*4 LEAVY, P. Before EDWARD SUSAN GRABER, and CONSUELO M. CALLAHAN, Judges. Circuit AMENDING OPINION AND ORDER OPINION AND AMENDED AMENDED DISSENT LEAVY, Judge. Circuit ORDER 2005, 27, December Opinion filed (9th F.3d 1006 Cir. appearing and at 432 amended, 2005), as follows: hereby page ap- slip opinion 1. On heading F.3d at pearing at 432 ” following Tolling and the Equitable “a. and the fol- are deleted paragraphs five heading paragraphs substi- lowing tuted: Exception Equitable a. first file a plaintiff
An
must
individual
against
alleg-
timely
complaint
EEOC
bringing
edly discriminatory party before
EEOC
ADA suit in federal court. See
an
(9th
Co.,
v. Farmer Bros.
Cir.1994).
is a “defer ment in Rodriguez: “self-serving
Because California
affidavits
state, the claim must be filed within
ral”
cognizable
are
...
long
they
so
state
the claimed event of discrimi
days
personal
facts based on
knowledge and are
2000e-5(e) (2003).
nation.
U.S.C.A.
conclusory.”
not too
Id.
timely charge
of discrimina
filing
Therefore,
the district court did not
jurisdictional
is not a
tion with the EEOC
its
in finding
equitable
abuse
discretion
an
suit,
filing
require
prerequisite to
but is
exception
requirement
to the exhaustion
subject
equitable doctrines such as
ment
complaint.
EEOC
tolling.
v. Trans
Zipes
waiver and
See
Airlines, Inc.,
398, 102
455 U.S.
World
16712-13,
slip opinion page
On
(1982).
1127,
vice Technician found, evidence, on the simply based qualification for context was a basic in that was, fact, qualified, safe determination job. making its Before objectively that PacBell’s fears were qualified, and based on a discriminato- unreasonable into employer may take instructed ry, assumption.5 incorrect in mak- past history of violence account hiring decisions. ing employment-related 16714-15, and slip opinion pages 3. On at 432 F.3d at the three appearing for Pac- not come to work Josephs did years paragraphs beginning after his violent with until about consecutive Bell act, plea of not years after argues” about are deleted and “PacBell first about 12 insanity, guilty by reasons following substituted: from a mental insti- years after his release argues that the district court PacBell first *6 that, being jury knew before tution. The part of the mixed “gave only the first PacBell, success- Josephs worked hired instruction, liability if imposing motive for dec- fully for Cox Communications disability ‘a ‘regarded as’ plaintiffs for ade; Technician Repair as a Service factor,’ including the motivating without Cox, of customers’ he entered thousands affirma- part effect defendant’s second —in jury knew without incident. homes it would have terminated tive defense [that job duties well performed his anyway].”7 for other reasons plaintiff PacBell, Maches’ too. The heard at instructions vio- that these asserts testimony performing in Price Supreme precedent Court late job and that Maches consid- on the well 228, 490 109 Hopkins, v. U.S. Waterhouse to PacBell. potential asset ered (1989), 1775, super- 268 104 L.Ed.2d S.Ct. found When statute, Act Rights part by Civil seded “job- all that he satisfied “qualified” and 102-166, 1991, 105 Stat. No. Pub.L. necessarily found requirements,” it related 1074, Co. v. recognized Raytheon as trusted in customers’ that he could be 513, Hernandez, 124 S.Ct. 540 U.S. stable, mentally presently homes and was (2003). L.Ed.2d 357 dangerous. only fully qualified ability employers' to hire employers are enti- also 5. PacBell people. against potential protect tled to themselves hiring negligent if an liability claim from recently that “the ADA causa- We decided 7. against a cus- employee a violent act commits motivating factor stan- is a tion standard rely employers on facts Requiring tomer. N.W., Inc., F.3d dard.” Head Glacier stereotypes does not undermine rather than (9th Cir.2005). Waterhouse, amended, Supreme Opinion Judges In Price With the “respective Leavy deny set forth the burdens Court Graber have voted to in a a defendant and suit proof Rehearing, Judge Petition for Graber has when has been shown under Title VII deny voted to Petition for Rehearing decision resulted from employment that an Banc, Leavy En and Judge so recom- legitimate illegitimate a mixture of Judge mends. Callahan has voted to motives.” Id. at 109 S.Ct. grant Rehearing the Petition for and Peti- rejected Supreme the defendant’s Court En Rehearing tion for Banc. required the statute argument The full court has been advised of the causation”
plaintiff to show “but-for
for
for
En
Rehearing
Petition
Banc and no
decision,
employment
holding that
Judge
requested
has
a vote on whether to
proof by
meet her burden of
plaintiff could
R.App.
rehear the matter en banc. Fed.
