Background
Reynaldo Verduzco, a Latino employee with a hearing disability, has worked for King County’s Department of Natural Resources and Parks (DNRP) since 1992 and was promoted to program manager in 2018. His legal claims arose from a series of workplace conflicts that began when he raised concerns about bias in a hiring policy. After his section manager responded by berating him, Verduzco documented the incident in emails to human resources and DNRP leadership, characterizing it as discriminatory and retaliatory. Human resources concluded no discrimination had occurred and warned Verduzco about the tone and volume of his communications, issuing him a letter of expectations.
Subsequent incidents—including Verduzco’s discussion of the El Paso mass shooting at a team meeting, a confrontation with his supervisor at a race equity conference, and his emailed complaint about a parking ticket he believed was racially motivated—led to additional letters of expectations, a negative performance review, and ultimately five months of paid administrative leave with building access revoked. King County then issued a five-day unpaid suspension for what it characterized as inappropriate emails and conduct. Upon returning, Verduzco was reassigned to a role with less responsibility, though his pay and job classification remained unchanged.
Verduzco sued King County under the Washington Law Against Discrimination (WLAD), alleging discrimination based on race, ethnicity, and disability, as well as retaliation for opposing discriminatory practices. At trial, the court issued a single jury instruction (Instruction 8) that combined the Washington Pattern Jury Instructions’ (WPI) separate definitions of “adverse employment action” for discrimination and retaliation claims. The jury rejected the discrimination claims but found in Verduzco’s favor on retaliation. King County appealed, and the Court of Appeals reversed and ordered a new trial, finding the combined instruction erroneous. The Washington Supreme Court granted review.
The Court’s Holding
The Washington Supreme Court held that Instruction 8 was ambiguous and potentially misleading because it recited the WPI’s two distinct definitions of “adverse employment action”—one for discrimination claims and one for retaliation claims—in sequence without explaining how each definition applied to the respective claim. The WPI itself recommends that courts combine these instructions “to differentiate” the two claims, but provides no further guidance on how to do so. By listing both definitions without differentiation, the instruction could be read either as alternative conceptions of “adverse” or as elements that must each be independently satisfied, creating ambiguity as to the legal standard applicable to each claim.
However, the Court held that King County failed to demonstrate it was prejudiced by the instruction. Because the instruction was merely misleading rather than a clear misstatement of law, prejudice is not presumed—the challenging party bears the burden to show it. The Court found that combining the two definitions, if anything, narrowed the range of conduct the jury could consider by effectively requiring actions to satisfy both standards simultaneously. This made it harder for Verduzco to prove the retaliation element, not easier, and the county was still able to argue its core theory that the unpaid suspension was the only adverse action taken and that it was justified. The Court reversed the Court of Appeals and remanded for that court to address the remaining appellate issues.
The Court expressly declined to define the contours of an “adverse employment action” under the WLAD as a matter of law, noting that neither the statute nor prior Washington Supreme Court precedent has done so, and that the parties did not ask it to reach that question. The Court also noted that the WPI definitions are not authoritative legal sources and that Washington courts have not yet resolved whether the U.S. Supreme Court’s interpretation of federal antidiscrimination law in Burlington Northern & Santa Fe Railway Co. v. White applies to WLAD retaliation claims.
Key Takeaways
- A jury instruction that combines WPI pattern definitions for “adverse employment action” across discrimination and retaliation claims without specifying which definition applies to which claim is ambiguous and potentially misleading, but ambiguity alone does not require reversal.
- When a jury instruction is merely misleading (rather than a clear misstatement of law), prejudice is not presumed—the party challenging the instruction must affirmatively demonstrate that the error harmed it.
- The Washington Supreme Court left open the definition of “adverse employment action” under the WLAD for retaliation claims, including whether the federal Burlington Northern standard applies; trial courts and litigants should not treat WPI pattern instructions as authoritative statements of Washington law.
- Actions such as paid administrative leave with building access revoked, negative performance reviews, letters of expectation, and reassignment with reduced responsibilities may individually or collectively constitute adverse employment actions sufficient to support a retaliation claim under the WLAD, though that question was not formally resolved here.
Why It Matters
This decision provides important guidance on the standard for reversible error when jury instructions are challenged as misleading rather than legally incorrect under Washington law. Employers challenging jury instructions in employment discrimination and retaliation cases cannot rely on a presumption of prejudice; they must affirmatively show the instruction harmed their ability to present their case. The ruling also underscores that a combined instruction that inadvertently raises Verduzco’s burden—by requiring actions to satisfy both the discrimination and retaliation definitions of “adverse”—will not be grounds for reversal at the employer’s behest.
More broadly, the Court’s explicit reservation of the question of how to define “adverse employment action” under the WLAD signals that Washington’s standard may diverge from the federal framework. The Court’s reminder that WPI instructions are not authoritative law, combined with its observation that the WLAD has historically afforded greater employee protections than federal counterparts, suggests that when the Court does address this question, it may adopt a definition more protective of employees than the federal Burlington Northern standard. Employers and employees litigating WLAD retaliation claims should expect continued uncertainty on this issue until the Court takes it up directly.