Diane Hodge v. Denis McDonough, 21-16392

Diane Hodge appealed an adverse jury verdict on Title VII claims (race, religion, and gender) for disparate treatment, hostile work environment, and retaliation.
At trial the parties submitted jointly stipulated jury instructions; the district court gave instructions that used conjunctive "and" language where disjunctive "or" was proper in two places.
The hostile-work-environment instruction listed racial/religious slurs and sexual harassment conjunctively, and used a "reasonable woman in the plaintiff’s circumstances" formulation.
The retaliation instruction required proof that the employer both reassigned Hodge and demoted her, rather than proof of either adverse action.
Hodge moved for a new trial, alleging prejudicial trial-counsel conduct; the district court denied the motion, finding no improper conduct that prevented a fair presentation.
The Ninth Circuit reviewed unobjected-to jury-instruction errors for plain error and review of the new-trial denial for abuse of discretion, and affirmed the district court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Hostile work environment instruction required sexual-harassment element (conjunctive "and")	The instruction added a non-existent element by requiring both racial/religious and sexual conduct	Any wording error was harmless; jury presumably understood claims and no questions were asked	Instruction erred in form (should be "and/or"), but error was not plain because no reasonable probability it changed the outcome
Objective-standard wording ("reasonable woman in the plaintiff's circumstances")	The gender phrasing might misapply the objective standard for non-sex claims	The phrase appropriately incorporates sex-based standard and covers other protected traits by "in the plaintiff's circumstances"	No plain error; "reasonable woman" is proper for sex claims and phrasing accommodated race/religion theories
Retaliation instruction used conjunctive "and" for adverse actions	Instruction improperly required proof of both reassignment and demotion	Any miswording was harmless; Hodge cannot show reasonable probability of different result	Conjunctive wording was incorrect but not plain error—no reasonable probability of a different outcome
Motion for new trial based on defense counsel conduct	Counsel misconduct prevented full and fair presentation, warranting a new trial	No improper conduct; district court did not abuse discretion in denying new trial	Denial of new trial was not an abuse of discretion; affirmed

C.B. v. City of Sonora, 769 F.3d 1005 (9th Cir. 2014) (plain-error test for unpreserved jury-instruction errors)
Dees v. County of San Diego, 960 F.3d 1145 (9th Cir. 2020) (abuse-of-discretion review for new-trial denials)
Christian v. Umpqua Bank, 984 F.3d 801 (9th Cir. 2020) (hostile-work-environment elements; sexual-harassment not required for race/religion claims)
Bearchild v. Cobban, 947 F.3d 1130 (9th Cir. 2020) (instruction that adds a non-existent element is erroneous)
Hoard v. Hartman, 904 F.3d 780 (9th Cir. 2018) (instructions must not impose additional elements)
Michell, 65 F.4th 411 (9th Cir.) (standard for showing reasonable probability that error affected outcome)
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (objective "reasonable woman" standard for sex-based hostile-work-environment claims)
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (plaintiff need only prove one adverse employment action for retaliation)
Reynaga v. Roseburg Forest Prods., 847 F.3d 678 (9th Cir. 2017) (subjective and objective components of hostile work environment)
Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002) (cumulative instructional errors may warrant reversal if prejudicial)