Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 1 of 23

Instruction No. ___ Statement of the Case The Plaintiff, Claire Fitzgerald, was employed by the U.S. Department of Justice, Bureau of Prisons as a Trust Fund Analyst Instructor at the Management and Specialty Training Center (hereinafter referred to as the "MSTC") located in Aurora, Colorado. Ms. Fitzgerald worked for the Bureau of Prisons from February 1986 through December 1998.

Plaintiff asserts claims for sexual harassment, disparate treatment, retaliation and constructive discharge. Plaintiff engaged in a consensual relationship with an employee of Defendant BOP. When Plaintiff attempted to terminate the relationship, that employeee began making threats and attempting to intimidate the Plaintiff. When Plaintiff informed her employer of the factual circumstances, the Defendant retaliated against the Plaintiff. This retaliation culminated with the Plaintiff's constructive discharge on August 16, 1998.

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 2 of 23

Instruction No. ___ Ms. Fitzgerald's claims of discrimination based on gender and retaliation are brought under a federal law known as Title VII of the Civil Rights Act of 1964, as amended, often called Title VII. Title VII makes it an unlawful employment practice for an employer: 1. To discriminate against any individual with respect to the terms, conditions, or privileges of employment because of such individual's sex; or 2. To limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect her status as an employee because of such individual's sex.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 2000 e-2.

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 3 of 23

Instruction No. ___ In order for Ms. Fitzgerald to establish her claim for discrimination based on sex under Title VII, she must prove the following by a preponderance of the evidence: 1. The Defendant, U.S. Bureau of Prisons, failed to give Fitzgerald extensions of time to complete training, failed to grant her maternity leave and failed to grant her advance sick leave for use during her pregnancy; and 2. Ms. Fitzgerald's sex was a motivating factor for the Defendant's action(s).

If you find that Ms. Fitzgerald has failed to prove either or both of these propositions by a preponderance of the evidence, than you must find again her on her discrimination claim and in favor of the Defendant. If, on the other hand, you find that Ms. Fitzgerald has proved both propositions by a preponderance of the evidence, then you must find in her favor and against the Defendant.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995). See also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 4 of 23

Instruction No. ___ Ms. Fitzgerald is not required to prove that her gender was the sole or exclusive motivating factor for the Defendant's decision(s). Ms. Fitzgerald must prove, however, that her gender was a motivating factor. That is, 1. But for Ms. Fitzgerald's gender, the Defendant would not have denied her extensions of time to complete training and leave for pregnancy; OR 1. Ms. Fitzgerald's gender was the factor that made a difference in the Defendant's decision to sustain an intolerable and unsafe work environment, scrutinize her conduct, charge her with various rules violations resulting in O.I.A. investigations and actual or threatened discipline, reassign her husband, prevent her return to her work site and force her resignation. In determining whether Ms. Fitzgerald's gender was a "motivating factor" in the Defendant's decision to take any one or more of the above actions, you may consider any statements made or act done or admitted by the Defendant, and all other facts and circumstances in evidence indicating state of mind. An improper motive, if it exists, is seldom directly admitted and may or may not be inferred from the existence of other facts.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004) OR James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir. 1994); Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 5 of 23

Instruction No. ___ Ms. Fitzgerald has alleged that she was subjected to a hostile work environment based upon sexual harassment and her gender in violation of Title VII of the Civil Rights Act of 1964. In order to prove her claim of hostile work environment, Ms. Fitzgerald must prove each of the following: 1. 2. The conduct complained of was unwelcome; The conduct complained of was offensive;

3. The conduct complained of was sexual in nature or directed at Ms. Fitzgerald because of her sex; 4. The conduct complained of was sufficiently severe or pervasive to alter the terms and conditions of Ms. Fitzgerald's employment be creating an abusive working environment; and 5. The Defendant knew or should have known about the conduct to which Ms. Fitzgerald claims she was subjected and failed to implement reasonably prompt and appropriate corrective action.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 29 C.F.R. § 1604.11; Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 6 of 23

