility.
Pacific Bell notified Josephs that he was terminated for failure to disclose his criminal past on his employment application. Josephs filed a grievance with Pacific Bell seeking reinstatement. It was denied by company officials who expressed concerns about having an employee with Josephs’ history of mental disorders. Josephs then filed complaints with the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), and both agencies issued Josephs right-to-sue notices without further investigation.
Josephs next filed a lawsuit in federal district court alleging unlawful termination of employment and unlawful refusal to reinstate in violation of the ADA and the California Fair Employment and Housing Act (FEHA), based on his termination and Pacific Bell’s refusal to rehire him because of a perceived mental disorder.
The jury found that while Josephs’ termination was nondiscriminatory, Pacific Bell’s refusal to reinstate him because of a perceived mental disability violated the ADA, and awarded Josephs compensatory damages. Pacific Bell appealed, claiming that a claim for discriminatory refusal to reinstate is not separately actionable.
Decision
Citing Inda v. United Air Lines, Inc., (N.D.Cal., Apr. 16, 1979), the Court found that a refusal to reinstate could be separately actionable if there were “new elements of unfairness, not existing at the time of the original violation, attached to denial of reemployment.” Here, the Court said, Josephs asserted and the jury found that Pacific Bell’s refusal to reinstate Josephs was based on just such a new element of unfairness, the perception that he was mentally ill.
It was therefore a separately actionable claim, and Pacific Bell was not entitled to judgment as a matter of law, the Court ruled. The appellate court further found ample evidence, in the comments of company officials, to support the jury’s finding that there was evidence to support Josephs’ claim that Pacific Bell found him unfit to work because of his perceived mental disorder.
Therefore, the trial court judgment was affirmed.
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