Joshua Liam Josephs, AKA Joshua Liam Joesphs, Joshua Liam Josepths v. Pacific Bell, Does, 1-30, Inclusive

443 F.3d 1050 Joshua Liam JOSEPHS, aka Joshua Liam Joesphs, Joshua Liam Josepths, Plaintiff-Appellee, v. PACIFIC BELL, Defendant-Appellant, Does, 1-30, inclusive, Defendants. No. 03-56412. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 10, 2005. Filed December 27, 2005. Amended April 10, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED 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 EDWARD LEAVY, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges. ORDER AMENDING OPINION AND AMENDED OPINION AND AMENDED DISSENT LEAVY, Circuit Judge. ORDER 1 The Opinion filed December 27, 2005, and appearing at 432 F.3d 1006 (9th Cir. 2005), is hereby amended, as follows: 2 1. On slip opinion page 16708, and appearing at 432 F.3d at 1014 , the heading "a. Equitable Tolling " and the following five paragraphs are deleted and the following heading and…

ORDER AMENDING OPINION AND AMENDED OPINION AND AMENDED DISSENT

ORDER

The Opinion filed December 27, 2005, and appearing at 432 F.3d 1006 (9th Cir. 2005), is hereby amended, as follows:

1. On slip opinion page 16708, and appearing at 432 F.3d at 1014 , the heading “a. Equitable Tolling ” and the following five paragraphs are deleted and the following heading and paragraphs substituted:

a. Equitable Exception

An individual plaintiff must first file a timely EEOC complaint against the allegedly discriminatory party before bringing an ADA suit in federal court. See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th *1054 Cir.1994). Because California is a “deferral” state, the claim must be filed within 300 days of the claimed event of discrimination. 42 U.S.C.A. § 2000e-5(e) (2003). The filing of a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to filing suit, but is a requirement subject to equitable doctrines such as waiver and tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982).

An equitable exception to the exhaustion requirement is available when an EEOC representative misleads the…

dissenting:

As presented to us, this case requires that Pac Bell reinstate as a service technician a person it believes may pose a danger to its customers. I dissented from the panel’s initial opinion 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 into its customers’ homes. The majority’s opinion comes close to accepting this legal proposition, but it also holds that the jury “necessarily found that [Josephs] could be trusted in customers’s homes.” I continue to dissent because my review of the record reveals that as a result of the prejudicial admission of irrelevant evidence and the improper truncation of the jury instruction on mixed motives, the jury did not, and was not asked to, determine whether Pac Bell’s concerns regarding Josephs were reasonable. Accordingly, I would vacate the judgment entered on the jury verdict and remand for a new trial.

In 1982, Josephs was arrested, and subsequently convicted for misdemeanor battery on a peace officer. He was also arrested for attempting to murder a high school friend who was a quadriplegic. Josephs was found not guilty by reason of…