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 customers’ 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. Accordingly, 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 quadriplegic. Josephs was found not guilty by reason of insanity, spent two-and-a-half years in a state mental hospital, and was released in 1985.
*1019In 1997, Josephs applied for a job with Pac Bell as a service technician. A service technician performs unsupervised, in-home telephone installation or repair. Josephs failed to disclose his prior conviction or his stay in the state mental hospital 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 discrimination to the EEOC in April 1999, which was considered filed as of November 1998.1 Josephs then filed this action alleging 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 administrative 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 Air Lines, 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:
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 reinstate 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 applications were reinstated, as well as evidence of statements indicating that *1020Pac 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 applications were reinstated. . Rather, his failure-to-reinstate claim alleges discrimination under the Americans with Disabilities Act (“ADA”), 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 service technicians, had failed to reveal prior criminal convictions, had been terminated, and had participated in the grievance process. However, other than having been terminated 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 mental health facility. The erroneous admission of grievance settlements 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 reinstating Josephs, while the former asks the jury to determine the issue of whether Pac Bell’s fear that Josephs might be dangerous 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, 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.
*1021The importance of determining whether Pac Bell’s concerns 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, 97 Cal.Rptr.2d 12 (Cal.Ct.App.2000) the California Court of Appeal reiterated that in California, “an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.” Similarly, in Federico v. Superior Court, 59 Cal.App.4th 1207, 1214, 69 Cal. Rptr.2d 370 (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 performed.” Id. Federico further reiterates that whether a defendant was negligent constitutes a question of fact for the jury except where reasonable jurors could draw only one conclusion from the evidence presented in which case a lack of negligence 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 unfettered fears. Josephs could, and did, present evidence to support his contention that his past does not create any likelihood of future dangerousness. He also presented evidence to support 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 unreasonable, 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 settlements of employees who were not similarly situated, and failure 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. Accordingly, I would vacate the judgment entered on the jury verdict and remand.
. I agree with the majority that the district court did not abuse its discretion in applying equitable tolling to the filing of Josephs' EEOC complaint.
. 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 complaints 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 process. 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 purposes 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, 43 Cal.Rptr.2d 57 (1995).
. Although not presented in these terms by Pac Bell, the failure to determine whether Pac Bell reasonably considered Josephs dangerous is conceptually 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.
. 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.