                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 16 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RACHEL A. PRICE, an Individual, and             No.   14-35601
TESSA V. GEHARDT, an Individual,
                                                D.C. No. 2:11-cv-01553-JCC
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM *

SHELL OIL COMPANY, a Delaware
Corporation,

                Defendant,

and

EQUILON ENTERPRISES LLC D/B/A
SHELL OIL PRODUCTS US, a Delaware
Corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                       Argued and Submitted March 7, 2017
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Rachel Price and Tessa Gehardt (“Plaintiffs”) were denied promotions in 2011

and 2012 by their employer, Equilon Enterprises. In this action, they alleged that

the decisions not to promote them were based on their gender and sexual orientation

and, therefore, violated Washington law. See Wash. Rev. Code § 49.60.180. After

a jury returned a defense verdict, the district court entered judgment in favor of

Equilon. We vacate that judgment and remand for a new trial.

      1. The district court did not abuse its discretion in denying Plaintiffs’ motion

for leave to file a fifth amended complaint. Plaintiffs had already amended their

complaint repeatedly, and the new cause of action that the proposed amended

complaint asserted was based on facts long known to Plaintiffs. See Chodos v. W.

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002). In addition, the motion was filed

only five days before the deadline for dispositive motions and long after the time

established in the pretrial scheduling order. See Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 608-09 (9th Cir. 1992).

      2. Over Plaintiffs’ objection, the district court gave the following instruction

(Instruction 12) concerning Equilon’s liability under Washington law for the acts of

its employees:

      The Defendant, Equilon Enterprises, LLC, doing business as Shell Oil
      Products US, is sued as principal. The Plaintiffs claim that the
      employees involved in making the promotion decisions in 2011 and
      2012 were acting as Equilon Enterprises’ agents. Equilon Enterprises
      admits that those employees were acting as Equilon Enterprises’ agents,
      and denies that those employees were acting within the scope of

                                          2
      authority.

      If you find that those employees were agents of Equilon Enterprises and
      were acting within the scope of authority, then any act or omission of
      those employees was the act or omission of Equilon Enterprises.

      If you find that those employees were not acting within the scope of
      authority as Equilon Enterprise’s [sic] agent, then you must find for
      Equilon Enterprises, LLC.

      3. The third paragraph of Instruction 12 was an incorrect statement of

Washington employment law. Discriminatory statements “not made directly in the

context of an employment decision or uttered by a non-decision-maker may be

relevant, circumstantial evidence of discrimination.” Scrivener v. Clark Coll., 334

P.3d 541, 548 n.3 (Wash. 2014) (quoting Reid v. Google, Inc., 235 P.3d 988, 1006

(Cal. 2010)); see also Mackay v. Acorn Custom Cabinetry, Inc., 898 P.2d 284, 288

(Wash. 1995). Thus, the jury was not required to find for Equilon if it found that

discriminatory statements were made or discriminatory actions were undertaken by

employees not authorized to engage in the promotion decisions. Rather, the jury

could consider those matters, together with other evidence, to determine whether

discrimination was a substantial factor in the adverse employment decisions. See

Scrivener, 334 P.3d at 545. Instruction 12 also directly contradicted Instruction 15,

which accurately stated that Plaintiffs’ burden was to prove that discrimination was

a substantial factor in the failure to promote, regardless of its source.




                                           3
      4. Instruction 12 also failed to “fairly and adequately cover the issues

presented.” See White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002). The

instruction stated that Equilon admitted that employees involved in the promotion

decisions were acting as Equilon’s “agents, and denies that those employees were

acting within the scope of authority.” But there was no contest that at least two

Equilon employees accused of discrimination were among those authorized to make

the 2011 promotion decision.

      5. Equilon did not argue in its appellate briefing that any instructional error

was harmless. We therefore presume prejudice. See Dang v. Cross, 422 F.3d 800,

811 (9th Cir. 2005).

      VACATED and REMANDED for a new trial. Costs on appeal awarded to

Plaintiffs-Appellants.




                                         4
