                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSHUA LIAM JOSEPHS, aka Joshua              No. 03-56412
Liam Joesphs, Joshua Liam
Josepths,                                       D.C. No.
                  Plaintiff-Appellee,       CV-99-00843-RMB
                 v.                              ORDER
PACIFIC BELL,                                AMENDING
                                             OPINION AND
              Defendant-Appellant,             AMENDED
                and                          OPINION AND
DOES, 1-30, inclusive,                         AMENDED

                                        
                        Defendants.             DISSENT


        Appeal from the United States District Court
          for the Southern District of California
        Rudi M. Brewster, District Judge, Presiding

                  Argued and Submitted
           March 10, 2005—Pasadena, California

                  Filed December 27, 2005
                  Amended April 10, 2006

        Before: Edward Leavy, Susan P. Graber, and
           Consuelo M. Callahan, Circuit Judges.

                 Opinion by Judge Leavy;
                 Dissent by Judge Callahan




                             3885
                    JOSEPHS v. PACIFIC BELL                 3889




                          COUNSEL

Richard A. Paul, Paul, Plevin, Sullivan & Connaughton, LLP,
San Diego, California, for the defendant-appellant.

Reza Keramati, Western Legal Group, San Diego, California,
for the plaintiff-appellee.


                           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
     1014, the heading “a. Equitable Tolling” and the follow-
     ing five paragraphs are deleted and the following heading
     and paragraphs substituted:

     a.   Equitable Exception

   An individual plaintiff must first file a timely EEOC com-
plaint against the allegedly discriminatory party before bring-
ing an ADA suit in federal court. See EEOC v. Farmer Bros.
Co., 31 F.3d 891, 899 (9th 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. § 2003e-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
3890                JOSEPHS v. PACIFIC BELL
and tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 398 (1982).

   An equitable exception to the exhaustion requirement is
available when an EEOC representative misleads the plaintiff
concerning his claim. See Rodriguez v. Airborne Express, 265
F.3d 890, 901-02 (9th Cir. 2001). Such relief may be granted
to a plaintiff who:

    (1) diligently pursued his claim; (2) was misin-
    formed or misled by the administrative agency
    responsible for processing his charge; (3) relied in
    fact on the misinformation or misrepresentations of
    that agency, causing him to fail to exhaust his
    administrative remedies; and (4) was acting pro se at
    the time.

Id. at 902.

   While Josephs’ EEOC claim was not filed within 300 days
of his termination, these factors all favor the application of an
equitable exception to the EEOC claim. Josephs diligently
pursed his claim by going to the EEOC office shortly after his
termination. He was pro se at the time and was misled by the
EEOC representative, Holmes, who told Josephs that he
needed to retain counsel before filing a claim. Following the
advice of Holmes, Josephs retained counsel, but by the time
the EEOC responded to counsel’s inquiries, the time for filing
the claim had expired.

   PacBell argues that Josephs’ affidavit, which describes his
dealings with the EEOC, is a “self-serving” statement that
cannot form the basis for an equitable exception. We rejected
an identical argument in Rodriquez: “self-serving affidavits
are cognizable . . . so long as they state facts based on per-
sonal knowledge and are not too conclusory.” Id.
                    JOSEPHS v. PACIFIC BELL                 3891
   Therefore, the district court did not abuse its discretion in
finding an equitable exception to the exhaustion requirement
for Josephs’ EEOC complaint.

2.   On slip opinion page 16712-13, and appearing at 432
     F.3d 1016-17, the paragraph beginning with “PacBell’s
     final argument” is deleted and the following paragraphs
     substituted:

   PacBell’s final argument challenges the jury’s finding that
Josephs was qualified for the service technician position. Pac-
Bell argues that Josephs’ past violent acts made him unquali-
fied for the position, while the dissent asserts that, in
assessing his qualifications, the jury had no opportunity to
consider Josephs’ potential dangerousness to PacBell custom-
ers. As a preliminary matter, we note that the ADA allows an
employer to adopt a job qualification standard that an individ-
ual not pose a direct threat to the health or safety of others in
the work place. See 42 U.S.C. § 12113(b) (2005); 29 C.F.R.
§ 1630.2(r) (2005); see also, Morton v. United Parcel Serv.,
Inc., 272 F.3d 1249, 1258-59 (9th Cir. 2001). Therefore,
unquestionably, PacBell properly required that its service
technicians be safe in customers’ homes. PacBell does not
complain on appeal that it was prevented from presenting
whatever evidence it deemed relevant on the subject of
Josephs’ qualifications, including its perception that he might
be a danger to customers. It is a factual question for the jury
whether PacBell’s perception was unfounded. See Senger v.
United States, 103 F.3d 1437, 1443-44 (9th Cir. 1996) (issue
of fact for jury whether an employee’s dangerousness could
be foreseen). The issue for us to decide is only whether the
jury’s finding that Josephs was, in fact, not dangerous, is sup-
ported by the record.

   As detailed above, Question 3 of the special verdict form
asked: “Was plaintiff a qualified individual who could satisfy
the requisite skill, experience, education, and other job-related
requirements of the Service Technician position?” The jury
3892                JOSEPHS v. PACIFIC BELL
answered “Yes.” When answering Question 3 affirmatively,
the jury knew that customer contact, in customers’ homes,
was an important and integral function of the Service Techni-
cian position; trustworthiness in that context was a basic qual-
ification for the job. Before making its determination that
Josephs was qualified, the jury was instructed that an
employer may take into account a past history of violence in
making employment-related hiring decisions.

   Josephs did not come to work for PacBell until about 16
years after his violent act, about 15 years after his plea of not
guilty by reasons of insanity, and about 12 years after his
release from a mental institution. The jury knew that, before
being hired by PacBell, Josephs worked successfully for Cox
Communications for a decade; as a Repair Service Technician
for Cox, he entered thousands of customers’ homes without
incident. The jury knew that Josephs performed his job duties
well at PacBell, too. The jury heard Maches’ testimony that
Josephs was performing well on the job and that Maches con-
sidered Josephs a potential asset to PacBell. When the jury
found that Josephs was “qualified” and that he satisfied all
“job-related requirements,” it necessarily found that he could
be trusted in customers’ homes and was presently mentally
stable, not dangerous.

   The jury also heard evidence that PacBell was willing to
assess present dangerousness objectively when the employee
was not mentally ill or perceived to be so. For example, the
jury heard evidence that PacBell had reinstated one service
technician who had a felony domestic violence conviction.

