your honors good morning and may it please the court my name is aaron pettigrew and i'm joined by dan johnson we represent the plaintiff appellants miss rachel price and test case heard i would like to reserve three minutes on rebuttal if i may we are here today because shell oil twice passed plaintiff's up for promotion in favor of heterosexual men who had less experience on the job less specialized education and less tenure at the end of courtis refinery plaintiffs seek a new trial today on two grounds the first is that the trial court issued a jury instruction which finds no support in either the law or the facts of this case and second because plaintiffs were deprived of the opportunity to present their claims of retaliation to the jury turning to the first issue jury instruction number twelve was not asked for by either party in plaintiff's vigorously opposed jury instruction am i correct in thinking that your objection to jury instruction number twelve is to the second paragraph i'm sorry your honor your objection to jury instruction number twelve is to the second paragraph of the instruction is it not for the third through the third the second it for us i'll ask opposing counsel as well just just line by line what this would mean we agree your honor we're actually not entirely sure what the court intended for this instruction to mean it's states in plain language that shell oil admits that those involved in the decision making process were its agents ok so so it's as the employees involved in making the promotion decision twenty eleven twenty twelve and twenty eleven that was mr letter that mr lindsey is slain is a correct that's right your honor although plaintiff's theory of the case is that the men in charge of the lab not necessarily those who are the designated decision makers influenced this and the theory of your case is if there were other individuals in twenty levon who were also involved in that decision well your honor the twenty two thousand and eleven promotion decisions were also well we have to take into account both two thousand and eleven  other individuals involved as well correct and that's mr leavitt mr fox correct and also mr lindsey so get back to the instruction which is i understand the first paragraph i was asking about the  paragraphs the first paragraph to me is confusing too because it says it needs they were acting as their agents but they're not as they were acting within the scope of their authority the instruction then goes on to say if you find that they were agents denied by the ok good now we're on track here so you don't object to that paragraph well to the extent that yes we don't get back to the first paragraph i just have one further question so when it's a shell admits that those employees were is that a correct statement a fact i mean is was was the the court correct in saying that shell admitted that they were acting as their agents and deny that they were acting within the scope of authority that couldn't be true as to the people who shell it it's were authorized to make the promotion decision or let it in lindsey that is correct that cannot be true your honor because that's a well established principle under discrimination law that when an adverse employment decision occurs it is necessarily  washington responding at superior law and then go to the third paragraph now and explain that one to us it says if you find that those those employees were not acting within the scope of authority as well on enterprises agents then you must on enterprises l l c what is so troubling about that sentence your honor is that it up and decades of precedent as to what is cause a sion in a discrimination case what would be a correct statement would it be say would it would it be that if you find that they were not acting within the scope of their authority you may consider their actions as evidence no your honor scope of authority is never appropriate in the discrimination case discrimination cases do not ask where the bias comes from if the bias was not authorized regardless it is imputed to the employer where an adverse decision was made in substantial part i tell you what troubled me about reading this instruction was the final cause  must find for equality it may well be that you give different weight to actions taken by people outside the scope of their authority but it doesn't mean that that you must find for the employer under washington law does that i mean it seems to be directly contradictory it is your honor so so help me understand washington discrimination law there was i understand the substantial factor rule which is part of instruction fifteen but there was an argument between you and opposing counsel about whether washington has has adopted this cat's paw theory because i understood your theory of the case to be there for at least for twenty twelve that's lane and blake who were not themselves biased but because they reviewed legates performance evaluations and fox's information discriminatory information got into their decision making process which is not  it seems to be closer to federal law regarding the discriminatory person is using the innocent decision maker as a cat's paw but i didn't see the add in washington law so maybe you could point me to the right cases where yes your honor subordinate bias theory is recognized and void the state department of social health and services as well as city of vancouver vs public employment relations committee and really it turns on the question of cause a sion if the impermissible bias or discrimination of a individual who may or may not have been authorized to exercise that authority improperly influences an adverse employment decision and that is a substantial factor in that decision the plaintiffs have won and this is the fundamental problem with jury instruction number twelve is that it takes that away entirely that is to say the jury could have agreed that's discrimination context the possible outcomes are quite grave i'm afraid it would allow a corporate defendant who has an anti discrimination policy to simply say every time this person was not authorized to that like way were themselves discriminatory i don't see how the corporation could say well they were our decision makers but to the extent they acted discriminatorily it was endless scope of authority but here there's no evidence in fact i think plaintiff agrees that miss lane is likely were not themselves discriminatory that's correct your honor but this instruction goes at the very heart of plaintiff's theory which is that in the two thousand and twelve promotion decisions in particular individuals