Fill and Sign the Jury Instruction Defense Form

1.2.1 Title VII - Civil Rights Act Race And/Or Sex Discrimination Discharge/Failure To Promote Including “Same Decision” Defense In this case the Plaintiff makes a claim under the Federal Civil Rights statutes that prohibit employers from discriminating against employees in the terms and conditions of their employment because of the employee's [race] [sex or gender]. More specifically, the Plaintiff claims that [he] [she] was [discharged from employment] [denied a promotional opportunity] by the Defendant because of the Plaintiff's [race] [sex or gender]. 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 [discharged from employment] [denied a promotional opportunity] by the Defendant; and Second: That the Plaintiff's [race] [sex or gender] 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 because of the employee's [race] [sex or gender]. So far as you are concerned in this case, an employer may [discharge] [fail to promote] an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee 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 because of their [race] [sex or gender]. On the other hand, it is not necessary for the Plaintiff to prove that the Plaintiff's [race] [sex or gender] was the sole or exclusive reason for the Defendant's decision. It is sufficient if the Plaintiff proves that [race] [sex or gender] 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 [have been dismissed] [not have been promoted] for other reasons even in the absence of consideration of the Plaintiff’s [race] [sex or gender]. If you find that the Plaintiff would [have been dismissed] [not have been promoted] for reasons apart from the Plaintiff’s [race] [sex or gender], 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 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. 1.2.1 Title VII - Civil Rights Act Race And/Or Sex Discrimination Discharge/Failure To Promote Including “Same Decision” Defense SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff was [discharged from employment] [denied a promotional opportunity] by the Defendant? Answer Yes or No 2. That the Plaintiff’s [race] [sex or gender] 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 question.] 3. That the Plaintiff would have been [discharged from employment] [denied a promotional opportunity] for other reasons even in the absence of consideration of the Plaintiff’s [race] [sex or gender]? Answer Yes or No [Note: If you answered Yes to Question No. 3, you need not answer the remaining questions.] 4. 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? $       5. 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? $       6(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 Following the Civil Rights Act of 1991, a prevailing plaintiff in a Title VII action may recover back pay, other past and future pecuniary losses, damages for pain and suffering, punitive damages (except that no punitive damages may be awarded against government agencies or political subdivisions), and reinstatement or front pay. Title 42 U.S.C. § 2000e-5(g)(1) specifically provides for the award of back pay from the date of judgment back to two years prior to the date the plaintiff files a complaint with the Equal Employment Opportunity Commission. This section also provides that interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. See Nord v. United States Steel Corp., 758 F.2d 1462, 1470-73 (11th Cir. 1985) (The purpose behind Title VII is to “make whole” the complainant, therefore back pay is recoverable up to the date judgment is entered); Crawford v. Western Elec. Co., Inc., 614 F.2d 1300 (5th Cir.), reh’g denied, 620 F.2d 300 (5th Cir. 1980) (Back pay relief under this subchapter is limited to the two years preceding the filing of a charge with the Commission, but liability of the employer for back pay may be based on acts occurring outside the two-year period if a current violation is shown). Back pay encompasses more than just salary, it also includes fringe benefits such as vacation, sick pay, insurance and retirement benefits. Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir.), reh’g denied, 494 F.2d 1296 (5th Cir. 1974); see also Crabtree v. Baptist Hosp. of Gadsden, Inc., 749 F.2d 1501 (11th Cir.1985); EEOC v. Joe’s Stone Crab, Inc., 15 F. Supp.2d 1364 (S.D. Fla. 1998). The award of compensatory and punitive damages in a Title VII employment discrimination action (exclusive of back pay, interest on back pay, or any other type of equitable relief authorized under 42 U.S.C. § 2000e-5(g)) is governed by 42 U.S.C. § 1981a. See 42 U.S.C. §§ 1981a(a)(1), (b)(2). Specifically, 42 U.S.C. § 1981a(b)(1) authorizes a prevailing plaintiff to receive compensatory and punitive damages if the plaintiff demonstrates that the employer engaged in a discriminatory practice “with malice or with reckless indifference to the plaintiff’s federally protected rights of an aggrieved individual.” Thus, a plaintiff must demonstrate some form of reckless or egregious conduct, such as: (1) a pattern of discrimination; (2) spite or malevolence; or (3) a blatant disregard for civil obligations. Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322-23 (11th Cir. 1999). In the Eleventh Circuit, punitive damages will ordinarily not be assessed against employers with only constructive knowledge of the violations. Id., Splunge v. Shoney’s, Inc., 97 F.3d 488, 491 (11th Cir. 1996). To get punitive damages a Title VII plaintiff must “show either that the discriminating employee was ‘high[] up the corporate hierarchy,’ or that ‘higher management’ countenanced or approved [his] behavior.” Dudley, 166 F.3d at 1323 (internal citations omitted). In Dudley, the Eleventh Circuit held that a store comanager and store manager were not sufficiently high enough up the employer’s corporate hierarchy to allow their discriminatory acts to be the basis for punitive damages against the corporation. Id. The award of such damages, however, is limited by § 1981a(b)(3) which provides caps on the amount of noneconomic compensatory and punitive damages awardable for Title VII actions as follows: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party-- (A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000; (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and (C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and (D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. If a plaintiff seeks compensatory or punitive damages, either party may demand a trial by jury. See 42 U.S.C. § 1981a(c). Pursuant to this provision, the jury would determine the appropriate amount of compensatory and punitive damages to be awarded, (without being instructed of the statutory caps), and the court would then reduce the amount in accordance with the limitations stated in § 1981a if necessary. See 42 U.S.C. § 1981a(c)(2). It is clear that back pay is only recoverable through § 2000e-5(g)(1) of Title VII and does not fall within the purview of § 1981a limitations. See 42 U.S.C. § 1981a(b)(2); Landgraf v. USI Film Products, 511 U.S. 244, 253-55, 114 S.Ct. 1483, 1491, 128 L.Ed.2d 229 (1994) (stating § 1981a provides that award of compensatory damages excludes back pay to prevent double recovery). Because back pay is specifically exempted from the definition of compensatory damages, there is a question as to whether back pay is really a legal remedy and thus determined by the jury, or an equitable remedy determined by the court. Several other jurisdictions have held that back pay is an equitable remedy, in the same category as reinstatement or front pay, and determined only by the judge. However, Eleventh Circuit cases have stated that back pay is a legal issue for the jury. See e.g.,Waldrop v. Southern Company Services, Inc., 24 F.3d 152 (11th Cir. 1994); Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir. 1993) reh’g denied, 16 F.3d 1233 (11th Cir.), cert. denied, 513 U.S. 814, 115 S.Ct. 69, 130 L.Ed.2d 24 (1994). See also, Kemp v. Monge, 919 F Supp. 404 (M.D. Fla. 1996) (jury returned verdict for plaintiff in ADA case awarding back pay and compensatory damages, and court ruled on issue of reinstatement/front pay); Beesley v. Hartford Fire Ins. Co., 723 F. Supp. 635 (N.D. Ala. 1989) (holding that employee’s claim for back pay under Title VII was a request for a form of legal damages and therefore entitled to a trial by jury); Castle v. Sangamo Weston, Inc., 650 . Supp. 252 (M.D. Fla. 1986), rev’d on other grounds, 837 F.2d 1550 (11th Cir. 1988) (jury returned verdict on liability, back pay, damages, and liquidated damages in ADEA case). Some judges submit both back pay and front pay claims to the jury, ruling that the jury verdict will be treated as advisory under Federal Rule of Civil Procedure 39(c) should it be determined on appeal or otherwise that any part of the pay claims are equitable and not subject to jury trial as of right. There is also an issue as to whether the statutory reference to “future pecuniary losses” includes front pay. At least one other jurisdiction has held that “future pecuniary losses” includes front pay, and therefore, the jury determines what amount, if any, to award under this calculation, and it is included in the § 1981a(b)(3) caps. See Hamlin v. Charter Tp. Of Flint, 965 F. Supp. 984 (E.D. Mich. 1997) (holding that front pay represents compensation for "future pecuniary losses" and, therefore, is subject to statutory damages cap contained in Civil Rights Act of 1991; front pay is not a specifically authorized remedy under Title VII's enforcement provisions, so as to be exempt from damages cap). The Eleventh Circuit, however, has taken the opposite approach and held that front pay, because it is only awarded when reinstatement is impractical and only when the award of compensatory damages and back pay do not make the plaintiff “whole,” is really an equitable remedy to be determined by the court at the conclusion of the jury trial. Therefore, it appears that the § 1981a(b)(3) limitations do not apply. See, e.g., Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir.1985); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1528- 29 (11 th Cir.1991). See also, Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (When reinstatement is not feasible, the equitable remedy of front pay is available at the court's discretion. Because front pay is an equitable remedy, the court, rather than the jury, determines the amount of the award). Title VII also explicitly authorizes the award of attorney's fees to "the prevailing party." See 42 U.S.C. § 2000e-5(k). Thus, in Title VII cases, a district court "may in its discretion award attorney's fees to a prevailing defendant ... upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). If the Defendant prevails on a “same decision” defense, the jury should award no compensatory or punitive damages, even though Plaintiff has proven that “race, color, religion, sex or national origin was a motivating factor.” See 42 USC § 2000e-5( g)(2)(B). Section 2000e-5(2)(B) provides that in such cases, the court may grant declaratory relief, limited injunctive relief and limited attorney fees and costs.