Pattern Jury Instructions For Cases Of Employment-Free PDF

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PATTERN JURY INSTRUCTIONS,FOR CASES OF,EMPLOYMENT DISCRIMINATION. DISPARATE TREATMENT,Introductory Notes 5,Updated 8 18 11. 1 1 General Discrimination Pretext 8,Updated 8 24 11. 1 2 General Discrimination Mixed Motive 14,Updated 2 7 12. 1 3 Special Verdict Form General Discrimination Mixed Motive Case 20. Updated 6 14 02,2 1 Sexual Harassment Quid Pro Quo 21.
Updated 8 24 11, 2 2 Sexual Harassment Hostile Environment Created by Supervisors. or Defendant Itself 25,Updated 8 29 11, 2 3 Sexual Harassment Hostile Environment Created by Co workers. Customers etc 29,Updated 8 24 11,3 1 Disability Discrimination 34. Updated 3 1 11,3 2 Reasonable Accommodation 41,Updated 1 24 11. 4 1 Equal Pay Act 44,Updated 8 3 05,5 1 Retaliation 47.
Updated 4 10 12,6 1 Constructive Discharge 50,Updated 8 24 11. 7 1 Missing Witness 51,New 6 18 10,8 1 Spoliation 52. New 6 18 10,9 1 Compensatory Damages 53,Updated 1 30 09. 9 2 ADEA Damages 59,Updated 7 24 08, 9 3 Special Verdict Form ADEA Damages Pretext Case 66. Updated 6 14 02,9 4 Equal Pay Act Damages 67,Updated 7 1 03.
9 5 Special Verdict Form Equal Pay Act Damages 71,Updated 6 14 02. 10 1 Punitive Damages 72,Updated 3 1 10,11 1 Charge to a Hung Jury 77. New 6 26 09,INTRODUCTORY NOTES,Updated 8 18 11, 1 Statutory Authority The statutory authority for discrimination claims is as. follows Equal Pay Act 29 U S C 206 d 2001 prohibiting sex based pay differentials Age. Discrimination in Employment Act of 1967 29 U S C 621 634 2001 age Civil Rights Act. of 1866 42 U S C 1981 2001 prohibiting racial discrimination in the making and. enforcement of contracts Civil Rights Act of 1871 42 U S C 1983 2001 prohibiting state. action in violation of federal civil rights Title VII of the Civil Rights Act of 1964 42 U S C. 2000e to 2000e 17 2001 race color religion national origin or sex discrimination and. sexual harassment Pregnancy Discrimination Act of 1978 42 U S C 2000e k 2001. pregnancy Americans With Disabilities Act of 1990 42 U S C 12101 12213 2006. amended by The ADA Amendments of 2008 ADAAA Pub L No 110 325 122 Stat 3553. 2008 disability Rehabilitation Act of 1973 29 U S C 794 2001 same The statutory. authority for retaliation claims is as follows 42 U S C 1981 as interpreted by the Supreme. Court in CBOCS West Inc v Humphries 128 S Ct 1951 2008 29 U S C 626 d 2001. ADEA retaliation provision for federal sector employees 29 U S C 633a a see Gomez. Perez v Potter 128 S Ct 1931 2008 42 U S C 2000e 3 a 2001 Title VII retaliation. provision for private sector employers Morales Vallellanes v Potter 605 F 3d 27 35 36 1st. Cir 2010 noting the court has assumed that the anti retaliation provision applicable to private. sector employers operates to prohibit retaliation in federal employment 42 U S C 12203 a. 2001 ADA retaliation provision See also Fennell v First Step Designs Ltd 83 F 3d 526. 535 n 9 1st Cir 1996 Title VII retaliation Title VII and ADEA retaliation analysis is largely. interchangeable Champagne v Servistar Corp 138 F 3d 7 13 1st Cir 1998 ADA. retaliation claim citing Mesnick v General Elec Co 950 F 2d 816 1st Cir 1991 ADEA. retaliation claim Jackson v Birmingham Bd of Educ 544 U S 167 171 2005 employee. has retaliation claim under Title IX 20 U S C 1681 et seq for action employer took because. of his complaints about discrimination in athletics. 