Conti v. Corporate Services Group, Inc. (30 F. Supp. 3d 1051, 2014)

ORDER

RICHARD A. JONES, District Judge.

I. INTRODUCTION

This matter comes before the court on a slew of motions following an eight-day jury trial. Both Plaintiff Michael Conti and Defendants Jay Leon and Corporate Services Group, Inc. (“CSG”) have requested oral argument on at least one of those motions, but the court finds oral argument unnecessary in light of the parties’ extensive briefing and the evidentiary record already available to the court. For the reasons stated below, the court rules as follows:

1) The court DENIES Defendants’ renewed motion for judgment as a matter of law and their motion for a new trial. Dkt. ## 219, 221.

2) The- court DENIES Mr. Conti’s motion for relief from the court’s December 17, 2013 judgment on the jury’s verdict. Dkt. # 234.

3) The court GRANTS Mr. Conti’s motion for attorney fees, .costs, and prejudgment interest, but awards substantially less than Mr. Conti requested. Dkt. # 193.

4) The court GRANTS Mr. Conti’s motion to supplement the record supporting his attorney fee motion, but does so solely because the court’s consideration of the additional evidence Mr. Conti submitted causes no prejudice to Defendants. Dkt. # 248.

II. BACKGROUND

Mr. Conti worked at CSG, which operates telephone call centers for corporate clients, for just six months. There is no dispute that CSG hired Mr. Conti because he spoke fluent Spanish and because he was a native of Colombia. When CSG hired Mr. Conti in January 2010, it was about to embark on a six-month pilot project for Microsoft, placing calls to customers in Latin America; CSG chose Mr. Conti, along with a native Brazilian Portuguese speaker, to make those calls. They paid him and the Portuguese speaker substantially more than representatives who spoke only English. Nonetheless, Mr. Conti’s employment was not expressly tied to the Latin-American project. CSG placed him on the “MSL” team, a team of employees working on various Microsoft projects. At the time, the other projects consisted primarily or entirely of placing calls in English. Early in his employment, Mr. Conti assisted the MSL team with English calls while he and the Portuguese speaker waited for the Latin-American project to ramp up. There is no question that Mr. Conti speaks English with a noticeable accent; the evidence at trial (not to mention Mr. Conti’s accented trial testimony) convincingly demonstrated that his accent did not interfere with his ability to communicate in English.

Microsoft chose not to extend the Latin-American project. That decision came along with a series of decisions Microsoft made about its contracts with CSG at the end of Microsoft’s fiscal year in June 2010. About 90% of CSG’s work was on Microsoft’s behalf, and CSG had much experience with Microsoft’s end-of-flscal-year reshuffling, which it referred to as “the gap.” In past years, CSG had laid off employees as part of restructuring to accommodate Microsoft’s changing needs during the gap. In 2010, CSG CEO Jay Leon instructed his subordinates not to lay off any call center employees as a result of the gap. His subordinates followed his instructions. CSG transferred more than 30 call center employees, the majority of its call center work force, to different positions as a result of the gap.

Mr. Conti was among the call center employees who CSG decided to transfer. On June 29, 2010, CSG informed Mr. Conti that he would be transferred off the MSL team and onto the “Outbound” team. It also informed him that his pay would be cut from the $20 hourly rate he had enjoyed since he began working at CSG to $14 per hour. The only reason that CSG ever gave Mr. Conti for his transfer was that his English-speaking skills were not adequate to remain on the MSL team. Mr. Conti immediately protested, asked to remain on the MSL team, and asked that his pay not be cut. CSG refused his requests. For the remainder of that week (which was the week preceding the Fourth of July holiday), he continued to work with the MSL team. CSG had asked him to accept or reject his Outbound team job by July 6. He had not yet told CSG anything when he came to work on July 7. He had intended to meet with CSG that day to give them his decision, but he received word that his wife was ill. He spoke to one of his supervisors to tell her that he needed to leave work to attend to his wife, and asked that CSG reschedule its meeting with him until the following day. His supervisor agreed, and Mr. Conti left.

That day, while Mr. Conti was with his wife, CSG sent him an email firing him. As was the case when CSG first announced his transfer to the Outbound team, the only reason CSG provided in the email- for that decision was that Mr. Conti’s English skills were not adequate to remain on the MSL team. The email stated, without any reference to CSG’s agreement to postpone its meeting about Mr. Conti’s decision as to the Outbound job, that Mr. Conti had declined the Outbound job.

Mr. Conti sued. He alleged that CSG discriminated against him on the basis of his race and national origin and age (virtually all of CSG’s other call center employees, including those on the MSL team, were much younger than him). He also contended that CSG had retaliated against him because during the June 29 meeting in which CSG informed him of his transfer and pay cut, he told CSG that it was discriminating against him and that he would complain to the Equal Opportunity Employment Commission (“EEOC”). He invoked Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Washington Law Against Discrimination (“WLAD”). Initially, he sued only CSG. By the time he filed his third amended complaint, he had also sued three individuals: Mr. Leon; Derek Anderson, who was Mr. Leon’s second-in-command; and Stacey Gardner, the woman who hired Mr. Conti and who directly supervised him for at least the first half of his employment at CSG.

The court has referred generically to CSG as the entity who took actions adverse to Mr. Conti, but a corporation acts only through its agents. In this' case, many CSG employees played a role in the adverse employment actions against Mr. Conti. Ms. Gardner, who was no longer Mr. Conti’s day-to-day supervisor by the time “the gap” arrived in June 2010, listed the MSL employees she hoped would remain on the team. She did not include Mr. Conti, although she was generally pleased with his performance. Her involvement in Mr. Conti’s fate ended there. Some combination of Mr. Leon, Mr. Anderson, Analyn Bonifacio (who took over Ms, Gardner’s role as day-to-day supervisor of the MSL team at the end of March 2010), and Briana Pelton (who also played a supervisory role beneath Ms. Gardner and Ms. Bonifacio) made the decision to transfer Mr. Conti to the Outbound team and to reduce his pay. Ms. Bonifacio and Mr. Leon (with help from a human resources employee named Ashlie Young) were involved in the, decision to terminate Mr. Conti. Mr. Leon, as the CEO, had the ultimate authority to make that decision, and the evidence showed that he participated directly in that decision.

