Pacific Bell Wrong in not Re-Hiring Recently Fired Worker

December 28, 2005 ( - Even though it had lawfully fired an employee for not disclosing his criminal history, Pacific Bell later violated federal law by not then rehiring the employee because of his prior bouts with mental illness.

That was the ruling from the US 9 th Circuit Court of Appeals in the case involving employee Joshua Josephs who was let go when the company discovered a misdemeanor conviction for battering a police officer 13 years earlier.

Writing for the majority in the split 2 -1 opinion, Senior Circuit Judge Edward Leavy upheld a lower court jury’s ruling that Pacific Bell did not improperly fire Josephs in 1998 for not telling the company about his criminal conviction.

According to Leavy, Josephs asked for his job back after getting the criminal conviction cleaned from his record. However, contrary to how it had handled similar cases in the past, Josephs was turned away because of his mental illness history – in violation of the Americans with Disabilities Act (ADA), Leavy said.

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.”

The case, Josephs v. Pacific Bell, 05 C.D.O.S. 10836, is  here .