Free Proposed Jury Instructions - District Court of Colorado - Colorado


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

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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 PROPOSED JURY INSTRUCTIONS

Comes now Plaintiff Conail Cross and submits the attached Proposed Jury Instructions for the jury trial in this case set for December 5, 2005:

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INSTRUCTION NO. 1

Nature of the Action

Plaintiff Conail Cross has made a claim under 42 U.S.C. Section 1981, the Federal Civil Rights statute that prohibits employers from discriminating against employees in the terms and conditions of their employment because of the employee's race. Specifically, plaintiff Conail Cross claims Home Depot violated the statute on many occasions when he was not promoted to store manager, was generally denied promotional opportunity by not being considered or interviewed for such positions, was downgraded, and was not given appropriate training because of his race. Defendant The Home Depot denies that it discriminated against plaintiff in any way.

3C Fed. Jury Prac. & Instr. 170.10 (5th ed.)
42 U.S.C.A. 1981;

Abuan v. Level 3 Communications, Inc. (C.A. 10 2003) 353 F. 3d 1158 (Tenth Circuit employs liberal definition of "adverse employment action" and takes a case by case approach); Garcia v. Pueblo Country Club (C.A. 10 2002) 299 F. 3d 1233, 1241 (Conduct constitutes adverse employment action when it results in a significant change in employment status, such as failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.)

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INSTRUCTION NO. 2 42 U.S.C. Section 1981: 42 U.S. C. Section 1981 provides as follows: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same rights in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) Definition For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

3C Fed. Jury Prac. & Instr. 170.10 (5th ed.) See 42 U.S.C.A. 1981

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INSTRUCTION NO. 3 Elements of Plaintiff's Claim

In order for plaintiff to establish his claim against defendant, plaintiff has the burden of proving by a preponderance of the evidence that defendant intentionally discriminated against plaintiff . That is, plaintiff's race must be proven to have been a motivating factor in any of defendant's decisions not to promote plaintiff, not to consider or interview him for store manager positions, to downgrade plaintiff, and to not give him appropriate training. Direct evidence would include statements showing a discriminatory motivation for the defendant's treatment of the plaintiff. Indirect or circumstantial evidence would include proof of a set of circumstances sufficient to create a reasonable inference that race was a motivating factor in the defendant's treatment of plaintiff . Your verdict must be for plaintiff and against defendant if all the following have been proved by a preponderance of the evidence: First: Defendant failed to promote plaintiff; failed to consider or interview him for store manager positions; downgraded plaintiff and/or did not give him appropriate training. and Second: Plaintiff's race was a motivating factor in defendant's decisions and conduct. The mere fact that plaintiff is African American is not sufficient, in and of itself, to establish plaintiff's claim under the law. If either of the above two elements has not been proved by a preponderance of the evidence, you must decide in favor of the defendant and you do not have to consider the plaintiff's claim any further. "Motivating factor" means that the evidence must show that, but for plaintiff's race, plaintiff would have been promoted, considered or interviewed for store manager positions, downgraded, or given appropriate training. The phrase "motivating factor" does not mean that it was the only motivation for defendant's decisions. However, it must have been a factor that actually led to any of the decisions. In showing that plaintiff's race was a motivating factor, plaintiff is not required to prove that plaintiff's race was the sole motivation or even the primary motivation for defendant's decisions. Plaintiff need only prove that race played a significant part in the defendant's decision even though other factors may also have motivated defendant

3C Fed. Jury Prac. & Instr. 170.20 (5th ed.) Abuan v. Level 3 Communications, Inc. (C.A. 10 2003) 353 F. 3d 1158 (Tenth Circuit employs liberal definition of "adverse employment action" and takes a case by case approach); Garcia v. Pueblo Country Club (C.A. 10 2002) 299 F. 3d 1233, 1241 (Conduct constitutes adverse employment action when it results in a significant change in employment status, such as failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.) 4

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INSTRUCTION NO. 4

Pretext

Plaintiff may introduce evidence that defendant's articulated reason for defendant's action is a pretext for discrimination. When you consider plaintiff's evidence of pretext, remember that the relevant question is whether defendant's reason was not the real reason for defendant's actions. 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. You may consider whether defendant's reasons are consistent with defendant's own policies and rules and whether defendant has applied these policies and rules uniformly. You should also carefully evaluate any subjective reasons defendant has asserted for defendant's actions. Plaintiff has the burden to persuade you by a preponderance of the evidence that defendant took action against plaintiff because of plaintiff's race. If you do not believe defendant's explanations, you may, but are not required to, infer that that plaintiff has satisfied plaintiff's burden of proof that defendant intentionally discriminated against plaintiff because of plaintiff's race.
3C Fed. Jury Prac. & Instr. 170.22 (5th ed.) When articulating a legitimate, nondiscriminatory reason for its action, the defendant is only required to introduce competent evidence that creates a question of fact as to whether the proffered reason or race was the motivating factor. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the defendant meets this burden, the plaintiff must persuade the trier of fact of the defendant's discriminatory intentions by showing that the defendant's proffered reason was merely a pretext for race discrimination or by proving it more likely true than not true that race motivated the employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