  It is undisputed that, if a person were in fact untrustworthy
or dangerous in customers’ homes, for whatever reason, the
person would not be qualified. The jury simply found, based
on the evidence, the Josephs was, in fact, safe and qualified,
                        JOSEPHS v. PACIFIC BELL                      3893
and that PacBell’s fears were objectively unreasonable and
based on a discriminatory, incorrect assumption.5

3.       On slip opinion pages 16714-15, and appearing at 432
         F.3d 1018, the three consecutive paragraphs beginning
         with “PacBell first argues” are deleted and the following
         substituted:

   PacBell first argues that the district court “gave only the
first part of the mixed motive instruction, imposing liability
if plaintiff’s ‘regarded as’ disability was ‘a motivating factor,’
without including the second part — in effect defendant’s
affirmative defense [that it would have terminated plaintiff for
other reasons anyway].”7 PacBell asserts that these instruc-
tions violate Supreme Court precedent in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), superseded in part by statute,
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1074, as recognized in Raytheon Co. v. Hernandez, 540 U.S.
44 (2003).

   In Price Waterhouse, the Supreme Court set forth the “re-
spective burdens of proof of a defendant and plaintiff in a suit
under Title VII when it has been shown that an employment
decision resulted from a mixture of legitimate and illegitimate
motives.” Id. at 232. The Supreme Court rejected the defen-
dant’s argument that the statute required the plaintiff to show
“but-for causation” for the employment decision, holding that
the plaintiff could meet her burden of proof by simply show-
ing that the employer “relied upon sex-based considerations
in coming to its decision.” Id. at 242. The defendant then had
     5
     PacBell also argues that employers are entitled to protect themselves
against potential liability from a negligent hiring claim if an employee
commits a violent act against a customer. Requiring employers to rely on
facts rather than stereotypes does not undermine employers’ ability to hire
only fully qualified people.
   7
     We recently decided that “the ADA causation standard is a motivating
factor standard.” Head v. Glacier N.W., Inc., 413 F.3d 1053, 1065 (9th
Cir. 2005).
3894                JOSEPHS v. PACIFIC BELL
an affirmative defense if it could prove that “even if it had not
taken gender into account, it would have come to the same
decision regarding a particular person.” Id. Thus, “once a
plaintiff in a Title VII case shows that gender played a moti-
vating part in an employment decision, the defendant may
avoid a finding of liability only by proving that it would have
made the same decision even if it had not allowed gender to
play such a role.” Id. at 244-45 (footnote omitted).

   Here, while the jury instructions included the term “moti-
vating factor,” that term, as defined in the instructions,
required Josephs to show “but-for” causation. The jury was
specifically told that “a motivating factor” was “something
that moves the will and induces action.” In addition, the jury
was instructed that Josephs had to prove that PacBell would
not have made the same decision but for his “regarded as”
disability. Therefore, Josephs had a heavier burden of proof
than that required by Price Waterhouse. Moreover, in render-
ing a verdict for Josephs, the jury necessarily decided that
PacBell would not have refused to reinstate Josephs for other
reasons.

  The amended Opinion will be filed concurrently with this
Order.

  With the Opinion as amended, Judges Leavy and Graber
have voted to deny the Petition for Rehearing, Judge Graber
has voted to deny the Petition for Rehearing En Banc, and
Judge Leavy so recommends. Judge Callahan has voted to
grant the Petition for Rehearing and Petition for Rehearing En
Banc.

  The full court has been advised of the Petition for Rehear-
ing En Banc and no Judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.

  The Petition for Rehearing and the Petition for Rehearing
En Banc are denied.
                    JOSEPHS v. PACIFIC BELL                 3895
  No further petitions for rehearing or for rehearing en banc
will be entertained by this court.


                          OPINION

LEAVY, Circuit Judge:

   In this appeal we must resolve issues arising from the
employment discrimination action brought against Pacific
Bell Telephone Company (PacBell) by a former service tech-
nician, Joshua Liam Josephs. After the jury rendered a verdict
for Josephs on his claim alleging that PacBell’s decision to
deny him reinstatement violated the Americans with Disabili-
ties Act of 1990, 42 U.S.C. § 12101 et. seq. (ADA), and the
California Fair Employment and Housing Act, CAL. GOV’T
CODE § 12940 (FEHA), the district court entered judgment
against PacBell. PacBell now appeals on grounds that the dis-
trict court erred in failing to grant it judgment as a matter of
law or a new trial. PacBell also contends that the district court
made two erroneous evidentiary rulings and two errors in jury
instructions. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm the judgment.

                       BACKGROUND

   In late 1997, Josephs applied for a service technician posi-
tion with PacBell. Service technicians perform unsupervised,
in-home telephone installation or repair. Josephs had been
employed for ten years in a similar position with Cox Com-
munications. Josephs checked “NO” in answer to PacBell’s
employment application question, “Have you ever been con-
victed of, or are you awaiting trial for a felony or misdemea-
nor?” He was hired for the position in January 1998.

  Under California Penal Code § 11105(c)(9), PacBell is
authorized to obtain the detailed criminal history of employ-
3896                JOSEPHS v. PACIFIC BELL
ees who will have unsupervised access to customers’ homes.
After Josephs had been working for approximately three
months, PacBell obtained his criminal history. Following
some initial internal confusion as to the contents of the report,
PacBell determined that Josephs had been arrested in 1982 for
attempted murder and was found not guilty by reason of
insanity, and that Josephs had been convicted in 1985 for a
1982 misdemeanor battery on a police officer.

   PacBell suspended Josephs pending further investigation. It
confirmed the charge of attempted murder, the finding of not
guilty by reason of insanity, and the 1985 misdemeanor con-
viction. PacBell also learned that Josephs had been committed
to and had spent two and one-half years in a California state
mental hospital between 1982 and 1985, then spent six
months in a board-and-care mental health facility, was
released from parole on July 30, 1986, and had changed his
name following his release.

   Josephs’ immediate supervisor at PacBell, Steve Maches,
testified at trial that during the suspension he had recom-
mended Josephs be restored to his position because Josephs
was performing well and would probably be an asset to Pac-
Bell. However, Maches also testified that his supervisor, Rob-
ert Shive, told him that Shive wanted to eliminate the
possibility of having someone in the business that had an
“emotional dysfunction” that might cause “this type of behav-
ior.” Ultimately, PacBell notified Josephs on April 23, 1998,
that he was discharged “due to fraudulent entries on your
application, in that you attempted to withhold information
concerning his [sic] past” and that “this was a willful attempt,
and a direct violation of [PacBell’s] Code of Conduct, which
is not tolerated by long term employees as well as newly hired
ones.”

