“There must be a sufficient evidentiary foundation to support giving the instruction.” Gantt v. City of L.A., 717 F.3d 702, 706-07 (9th Cir.2013). The uncontested evidence in this case is that Avila would not have been fired had he not testified. Indeed, an LAPD official confirmed at trial that the only officers disciplined for the overtime violations were those who testified in the Maciel action, and that Avila would never have been disciplined had he not testified. The City’s counsel also candidly conceded this at oral argument. And, the only evidence introduced at the disciplinary hearing was Avila’s testimony in the Maciel matter. There thus was simply no evidentiary foundation for a same decision instruction. See Lambert v. Ackerley, 180 F.3d 997, 1009 (9th Cir.1999) (en banc) (<HOLDING>). B. The only issue on the merits actually
holding a district courts failure to give a same decision instruction harmless because the evidence before the jury strongly supported the conclusion that the plaintiffs were discharged in retaliation for their overtime complaints and that they would not have been discharged had they not engaged in this protected conduct holding that student plaintiffs could bring retaliation claims where they were allegedly retaliated against for complaints made by their parents on their behalf and noting that ollier allowed the same and that thompson allowed a retaliation claim by a plaintiff who was fired because his fiancee who was also his coworker engaged in protected activity and firing him was intended to harp her recognizing that the decision of whether to give a jury instruction is reviewed for abuse of discretion recognizing that a trial court has the authority before accepting a verdict and before discharging a jury to send the jury back to correct a mistake in its verdict but concluding that jury had been discharged because jury was allowed to return to court on following day and was allowed to deliberate same issue it previously had decided holding that plaintiffs had standing because they were directly affected by the laws and practices against which their complaints were directed