In?? 1997,?? the?? plaintiff?? applied?? for?? a?? service technician position with the phone company. ?After he had been on the job three months, the company learned that he failed to disclose that in 1982 he had been acquitted of attempted murder by reason of? insanity? and? had? been? convicted? of misdemeanor battery on a police office in 1985. As it turned out, he had been committed to a state mental hospital for two and own-half years.?? The plaintiff?s direct supervisor testified that he had wanted to retain the plaintiff but was overruled by his manager who did not want to have an employee that? had? ?emotional? dysfunction?? and? had exhibited that kind of behavior. ?The plaintiff filed a union grievance seeking reinstatement.?? During the pendency of the grievance, the misdemeanor conviction was officially expunged.?? A company Vice-President told the plaintiff?s union representative that the Company would still not reinstate? him? because? he? had? been? in? a? mental ward. ?The plaintiff filed suit under the ADA and California State Law.?? The evidence showed that the Company had continued to employee several employees whom it knew had failed to disclose prior? criminal? convictions? on ?their ?applications. The jury found that the company?s original termination of the plaintiff was non-discriminatory but that it failed to reinstate him because of his disability.? ?The employer appealed.? ?The Ninth Circuit affirmed 2-1. ?The court held that failure to reinstate? was? a? cognizable? adverse? action.?? ?The court next held that his failure to file an EEOC charge within 300 days was excused because the EEOC erroneously told him he needed to have a lawyer before he could file a charge.?? The court ruled that supervisor concerns that the plaintiff might?? ?go?? off??? on?? a?? customer?? showed?? the Company regarded him as having a mental disability? that ?substantially? limited? the performance of his job.? ?The court held that testimony that the employer thought he was unfit for? ?any? ?job? ?in? ?the?? company? ?satisfied?? the requirement ?that ?the ?employee ?be ??regarded ?as?disqualified from a ?broad range of jobs.??? The court held that the jury could properly reject the Company?s claim that a history of violence rendered? him? ?unqualified?? for? his? job.?? ?The court ruled that the employer?s statements during grievance proceedings were not barred by Fed. R. Evid. 408 because no legal claim was filed at that point. ?The court ruled that the district court did not commit reversible error by giving an ?a motivating? factor?? jury? instruction ?without ?a same action defense because other instructions required the plaintiff to prove but for causation in order to prevail.?? ?Judge Callahan?s dissent concluded,? without? any? citing? any? legal precedent, that unless the employer?s concerns about? violence? were? ?unreasonable?? the employee cannot prevail in a ?regarded as? case. Josephs v. Pacific Bell, No. 03-56412 (Leavy; Graber, Callahan).