showing
employer
that the
“relied
simply
P. 35.
coming
upon sex-based considerations
Rehearing
The Petition for
and the Peti-
Id. at
plaintiff in a Title VII case shows that gender motivating part in an played appeal In this we must resolve issues decision, the defendant employment arising from employment discrimina- liability only by finding proving avoid a tion brought against action Pacific Bell that it would have made the same decision (PacBell) Telephone Company by a former gender if play even it had not allowed technician, service Josephs. Joshua Liam 244-45, such at a role.” Id. S.Ct. 1775 After rendered a verdict for Jo- (footnote omitted). sephs on his claim alleging that PacBell’s deny him Here, decision reinstatement violat- while the instructions includ- term, ed the Americans with factor,” Disabilities Act of “motivating ed the term instructions, (ADA), U.S.C. 12101et. required seq. as defined in *7 Josephs Employment California Fair show “but-for” causation. The Act, Housing § “a specifically told that motivat- CAL. GOV’T CODE 12940 (FEHA), ing “something factor” that moves the the district court judg- entered addition, will and action.” In against induces the ment PacBell. PacBell ap- now Josephs that instructed had to peals grounds on the district court prove that not PacBell would have made erred in failing grant judgment aas the same for “regarded decision but matter of or law a new trial. PacBell also Therefore, disability. as” Josephs had a contends that the district court made two heavier than that proof required burden evidentiary rulings erroneous and two er- by Moreover, Price Waterhouse. in ren- rors in juris- instructions. We have dering a verdict for nec- § diction under 28 U.S.C. and we essarily decided that PacBell not would affirm the judgment. have refused to Josephs for other
reasons. BACKGROUND Opinion
The amended In Josephs applied will be filed con- late for a ser- currently with this Order. position vice technician with PacBell. Ser- having in- someone in the business had unsupervised, perform technicians vice repair. dysfunction” might Jo- “emotional telephone installation home in years for ten employed sephs type Ultimately, had been of behavior.” cause “this Cox Communica- position with 23, 1998, a similar Josephs April on PacBell notified in answer to checked “NO” Josephs tions. “due to discharged that he was fraudulent application question, employment PacBell’s you in that your application, entries on of, or are been convicted you “Have ever to withhold information con- attempted felony or misde- awaiting trial for you and that “this was a cerning past” his [sic] position for the He was hired meanor?” violation of attempt, willful direct January 1998. Conduct, not Code of which is [PacBell’s] Penal Code by long employees Under California tolerated term as well 11105(c)(9), authorized to ob- PacBell is newly ones.” hired history of em- tain the detailed criminal Josephs filed a with PacBell unsupervised access will have ployees who employment. of his seeking reinstatement Josephs After had homes. to customers’ agreement bargaining PacBell’s collective three working approximately been union provid- Technician’s with Service months, his criminal his- PacBell obtained three-step grievance process. for a ed initial internal con- tory. Following some Sexton, representative, the union Linda report, contents of the fusion as to the I, Step at trial that at she was testified been PacBell determined the reason for termi- told murder and attempted in 1982 for arrested his failure to disclose his misde- nation was insanity, reason of guilty was found change. and name She meanor conviction convicted and that had been Smith, II, during Step Jeff testified that battery misdemeanor on a 1985 for a 1982 Diego labor general manager San police officer. force, employing concerns about expressed fur- Josephs pending suspended Josephs’ “background” to someone with It confirmed investigation. ther might homes because he people’s work in murder, finding of charge attempted suggested “go off’ on a customer. Sexton insanity, guilty by reason job at given a different conviction. PacBell misdemeanor PacBell, which didn’t splicer, such as had been com- also learned respond- contact. Smith involve customer and one-half spent to and had two mitted by,” still walk stating “people can ed hospital state mental years a California legal, advisement of and that “under the spent then six 1982 and between going bring someone they ... were not health in a mental months board-and-care image had an they ... like that back July parole from facility, was released whether Jo- uphold.” Sexton asked Smith 30,1986, name follow- changed and had his misdemeanor convic- sephs could have *8 ing his release. reinstated, as had expunged and be tion at Pac- supervisor immediate employees. happened with other Maches, Bell, at trial that testified Steve not answer. Smith did had recom- suspension he during battery convic- Josephs’ misdemeanor position restored to his Josephs mended be a month expunged tion before performing well and Josephs because proceeding. III Sexton Step grievance an asset to PacBell. probably would be Cruciotti, Augie that she told testified However, his Maches also testified that attending Step vice-president Shive, told him that supervisor, Robert expungement III of the possibility proceeding, wanted to eliminate Shive Josephs should be treated DISTRICT COURT argued that PROCEEDINGS employee to an who had been similarly Josephs brought then this action claim- conviction after his was ex- reinstated