Most of Mr. Conti’s claims survived contentious pretrial litigation, and the court held a trial consisting of about six days of testimony and evidence, a half day devoted to jury selection, and a half day devoted to jury instructions and closing arguments. Mr. Conti- voluntarily dismissed his claims against Mr. Anderson before trial began, and he dismissed his claims against Ms. Gardner at the close of evidence.

The jury reached a mixed verdict. It concluded that no one had discriminated against Mr. Conti on the basis of his age and that no one had retaliated against him. It also concluded, however, that both CSG and Mr. Leon had discriminated against him on the basis of his race or national origin. It found, however, that both Mr. Leon and CSG would have made the same decisions about Mr. Conti even if they had not discriminated against him on the basis of his race or national origin. The jury awarded Mr. Conti $20,000 in lost wages and benefits (the equivalent of about six months of pay at Mr. Conti’s $20 .hourly wage), plus $170,000 in emotional damages. It found that Mr. Leon had proximately caused none of Mr. Conti’s economic damages, and just $10,000 of his emotional damages. After requesting the parties’ input on the form of judgment, the court directed the entry of a judgment on December 17, 2013, making CSG liable for $190,000 and Mr. Leon jointly and severally liable for $10,000 of that amount.

Now before the court are five post-trial motions. Mr. Conti asked the court to award him more than $1.4 million in attorney fees in costs, then recently moved for leave to supplement the record supporting his fee request. Defendants ask the court to enter judgment as a matter of law in their favor, or in the alternative to order a new trial. Mr. Conti has asked the court to amend the judgment so that Mr. Leon is jointly and severally liable with CSG for all of Mr. Conti’s damages, not just $10,000 of those damages.

III. SUMMARY OF RULINGS

Defendants’ motions raise legal issues, issues arising from the alleged misconduct of Mr. Conti’s counsel at trial, issues arising from the court’s allegedly erroneous rulings excluding evidence, and challenges to the evidence supporting the verdict.

In Part IV.A of this order, the court will consider sufficiency of the evidence. It will conclude that there was ample evidence to support the jury’s verdict.

The court will then consider, in Part IV.B, whether either the court’s evidentia-ry rulings, Mr. Conti’s counsel’s behavior, or anything else serves to undermine the court’s confidence in the jury’s verdict and warrant a new trial. The court concludes that any erroneous evidentiary ruling or misconduct of counsel was harmless, and that Defendants’ additional arguments for a new trial are not persuasive.

The bulk of this order will address the legal issues that both parties raise. Defendants’ motion for judgment as a matter of law insists that the jury’s finding that both Defendants would have made the same decisions about Mr. Conti even if they had not discriminated against him means, at a minimum, that Defendants cannot be liable for damages. Everyone concedes that they are right as a matter of federal law. The question is whether the result is the same as to Mr. Conti’s WLAD claims. For the reasons stated in Part V of this order, the court will conclude that Defendants’ failure to request jury instructions as to the WLAD version of this so-called “same-decision defense” is fatal to their efforts to undo the jury’s damage verdict. In Part VI of this order, the court will conclude that the law does not support Mr. Conti’s request to make Mr. Leon jointly and severally liable for all of the damages the jury awarded against CSG.

Finally, in Part VII, the court will consider Mr. Conti’s attorney fees and cost motion. He is a prevailing party, at least in part, and he is entitled to fees-and costs. His request for more than $1.4 million in attorney fees, however, is excessive because of his limited success and because of his counsel’s excessive work to obtain that limited success. The court awards attorney fees of $433,000 and costs of $15,000.

IV. JUDGMENT AS A MATTER OF LAW OR NEW TRIAL

Defendants invoke Rule 50(b) of the Federal Rules of Civil Procedure, renewing the motion for judgment as a matter of law that they made at the close of the presentation of evidence. In the alternative, they invoke Rule 59(a) to request a new trial.

A. The Court Will Not Enter Judgment as a Matter of Law Based on Insufficient Evidence.

When considering a Rule 50(b) motion, the court must uphold the jury’s verdict as long as there was any legally sufficient basis to support it. Experience Hendrix, L.L.C. v. Hendrixlicensing.com Ltd., 742 F.3d 377, 390 (9th Cir.2014). The court must consider all of the evidence in the record, must draw all reasonable inferences in favor of the nonmoving party, and may not make any credibility determinations or reweigh the evidence. Id. The court must uphold a jury’s verdict if “substantial evidence” supports it. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir.2001). Substantial evidence is evidence adequate to support a jury’s conclusion, even if the jury could also have drawn different conclusions from the same evidence. Id. The court cannot substitute its view (or the moving party’s view) of the evidence for the view of the jury. Id.

The court will not dwell long on Defendants’ attack on the sufficiency of the evidence. The court is satisfied that the jury had ample evidence on which to base its verdict. The court briefly addresses Defendants’ principal contentions.

First, there was sufficient evidence that Mr. Leon was aware of Mr. Conti’s national origin or race when he made his decisions. Defendants harp on Mr. Conti’s admission that he never had a conversation with Mr. Leon, but they ignore the evidence that before the end of June 2010, Mr. Conti exchanged pleasantries with Mr. Leon in the office on several occasions, and that they interacted at a CSG cooking competition. The jury could have concluded that Mr. Leon could observe that Mr. Conti had Hispanic ancestry, and heard Mr. Conti’s accent in even the brief interactions they had before June 2010. Moreover, there is no question that Mr. Leon was aware at the end of June 2010 that at least one of CSG’s purported reasons for terminating Mr. Conti was his alleged weakness in communicating in English. Among other things, Mr. Leon co-authored Mr. Conti’s termination letter, which repeated the assertion that Mr. Conti’s English skills were inadequate to permit him to remain with the MSL team. The jury had a wealth of evidence from which it could conclude that Mr. Conti’s accent did not interfere with his ability to speak English, and that Mr. Leon’s insistence to the contrary was evidence of race or national origin discrimination.

Second, although there was evidence that CSG had a practice of paying call center employees a premium when' they were working on projects in which they spoke languages other than English, while reducing their pay on English-speaking projects, there was also evidence from which the jury could conclude that CSG’s decision to reduce Mr. Conti’s pay was discriminatory. Putting that aside, CSG’s reduction in Mr. Conti’s pay was just one of the adverse actions it took against Mr. Conti. It also fired him. Moreover, there was evidence that when the native Portuguese speaker quit on June 30, CSG refused to give Mr. Conti her spot on the MSL team. There was sufficient evidence for the jury to conclude that any or all of these actions were motivated, at least in part, by discrimination.

