United States v. 2007-04-23 | 05-35209 | GAMBINI VTOTAL RENAL CARE, INC. | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 STEPHANIE GAMBINI, No. 05-35209
Plaintiff-Appellant, D.C. No.
v. CV-03-05459-RBL
TOTAL RENAL CARE, INC., d/b/a ORDER 
DAVITA, INC., AMENDING
Defendant-Appellee. OPINION AND
AMENDED
OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, United States District Court Judge
Argued October 27, 2006
Submitted March 1, 2007
Seattle, Washington
Filed March 8, 2007
Amended April 24, 2007
Before: Alfred T. Goodwin and Alex Kozinski,
Circuit Judges, and Milton I. Shadur,* Senior District Judge.
Opinion by Judge Shadur
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
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COUNSEL
Michael C. Subit and Sean M. Phelan, Frank Freed, Subit &
Thomas, LLP, Seattle, Washington, for the plaintiff-appellant.
Patricia K. Buchanan and Pamela J. DeVet, Lee, Smart, Cook,
Martin & Patterson, P.S., Seattle, Washington, for the
defendant-appellee.
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ORDER
After review of (a) the petition for rehearing filed by
appellee Total Renal Care Inc. d/b/a DaVita, Inc. (“DaVita”),
coupled with its motion to withdraw a portion of our opinion
and to certify a question to the Washington Supreme Court,
and (b) the motion by Washington Retail Association for
leave to file a brief amicus curiae in support of that petition
and motion, we:
1. deny DaVita’s petition for rehearing and its
accompanying motion;
2. grant leave to file the amicus curiae brief; and
3. amend our opinion filed on March 8, 2007,
slip op. 2685, by inserting the following two para-
graphs at page 2697, after line 6 and immediately
above the caption “Failure To Offer Instruction on
‘Direct Threat’ Defense”:
In its petition for rehearing, which has been joined
by an amicus brief, DaVita argues that “[n]either the
Riehl nor Humphrey Courts state or imply that argu-
ably disabled employees are entitled to absolute pro-
tection regardless of their transgressions against the
employer, let alone more protection than would be
afforded a non-disabled employee for the same mis-
conduct.” But the law often does provide more pro-
tection for individuals with disabilities. Unlike other
types of discrimination where identical treatment is
the gold standard, identical treatment is often not
equal treatment with respect to disability
discrimination—see, e.g., Holland v. Boeing Co.,
583 P.2d 621, 623 (Wash. 1978) (en banc)
(“Identical treatment may be a source of discrimina-
tion in the case of the handicapped, whereas different
treatment may eliminate discrimination against the
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handicapped and open the door to employment
opportunities.”). That’s why the ADA and Washing-
ton Law require employers to make reasonable
accommodations for disabilities.
That said, requiring Prop. Instr. 26 in no way pro-
vides employees with absolute protection from
adverse employment actions based on disability-
related conduct. Under the ADA a plaintiff must still
establish that she is “an individual with a disability
who, with or without reasonable accommodation,
can perform the essential functions of the employ-
ment position that such individual holds or desires”
(42 U.S.C. § 12111(8)). Washington Law has a simi-
lar provision: “[T]he prohibition against discrimina-
tion because of such disability shall not apply if the
particular disability prevents the proper performance
of the particular worker involved” (Wash. Rev. Code
§ 49.60.180(1)). Even if a plaintiff were to establish
that she’s qualified, under the ADA the defendant
would still be entitled to raise a “business necessity”
or “direct threat” defense against the discrimination
claim (see 42 U.S.C. § 12113(a)-(b)). Defendant
may also raise the defense that the proposed reason-
able accommodation poses an undue burden (see id.
§ 12111(10)). Here DaVita would be able to raise
any analogous defenses available to it under Wash-
ington Law. Our holding is thus far less controver-
sial and sweeping than DaVita and the amici
proclaim.