ing employment unlawful termination of distinguished Josephs’ Cruciotti punged. and unlawful refusal to reinstate viola- that, situation, several times unlike stating ADA tion of the and FEHA based on had employee, Josephs spent the other allegations that PacBell both terminated ward,” and that PacBell in a “mental time they and refused to reinstate him because people to have out there not afford could regarded mentally him as At disabled. from a released mental insti- who had been trial, introduced, Josephs objec- over the final III Step meeting, After tution. PacBell, tion of evidence of the statements 1998, 23, Cruciotti denied on November by made during Smith Cruciotti opportunity reap- with no reinstatement grievance proceedings and evidence of ply- employ- PacBell’s treatment of three other who, ees like had been terminat- ADMINISTRATIVE PROCEEDINGS ed for failure to prior disclose criminal Josephs went to On November employment applica- convictions on their Employment Opportunity Com- Equal but, tions unlike Josephs, had been rein- (EEOC) completed pa- office and mission stated or offered a conditional reinstate- charge to file a discrimination. perwork employee ment. One had a conviction for by employee, He told EEOC Ron sell, possession marijuana with intent to Holmes, attorney to have his contact the conviction, petty one had a theft and one after he retained counsel. Holmes EEOC felony battery had a domestic violence con- charge of did not file a discrimination on viction. Josephs nor did behalf of he refer Jo- Department case to the California sephs’ Josephs’ testimony at trial detailed his Employment and Housing of Fair problems mental health leading up to the (DFEH). After retained counsel attempted murder and commitment to the February unsuccessfully counsel hospital, state mental his treatment and attempted April to contact Holmes. In recovery, employment and his with Cox counsel was informed Communications and PacBell. Cross-ex- Raul Green that Holmes EEOC’s had re- amination of on focused whether processing Josephs’ paper- tired without problems his mental health were caused work, complaint that his would con- but illegal drug use and whether he had inten- sidered filed as November tionally lied on application. his PacBell Jo- complaint filed a with DFEH sephs autobiography also introduced his 22,1999. April evidence, into which had been dur- written complaint filed with the EEOC de- ing stay hospital the state mental termination, Josephs’ April scribes 23rd and described his childhood and mental However, grievance process. but not the provided illness. PacBell em- affidavit, Josephs’ supporting also filed copy ployees autobiography during of the EEOC, with the describes PacBell’s refus- proceedings. al him. complaint to reinstate filed lawyer, PacBell’s in-house Karen Haub- alleges DFEH that Josephs
with was “ter- rich, at testified trial that she believed disability of a mental minated” because but “somebody attempted who has to kill does not discuss PacBell’s refusal to rein- *9 another individual should not in a ser- him. Both the DFEH and state EEOC position.” vice technician Josephs right-to-sue issued notices without While she testi- investigation. further fied that she had discussed this belief education, job-relat- and other during perience, him advised Smith as she with she did grievance process, requirements II ed of the Service Techni- Step par- him whether with discuss cian position?
ticular, employed position in a should be to customers’ access unsupervised with agree 5. Did Pacific Bell refuse to to testified that she homes. Haubrich plaintiff grievance in the settle- fact that had discussed the Smith process regarded ment because of his as to re- for failure properly terminated disability? change name on conviction or his veal the court further instructed the district According to application. employment take into employer “[a]n she advised testimony, when Haubrich’s history in mak- past account a of violence III during Step Cruciotti primari- ing employment-related hiring focused decisions.” their discussions process, honesty appli- in his gave lack of The district court also two mixed ly cation. motive instructions: cross-examination, Haubrich admit- 27: Jury Instruction No. On discussing with various looking up and ted prove must plaintiff The third element coverage of Jo- employees news preponderance of the evidence is state mental release from the sephs’ 1985 disability plaintiffs regarded that the as newspa- included hospital. This material in the defen- motivating was a factor trial, that Jo- introduced at per reports, to terminate dant’s decisions and/or psychiatric under care sephs had been plaintiff. not reinstate the and had been a counseling hospital at the motivating something A factor is “mentally offender.” disordered and induces action even moves will and PacBell by Josephs As framed may have contrib- though other matters issue closing arguments, the determinative taking uted to the of the action. PacBell re- was whether before Jury Instruction No. 14: it re- fused to reinstate because necessary plaintiff It is not a mental illness garded having him as regarded as prove plaintiffs in future acts of violence might result rea- disability was the sole or exclusive previ- acts he had or because of the violent decision, but, son for the defendant’s ously committed. prove must that defendant plaintiff that to render a was instructed not have made the same decision would on his claim for dis- verdict for regarded as dis- plaintiffs but for the it process, crimination