Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:01-cv-01690-WDM-MJW

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Filed 11/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-WM-01690 (MJW) CONAIL CROSS, Plaintiff, v. THE HOME DEPOT Defendant. PLAINTIFF'S OBJECTIONS TO DEFENDANT'S PROPOSED JURY INSTRUCTIONS

Comes now Plaintiff Conail Cross and objects to the Defendant's Proposed Jury Instructions as follows:

1. Instruction No. 1: The language does not conform to Judge Miller's June 27, 2005 Order which states that "Plaintiff may base his Section 1981 claim on events from August 27, 1997 until August 27, 1999." There are no restrictions or conditions. In addition, Plaintiff believes that the term "events" encompasses all adverse employment actions, (referred to as "actionable events" by the court of appeal; See, e.g., Opinion at page 16: "Applying the proper four-year statute of limitations, the court should have permitted Mr. Cross to include in his Section 1981 claim any actionable events taking place after August 27, 1997."). Therefore, it would be better for the instruction to describe the claim as one for failure to promote to store manager positions filled during the relevant time

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period; failure to consider or interview Plaintiff for all or some of such positions; for unlawful downgrading; and for denying Plaintiff appropriate training. Plaintiff's proposed Instruction No. 1 accomplishes this. 2. Instruction No. 3: The burden of persuasion does not remain at all times with Plaintiff. The plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case. Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132 (1989). Once the Plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the employer must present evidence of a legitimate, nondiscriminatory reason for its action. Ibid. 3. Instruction No. 4: The language does not conform to Judge Miller's June 27, 2005 Order which states that "Plaintiff may base his Section 1981 claim on events from August 27, 1997 until August 27, 1999." There are no restrictions or conditions. In addition, Plaintiff believes that the term "events" encompasses all adverse employment actions, (referred to as "actionable events" by the court of appeal; See, e.g., Opinion at page 16: "Applying the proper four-year statute of limitations, the court should have permitted Mr. Cross to include in his Section 1981 claim any actionable events taking place after August 27, 1997."). Therefore, it would be better for the instruction to describe the elements of the claim as failure to promote to store manager positions filled during the relevant time period; failure to consider or interview Plaintiff for all or some of such positions; for unlawful downgrading; and for denying Plaintiff appropriate training. Plaintiff's proposed Instruction No. 3 accomplishes this.

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4. Instruction No. 5: This is an extremely misleading and prejudicial instruction that neither reflects Judge Miller's June 27, 2005 Order or the law of the case as contained in the 10th Circuit's opinion. See, e.g., Opinion at page 16: "Applying the proper four-year statute of limitations, the court should have permitted Mr. Cross to include in his Section 1981 claim any actionable events taking place after August 27, 1997." The jury in this trial will be determining whether or not Home Depot is liable under Section 1981 for any actionable events occurring between August 27, 1997 and August 27, 1999; and there is no issue preclusion per the trial and appellate courts' orders and opinions. 5. Instruction No. 6: Plaintiff has not and does agree and will not stipulate to the facts stated in: f, g, h, n.. 6. Instruction No: A-6: The language does not conform to Judge Miller's June 27, 2005 Order which states that "Plaintiff may base his Section 1981 claim on events from August 27, 1997 until August 27, 1999." There are no restrictions or conditions. In addition, Plaintiff believes that the term "events" encompasses all adverse employment actions, (referred to as "actionable events" by the court of appeal; See, e.g., Opinion at page 16 : "Applying the proper four-year statute of limitations, the court should have permitted Mr. Cross to include in his Section 1981 claim any actionable events taking place after August 27, 1997."). Therefore, it would be better for the instruction to describe the elements of the claim as failure to promote to store manager positions filled during the relevant time period; failure to consider or interview Plaintiff for all or some

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of such positions; for unlawful downgrading; and for denying Plaintiff appropriate training. Plaintiff's proposed Instruction No. 3 accomplishes this. 7. Instruction No. A-7: Federal Jury Practice and Instructions, Section 170.21, cited by Defendant, does not contain the term "substantially" motivated by a racially discriminatory purpose; only motivated. 8. Instruction No. A-8: Under Judge Miller's June 27, 2005 Order it is clear that the relevant time period is August 27, 1997 to August 27, 1999. 9. Instruction No. A-9: There is no issue preclusion based on the previous trial, per Judge Miller's June 27, 2005 Order and the law of this case under the 10th Circuit's Opinion. The jury in this trial will be determining whether or not Home Depot is liable under Section 1981 for any actionable events occurring between August 27, 1997 and August 27, 1999. In addition, and with respect to the Mike Hill promotion, Mr. Cross will be presenting evidence that Assistant Managers may indeed be and have been made store manager in the same store they were Assistant Manager. 10. Instruction No. A-10: This instruction is unduly prejudicial and inflammatory. The law of the case is that this trial concerns actionable events between August 27, 1997 and August 27, 1999. The jury does not and should not be instructed otherwise. 11. Instruction No. A-12: The case of Colon-Sanchez v. Marsh, 733 F. 2d 78 (10th Cir. 1984) actually stands for the proposition that procedural irregularities and use of subjective criteria may be relevant to and assist a plaintiff in showing that an employer's proffered legitimate, non-discriminatory reasons for decisions were pretext for discrimination. Therefore, the instruction does not state the law correctly.