  Josephs filed a grievance with PacBell seeking reinstate-
ment of his employment. PacBell’s collective bargaining
agreement with the Service Technician’s union provided for
                     JOSEPHS v. PACIFIC BELL                  3897
a three-step grievance process. Linda Sexton, the union repre-
sentative, testified at trial that at Step I, she was told that the
reason for Josephs’ termination was his failure to disclose his
misdemeanor conviction and name change. She testified that
during Step II, Jeff Smith, general manager for the San Diego
labor force, expressed concerns about employing someone
with Josephs’ “background” to work in people’s homes
because he might “go off” on a customer. Sexton suggested
that Josephs be given a different job at PacBell, such as a
splicer, which didn’t involve customer contact. Smith
responded by stating “people can still walk by,” and that
“under the advisement of legal, . . . they were not going to
bring someone like that back . . . they had an image to
uphold.” Sexton asked Smith whether Josephs could have his
misdemeanor conviction expunged and be reinstated, as had
happened with other PacBell employees. Smith did not
answer.

   Josephs’ misdemeanor battery conviction was expunged a
month before the Step III grievance proceeding. Sexton testi-
fied that she told Augie Cruciotti, a PacBell vice-president
attending the Step III proceeding, of the expungement and
argued that Josephs should be treated similarly to an
employee who had been reinstated after his conviction was
expunged. Cruciotti distinguished Josephs’ situation, stating
several times that, unlike the other employee, Josephs had
spent time in a “mental ward,” and that PacBell could not
afford to have people out there who had been released from
a mental institution. After the final Step III meeting, on
November 23, 1998, Cruciotti denied reinstatement with no
opportunity to reapply.

            ADMINISTRATIVE PROCEEDINGS

  On November 30, 1998, Josephs went to the Equal
Employment Opportunity Commission (EEOC) office and
completed paperwork to file a charge of discrimination. He
was told by an EEOC employee, Ron Holmes, to have his
3898                JOSEPHS v. PACIFIC BELL
attorney contact the EEOC after he retained counsel. Holmes
did not file a charge of discrimination on behalf of Josephs
nor did he refer Josephs’ case to the California Department of
Fair Employment and Housing (DFEH). After Josephs
retained counsel in February 1999, counsel unsuccessfully
attempted to contact Holmes. In April 1999, counsel was
informed by the EEOC’s Raul Green that Holmes had retired
without processing Josephs’ paperwork, but that his complaint
would be considered filed as of November 30, 1998. Josephs
filed a complaint with DFEH on April 22, 1999.

   The complaint filed with the EEOC describes Josephs’
April 23rd termination, but not the grievance process. How-
ever, Josephs’ supporting affidavit, also filed with the EEOC,
describes PacBell’s refusal to reinstate him. The complaint
filed with DFEH alleges that Josephs was “terminated”
because of a mental disability but does not discuss PacBell’s
refusal to reinstate him. Both the DFEH and EEOC issued
Josephs right-to-sue notices without further investigation.

            DISTRICT COURT PROCEEDINGS

   Josephs then brought this action claiming unlawful termi-
nation of employment and unlawful refusal to reinstate in vio-
lation of the ADA and FEHA based on allegations that
PacBell both terminated and refused to reinstate him because
they regarded him as mentally disabled. At trial, Josephs
introduced, over the objection of PacBell, evidence of the
statements made by Smith and Cruciotti during his grievance
proceedings and evidence of PacBell’s treatment of three
other employees who, like Josephs, had been terminated for
failure to disclose prior criminal convictions on their employ-
ment applications but, unlike Josephs, had been reinstated or
offered a conditional reinstatement. One employee had a con-
viction for possession of marijuana with intent to sell, one had
a petty theft conviction, and one had a felony domestic vio-
lence battery conviction.
                    JOSEPHS v. PACIFIC BELL                3899
   Josephs’ testimony at trial detailed his mental health prob-
lems leading up to the attempted murder and commitment to
the state mental hospital, his treatment and recovery, and his
employment with Cox Communications and PacBell. Cross-
examination of Josephs focused on whether his mental health
problems were caused by illegal drug use and whether he had
intentionally lied on his PacBell application. Josephs also
introduced his autobiography into evidence, which had been
written during his stay in the state mental hospital and
described his childhood and mental illness. Josephs had pro-
vided PacBell employees a copy of the autobiography during
the grievance proceedings.

   PacBell’s in-house lawyer, Karen Haubrich, testified at trial
that she believed that “somebody who has attempted to kill
another individual should not be in a service technician posi-
tion.” While she testified that she had discussed this belief
with Smith as she advised him during the Step II grievance
process, she did not discuss with him whether Josephs, in par-
ticular, should be employed in a position with unsupervised
access to customers’ homes. Haubrich testified that she and
Smith had discussed the fact that Josephs was properly termi-
nated for failure to reveal the conviction or his name change
on his employment application. According to Haubrich’s tes-
timony, when she advised Cruciotti during the Step III griev-
ance process, their discussions focused primarily on Josephs’
lack of honesty in his application.

   On cross-examination, Haubrich admitted looking up and
discussing with various PacBell employees news coverage of
Josephs’ 1985 release from the state mental hospital. This
material included newspaper reports, introduced at trial, that
Josephs had been under psychiatric care and counseling at the
hospital and had been a “mentally disordered offender.”

   As framed by Josephs and PacBell in closing arguments,
the determinative issue before the jury was whether PacBell
refused to reinstate Josephs because it regarded him as having
3900                   JOSEPHS v. PACIFIC BELL
a mental illness that might result in future acts of violence or
because of the violent acts he had previously committed.

   The jury was instructed that to render a verdict for Josephs
on his claim for discrimination in the reinstatement process,
it had to affirmatively answer four questions:

         1. Did Pacific Bell regard plaintiff as having a
      mental disorder at the time of his termination or non-
      reinstatement?

         2. Did Pacific Bell regard plaintiff as having a
      long-term mental disorder which substantially lim-
      ited his ability to work in a broad range of jobs?

         3. Was plaintiff a qualified individual who could
      satisfy the requisite skill, experience, education, and
      other job-related requirements of the Service Techni-
      cian position?

        ....