who were not authorized to be involved nevertheless influence the decision with their homophobic sexist discriminatory attitudes  a slightly different question what we've been asking you represent two plaintiffs correct as to the first promotion could they have both been injured yes well you know your theory had there not been discriminatory company only one of them would have gotten a promotion well the truth is your honor both were discriminated against i understand i'm asking a causation question well i mean i understand both were discriminated against but there was only one position open so had  not acted in a discriminatory way only one of them would have gotten the promotion correct i understand your point your honor and that's true factually however there were other damages involved including emotional distress damages and plain a affirmative defense to liability that was never played by shell and this is reflected by the fact that shell didn't ask for this affirmative defense in their proposed jury instructions it was given to a sponsor moreover the evidentiary burden that shell would bear without affirmative defense was likewise not present in the jury instruction also as we've discussed this instruction finds no support in the facts and no time did shell argue that the individuals who decision were biased no your honor but then the instruction says that sheldon i said those employees were acting within the scope of authority which doesn't it just doesn't make sense this is actually an accurate i mean it that they were acting within the scope of the authority as the decision makers that's correct it is an inherently confusing and misleading jury instruction and i would add that the the model jury instruction in the ninth circuit provides that individual whose authority is disclaimed be identified in the instruction and indeed plaintiffs asked as a last ditch effort that the court include those individuals names in the obviously the party see this is from a very different perspective and i will start out with the jury instructions before you get to your instruction let me just make sure i understand the posture of this case you're not arguing on appeal that there was insufficient evidence to go to the jury are you absolutely ok and so putting aside whether or not they prove their claim as to either of these two incidents the question with respect to that they did your instructions that the instruction was appropriately given despite the fact that we objected to the instructed so but now miscue different question so you're not you don't contest there was sufficient evidence to go to the jury and in your brief you did not argue harmless error we did not argue that it was insufficient evidence to go to brief we did not argue her ok now so therefore i think we're stuck with the question of whether the instruction is an accurate statement of the law so now you know me why you think it is and we believe that the instruction is an accurate statement of the law first of all in looking at whether or not the instructions instructions are accurate statements of the law the instructions must be looked at as a whole and this particular instruction in the first paragraph what judge who now or did was to identify that the plaintiff was claiming that employees plural were involved in making promotion decisions in two thousand and eleven in two thousand and twelve and echoing in a price at minute that those employees who were authorized to do so were within fact were in fact acting within the scope of their thoughts and what i'm sorry i was just going to say looking at the instructions as a whole to me makes your position mark difficulty in a way because if i don't understand how instruction number twelve and consistent with instruction number fifteen when i because it appeared to be occurring statement of the law as it applies in this case and it's hard to see how both of them can be correct at the same time i think your are that the if you look at the second paragraph of instruction number of number twelve what you see in that instruction is a a correct statement of  said to opposing counsel it says that shell the plaintiffs claim that the employees involved in making the promotion decisions and twenty eleven so in twenty eleven it was legit linsey and slain is that correct or individuals who were involved in the two so which employees the employees are and identified so is that all of them with respect to the way that the judge actually stated this instruction we believe that this instruction very clearly talks about those individuals who were granted the authority to make decisions by shell eleven that's going to slam like way in two thousand and twelve then it goes on to say it did not have those employees were acting within the scope of authority so is that factually inaccurate because i thought that shell had in  fact conceded that they had authorized them to make the decision shell didn't act to see that those three individuals in two thousand and eleven those two individuals in two thousand and twelve were actually acting within the scope of their authority something is false when asked of those people that's an  facts i think that it was not an accurate statement of fact because arguments had been proffered that there were others beyond this group and i don't understand your argument as to the others i'm just asking with risp if i were juror and i was trying to say i think would a and lindsay were biased there's evidence you say there's sufficient evidence to go to the jury i want to look at the judge's instructions with the judge's instructions tell me is that you deny that the employees were acting within the scope of their if they find that the individuals were agents and they were acting within their store authority then they must make that decision but counsel some of those who are not contested issues that is the scope of  understand these instructions and try to follow them and so they're being given information in the last sentence of the first paragraph and in the third paragraph that's not correct i disagree that this is incorrect information tell me why the third paragraph even under your theory that it only applies to the other individuals who are identified is a correct statement of the law if they found that those individuals weren't acting within the scope of their saying is that would be an accurate statement off we had some words to it i'm saying that that given given the arguments that were made to the jury the jury had the opportunity to make those determinations as to whether or not the individuals who are not identified in this