Fill and Sign the Jury Instruction 131 Civil Rights Act 42 Usc Sect1981 Race Discrimination in Employment Discharge Failure to Promote General Form

1.3.1 Civil Rights Act 42 USC § 1981 Race Discrimination In Employment Discharge/Failure To Promote In this case the Plaintiff makes a claim under the Federal Civil Rights statutes that prohibit employers from discriminating against employees [including applicants for employment] in the terms and conditions of their employment because of race. More specifically, the Plaintiff claims that [he] [she] was [denied employment] [discharged from employment] [denied a promotional opportunity] by the Defendant because of the Plaintiff's race. The Defendant denies that the Plaintiff was discriminated against in any way and asserts that [describe the Defendant's theory of defense or affirmative defenses, if any]. In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff was [denied employment] [discharged from employment] [denied a promotional opportunity] by the Defendant; and Second: That the Plaintiff's race was a substantial or motivating factor that prompted the Defendant to take that action. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee [applicant] because of the employee's [applicant’s] race. So far as you are concerned in this case, an employer may [deny employment] [discharge] [fail to promote] an employee [applicant] for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the Plaintiff to lead you to substitute your own judgment for that of the Defendant even though you personally may not favor the action taken and would have acted differently under the circumstances. Neither does the law require an employer to extend any special or favorable treatment to employees [or applicants] because of their race. On the other hand, it is not necessary for the Plaintiff to prove that the Plaintiff's race was the sole or exclusive reason for the Defendant's decision. It is sufficient if the plaintiff proves that race was a determinative consideration that made a difference in the Defendant’s decision. [If you find in the Plaintiff’s favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendant has shown by a preponderance of the evidence that the Plaintiff would [not have been employed] [have been dismissed] [not have been promoted] for other reasons apart from the Plaintiff’s race. If you find that the Plaintiff would [have been denied employment] [have been dismissed] [not have been promoted] for reasons apart from race, then your verdict should be for the Defendant.] If you find for the Plaintiff and against the Defendant on its defense, you must then decide the issue of the Plaintiff’s damages: In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. [On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.] You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Emotional pain and mental anguish. [(c) Punitive damages, if any (as explained in the Court’s instructions)] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the 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 the 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. So, an award of punitive damages would be appropriate only if you find for the Plaintiff and then further find from a preponderance of the evidence (1) that a higher management official of the Defendant personally acted with malice or reckless indifference to the Plaintiff’s federally protected rights, and (2) that the employer 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 the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 1.3.1 Civil Rights Act 42 USC § 1981 Race Discrimination In Employment Discharge/Failure To Promote SPECIAL INTERROGATORIES THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff was [denied employment] [discharged from employment] [denied a promotional opportunity] by the Defendant? Answer Yes or No 2. That the Plaintiff’s race was a substantial or motivating factor that prompted the Defendant to take that action? 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 the 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 the 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 the 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 the 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 (c) If your answer is Yes, what amount of punitive damages, if any, should be assessed against the Defendant? $       . SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS 42 USC §1981(a) states that all persons within the jurisdiction of the United States shall have the same right to make and enforce contracts. The Civil Rights Act of 1991 expanded the applicability of § 1981 itself to include not only the formation of contracts but the “making, performance, modification and termination of contracts.” 42 USC §1981(a). See Vance v. Southern Bell Telephone and Telegraph, 983 F.2d 1573 (11 th Cir. 1993), cert. denied, 513 U.S. 1155, 115 S.Ct. 1110, 130 L.Ed.2d 1075 (1995). Section 1981, like 42 USC § 1983, does not contain its own damages provisions. Rather, the remedies available have been judicially determined. Plaintiffs may recover punitive and compensatory damages (including pain and suffering), back pay, reinstatement or future earnings, and attorney’s fees. The statutory caps, contained in the Civil Rights Act of 1991 and placed on damages in Title VII claims, do not apply to § 1981 claims. See Goodgame v. American Cast Iron Pipe Co., 75 F.3d 1516 (11th Cir.), reh’g denied, 86 F.3d 1172 (11th Cir. 1996). See also, Olmstead v. Taco Bell Corp., 141 F.3d 1457 (11th Cir. 1998) (noting difference between claims filed under Title VII, where damages are limited by the statutory caps in § 1981a, and claims filed under § 1981(a) that have no such caps). A plaintiff cannot recover punitive damages from a governmental agency or municipality under 42 U.S.C. § 1981. Walters v. City of Atlanta, 803 F.2d 1135 (11 th Cir. 1986); Spinks v. City of St. Louis Water Division, 176 F.R.D. 572 (E.D. Mo. 1997). See also, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (holding that punitive damages are not recoverable against a governmental agency or political subdivision under 42 U.S.C. § 1983).