Free Proposed Jury Instructions - District Court of Colorado - Colorado

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Conail Cross v. The Home Depot Jury Instructions Submitted by Defendant Home Depot

Part I.

Defendant's Proposed Introductory Instructions

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1

Nature of the Action Members of the jury, we are about to begin the trial of this case. Before the trial begins, however, there are certain instructions you should have in order to better understand what will be presented to you and how you should conduct yourself during the trial. The party who brings a lawsuit is called Plaintiff. In this action, the plaintiff is Conail Cross. The party against whom the suit is brought is called Defendant. In this action, the defendant is Home Depot. Plaintiff Conail Cross has made a claim under 42 USC '1981, which provides that all persons in the United States shall have the full and equal benefit of all laws as is enjoyed by white citizens. Specifically, Plaintiff claims that he was denied a promotion between August 27, 1997 and [April 15, 1999 or August 27, 1999] by Defendant Home Depot because of his race. Defendant Home Depot denies that it discriminated against Plaintiff on the basis of his race.

Source of Instruction: 42 U.S.C. §1981

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. 2

Standard of Proof The standard of proof in a claim raised under 42 USC '1981 is by a preponderance of the evidence. To establish by a Apreponderance of the evidence@ means to prove that something is more likely so than it is not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared to that opposed to it, has more convincing force, and produces in your mind a belief that what is sought to be proved is more likely true than not true. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.

Source of Instruction: O=Malley, et al., Federal Jury Practice and Instructions, '170.41.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. 3

Plaintiff's Burden The burden of persuasion remains at all times with Plaintiff.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4

In order for Plaintiff to recover on his claim under 42 USC §1981, he has the burden of proving the following essential elements by a preponderance of the evidence: 1. Plaintiff was qualified for promotion to Store Manager between August 27,

1997 and [April 15, 1999 or August 27, 1999]; and 2. Plaintiff's race was a substantial or motivating factor in Defendant's failure

to promote him. If you find that either of the above elements has not been proven by a preponderance of the evidence then your verdict must be for Defendant.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 5

Previous trial During the course of this trial, you may hear references to events that occurred during previous proceedings in this case, including a previous trial of this matter. There was a previous race discrimination trial in this case concerning promotions from April 15, 1999 forward. Mr. Cross voluntarily dismissed those claims and judgment was entered in favor of Home Depot. Afterwards, the Court of Appeals ruled that the relevant time frame was longer than the one applied in the first trial. Therefore, this trial is being held to cover the time period from August 27, 1997 to [April 15, 1999 or August 27, 1999].

Source of Instruction: Kortz v. Guardian Life Ins. Co. of America, 144 F.2d 676 (10th Cir. 1944) (although prior judgment did not have preclusive effect, it was admissible as evidence)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 6

The parties to this lawsuit have agreed to certain facts that you must treat as having been proved. Those facts are: a. Plaintiff is an African-American resident of Colorado who began employment with

Home Depot in August 1988 as a Sales Associate. b. c. Plaintiff was promoted to Assistant Store Manager (ASM) in November 1992. Plaintiff became an Assistant Store Manager (ASM) at Home Depot store No.

1510 located at 7120 North Academy Blvd., Colorado Springs, Colorado in January 1999. d. ASMs have responsibility for several specific departments as well as general

managerial duties and overall store responsibilities. Departments are overseen by Department Heads, who report to the ASMs. e. During the relevant time, Home Depot stores in Colorado generally had between

150-250 employees and between $25-45 million gross annual revenues. f. ASMs are not eligible for promotion to Store Manager in the same store in which

they are an ASM. g. ASMs are required to have a performance review rating of "4" or higher in order

to be considered for promotion to store manager. Mr. Cross had a rating of "4" from August 25, 1998 to August 1999. h. During the time period from August 27, 1997 to [April 15, 1999 or August 27,

1999] 18 Store Manager positions were filled in Colorado.

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i.

