Rachel Price v. Equilon Enterprises, 682 F. App'x 569

Plaintiffs Rachel Price and Tessa Gehardt worked for Equilon and were denied promotions in 2011 and 2012; they sued under Washington law alleging discrimination based on gender and sexual orientation.
The case proceeded to a jury trial in federal district court; the jury returned a defense verdict and the court entered judgment for Equilon.
Plaintiffs sought leave to file a fifth amended complaint shortly before the dispositive motion deadline; the district court denied the request.
At trial the court gave Instruction 12, which told the jury that if employees who made promotion decisions were not acting within the scope of their authority, the jury must find for Equilon.
Plaintiffs objected: Washington law allows discriminatory comments or actions by non-decisionmakers or those outside formal authority to be considered as circumstantial evidence of discrimination; Instruction 12 therefore misstated the law and conflicted with Instruction 15, which correctly required proof that discrimination was a substantial factor.
The Ninth Circuit vacated and remanded for a new trial, finding the instruction erroneous and presumed prejudicial because Equilon did not argue harmless error on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court abused discretion denying leave to file 5th amended complaint	Leave should be granted despite delay because claim relates to same facts	Motion was untimely; plaintiffs had amended repeatedly and new claim was based on long-known facts	Denial was not an abuse of discretion (motion properly denied)
Whether Instruction 12 correctly stated employer liability for acts of employees	Instruction improperly required that discriminatory acts by employees outside scope absolve employer; such acts can be circumstantial evidence of discrimination	Instruction reflected that employer denies employees acted within scope, so verdict must favor employer if out-of-scope	Instruction 12 misstated Washington law and was erroneous
Whether jury could consider discriminatory statements/actions by non-decisionmakers or those not formally authorized	Such statements/actions may be relevant circumstantial evidence and can show discrimination was a substantial factor	Employer argued out-of-scope conduct absolved liability under Instruction 12	Court held Washington law allows consideration of discriminatory statements/actions by non-decisionmakers as circumstantial evidence; jury not required to find for employer solely for that reason
Whether instructional error was harmless	Plaintiffs argued prejudice from incorrect instruction	Equilon did not argue harmless error on appeal	Presumed prejudicial; vacated and remanded for new trial

Chodos v. W. Publ’g Co., 292 F.3d 992 (9th Cir. 2002) (factors for amendment of pleadings and prejudice from delay)
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) (scheduling-order and untimely amendment standards)
Scrivener v. Clark Coll., 334 P.3d 541 (Wash. 2014) (discriminatory statements by nondecisionmakers may be circumstantial evidence of discrimination)
Mackay v. Acorn Custom Cabinetry, Inc., 898 P.2d 284 (Wash. 1995) (evidentiary principles on discriminatory statements and actions)
White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002) (instruction must fairly and adequately cover issues presented)
Dang v. Cross, 422 F.3d 800 (9th Cir. 2005) (presumption of prejudice when appellant does not argue harmless error)