Instruction No. ___ In determining whether a work environment is hostile, you may consider some or all of the following factors: $ $ $ $ $ $ $ $ $ The nature and severity of the conduct; Whether the conduct complained of was humiliating; Whether the conduct complained of was repeated or a single incident; Whether the conduct complained of was by a co-worker or a supervisor; The effect of the conduct on Ms. Fitzgerald's mental or emotional state; Whether others joined in the conduct; Whether the conduct was directed at more than one person; The context in which the conduct occurred; Whether the conduct was physically threatening or humiliating or a mere offensive utterance.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); O'Shea v. Yellow Tech. Servs., 185 F.3d 1093, 1097-98 (10th Cir. 1999); Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 7 of 23

Instruction No. ___ In determining whether a hostile work environment existed, you must consider the evidence from the perspective of a reasonable person. This is an objective standard, and you must look at the evidence from the perspective of a reasonable person's reaction to a similar environment under similar circumstances.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Harris v. Forklify Sys., 510 U.S. 17, 21-23 (1993); Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Andrews v. Philadelphia, 895 F.2d 1469, 1483 (3rd Cir. 1990).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 8 of 23

Instruction No. ___ "Unwelcome conduct" means conduct that was not solicited or encouraged by Ms. Fitzgerald and that was regarded as undesirable by Ms. Fitzgerald.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 9 of 23

Instruction No. ___ Regardless of an employee's title, a "supervisor" is an employee with authority to hire, fire, discipline, promote, transfer, or evaluate the performance of other employees, or to effectively recommend such actions.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 10 of 23

Instruction No. ___ A "tangible employment action" means a significant change in employment status, such as hiring firing, layoff, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in wages or benefits. A tangible employment action is not limited to monetary losses of benefits or wages, but it must be more than a mere inconvenience or alteration of job responsibility.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Burlington Industries v. Ellereth, 524 U.S. 742, 761 (1998).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 11 of 23

Instruction No. ___ If you find Ms. Fitzgerald has proven that she was subjected to sexual harassment by coworkers, as opposed to supervisors, you must decide whether the Defendant is responsible for such conduct. The Defendant is responsible for permitting such behavior if Ms. Fitzgerald proves by a preponderance of the evidence that: 1. Management-level employees knew or should have known of the hostile work environment; and 2. The Defendant did not adequately respond to the notice of the hostile work environment.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Adler v. Wal-mart Stores Inc., 144 F.3d 664, 673 (10th Cir. 1998).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 12 of 23

Instruction No. ___ If you find that Ms. Fitzgerald has proven that she was exposed to a hostile work environment by a supervisor, then you must find in favor of Ms. Fitzgerald unless the Defendant proves each of the following by a preponderance of the evidence: 1. The hostile work environment did not result in a tangible employment action;

2. The Defendant maintained an effective complaint procedure which provided employees with reasonable options for reporting unwanted workplace behavior; and 3. Ms. Fitzgerald unreasonably failed to use the complaint procedure or otherwise avoid harm.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Pennsylvania State Police v. Suders, 524 U.S. 129, 211 (2004).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 13 of 23

Instruction No. ___ The Defendant claims that it had legitimate reasons for its actions directed toward Ms. Fitzgerald. Ms. Fitzgerald, on the other hand, claims that the Defendant's asserted reasons are a mere pretext to cover up a discriminatory motive. Ms. Fitzgerald may show that the Defendant's stated reasons for its decisions are pretextual in several ways: 1. Evidence that the stated reasons for the decision are false;

2. Evidence that the Defendant acted contrary to a written agency policy prescribing the action to be taken by the Defendant under the circumstances; or 3. Evidence that the Defendant acted contrary to an unwritten policy or contrary to established agency practice when making the decisions affecting Ms. Fitzgerald. In determining whether the Defendant's stated reasons for the decision are genuine or pretextual, you must examine the facts as the appeared to the person making the employment decision at the time the decision was made.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Townsend v. Lumbermen Mut. Cas. Co., 294 F.3d 1232 (10th Cir. 2002); Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000); Selenkle v. Medical Imaging of Colorado, Inc., 248 F.3d 1249, 1261 (10th Cir. 2001).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 14 of 23

