Josephs v. Pacific Bell ( 2005 )


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  •                   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.
    

Document Info

Docket Number: 03-56412

Filed Date: 12/27/2005

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (24)

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Doris R. COLLINS, Plaintiff-Appellant, v. UNITED AIR LINES, ... , 514 F.2d 594 ( 1975 )

16-fair-emplpraccas-251-15-empl-prac-dec-p-7956-kathleen-c-inda , 565 F.2d 554 ( 1977 )

47-fair-emplpraccas-813-47-empl-prac-dec-p-38166-patricia-ann , 852 F.2d 1231 ( 1988 )

Equal Employment Opportunity Commission v. Hall's Motor ... , 789 F.2d 1011 ( 1986 )

B.K.B., Plaintiff-Appellant-Cross-Appellee v. Maui Police ... , 276 F.3d 1091 ( 2002 )

Matthew Head v. Glacier Northwest, Incorporated, a ... , 43 A.L.R. Fed. 2d 793 ( 2005 )

joe-harper-and-the-class-of-similarly-situated-persons-alex-morrow-and , 278 F.3d 971 ( 2002 )

Kathlyn M. Kennedy v. Applause, Inc. , 90 F.3d 1477 ( 1996 )

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47-fair-emplpraccas-865-43-empl-prac-dec-p-37062-23-fed-r-evid , 817 F.2d 1338 ( 1987 )

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