Defendants are mistaken in their belief that it makes any difference that CSG treated others who spoke accented English or who had Latin-American ancestry more favorably than Mr. Conti. There was evidence that both Mr. Conti’s daughter (who was born in the United States to Colombian parents, but spoke unaccented English) and the native Portuguese speaker were left on the MSL team despite the reshuffling at the end of June 2010. But, as this court has previously explained, no employer can escape a finding of discrimination simply by pointing to employees it did not discriminate against. See Creekmore v. U.S. Bank, N.A., No. C09-561RAJ, 2010 WL 3211925, at *3-5, 2010 U.S. Dist. LEXIS 81696, at *10-13 (W.D.Wash. Aug. 12, 2010). The evidence permitted the jury to find that Defendants discriminated against Mr. Conti even if they did not discriminate against Mr. Con-ti’s daughter or the native Portuguese speaker.

Finally, the jury had ample evidence to decide that Defendants discriminated despite what they call “legitimate business reasons” for their decisions with respect to Mr. Conti. Perhaps the most powerful evidence for not solely crediting Defendants’ legitimate explanations is that they came much too late. When Defendants transferred Mr. Conti, reduced his pay, and then terminated him, the only reason they offered to Mr. Conti was his supposed weakness in communicating in English. Putting that aside, the jury weighed Defendants’ legitimate motives and credited them. As the court discusses at length in Part V, the jury ruled that those legitimate motives would have led Defendants to take the same actions against Mr. Conti even if they had not discriminated. That conclusion, however, does not undermine the jury’s conclusion that Defendants also discriminated against Mr. Conti.

Putting aside Defendants’ plea of insufficient evidence, their motion for judgment as a matter of law is premised on their claim that the jury’s finding that they would have made the same decisions about Mr. Conti even if they had not discriminated means that the court must set aside the jury’s damages award. The court will consider that contention at length in Part V.

B. The Court Will Not Order a New Trial.

A court can grant a motion for a new trial for a variety of reasons, all of which are intended to ensure that the trial court can “prevent a miscarriage of justice.” Experience Hendrix, 742 F.3d at 390. The court can weigh the evidence and grant a new trial if the jury’s verdict was a against the clear weight of the evidence. It can grant a new trial as a result of an erroneous evidentiary ruling, but only if that ruling “substantially prejudiced” a party. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.1995); Fed.R.Civ.P. 61 (“Unless justice requires otherwise, no error in admitting or excluding evidence — or any other error by the court or a party — is ground for granting a new trial....”). It can -grant a new trial where an attorney’s misconduct sufficiently permeates the trial such that the court is convinced that the'jury reached its verdict under the influence of passion or prejudice. Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 346 (9th Cir.1995). Regardless of the grounds asserted for a new trial, the court has substantial discretion in denying a new trial, and it should grant one only where it is convinced that a miscarriage of justice has occurred. Experience Hendrix, 742 F.3d at 390 (“We afford considerable deference to the district court’s new trial decision....”); Hemmings, 285 F.3d at 1192 (noting that trial court is in best position to gauge the prejudicial impact of attorney misconduct); Fed.R.Civ.P. 61 (“[T]he court must disregard all errors and defects that do not affect any party’s substantial rights.”).

With these standards in mind, the court begins by stating that it is convinced that the jury’s verdict in this case was- no miscarriage of justice. The jury weighed the evidence and came to a verdict that the evidence comfortably supports. The jury rejected some of Mr. Conti’s claims and ruled in his favor on others. A different jury might have decided otherwise, but the court emphasizes “might.” The evidence neither compelled a result in Mr. Conti’s favor nor in any Defendant’s favor. Moreover, the court’s judgment in this regard would be the same even if every evidentia-ry “error” to which Defendants point had not occurred and even if none of the “misconduct” of Mr. Conti’s lead counsel had occurred. Defendants’ contentions regarding unfair timekeeping during trial, improper jury instructions, and excessive damages fall well short of convincing the court that there is a basis for a new trial.

1. The Jury’s Verdict Was Not Against the Weight of the Evidence.

The court will not grant a new trial because of allegedly insufficient evidence to support the jury’s verdict. Were the court to weigh all of the evidence on its own and make its own evidentiary determination, it would have arrived at the same verdict that the jury reached. Ultimately, Defendants’ decision to identify Mr. Con-ti’s English-speaking ability as a basis for taking action against him is more than enough evidence of a discriminatory mo-, tive. Defendants had, legitimate motives for making employment decisions to bridge “the gap,” but the jury could reasonably have concluded that defendants who were not discriminating would have focused on those motives when communicating their decisions Mr. Conti, rather than pinning his transfer and pay cut on his allegedly inadequate English-speaking skills. In addition, the evidence supported a conclusion that Defendants’ decision to fire Mr. Conti on July 7 rather than to give him the benefit of their offer to allow him an extra day to decide whether to accept his new job was not the product of any legitimate motive. The court will not second-guess the jury’s apparent decision that discrimination motivated that decision as well.

2. Defendants Have Not Pointed to A Prejudicial Evidentiary Ruling.

The court finds no merit in Defendants’ insistence that any alleged erroneous evidentiary rulings, whether considered individually or cumulatively, warrant a new trial. The court now briefly discusses some of those alleged errors.

Defendants point out that the court ruled, on hearsay grounds, that their witnesses could not testify that Microsoft employee John Schoenstein complained about Mr. Conti’s performance. The record as to what Mr. Schoenstein might have said if he had testified is muddy at best, and it is 'not clear which party would have benefited most had it heard more evidence about his views. What is not muddy is that both parties failed to call him as a witness, even though he was available. Moreover, because Mr. Conti’s lead counsel insisted in cross-examination on asking questions that opened the door to testimony about what Mr. Schoenstein said to CSG employees about Mr. Conti, the jury heard testimony about Mr. Schoenstein’s comments that favored Defendants. For example, the court did not strike testimony from Mr. Leon that he “knew that Microsoft said that they didn’t want [Mr. Conti] on the team.” The court denied Mr. Conti’s belated effort to use Mr. Schoenstein’s deposition testimony in rebuttal to remedy lead counsel’s mistake. In other words, the jury heard evidence that Mr. Schoenstein had concerns about Mr. Conti’s performance, and reached their verdict against Defendants nonetheless. Again, the jury concluded that Defendants had both legitimate and discriminatory motives for taking action against Mr. Conti. Having considered all the evidence, the court does not believe it likely that the jury would have reached no verdict more favorable to Defendants had Mr. Schoenstein testified.