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INSTRUCTION NO. 5

Direct and Indirect Evidence Generally speaking, there are two types of evidence presented during a trial-- direct evidence and indirect evidence. "Direct evidence" is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. "Indirect or indirect" evidence is proof of a chain of facts and circumstances indicating the existence or nonexistence of a fact. As a general rule, the law makes no distinction between the weight or value to be given to either direct or indirect evidence. Nor is a greater degree of certainty required of indirect evidence. You are simply required to find the facts in accordance with the preponderance of all the evidence in the case, both direct and indirect.
3C Fed. Jury Prac. & Instr. 170.31 (5th ed.)

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INSTRUCTION NO. 6

Motivating Factor "The term 'motivating factor' means a consideration that moved defendant toward defendant's decision." 3C Fed. Jury Prac. & Instr. 170.32 (5th ed.)

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INSTRUCTION NO. 7

Preponderance of the Evidence

To "establish by the preponderance 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.

3C Fed. Jury Prac. & Instr. 170.41 (5th ed.)

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INSTRUCTION NO. 8

Proximate Cause

An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence that the act or failure to act 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 act or omission.

3C Fed. Jury Prac. & Instr. 170.42 (5th ed.)

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INSTRUCTION NO. 9

Compensatory Damages

If you find in favor of plaintiff under Instruction No. 3 , then you must award plaintiff such sum as you find by the preponderance of the evidence will fairly and justly compensate plaintiff for damages you find plaintiff sustained as a direct result of defendant's conduct as described in Instruction No. 3. Damages include wages or fringe benefits you find plaintiff would have earned in plaintiff's employment with defendant if it had not discriminated against him, minus the amount of earnings and benefits from other employment received by plaintiff during that time. Damages also may include mental and emotional distress, humiliation, and embarrassment, physical injury and suffering, interference with marital relations, lost job opportunity, and other economic loss sustained as a direct result of defendant's conduct. When considering the amount of monetary damages to which plaintiff may be entitled, you should consider the nature, character, and seriousness of any pain and suffering, inconvenience, mental anguish, or loss of enjoyment of life plaintiff experienced. You must also consider its extent or duration, as any award you make must cover the damages endured by plaintiff since the wrongdoing, to the present time, and even into the future if you find as fact that the proofs presented justify the conclusion that plaintiff's emotional stress and its consequences have continued to the present time or can reasonably be expected to continue in the future. Remember, you must not engage in any speculation, guess, or conjecture. 3C Fed. Jury Prac. & Instr. 170.60 (5th ed.) Compensatory damages are recoverable under Section 1981. See 42 U.S.C.A. 1981(a). See Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975) (individual who establishes a cause of action under Section 1981 is entitled to both equitable and legal relief, including compensatory, and under certain circumstances, punitive damages). Compensatory damages may include emotional distress and humiliation as well as out-of-pocket costs. See, e.g., Wade v. Orange County Sheriff's Office, 844 F.2d 951, 955 (2d Cir.1988); Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1121-22 (3d Cir.1988), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989); Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289, 300 (7th Cir.2000); Seaton v. Sky Realty Co., 491 F.2d 634, 636 (7th Cir.1974) (Section 1982); Block v. R.H. Macy & Co., 712 F.2d 1241, 1244 (8th Cir.1983); Johnson v. Hale, 13 F.3d 1351, 1352-53 (9th Cir.1994) (Section 1982); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir.1985). See also Jackson v. Wheatley School Dist. No. 28, 464 F.2d 411, 413 (8th Cir.1972) (teachers discharged for racially discriminatory reasons could be awarded damages for expenses incurred in seeking other employment and for lost earnings from and after the date of discharge).

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INSTRUCTION NO. 10

Back Pay If you determine defendant discriminated against plaintiff then you must determine the amount of damages that defendant's actions have caused plaintiff . You may award as actual damages an amount that reasonably compensates plaintiff for any lost wages and benefits, taking into consideration any increases in salary and benefits, including pension, that plaintiff would have received had plaintiff not been discriminated against.
3C Fed. Jury Prac. & Instr. 170.61 (5th ed.)

The right to equitable pay under Section 1981 is co-extensive with the remedies provided by Title VII of the Civil Rights Act of 1964. Boles v. Union Camp Corp., 57 F.R.D. 46, 52 (S.D.Ga.1972). Cf. Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 472 (5th Cir.1970). Once a court has determined that a plaintiff has sustained economic loss from a discriminatory employment practice, back pay should normally be awarded unless special circumstances are present. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 252-53 (5th Cir.1974), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) (Title VII); Lengen v. Department of Transp., 903 F.2d 1464, 1468 (11th Cir.1990) (Rehabilitation Act). Accord Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir.1979) (Title VII).