         5. Did Pacific Bell refuse to agree to reinstate
      plaintiff in the grievance settlement process because
      of his regarded as disability?1

  The district court further instructed the jury that “[a]n
employer may take into account a past history of violence in
making employment-related hiring decisions.” The district
court also gave two mixed motive jury instructions:

      Jury Instruction No. 27:

        The third element plaintiff must prove by a pre-
      ponderance of the evidence is that the plaintiff’s
      regarded as disability was a motivating factor in the
  1
   Question 4 related solely to the discharge claim.
                        JOSEPHS v. PACIFIC BELL                      3901
      defendant’s decisions to terminate and/or to not rein-
      state the plaintiff.

        A motivating factor is something that moves the
      will and induces action even though other matters
      may have contributed to the taking of the action.

        Jury Instruction No. 14:

         It is not necessary for the plaintiff to prove that the
      plaintiff’s regarded as disability was the sole or
      exclusive reason for the defendant’s decision, but,
      plaintiff must prove that defendant would not have
      made the same decision but for the plaintiff’s
      regarded as disability.

   PacBell objected to the mixed-motive instruction as given,
arguing that it should be followed by an instruction that “even
if you find regarded as disability was a motivating factor, the
employer will not be liable for the termination if it proves by
a preponderance of the evidence that it would have terminated
Plaintiff for other reasons anyway.”

   During its deliberations, the jury asked for clarification of
the phrase “because of” in question 4, “Did Pacific Bell dis-
charge plaintiff because of his regarded as disability?”2 The
jury stated: “We are struggling to determine if ‘because of’ is
to be interpreted as ‘the sole reason’ or is it possible to be
combined with other factors as we reach our decision of ‘yes’
or ‘no.’ ” The district court referred the jury to Jury Instruc-
tion No. 27, stating that “the plaintiff must prove by a prepon-
derance of the evidence that the plaintiff’s ‘regarded as’
disability was a motivating factor in the discharge — a factor
that moves the will and induces and determines the action,
  2
   The same phrase occurred in question 5, “Did Pacific Bell refuse to
agree to reinstate plaintiff in the grievance settlement process because of
his regarded as disability?”
3902                JOSEPHS v. PACIFIC BELL
even though other matters may have contributed to the taking
of the action.”

   The jury determined by special verdict that PacBell’s termi-
nation of Josephs was nondiscriminatory. However, the jury
determined that PacBell refused to reinstate Josephs because
it regarded him as mentally disabled in violation of the ADA.
The jury awarded Josephs compensatory damages. On April
30, 2003, PacBell moved for judgment as a matter of law and
a new trial. The district court denied the motions, and PacBell
timely appealed.

                         ANALYSIS

A.     Judgment as a Matter of Law/New Trial

   PacBell contends that it was entitled to judgment as a mat-
ter of law because (1) a claim for discriminatory refusal to
reinstate is not separately actionable under the ADA or
FEHA; (2) Josephs had not exhausted administrative remedies
with respect to his reinstatement claim; and (3) the evidence
was insufficient to support the jury’s findings that Josephs’
“condition” was covered by the ADA, that this condition lim-
ited a major life activity, and that Josephs was qualified for
the position of service technician.

  1.    Claim for Discriminatory Refusal to Reinstate

   PacBell argues that, under Collins v. United Air Lines, Inc.,
514 F.2d 594, 596 (9th Cir. 1975), a plea by an employee to
be reinstated simply “seeks to redress the original termina-
tion” and is, therefore, not separately actionable. This is an
issue of law that we review de novo. Harper v. U.S. Seafoods,
278 F.3d 971, 973 (9th Cir. 2002).

   [1] Collins is distinguishable from the facts of Josephs’
claim because “new elements of unfairness, not existing at the
time of the original violation, attached to denial of re-
                       JOSEPHS v. PACIFIC BELL                    3903
employment.” Inda v. United Air Lines, Inc., 565 F.2d 554,
561-62 (9th Cir. 1977). Here, Josephs asserted and the jury
found that PacBell’s denial of reinstatement was based on just
such a “new element of unfairness,” the perception that he
was mentally ill. While Inda involved a denial of reemploy-
ment, rather than a failure to reinstate, its holding is not lim-
ited to a particular employment action.

   [2] Therefore, we join the First, Third, Fourth, Tenth, and
Eleventh Circuits and expressly recognize discriminatory fail-
ure to reinstate as a separately actionable claim. See EEOC v.
City of Norfolk Police Dep’t, 45 F.3d 80 (4th Cir. 1995); Sam-
uels v. Raytheon Corp., 934 F.2d 388 (1st Cir. 1991); EEOC
v. Hall’s Motor Transit Co., 789 F.2d 1011 (3d Cir. 1986);
Burnam v. Amoco Container Co., 755 F.2d 893 (11th Cir.
1985) (per curiam); Poolaw v. City of Anadarko, 660 F.2d
459 (10th Cir. 1981).

  2.   Exhaustion of Administrative Remedies

   PacBell argues that Josephs did not exhaust the administra-
tive remedies for his claim for refusal to reinstate because (1)
equitable tolling is not applicable to Josephs’ EEOC claim
and (2) Josephs’ DFEH charge, which was timely filed within
a year of his dismissal,3 and his EEOC claim both failed to
mention refusal to reinstate. This court reviews for abuse of
discretion the district court’s decision to apply equitable toll-
ing. See Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003).
Whether a plaintiff has exhausted required administrative
remedies is a question of law, reviewed de novo. See Banks-
ton v. White, 345 F.3d 768, 770 (9th Cir. 2003).
  3
   DFEH complaints must be filed within one year of the alleged discrim-
inatory action. CAL. GOV’T CODE § 12960(d).
3904                JOSEPHS v. PACIFIC BELL
    a.   Equitable Exception

   [3] 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 Cir. 1994). Because Califor-
nia is a “deferral” state, the claim must be filed within 300
days of the claimed event of discrimination. 42 U.S.C.A.
§ 2003e-5(e) (2003). The filing of a timely charge of discrimi-
nation with the EEOC is not a jurisdictional prerequisite to fil-
ing 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 (1982).

   [4] An equitable exception to the exhaustion requirement is
available when an EEOC representative misleads the plaintiff
concerning his claim. See Rodriguez v. Airborne Express, 265
F.3d 890, 901-02 (9th Cir. 2001). Such relief may be granted
to a plaintiff who:

    (1) diligently pursued his claim; (2) was misin-
    formed or misled by the administrative agency
    responsible for processing his charge; (3) relied in
    fact on the misinformation or misrepresentations of
    that agency, causing him to fail to exhaust his
    administrative remedies; and (4) was acting pro se at
    the time.