Defendants’ insistence that Mr. Conti gained an advantage because the court prevented them from elaborating on Mr. Conti’s daughter’s birthplace and childhood is meritless. The jury knew that she was born to parents of Colombian heritage, that she spoke fluent English and Spanish, and that unlike her father, she did not speak accented English. Nothing else was relevant.

Defendants’ contention that they were prejudiced because both Mr. Conti and his daughter cried during portions of her testimony is specious. Moreover, although the court does not dispute that Mr. Conti and his daughter cried at least briefly, the court notes that Defendants’ counsel neither objected at the time nor requested at a sidebar that the record reflect the extent of any crying. Defendants have not preserved any objection on this issue.

Defendants do not convince the court that they suffered prejudice from the court’s exclusion of evidence about Mr. Conti’s employment or business setbacks that preceded and postdated his employment at CSG. The evidence, including the testimony of all of Mr. Conti’s supervisors, was that Mr. Conti was an excellent employee at CSG. Evidence that he had less success elsewhere was either irrelevant or marginally relevant to proof of Defendants’ liability. Moreover, the court finds it unlikely that the jury based its decision regarding emotional damages on anything other than the direct consequences of CSG’s actions. The court finds no reasonable likelihood that the jury would have made a different decision in any respect had they heard more information about Mr. Conti’s other business and job ventures.

3. The Court Finds That the Conduct of Mr. Conti’s Counsel Did Not Prejudicially Influence the Jury’s Verdict.

As to Mr. Conti’s counsel’s misconduct, the court will not address it in detail. The court will discuss counsel’s approach to this litigation again when it considers counsel’s request for attorney fees. For now, the court will say only that it. places a great deal of trust in the jury’s ability to focus on the evidence, as opposed to the conduct of the attorneys, when reaching its verdict. In this case, there was much in the conduct of both Mr. Conti’s lead counsel and Defendants’ lead counsel which distracted from, rather than enhanced, the jury’s consideration of the evidence. The court declines to detail that conduct, however, because it is firmly convinced that the jury reached its verdict because of the evidence, not because of any passion or prejudice ignited by any attorney’s behavior. Where Defendants’ counsel timely objected to improper conduct, the court generally instructed the jury to ignore it.

Defendants ignore the strongest evidence that the jury was able to disregard any improper conduct: the jury’s verdict. Had the jury uncritically accepted Mr. Conti’s lead counsel’s mischaracterization of evidence or improper argument, they would not likely have arrived at their nuanced verdict. The jury concluded (as the court will discuss at length in Part V) that although Defendants discriminated against Mr. Conti, they would have taken the same actions regardless. The court is convinced that no jury under the sway of Mr. Conti’s lead counsel’s improper conduct would have reached that verdict.

4. Defendants Suffered No Prejudice Because Mr. Conti Was Granted Additional Trial Time.

The court granted Defendants and Mr. Conti an equal allotment of trial time. Mr. Conti exhausted his allotment near the end of trial, largely because he wasted substantial time prior to that. Rather than preclude counsel from conducting additional cross-examination, the court granted him (according to Defendants) an additional 125 minutes of trial time.

The court has broad discretion to manage trial time. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002); Monotype Corp. v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir.1994). If Defendants had exhausted their allotment of time, the court likely would have granted them additional time as well. See Navellier v. Sletten, 262 F.3d 923, 942 (9th Cir.2001) (noting court’s authority to adjust time allotments during trial). But Defendants had ample time remaining when they rested their case, and thus suffered no prejudice as a result of their allotment of time. See Monotype, 43 F.3d at 451 (“A crowded docket does not justify an infringement on the right to reasonably develop a case; however, the objecting party must show there was harm incurred as a result.”). The court does not believe that the jury’s verdict would have been different even if it had precluded Mr. Con-ti’s counsel from finishing cross examination. But even if that were not the case, Defendants cannot claim prejudice because Mr. Conti used more trial time than they did.

5. The Court Finds No Error In Its Failure to Give Any Jury Instruction That Defendants Offered.

Defendants’ cursory argument that the jury was not adequately instructed as to an employer’s discretion in making personnel decisions is unconvincing. The court briefly discusses Defendants’ proposed instruction on that issue in Part V. The court finds no error in failing to give that instruction, and no indication that giving the instruction would have made any difference in the verdict. The court finds Defendants’ remaining contentions regarding jury instructions to be unpersuasive.

6. The Jury’s Damages Award Was Not Excessive.

The jury’s award, of $170,000 in emotional distress damages was within the range that the evidence supported. The court finds no basis for setting aside that award, ordering it reduced, or ordering a new trial because of it.

V. THE SAME-DECISION DEFENSE

The parties dispute the impact of the jury’s conclusions that although both Defendants discriminated against Mr. Conti, Defendants would have made the same decisions about him even if they had not discriminated. The jury explicitly concluded that Defendants had proven what the court will call the “same-decision defense” to Title VII liability. The jury’s conclusions on the Title VII same-decision defense came in response to two sets of three verdict form questions that were identical except that one set concerned Mr. Leon and one set concerned CSG. The set directed to CSG was as follows:

QUESTION 1

Did CSG discriminate against Mr. Conti on the basis of race or national origin in violation of Washington law?

QUESTION 2

Did CSG discriminate against Mr. Conti on the basis of race or national origin in violation of federal law?

QUESTION 3

Would CSG have taken the adverse employment action or actions you found to be discriminatory in answering Question 2 even if Mr. Conti’s race and national origin had played no role in CSG’s decision to take the action or actions?

The jury responded “YES” to all three questions, just as they did in response to the three questions concerning Mr. Leon.

As the questions on the verdict form suggest, the court separately instructed the jury as to discrimination in violation of the WLAD and in violation of Title VII. The court’s instruction as to Title VII liability adhered closely to Ninth Circuit Model Civil Jury Instruction 10.1 C. It concluded with this paragraph addressing the same-decision defense:

If you find that Mr. Conti has proved [the elements of discrimination under federal law], you must also decide whether any Defendant has proven that the Defendant would have taken the same adverse employment action or actions even if Mr. Conti’s race and national origin had played no role in [the] decision to take the action or actions.