in the reinstatement ability. affirmatively questions: had to answer four in- objected the mixed-motive regard plaintiff Pacific Bell as 1. Did arguing that it should given, struction as having a mental disorder at the time if by an that “even his termination or non-reinstatement? be followed instruction disability was a moti- you regarded find as regard plaintiff 2. Did Pacific Bell factor, not be vating employer will having long-term mental disorder ability proves by termination if it substantially which limited his liable for the jobs? range work in a broad preponderance of the evidence other terminated Plaintiff for would have individual qualified 3. Was skill, anyway.” satisfy requisite ex- reasons who could Question solely discharge to the claim. related *10 deliberations, jury qualified position for asked During its phrase “because of’ clarification of for of service technician. discharge Pacific Bell “Did question regarded of his as disabil-
plaintiff because Discriminatory 1. Claim for Refusal strug- are jury stated: “We ity?”2 The Reinstate if ‘because of is to be to determine gling or it ‘the sole reason’ as interpreted that, PacBell under Collins v. with other factors combined possible Lines, Inc., United Air 514 F.2d ” ‘yes’ decision of or ‘no.’ our as we reach (9th Cir.1975), plea employee to be jury Jury referred the court The district simply reinstated “seeks to redress the 27, stating plain- that “the No. Instruction is, therefore, original termination” and not by preponderance of the prove tiff must separately actionable. This is an issue of plaintiffs ‘regarded that the as’ evidence Harper law that we review de novo. v. motivating factor disability was (9th Seafoods, 278 F.3d Cir. U.S. factor that moves the will discharge —a 2002). action, and determines the and induces though other matters have con- even distinguishable Collins is from the taking to the of the action.” tributed Josephs’ facts of claim because “new ele by special verdict determined unfairness, existing ments of at the that PacBell’s termination of violation, original time of the attached to However, nondiscriminatory. de- of re-employment.” denial Inda v. United PacBell refused to termined that Lines, Inc., Air 565 F.2d 561-62 regarded him Josephs because as men- Cir.1977). Here, Josephs asserted and the in violation of the ADA. The tally disabled found PacBell’s denial of rein Josephs compensatory dam- awarded 30, 2003, just statement was based on such a “new ages. April moved On a matter of law and a new judgment unfairness,” as element of perception court denied the mo- trial. The district mentally ill. he was While Inda involved a tions, timely appealed. and PacBell reemployment, denial of rather than a fail reinstate, holding ure to its is not limited
ANALYSIS
particular employment
to a
action.
as a Matter
Judgment
A.
Law/New
Therefore,
First, Third,
join
we
Trial
Fourth, Tenth, and Eleventh Circuits and
contends that it was entitled to
expressly recognize discriminatory failure
(1)
judgment as a matter
law because
separately
to reinstate as a
actionable
discriminatory
claim for
refusal
to rein-
City
claim. See EEOC v.
Police
of Norfolk
separately
actionable under the
state is
(4th Cir.1995);
Dep’t,
1061 (2) (1) claim; diligently pursued his Reme- Administrative 2. Exhaustion of by dies misinformed or misled the adminis- agency responsible process- trative for argues did (3) ing charge; in fact on his. relied remedies the administrative not exhaust misrepresentations of misinformation to reinstate for refusal be for his claim (1) agency, causing him to fail to ex- applicable equitable tolling is cause (2) Josephs’ remedies; EEOC claim and Josephs’ to haust his administrative timely charge, (4) which was filed DFEH acting pro se at the time. dismissal,3 and his year of his within a Id. at 902. failed to mention refusal EEOC claim both claim Josephs’ While EEOC This court reviews for abuse to reinstate. days not filed within 300 of his termi the district court’s decision of discretion nation, all applica these factors favor the tolling. Leong See v. Pot apply equitable equitable exception tion of an to the Cir.2003). (9th ter, 1117, 1121 347 F.3d Josephs diligently pursed EEOC claim. required has exhausted plaintiff Whether by going his claim to the EEOC office question remedies is administrative shortly pro after his termination. He was law, novo. See Bankston v. reviewed de by at se the time and was misled (9th Cir.2003). White, 768, 770 F.3d 345 Holmes, representative, EEOC who told Equitable Exception a. Josephs that he needed to retain counsel filing Following before a claim. the advice first plaintiff
An individual
must
counsel,
Holmes, Josephs
retained
but
timely
complaint against
file a
EEOC
discriminatory
party
responded
before
the time the
to coun
allegedly
EEOC
ADA suit in federal court.
bringing an
claim
inquiries,
filing
sel’s
the time for
Co.,
Bros.
31 F.3d
v. Farmer
See EEOC
expired.
Cir.1994).
(9th
891,
Because Califor
affidavit,
Josephs’
state, the claim must be
nia is a “deferral”
dealings
with the
which describes
days of the claimed event
filed within 300
EEOC,
“self-serving”
is a
statement
§
42 U.S.C.A.
2003e-
of discrimination.
equitable
form the
for an
cannot
basis
5(e) (2003).
filing
timely charge
of a
rejected
argu-
an identical
exception. We
with the EEOC is not a
of discrimination
“self-serving
affidavits
Rodriguez:
ment
suit,
filing
but
jurisdictional prerequisite
they
...
cognizable
long
are
so
state
subject
equitable
doc
requirement
is a
knowledge and are
personal
facts based on
tolling.