Instruction No. ___ To prove her claim of constructive discharge, Ms. Fitzgerald must show that the Defendant by its illegal discriminatory acts made working conditions so difficult that a reasonable person in Ms. Fitzgerald's position would feel compelled to resign.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 2350 (2004); Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 15 of 23

Instruction No. ___ In reaching your verdict on Ms. Fitzgerald's gender discrimination claim, you should keep in mind that the law requires only that an employer not discriminate against an employee based on gender. The law does not require an employer to use good judgment, to make correct decisions, or even to treat its employees fairly. Therefore in deciding Ms. Fitzgerald's discrimination claim, it is not your function to second-guess the Defendant's decisions, unless you find that the decisions were motivated by illegal discrimination and/or retaliation.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1261 (10th Cir. 2001); Bullington v. United Airlines, Inc. 186 F.3d 1301, 1318 (10th Cir. 1999); Sanchez v. Phillip Morris, Inc., 992 F.2d 244, 247 (10th Cir. 1993).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 16 of 23

Instruction No. ___ Title VII makes it unlawful for an employer to retaliate against a person because that person has engaged in a protected activity under Title VII. To establish a claim of retaliation, Ms. Fitzgerald must prove: 1. That she engaged in protected activity under Title VII;

2. Ms. Fitzgerald suffered an adverse employment action contemporaneously with or subsequent to that protected activity; and 3. action. If you find that Ms. Fitzgerald has proved each of these elements by a preponderance of the evidence, then you must find for Ms. Fitzgerald and against Defendant on this claim. If, on the other hand, you find that Ms. Fitzgerald has failed to prove any one or more of these elements by a preponderance of the evidence, then you must find against her on this claim and in favor of Defendant. There was a causal connection between such protected activity and the adverse

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 2000e-3; Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262-63 (10th Cir. 1998); Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1381 (10th Cir. 1994).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 17 of 23

Instruction No. ___ Protected activities include making a charge of discrimination, harassment or retaliation, or testifying, assisting or otherwise participating in any manner in her own charge of discrimination, harassment or retaliation, investigation, proceeding or hearing under Title VII. Informal, as well as formal, complaints to superiors constitutes protected activity. In this case, Ms. Fitzgerald asserts that she engaged in the following protected activities: Informally complained to supervisors and formally complained to Defendant by filing EEO and MSPB Complaints. Ms. Fitzgerald must prove that she actually participated in protected activities, but Ms. Fitzgerald does not have to prove that the underlying charge, investigation, proceeding or hearing was successful.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 2000e-3(a); Robbins v. Jefferson County School Dist., 186 F.3d 1253 (10th Cir. 1999), abrogated on other grounds by Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998); Suaers v. Salt Lake County, 1 f.3d 1122, 1128 (10th Cir. 1993).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 18 of 23

Instruction No. ___ Protected activities include opposing a practice made unlawful by Title VII, such as expressing a reasonable good faith belief that the employer has engaged in a discriminatory practice. In this case, Ms. Fitzgerald asserts that she engaged in the following protected activities: Informally complained to supervisors and formally complained to Defendant by filing EEO and MSPB Complaints. Ms. Fitzgerald must prove she engaged in these activities to oppose a practice made unlawful by Title VII.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 2000e-3(a); Shinwari v. Raytheon Aircraft Co., 215 F.3d 1337 (10th Cir. 2000), overruled on other grounds by Crumpacker v. Kan. Dept. of Human Resources, 338 F.3d 1163, 1171 (1oth Cir. 2003); Archuleta v. Colo. Dept. of Institutions, 936 F.2d 483, 487 (10th Cir. 1991); Love v. Re/Max, 738 F.2d 383, 385 (10th Cir. 1984).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 19 of 23