Jury Instruct. No. 17 (Dkt. # 179). The court’s instruction as to WLAD liability contained no similar paragraph. Jury Instruct. No. 16 (Dkt. # 179). Like the jury instructions, the verdict form asked the jury about the same-decision defense as to Mr. Conti’s Title VII claim, but not his WLAD claim.

The court entered judgment on the jury’s verdict. Before it did, Defendants filed an objection that argued, “for the first time, that the ‘same decision’ defense that applies in Title VII claims also applies to claims under the [WLAD].” Dec. 17, 2013 ord. (Dkt. # 191) at 1. The court declined to address that argument before entering judgment, without prejudice to Defendants raising it in a motion for judgment as a matter of law. Id. at 2.

The court now considers whether the WLAD permits a same-decision defense and the effect of Defendants’ failure to request jury instructions on that defense.

A. The WLAD’s Same-Decision Defense Requires the Employer to Meet a Higher Standard of Proof Than the Title VII Same-Decision Defense.

1. Title VIPs Same-Decision Defense

The same-decision defense in Title VII is statutory. Subsection 2000e-2(m) of the statute declares that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Title VII thus explicitly states that a defendant can be liable in a so-called “mixed-motive” case, where a defendant has both discriminatory and legitimate motives for taking an adverse action against an employee. Subsection 2000e-5(g)(2)(B) codifies the same-decision defense in mixed-motive cases:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-

(i) may grant declaratory relief, in-junctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subpara-graph (A).

Title VII’s same-decision defense is thus a partial affirmative defense. It permits a defendant who proves that it would have taken an adverse action even without an unlawful motive to avoid damages (including backpay), but not to avoid declaratory relief, injunctive relief, or attorney fees.

Title VII did not codify a same-decision defense until Congress amended it in 1991. The 1991 amendments responded to the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 244, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), where a majority of the Court agreed that in a case where “both legitimate and illegitimate reasons motivated” an employment decision, an employer could avoid liability entirely “by proving that it would have made the same decision even if it had not allowed [discrimination] to play such a role.” Id. at 244, 109 S.Ct. 1775. The justices in Price Waterhouse divided over what a plaintiff needed to prove to obligate the employer to prove the same-decision defense, disagreeing over whether the plaintiff needed to show that discrimination was a “motivating factor” or a “substantial factor” in the employment decision. Desert Palace, Inc. v. Costa, 539 U.S. 90, 93-94, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (reviewing plurality and concurring opinions from Price Waterhouse). In the 1991 amendments to Title VII, Congress both established that a plaintiff could prove an unlawful practice by showing that discrimination was a “motivating factor” (§ 2000e 2(m)) and that a when a plaintiff succeeds in doing so, the employer’s proof that it “would have taken the same action in the absence of the impermissible motivating factor” (§ 2000e-5(g)(2)(B)) provides a “limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff.” Desert Palace, 539 U.S. at 94, 123 S.Ct. 2148. In Desert Palace, the Court considered an aspect of the Ninth Circuit’s decision in Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir.2002). Desert Palace, 539 U.S. at 101, 123 S.Ct. 2148 (affirming Ninth Circuit’s determination that a plaintiff need not offer direct evidence to prove a violation of § 2000e-2(m)’s “motivating factor” standard).

In Costa, the Ninth Circuit held that an employer must prove the same-decision defense by a preponderance of the evidence, reaching the same result as to the amended version of Title VII that the Price Waterhouse Court had reached before the 1991 amendments. Costa, 299 F.3d at 857; Price Waterhouse, 490 U.S. at 253, 109 S.Ct. 1775 (Brennan, J., on behalf of four-justice plurality), at 260, 109 S.Ct. 1775 (White, J., concurring), at 261, 109 S.Ct. 1775 (O’Connor, J., concurring).

In Defendants’ post-trial view, the WLAD permits a same-decision defense at least as wide-ranging as the one described in Costa — a defense that, when proven by the employer by a preponderance of the evidence, is not a bar to liability, but eliminates any remedies other than “attorney’s fees, declaratory relief, and an order prohibiting future discriminatory actions.” 299 F.3d at 857. Defendants also suggest that the WLAD’s same-decision defense may operate, like the one announced in Price Waterhouse, as a “complete defense to liability.” Defs.’ Mot. (Dkt. # 219) at 4. Mr. Conti argues that there is no same-decision defense to WLAD liability.

2. The WLAD’s Same-Decision Defense

So far as the court is aware, only one decision from Washington’s state courts squarely addresses a same-decision defense to WLAD liability. In Davis v. Dep’t of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279, 1280 (1980), the court considered a bench trial in which the judge found that the employer discriminated against a woman on the basis of her gender in refusing to promote her, but “denied her backpay on the ground that even absent the discrimination she would not have been promoted.” The trial court awarded plaintiff her costs and attorney fees. Id. at 1281. The Davis court acknowledged that federal courts interpreting Title VII had refined a rule that backpay should not be available if the employer proved that it would not have selected the employee for promotion even if it had not discriminated. Id. at 1282-83. The Davis court considered whether the trial court had properly required the employer to prove by “ ‘clear and convincing evidence’ that [the employee] would not have been promoted even absent discrimination.” Id. at 1283. The court affirmed the trial court, “adopting] the clear and convincing standard as the burden of proof to be carried if an employer is to avoid a backpay award.” Id. at 1284. The court noted (eight years before Price Waterhouse) that federal courts had split as to whether clear and convincing evidence, as opposed to a mere preponderance of evidence, was the appropriate quantum of proof. Id. at 1283.

The Davis court’s version of the same-decision defense, which no Washington court has overruled or questioned, remains the law in Washington: to avoid an award of damages (but not attorney fees or costs) an employer who has discriminated in violation of the WLAD must prove by clear and convincing evidence that it would have made the same decision even if it had not discriminated. In some respects, the Davis defense resembles the Title VII defense. It is an affirmative defense on which the employer bears the burden of proof, but it is not a complete defense — it merely limits the plaintiffs remedies. The primary difference between the Davis defense and the Title VII defense is that a defendant facing WLAD liability must prove the same-decision defense by clear and convincing evidence.

