Defendant's jury instructions & questions: sex discrimination, retaliation and FLSA violations (fed.)

IN THE UNITED STATES DISTRICT COURT

FOR THE ______________ DISTRICT OF _____

___________ DIVISION

_____________________,§

§

Plaintiff, §

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§ NO. _______

§

§

Defendant. §

DEFENDANT'S REQUESTED JURY

INSTRUCTIONS AND JURY QUESTIONS

Defendant, ______________, submits the following Requested Jury Instructions and Jury Questions in this case, and requests the Court to submit these to the jury in the Court's charge.

Respectfully submitted,

__________________________________

ATTORNEYS FOR DEFENDANT,

CERTIFICATE OF SERVICE

I hereby certify by my signature below that a true and correct copy of the above and foregoing document has been forwarded via certified mail, return receipt requested to all counsel of record pursuant to the Rules of Civil Procedure on this _____ day of , 20 , as follows:

DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 1

In this case, Plaintiff alleges that she was discriminated against because of her gender and alleges that she complained about this discrimination to management personnel, who retaliated against her for her complaints by terminating her. Defendant denies that it discriminated against Plaintiff, denies that Plaintiff made any complaints of gender discrimination to management personnel, and denies that it retaliated against Plaintiff in any way, whatsoever. Defendant alleges that it terminated Plaintiff because of: ____________________________________________.

Plaintiff also claims she is entitled to overtime pay under the Fair Labor Standards Act. Plaintiff claims that when she served as a _________________________ for Defendant, during the period from __________________ through _____________________, she was entitled to overtime pay for each hour Plaintiff worked over 40 each work week. Defendant claims that Plaintiff was an employee who was exempt from the overtime pay provisions of the Fair Labor Standards Act, because Plaintiff received commissions and had the other benefits of a professional job.

GIVEN: __________

MODIFIED: __________

DENIED: __________

WITHDRAWN: __________

Signed this _____ day of , 20 .

UNITED STATES DISTRICT JUDGE

DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 2

Your verdict must be for Plaintiff and against Defendant on Plaintiff’s sex discrimination claim if all of the following elements have been proved by Plaintiff by the preponderance of the evidence:

1. Defendant discharged Plaintiff; and

2. Plaintiff’s sex was a determining factor in Defendant’s decision.

   If any of the above elements have not been proved by the preponderance of the evidence, your verdict must be for Defendant. Sex was a “determining factor” only if Defendant would not have discharged Plaintiff, but for Plaintiff’s sex; it does not require that sex was the only reason for the decision made by Defendant. You may find sex was a determining factor if you find Defendant’s stated reasons for its decision are not the true reasons, but are a “pretext” to hide gender or sex discrimination.¹

   At all times, Plaintiff has the ultimate burden to prove sex discrimination.² An employee’s own subjective belief of discrimination, however genuine, cannot serve as the basis for proving discrimination.³ The anti-discrimination provision of Title VII prohibits adverse employment actions based on an employee’s protected status. Adverse employment actions under this provision include discharges, demotions, refusals to hire, refusals to promote and reprimands. A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities.⁴ Therefore, only Plaintiff’s discharge can qualify as an adverse employment action under federal law.

   The federal discrimination laws do not afford women special preference or place upon the employer an affirmative duty to accord women special treatment.⁵

   GIVEN: __________

   MODIFIED: __________

   DENIED: __________

   WITHDRAWN: __________

   Signed this _____ day of , 20 .

   UNITED STATES DISTRICT JUDGE

   DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 3

   Plaintiff also claims that she was terminated in retaliation for engaging in activity protected by law, specifically, for opposing illegal gender discrimination by making complaints to management about such discrimination. Defendant denies that Plaintiff made complaints to management about gender discrimination, and asserts that it discharged Plaintiff because of her insubordination.