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INSTRUCTION NO. 11

Punitive Damages Plaintiff claims the acts of defendant were done with malice or reckless indifference to plaintiff's federally protected rights so as to entitle plaintiff to an award of punitive damages in addition to compensatory damages. In some cases punitive damages may be awarded for the purpose of punishing a defendant for its wrongful conduct and to deter others from engaging in similar wrongful conduct. 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. An award of punitive damages would be appropriate in this case only if you find for plaintiff and then further find from a preponderance of the evidence: First: That a higher management official of defendant personally acted with malice or reckless indifference to plaintiff's federally protected rights, and Second: That defendant itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace. If you find that punitive damages should be assessed against defendant , you may consider the financial resources of defendant in fixing the amount of such damages. [Punitive damages must bear a reasonable relationship to the plaintiff's actual injury. However, there is no simple way to link punitive to compensatory damages. In determining a reasonable relationship to the actual injury, you must consider all relevant factors. These include: 1. The impact or severity of defendant's conduct. 2. The amount of time defendant conducted itself in this manner. 3. The amount of compensatory damages. 4. The potential profits defendant may have made from defendant's conduct. 5. The attitudes and actions of defendant's top management after the misconduct was discovered. 6. The effect of the damages award on defendant's financial condition. 3C Fed. Jury Prac. & Instr. 170.64 (5th ed.) In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), the Supreme Court held that a plaintiff in a Section 1981 action is entitled to punitive damages "under certain circumstances." See also Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir.1970). In Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), the Supreme Court held that plaintiffs are not required to show egregious or outrageous discrimination in order to recover punitive damages. Kolstad v. American Dental Association, 527 U.S. 526, 534-35, 119 S.Ct. 2118, 2124, 144 L.Ed.2d 494 (1999) (Section 1981 and Title VII).

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INSTRUCTION NO. 12

Mitigation of Damages

Plaintiff must make every reasonable effort to minimize or reduce plaintiff's damages for loss of compensation by seeking employment. This referred to as "mitigation of damages." Defendant must prove by a preponderance of the evidence that plaintiff failed to mitigate plaintiff's damages for loss of compensation. If you determine plaintiff is entitled to damages, you must reduce these damages by 1. what plaintiff earned and 2. what plaintiff could have earned by reasonable effort during the period from plaintiff's discharge until the date of trial. Plaintiff must accept employment that is "of a like nature." In determining whether employment is "of a like nature," you may consider 1. the type of work, 2. the hours worked, 3. the compensation, 4. the job security, 5. the working conditions, and 6. other conditions of employment. 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 decide whether any damages resulted from plaintiff's failure to do so. You must not compensate plaintiff for any portion of plaintiff's damages resulting from plaintiff's failure to make reasonable efforts to reduce plaintiff's damages.
(

3C Fed. Jury Prac. & Instr. 170.65 (5th ed.)

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INSTRUCTION NO. 13

General Verdict Form On the discrimination claim of plaintiff as submitted in Instruction No. 3, we find in favor of (check one) [ ] Plaintiff _______ or [ ] Defendant _______. Complete the following paragraphs only if the above finding is in favor of plaintiff _______. If the above finding is in favor of defendant _______, have your foreperson sign and date this form because you have completed your deliberation on this claim. We find plaintiff's damages as defined in Instruction No. 9 to be: $_______ (stating the amount or, if none, write the word "none") (stating the amount, or if you find that plaintiff's damages have no monetary value, set forth a nominal amount such as $1.00). We assess punitive damages against defendant _______, as submitted in Instruction No. 11, as follows: $_______ (stating the amount or, if none, write the word "none").

3C Fed. Jury Prac. & Instr. 170.70 (5th ed.)
See 42 U.S.C.A. 1981.

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INSTRUCTION NO. 14

Special Verdict Form Do you find from a preponderance of the evidence: 1. That plaintiff _______ was: a. denied a promotional opportunity by defendant _______? Answer Yes or No _______ b. denied promotion to one or more store manager positions? Answer Yes or No _______ c. unfairly downgraded? Answer Yes or No _______ d. denied appropriate training? Answer Yes or No _______

2. That plaintiff's race was a substantial or motivating factor that prompted defendant to take any of those actions? Answer Yes or No _______ Note: If you answered No to either Question No. 1 or Question No. 2 you need not answer the remaining questions. 3. That plaintiff should be awarded damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No _______ If your answer is Yes, in what amount? $_______ 4. That plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No _______ If your answer is Yes, in what amount? $_______ 5.(a) That a higher management official of defendant acted with malice or reckless indifference to the plaintiff's federally protected rights? Answer Yes or No _______ (b) If your answer is Yes, that defendant itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace? Answer Yes or No _______

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(c) If your answer is Yes, what amount of punitive damages, if any, should be assessed against defendant _______? $_______.

3C Fed. Jury Prac. & Instr. 170.71 (5th ed.) See 42 U.S.C.A. 1981.

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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:wllmhss@aol.com 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 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:



Daniel Ernest Friesen friesenusdc@halefriesen.com William R. Hess wllmhss@aol.com

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:wllmhss@aol.com Attorney for Plaintiff

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