Courts (and Congress) have refined Title VII and the WLAD substantially since the Washington Supreme Court decided Davis in 1981. Nonetheless, no court has ever criticized, much less overruled, Davis’s description of the WLAD’s same-decision defense, including its “clear and convincing evidence” requirement. Saleemi v. Doctor’s Assocs., 176 Wash.2d 368, 292 P.3d 108, 113 (2013) (“[U]ntil our precedents are specifically overruled they remain good law.”); State v. Gore, 101 Wash.2d 481, 681 P.2d 227, 231 (1984) (“[O]nce this court has decided an issue of state law, that interpretation is binding on all lower courts until it is overruled by this court.”); State v. Studd, 137 Wash.2d 533, 973 P.2d 1049, 1056 (1999) (“We will not overrule such binding precedent sub silen-tio.”). Defendants do not argue to the contrary. Indeed, they repeatedly cite Davis, without admitting that no court has overruled its clear and convincing evidence requirement. Nonetheless, they insist that federal and Washington authority since Davis holds that a defendant need only prove the same-decision defense by a preponderance of the evidence.

3. No Washington Authority Permits the Court to Overlook Davis.

Several decisions from Washington’s state courts contain statements that, stripped of context, are arguably inconsistent with Davis. For example, the Washington Supreme Court has, in a ease that does not cite Davis, stated that once a plaintiff proves that “discriminatory animus was a substantial factor in the [employment] decision at issue,” the employer must prove “that it would have taken the same action regardless of discriminatory animus.” Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 172 P.3d 688, 698-99 (2007). The Hegwine court did not mention the quantum of proof, which Defendants treat as the equivalent of a statement that a preponderance of evidence standard applies. Defendants do not explain how the court can treat Hegwine as silently overruling Davis. In any event, an examination of Hegwine and cases like it demonstrates that they do not undermine Davis.

The Hegwine court reviewed a bench trial resulting in a judgment in favor of an employer accused of discriminating against a woman because she was pregnant. 172 P.3d at 692. The court upset that judgment almost entirely, concluding instead that the plaintiff was entitled to judgment as a matter of law. Id. at 697 (finding sex discrimination as a matter of law); id. at 699 (affirming appellate court’s conclusion that employer violated WLAD’s prohibition on inquiry into job applicant’s pregnancy status as a matter of law). Because it was considering judgment as a matter of law, it considered Washington’s standards for judgment as a matter of law in employment cases. It noted that the plaintiff had not attempted to prove discrimination by circumstantial evidence, and thus the burden-shifting regime of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable. Hegwine, 172 P.3d at 698. Because the plaintiff attempted to prove discrimination with direct evidence, the court explained that it was her burden to prove that “discriminatory animus was a substantial factor in the decision at issue,” and that the employer then had to prove “that it would have taken the same action regardless of discriminatory animus.” Id. at 698-99. The Hegwine court took the latter quote wholesale from Griffith v. Schnitzer Steel Indus., Inc., 128 Wash.App. 438, 115 P.3d 1065, 1069 n. 4 (2005).

The Griffith court’s enunciation of the direct evidence standard was dicta contained in the following footnote:

In circumstances other than those presented here, an employee presenting direct evidence of discrimination may proceed under the analysis set forth in Price Waterhouse v. Hopkins ... and Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 898 P.2d 284 (1995). This analysis requires only that an employee produce direct evidence that discriminatory animus was a substantial factor in the decision at issue, after which the burden of persuasion shifts to the employer, who must prove that it would have taken the same action regardless of discriminatory animus. Hopkins, 490 U.S. at 250-53, 109 S.Ct. 1775; Mackay, 127 Wash.2d at 309-10, 898 P.2d 284.

115 P.3d at 1069 n. 4 (emphasis added). By its very terms, the footnote is dicta, for it applies in “circumstances other than those presented” in the case before the Griffith court. Even if it were not, the Griffith footnote is silent as to the impact of the defendant’s proof that it would have taken the same action. Griffith does not suggest, as Defendants contend, that an employer’s proof that it would have taken the same action if it had not discriminated means that it can avoid liability or damages. The footnote’s citation to Mackay is perplexing, because the cited pages of Mackay do not mention an employer’s proof that it would have taken the same action absent discrimination. Griffith accurately summarizes the Price Waterhouse version of the same-decision defense, but does not suggest that the Price Water-house defense had supplanted the Davis defense in Washington.

Binding authority demonstrates that the dicta in Griffith does not undermine the Davis same-decision defense. Rather than citing dicta in Griffith, the Hegwine court could have turned to Washington Supreme Court precedent as to the burdens applicable in deciding whether to grant judgment as a matter of law in a direct evidence case. For example, in Kastanis v. Educ. Employees Credit Union, 122 Wash.2d 483, 859 P.2d 26 (1993), the court described the difference between cases involving direct and circumstantial evidence of discrimination. Like the Griffith court, the Kastanis court explained that a plaintiff could offer direct evidence of a discriminatory motive and that the discriminatory motive was a substantial factor in the adverse employment decision. Kastanis, 859 P.2d at 30. Like the Griffith court, the Kastanis court explained that once the plaintiff provided that evidence, “the defendant must show, by a preponderance of the evidence, that the same decision would have been reached absent the discriminatory factor.” Id. The critical difference between Kastanis and the dicta in Griffith is that the Kastanis court explained the impact of the defendant providing evidence that it would have made the same decision: “In the face of such evidence, the case goes to the jury.” Id. at 31. Neither Griffith nor, Kastanis was addressing a same-decision defense applicable at trial, both were addressing what evidence would suffice to demonstrate triable issues preventing judgment as a matter of law. The federal case that the Kastanis court cited confirms as much. Buckley v. Hosp. Corp., 758 F.2d 1525, 1530 (11th Cir.1985) (“[Djefendant’s evidence merely creates a jury question as to whether defendants have proved by a preponderance of the evidence that the decision would have been reached even in the absence of age discrimination.”) (cited in Kastanis, 859 P.2d at 30-31).

