Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1690-WDM-MJW CONAIL CROSS , Plaintiff, v. THE HOME DEPOT, Defendant.
HOME DEPOT=S STIPULATIONS AND OBJECTIONS TO PLAINTIFF'S PROPOSED JURY INSTRUCTIONS
STIPULATED JURY INSTRUCTIONS Defendant Home Depot stipulates to the following of Plaintiff=s jury instructions. $ $ $ $ $ $ $ $ Plaintiff=s No. 2 Plaintiff=s No. 5 (typo in 3rd sentence) Plaintiff=s No. 7 Plaintiff=s No. 8 Plaintiff=s No. 9 Plaintiff=s No. 10 Plaintiff=s No. 11 Plaintiff=s No. 12
OBJECTIONS TO PLAINTIFF=S PROPOSED JURY INSTRUCTIONS Defendant objects to the following Plaintiff=s proposed jury instructions.
Page 2 of 4
Plaintiff=s No. 1. Plaintiff's proposed instruction No. 1 states that this case includes claims for failure to train him and for downgrading his promotability rating. Plaintiff's claim of discriminatory failure to train was previously dismissed by this Court on summary judgment and affirmed by the Tenth Circuit and is no longer at issue in this case. In addition, the fact that Plaintiff was [email protected] (i.e. removed from a promotable category) is not an adverse employment action under 42 USC §1981 nor did the downgrade lead to any adverse employment action prior to August 27, 1999. Second, Plaintiff's claim for discriminatory downgrade was voluntarily dismissed by Plaintiff and should not be included as an actionable event in this case. Plaintiff=s Nos. 3 and 6. See objection to Instruction No. 1. In addition, the definition of "motivating factor" is unnecessary and places undue emphasis on the term. Plaintiff=s No. 4. The McDonnell Douglas burden shifting analysis, including proof of pretext, drops out of consideration once a case is submitted to a jury on the merits. Messina v. Kroblin Transp. Systems, Inc., 903 F.2d 1306, 1308 (10th Cir.1990). The plaintiff's burden of proving pretext in order to avoid summary judgment is not equivalent to the plaintiff's burden to prove intentional discrimination by a preponderance of the evidence in a jury trial. CONCLUSION For all of the foregoing reasons, Defendant requests that the Court sustain Defendant=s objections to Plaintiff=s proposed instructions.
Page 3 of 4
Dated: November 28, 2005
By s/Daniel E. Friesen Daniel E. Friesen HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 Email:[email protected] Attorneys for Defendant The Home Depot
Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on November 28, 2005, I electronically filed the foregoing HOME DEPOT=S STIPULATIONS AND OBJECTIONS TO PLAINTIFF'S PROPOSED JURY INSTRUCTIONS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: William R. Hess, Esq. Email: [email protected]
By s/Patricia Foos Patricia Foos HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 Email: [email protected]