Instruction No. ___ An "adverse action" is one that alters the employee's terms, conditions, or privileges of employment, or otherwise affects his or her status as an employee. An adverse action encompasses acts that carry a significant risk of humiliation, retaliatory harassment, damage to reputation, reassignment against employee's wishes, forcing an employee to travel for work, requiring an employee to go through several hoops to obtain severance benefits, and an accompanying harm to future employment prospects. An adverse action, however, does not include a mere inconvenience or personality conflict in the workplace.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 2000e-3(a); Hillig v. Rumsfeld, 381 F.3d 1028, 1031-33 (10th Cir. 2004); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998); Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993); Deavenport v. MCI Communications Corp., 973 F.Supp. 1221, 1227 (D.Colo. 1997).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 20 of 23

Instruction No. ___ Ms. Fitzgerald may establish a causal connection between the protected activity and the adverse action: 1. By demonstrating direct evidence that retaliation was a motivating factor in the employer's decision to take an adverse action, or 2. By demonstrating circumstances raising an inference that retaliation was a motivating factor in the employer's decision to take an adverse action, such as (a) (b) protected conduct closely followed by an adverse action, or proof of any employer efforts to conceal alleged retaliatory conduct.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Wells v. Colo. Dept. of Transportation, 325 F.3d 1205, 1218 (10th Cir. 2003); O'Neal v. Ferguson Construction Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir. 2000); Burrus v. United Tele. Co., 683 F.2d 339, 343 (10th Cir. 1981), cert. denied, 459 U.S. 1071 (1982).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 21 of 23

Instruction No. ___ If you find that the Defendant unlawfully discriminated and/or retaliated against Ms. Fitzgerald on the basis of her gender or protected activity, then you must determine the amount of back pay that Ms. Fitzgerald proved was caused by the Defendant's wrongful conduct. In determining back pay, you must make several calculations: First, calculate the amount of pay and bonuses that Ms. Fitzgerald would have earned had she not been constructively discharged from the date of August 16, 1998 until today's date. Then calculate and add the value of the employee benefits (health, life and dental insurance, vacation leave, etc.) that Ms. Fitzgerald would have received had she not been constructively discharged from the date of August 16, 1998 until the date of trial. Then, subtract from this sum the amount of pay and benefits that Ms. Fitzgerald actually earned from other employment during this time.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, Federal Employment Jury Instructions, § 1:1260; Model Jury Instructions (Civil) Eighth Circuit § 5.02 (1998).

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 22 of 23

Instruction No. ___ If you find that the Defendant unlawfully discriminated and/or retaliated against Ms. Fitzgerald on the basis of her sex and protected activities, then you must determine an amount that is fair compensation for Ms. Fitzgerald's losses. You may award compensatory damages for injuries that Ms. Fitzgerald proved were caused by the Defendant's wrongful conduct. The damages that you award must be fair compensation, no more and no less. You may award damages for any emotional distress, pain, suffering, inconvenience, mental anguish, embarrassment, humiliation, or damage to reputation that Ms. Fitzgerald experienced as a consequence of the wrongful conduct. No evidence of monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is not exact standard for setting the compensation to be awarded for these elements of damages. Any award you make should be fair in light of the evidence presented at trial. You may also reimburse Ms. Fitzgerald for the value of other out-of-pocket losses or expenses, including expenses for past medical bills, expenses for counseling or mental health care, moving expenses, employment search expenses and all other out-of-pocket expenses sought by Ms. Fitzgerald. In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in making an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on speculation or guesswork. On the other hand, the law does not require that Ms. Fitzgerald prove the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.

Authority: The Faculty of Federal Advocates Ad Hoc Committee's Model Employment Law Jury Instructions; and, 42 U.S.C. § 1981a.

Case 1:04-cv-00421-MSK-PAC

Document 94

Filed 02/27/2006

Page 23 of 23

Instruction No. ___ Difficulty or uncertainty in determining the precise amount of any damages does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

Authority: McInnis v. Fairfield Communities, Inc., U.S. District Court Case No. 02-Z-0671 (BNB).