Id. at 902.

   [5] While Josephs’ EEOC claim was not filed within 300
days of his termination, these factors all favor the application
of an equitable exception to the EEOC claim. Josephs dili-
gently pursed his claim by going to the EEOC office shortly
after his termination. He was pro se at the time and was mis-
led by the EEOC representative, Holmes, who told Josephs
that he needed to retain counsel before filing a claim. Follow-
ing the advice of Holmes, Josephs retained counsel, but by the
                        JOSEPHS v. PACIFIC BELL                       3905
time the EEOC responded to counsel’s inquiries, the time for
filing the claim had expired.

   PacBell argues that Josephs’ affidavit, which describes his
dealings with the EEOC, is a “self-serving” statement that
cannot form the basis for an equitable exception. We rejected
an identical argument in Rodriquez: “self-serving affidavits
are cognizable . . . so long as they state facts based on per-
sonal knowledge and are not too conclusory.” Id.

   [6] Therefore, the district court did not abuse its discretion
in finding an equitable exception to the exhaustion require-
ment for Josephs’ EEOC complaint.

      b.   Exhaustion of Reinstatement Claim

   [7] We construe charges filed before the EEOC and the
DFEH liberally. See Stache v. Int’l Union of Bricklayers &
Allied Craftsmen, 852 F.2d 1231, 1233 (9th Cir. 1988). “Sub-
ject matter jurisdiction extends over all allegations of discrim-
ination that either ‘fell within the scope of the EEOC’s actual
investigation or an EEOC investigation which can reasonably
be expected to grow out of the charge of discrimination.’ ”
B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir.
2002) (quoting Farmer Bros. Co., 31 F.3d at 899).

   [8] In Couveau v. American Airlines, Inc., 218 F.3d 1078,
1082 (9th Cir. 2000) (per curiam), we held that a wrongful
termination claim was encompassed in a failure-to-reinstate
charge, stating that the termination is “unquestionably like or
reasonably related to” the allegations of discrimination in the
refusal to reinstate charge.4 (Internal quotation marks omit-
ted.) Here, Josephs’ refusal-to-reinstate claim is similarly “un-
  4
    Although Couveau involved an FEHA claim, the Ninth Circuit applied
Title VII law in reaching its result and explained that, “[b]ecause Califor-
nia law under the FEHA mirrors federal law under Title VII, federal cases
are instructive.” 218 F.3d at 1082 n.4.
3906                JOSEPHS v. PACIFIC BELL
questionably” related to his termination claim. The same
employer allegedly refused to reinstate Josephs for the same
discriminatory reason that allegedly caused his termination.
Any administrative investigation of his termination claim
would have necessarily encompassed the grievance proceed-
ing. Thus, Josephs exhausted his claim for discriminatory
refusal to reinstate.

  3.   Sufficiency of the Evidence to Support the Judgment

   PacBell challenges the sufficiency of the evidence support-
ing the jury’s findings that Josephs’ “condition” was covered
by the ADA, that his condition limited a major life activity,
and that Josephs was qualified for the position of service tech-
nician.

   We review de novo the district court’s denial of a renewed
motion for judgment as a matter of law. See White v. Ford
Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002), amended by
335 F.3d 833 (9th Cir. 2003). We must view the evidence in
the light most favorable to the nonmoving party — here,
Josephs, — and draw all reasonable inferences in that party’s
favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 149-50 (2000). The test applied is whether the evi-
dence permits only one reasonable conclusion, and that con-
clusion is contrary to the jury’s verdict. See Pavao v. Pagay,
307 F.3d 915, 918 (9th Cir. 2002).

   [9] Under the ADA an employee is considered disabled if
he is regarded by his employer as having a physical or mental
impairment that substantially limits one or more major life
activities. 42 U.S.C. § 12102(2)(A) & (C). An individual falls
within this definition if his employer “mistakenly believes
that a person has a[n] . . . impairment that substantially limits
one or more major life activities.” Sutton v. United Air Lines,
Inc., 527 U.S. 471, 489 (1999).

 [10] The term “mental impairment” is not defined in the
ADA. See 42 U.S.C. § 12101. ADA regulations however, rec-
                    JOSEPHS v. PACIFIC BELL                 3907
ognize that “mental impairments” are included within the
term “disability,” and indirectly define this phrase to include
“[a]ny mental or physiological disorder, such as . . . emotional
or mental illnesses.” 29 C.F.R. § 1630.2(g)(2) & (h)(2)
(2005).

   [11] Here, Josephs claimed that PacBell regarded him as
suffering from a mental illness that might result in future acts
of violence. While it is true, as PacBell argues, that the Cali-
fornia court’s determination of legal insanity does not neces-
sarily mean that Josephs suffered from a mental impairment
covered by the ADA, the jury considered more than Josephs’
criminal record and court documents. It heard evidence that
PacBell employees considered Josephs unemployable because
he had spent time in a “mental ward” and might “go off” on
a customer. It considered newspaper reports that PacBell
reviewed and discussed during the grievance proceedings,
which included statements that Josephs was a “mentally disor-
dered offender” who had been under psychiatric care. The
jury read Josephs’ autobiography, as had PacBell employees,
which detailed his mental instability before his stay in the
mental hospital. Thus, the jury had ample evidence to support
its finding that PacBell regarded Josephs as having a mental
impairment covered by the ADA.

   [12] The jury found that PacBell regarded Josephs’ mental
disorder as substantially limiting his ability to work in a broad
range of jobs. Under the ADA, when the “major life activity”
that is “substantially limit[ed]” is working, the employee must
be regarded as unable to work in a “class of jobs or a broad
range of jobs in various classes as compared to the average
person having comparable training, skills and abilities.” 29
C.F.R. § 1630.2(j)(3)(i). The jury heard evidence that PacBell
considered Josephs unfit for any job with the company.
Maches testified that his supervisor told him the company
wanted to “eliminate the possibility” of employing someone
such as Josephs. When the union representative proposed that
Josephs be offered a position that did not involve unsuper-
3908                JOSEPHS v. PACIFIC BELL
vised access to customers’ homes, PacBell rejected the sug-
gestion because “people can still walk by.” This evidence
amply supports the jury’s finding that PacBell viewed Josephs
as having a mental disability that “substantially limited” him
in the “major life activity” of working.