On July 30, 1999, Plaintiff was downgraded from a promotable to an

unpromotable category and thereafter was not considered for promotion to Store Manager. j. Home Depot did not promote any ASMs to Store Manager in Colorado from

January 14, 2000 to February 10, 2000. k. l. 1999. m. After February 10, 2000, Plaintiff was no longer interested in becoming a Store Mr. Cross was hired for an indefinite period of time. Cross was not discriminated against in any promotion decision after August 27,

Manager. n. Mr. Cross began a series of medical leaves in May 2000. From that point

forward, he was not capable of becoming a Store Manager. o. Home Depot provides employees with extensive training on a variety of subjects

and encourages its employees to undergo training. p. Mr. Cross completed at least 73 training classes at Home Depot as reflected in

his training log. q. r. On four occasions, Mr. Cross was instructed in writing to seek further training. Mr. Cross's employment application states: "The information given in this application is true in all respects. I agree if the information is found to be false in any respect including omission of information, I will be subject to dismissal without notice at any time."

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 7

Members of the jury: Now, I will give you some preliminary instructions to guide you in your participation in the trial. Duty of Jury It will be your duty to find from the evidence what the facts are. You, and you alone, are the judges of the facts. You will then have to apply to those facts the law as I, the court, will give it to you. You must follow that law whether you agree with it or not. Nothing I may say or do during the course of the trial is intended to indicate, or should be taken by you as indicating, what your verdict should be. Evidence The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits, and any facts the lawyers agree or stipulate to, or that I may instruct you to find. Certain things are not evidence and must not be considered by you, I will list them for you now: 1. Statements, arguments and questions by lawyers are not evidence. 2. Objections to questions are not evidence. Lawyers have an obligation to their clients to make an objection when they believe evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other.

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If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction. 3. Testimony that I have excluded or told you to disregard is not evidence and must not be considered. 4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom. There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. I will give you further instructions on these as well as other matters at the end of the case, but have in mind that you may consider both kinds of evidence. It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness's testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case. Burden of Proof This is a civil case. The plaintiff has the burden of proving his case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what plaintiff claims is more likely true than not. To put it differently, if you were to put plaintiff=s and defendant=s evidence on opposite sides of the scales, plaintiff would have to make the scales tip somewhat on his side. If plaintiff fails to meet this burden, the verdict must be for defendant.

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Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case and you should therefore put it out of your mind. Conduct by the Jury Now, a few words about your conduct as jurors. First, I instruct you that during the trial you are not to discuss the case with anyone, including yourselves and your families, or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. Second, do not read or listen to anything touching on this case in any way. If anyone should try to talk to you about it, bring it to the court's attention promptly. Third, do not try to do any research or make any investigation about the case on your own. Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberation at the end of the case. If you wish, you may take notes to help your recollection. If you do, leave them in the jury room when you leave at night. And remember that they are for your own personal use-they are not to be given or read to anyone else. Course of the Trial The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence. Next, plaintiff will present his witnesses, and defendant may cross-examine them. Then defendant will present his witnesses, and plaintiff may cross-examine them. Plaintiff then

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may have a final opportunity to present some evidence, again subject to the defendant=s cross examination. After that, the attorneys will make their closing arguments to summarize and interpret the evidence for you, and then I will give you instructions on the law. You will then retire to deliberate on your verdict.

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Conail Cross v. The Home Depot Jury Instructions Submitted by Defendant Home Depot

Part II. Defendant's Proposed Closing Instructions

Section A. Liability

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-1

MEMBERS OF THE JURY: Now that you have heard the evidence (and the argument), it becomes my duty to instruct you concerning the rules of law governing this case. It is your duty as jurors to follow the law as I state it to you. You will then apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. You are not to be concerned with the wisdom of any rule of law stated by me. It would be a violation of the oath which you have sworn as jurors to base your verdict on anything other than the law as presented in these instructions and the facts as you find them. Counsel have quite properly referred to some of the governing rules of law in their arguments. If, however, there is any difference between the law as stated by counsel and that stated by the court in these instructions, you are governed by my instructions. As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine what witnesses and what evidence to believe. You resolve conflicts in the testimony. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts; it is yours. You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice or public opinion. The court and the parties expect that you will carefully and impartially consider all of

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evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-2

I do not invite communications from you, but if it becomes necessary during your deliberations to communicate with the court, you may send a note by the court security officer, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court. Upon receipt of a note from you, I will need to convene a meeting with counsel to discuss your question or request. It may well take considerable time and effort to respond. You will note from the oath about to be taken by the court security officer that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Let me know immediately if anyone attempts any such communication. Bear in mind also that you are never to reveal to any person -not even to the court - how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous verdict.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-3