list do want to address this issue of putting in names well before you get to it though as to the two thousand and eleven claim who which you're saying is if you find that one of the individuals who wasn't authorized to make a decision in two thousand and eleven somehow did something outside the scope of their authority you must nonetheless find for a quad even though there's there is sufficient evidence to go to the jury that two of the individuals involved in the decision had acted out of bias no veges that is not the argument that i know it's not your thing but it's what this instruction says i don't i don't read the instruction that way i read the instruction to say that when as it relates to individuals who are acting within the scope of the authority of the earth already then you argument that this was this lack of authority is an affirmative defense that was not pleaded and that this this instruction definitely was not requested by the employer it was just given by the judge on his own homework so what effect if any should that have on our analysis and i do not believe that this instruction constitutes an affirmative defense that was not pleaded by by shelf its lack of authority to make a decision i'll try virus action an affirmative defense it can be an affirmative defense but in this particular circumstance first of all with respect to these particular issues there was there was a shifting theory as this case went on and there was a lot of a lot of argument before the court about what evidence would and would not come in and that in fact also goes to the issue of the image of the issue of retaliation for instance the court said i am going to hear all of the evidence and determine what will and will not come in and so there was no opportunity at the time with the shifting theory after after the request for a fifth amendment to the scum plate that we in fact plead plead an affirmative defense what we had was you had lots of opportunities to plead because as you said there were a lot of  and complaints and you know speaking just for myself i don't think it was necessarily an abuse of discretion to say that sign off of them but you have the opportunities each time also to plead in whatever way was appropriate in response for that is true shell did have the opportunity to plead whatever was necessary in response it was not until the issue arose during the course of and subsequent to the request to add additional claims that it became clear what was really about to take place at least as it related to this particular argument was that there was going to be a movement of who would and would not the responsible individual and the court should be aware as we stated in our briefs that as argument in this case went forward when there was a discussion about putting all of the names of every individual first of all it came in the context of a request for a statement that every employee of shell is in fact an agent of the corporation and therefore the acts of every employee of shell would be acts which should be imputed to the employer can we go back to your the argument was that it was late day and fox and they actually i'm not sure there are so many people that the point that with respect to those people whoever they were i'm reading in washington this isn't a screamer versus clark college and it's in a footnote so it's not emphasized but the supreme court of washington says the fact we reject the theory that stray won't stray remarks by non decision makers are not relevant to the determination of whether bias was in effect central he says not only is it not relevant but you must find for the employer if you find that these folks were non decision makers i don't i don't see how that comports with washington when you say it's relevant you can't so you then must find for the defendant  compared to those who would be argued otherwise involved in without the question as to those who are otherwise involved to an authorized as i read the washington supreme court's decision it says well perhaps not dispositive comments stray remarks made by those kinds of folks may be taken into account of circumstantial evidence and this instruction says that what they did if you find they were authorized not only don't even worry about what they did you must find for show there are two things i  think need to be pointed out one the jury heard all of the argument even in the face of this instruction which the a pollens were really to accept if the name mr fox was put into this instruction that was an alternative argument i mean they objective and in fact i know i don't have your brief in front of me at the moment but i don't believe that you argued that this issue was incorrectly preserved for review so the fact that they asked for an alternative doesn't i don't thank you very for i do believe however that it's a demonstration that they knew that they had the ability to make the appropriate arguments under this instruction and in fact they did make the arguments that they wrong instruction nonetheless makes the best possible argument under that wrong instruction that somehow that cures everything from the wrong instruction the question becomes whether or not the in its entirety the jury was able to make a based upon all the statements of law and argument that were presented to the jury and all the statements about how to use the lawyers argument cure improper jury instructions has up his up correct principle since we presume the juries follow their instructions leave we do presume that juries follow instructions and point of fact we do and don't we also presume that a wrong jury instruction is prejudicial not in this case your honor because the  theory that you wanted to anyway i believe that generally speaking i don't have specific authority that i can cite you right now but i do believe that they that the appellant was given the opportunity to present the facts as they want them presented under these instructions honor the counsel for shell art argues that the instruction is an appropriate because of the evidence there is appropriate rather because of the evidence of bias by mr le de mr lindsey and mr fox and it is exactly because of that evidence why jury instruction number twelve is inappropriate and misstates the law if those individuals indeed influenced a two thousand and twelve decision to not promote plaintiffs then plaintiffs have won this case i think your honors for the privilege of this my first ninth circuit argument thank you thank you the case just on you submitted and we appreciate the helpful arguments from both counsel we will take a break for about ten minutes