OPINION
SHADUR, Senior District Judge:
Stephanie Gambini (“Gambini”) appeals the district court’s
denial of her renewed motion, alternatively seeking judgment
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as a matter of law and a new trial, following a jury verdict in
favor of her former employer Total Renal Care, Inc., d/b/a
DaVita, Inc. (“DaVita”). Gambini originally brought suit in
Pierce County Superior Court in Tacoma, Washington, charg-
ing that DaVita had discriminated against her in violation of
the Washington Law Against Discrimination (“Washington
Law,” Wash. Rev. Code §§ 49.60.010 to 49.60.401) and the
Family Medical Leave Act (“FMLA,” 29 U.S.C. §§ 2601 to
2654). DaVita then timely removed the case to the United
States District Court for the Western District of Washington,
where DaVita prevailed at trial. We affirm as to Gambini’s
FMLA claim, but reverse and remand as to her Washington
Law claim.
Background
In November 2000 Gambini began working as a contracts
clerk at DaVita, a company that provides dialysis to renal
patients. It is undisputed that Gambini had a history of health
problems that predated her employment at DaVita. After sev-
eral months at DaVita she began to experience depression and
anxiety, and in April 2001 she experienced an emotional
breakdown at work. Gambini eventually met with a mental
health provider at the community health clinic and was told
that her symptoms were consistent with bipolar disorder.
Upon returning to work several days later, Gambini
informed her supervisor Robin Warren (“Warren”) that she
was seeking medical treatment for bipolar disorder. When
Warren was promoted in May 2001, DaVita replaced her with
Carrie Bratlie (“Bratlie”), who became Gambini’s new direct
supervisor. Gambini also told Bratlie that she was suffering
from bipolar disorder and requested several accommodations.
In addition, Gambini told her co-workers that she was experi-
encing mood swings, which she was addressing with medica-
tions, and asked that they not be personally offended if she
was irritable or short with them. Gambini privately divulged
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to Bratlie that she was seeing a therapist and struggling with
some medication issues.
Gambini’s bipolar symptoms grew more severe in April
2002 — she found herself increasingly irritable and easily dis-
tracted and began to have a hard time concentrating or assign-
ing priorities as between her tasks. Gambini admitted to a
fellow co-worker, who also suffered from bipolar disorder,
that she was struggling to perform her job because of her
symptoms. That co-worker recommended that Gambini seek
treatment from psychiatric nurse practitioner Bobbie Fletcher
(“Fletcher”), who confirmed Gambini’s bipolar disorder
based on Gambini’s “short fuse,” high energy, and propensity
to exhibit anger and irritability.
During that period Gambini’s current and former supervi-
sors, Warren and Bratlie, convened to discuss Gambini’s atti-
tude and what they perceived as her poor job performance.
Their meeting culminated in a decision to deliver a written
performance improvement plan to Gambini at a later meeting
that would include Bratlie, Gambini, and Gina Lovell
(“Lovell”), the Supervisor of Payor Contracting. Accordingly,
on July 11, 2002 Bratlie emailed Gambini, requesting that she
come to Bratlie’s office without indicating any specific pur-
pose for the meeting.
Upon arriving at Bratlie’s office Gambini was already agi-
tated because she did not know the purpose of the meeting or
why Lovell was in attendance. When Bratlie presented Gam-
bini with the improvement plan, the first sentence of which
stated, “[Gambini’s] attitude and general disposition are no
longer acceptable in the SPA department,” Gambini began to
cry. Reading the remainder of the document did not alleviate
Gambini’s symptoms—instead she found her face growing
hot and felt a tightening feeling in her chest, as well as short-
ness of breath and shaking. When she had finished reading the
performance plan, Gambini threw it across the desk and in a
flourish of several profanities expressed her opinion that it
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was both unfair and unwarranted. Before slamming the door
on her way out, Gambini hurled several choice profanities at
Bratlie. There is a dispute about whether during her dramatic
exit Gambini warned Lovell and Bratlie that they “will regret
this,” but Bratlie did observe Gambini kicking and throwing
things at her cubicle after the meeting. Back at her cubicle,
Gambini tried unsuccessfully to call Fletcher to tell her about
how upset the meeting made her feel and about her ensuing
suicidal thoughts.
Gambini reported for work the next morning and received
a return phone call from Fletcher who, alarmed about Gam-
bini’s suicidal thoughts, told Gambini to go directly to the
hospital. Gambini told Bratlie that she needed to check into
the hospital, and Bratlie asked Gambini’s boyfriend Todd
DeMille (“DeMille”) to pick her up and take her to the hospi-
tal. When DeMille arrived, Bratlie gave him FMLA forms for
Gambini to fill out. She also signed the personnel change
notice for Gambini’s leave request. Gambini went straight
from work to St. Joseph’s Hospital, where her bipolar diagno-
sis was reconfirmed.
