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Can a company legally fire a person and then violate the law by not giving him his job back? The 9th U.S. Circuit Court of Appeals said yes in a Tuesday opinion, with a split three-judge panel upholding a jury’s decision that Joshua Josephs — a San Diego man fired by Pacific Bell when the phone company found out that he had lied about his criminal history — was illegally discriminated against due to his history of mental illness. The 9th Circuit’s decision squarely places reinstatement complaints — like claims over hiring and firing decisions — under the Americans with Disabilities Act. That development is bound to please plaintiffs lawyers. “It’s a pretty good decision for employees,” said Stephen Murphy, a San Francisco solo who represents workers in discrimination cases. “Thinking strategically, employees’ attorneys are going to seek reinstatement as maybe a way of backing into this claim.” Writing for the majority in the 9th Circuit opinion, Senior Judge Edward Leavy — who was joined by Judge Susan Graber — upheld the jury’s ruling that Pacific Bell did not improperly fire Josephs in 1998 when it found out that he had failed to disclose a misdemeanor conviction for battering a police officer 13 years earlier. Josephs appealed to the company for reinstatement after getting that conviction expunged. But the company, Leavy wrote, did not rehire him — contrary to how it handled similar cases — because Josephs had a history of mental illness. At trial, Josephs told the jury that other employees who had been terminated for failing to disclose convictions “had been reinstated or offered a conditional reinstatement,” Leavy wrote. “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.” Indeed, Leavy said, evidence showed that it was Josephs’ time in a mental institution between 1982 and 1985 that caused the company to refuse re-employment. At trial, Josephs’ manager testified that his superior “wanted to eliminate the possibility of having someone in the business that had an �emotional dysfunction.’” Josephs’ institutionalization stemmed from his 1982 acquittal by reason of insanity for attempting to murder a quadriplegic friend. Judge Consuelo Callahan dissented from the majority. “As presented, this case requires that Pac Bell reinstate as a service technician a person it believes may pose a danger to its customers,” she wrote. “I dissent because unless it is determined that Pac Bell’s concern that Josephs is dangerous is unreasonable, Pac Bell should not be required to send him to customers’ homes.” Callahan agreed with several arguments made by Pac Bell that the majority rejected, including protestations that the trial court prejudicially allowed irrelevant evidence and gave improper jury instructions. While the opinion presents an opening for plaintiffs lawyers, Murphy said, it should also serve as an example for employers of errors that can doom an otherwise strong case for firing an employee. “Pac Bell made some mistakes on this,” he said, namely bringing up Josephs’ mental illness during the firing process, rather than focusing solely on the fact that he had been dishonest on his job application. That eased the way for the employee’s claim, despite his checkered history. “These are bad facts for an employee,” Murphy said. “You couldn’t ask for something less sympathetic than someone who’s been found not guilty by reason of insanity.” Richard Paul, a partner at Paul, Plevin, Sullivan & Connaughton who represented Pacific Bell, and Josephs’ lawyer, Reza Keramati, of the Western Legal Group in San Diego, did not return calls by press time. The case is Josephs v. Pacific Bell, 05 C.D.O.S. 10836.

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