Trial Judge’s Faulty Bias Instruction Doesn’t Trump Jury Verdict

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By Jon Steingart

A trial judge’s failure to distinguish between types of disability discrimination in a jury instruction doesn’t mean its verdict should be reversed, a federal appeals court ruled.

Tracy Dunlap prevailed at trial against Liberty Natural Products, Inc., despite the district court judge’s mistake in conflating her claims for failure to accommodate her tennis elbow and for subjecting her to disparate treatment due to her disability. The faulty instruction was a “harmless” error, and “and it was more probable than not that the jury’s verdict was not affected,” Judge Johnnie B. Rawlinson wrote for the U.S. Court of Appeals for the Ninth Circuit.

The ruling may help shape the instructions employees and employers ask for in disability discrimination trials. A jury instruction explains the relevant law and provides guidance for how the jury weighs the evidence presented and reaches its verdict.

The judge’s mistake meant the jury wasn’t instructed on the need to determine whether Dunlap’s tennis elbow triggered a duty under the Americans with Disabilities Act for her former employer to work with her to determine a reasonable accommodation. Dunlap had to prove a duty was triggered for her failure-to-accommodate claim. It isn’t part of a disparate treatment claim.

Error Didn’t Help Company

“Ideally, the district court would have separated the elements of Dunlap’s disparate treatment and failure-to-accommodate claims in the jury instructions,” Rawlinson said. The error didn’t help Liberty because the evidence showed there was no question that it knew about Dunlap’s physical limitation, she said.

Knowledge of Dunlap’s injury triggered Libery’s duty to engage in the interactive process. The jury probably would have reached the same decision even if the trial judge had instructed properly, the Rawlinson said.

She also upheld the district court’s decision to cut in half the amount of attorney’s fees awarded to Dunlap. The district court explained that the reduction in attorney fees was reasonable based on Dunlap’s “limited success” in the case—she prevailed on only one of her five claims. The lower court’s “adequately explained” decision was sufficient for Rawlinson.

Judges Ronald M. Gould and Larry A. Burns joined the Dec. 28 opinion.

Aruna Masih and Michael Morris with Bennett, Hartman, Morris & Kaplan, LLP in Portland, Ore., and Banafsheh Violet Nazari, with Nazari Law in Portland, Ore., represented Dunlap.

Ruth Rocker and Janet Schroer with Hart Wagner LLP in Portland, Ore., represented Liberty.

The case is Dunlap v. Liberty Nat. Prods., Inc. , 9th Cir., No. 15-35395, verdict affirmed 12/28/17 .

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editor responsible for this story: Terence Hyland at

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