On July 16 DaVita provisionally approved Gambini’s
request for FMLA leave, subject to medical certification from
her health care provider. Additionally, DaVita’s human
resource generalist Mara McLemore (“McLemore”) began an
investigation into the July 11 meeting with Gambini by inter-
viewing Gambini’s supervisors. During the investigation
McLemore asked Bratlie via email about Gambini’s expected
date of return. During the same time frame several employees
sent emails to McLemore stating concerns about Gambini’s
outburst. For example, one employee specifically requested
that Gambini be prevented from returning to work.
On the following business day, McLemore and Bratlie cal-
led Gambini on her cell phone to tell her that her employment
was being terminated. Three days later Gambini sent DaVita
a letter stating that her behavior during the July 11 meeting
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was a consequence of her bipolar disorder and asking DaVita
to reconsider its decision to terminate her. When DaVita
refused to reconsider, Gambini filed this action, which pro-
ceeded to trial in December 2004.
At trial Gambini objected to the district court’s substantive
jury instructions on each of her legal claims. After a seven-
day jury trial, the jury returned a verdict in favor of DaVita
on all claims. After the trial court denied her post-trial alterna-
tive motion, Gambini filed a timely appeal to this court, chal-
lenging the giving of several jury instructions as well as the
failure to give her proffered Instructions 11, 12, 21, 26, 27, 30
and 33.1
Standard of Review
Where a challenge to jury instructions is at issue, “prejudi-
cial error results when, looking to the instructions as a whole,
the substance of the applicable law was not fairly and cor-
rectly covered” (Swinton v. Potomac Corp., 270 F.3d 794,
802 (9th Cir. 2001), quoting earlier caselaw (internal citations
omitted)). Where an error is merely harmless, reversal is not
required (Wall Data Inc. v. Los Angeles County Sheriff’s
Dep’t, 447 F.3d 769, 784 (9th Cir. 2006)). As Wall Data, id.
teaches, “We review a district court’s formulation of civil jury
instructions for an abuse of discretion,” and “[w]e review de
novo whether a jury instruction misstates the law.” Here anal-
ysis reveals that the trial court committed reversible error
when it refused to give Gambini’s Prop. Instr. 26 because it
failed “fairly and adequately” to cover the issues presented
and to state the law correctly, and because it was ultimately
misleading. And because the case will have to be retried, we
address other questioned instructions as well.
1Throughout this opinion, Gambini’s proposed instructions will be cited
as “Prop. Instr. ___” and the jury instructions as given will be cited as
“Instr. ___.”
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Swinton, 270 F.3d at 805-06 (quoting earlier caselaw, with
internal citations omitted) reconfirmed the standard for evalu-
ating a verdict where the jury has been given an incorrect
instruction:
An error in instructing the jury in a civil case
requires reversal unless the error is more probably
than not harmless. While this standard of review is
less stringent than review for harmless error in a
criminal case, it is more stringent than review for
sufficiency of the evidence in which we view the
evidence in the light most favorable to the prevailing
party. In reviewing a civil jury instruction for harm-
less error, the prevailing party is not entitled to have
disputed factual questions resolved in his favor
because the jury’s verdict may have resulted from a
misapprehension of law rather than from factual
determinations in favor of the prevailing party.
That yardstick will be applied in our review of the actual and
proposed jury instructions at issue on this appeal.
Instructions Regarding Gambini’s
Disparate Treatment Claim
Instruction as to Conduct Resulting from Disability
Gambini submitted and the trial court denied Prop. Instr.
26:
Conduct resulting from a disability is part of the dis-
ability and not a separate basis for termination.
We conclude (1) that the district court abused its discretion
when it declined to give that instruction and (2) that such
exclusion was not harmless error.
[1] Most significantly, the Washington Supreme Court has
itself enunciated the rule embodied in that instruction. On that
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score Riehl v. Foodmaker, Inc., 94 P.3d 930, 938 (Wash.
2004)(en banc) has stated explicitly:
Conduct resulting from the disability . . . is part of
the disability and not a separate basis for termina-
tion.
In so doing Riehl drew on our own holding in Humphrey v.
Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.
2001), which in the context of the Americans With Disabili-
ties Act (“ADA”) similarly articulated that “conduct resulting
from a disability is considered part of the disability, rather
than a separate basis for termination.” As a practical result of
that rule, where an employee demonstrates a causal link
between the disability-produced conduct and the termination,
a jury must be instructed that it may find that the employee
was terminated on the impermissible basis of her disability.
Because of the Washington Supreme Court’s express reli-
ance on Humphrey, we may properly look to that decision in
applying the Washington Law. Indeed, the facts in Humphrey
are substantially analogous to Gambini’s situation, and we
held there (239 F.3d at 1140) that a jury could reasonably find
the “requisite causal link between” the symptoms of obsessive
compulsive disorder and Humphrey’s inability to conform her
behavior to her employer’s expectations of punctuality and
attendance, so that she was fired because of her disability.
As we have said, that principle has been adhered to by the
Washington Supreme Court, again in analogous circum-
stances. In Riehl, 94 P.3d at 938 an employer terminated and
refused to rehire an employee who began to suffer from
depression and posttraumatic stress disorder (“PTSD”) after
approximately five years of service. Evidence that the
employee’s mental disability motivated the adverse employ-
ment action included his supervisor’s written comments about
the employee’s personality change after his illness, which
“suggest[ed] he was not the same as the ‘old [Riehl]’ ” (id.).
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In light of his favorable performance reviews and promotions
within the company (id. at 937), the supervisor’s comments
“suggest that [the employer’s] decision to fire and/or not
rehire Riehl was based on Riehl’s personality difference,
which may have been caused by his disability” (id. at 938).
In fact, when Riehl was terminated he was told that the deci-
sion was not based on his performance (id. at 938).
[2] Hence the court held that a jury could reasonably find
that the mental disability was a “substantial factor” in the
adverse employment actions, making the critical point that
under Washington law a plaintiff need not prove that the
impermissible basis for the adverse employment action—
mental disability—was itself “the determining factor” (id. at
936). As Mackay v. Acorn Custom Cabinetry, Inc., 898 P.2d
284, 288 ( Wash. 1995) (en banc) explains:
Washington’s disdain for discrimination would be
reduced to mere rhetoric if this court were to require
proof that one of the attributes enumerated in [the
antidiscrimination statute] was a ‘determining factor’
in the employer’s adverse employment decision.
Thus a decision motivated even in part by the disability is
tainted and entitles a jury to find that an employer violated
antidiscrimination laws.
Failure to have instructed the jury on that score plainly
requires reversal. At trial Gambini presented evidence that
DaVita signed an interrogatory response, which stated that
one of the reasons it terminated Gambini was because she had
“frightened her co-workers with her violent outbursts,” as
“documented by emails to the People Services Department.”
Her “violent outbursts,” like Humphrey’s obsessive rituals or
Riehl’s subdued personality, were arguably symptomatic of
her bipolar disorder. Gambini had informed her supervisors
about her condition and kept them apprised of her medication
issues and the various accommodations she thought might
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reduce the chances of an outburst at work. When her temper
erupted during the July 11 meeting, Gambini was in the throes
of a medication change, which heightened the volatility of the
mood swings that she and her health care providers were try-
ing to get under control.
[3] Under all the circumstances it was surely permissible
for a properly instructed jury to review the events culminating
in the July 11 meeting and Gambini’s eventual termination
and to conclude that it was her personality and not her work
product that motivated DaVita. In fact, the very first sentence
of the written performance improvement plan that Bratlie pre-
sented to Gambini on July 11 stated, “[Gambini’s] attitude
and general disposition are no longer acceptable in the SPA
department.” It is undisputed that people who suffer from
bipolar disorder struggle to control their moods, which may
vacillate wildly from deep depressions to wild frenzies of
hypomania. Hence the record is replete with examples of how
Gambini’s bipolar disorder manifested itself through her irri-
tability, her “short fuse” and her sometimes erratic emotions.
[4] Accordingly the jury was entitled to infer reasonably
that her “violent outburst” on July 11 was a consequence of
her bipolar disorder, which the law protects as part and parcel
of her disability. In those terms, if the law fails to protect the
manifestations of her disability, there is no real protection in
the law because it would protect the disabled in name only.