Courts discussing circumstantial cases of discrimination have also made statements that, stripped of context, suggest a version of the same-decision defense that differs from the one announced in Davis. For example, the court in Becker v. Wash. State Univ., 165 Wash.App. 235, 266 P.3d 893, 902 (2011) stated that an employer moving for summary judgment on a WLAD claim could rebut a prima facie circumstantial case of discrimination by “showing] a legitimate, nondiscriminatory reason for its conduct.” 266 P.3d at 902. If the employer succeeds, a plaintiff can avoid summary judgment by showing that the proffered reason was mere pretext. Id. The court also stated, however, that the court could grant summary judgment “when the record conclusively revealed some other nondiscriminatory reason for the employer’s decision....” Id. at 903 (internal quotation omitted). To the extent that Becker holds that a mere nondiscriminatory reason, rather than a nondiscriminatory reason that would have led the employer to take an adverse action in the absence of discrimination, is a sufficient basis to avoid liability under the WLAD, it is not consistent with Davis, and this court cannot follow it. Keller v. Elec. Arts Inc., 724 F.3d 1268, 1278 (9th Cir.2013) (“[W]e are bound 'only by the decisions of a state’s highest court and not by decisions of the state’s intermediate appellate court when considering state-law issues sitting in diversity jurisdiction.”). But the court doubts that Becker is inconsistent with Davis. When the record “conclusively reveals]” that the employer had a nondiscriminatory reason for its decision, it no doubt establishes by clear and convincing evidence that the employer would have made the same decision absent a discriminatory motive. The Becker court had no occasion to consider the effect of the same-decision defense on the plaintiffs remedies, because it ruled that the plaintiffs age discrimination claim was impermissible as a matter of law because the plaintiff was a student, rather than an employee. Id. at 903.

4. No Federal Authority Permits the Court to Overlook Davis.

Only one federal district court decision of which this court is aware addresses both Davis and the WLAD’s same-decision defense. In that decision, the court recognized the different standards of proof applicable to each defense. Chen v. City of Medina, No. C11-2179TSZ, 2013 WL 4511411, at *5, 2013 U.S. Dist. LEXIS 120437, at *20 (W.D.Wash. Aug. 23, 2013) (“[D]efendants were required to demonstrate, by clear and convincing evidence as to the state law claim and a preponderance of the evidence as to the federal law claims, that their employment decisions would have been the same if premised solely on one or more legitimate, non-discriminatory reasons.”). Defendants cite Chen, but do not acknowledge that it applied the Davis defense as to the WLAD claims and the Title VII defense as to the federal law claims.

Several district court decisions contain statements suggesting a WLAD same-decision defense that is not consistent with Davis. E.g., Campbell v. Catholic Cmty. Servs., No. 10-1579RSL, 2012 WL 600725, at *2, 2012 U.S. Dist. LEXIS 22616, at *6 (W.D.Wash. Feb. 22, 2012) (“[A]n employer'may overcome ... a WLAD claim by demonstrating that it would have taken the same action without regard- to the employee’s protected status.”) (internal quotation omitted); Zahn v. Hawey, No. CV-03-856EFS, 2008 WL 5429657, *4, 2008 U.S. Dist. LEXIS 105472, *8-10 (E.D.Wash. Dec. 31, 2008) (stating that the “Title VII retaliation analytical framework is also used for ... the WLAD,” concluding that defendant had proven that adverse action would have occurred “notwithstanding [plaintiffs] workplace grievances”);. Liggett v. Wash. State Univ., No. C13-5176RJB, 2014 WL 793150, at *9, 2014 U.S. Dist. LEXIS 25418, at *26 (W.D.Wash. Feb. 26, 2014) (“When a plaintiff relies on direct evidence of discrimination to prove a WLAD claim, he or she need only prove that discriminatory animus was a substantial factor in the decision at issue, after which the burden of persuasion shifts to the employer, who must prove that it would have taken the same action regardless of discriminatory animus.”). None of these decisions address Davis. None of these decisions suggest that the parties disputed whether the WLAD’s same-decision defense differed from the Title VII defense. Moreover, two- of the decisions rely on the Washington authority that the court has just distinguished. In Campbell, the court relied on the language from Becker. 2012 WL 600725 at *2, 2012 U.S. Dist. LEXIS 22616 at *6-7. The Liggett court cited the footnote in Griffith. 2014 WL 793150, at *9, 2014 U.S. Dist. LEXIS 25418 at *26.

In Zahn, the court ruled in the employer’s favor on plaintiffs Title VII claim after concluding both that the plaintiff failed to prove “that his workplace grievances played a part in the decision” to take the adverse action at issue, and that the “evidence established that the [employer] would have [taken the same action] notwithstanding his workplace grievances.” 2008 WL 5429657, at *3, 2008 U.S. Dist. LEXIS 105472, at *8-9. Without suggesting any dispute over the differences between the WLAD and Title VII with respect to the same-decision defense, the court stated that “the Title VII retaliation analytical framework is also used for ... the WLAD.” Id. at *4, 2008 U.S. Dist. LEXIS 105472, at *10. It cited Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir.2003). Stegall did not consider Davis or whether the WLAD and Title VII same-decision defenses are identical. Id. at 1067-68 (citing Costa and other authority addressing the same-decision defense under federal law).

The court doubts that its colleagues in Liggett, Campbell, and Zahn intended to suggest a WLAD same-decision defense less demanding of employers than the one from Davis. There is no indication, for example, that any of those cases turned on the employer’s invocation of that defense. Nonetheless, to the extent that these cases (or any other federal authority) suggest a same-decision defense inconsistent with the Davis defense, the court declines to follow them.

B. Although the Court Doubts Mr. Conti’s Contention that the WLAD Permits No Same-Decision Defense, It Need Not Decide the Issue.

Mr. Conti is unwilling to accept even the Davis version of the same-decision defense; he contends that there is no same-decision defense to a WLAD claim. His argument depends on the decisions in Allison v. Housing Authority, 118 Wash.2d 79, 821 P.2d 34 (1991), and Mackay. Allison held that a plaintiff invoking the anti-retaliation provision of the WLAD (RCW 49.60.210) “must prove causation by showing that retaliation was a substantial factor motivating the adverse employment action.” Mackay extended the Allison holding to cases invoking the status-based discrimination provision of the WLAD (RCW 49.60.180). Mackay, 898 P.2d at 288 (“[W]e hold that in order to prevail ... a plaintiff must prove that an attribute listed in RCW 49.60.180(2) was a ‘substantial factor’ in an employer’s adverse employment decision.”).