2 Disparate Treatment Cases We have drafted generic instructions that should. generally be usable with appropriate modifications for federal employment discrimination. claims where the plaintiff claims disparate treatment based on race color religion sex national. origin or age but we have drafted separate instructions for harassment retaliation Equal Pay. Act and disability discrimination claims See e g Serapion v Martinez 119 F 3d 982 985 1st. Cir 1997 Title VII We regard Title VII ADEA ERISA and FLSA as standing in pari pasu. and endorse the practice of treating judicial precedents interpreting one such statute as. instructive of decisions involving another Equal Employment Opportunity Comm n v Amego. Inc 110 F 3d 135 145 n 7 1st Cir 1997 ADA The ADA is interpreted in a manner similar. to Title VII and courts have frequently invoked the familiar burden shifting analysis of. McDonnell Douglas in ADA cases citations omitted Dominguez Cruz v Suttle Caribe Inc. 202 F 3d 424 428 n 3 1st Cir 2000 ADEA This Title VII McDonnell Douglas framework. applies to Age Discrimination in Employment Act ADEA cases under the law of this Circuit. Ayala Gerena v Bristol Meyers Squibb Co 95 F 3d 86 95 1st Cir 1996 1981 In order. to prevail under Section 1981 a plaintiff must prove purposeful employment discrimination. under the by now familiar analytical framework used in disparate treatment cases under. Title VII White v Vathally 732 F 2d 1037 1039 1st Cir 1984 Title VII and 1983. W e have recognized that the analytical framework for proving discriminatory treatment. claims set out in McDonnell Douglas Corp v Green 411 U S 792 802 805 1973 is equally. applicable to constitutional and to Title VII claims parallel citations omitted Kvorjak v. Maine 259 F 3d 48 50 n 1 1st Cir 2001 ADA the standards applicable to the Americans. with Disabilities Act and the Rehabilitation Act have been viewed as essentially the same. 3 Disparate Impact Cases These instructions are not designed for use in disparate. impact cases, 4 1991 Civil Rights Act Partial Relief As a result of Desert Palace Inc v Costa. 539 U S 90 2003 the 1991 Civil Rights Act provision allowing for partial relief in mixed. motive cases is available in Title VII cases whether the plaintiff s evidence is direct or. circumstantial But it may not be available outside Title VII See Dominguez Cruz 202 F 3d at. 429 n 4 In fact the First Circuit has stated explicitly that partial relief is not available under. the ADEA Melendez Arroyo v Cutler Hammer de P R Co Inc 273 F 3d 30 33 1st Cir. 2001 ADEA As for ADA cases t his circuit has noted but not resolved the question. Patten v Wal Mart Stores East Inc 300 F 3d 21 25 n 2 1st Cir 2002 Although not. discussed in any of these cases 1981 and 1983 claims might also be excluded from the reach. of this aspect of the 1991 amendment for the same reasons. 5 The First Circuit has held that Title VII does not provide for liability of individual. employees supervisors only lawsuits against the employer are authorized Fantini v Salem Sate. College 557 F 3d 22 1st Cir 2009 The same is true for Title I of the ADA Rom n Oliveras. v Puerto Rico Elec Power Auth y F 3d 2011 WL 3621548 at 7 1st Cir Aug 18. 2011 The question remains open as to certain other federal statutes See generally Henry P. Ting Note Who s the Boss Personal Liability Under Title VII and the ADEA 5 Cornell J L. Pub Pol y 515 1996 Sections 1981 and 1983 do not use the same employer language and. therefore do not share this restriction on individual liability Injunctive relief in the form of. backpay is not available against an individual capacity defendant Negron Almeda v. Santiago 528 F 3d 15 26 1st Cir 2008 It is settled law in the federal courts that backpay as. such cannot be awarded against a defendant in his or her individual capacity However. compensatory damages are available against an individual capacity defendant and p roperly. proven those damages will equal the grand total of the plaintiff s aggregate lost wages and. benefits Id, 6 Respondeat Superior in 42 U S C 1981 and 1983 Cases Section 1983 does.