As School Board of Nassau County, Florida v. Arline, 480
U.S. 273, 279 (1987) instructs, the disability discrimination
laws are necessary because Congress acknowledged that “the
American people are simply unfamiliar with and insensitive
to the difficulties confront[ing] individuals with handicaps.”
[5] Gambini was therefore entitled to have the jury
instructed that if it found that her conduct at issue was caused
by or was part of her disability, it could then find that one of
the “substantial reasons” she was fired was her bipolar condi-
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tion. Rejection of that instruction cannot be labeled a “harm-
less error” under the Swinton standard.2
In its petition for rehearing, which has been joined by an
amicus brief, DaVita argues that “[n]either the Riehl nor
Humphrey Courts state or imply that arguably disabled
employees are entitled to absolute protection regardless of
their transgressions against the employer, let alone more pro-
tection than would be afforded a non-disabled employee for
the same misconduct.” But the law often does provide more
protection for individuals with disabilities. Unlike other types
of discrimination where identical treatment is the gold stan-
dard, identical treatment is often not equal treatment with
respect to disability discrimination—see, e.g., Holland v. Boe-
ing Co., 583 P.2d 621, 623 (Wash. 1978) (en banc) (“Identical
treatment may be a source of discrimination in the case of the
handicapped, whereas different treatment may eliminate dis-
crimination against the handicapped and open the door to
employment opportunities.”). That’s why the ADA and
Washington Law require employers to make reasonable
accommodations for disabilities.
That said, requiring Prop. Instr. 26 in no way provides
employees with absolute protection from adverse employment
actions based on disability-related conduct. Under the ADA a
plaintiff must still establish that she is “an individual with a
disability who, with or without reasonable accommodation,
can perform the essential functions of the employment posi-
tion that such individual holds or desires” (42 U.S.C.
§ 12111(8)). Washington Law has a similar provision: “[T]he
2We note that had the district court properly instructed the jury as to
Gambini’s disability-related conduct, her Prop. Instr. 27 would have been
redundant. That proposed instruction read:
An employer cannot fire an employee for poor job performance
if the poor job performance was due to a mental disability and
reasonable accommodation plausibly would have rectified the
performance problem.
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prohibition against discrimination because of such disability
shall not apply if the particular disability prevents the proper
performance of the particular worker involved” (Wash. Rev.
Code § 49.60.180(1)). Even if a plaintiff were to establish that
she’s qualified, under the ADA the defendant would still be
entitled to raise a “business necessity” or “direct threat”
defense against the discrimination claim (see 42 U.S.C.
§ 12113(a)-(b)). Defendant may also raise the defense that the
proposed reasonable accommodation poses an undue burden
(see id. § 12111(10)). Here DaVita would be able to raise any
analogous defenses available to it under Washington Law.
Our holding is thus far less controversial and sweeping than
DaVita and the amici proclaim.
Failure To Offer Instruction on “Direct Threat” Defense
[6] Another instruction refused by the district court was one
on the “direct threat” doctrine, codified in the ADA’s statu-
tory text at 42 U.S.C. § 12111(3), which provides a defense
to employers who terminate an otherwise protected employee
because she poses a threat to the health or safety of other indi-
viduals in the workplace. In the ADA context Morton v.
United Parcel Service, Inc., 272 F.3d 1249, 1259 (9th Cir.
2001)(emphasis in original) described the doctrine as “a very
narrow permission to employers to exclude individuals with
disabilities not for reasons related to performance of their
jobs, but because their mere presence would endanger others
with whom they work and whom they serve.” Gambini ten-
dered her Prop. Instr. 30 to address that subject.
To be sure, we have said in such cases as Sharpe v. AT&T
Co., 66 F.3d 1045, 1050 (9th Cir. 1995), there citing Clarke
v. Shoreline Sch. Dist., 720 P.2d 793, 806 (Wash. 1986):
Washington courts look to federal discrimination law
to interpret their own discrimination law.
But because the Washington Law does not contain an explicit
counterpart to the ADA’s “direct threat” provision and its
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implementing regulation, the possible incorporation of such a
defense into the state’s jurisprudence poses an unresolved
question.
Most importantly, that is a question that would be inappro-
priate for us to resolve in the context of this appeal. Even
under the federal statutory scheme, that issue becomes rele-
vant if the employer’s defense puts the issue into play, and
here DaVita did not do so. Instead the heart of DaVita’s
defense was its claim that Gambini “lost her job because of
misconduct.”