Neither the Allison nor the Mackay court made an explicit ruling as to the same-decision defense. Both courts were aware of the defense. The Allison court distinguished Davis by noting that Davis reviewed an unchallenged finding of discrimination, after which it was the employer’s burden to establish the same-decision defense. 821 P.2d at 41 (discussing Davis, noting that “[i]n the instant case there is no comparable evidence that would make discrimination or retaliation an established fact and justify shifting the burden to the employer”). The Allison court also discussed Price Waterhouse and its “same decision” defense, but did not adopt it. 821 P.2d at 40 (“Because federal case law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this State’s antidiscrimination law.”). The majority opinion in Mackay is less expansive than in Allison, perhaps in part because Allison had already built the framework for Mackay’s holding. The Mackay majority discussed neither Price Waterhouse nor the same-decision defense.

The Mackay dissent, however, viewed the majority opinion as embracing the notion that “damages could be awarded for loss of employment even if the loss of employment would have occurred regardless of the unlawful determination.” 898 P.2d at 284, 290 (Madsen, J., dissenting). After reviewing the Title VII same-decision defense in the wake of Price Waterhouse and the 1991 amendments, the dissent crystallized the “striking contrast” between the majority’s view of the WLAD and Title VII:

Neither the majority’s opinion nor our State statute has any similar limiting effect under the majority’s “substantial factor” standard. Thus, the majority’s adoption of a “substantial factor” test results in a vastly different result than such a test under federal law, and can lead to the curious result that damages may be awarded for loss of employment which would have occurred regardless of the employer’s illegal discrimination.

Id. at 291. In the view of the dissenting justice in Mackay, Washington law in the wake of the Mackay majority opinion did not permit a same-decision defense.

Neither Mackay nor Allison explicitly overrules Davis, and the court is reluctant to conclude that they did so implicitly, even in light of the Mackay dissent and the Allison court’s discussion of the federal same-decision defense without adopting it. A dissenting opinion’s characterization of the majority opinion is not binding. Moreover, both Allison and Mackay were concerned with ensuring that a plaintiff was not saddled with the difficult task of proving that an employer’s legitimate motivations for an adverse employment decision would have sufficed in the absence of a discriminatory motive. Allison, 821 P.2d at 38 (declining to impose “unrealistic burden on an employee to show precisely which factors — legitimate or illegitimate ones — actually motivated an employer”). The Mackay court discussed the Allison court’s concern that if “the ‘determining factor’ standard were adopted in a retaliation case, the employee would have to prove that his or her employer would not have engaged in the allegedly retaliatory action but for the employee’s assertion of his or her statutory rights,” then observed that “[s]uch a high burden of proof is very difficult for an employee to meet.” 898 P.2d at 287. It then adopted the Allison court’s observation that the “reasoning for ameliorating the harshness of a ‘but for’ standard of causation applies equally to situations involving discriminatory or retaliatory discharge, because legitimate and illegitimate motives often lurk behind those decisions.” Mackay, 898 P.2d at 288 (quoting Allison, 821 P.2d at 42). Neither Mackay nor Allison rules out a partial affirmative defense requiring an employer to prove that it would have made the same decision absent unlawful motives.

Were the court forced to decide the issue, it would rule that neither Mackay nor Allison reject the same-decision defense from Davis. The court can leave that question to a Washington court, however, because it will not impact any party in this case. The court rules that if there is a WLAD same-decision defense, it is the one that the Davis court announced. As the court will now discuss, Defendants waived the Davis defense by failing to request a jury instruction on it.

C. Defendants Waived Application of the WLAD Same-Decision Defense.

Defendants ask the court to relieve them of the jury’s damage award by concluding that the jury’s.factual finding that they would have made the same decisions about Mr. Conti even if they had not discriminated against him is a bar to damages via the WLAD. The court cannot do so, because the court asked the jury only to decide whether Defendants had proven the same-decision defense by a preponderance of the evidence, in accordance with federal law. There is no way to know what the jury would have decided if it had been asked to decide if Defendants had proven the defense by clear and convincing evidence, as Davis requires.

1. Defendants Did Not Request a Jury Instruction on a WLAD Same — Decision Defense.

Defendants’ failure to request a jury instruction on a WLAD same-decision defense is fatal to their attempt to invoke it now. Rule 51 of the Federal Rules of Civil Procedure requires a party both timely to request jury instructions and timely to object to any instruction it believes is-improper. Fed.R.Civ.P. 51(a), (c). Failure to object waives review of any error except a plain error affecting substantial rights. Fed.R.Civ.P. 51(d); Hunter v. County of Sacramento, 652 F.3d 1225, 1230 & n. 5 (9th Cir.2011). There is no question that Defendants did not request instructions on the Davis defense or object to the court’s failure to do so. Defendants neither cited Davis before their posttrial motions nor requested that the jury be instructed as to the defense that Davis describes. See Hunter, 652 F.3d at 1230 (“[A] party may properly object by submitting a proposed instruction that is supported by relevant authority, so long as the proffered language is sufficiently specific to bring into focus the precise nature of the alleged error.”) (internal quotations and alterations omitted).

There is no support in the record for Defendants’ contention that they at least objected to the court’s failure to give an instruction embodying some version of the WLAD same-decision defense, even if it was not the Davis defense. To begin, the court questions whether it would matter if Defendants had requested such a defense, because the court is aware of no authority that a party can overcome its failure to request a proper instruction by requesting an improper one on the same subject. Putting that aside, Defendants did not request an instruction on any version of a WLAD same-decision defense. The parties proposed jury instructions before trial. Dkt. ## 136, 149. They contained no suggestion of a same-decision defense applicable to the WLAD. At the conclusion of the Friday following the first four days of trial, the court issued an order attaching its proposed jury instructions. Dec. 6, 2013 ord. (Dkt. # 168). Instruction No. 16 covered the elements of discrimination in violation of the WLAD, Instruction No. 17 covered the elements of discrimination in violation of federal law, and concluded with a paragraph on the same-decision defense. Id. That paragraph was substantially identical to the paragraph that concludes Ninth Circuit Model Civil Jury Instruction 10.1 C.

At the jury instruction conference on the following Tuesday (after the close of evidence), Defendants’ sole objection to Instruction No. 16 was that it did not expressly state t