Hemmings

Concurring in part and Dissenting in part:

I respectfully dissent from the majority’s view in part IVC that the misconduct of plaintiffs’ counsel during a part of closing argument by Ms. Price Sadich did not prejudice defendant. I would hold that counsel’s statements that she had sued defendant before and that defendant’s failure to change its practices after that prior suit “proves our case” 1 were so improper and inflammatory as to call the integrity of the proceeding into serious question and to violate due process. 2 Moreover, because I *1207 view those statements as fundamental error that in context was necessarily prejudicial, I would give relief for the improper argument and hold that the district court abused its discretion in failing to grant defendant’s motion for a new trial on the basis of those improper statements.

Accordingly, I respectfully dissent from part IVC of the majority’s opinion. However, because I agree with the majority’s analysis of the other issues in the case and believe that, if a new trial were granted, it would be preferable to resolve those issues to guide the trial court, I concur in the majority’s analysis with respect to parts I, II, III, IVA,…

PREGERSON, Circuit Judge, delivered the opinion of the Court as to Parts I, II, III, IV, V, VI, and VII, in which THOMAS, Circuit Judge, joined. Judge THOMAS delivered the opinion of the Court as to Parts VIII and IX. Judge PREGERSON joined as to Part VIII and dissents specially from Part IX.

RONALD M. GOULD, Circuit Judge joined as to Parts I, II, III, IVA, IVB, V, VI, VII, VIII and IX and filed a dissenting opinion as to Part IVC.

This appeal arises out of a jury verdict in favor of two women who sued their *1178 employer for sex discrimination. The women, Connie Hemmings (“Hemmings”) and Patty Lamphiear (“Lamphiear”), charged their employer, Tidyman’s Inc. (“Tidyman’s”), with discriminating against them on the basis of their sex in violation of federal and state anti-discrimination laws by failing to pay them wages and compensation equal to their male counterparts, failing to promote them, and retaliating against them after they complained of the discrimination.

Tidyman’s appeals the jury verdict and damages award in favor of the plaintiffs on four grounds. First, Tidyman’s contends that the district court erred at trial by admitting into evidence improper statistical expert…

dissenting specially in part:

Because I believe that the district court correctly construed Washington state law to permit double damages in a discrimination suit where an employer willfully withholds wages, I respectfully dissent from Part IX.

I.

Double Damages are Recoverable Under State Law

In addition to violations of state and federal anti-discrimination laws, Plaintiffs alleged that Tidyman’s violated a Washington statute prohibiting employers from willfully depriving employees of any wages due under statute, ordinance, or contract obligations. See RCW § 49.52.050. 1 Unlike the anti-discrimination claims, violation of the willful deprivation of wages statute requires the employer to pay the employee twice the amount of wages withheld (“double damages”). See RCW § 49.52.070. 2 Before the jury rendered its verdict, Tidyman’s filed a motion seeking to strike the double damages claim by arguing that as a matter of law Washington’s willful deprivation of wages statute is *1205 unavailable in discrimination cases. The district court ruled against Tidyman’s, and the jury found that “Tidyman’s willfully and with intent” deprived Lamphiear of part of her past wages because of her…