   PacBell’s final argument challenges the jury’s finding that
Josephs was qualified for the service technician position. Pac-
Bell argues that Josephs’ past violent acts made him unquali-
fied for the position, while the dissent asserts that, in
assessing his qualifications, the jury had no opportunity to
consider Josephs’ potential dangerousness to PacBell custom-
ers. As a preliminary matter, we note that the ADA allows an
employer to adopt a job qualification standard that an individ-
ual not pose a direct threat to the health or safety of others in
the work place. See 42 U.S.C. § 12113(b) (2005); 29 C.F.R.
§ 1630.2(r) (2005); see also, Morton v. United Parcel Serv.,
Inc., 272 F.3d 1249, 1258-59 (9th Cir. 2001). Therefore,
unquestionably, PacBell properly required that its service
technicians be safe in customers’ homes. PacBell does not
complain on appeal that it was prevented from presenting
whatever evidence it deemed relevant on the subject of
Josephs’ qualifications, including its perception that he might
be a danger to customers. It is a factual question for the jury
whether PacBell’s perception was unfounded. See Senger v.
United States, 103 F.3d 1437, 1443-44 (9th Cir. 1996) (issue
of fact for jury whether an employee’s dangerousness could
be foreseen). The issue for us to decide is only whether the
jury’s finding that Josephs was, in fact, not dangerous, is sup-
ported by the record.

   As detailed above, Question 3 of the special verdict form
asked: “Was plaintiff a qualified individual who could satisfy
the requisite skill, experience, education, and other job-related
requirements of the Service Technician position?” The jury
answered “Yes.” When answering Question 3 affirmatively,
the jury knew that customer contact, in customers’ homes,
was an important and integral function of the Service Techni-
                        JOSEPHS v. PACIFIC BELL                      3909
cian position; trustworthiness in that context was a basic qual-
ification for the job. Before making its determination that
Josephs was qualified, the jury was instructed that an
employer may take into account a past history of violence in
making employment-related hiring decisions.

   Josephs did not come to work for PacBell until about 16
years after his violent act, about 15 years after his plea of not
guilty by reasons of insanity, and about 12 years after his
release from a mental institution. The jury knew that, before
being hired by PacBell, Josephs worked successfully for Cox
Communications for a decade; as a Repair Service Technician
for Cox, he entered thousands of customers’ homes without
incident. The jury knew that Josephs performed his job duties
well at PacBell, too. The jury heard Maches’ testimony that
Josephs was performing well on the job and that Maches con-
sidered Josephs a potential asset to PacBell. When the jury
found that Josephs was “qualified” and that he satisfied all
“job-related requirements,” it necessarily found that he could
be trusted in customers’ homes and was presently mentally
stable, not dangerous.

   The jury also heard evidence that PacBell was willing to
assess present dangerousness objectively when the employee
was not mentally ill or perceived to be so. For example, the
jury heard evidence that PacBell had reinstated one service
technician who had a felony domestic violence conviction.

  It is undisputed that, if a person were in fact untrustworthy
or dangerous in customers’ homes, for whatever reason, the
person would not be qualified. The jury simply found, based
on the evidence, the Josephs was, in fact, safe and qualified,
and that PacBell’s fears were objectively unreasonable and
based on a discriminatory, incorrect assumption.5
  5
   PacBell also argues that employers are entitled to protect themselves
against potential liability from a negligent hiring claim if an employee
commits a violent act against a customer. Requiring employers to rely on
facts rather than stereotypes does not undermine employers’ ability to hire
only fully qualified people.
3910                    JOSEPHS v. PACIFIC BELL
B.     Evidentiary Rulings

   PacBell challenges two of the district court’s evidentiary
rulings. We review “evidentiary rulings for abuse of discre-
tion and will not reverse absent some prejudice.” Cassino v.
Reichhold Chems., Inc., 817 F.2d 1338, 1342 (9th Cir. 1987).
PacBell first argues that the district court erred when it admit-
ted into evidence statements made during Josephs’ grievance
proceeding, asserting that this ruling violated Federal Rule of
Evidence 408 and federal labor policy.

     Rule 408 states in pertinent part:

       Evidence of (1) furnishing or offering or promising
       to furnish, or (2) accepting or offering or promising
       to accept, a valuable consideration in compromising
       or attempting to compromise a claim which was dis-
       puted as to either validity or amount, is not admissi-
       ble to prove liability for or invalidity of the claim or
       its amount. Evidence of conduct or statements made
       in compromise negotiations is likewise not admissi-
       ble.

   [13] Because the purpose of Rule 408 is to encourage the
compromise and settlement of existing disputes, and the
grievance proceeding did not concern Josephs’ not-yet-filed
discrimination claim, the district court did not abuse its dis-
cretion when it admitted the statements made by PacBell
employees.6 See Cassino 817 F.2d at 1343.

   [14] PacBell also contends that the district court should not
have admitted evidence of three other employees’ grievance
settlements because these employees’ circumstances were not
  6
   The one Ninth Circuit case PacBell cites in support of its federal labor
policy argument, Hyles v. Mensing, 849 F.2d 1213, 1217 (9th Cir. 1988),
stands only for the proposition that statements made in grievance proceed-
ings may not be used as a basis for a state tort claim.
                      JOSEPHS v. PACIFIC BELL                    3911
“nearly identical” to Josephs’ situation. In a discrimination
case, a showing that the employer treated “similarly situated”
employees more favorably than the plaintiff is probative of
the employer’s discriminatory motivation. Vasquez v. County
of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
“[I]ndividuals are similarly situated when they have similar
jobs and display similar conduct.” Id. Each of the three
employees at issue in this appeal meets this standard. Like
Josephs, each (1) was a service technician, (2) failed to reveal
prior criminal conviction on the employment application, (3)
was terminated, and (4) participated in the grievance process.
Therefore, the district court did not abuse its discretion in
admitting into evidence their employment history and griev-
ance settlements. See id.

C.    Jury Instructions

   PacBell argues that the jury instructions were erroneous in
two respects. “In evaluating jury instructions, this court con-
siders the charge as a whole to determine whether it is mis-
leading or misstates the law . . . and will not reverse a
judgment because of an erroneous instruction if the instruc-
tions fairly and adequately cover the issues.” Cassino, 817
F.2d at 1344.