[7] Because DaVita did not invoke the “direct threat” con-
cept to justify its termination of Gambini, the latter cannot
force it to defend a theory that it chose not to pursue. We can-
not find the trial court committed error by refusing to include
an instruction on this uninvoked defense.
FMLA Instructions
Instructions as to FMLA Interference
As for her FMLA interference claim, Gambini asserts that
the trial court erroneously gave Instr. 21:
Plaintiff claims that defendant interfered with her
FMLA rights. In order for the plaintiff to establish a
violation of the FMLA, she must prove all of the fol-
lowing elements by a preponderance of the evidence:
(1) plaintiff was eligible for leave under the
Family Medical Leave Act;
(2) plaintiff had a bipolar condition and it con-
stituted a “serious health condition;”
(3) plaintiff gave defendant appropriate notice of
her need to be absent from work; and
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(4) plaintiff’s FMLA leave was a negative factor
in defendant’s decision to terminate her.
According to Gambini, she simply had to prove that DaVita
interfered with her FMLA leave without also having to offer
any proof about DaVita’s motive. Prop. Instr. 11, which was
refused by the trial court, spoke only in these terms:
She has the burden of proving by a preponderance of
the evidence that (1) she was entitled to FMLA leave
and (2) DaVita interfered with, restrained or denied
her FMLA rights.
[8] Under the FMLA “employees who must be absent from
work because of their own illness, to care for family members
who are ill, or to care for new babies” are provided job secur-
ity (Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119
(9th Cir. 2001)). Bachelder, id., reminds us that “[t]he FMLA
was the culmination of several years of negotiations in Con-
gress to achieve a balance that reflected the needs of both
employees and their employers,” and the result is that “the
Act entitles covered employees up to twelve weeks of leave
each year for their own illnesses . . . and guarantees them
reinstatement after exercising their leave rights.” Thus the
statute “creates two interrelated, substantive employee rights:
first, the employee has a right to use a certain amount of leave
for protected reasons, and second, the employee has a right to
return to his or her job or an equivalent job after using pro-
tected leave” (id. at 1122). Though the FMLA generally con-
fers the right to reinstatement, an employer may still terminate
an employee during her leave if the employer would have
made the same decision had the employee not taken leave (29
U.S.C. § 2614(a); 29 C.F.R. § 825.216(a)(1)).
[9] Gambini objects to Instr. 21 because she contends that
it fails to instruct the jury accurately that DaVita had the bur-
den of proving that her federally-protected leave was not a
factor in its decision to terminate her employment. But
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DaVita offered unrefuted evidence that it would have termi-
nated Gambini for her conduct regardless of whether she had
taken her FMLA leave. There was no evidence whatever that
DaVita would have retained Gambini had she remained at
work after the July 11 altercation. Mockler v. Multnomah
County, 140 F.3d 808, 812-13 (9th Cir. 1998) held that a jury
verdict could not be tainted by an erroneous instruction on a
burden of proof where the prevailing party’s evidence was
undisputed. Similarly, any arguable error in instructing as to
the burden of proof would be harmless indeed in light of
DaVita’s uncontroverted evidence that it would have fired
Gambini for her conduct regardless of her leave status.
Instructions as to Failure To Reinstate After FMLA Leave of
Absence
[10] Gambini also takes issue with the trial court’s failure
to give this Prop. Instr. 12 as to DaVita’s liability for failure
to reinstate her after her period of FMLA leave:
If you find Ms. Gambini was entitled to FMLA
leave, DaVita can avoid liability for interfering,
denying or restraining her rights under the FMLA by
not reinstating her to her former position after leave
only if it can demonstrate, by a preponderance of the
evidence, that it would have discharged Ms. Gam-
bini for a lawful reason wholly unrelated to her
FMLA leave.
Rejecting that proposal, the trial court instead issued Instr. 24:
Under the FMLA, after the period of qualified leave
expires, the employee generally is entitled to be rein-
stated to the former position or an equivalent one
with the same benefits and terms of employment that
existed before the employee took the leave. However
the FMLA does not protect an employee from disci-
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pline or discharge for conduct that violates company
policy.
