Chester I. Ferguson, III Linda Ferguson, Husband and Wife v. Kiewit Construction Company, a Delaware Corporation

87 F.3d 1318 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Chester I. FERGUSON, III; Linda Ferguson, husband and wife, Plaintiffs-Appellants, v. KIEWIT CONSTRUCTION COMPANY, a Delaware corporation, Defendant-Appellee No. 94-36223. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 4, 1996. Decided June 13, 1996. Before: BROWNING, WRIGHT, and T.G. NELSON, Circuit Judges. 1 MEMORANDUM * I. A. 2 The district court erred by instructing the jury that Ferguson had to show his age was a "determining factor" in Kiewit's decision to terminate him and "but for" his age he would not have been discharged. The Washington Supreme Court decided during the pendency of this appeal that an identical instruction was incorrect, holding that a plaintiff need only show that "an attribute listed in RCW 49.60.180(2) was a 'substantial factor' in an employer's adverse employment decision." Mackay v. Acorn Custom Cabinetry, 898 P.2d 284, 288 (Wash.1995). 3 The district court…