Verduzco v. King County: Ambiguous WLAD “Adverse Employment Action” Instruction Is Misleading but Not Reversible Absent Proven Prejudice

1. Introduction

In Verduzco v. King County (Wash. June 11, 2026), the Washington Supreme Court addressed a narrow but recurrent trial issue in Washington Law Against Discrimination (WLAD) litigation: how a jury should be instructed on the meaning of “adverse employment action” when a plaintiff brings both discrimination and retaliation claims.

Petitioner Reynaldo S. Verduzco, a long-time King County employee, alleged the County discriminated and retaliated against him in violation of WLAD, including RCW 49.60.030(1)(a) and RCW 49.60.210(1). The dispute before the Supreme Court did not require deciding what the correct WLAD standard for “adverse employment action” is. Instead, the parties assumed the Washington Pattern Jury Instructions (WPI) definitions were correct and litigated only whether the trial court misled the jury by combining the WPI definitions into a single instruction.

The jury rejected discrimination but found retaliation. The Court of Appeals reversed for a new trial on retaliation due to instructional error. The Supreme Court reversed the Court of Appeals, holding the instruction was ambiguous and potentially misleading, but not reversible because the County failed to show prejudice.

2. Summary of the Opinion

The court held:

  • The trial court’s Instruction 8—reciting back-to-back the WPI definition of “adverse” for retaliation and the WPI definition for discrimination—was ambiguous and therefore potentially misleading because it did not differentiate how each definition applied to each claim.
  • However, the ambiguity was not reversible error because the County did not carry its burden to demonstrate prejudice from a merely misleading instruction.
  • The Supreme Court therefore reversed the Court of Appeals and remanded for consideration of the other issues the Court of Appeals had not reached.

Critically, the court emphasized it was not defining “adverse employment action” under WLAD and noted that WPIs are not authoritative law.

3. Analysis

3.1. Precedents Cited

A. Instructional-error framework: ambiguity, misleadingness, and prejudice

The opinion’s core is an application of Washington’s instruction-review doctrine:

  • Joyce v. Dep't of Corr. and Douglas v. Freeman supply the standard of review: de novo for legal error, discretion for wording absent legal error.
  • Bodin v. City of Stanwood provides the sufficiency test: instructions must (1) permit counsel to argue their theory, (2) not mislead, and (3) properly inform the jury when read as a whole.
  • Anfinson v. FedEx Ground Package Sys., Inc. supplies the key reversible-error rule applied here: an erroneous instruction warrants reversal only if it prejudices a party; prejudice is presumed for a “clear misstatement of law” but must be proved when the instruction is “merely misleading.”
  • Keller v. City of Spokane is cited via Anfinson for the same presumption/proof distinction.
  • Griffin v. W. RS, Inc. and Lake Hills Invs., LLC v. Rushforth Constr. Co. reinforce that the appellant bears the burden to show prejudice from a potentially misleading instruction.

The court used Anfinson v. FedEx Ground Package Sys., Inc. and Lake Hills Invs., LLC v. Rushforth Constr. Co. as close analogs for why ambiguity can mislead without necessarily misstating the law—and why that distinction matters for prejudice.

B. Ambiguity as “misleading”: analogies used by the court

  • In Anfinson v. FedEx Ground Package Sys., Inc., the ambiguity of the word “common” risked a jury adopting an improperly restrictive standard, even though the instruction did not necessarily announce an overtly wrong rule.
  • In Lake Hills Invs., LLC v. Rushforth Constr. Co., an instruction that failed to explicitly inform the jury of proportional attribution was “potentially misleading,” yet still required proof of prejudice for reversal.

These cases mattered because Instruction 8’s defect was not an explicit legal misstatement; it was that the combined definitions could be read either as alternatives or as cumulative requirements.

C. WLAD retaliation elements and related authority

For the retaliation claim elements, the court relied on:

  • Cornwell v. Microsoft Corp. (retaliation prima facie elements), which itself cites Currier v. Northland Servs., Inc. and Wilmot v. Kaiser Alum. & Chem. Corp..

D. Federal law’s role and the (unresolved) WLAD “adverse action” standard

The opinion flagged that WPIs are not primary law and discussed the limited role of federal precedent under WLAD:

  • State v. Carson (pattern instructions are not authoritative).
  • Burlington N. & Santa Fe Ry. Co. v. White is identified as the federal case the WPI retaliation definition is modeled after, but the Supreme Court emphasized it has not adopted White for WLAD retaliation.
  • Kumar v. Gate Gourmet, Inc. and Grimwood v. Univ. of Puget Sound, Inc. are cited for the proposition that federal law may be persuasive but is not binding; Washington is “free to adopt those theories and rationale which best further the purposes and mandates of our state statute,” often providing broader protections given WLAD’s liberal-construction command (RCW 49.60.020).

By explicitly declining to define “adverse employment action” under WLAD, the court leaves the substantive standard open for future cases—even while resolving a practical instructional dispute.

E. What counts as adverse action in practice (persuasive and illustrative citations)

Although the court did not define “adverse employment action,” it illustrated how employer actions can satisfy both discrimination and retaliation concepts, relying on:

  • Jin Zhu v. N. Cent. Educ. Serv. Dist.—ESD 171 (failure to hire can be both discrimination and retaliation).
  • Boyd v. State (written reprimand, police report, and unpaid suspension as substantial evidence of adverse actions in retaliation).
  • Alonso v. Qwest Commc'ns Co. (discrimination adverse action: reassignment with loss of benefits).
  • Tyner v. Dep't of Soc. & Health Servs. (retaliation adverse action: reassignment with loss of benefits).

