Wash. Court of Appeals published opinion — D2 45174-3-II Order Publishing Opinion.pdf

the investigation of Boyd' s threatening comments, his written reprimand, and the two transfers to

different wards —were not actionable. It also argued that Boyd failed to show a causal link

between the protected activity and any adverse employment actions. Finally, it argued that it had

non -retaliatory reasons for investigating Boyd. The trial court denied WSH' s CR 50 motion.

The trial court gave the following " adverse employment action" instruction over WSH' s
objection:

An adverse employment action is defined as an employment action or
decision that constitutes an adverse change in the circumstances of employment..
An employment action is adverse if it is harmful to the point that it would dissuade
a reasonable employee from making complaints of sexual harassment or retaliation.
An adverse employment action must involve a change in employment conditions
that is more than an inconvenience or alteration of job responsibilities.

Clerk' s Papers ( CP) at 2160.

The trial court gave the following " cat' s paw" instruction over WSH' s objection:

If a supervisor performs an act motivated by retaliatory animus that is
intended by the supervisor to cause an adverse, employment action, and if that act
is relied on by the employer and is a substantial factor in the ultimate employment
action, then the employer is liable for retaliation.

CPat2162.

The trial court rejected WSH' s 17- question proposed special verdict form, which listed

several different alleged adverse employment actions. Instead, the trial .court used a special verdict
             

45174 -3 -II

form that asked whether " the defendant retaliate[ d] against the plaintiff," and, if so, what is the

total amount of damages. CP at 2169 -70.