qualification for the job is to have a record that is free from the chains that creates that problem in other words i think this case is very much like the murphy case before the united states supreme court dealing with over the road truck drivers in that case with high blood pressure and an individual with high blood pressure was held not to be capable to be an over the road driver not because he couldn't drive a vehicle appropriately but because the department of transportation had regulations that says someone with that circumstance would not be appropriate for the position and it is our view that in this particular job and in home customer service jobs part of the requirements for the job part of the qualification for the job  to have a an absence if you will of a record of violent behavior that might expose the company to significant legal liability obviously upset on the razor's edge that the palmer case in the second circuit discussed between the doct negligent hiring between the liability for taking someone for slightly under this circumstance and putting them in a customer's phone right now if it's all of this information would have been available to the employer at the time applied the job he would not be qualified for the job correct that is correct and that testimony was given him trial but a portion of that testimony was actually ruled inadmissible by the trial court compounding the problem because a witness for the company kiran hubbard testified that it does not matter whether someone committed a vial other attempted murder because they are criminal or because they did so under the influence of a mental disorder we do not she said place in customers homes persons with that kind of violent past were child molesters and it does not matter to us whether the cause of their difficulty the cause of their behavior emanated from concede that the employer would have responsibility for standing that person in the home i know would certainly be i mean that would be a positive action that could be stated against the employer now the jury on the other hand found that that's what the jury yes so what's you know i guess i'm trying to figure out what in your view were the errors that you know itself with the claim itself is not one that should have been recognized to begin with but i think to address what what your honor appears to be struggling with in the initial terminations decision the company made its decision based on the fact that mr joseph  have lied on his application he lied about having ever worked under a prior name he lied if there's a threat of deliberately to conceal his past and he falsely answered a question about whether he had ever been convicted of a crime among other things he  added convicted of battery on a few so officer for the low contender in have that conviction on his record and he lied about his name in order to cover up those prior convictions so the fermentation decision was based on that ground along the company didn't need to get to honor respects the existence of these other cases some of which i might add involved individuals who have never even been hired until a year after josephs terminations but the second round on which really a verdict could be sustained were t isolated comments made in the grievance settlement discussion one by a mr smith and one by mr christianity to the effect that they had concerns about legal liability of mr josephs was allowed to be in a customer closing argument counsel argued that that articulation of a concern about mr justice being in a customer home was evidence of regarding him as being disabled and therefore would support  problem was that the instruction given by the court the only one half of the hopkins instruction the instruction limited to only determining whether awareness of disability was a motivating factor i think a sought reinstatement to an in home service position and even if he was regarded as being disabled with respect to that in home service position under murphy under her convert under some of the trilogy of supreme court cases that regarded as with respect to a narrow range of jobs a specific job that has very specific qualifications for and very specific responsibilities in it and it's different than regarding someone who's being fundamentally incapable of working you have access to criminal records maintained by the state am i right uniquely as a public utility with service technicians having the privilege of going into consumers homes we have access the average employer has not and do you have access across the board for any position they are seeking to fill or just for positions you're seeking to fill which require the employee to go into a summary judgment as checking determination claim because all of the people who lived were terminated counsel for the respondent for the first time said well wait a minute i have a theory of the case that has something to do with people who had grievances and who were reinstated in the grievance process and there was quite a colloquy as the court struggled whether or not that evidence really related to the termination or whether there should at that point be some sort of leave to have a separate claim with respect to the grievance process so it was truly not until summary judgment on the first round of the pleading that the issue of the potential second claim was raised and quite late in the game an amendment was allowed to articulate an action previously taken and not the springboard for creating yet another claim with a new cause a new statute of limitations and a whole second round of litigation based on the denial of the grie and as well if we had all the information that we now want that you now we never would have hired you because you don't qualify for this position because you can't be you know with your violent past you can't be in a home right been an alternative ground on the facts of this case it was not the employer didn't need to go there because it had to it just like in traditional decision making in an adequate alternative ground if you will importantly though after th second cause of action was introduced and the debate about whether it was applies what was gone through we get to the question of the admissibility in support of the second cause of action of the statements from the grievance proceeding and the rule for a weight issue procedure where they fit can choose who they're going to reinstate on these convictions based upon race now surely that is not permissible if you are or any other  maybe yeah the mischief here is allowing this case to proceed by an individual on a pattern or practice theory based on events not only occurring up to the time of his decision which was falls