F. Background citations on protected identity terminology

In a footnote explaining the opinion’s use of “race” and “ethnicity,” the court cited:

  • State v. Zamora, referencing
  • Peña-Rodriguez v. Colorado.

These citations provide contextual support for inclusive terminology but do not drive the instructional-error holding.

3.2. Legal Reasoning

A. Why the combined WPI instruction was misleading

The jury received Instruction 8, which sequentially included:

  1. The WPI retaliation-oriented concept: an action is adverse if it is “harmful to the point that it would dissuade a reasonable employee from making a complaint of discrimination,” judged from the perspective of a reasonable person in the plaintiff’s position (WPI 330.06).
  2. The WPI discrimination-oriented concept: an adverse employment action “materially affects the terms, conditions, or privileges of employment” (WPI 330.01.02).

The WPI notes anticipate that both claims may be tried together and recommend courts “combine” the instructions “to differentiate” the claims. The trial court combined them but did not differentiate them.

The Supreme Court found the result ambiguous: jurors could read the two sentences as (a) alternative definitions (either one suffices) or (b) cumulative elements (both must be satisfied). Under Anfinson v. FedEx Ground Package Sys., Inc., such ambiguity can make an instruction “misleading.”

B. Why the misleading instruction was not reversible

The dispositive move was the court’s prejudice analysis. Under Anfinson v. FedEx Ground Package Sys., Inc., prejudice is presumed only for a “clear misstatement of law.” Because the County challenged Instruction 8 as misleading rather than as a definite misstatement of WLAD law—and because the case proceeded on the parties’ assumption that WPIs were correct—the County had to prove prejudice.

The court found the County did not meet that burden for several interlocking reasons:

  • The County conceded the unpaid suspension was an adverse employment action; it argued most other actions were not.
  • The County’s prejudice theory—that the jury could have found “materially affects terms and conditions” without finding “would dissuade” a reasonable employee—did not fit the record, because the County did not explain why an unpaid suspension would not dissuade a reasonable employee from complaining.
  • If anything, reading the combined instruction cumulatively (requiring both concepts) would narrow the universe of qualifying actions and make it harder for Verduzco to prove adverse action than WPI 330.06 alone—an effect that would tend to benefit, not prejudice, the County.
  • The instruction still allowed the County to argue its theory (only the suspension was adverse, and it was justified for unprofessional conduct).

Accordingly, the court held: misleading, yes; reversible, no.

3.3. Impact

A. Practical rule for litigants: “misleading” requires a prejudice showing

The decision reinforces (and applies in the WLAD jury-instruction context) the doctrinal divide drawn in Anfinson v. FedEx Ground Package Sys., Inc.: appellants challenging an instruction as ambiguous or confusing must build a record explaining how the instruction likely changed the verdict. It is not enough to show that a better-drafted instruction was available.

B. Guidance to trial courts: “combine” does not mean “stack without labeling”

While the court did not prescribe model language, its criticism is operational: when both retaliation and discrimination are submitted, simply pasting two definitions together can create a conjunctive/disjunctive ambiguity. Trial courts should “differentiate” the definitions (as the WPI notes suggest), potentially through:

  • separate adverse-action definitions tied explicitly to each claim,
  • claim-specific instructions rather than a single shared definition, and/or
  • special verdict forms that anchor the definition to the particular cause of action.

C. Substantive law remains open: what is an “adverse employment action” under WLAD retaliation?

The court expressly left unresolved whether Burlington N. & Santa Fe Ry. Co. v. White (and the WPI 330.06 definition modeled on it) is the correct standard for WLAD retaliation. The opinion therefore:

  • preserves room for future litigants to argue for a WLAD-specific “adverse action” standard, potentially broader than federal law under RCW 49.60.020, consistent with Kumar v. Gate Gourmet, Inc., and
  • signals that WPIs, while influential, will not substitute for statutory interpretation when the issue is properly presented.

4. Complex Concepts Simplified

  • WLAD: Washington’s civil rights statute for discrimination and retaliation in employment and other contexts (RCW 49.60).
  • Retaliation: punishing an employee because they opposed discrimination (RCW 49.60.210(1)).
  • Adverse employment action: a harmful employer action required as part of both discrimination and retaliation claims. The statute does not use this phrase; courts and WPIs supply working definitions.
  • Pattern jury instructions (WPI): recommended templates created by a committee; they are helpful but “not authoritative primary sources of the law.”
  • Misleading vs. clear misstatement of law: if an instruction plainly states the wrong rule, prejudice is presumed; if it is merely ambiguous, the appellant must show it likely affected the verdict.
  • Prejudice: in this context, a reason to believe the instruction made a difference to the outcome.
  • Remand: the Supreme Court sent the case back to the Court of Appeals to decide other issues it did not reach after it reversed solely on the instruction.

5. Conclusion

Verduzco v. King County establishes an instruction-focused precedent with two key takeaways.

  1. Combining the WPI definitions of “adverse employment action” for discrimination and retaliation into one undifferentiated instruction can be misleading because jurors may not know whether the definitions are alternatives or cumulative requirements.
  2. Even when an instruction is misleading, reversal requires prejudice. Under Anfinson v. FedEx Ground Package Sys., Inc. and related cases, the appellant must explain how the ambiguity likely changed the verdict—especially where the challenged instruction may have narrowed the plaintiff’s pathway to liability.

The opinion also underscores an important open question: Washington’s Supreme Court has still not decided what “adverse employment action” means under WLAD retaliation as a matter of substantive law, leaving future litigation to test whether federal standards like Burlington N. & Santa Fe Ry. Co. v. White should apply.