   You are instructed that the law only prohibits employers from retaliating against employees for certain activities. These activities are called "protected activities.” A protected activity includes opposing any unlawful employment discrimination. In addition to filing formal charges of discrimination, informal protests of discriminatory practices are also protected. An employee's statement, however, cannot be deemed to be in opposition to an unlawful employment practice unless it refers to a specific practice of the employer that is allegedly unlawful and the employer is aware of that opposition.⁶ Vagueness as to the nature of the grievance prevents a protest from qualifying as a protected activity.⁷ The statements must specifically notify the employer of the particular practice the employee views as discriminatory.⁸

   In order to prevail on her claim, Plaintiff must prove that she opposed illegal gender discrimination by making specific complaints to management of specific practices by Defendant that were allegedly discriminatory, and that she was discharged from her employment because of these complaints. Plaintiff must show that she would not have been terminated but for her opposition to illegal discrimination.⁹

   Even if you find that Plaintiff made such complaints of illegal discrimination, and even if such complaints were a substantial element in Defendant’ decision to terminate Plaintiff, you must find against Plaintiff if she would have been terminated even in the absence of making complaints of illegal gender discrimination.¹⁰

   GIVEN:__________

   MODIFIED: __________

   DENIED: __________

   WITHDRAWN: __________

   Signed this _____ day of , 20 .

   UNITED STATES DISTRICT JUDGE

   DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 4

   You are instructed that the law does not protect workers from erroneous or even arbitrary decisions by employers, but only from decisions which are illegal. The mere fact that an employer’s decision to discharge an employee may have been a decision with which you do not agree is not a basis for finding liability unless you find that the employer intended by its decision to retaliate against the employee because she opposed an unlawful employment practice.

   An employer is entitled to make its own subjective business judgments, however misguided they may appear to you, and to discharge an employee for any reason that is not retaliatory. An employer is also allowed to discharge an employee for reasons that the employer considers to be in its best interest. In other words, employers are permitted to make their own subjective business judgments, however misguided, mistaken, harsh, or unfair they may appear to some persons.¹¹ An employer is only liable for retaliation if it would not have taken the same employment action but for the employee having opposed an unlawful employment practice.¹²

   In making your decision, I instruct you that the law did not and does not place an affirmative duty upon Defendant to accord special or preferential treatment to Plaintiff because she is female.¹³

   GIVEN: __________

   MODIFIED: __________

   DENIED: __________

   WITHDRAWN: __________

   Signed this _____ day of , 20 .

   UNITED STATES DISTRICT JUDGE

   DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 5

   If you find that Defendant discriminated and/or retaliated against Plaintiff, then you must determine the amount of damages, if any, that Plaintiff has sustained and that she has proven by a preponderance of the evidence.

   In determining the damages sustained, if any, by the discharge, you may award Plaintiff “lost back wages,” that is you may award Plaintiff, subject to my further instructions below, an amount equal to the wages that she would have received from Defendant from the date her employment ended, March 1, 1999, until the date of trial, less any wages, earnings and benefits she received during that same time.

   You are also instructed that Plaintiff has a duty under the law to "mitigate" her claimed damages -- that is to exercise reasonable diligence to seek and obtain substantially equivalent employment to the position lost.¹⁴ Plaintiff may satisfy the “reasonable diligence” requirement by actively demonstrating a continuing commitment to be a member of the workforce and by remaining ready, willing, and available to accept substantially equivalent employment. Although Plaintiff’s efforts need not be successful, she must continue to exercise good faith in attempting to secure a substantially equivalent position.¹⁵

   You are further instructed that if you find that Plaintiff did not actively seek substantially equivalent employment, you should not award her any wages for the period, or periods, she failed to do so.¹⁶ An employee claiming damages may not assume that efforts to obtain substantially equivalent employment would be futile; rather, she must at least exercise reasonable diligence.¹⁷ You are instructed that the following are relevant factors in determining whether jobs or opportunities are substantially equivalent: comparable terms and conditions of employment, promotional opportunities, compensation, job responsibilities, working conditions and status.¹⁸

   In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound...