or practices common to the class members during the class period.’” Id. (emphasis
added) (quoting the record). That instruction was “ambiguous because the term
‘common’ is subject to multiple definitions”—it could mean either shared by all
members of a group or a characteristic of a usual type. Id. at 874-75. The instruction
could be read to describe work experience that was true for most members of the
class or experiences shared by all members of the class. If the jury read “common”
to mean “all,” the instruction would effectively prohibit the use of representative
evidence otherwise permitted in class actions under wage and hour laws. Id. at 875.
Though the instruction did not necessarily state an incorrect legal standard,
it was ambiguous as to the legal standard and therefore misleading. See also
Lake Hills Invs., LLC v. Rushforth Constr. Co., 198 Wn.2d 209, 224,
494 P.3d 410 (2021) (jury instruction that “did not explicitly inform the jury that it
could calculate and attribute proportional liability” was potentially misleading).
Similarly here, the adverse employment action instruction was ambiguous
as to how it applied to each of Verduzco’s claims. The instruction listed both pattern
definitions of adverse actions for discrimination and retaliation claims, but
did not differentiate between the two claims, as the WPI recommends.
WPI 330.01.02 note on use, 330.06 note on use. Without differentiating between the
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Verduzco v. King County
No. 103749-0
discrimination and retaliation claims, each sentence in the instruction could be read
as alternative conceptions of “adverse” or as criteria