You are the sole judges of the credibility of the witnesses and the weight to be given their testimony. You should take into consideration their means of knowledge, strength of memory and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony; their motives; their intelligence; their ability to observe the matters about which they have testified; whether their testimony has been contradicted or supported by other evidence; their bias, prejudice or interests, if any; their manner or demeanor upon the witness stand; and all other facts and circumstances shown by the evidence which affect the credibility of the witnesses. Based on these considerations, you may believe all, part or none of the testimony of a witness and you may give the testimony such weight, if any, as you think it deserves.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-4

You should not resolve factual issues in the case solely by adding up the number of witnesses who testify on each side of a certain issue. If the jurors believe the testimony of a single witness who testifies about a disputed event, such testimony is enough for you to resolve the factual dispute in accordance with this single witness's version of the event, even though a number of witnesses may have testified to the contrary. The test is not which side brings the greater number of witnesses, or presents the greater quantity of evidence; the test, rather, is which witness or witnesses, and which evidence, appeals to your minds as being most accurate, believable, and otherwise trustworthy.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-5

A witness may be discredited or impeached by contradictory evidence, or by evidence that at some other time the witness has said or done something, or has failed to say or do something which is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars and you may reject part or all of the testimony of that witness or give it such weight as you may think it deserves.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. A-6

In order for Plaintiff to recover on his claim under 42 USC §1981, he has the burden of proving the following essential elements by a preponderance of the evidence: 1. Plaintiff was qualified for promotion to Store Manager between August 27,

1997 and [April 15, 1999 or August 27, 1999]; and 2. Plaintiff's race was a substantial or motivating factor in Defendant's failure

to promote him. If you find that either of the above elements has not been proven by a preponderance of the evidence then your verdict must be for Defendant.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-7

Motivating Factor To determine whether the Defendant intentionally discriminated against the Plaintiff, you must decide whether race was a motivating factor in Defendant=s decision not to promote the plaintiff. It is not enough for Plaintiff to show that Defendant=s conduct had a negative effect on members of Plaintiff=s race. Plaintiff must prove that Defendant was substantially motivated by a racially discriminatory purpose. In other words, you must decide whether the same events would have transpired if the employee had been a different race, and everything else had been the same.

Source of Instruction: Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994); O=Malley, et al., Federal Jury Practice and Instructions, '170.21.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-8

Applicable Time Frame When determining whether Plaintiff was denied a promotion on the basis of his race, you may only consider promotions occurring between August 27, 1997 and [April 15, 1999 or August 27, 1999]. Home Depot is not liable and Plaintiff may not recover for any conduct that occurred before August 27, 1997, or after [April 15, 1999 or August 27, 1999].

Source of Instruction: 42 U.S.C. '2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002); Texas Dep=t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Order on Motion for Summary Judgment in this action, dated December 4, 2002, pages 6-7.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-9

It has been previously determined in this case that Home Depot's decision to promote John "Mike" Hill instead of Mr. Cross in April 1999 and its decision to downgrade Mr. Cross from a promotable to a non-promotable box in July 1999 were not discriminatory. In determining whether Home Depot discriminated against Mr. Cross because of his race you may not consider either of those events.

Source of Instruction: Order by Judge Walker Miller dated Feb 4, 2003; Judgment by Judge Walker Miller dated March 5, 2003; Appeal from the United States District Court for the District of Colorado dated December 8, 2004.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-10

It has also been previously determined in this case that Home Depot did not discriminate against Mr. Cross in any promotion decisions after August 27, 1999. In determining whether Home Depot discriminated against Mr. Cross in this case, you may not base your decision on any promotion decisions after August 27, 1999.

Source of Instruction:

Order by Judge Walker Miller dated Feb 4, 2003; Judgment

by Judge Walker Miller dated March 5, 2003; Appeal from the United States District Court for the District of Colorado dated December 8, 2004.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-11

AQualified@ for Position In order to prove that Defendant discriminated against Plaintiff by failing to promote him because of his race, Plaintiff bears the burden of proving that he was qualified for the position sought. When two candidates are equally qualified in that they both possess the objective qualifications for a position and neither is clearly better qualified, it is within the employer=s discretion to choose among them so long as the decision is not based on unlawful criteria.

