concurring in part and dissenting in part:
I agree that the district court did not err in denying the motion for judgment as a matter of law (and that OHSU has waived any right to have its liability considered separate from that of Seyfer’s). Furthermore, I agree that the district court did not abuse its discretion in any of the contested evidentiary rulings. Accordingly, I concur in Parts I, II-A, II-B.2, and II-C of the opinion. However, because I would hold that Seyfer and OHSU are entitled to a new trial on the basis of an improper jury instruction, I must dissent from Part II-B.l.
“Under the dual motive test, a plaintiff must show that her protected activities were a ‘substantial factor’ in the complained of adverse employment action. Protected activities are a ‘substantial factor’ where the adverse actions would not have been taken ‘but for’ the protected activities.” Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir.1996). Our decision in Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir.1999), reaches a similar conclusion: “[A] subordinate cannot use the nonretaliatory motive of a superior as a shield against liability if that superior never would have *887considered a dismissal but for the subordinate’s retaliatory conduct.” Id. at 855 (emphasis added). Seyfer and OHSU requested a jury instruction to this effect,1 which the district court denied. As it was a correct statement of the law, the district court’s failure to give it was an abuse of discretion that was not harmless.
The district court did properly instruct the jury that in order to prevail on the retaliation claim, Ostad’s protected activities had to be a “substantial or motivating factor” in his termination. Unfortunately, in response to a query from the jury concerning the definitions of “substantial” and “motivating,” the court erred in subsequently instructing the jurors that the protected conduct needed only to be a “significant factor” in the termination. This latter instruction sets the bar too low as a matter of law.
Failure to require that the subordinate’s retaliatory conduct have played a substantial role in the unbiased decisionmaker’s deliberations runs the risk of immunizing a plaintiff who rightfully should be terminated. If a malevolent subordinate brings genuine misconduct to the attention of an unbiased decisionmaker, that decisionmaker should still be able to terminate the plaintiff for the unrelated malevolence. It is precisely for such circumstances that the burden of establishing liability is considerably higher than a finding that the protected activities were only “a significant factor.”
Therefore, I would reverse the district court and remand for a new trial so that a jury could evaluate Seyfer’s and OHSU’s conduct under the proper legal standard.
. The defendants requested the following jury instruction: "An improper motive is a ‘substantial or motivating' factor in the ter-initiation if the termination would not have occurred except for the improper motive.” Supra at 884.