See
trines such as waiver
conclusory.”
not too
Id.
Airlines, Inc.,
Zipes v. Trans World
L.Ed.2d
Therefore,
102 S.Ct.
U.S.
the district court did not
(1982).
finding
equitable
its discretion in
an
abuse
requirement
exhaustion
exception
exception
An
to the ex
equitable
complaint.
EEOC
is available when
requirement
haustion
plain
misleads the
representative
EEOC
Claim
b. Exhaustion
Reinstatement
concerning
Rodriguez
tiff
his claim. See
filed be
charges
construe
We
265 F.3d
901-02
Express,
Airborne
liberally.
DFEH
(9th Cir.2001).
and the
fore
EEOC
granted
Such relief
Bricklayers
v. Int’l
&
See Stache
Union
to a
who:
complaints
must be filed within one
DFEH
12960(d).
Cal. Gov’t Code
alleged discriminatory
year
action.
of the
(9th
Cir.2002),
amended
Any investigation of his ter administrative The term “mental impairment” is not necessarily would have en mination claim defined the ADA. See U.S.C. grievance proceeding. the compassed however, regulations 12101. ADA rec- Thus, exhausted his claim for dis ognize impairments” that “mental are in- criminatory refusal to reinstate. “disability,”
cluded within the term the Sufficiency Support 3. Evidence to indirectly phrase define this .to include Judgment disorder, “[a]ny or physiological mental ... such as emotional mental illnesses.” challenges sufficiency of the (h)(2) (2005). § 1630.2(g)(2) 29 C.F.R. & jury’s findings supporting evidence “condition” was Josephs’ covered Here, Josephs claimed that Pac ADA, his condition limited a ma- regarded suffering Bell him as from a jor activity, and that Josephs qual- life might mental illness that result in future position ified for the service technician. true, acts of violence. it is Pac While as argues, Bell that the California court’s de review de novo the district We of legal insanity termination does not nec of a renewed motion for court’s denial essarily that Josephs a matter of law. mean suffered from a judgment See White v. Co., ADA, impairment Ford Motor mental covered claim, Although 4. Couveau involved an FEHA cause California law under the FEHA mirrors VII, applied Circuit Title VII law in federal law under Title federal cases are Ninth that, reaching explained at "[b]e- its result and instructive.” 218 F.3d 1082 n. Josephs’ more than tion. PacBell Josephs’ past considered record and court documents. It violent acts him unqualified criminal made employees position, that, that PacBell heard evidence while the dissent asserts Josephs unemployable considered because assessing his qualifications, had he time in “mental ward” and spent no opportunity to consider poten It might “go off’ on a customer. consid- dangerousness tial to PacBell customers. newspaper reports ered re- matter, As a preliminary we note during viewed and discussed ADA employer job allows an adopt *13 proceedings, which included statements qualification an standard that individual Josephs “mentally that was a disordered pose not a direct threat the health or psychiatric offender” who had been under safety of the place. others in work 42 See jury Josephs’ autobiogra- care. The read 12113(b) § (2005); U.S.C. 29 C.F.R. phy, employees, had which as PacBell de- 1630.2(r) (2005); also, § see Morton v. instability stay tailed mental his his before Serv., Inc., United Parcel 272 F.3d Thus, hospital. jury in the the mental (9th Cir.2001). Therefore, 1258-59 un ample support finding evidence to its that questionably, properly required PacBell regarded Josephs a having PacBell as that its service technicians safe in cus be impairment the ADA. mental covered tomers’ homes. PacBell not complain does appeal prevented on that it was pre from that jury regarded The found PacBell senting whatever evidence it deemed rele substantially Josephs’ mental disorder as subject vant on the of qualifica in limiting ability his to work a broad tions, its including perception that he ADA, range jobs. of the when the Under be a might danger to customers. It is a “major “substantially activity” life that is question jury factual for the Pac- whether working, employee is the must limit[ed]” perception Bell’s unfounded. was See Sen be as in a regarded unable work “class States, ger v. United in 103 F.3d 1443- jobs range jobs of a of or broad various (9th Cir.1996) (issue 44 jury of fact for compared average person to the classes as employee’s dangerousness having comparable training, whether skills abil- foreseen). could 1680.2(j)(3)(i). ities.” 29 C.F.R. The The issue for us jury only jury’s finding heard that PacBell decide is evidence consid- whether the was, fact, Josephs any job Josephs dangerous, ered for with that in unfit the not company. his super- supported by Maches testified that the record.
