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

the employee' s activity and the employer' s adverse action. Estevez v. Faculty Club of Univ. of
Wash., 129 Wn. App. 774, 797, 120 P. 3d 579 ( 2005); Scrivener v. Clark Coll., 181 Wn.2d 439,

446, 334 P. 3d 541 ( 2014). If the employee establishes a prima facie case, then the employer may

rebut the claim by presenting evidence of a legitimate nondiscriminatory reason for the adverse

action. Estevez, 129 Wn. App. at 797 -98; Scrivener, 181 Wn.2d at 446. The burden then shifts

back to the employee to show that the employer' s reason is pretext. Estevez, 129 Wn. App. at 798;

Scrivener, 181 Wn.2d at 446. Once " the record contains reasonable but competing inferences of

both discrimination and nondiscrimination, ` it is the jury' s task to choose between such

inferences. ' Estevez, 129 Wn. App. at 798 ( quoting Hill v; BTCIIncome Fund -I, 144 Wn.2d 172,
186, 23 P. 3d 440 ( 2001)) ( other citations omitted). Here, WSH argues that Boyd failed to prove

that WSH took an adverse employment action and, even if he had shown adverse employment

actions, there is no causal connection between Boyd' s protected activities and any adverse

employment actions.

II. . ADVERSE EMPLOYMENT ACTIONS

First, WSH argues that the trial court erred when it failed to limit Boyd' s claimed adverse

employment actions. Specifically, it asserts that the trial court erred when it denied WSH' s CR 50

motion arguing that some of the retaliatory actions Boyd alleged were not adverse employment

actions, gave an adverse employment action jury instruction that was contrary to law, and failed

to give WSH' s proposed verdict form.

A. CR 50 Motion