As above, Gambini argues that Instr. 24 misstates the law
because it does not require DaVita to prove that her discharge
was not motivated by her FMLA leave. Again because of the
uncontradicted evidence that DaVita terminated Gambini for
conduct unrelated to her FMLA leave, any putative error as
to allocating the burden of proof was harmless, and Wall Data
Inc., 447 F.3d at 784 has held that reversal is not required
where an error is merely harmless.
Instructions as to Obligation To Accommodate Disability
Finally, Gambini contends that the trial court instructed the
jury erroneously on her failure-to-accommodate claim when
this Instr. 15 was accepted over her objection:
An employer is not required to accommodate an
employee’s disability if it would impose an undue
hardship on the operation of the employer’s busi-
ness. The defendant has the burden of proving that
an accommodation would impose an undue hardship
on the defendant.
As Gambini would have it, her Prop. Instrs. 21 and 33 should
have gone to the jury instead:
Prop. Instr. 21:
The law does not require an employee to prove that
a particular form of accommodation is certain or
even likely to be successful in order for it to be a rea-
sonable accommodation. As long as a reasonable
accommodation available to an employer could plau-
sibly have enabled a disabled employee to ade-
quately perform her job, the employer is liable for
failing to attempt that accommodation.
4520 GAMBINI v. TOTAL RENAL CARE, INC.

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Prop. Instr. 33:
An employer is not required to accommodate an
employee’s disability if it would impose an undue
hardship on the operation of the employer’s busi-
ness. DaVita has the burden of proving that an
accommodation would impose an undue hardship.
An accommodation will be considered an undue
hardship on the conduct of the employer’s business
only if the cost or difficulty is unreasonably high in
view of the size of the employer’s business, the
value of the employee’s work, whether the cost can
be included in planned remodeling or maintenance,
and the requirements of contracts.
[11] We reject Gambini’s contention. Morton, 272 F.3d at
1252 has expressed the operative rule in much the same way
as Instr. 15:
It is an act of discrimination to fail reasonably to
accommodate a qualified employee with a disability
unless the employer can show that such an accom-
modation would impose an undue hardship.
Thus the instruction tracked the nature of the defendant’s bur-
den precisely as the law directs.
Despite that direct parallel, Gambini argues that Instr. 15 is
misleading on the premise that the jury would “have no way
of knowing that a plaintiff need prove only that a proposed
accommodation would plausibly have enabled her to perform
the essential functions of her job.” Gambini contends that the
jury would apply the general instructions as to the preponder-
ance of the evidence standard to Instr. 15 and falsely assume
that Gambini had a duty to prove “any accommodation she
proposed to DaVita was likely to succeed on a more probable
than not basis.”
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[12] We disagree. Instr. 15 not only states the law accu-
rately but it nowhere says (or even implies) that Gambini had
to make any quantum showing as to the likely success of her
suggested accommodation. While Instr. 15 does not expressly
define what constitutes “undue hardship,” Prop. Instr. 33 does
not offer particularly helpful guidance to the jury, because it
generally tracks Wash. Admin. Code § 162-22-075, which
sets forth the relevant factors for evaluating a claim of undue
hardship where an employer will be subject to the costs of
remodeling to accommodate physical disabilities. That statu-
tory section is silent as to accommodations for mental disabil-
ities and thus provides no aid to the evaluation of Gambini’s
claim. Moreover, on remand the jury will be instructed that
Gambini’s disability-related misconduct is protected under
Washington Law, rendering Prop. Instr. 33 unnecessary. In
sum, the failure to give either Prop. Instr. 21 or Prop. Instr. 33
cannot be labeled as error because the jury was specifically
instructed that DaVita had the burden of proving that Gam-
bini’s requested reasonable accommodation created an undue
hardship.
Conclusion
Because the only purported errors ascribed to the verdict on
Gambini’s FMLA claim relate to jury instructions and
because we have rejected those challenges, we affirm as to
that claim. But as to Gambini’s claim under Washington Law,
the error in instructing the jury that we have identified here
infected the verdict on that claim, requiring a remand for a
new trial rather than the entry of a judgment in Gambini’s
favor as a matter of law.
AFFIRMED in part and REVERSED and REMANDED in
part.
4522 GAMBINI v. TOTAL RENAL CARE, INC.

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