visor him company told the wanted to above, Question As detailed 3 of the possibility” employing “eliminate of special verdict form asked: “Was such Josephs. someone as the un- When qualified satisfy individual who could ion representative Josephs proposed skill, education, experience, requisite position be offered a did involve job-related requirements other of the Ser- homes, unsupervised access customers’ position?” jury vice Technician an- rejected suggestion because Question answering swered ‘Tes.” When “people by.” can still walk This evidence affirmatively, knew customer amply jury’s finding that supports the Pac- contact, homes, im- customers’ was an Bell Josephs having as a mental viewed portant and of integral function the Ser- disability that “substantially limited” him position; vice Technician trustworthiness “major activity” of working. life qualification that context basic for was determination job. making argument
PacBell’s final chal Before its lenges jury’s finding qualified, qualified posi- employer may into service technician instructed that an take based a discriminato- history of in mak- unreasonable and past violence
account hiring ry, assumption.5 decisions. ing incorrect employment-related come to work for Pac- did not Rulings Evidentiary B. years after violent about Bell until two plea challenges after his act, years about insanity, evidentiary rulings. and about by reasons district court’s We guilty release from mental insti- years “evidentiary rulings after his review abuse that, being knew before tution. and will not reverse absent discretion PacBell, Josephs success- worked hired prejudice.” some Cassino Reichhold for a dec- fully for Cox Communications Chems., Inc., ade; Technician for Repair Service Cir.1987). PacBell first Cox, thousands of customers’ he entered court erred when it admitted into district incident. The knew homes without during Josephs’ evidence statements made job duties well performed grievance proceeding, asserting that this PacBell, *14 at too. The heard Maches’ Federal Rule of ruling violated Evidence testimony performing was policy. and federal labor 408 job the and that Maches consid- well on pertinent part: in Rule 408 states to potential a asset PacBell. ered (1) furnishing offering or or Evidence of found that the When furnish, (2) promising accepting to or or he “job- satisfied all “qualified” and offering accept, or a promising to valu- necessarily it requirements,” found related compromising in or able consideration in could be trusted customers’ that he compromise a claim attempting to which stable, mentally presently homes and was disputed validity to or either .as dangerous. not amount, prove is not to admissible liabil- jury also heard evidence that Pac- ity invalidity or the claim its or willing present danger- to Bell was assess of conduct or amount. Evidence state- objectively the employee ousness when compromise negotiations in ments made mentally perceived ill or to be so. is likewise not admissible. example, For the heard evidence purpose the Rule Because 408 is had reinstated one service techni- encourage compromise and the settlement felony had a domestic violence cian who existing grievance and disputes, pro- the conviction. ceeding Josephs’ not-yet- did concern that, undisputed person if a in It is were claim, filed discrimination the district court untrustworthy dangerous in cus- fact did not abuse its discretion when it admit- homes, reason, for whatever tomers’ ted statements made PacBell em- qualified. person would not be ployees.6 F.2d at See Cassino 817 1343. found, evidence, on simply based was, fact, PacBell also contends that the qualified, in safe and objectively that PacBell’s fears were court should not have and district admitted employers 5. one Circuit in PacBell also are enti- 6. The Ninth case PacBell cites protect against potential tled to themselves support policy argument, of its federal labor liability negligent hiring 1213, from a claim if an Mensing, Hyles v. 1217 against employee act cus- commits violent Cir.1988), only proposition stands Requiring employers rely facts tomer. on grievance proceedings made in statements stereotypes than does not undermine rather may not be as a for a tort used basis state fully employers' ability only qualified to hire claim. people.
1065
1775,
employees’ griev-
(1989),
three other
S.Ct.
104
268
super-
evidence of
L.Ed.2d
statute,
employees’
part by
ance
because these
seded in
Rights
settlements
Civil
Act
1991,
102-166,
“nearly
were not
identical” of
Pub.L. No.
circumstances
105 Stat.
1074,
In
recognized
situation.
a discrimination
Raytheon
Co. v.
case,
Hernandez,
showing
employer
that the
treated
540
124
U.S.
S.Ct.
(2003).
“similarly
employees more favor- L.Ed.2d
situated”
ably
plaintiff
probative
than the
of the
Waterhouse,
In Price
Supreme
discriminatory
employer’s
motivation. Court set forth the “respective burdens of
Los
Vasquez
County
Angeles,
proof
of a defendant
in suit
(9th Cir.2003).
F.3d
“[Individu-
under Title VII
when
has been shown
similarly
they have
als are
situated when
that an employment decision
from
resulted
jobs and display
similar
similar conduct.”
legitimate
mixture of
and illegitimate
employees
Id. Each of the three
at issue
motives.” Id. at
S.Ct.
