                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

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

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

                 Opinion by Judge Leavy;
                 Dissent by Judge Callahan




                            16695
                    JOSEPHS v. PACIFIC BELL                16699


                          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.


                          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.
16700               JOSEPHS v. PACIFIC BELL
                       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-
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
                     JOSEPHS v. PACIFIC BELL                16701
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
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
16702               JOSEPHS v. PACIFIC BELL
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
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
                    JOSEPHS v. PACIFIC BELL               16703
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’ 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-
16704                JOSEPHS v. PACIFIC BELL
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
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
                       JOSEPHS v. PACIFIC BELL                16705
      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
      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.”
  1
   Question 4 related solely to the discharge claim.
16706                   JOSEPHS v. PACIFIC BELL
   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,
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-
  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?”
                    JOSEPHS v. PACIFIC BELL                16707
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-
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
16708                  JOSEPHS v. PACIFIC BELL
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).

      a.   Equitable Tolling

   [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 tolling. See
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982).

   [4] Equitable tolling is available when an EEOC represen-
tative misleads the plaintiff concerning his claim. See Rodri-
guez 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.
  3
   DFEH complaints must be filed within one year of the alleged discrim-
inatory action. CAL. GOV’T CODE § 12960(d).
                    JOSEPHS v. PACIFIC BELL                16709
Id. at 902.

   [5] While Josephs’ EEOC claim was not filed within 300
days of his termination, these factors all favor the application
of equitable tolling 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 equitable tolling. We rejected an
identical argument in Rodriquez: “self-serving affidavits are
cognizable . . . so long as they state facts based on personal
knowledge and are not too conclusory.” Id.

   [6] Therefore, the district court did not abuse its discretion
in applying equitable tolling to the filing of 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
16710                   JOSEPHS v. PACIFIC BELL
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-
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).
  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.
                    JOSEPHS v. PACIFIC BELL                16711
   [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-
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
16712               JOSEPHS v. PACIFIC BELL
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-
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 asserts that Josephs’ past violent acts made him unquali-
fied for the position. The jury heard Maches’ testimony that
Josephs was performing well on the job and that Maches con-
sidered him a potential asset to the company. Josephs’ testi-
mony detailed his past successful employment as a service
technician, and the jury heard other evidence of Josephs’ ten
years of experience performing a similar job with another
company. While PacBell’s counsel testified that it was her
“belief” that someone who attempted to kill another person
should not be in a service technician position, PacBell intro-
duced no evidence of written company policy prohibiting
employment of persons who had committed violent acts. In
fact, the jury heard evidence that PacBell had reinstated one
service technician who had a felony domestic violence con-
viction. Finally, in 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. The evidence simply
does not compel a conclusion that, in the eyes of PacBell,
                        JOSEPHS v. PACIFIC BELL                     16713
Josephs was not qualified for the service technician position
because of his past violent acts.

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.5 See Cassino 817 F.2d at 1343.
  5
   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.
16714                 JOSEPHS v. PACIFIC BELL
   [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
“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].”6
  6
   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).
                     JOSEPHS v. PACIFIC BELL                16715
   [15] Here, 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. Thus, in rendering a verdict
for Josephs, the jury necessarily decided that PacBell would
not have refused to reinstate Josephs for other reasons.

   [16] Moreover, the instructions given here are similar to
those given in Cassino, an age discrimination case, where the
jury was instructed that, to find for the plaintiff, he must
prove that, “but for” his age, he would not have been termi-
nated. There we held that “the instructions reviewed as a
whole set forth the essential elements that [the plaintiff] had
to prove in order to prevail.” Id. at 1345. Therefore, taken as
a whole, the instructions given here fairly and adequately
instructed the jury that, to find PacBell liable, it must find that
Josephs’ “regarded as” disability was the “but for” reason for
PacBell’s failure to reinstate.

   Second, PacBell argues that the district court erred in giv-
ing Jury Instruction No. 31, because it led the jury to think
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.

   [17] 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.
16716                    JOSEPHS v. PACIFIC BELL
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 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 into its custom-
ers’ homes. 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. Accord-
ingly, 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 quadraplegic. Josephs was found not guilty by reason
of insanity, spent two-and-a- half years in a state mental hos-
pital, 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
  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.
                        JOSEPHS v. PACIFIC BELL                      16717
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
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:
  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
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).”
16718               JOSEPHS v. PACIFIC BELL
    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.

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
                         JOSEPHS v. PACIFIC BELL                      16719
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
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 Thus,
  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.
16720                JOSEPHS v. PACIFIC BELL
neither the judge nor the jury ever made a determination as to
the reasonableness of Pac 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. Josephs could, and did, present evidence to sup-
                    JOSEPHS v. PACIFIC BELL               16721
port his contention that his past does not create any likelihood
of future dangerousness. He also presented evidence to sup-
port his claims that his “condition” was covered by the ADA
and that he was completely qualified. Thus, Pac Bell is not
entitled to judgment as a matter of law on the sufficiency of
the evidence. Were a jury to determine that Josephs posed no
danger, that is to say that Pac Bell’s concerns were unreason-
able, this would provide Pac Bell with a defense should
Josephs, despite the jury’s prediction, harm a customer.

   Here, despite Josephs’ proffered evidence that his past does
not create any likelihood of future dangerousness, the district
court’s erroneous admission of evidence of grievance settle-
ments of employees who were not similarly situated, and fail-
ure to give the second prong of the mixed motives instruction,
resulted in a jury verdict that cannot be fairly construed as a
determination of the reasonableness or unreasonableness of
Pac Bell’s concerns over Josephs’ dangerousness. Accord-
ingly, I would vacate the judgment entered on the jury verdict
and remand.