Source of Instruction: Simms v. Oklahoma, 165 F.3d 1321, 1329-30 (10th Cir. 1999).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-12

An employer is entitled to select people for promotion whom it considered to be the most qualified. When evaluating candidates, employers may lawfully rely on their subjective assessments of those candidates formed based on interviews. A candidate's poor performance during an interview is a legitimate, non-discriminatory reason for an employer's decision not to hire that candidate.

Source of Instruction:

Bullington v. United Airlines, Inc., 186 F.3d 1301,

1318 (10th Cir. 1999); Wallace v. Beech Aircraft Corp., 87 F. Supp. 2d 1138, 1151 (D. Kan. 2000); Jones v. Eaton Corp., No. 00-3400, 2002 WL 1360380 (10th Cir. June 24, 2002) (unpublished); Colon-Sanchez v. Marsh, 733 F.2d 78 (10th Cir. 1984).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-13

Employer=s Legitimate Nondiscriminatory Reasons for Employment Decision You must consider any legitimate, nondiscriminatory reason or explanation provided by Defendant for its decision. If you determine that Defendant has stated such a reason, then you must decide in favor of the Defendant unless the Plaintiff proves by a preponderance of the evidence that the stated reason was not the true reason but was only a pretext (an excuse) for Defendant=s discrimination against Plaintiff because of his race.

Source of Instruction: O=Malley, et al., Federal Jury Practice and Instructions, '170.52.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-14

Pretext Once Defendant has offered a nondiscriminatory reason or rationale for not promoting Plaintiff, Plaintiff must prove, by a preponderance of the evidence, that Defendant=s proffered reason was only a pretext (an excuse) for discrimination. You are not to consider whether Defendant=s reason showed poor or erroneous judgment. You are not to consider Defendant=s wisdom. However, you may consider whether Defendant=s reason is merely a cover-up for discrimination.

Source of Instruction: Heno v. Sprint/United Management Company, 208 F.3d 847 (10th Cir. 2000); O=Malley, et al., Federal Jury Practice and Instructions, '170.22.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-15

Business Judgment Plaintiff must show more than that Defendant made an unwise business decision or an unnecessary personnel move, or acted arbitrarily. Errors in an employer=s business judgment are not, standing alone, evidence of race discrimination.

Source of Instruction: Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 n. 3 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-16

Employer=s Policies and Procedures The mere fact that an employer fails to follow its own internal procedures does not necessarily suggest the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for an employment decision are a pretext (an excuse) for unlawful discrimination.

Source of Instruction: Randle v. City of Aurora, 69 F.3d 441, 444 (10th Cir. 1995).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-17

Statements Made in the Workplace In order for race-related statements in the workplace to support a claim for race discrimination, those statements must (1) be made by a person who made the personnel decision at issue; and (2) relate to that personnel decision. The personnel decision at issue in this case is whether Defendant failed to promote the Plaintiff on the basis of his race. If race-related statements in the workplace were not made by a decision-maker or did not relate to the personnel decision at issue, they cannot support a claim of race discrimination.

Source of Instruction: Heno v. Sprint/United Management Company, 208 F.3d 847 (10th Cir. 2000); McKnight v. Kimberly Clark Corp., 149 F.3d 1125 (10th Cir. 1998); Figures v. Board of Pub. Utils., 967 F.2d 357 (10th Cir. 1992).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-18

Statistics Where Plaintiff uses statistical evidence to challenge an employer=s promotion practices, the evidence must demonstrate that individuals of Plaintiff=s race had qualifications and experience comparable to individuals of a different race, and that the individuals in both groups were similarly situated in other relevant respects. If the evidence does not eliminate non-discriminatory explanations for the difference in treatment or does not present statistical data of a large enough sample to be significant, it cannot support a claim of race discrimination.