1775. The
appeal
this
meets
standard. Like Jo-
this
Supreme
rejected
Court
the defendant’s
(1)
(2)
technician,
sephs, each was a service
argument
required
statute
prior
failed
to reveal
criminal conviction
plaintiff to show “but-for causation” for the
(3)
termi-
employment application, was
employment decision, holding that
(4)
nated,
participated
plaintiff could meet her
of proof by
burden
Therefore,
process.
the district court did simply showing
employer
that the
“relied
in admitting
not abuse its discretion
into upon sex-based
in coming
considerations
employment history
evidence their
its decision.” Id. at
S.Ct.
*15
See id.
settlements.
The defendant then
an
had
affirmative de-
if
prove
fense
it could
it
that “even if
had
C. Jury Instructions
account,
not
gender
taken
into
it would
jury
argues
that
the
in have come to the same decision regarding
respects.
structions were
in
erroneous
two
particular person.”
Thus,
a
Id.
“once a
instructions,
evaluating
“In
jury
this court
in a
plaintiff
Title VII case
shows
charge
considers the
as a whole to deter
a
gender played motivating part
misleading
mine whether it is
or misstates
decision,'
employment
the defendant
judg
the law ... and
not
will
reverse
liability
finding
only by
avoid a
of
proving
ment because of an erroneous instruction
it
that would have made the same decision
fairly
if the
adequately
instructions
and
gender
play
if it had not
even
allowed
to
Cassino,
cover
issues.”
the
1067 allowing court Josephs’ employees perceived the district Pac Bell for ter wrongful maintain causes of action having disability. mental mination failure to reinstate was its and The district factual court’s determination keep them separate. failure to and, controlling is I accordingly, agree notes, order majority
As the to state majority with the that Josephs stated a separate failure to reinstate claim from claim separate for discriminatory failure to claim, wrongful termination the new claim reinstate. unfairness, of allege must “new elements however, The district court’s reasoning, at existing original the time presaged the error Josephs’ come. Lines, v.
violation.” Inda United Air Inc. claim for failure to reinstate is based (9th Cir.1977). 561-2 F.2d allegation on an that others lied who recognized district this in court its June employment their applications were rein- Limine, re: Order Motions its first Rather, stated. his failure-to-reinstate order to address failure to rein- claim alleges discrimination under state claim. The court held that (“AADA”), Americans with Disabilities Act produced sufficient evidence survive seq. U.S.C. et summary judgment motion for ex- Nonetheless, the district court admitted plained: evidence of three other employees’ griev- Transit, See v. Hall’s Motor EEOC finding ance settlements employ- that the (3rd Cir.1986) (EEOC F.2d 1011 pro- similarly ees were situated. This was duced sufficient evidence to support prejudicial error as none of other em- discriminatory claim of failure to rein- conduct,” ployees displayed “similar none employee’s state where the black prior any disability. raised issues of mental See compared accident minor with that Vasquez County Los Angeles, 349 employees the white the EEOC (9th Cir.2003) (noting F.3d re- introduced considerable evidence employees similarly were not situated garding employer’s reputation they where were “not involved in the same biased). being Pac Bell’s attempt type offense” and engage “did not distinguish Hall’s Motor from Josephs’ problematic conduct of comparable seri- is Jo- proceedings unavailing. ousness”). true, majority It as the sephs produced has evidence that some notes, that employees these employees who were service employment lied on their technicians, reinstated, applications were had failed to reveal crim- prior as well as convictions, terminated, evidence of indicating statements inal had been *17 Housing Employment sephs’ ment of and Fair -and failure-to-reinstate out claim arises of complaints. the liberal construction of such grievance process requires the new ele- majority, Unlike the I find little in comfort of part ments unfairness that are not of his Airlines, Couveau v. American 218 F.3d wrongful claim. not termination It is clear Cir.2000). Couveau, (9th 1082 In we held purposes require- that the of the exhaustion plaintiffs that unques- the second claim was ment were met in this case. B.K.B. See tionably like her initial claim and not did Dep’t, Police Maui 1099 alleged raise a new basis for discrimination. Cir.2002) (noting that the administrative Here, although Id. Josephs' administrative charge requirement important pur- serves the alleged complaints wrongfully that he was charged poses giving party of the notice of the perceived terminated because of a mental dis- narrowing prompt claim and the issues for reinstatement, ability sought they re- decision); adjudication and Okoli v. Lockheed April ferred to the 1998 his termination of Co., Operations Cal.App.4th Technical employment and griev- neither mentioned the (.1995). Cal.Rptr.2d process. meaningful ance This Jo- seems as Josephs presently in not a mental grievance process. the did have participated had disability.4 having termi- However, than been other in the participating nated and majority points The out that Pac Bell that are in seek- inherent process, criteria complain it prevented does not that was reinstatement, employees’ other the ing presenting from whatever evidence nothing in common with grievances deemed relevant and there This claim. Josephs’ failure-to-reinstate jury sufficient evidence before for was the un- allegation on his