   PacBell first argues that the district court “gave only the
first part of the mixed motive instruction, imposing liability
if plaintiff’s ‘regarded as’ disability was ‘a motivating factor,’
without including the second part — in effect defendant’s
affirmative defense [that it would have terminated plaintiff for
other reasons anyway].”7 PacBell asserts that these instruc-
tions violate Supreme Court precedent in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), superseded in part by statute,
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
  7
   We recently decided that “the ADA causation standard is a motivating
factor standard.” Head v. Glacier N.W., Inc., 413 F.3d 1053, 1065 (9th
Cir. 2005).
3912                JOSEPHS v. PACIFIC BELL
1074, as recognized in Raytheon Co. v. Hernandez, 540 U.S.
44 (2003).

   In Price Waterhouse, the Supreme Court set forth the “re-
spective burdens of proof of a defendant and plaintiff in a suit
under Title VII when it has been shown that an employment
decision resulted from a mixture of legitimate and illegitimate
motives.” Id. at 232. The Supreme Court rejected the defen-
dant’s argument that the statute required the plaintiff to show
“but-for causation” for the employment decision, holding that
the plaintiff could meet her burden of proof by simply show-
ing that the employer “relied upon sex-based considerations
in coming to its decision.” Id. at 242. The defendant then had
an affirmative defense if it could prove that “even if it had not
taken gender into account, it would have come to the same
decision regarding a particular person.” Id. Thus, “once a
plaintiff in a Title VII case shows that gender played a moti-
vating part in an employment decision, the defendant may
avoid a finding of liability only by proving that it would have
made the same decision even if it had not allowed gender to
play such a role.” Id. at 244-45 (footnote omitted).

   [15] Here, while the jury instructions included the term
“motivating factor,” that term, as defined in the instructions,
required Josephs to show “but-for” causation. The jury was
specifically told that “a motivating factor” was “something
that moves the will and induces action.” In addition, the jury
was instructed that Josephs had to prove that PacBell would
not have made the same decision but for his “regarded as”
disability. Therefore, Josephs had a heavier burden of proof
than that required by Price Waterhouse. Moreover, in render-
ing a verdict for Josephs, the jury necessarily decided that
PacBell would not have refused to reinstate Josephs for other
reasons.

  Second, PacBell argues that the district court erred in giv-
ing Jury Instruction No. 31, because it led the jury to think
                    JOSEPHS v. PACIFIC BELL                 3913
that the sample of three other employees had statistical value.
This instruction provided:

       In judging the weight to be given statistical evi-
    dence, you may take into consideration the size of
    the group along with all of the other evidence. Gen-
    erally, the larger the group size, the more probative
    the result.

   [16] The evidence that Josephs introduced regarding the
three other employees was relevant to his claim. Instruction
No. 31 properly told the jury to weigh its probativeness con-
sidering the size of the group. Thus, it was not error to give
the instruction.

  AFFIRMED.



CALLAHAN, Circuit Judge, 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 majori-
ty’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.
3914                      JOSEPHS v. PACIFIC BELL
   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
insanity, spent two-and-a-half years in a state mental hospital,
and was released in 1985.

   In 1997, Josephs applied for a job with Pac Bell as a ser-
vice technician. A service technician performs unsupervised,
in-home telephone installation or repair. Josephs failed to dis-
close his prior conviction or his stay in the state mental hospi-
tal on his application. In April 1998, when Pac Bell
discovered Josephs’ deception, it terminated his employment.

   After initially going to the Equal Employment Opportunity
Commission (“EEOC”) in November 1998, and being
improperly advised, Josephs tendered a charge of discrimina-
tion to the EEOC in April 1999, which was considered filed
as of November 1998.1 Josephs then filed this action alleging
that Pac Bell wrongfully terminated his employment. It was
not until three years after he filed his action that Josephs, in
his fourth amended complaint, formally asserted a separate
claim for an alleged failure to reinstate his employment.
Although I question whether Josephs exhausted his adminis-
trative remedies on this claim,2 the real harm from the district
  1
      I agree with the majority that the district court did not abuse its discre-
tion in applying equitable tolling to the filing of Josephs’ EEOC com-
plaint.
    2
      This case reveals the tension between the requirement that a plaintiff
exhaust his or her administrative remedies by filing a complaint with the
EEOC and the California Department of Fair Housing and Employment
and the liberal construction of such complaints. Unlike the majority, I find
little comfort in Couveau v. American Airlines, 218 F.3d 1078, 1082 (9th
Cir. 2000). In Couveau, we held that the plaintiff’s second claim was
unquestionably like her initial claim and did not raise a new basis for
alleged discrimination. Id. Here, although Josephs’ administrative com-
plaints alleged that he was wrongfully terminated because of a perceived
mental disability and sought reinstatement, they referred to the April 1998
                        JOSEPHS v. PACIFIC BELL                        3915
court allowing Josephs’ to maintain causes of action for
wrongful termination and failure to reinstate was its failure to
keep them separate.

   As the majority notes, in order to state a failure to reinstate
claim separate from a wrongful termination claim, the new
claim must allege “new elements of unfairness, not existing
at the time of the original violation.” Inda v. United Airlines,
Inc. 565 F.2d 554, 561-2 (9th Cir. 1977). The district court
recognized this in its June 2002 Order re: Motions in Limine,
its first order to address Josephs’ failure to reinstate claim.
The court held that Josephs had produced sufficient evidence
to survive a motion for summary judgment and explained:

     See EEOC v. Hall’s Motor Transit, 789 F.2d 1011
     (3rd Cir. 1986) (EEOC produced sufficient evidence
     to support a claim of discriminatory failure to rein-
     state where the black employee’s prior accident was
     minor compared with that of the white employees
     and the EEOC introduced considerable evidence
     regarding the employer’s reputation for being
     biased). Pac Bell’s attempt to distinguish Hall’s
     Motor from Josephs’ grievance proceedings is
     unavailing. Josephs has produced evidence that some
     employees who lied on their employment applica-
     tions were reinstated, as well as evidence of state-
     ments indicating that Pac Bell employees perceived
     Josephs as having a mental disability.

termination of his employment and neither mentioned the grievance pro-
cess. This seems meaningful as Josephs’ failure-to-reinstate claim arises
out of the grievance process and requires new elements of unfairness that
are not part of his wrongful termination claim. It is not clear that the pur-
poses of the exhaustion requirement were met in this case. See B.K.B. v.
Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (noting that the
administrative charge requirement serves the important purposes of giving
the charged party notice of the claim and narrowing the issues for prompt
adjudication and decision); Okoli v. Lockheed Technical Operations Co.,
36 Cal. App. 4th 1607, 1613 (Cal. Ct. App. 1995).
3916                JOSEPHS v. PACIFIC BELL
The district court’s factual determination is controlling and,
accordingly, I agree with the majority that Josephs stated a
separate claim for discriminatory failure to reinstate.