Source of Instruction: Bazemore v. Friday, 478 U.S. 385, 398 (1986); Fallis v. KerrMcGee Corp., 944 F.2d 743, 746 (10th Cir. 1991); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994); Housley v. Boeing Company, 177 F.Supp.2d 1209, 1221 (D.Kan. 2001).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-19

In order to show discrimination, Plaintiff must show that he was treated differently than similarly situated employees of a different race. A similarly situated employee is one who deals with the same supervisor and is subject to the same standards governing performance evaluation and discipline.. You should also compare the relevant employment circumstances, such as work history and company policies applicable to the plaintiff and the intended comparable employees in determining whether they are similarly situated.

Source of Instruction: Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 2000); Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. A-20

42 U.S.C. §1981 imposes no requirement that the racial composition of an employer's workforce reflect the racial composition of the population of the community. Rather, the proper comparison is between the racial composition of the employer's workforce and the racial composition of the qualified applicants for those positions.

Source of Instruction: Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); International Brotherhood of Teamsters v. United States, 431 U.S. 324 (97 S.Ct. 1843, 52 L.Ed.2d 396),

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-21

Lay Witness Opinion As the jury, you must reach your own opinion about whether the Plaintiff has proven by a preponderance of the evidence that he was unlawfully discriminated against. You should not substitute the opinion of any witness for your own decision about whether or not there was unlawful discrimination.

Source of Instruction: Fed.R.Evid. 701; Gross v. Burggraf Construction Co., 53 F.3d 1531 (10th Cir. 1995); Hester v. Bic Corporation, 225 F.3d 178 (2nd Cir. 2000); Mitroff v. Xomox Corp., 797 F.2d 271 (6th Cir. 1986).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. A-22

Plaintiff=s Burden The burden of persuasion remains at all times with Plaintiff.

Source of Instruction: St. Mary=s Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (citing Texas Dep=t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

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Conail Cross v. The Home Depot Jury Instructions Submitted by Defendant Home Depot

Part II. Defendant's Proposed Closing Instructions Section B. Damages

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-1

I will now instruct you on the proper measure of damages, if any, to be recovered by Plaintiff should you find in favor of him on his claim. The fact that I will instruct you on the proper measure of damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict in this case. These instructions are given only for your guidance, in the event that you should find in favor of Plaintiff on the question of liability in accordance with the other instructions. If you should find for Defendant, these instructions regarding damages should be disregarded.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-2

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 fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guess work.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-3

Proximate Cause In order to award damages to the Plaintiff, you must first find that the Defendant=s discrimination proximately caused the Plaintiff=s damages. Damages are proximately caused by discrimination whenever it appears from the evidence that discrimination played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the discrimination.

Source of Instruction: O=Malley, et al., Federal Jury Practice and Instructions, '170.42; Restatement of the Law Second Torts 2d, ' 430 ANecessity of Adequate Causal Relation.@

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-4

Causation of Emotional Distress - Preceding Cause If you find that Defendant=s discriminatory action is only partially responsible for Plaintiff=s emotional harm or that part of Plaintiff=s emotional harm was caused by a prior employer and not by Defendant, your damage award must be reduced accordingly.

Source of Instruction: Restatement of Torts (Second) ''440, 441; Merriweather v. Family Dollar Stores of Ind, Inc., 103 F.3d 576, 580 (7th Cir. 1996)

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-5

Mitigation of Damages Plaintiff is required to make every reasonable effort to minimize or reduce his own damages. If you determine that Plaintiff is entitled to damages, you must reduce those damages by (1) what Plaintiff earned; and (2) what Plaintiff could have earned by reasonable effort during the period from the discrimination until the date of trial. You must decide whether Plaintiff acted reasonably in not seeking or accepting a particular job. If you determine Plaintiff did not make reasonable efforts to obtain another similar job, you must not compensate Plaintiff for any portion of his damages resulting from his failure to make reasonable efforts to reduce his own damages. You must decide whether Plaintiff acted reasonably in connection with his own health care. If you determine Plaintiff did not make reasonable efforts to help himself with regard to his own health care, you must not compensate Plaintiff for any portion of his damages resulting from his failure to make reasonable efforts to reduce his own damages.

Source of Instruction: O=Malley, et al., Federal Jury Practice and Instructions, '170.65.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-6

Speculative Damages The Plaintiff may not recover for damages that are too speculative or remote or impossible to ascertain.