but based on events occurring quite a bit thereafter an employer would be liable if something occurred in the home but by the same token what this verdict says is the employer is responsible if they then don't take them back so that now they then they if if they take him back they'd be subject to a l felony conviction for beating his wife and spent a year in custody why did they ask for a call and more if someone who had been convicted of possession of marijuana with intent to sell a felony why did you it you can come back well they would be exposing the same type of liability for allowing these employees to come back and then they would have for you for probably for they would have been more had greater exposure for a life with them for someone who agree that all these persons that you mention having common with their lives right they lied in their application can read read of that but there's timberly situated for openers to terminate these parties who had in common being liars is it more complicated than that for how do we distinguish one of one of these applicants for another from another you say i can't say that or that they have in found not guilty by reason of insanity and that's what differentiates him from this is it not is there anything different about them that is significant other than the fact that this man has been found not guilty by reason of insanity i just to be institutionalized he have to be in addition to being mentally ill adjudicated to be dangerous does you know guilty and then the second phase you're found not guilty by reason of insanity and then the court can put you in a mental institution to the maximum incarceration whatever at what attempted murder was i think nine years then after two and a half years he has a restoration of sanity and but there's two phases in california i think they'll face and then there's the not guilty by reason of insanity to get there you had to be found guilty first and the court continued to conclude that he was dangerous and he was only released when the courts found that he was no longer a danger to correct wrong so he never he could have gone in there and come out just as soon as that person as i understand it would not be a candidate for institutionalization either in california or anyplace else that's true is record for the purpose of telling the employer this person has these criminal convictions in another context and you better be careful if you're going to put even a home unsupervised now what that he was not guilty by reason of insanity and at least to continuing adjudication for a period of time that he was dangerous and if i recall correctly the court did not hung up on the on the issue of dangerousness am i right that's a long way around the barn isness to put it bluntly right so now we have as a policy of california telling that employer you better know who you're employing when you send somebody into a home will give you access to criminal records so you know who these people are and you're responsible for knowing and then you find out the to sky is a convicted of assault a police officer some years couple years after he did you catered to be not guilty by reason of insanity to an attempted murder and because they expressed some fear that he is dangerous after him to be dangerous right that constitutes the employer regarding him as having a distant mental disability limited and limiting fears of electing to work right convictions some of them violent some movie serious into bringing them back to protect if they were really concerned about protecting their customers from people with criminal conduct our distinction in this case just make a person more dangerous than otherwise or my understanding of the case law states that if someone commits a violent act while they're mentally ill that acting out be used against the my concern here you understand that i see the difference between being mentally ill and being mentally ill coupled with dangerousness that warrants commitment you see a person can be mentally ill seriously mentally ill never be stopped can that right but once a person is subject to commitment that carries with it not only mental illness institutionalized for the mental component that affected his mens rea at the time that he committed the crime so it's not that he was unable to care for himself or other individuals that's not my institutionalized people for it and i'm not guilty by insanity if that's why you go to an institution instead of prison because we've made a determination in our cases that if people have mental you know if they're affected in their ability to form the mental state required of the crime even though they committed to make a decision know the difference between right and wrong their event being if they are taken later is a lot of the mental health system is restoration mental health system pending on taking medication and let's say the employer said you know i know that this criminal justice system has maintained that he and his restored to his sanity and he can go back into society but that's contingent on him taking that medication i don't want to be worried about whether he takes his medication or not you're saying an employer couldn't say well i'm but i guess what i'm saying is if you believed if they were violent to you know again along with a mental illness you're saying that that because obviously if you're if you're violent with no mental illness you're not necessarily being violent like that day on the interview but and the employer could still say well the fact that you've committed an act of violence in the past is you know i'm not willing to take a chance now the fact that he committed an act of violence in the past and two decision as i recall and so after that trial counsel for justice argued well they should have just accommodated him and put him into a home service position but that was not a duty and that was not what was under consideration the only thing people the record was was that the legal counsel said the reason why you should not take him back is we have legal concerns with respect to reinstating him and putting him in the customer's homes there specifically was not a finding by legal prohibits the district court found and relied on to just record cases where individuals for example suffered from depression no history of violence no violent behavior in the court of the employer or wrongly stereotyped them as presenting a danger for persons convicted criminal e of attempted murder and karen haubrich the legal counsel testified that i give the same advice when someone is convicted criminally of attempted murder they don't go into the home either as i think we understand your position and you have