   The district court’s reasoning, however, presaged the error
to come. Josephs’ claim for failure to reinstate is not based on
an allegation that others who lied on their employment appli-
cations were reinstated. Rather, his failure-to-reinstate claim
alleges discrimination under the Americans with Disabilities
Act (AADA”), 42 U.S.C. § 12101 et seq.

   Nonetheless, the district court admitted evidence of three
other employees’ grievance settlements finding that the
employees were similarly situated. This was prejudicial error
as none of the other employees displayed “similar conduct,”
none raised any issues of mental disability. See Vasquez v.
County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003)
(noting that employees were not similarly situated where they
were “not involved in the same type of offense” and “did not
engage in problematic conduct of comparable seriousness”).
It is true, as the majority notes, that these employees were ser-
vice technicians, had failed to reveal prior criminal convic-
tions, had been terminated, and had participated in the
grievance process. However, other than having been termi-
nated and participating in the grievance process, criteria that
are inherent in seeking reinstatement, the other employees’
grievances had nothing in common with Josephs’ failure-to-
reinstate claim. This claim was based on his allegation that
under the ADA, Pac Bell could not decline to reinstate
Josephs based on his prior criminal activity and stay in a men-
tal health facility. The erroneous admission of grievance set-
tlements of other employees who, in fact, were not similarly
situated, was prejudicial because it distracted the jury from
determining whether Josephs was a qualified individual for
the position.

   This prejudice was compounded by the district court’s jury
instructions. The district court’s focus on whether Josephs
                         JOSEPHS v. PACIFIC BELL                        3917
was perceived as having a disability under the ADA, coupled
with its failure to give the second part of the mixed-motives
instruction, removed from the jury the question of whether
Josephs was not qualified because of his past, regardless of
Pac Bell’s attitude toward him. This was critical to Pac Bell’s
defense, and is conceptually different from the “but for”
instruction that the majority suggests was curative. The latter
directs the jury to evaluate Pac Bell’s motives for not reinstat-
ing Josephs, while the former asks the jury to determine the
issue of whether Pac Bell’s fear that Josephs might be danger-
ous was reasonable.3 The instructions as given allowed the
jury to reason that Josephs must be qualified if it determined
that Josephs did not presently have a mental disability.4

   The majority points out that Pac Bell does not complain
that it was prevented from presenting whatever evidence it
deemed relevant and argues that there was sufficient evidence
before the jury for it to conclude that Josephs was not danger-
ous. This may be true, but my review of the record indicates
that the jury did not make a specific determination of Josephs’
dangerousness. Indeed, I read the majority opinion as implic-
itly admitting as much because it is only through an analysis
of what the term “qualified” means under the ADA that it
concludes that because the jury found that Josephs was “qual-
ified,” the jury “necessarily found that he could be trusted in
customers’ homes.” In my view, neither the judge nor the jury
ever made a determination as to the reasonableness of Pac
  3
     Although not presented in these terms by Pac Bell, the failure to deter-
mine whether Pac Bell reasonably considered Josephs dangerous is con-
ceptually similar to a failure to specifically determine whether a person is
“qualified” under the ADA and thus covered by the ADA. See 42 U.S.C.
§ 12112(a). In Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir.
1996), we noted that to prevail under the ADA, a person must show first
that he is disabled and second that he is qualified.
   4
     The jury’s request for clarification as to the instruction concerning the
reasons for Pac Bell’s refusal to reinstate Josephs suggests that it may well
have been confused on how to handle Josephs’ possible dangerousness.
3918                 JOSEPHS v. PACIFIC BELL
Bell’s perspective that Josephs — because of his past —
might pose a danger to its customers.

   The importance of determining whether Pac Bell’s con-
cerns about Josephs were reasonable is apparent from a
review of California’s law on negligent hiring. In Juarez v.
Boy Scouts of Am., Inc., 81 Cal. App. 4th 377, 395 (Cal. Ct.
App. 2000) the California Court of Appeal reiterated that in
California, “an employer can be held liable for negligent hir-
ing if he knows the employee is unfit, or has reason to believe
the employee is unfit or fails to use reasonable care to dis-
cover the employee’s unfitness before hiring him.” Similarly,
in Federico v. Superior Court, 59 Cal. App. 4th 1207, 1214
(Cal. Ct. App. 1997), the court noted that if liability results “it
is because, under the circumstances, the employer has not
taken the care which a prudent man would take in selecting
the person for the business at hand.” The court further
explained that an employer’s duty “is breached only when the
employer knows, or should know, facts which would warn a
reasonable person that the employee presents an undue risk of
harm to third persons in light of the particular work to be per-
formed.” Id. Federico further reiterates that whether a defen-
dant was negligent constitutes a question of fact for the jury
except where reasonable jurors could draw only one conclu-
sion from the evidence presented in which case a lack of neg-
ligence may be determined as a matter of law. Id.

   The potential liability to Pac Bell is obvious and sizable.
On this record, it is conceivable that a reasonable jury might
well find Pac Bell liable were plaintiff, while employed as a
service technician, to gain entrance to a customer’s home and
attack a customer. Of course, I do not mean to suggest that
this will happen. Nonetheless, this is the exposure that Pac
Bell faces.

   Josephs, however, is not at the mercy of Pac Bell’s unfet-
tered fears. As noted by the majority, Josephs could, and did,
present evidence to support his contention that his past does
                    JOSEPHS v. PACIFIC BELL                3919
not create any likelihood of future dangerousness. He also
presented evidence to support his claims that his “condition”
was covered by the ADA and that he was completely quali-
fied. Thus, Pac Bell is not entitled to judgment as a matter of
law on the sufficiency of the evidence. Hence, I agree with
the majority that were a jury to determine that Josephs posed
no danger, that is to say that Pac Bell’s concerns were unrea-
sonable, this would provide Pac Bell with a defense should
Josephs, despite the jury’s prediction, harm a customer.

   I dissent, however, from the majority’s determination that
such a determination was made in this case. Here, despite
Josephs’ proffered evidence that his past does not create any
likelihood of future dangerousness, the district court’s errone-
ous admission of evidence of grievance settlements of
employees who were not similarly situated, and failure to give
the second prong of the mixed motives instruction, resulted in
a jury verdict that I cannot construe as a determination of the
reasonableness or unreasonableness of Pac Bell’s concerns
over Josephs’ dangerousness. Accordingly, I would vacate the
judgment entered on the jury verdict and remand.
