Defendant's Proposed Questions and Instructions to the Jury and Memorandum of Law: Age (Reduction In Force) and Race Discrimination Case (Federal Court)

[Style of Case]

MEMBERS OF THE JURY:

These instructions contain the law which applies to this case. You must follow them in reaching your verdict.

GENERAL INSTRUCTIONS

Consider these instructions as a whole. Do not single out any portion. Do not disregard any instruction.

As jurors, your duty is to determine the facts, without prejudice or sympathy. In doing so, consider only the evidence admitted during trial. Do not speculate about matters which are not in evidence. You are permitted, however, to draw reasonable, common sense inferences from the testimony and exhibits. See E. Devitt, C. Blackmar & M. Wolf, Federal Jury Practice and Instructions, § 71.01 (1987) (hereafter Federal Jury Practice and Instructions).

Unless you are otherwise instructed, the evidence in the case always consists of sworn testimony of the witnesses, regardless of who may have called them; all exhibits received in evidence, regardless of who may have produced them; all facts which may have been admitted or stipulated; and all facts and events which may have been judicially noticed. Id.

Statements and arguments of the lawyers are not evidence. When, however, attorneys on both sides stipulate or agree to the existence of a fact, you must, unless otherwise instructed, accept the stipulation and regard the fact as proved. Id.

Any evidence as to which an objection was sustained by me and any evidence ordered stricken by me must be entirely disregarded. Id.

Unless you are otherwise instructed, anything you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. Id. You also must disregard anything I may have done that might lead you to believe that I have some opinion about the facts of this case, because I do not. See id.

Evidence is either "direct" or "circumstantial." "Direct evidence" is testimony by someone claiming actual knowledge of a fact, such as an eyewitness. "Circumstantial evidence" is proof of a chain of circumstances which points to the existence or nonexistence of certain facts. There is no distinction between the weight to be given to either type of evidence. The law requires only that you consider all of the evidence. This does not mean, however, that you must accept all of the evidence. Id. at § 72.03.

CREDIBILITY, IMPEACHMENT, WEIGHT OF THE EVIDENCE

You are the sole judges of the credibility or "believability" of each witness and the weight to be given to his or her testimony. In weighing credibility, consider all of the circumstances surrounding the testimony. Did the witness have any particular reason not to tell the truth? Did he or she have some personal interest in the outcome of the case? Did the witness seem to have a good memory? Did he or she appear to understand the questions and answer them directly? Did the witness have the opportunity and ability to observe accurately the things he or she testified about? Was the witness impeached because the testimony was inconsistent with something the witness had said or done earlier? Was the witness' testimony supported or contradicted by other evidence? See id. at § 70.06.

In other words, you may accept all of the testimony of a witness, you may accept only part of it, or you may reject the witness' testimony entirely. But in reaching your verdict, do not make any decision simply because there may have been more witnesses on one side than on the other. Your duty is to decide whether you believe what each witness said and the importance of that testimony. See id.

CORPORATE DEFENDANT

This case should be considered and decided by you as an action between persons of equal standing or worth in the community, and of the same or similar stations in life. A corporation is entitled to the same fair trial as an individual. All persons, including corporations, partnerships, unincorporated associations, and other organizations, stand equal before the law and are to be dealt with as equals in a court of justice. Id. at § 71.04.

CONTENTIONS OF PARTIES

Plaintiff has brought a lawsuit against _____ and _____ alleging that [he/she] was discriminated against on the basis of [his/her] [age, race, color, and national origin]. The law prohibits an employer from discriminating against an employee on the basis of age under 29 U.S.C. § 623(f)(1). The law also prohibits an employer from discriminating against an employee on the basis of race under 42 U.S.C. § 2000e, et seq. The law does not prevent an employer from discharging an employee or taking other action with respect to an employee for any reason other than [age or race]. 29 U.S.C. § 623(f)(1); 42 U.S.C. § 2000e, et seq.

An employer does not violate the law by discharging a [state protected class, e.g., an older employee or Hispanic employee] as long as the discharge is not because of [age/race]. In this case, all parties agree that on [date], _____ announced that the office in which Plaintiff worked was being closed pursuant to company-wide layoffs and streamlining of operations. At that time, Plaintiff was told that [his/her] job was to be eliminated.

Plaintiff contends that [his/her] discharge was because of [his/her] age ([insert age]) and [his/her] race ([insert race]). Plaintiff further claims that [his/her] discharge was willful. Plaintiff contends that less qualified people were able to obtain transfers to other offices with _______ and [he/she] was not.

Plaintiff contends that the reasons for the elimination of [his/her] job are pretextual or false.

Defendant also asserts that Plaintiff failed to mitigate [his/her] damages as required by law because [he/she] quit [his/her] job early and did not apply to _____ for available jobs, and during Plaintiff’s period of unemployment, did not attempt to mitigate or reduce [his/her] damages as required by law.

Defendant further asserts that Plaintiff's damages, if any, are foreclosed as of [date], at the latest, because at that time all of _____'s operations in Texas ceased. In other words, even if Plaintiff had not ended [his/her] employment with Defendant in [month, year] [he/she] would not have been employed with Defendant as of [month, year] when all of its operations in Texas ceased.

BURDEN OF PROOF

The burden of proof remains with the Plaintiff at all times. The Plaintiff must prove, by a preponderance of the evidence, that Defendant discriminated against [him/her] because of [his/her] [age/race]. Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777, 2784 (1988) (citing Texas Dep’t of Community Affairs v. Burdine, 101 S.Ct. 1089, 1093 (1981)). The burden of proof never shifts to Defendant. Id.

"Preponderance of the evidence" means evidence, when considered and compared with evidence opposed to it, is more convincing and produces in your mind the belief that what is sought to be proved is more likely true than not true. In other words, to establish a claim by a "preponderance of the evidence" merely means to prove that the claim is more likely so than not so. See Federal Jury Practice and Instructions, § 72.01.

You must weigh the evidence as though it were placed on a scale. For example, when the Plaintiff has the burden of proof, [he/she] must be able to produce evidence to tilt the scales of justice in [his/her] favor. If the scale of justice is tilted in favor of the Defendant, or if it is evenly balanced, the Plaintiff has failed to sustain [his/her] burden.

TRANSFER OR BUMPING

When an employer eliminates an employee's job for economic or other legitimate business reasons, the employer has no obligation to transfer the employee to another job within the company, nor does the employer have a duty to create or locate another job for the employee. Further, the law does not require employers to "bump" younger, less experienced employees from their positions in order to make room for the older and more experienced employees. The age and race discrimination laws merely protect older employees from being discriminated against because of their age or race; they do not entitle employees to any type of preferential treatment. Walhter v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir.) (citing Barnes v. GenCorp., Inc., 896 F.2d 1457, 1469 (6th Cir. 1990)); accord Early v. Champion Int'l Corp., 907 F.2d 1077, 1083 (11th Cir. 1990); Smith v. General Scanning, Inc., 876 F.2d 1315, 1322 (7th Cir. 1989); Stacey v. Allied Stores Corp., 768 F.2d 402, 408 (D.C. Cir. 1985); see also Simpson v. Midland-Ross Corp., 823 F.2d 937, 942 n.6 (6th Cir. 1987) ("When an employer reduces its work force for economic reasons, it incurs no duty to transfer the employee to another position within the company."); Curto v. Sears, Roebuck & Co., 38 F.E.P. Cases 547, 551 (N.D. Ill. 1984) ("When an...