The county fails to explain how it was prejudiced by this instruction. Instead,
the county contends the jury might have read instruction 8 to find some conduct
materially affected the terms or conditions of employment without considering
whether it could also dissuade a reasonable employee from complaining of
discrimination. But the county cannot explain why unpaid suspension could not
dissuade a reasonable employee in Verduzco’s circumstances from complaining.
If anything, combining the two WPI definitions narrowed the scope of actions
the jury could consider to only those that satisfied both definitions. Reducing the
range of actions to consider did not lower Verduzco’s burden; it made it easier for
the county to negate the adverse action of the retaliation claim (and harder for
Verduzco to prove that element) than the pattern instructions call for. Rather than
prejudicing the county, instruction 8 seems to have benefited it. The instruction
5
The county argued no other conduct but the unpaid suspension could constitute
“discipline” because a union representative testified that some actions, such as administrative
leave, would not be subject to a grievance procedure under the collective bargaining agreement.
But the county cites no authority for the proposition that the negotiated terms of a contract between
a union and an employer control the meaning of a retaliatory or discriminatory act deemed an
unfair practice by the legislature.
15
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Verduzco v. King County
No. 103749-0
allowed the county to argue its theory of the case: that the unpaid suspension was
the only adverse action it took and that doing so was justified, not retaliatory.