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Following some initial internal confusion as to the contents of the report, PacBell determined that Josephs had been arrested in for attempted murder and was found not guilty by reason of insanity, and that Josephs had been convicted in for a 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 misdemeanor conviction. PacBell also learned that Josephs had been committed to and had spent two and one-half years in a California state mental hospital between and , then spent six months in a board-and-care mental health facility, was released from parole on July 30, , and had changed his name following his release.

Josephs' immediate supervisor at Pac-Bell, Steve Maches, testified at trial that during the suspension he had recommended Josephs be restored to his position because Josephs was performing well and would probably be an asset to PacBell. However, Maches also testified that his supervisor, Robert Shive, told him that Shive wanted to eliminate the possibility of having someone in the business that had an "emotional dysfunction" that might cause "this type of behavior.

Josephs filed a grievance with PacBell seeking reinstatement 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 representative, 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,.

Smith did not answer. Josephs' misdemeanor battery conviction was expunged a month before the Step III grievance proceeding. Sexton testified that she told Augie Cruciotti, a PacBell vice-president attending the Step III proceeding, of the expungement and argued that Josephs should be treated similarly to an employee who had been reinstated after his conviction was expunged. Cruciotti distinguished Josephs' situation, stating several times that, unlike the other employee, Josephs had spent time in a "mental ward," and that PacBell could not afford to have people out there who had been released from a mental institution.

After the final Step III meeting, on November 23, , Cruciotti denied reinstatement with no opportunity to reapply.

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After Josephs retained counsel in February , counsel unsuccessfully attempted to contact Holmes. In April , 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, 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.

Josephs then brought this action claiming unlawful termination of employment and unlawful refusal to reinstate in violation of the ADA and FEHA based on allegations that PacBell both terminated and refused to reinstate him because they regarded him as mentally disabled. At trial, Josephs introduced, over the objection of PacBell, evidence of the statements made by Smith and Cruciotti during his grievance proceedings and evidence of PacBell's treatment of three other employees who, like Josephs, had been terminated for failure to disclose prior criminal convictions on their employment applications but, unlike Josephs, had been reinstated or offered a conditional reinstatement.

One employee had a conviction for possession of marijuana with intent to sell, one had a petty theft conviction, and one had a felony domestic violence battery conviction. Josephs' testimony at trial detailed his mental health problems 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 provided 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 position. Haubrich testified that she and Smith had discussed the fact that Josephs was properly terminated for failure to reveal the conviction or his name change on his employment application. According to Haubrich's testimony, when she advised Cruciotti during the Step III grievance 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' 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.

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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:. Did Pacific Bell regard plaintiff as having a mental disorder at the time of his termination or non-reinstatement? Did Pacific Bell regard plaintiff as having a long-term mental disorder which substantially limited his ability to work in a broad range of jobs?

Was plaintiff a qualified individual who could satisfy the requisite skill, experience, education, and other job-related requirements of the Service Technician position? Did Pacific Bell refuse to agree to reinstate plaintiff in the grievance settlement process because of his regarded as disability? 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.

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. 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.

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PacBell objected to the mixed-motive instruction as given, arguing that it should be followed by an instruction that "even if you find regarded as disability was a motivating factor, the employer will not be liable for the termination if it proves by a preponderance of the evidence that it would have terminated Plaintiff for other reasons anyway. During its deliberations, the jury asked for clarification of the phrase "because of" in question 4, "Did Pacific Bell discharge plaintiff because of his regarded as disability?

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? The jury determined by special verdict that PacBell's termination 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, , PacBell moved for judgment as a matter of law and a new trial.

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The district court denied the motions, and PacBell timely appealed. PacBell contends that it was entitled to judgment as a matter 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 limited a major life activity, and that Josephs was qualified for the position of service technician.

PacBell argues that, under Collins v. United Air Lines, Inc. This is an issue of law that we review de novo. Harper v. Seafoods, F. 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. 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 reemployment, rather than a failure to reinstate, its holding is not limited to a particular employment action.

Therefore, we join the First, Third, Fourth, Tenth, and Eleventh Circuits and expressly recognize discriminatory failure to reinstate as a separately actionable claim.

City of Norfolk Police Dep't, 45 F. Raytheon Corp. Hall's Motor Transit Co. Amoco Container Co. City of Anadarko, F. PacBell argues that Josephs did not exhaust the administrative remedies for his claim for refusal to reinstate because 1 equitable tolling is not applicable to Josephs' EEOC claim and 2 Josephs' DFEH charge, which was timely filed within a year of his dismissal, 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 tolling. See Leong v. Potter, F. Whether a plaintiff has exhausted required administrative remedies is a question of law, reviewed de novo. See Bankston v. White, F.

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DFEH complaints must be filed within one year of the alleged discriminatory action. See Stache v. Maui Police Dep't, F. In Couveau v. American Airlines, Inc. Internal quotation marks omitted. Here, Josephs' refusal-to-reinstate claim is similarly "unquestionably" 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 proceeding. Thus, Josephs exhausted his claim for discriminatory refusal to reinstate. Sufficiency of the Evidence to Support the Judgment. PacBell challenges the sufficiency of the evidence supporting 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 technician.

We review de novo the district court's denial of a renewed motion for judgment as a matter of law.