claim was based that Josephs it to conclude not dan- was ADA, to Pac Bell could not decline the der true, This but gerous. my be review on his crimi- prior based Josephs jury the of record indicates the did in a mental health stay activity nal specific not of Jo- make determination griev- of erroneous admission facility. The Indeed, I read the sephs’ dangerousness. who, of employees other ance settlements majority opinion implicitly admitting as as situated, fact, similarly was were through analy- it is only much because jury it distracted the prejudicial because “qualified” the sis of what term means determining Josephs whether was from under ADA it concludes that be- the position. qualified individual jury Josephs cause found that was the “necessarily “qualified,” jury the found compounded by the prejudice This that he could be trusted customers’ jury dis- instructions. The district court’s view, my judge In neither homes.” Josephs on whether trict court’s focus jury nor the ever a determination made as having disability under perceived as Pac per- to the of Bell’s reasonableness ADA, failure give with its to coupled of spective Josephs —because part of the mixed-motives instruc- second danger custom- past might pose its — tion, question from the removed ers. qualified was not be- of whether past, regardless importance determining of Pac Bell’s of whether cause him. This was critical Pac Bell’s concerns about were attitude toward defense, dif- from conceptually apparent Pac and is reasonable is a review of Bell’s negligent hiring. the “but for” instruction California’s law on In ferent from Am., Inc., majority suggests Boy was curative. Juarez v. Scouts 377, 395, Pac Cal.App.4th Cal.Rptr.2d to evaluate latter directs 12(Cal.Ct.App.2000) reinstating Bell’s motives California Court California, Appeal while former asks the to deter- reiterated that “an Pac fear can employer negligent mine the issue whether Bell’s be held liable for unfit, might dangerous hiring employee rea- if knows he or employee The instructions al- given sonable.3 has reason believe the is unfit to reason that fails use care to lowed the reasonable discover if it determined that unfitness qualified employee’s hiring must be before *18 ADA, presented by Although person 3. not these terms the must show first that he is Bell, to determine Pac qualified. Pac the failure whether and second he is disabled danger- reasonably Bell considered conceptually to ous is similar to a failure jury’s request to 4. The for clarification as specifically person whether a determine is concerning instruction the reasons for Pac "qualified” under the ADA and thus covered suggests to Bell’s refusal 12112(a). by See 42 U.S.C. ADA. In that it well have been confused on how Inc., Kennedy Applause, v. dangerousness. possible to handle (9th Cir.1996), we prevail noted that to under Similarly, Superior in Federico v. Josephs, despite him.” defense should jury’s 1207, 1214, Court, Cal.App.4th Cal. prediction, harm customer. Rptr.2d (Cal.Ct.App.1997), the court however, I dissent, from' the majority’s if liability because, noted that results “it is determination that such a determination circumstances, employer under the has Here, was made in this1case. Jo despite man prudent not taken the care which sephs’ proffered past evidence that his selecting person would take does not create any likelihood of future at The court business hand.” further ex- dangerousness, the district court’s errone plained an employer’s duty “is breach- ous admission of evidence of knows, employer when only ed of' employees settlements who were know, which should facts would warn a situated, similarly and failure to give the person pres- the employee reasonable prong second of the mixed in motives per- ents an undue risk harm to third struction, jury resulted in a verdict that I light particular sons in of the to be work cannot construe as a determination of the performed.” Id. Federico further reit- reasonableness or unreasonableness negli- erates that whether a defendant was Pac Bell’s concerns Josephs’ danger over gent question constitutes a of fact for the ousness. Accordingly, I would vacate the except jurors where reasonable could judgment entered on the verdict and only draw one conclusion from the evi- remand. presented dence in which case a lack of
negligence may be determined as matter
of law. Id. liability potential to Pac is obvi- Bell record,
ous and On this it is con- sizable. might that a
ceivable reasonable well
find Bell plaintiff, Pac liable were while technician,
employed gain as a service to NADARAJAH, Ahilan Petitioner- to entrance a customer’s home and attack Appellant, course, customer. Of I do mean to Nonetheless, suggest happen. that this will GONZALES, Attorney Alberto R. Gener exposure
this is Pac Bell faces. al; Ridge; Garcia; Tom Michael J. however, mercy is not at the Smith; Najera; Ron Hector Barbara Pac Bell’s unfettered fears. noted As Wagner, Warden, in their ca official could, did, majority, pres- pacities, Respondents-Appellees. ent his support evidence contention that past any his does not create likelihood No. 05-56759. dangerousness. future He presented also of Appeals, United States Court support evidence claims Ninth Circuit. “condition” was covered the ADA and Thus, completely qualified. that he was Argued March and Submitted 2006. Pac is not to judgment Bell entitled as a Filed March sufficiency matter of law on the of the Hence, agree majori- evidence. I with
ty that were a determine danger, posed say no
that Pac Bell’s concerns were unreason-
able, provide, this would PacBell with a