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12. Instruction No. A-14: Federal Jury Practice and Instructions, Section 170.22, should be given in full, per Plaintiff's Proposed Instruction No. 4 as it represents a more accurate and fair description of the term "Pretext". 13. Instruction No. A-16: If this instruction is given, it should characterize the law correctly, which is that an employer's failure to follow its own internal procedures may be relevant to and assist a plaintiff in showing that an employer's proffered legitimate, non-discriminatory reasons for decisions were pretext for discrimination. Colon-Sanchez v. Marsh, 733 F. 2d 78 (10th Cir. 1984). 14. Instruction No. A-17: This is an incorrect statement of the law. The case cited to support it, Kendrick v. Penske Transportation Services, Inc., 220 F. 3d 1220 (10th Cir. 2000) actually states the opposite. ("Relying on our decisions in Flasher, Aramburu, and Elmore, the district court erroneously required Kendrick to show....Penske treated similarly-situated nonminority employees differently."). Rather, the essential elements of Plaintiff's claim are stated in Plaintiff's Proposed Instruction No. 3. 15. Instruction No. A-22: The burden of persuasion does not remain at all times with Plaintiff. The plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case. Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132 (1989). Once the Plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the employer must present evidence of a legitimate, nondiscriminatory reason for its action. Ibid.

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16. Instruction No. B-4: This instruction is unnecessary and only serves to confuse. Proximate cause and the amount of damages which are proper are already adequately addressed in Defendant's Proposed Instruction No. B-3 and in Plaintiff's Proposed Instructions Nos. 8 and 9. 17. Instruction No. B-5: Plaintiff's Proposed Instruction No. 12 contains a complete, and fairer, statement of mitigation of damages as contained in Federal Jury Practice and Instructions, Section 170.65. The last paragraph concerning Plaintiff's actions in relation to his own health care is confusing. The issue of Plaintiff's physical, mental and emotional health as an element of damages are already adequately addressed in Plaintiff's Proposed Instructions Nos. 8 and 9. 18. Instruction No. B-7: This instruction contains a gross misstatement of the holding in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362-363 (1995). Indeed, the Supreme Court warned that "the proper boundaries of remedial relief in cases of this type must be addressed on a case by case basis"; and cautioned that any restrictions on remedies must be balanced against the vindication of any discriminatory conduct. Thus, the court stated "The private litigant who seeks redress for his or her injuries vindicates" the objectives of compensating employees for injuries caused by prohibited discrimination and deterring employers from engaging in such discrimination, and that after acquired evidence of wrongdoing should not bar all relief for such injuries. The court also stated that where an employer seeks to rely on after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of it at such time.

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Moreover, such an instruction as written would be especially prejudicial in this case as Plaintiff will be putting on evidence that Defendant actually reassured Plaintiff in the early 1990's that it would not be using any information relating to prior employment history against him when it discovered and/or asked for such information in connection with its defense of Plaintiff in a sexual harassment action. Instruction No. B-8: The instruction is confusing as written because it may be taken to mean that Plaintiff cannot be awarded back pay at all, which is not so. Damages are adequately addressed by Plaintiff's Proposed Instructions Nos. 9 and 10. 20. Instruction No. B-9: Plaintiff does not believe there is support for the statement that there needs to be "criminal indifference" to the employer's civil obligations" in order to award punitive damages. 42 U.S.C. Section 1981a(b)(1) does not state that and it is not contained in the Federal Jury Practice and Instructions, Section 170.64, which has been more fully re-stated in Plaintiff's Proposed Jury Instruction No. 11. Indeed, in Kolstad v. American Dental Association, 119 S. Ct. 2118 (1999), cited by Defendants, the Supreme Court took great pains to flesh out the meaning of the terms "malice" and "reckless indifference" as they should be applied in discrimination cases, stating that these terms "pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that is it engaging in discrimination". The Court concluded that in the context of Section 1981a, "an employer must at least discriminate in the face of a perceived risk that is actions will violate federal law to be liable in punitive damages." That this is the standard should be clear in any instruction given to the jury.

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21.

Verdict Form: Plaintiff requests that the Court use one of the forms proposed by

Plaintiff. In the alternative, Plaintiff objects to the form proposed by Defendant in that Section one is not in accord with the Court's June 27, 2005 order; in that Section 3 does not contain a category for back pay; and in that the Form does not permit the jury to make a finding and give awards for the July, 1999 downgrade; for the failure to give appropriate training; and for the failure to consider or interview Mr. Cross for the various store manager positions.

DATED: November 23, 2005

s/William R. Hess WILLIAM R. HESS 5455 Wilshire Blvd. Suite 2100 Los Angeles, CA 90036 (323)931-7330 (fax)(323)931-7990 E-mail:[email protected] Attorney for Plaintiff

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE I hereby certify that on November 23, 2005 I electronically filed the foregoing Plaintiff's Objections To Defendant's Proposed Jury Instructions with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

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Daniel Ernest Friesen [email protected] William R. Hess [email protected]

s/William R. Hess WILLIAM R. HESS 5455 Wilshire Blvd. Suite 2100 Los Angeles, CA 90036 (323)931-7330 (fax)(323)931-7990 E-mail:[email protected] Attorney for Plaintiff

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