Source of Instruction: Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068 (10th Cir. 2001); Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257 (10th Cir. 1995).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-7

After-Acquired Evidence Once an employer learns about employee wrongdoing such as resume or application fraud that would have caused the employer to legitimately discharge the Plaintiff (Aafter-acquired evidence@), Plaintiff=s remedies must be limited to a calculation of backpay from the date of an unlawful adverse employment action to the date the resume or application fraud was discovered by the Defendant. If you find that Plaintiff committed resume or application fraud which would have resulted in Plaintiff=s termination on those grounds alone, Plaintiff cannot recover any damages after the date Defendant learned of Plaintiff=s wrongdoing.

Source of Instruction: McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362-363 (1995).

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-8

Compensatory Damages If you find that Defendant engaged in intentional discrimination, you may award Plaintiff compensatory damages for Afuture pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.@ However, compensatory damages shall not include front pay, backpay, or interest on backpay. You must not engage in any speculation, guess, or conjecture, and you must not award any compensatory damages by way of punishment or through sympathy.

Source of Instruction: Civil Rights Act of 1991, '' 1977A(b)(2) and 1977A(b)(3), 42 U.S.C. ''1981a(b)(2) and 1981a(b)(3) (1998), respectively; O=Malley, et al., Federal Jury Practice and Instructions, '170.60.

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DEFENDANT=S PROPOSED JURY INSTRUCTION NO. B-9

Punitive Damages Plaintiff may recover punitive damages under 42 USC '1981 against a defendant employer if Plaintiff demonstrates that the defendant engaged in a discriminatory practice with malice or with reckless indifference of his federally protected rights. An employer acts with malice or reckless indifference if it is motivated by an evil motive or intent, a reckless or callous indifference to the federally protected rights of others and a criminal indifference to the employer=s civil obligations. However, an employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where those acts by such employees are contrary to the employer=s own good faith efforts to comply with the law by implementing policies and programs designed to prevent such unlawful discrimination in the workplace. If you find that the Defendant made good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination, you may not award punitive damages.

Source of Instruction: Civil Rights Act of 1991, §1977A(b)(1), 42 U.S.C. '1981a(b)(1) (1998); Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999); O=Malley, et al., Federal Jury Practice and Instructions, '170.64.

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DEFENDANT'S PROPOSED INSTRUCTION NO. B-10

Attorney's fees determined by Court 42 U.S.C. §1981 also provides that if Plaintiff prevails on his claim for race discrimination, he may recover his reasonable attorney's fees. However, those fees, if any, are determined by the Court after you have rendered your verdict. Therefore, you should not award any additional damages to Mr. Cross to compensate him for attorney's fees.

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Conail Cross v. The Home Depot Jury Instructions Submitted by Defendant Home Depot

Part III. Verdict Form

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Verdict Form 1. Do you find by a preponderance of the evidence: a. That Home Depot intentionally discriminated against Mr. Cross because of

his race by not promoting him to Store Manager between August 27, 1997 and [April 15, 1999 or August 27, 1999]; AND b. That but for his race Mr. Cross would have been promoted? Yes _______ No ________

If you answer ANo,@ sign the verdict form below and do not complete the remaining questions.

2. If you answered AYes@ to question 1, do you find by a preponderance of the evidence that Home Depot=s decision not to promote Mr. Cross to Store Manager between August 27, 1997 and August 27, 1999, caused him actual damages? Yes _______ No ________

If you answered ANo,@ sign the verdict form below and do not complete the remaining questions.

3. If you answered AYes@ to question 2, please set forth below the amount of damages you are awarding to Mr. Cross. a. b. Economic Losses (not including lost wages) $__________

Non-Economic Losses (e.g., emotional distress) $__________ Total Damages $__________

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4. If you answered AYes@ to question 2, do you find: a. That Home Depot made good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace; AND b. The discriminatory acts of Home Depot employees were contrary to Home Depot=s good faith efforts to comply with the law? Yes _______ No ________

5. If you answered ANo@ to question 4, set forth the amount of money, if any, you are awarding to Mr. Cross, against Home Depot, as punishment for Home Depot=s actions. $ _________________

SO SAY WE ALL:

___________________________________ Foreperson

Dated:__________