not allow recovery on respondeat superior theories of liability See Voutour v Vitale 761 F 2d. 812 819 1st Cir 1985 1983 The Supreme Court has firmly rejected respondeat superior. as a basis for section 1983 liability of supervisory officials or municipalities citing Monell v. Department of Soc Servs 436 U S 658 691 694 n 58 1978 1983 see also Aponte Matos. v Toledo Davila 135 F 3d 182 192 1st Cir 1998 1983 Supervisory liability under. 1983 cannot be predicated on a respondeat superior theory but only on the basis of the. supervisor s own acts or omissions, The availability of respondeat superior liability in 1981 cases depends on the identity of. the defendant Because the remedial provisions of 1983 provide the exclusive federal. damages remedy for the violation of the rights guaranteed by 1981 when the claim is pressed. against a state actor Jett v Dallas Indep Sch Dist 491 U S 701 731 32 1989 1981 and. 1983 there is no respondeat superior liability in 1981 cases involving governmental. defendants The Ninth Circuit has held that the 1991 amendments to the Civil Rights Act created. an implied cause of action against state actors under 42 U S C 1981 In reaching this holding. the court concluded that the 1991 amendments statutorily overruled Jett s first holding that a. 1981 claim for damages against a state actor must be brought under 1983 Fed n of African. Am Contractors v City of Oakland 96 F 3d 1204 1205 9th Cir 1996 But see Bolden v City. of Topeka 441 F 3d 1129 1136 37 10th Cir 2006 disagreeing with the Ninth Circuit s. conclusion holding that Jett is still good law and collecting cases But the Ninth Circuit also. held that with the 1991 amendments Congress intended to preserve Jett s second holding that a. 1981 plaintiff who sues a municipality may not rely on the doctrine of respondeat superior. Fed n of African Am Contractors 96 F 3d at 1215 The First Circuit has not addressed whether. the 1991 amendments impacted either of Jett s holdings. Section 1981 cases against non governmental defendants on the other hand are not. governed by the 1983 remedial provisions and therefore respondeat superior theories of. liability are available See Springer v Seaman 821 F 2d 871 881 1st Cir 1987 1981. Unlike 1983 1981 contains no limitation to actions taken under color of state law and its. legislative history evidences no intention to reject the ordinarily applicable respondeat superior. liability or to impose the strict causation requirements of 1983 abrogated in part by Jett. 491 U S at 731 32 although 1983 provides the exclusive remedy for 1981 cases against. state actors 1981 claims against private actors are not governed by 1983 rules see also. Fitzgerald v Mountain States Tel Tel Co 68 F 3d 1257 1262 64 10th Cir 1995 1981. analyzing 1981 defendant s liability under respondeat superior theory Cabrera v. Jakabovitz 24 F 3d 372 385 88 2d Cir 1994 1981 same In Cerqueira v American. Airlines Inc 520 F 3d 1 19 1st Cir 2008 the First Circuit noted that the Supreme Court has. not addressed the scope of any respondeat superior liability in 1981 claims generally and we. need not do so here footnote omitted, For a discussion of the substantive standards that apply in 1983 supervisory liability. cases see Excessive Force Instruction 1 1 note 3,1 1 General Discrimination Pretext1. Updated 8 24 11,Pattern Jury Instruction, Plaintiff accuses defendant 2 of protected characteristic 3 discrimination in violation of. federal law To succeed on this claim plaintiff must prove by a preponderance of the evidence. that defendant took adverse employment action against her him because of protected. characteristic 4, An adverse employment action is one that standing alone actually causes damage tangible.
or intangible to an employee The fact that an employee is unhappy with something his or her. employer did or failed to do is not enough to make that act or omission an adverse employment. action 6 An employer takes adverse action against an employee only if it 1 takes something of. consequence away from the employee for example by discharging or demoting the employee. reducing his or her salary or taking away significant responsibilities or 2 fails to give the. employee something that is a customary benefit of the employment relationship for example by. failing to follow a customary practice of considering the employee for promotion after a. particular period of service 7 An adverse employment action by a supervisor is an action of the. employer 8, Plaintiff need not show that protected characteristic discrimination was the only or. predominant factor9 that motivated10 defendant In fact you may decide that other factors were. involved as well in defendant s decisionmaking process In that event in order for you to find. for plaintiff you must find that she he has proven that although there were other factors. she he would not have been specify adverse action without the protected characteristic. discrimination 11, An employer is free to specify adverse action an employee for any nondiscriminatory reason. even if its business judgment seems objectively unwise 12 But you may consider the. believability of an explanation in determining whether it is a cover up or pretext for. discrimination In order to succeed on the discrimination claim plaintiff must persuade you. by a preponderance of the evidence that were it not for protected characteristic. discrimination 13 she he would not have been specify adverse action 14. Plaintiff is not required to produce direct evidence of unlawful motive 16 You may infer. knowledge and or motive as a matter of reason and common sense from the existence of other. evidence for example explanations that you find were really pretextual Pretextual means. false or though true not the real reason for the action taken. After Desert Palace Inc v Costa 539 U S 90 2003 there likely will be little demand for this. instruction in a Title VII case because the mixed motive instruction 1 2 is less demanding of a plaintiff For cases. applies to Age Discrimination in Employment Act ADEA cases under the law of this Circuit Ayala Gerena v Bristol Meyers Squibb Co 95 F 3d 86 95 1st Cir 1996 1981 In order to prevail under Section 1981 a plaintiff must prove purposeful employment discrimination under the by now familiar analytical framework used in disparate treatment cases under Title VII

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