D.P. MARSHALL, Jr., District Judge.
So Ordered.
Ladies and gentlemen of the jury: Here are some initial instructions about this case and your duties as jurors. During the trial, I will give you more instructions. And at the end of the trial, I will give you final instructions. Follow all my instructions.
I am the judge of the law and you are the judges of the facts. It's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation.
David Harrell was a Jefferson County deputy sheriff for about two and a half years. After an internal investigation, he was fired for supposedly violating several sheriff's office policies. The sheriff's office later tried to get Harrell decertified as a law enforcement officer. Harrell has sued Jefferson County, sheriff Gerald Robinson, deputy sheriff Lafayette Woods, and deputy sheriff Stanley James. Harrell claims that race played a part in his firing and in the decertification effort; he also claims violations of the Family and Medical Leave Act related to a medical emergency involving his family. Jefferson County and the three officers respond that Harrell's violations of sheriff's office policy, not race or FMLA leave, prompted Harrell's firing and the decertification effort. They also deny that they violated the Family and Medical Leave Act in any way.
The jury must decide what role, if any, race played in the decision to fire Harrell and in the decertification effort. The jury must also decide whether the Family and Medical Leave Act was violated in some way. It will be your duty to decide from the evidence whether Harrell is entitled to a verdict against Jefferson County, sheriff Robinson, deputy Woods, deputy James (or more than one of them) on Harrell's race discrimination claims and on his Family and Medical Leave Act claims.
This case should be considered and decided by you as a dispute between persons of equal worth. All persons stand equal before the law and are to be treated as equals. Plus, you must consider Harrell's claims against Jefferson County, sheriff Robinson, deputy Woods, and deputy James separately. Decide about each claim, each individual, and Jefferson County based on the relevant facts and the applicable law.
From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law that I give you in these and in my other instructions, and in that way reach your verdict. While you are the sole judges of the facts, you must follow the law, as stated in my instructions, whether you agree with it or not. In deciding what the facts are, you will have to decide what testimony you believe and what testimony you don't believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: the witnesses' intelligence; their opportunity to have seen or heard the things they testify about; their memories; any motives they may have for testifying a certain way; their manner while testifying; whether they said something different at an earlier time; the general reasonableness of their testimony; and the extent to which their testimony is consistent with other evidence that you believe.
Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
Don't take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, the documents and other things received as exhibits, and any facts that have been stipulated—that is, agreed to—by the parties.
Certain things are not evidence. I will list those things for you now:
If I sustain an objection to a question or an exhibit, you must ignore the question or the exhibit. And you must not try to guess what the information might have been. Similarly, testimony and exhibits that I strike from the record, or tell you to disregard, are not evidence and must not be considered.
The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by the "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. But the preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You've heard the term "proof beyond a reasonable doubt." This is a stricter standard, which applies only in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
During the trial it will be necessary for me to speak with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the Rules of Evidence, which govern the trial, and to avoid confusion and error. The lawyers and I will, of course, do what we can to keep the number and length of these conferences to a minimum.
At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult. You must pay close attention to the testimony as it is given.
If you wish, you may take notes to help you remember what witnesses said. If you do take notes, keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you miss other answers by the witness. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes face down in your chair.
When you leave at night, your notes will be secured and not read by anyone.
Finally, to insure fairness, you as jurors must obey the following rules:
First, don't talk among yourselves about this case, or about anyone involved with the case, until the end of the trial when you go to the jury room to deliberate and decide on your verdict. Don't share your notes until deliberations begin.
Second, don't talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it. If someone does try to talk to you about the case during the trial, please report it to me immediately.
Fourth, during the trial, don't talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might arise. If any lawyer, party, or witness doesn't speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you.
Fifth, don't read any news stories, articles, or blogs about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.
Sixth, don't do any research or make any investigation about the case or about any matter involved in this case, on your own. By way of example, that means that you must not consult the Internet (e.g., Google or Wikipedia), a dictionary, a textbook, or an encyclopedia. Don't talk with a person you consider knowledgeable. Don't look up information about Harrell, the Jefferson County sheriff's office, sheriff Robinson, deputy Woods, or deputy James. In fairness, you must learn about this case only from the evidence you receive here at the trial, and then apply those facts to the law as I give it to you.
Seventh, remember, cell phones are not permitted in the courthouse or in the jury room.
Eighth, keep an open mind during the trial about what the verdict should be. Keep an open mind until after you have heard all of the evidence. Once the trial has been completed and you've retired to the jury room to decide the case, then you and your fellow jurors are free to discuss the evidence among yourselves.
Ninth, remember that you are not to be influenced in any degree by any personal feelings or sympathy or prejudice for or against any of the parties or the lawyers in the case. Each party is entitled to the same fair and impartial consideration at your hands.
Tenth, no statement, remark, or ruling that I make, or question that I might ask of a witness, during the trial is intended to indicate what I think about the facts of the case. You, as the jurors, are the sole judges of the facts of the case. You and you alone will have to decide on the believability and credibility of the witnesses and the weight and value of the evidence.
During the trial—while you are in the courthouse, at lunch, on breaks, and after you leave for the day—do not provide any information to anyone by any means about this case. For example, do not talk face-to-face with anyone about this case. And do not use any electronic device or media, such as the telephone, a cell phone, a smart phone, Blackberry, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict.
Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
The trial will proceed in the following manner:
First, Harrell's lawyer will make an opening statement. Next, the lawyer for the Jefferson County parties will make an opening statement. An opening statement is not evidence or argument. It is simply a summary of what the lawyer expects the evidence to be.
Harrell's lawyer will then present evidence by calling witnesses, and the Jefferson County parties' lawyer will cross-examine those witnesses. After Harrell's case, the Jefferson County parties' lawyer will present evidence by calling witnesses, and Harrell's lawyer will cross-examine those witnesses.
Finally, Harrell may offer rebuttal evidence.
After presentation of all the evidence is completed, I'll give you some more jury instructions. Then the lawyers will have a second opportunity to address you directly, and at that time, they're permitted to argue the evidence in an attempt to persuade you to their differing views of the true facts in the case. But as with opening statements, closing arguments are not evidence.
After the closing arguments, the Court will give you some final instructions. Then you'll go to the jury room to deliberate on your verdicts.
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions on the law that applies to this case. You must, of course, continue to follow all the instructions I gave you earlier, as well as those I give you now.
The instructions I am about to give you now are in writing and will be available to you in writing in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all my instructions, whether given in writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the instructions, and to apply the given rules of law to the facts as you find them to be from the evidence in this case.
You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as stated by the Court. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law other than that given in the instructions of the Court; just as it would be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything but the evidence in the case.
Don't take anything I say in the instructions as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. You will determine the facts. During this trial I have occasionally asked questions of witnesses. Do not assume that because I asked questions I hold any opinion on the matters to which my questions related.
Justice through trial by jury must always depend on the willingness of each juror to seek the truth about the facts from the same evidence presented to all the jurors. You must arrive at a verdict by applying the rules of law given in the Court's instructions.
Statements and arguments of counsel are not evidence in the case. The evidence in the case always consists of the sworn testimony of the witnesses, regardless of who may have called them and any documents, photographs, or other items that are received by the Court, and all facts that may have been admitted or stipulated. Any evidence on which an objection was sustained by the Court—and any witness statement or tangible item that was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not evidence, and it must be entirely disregarded.
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me, through the court security officer, that is signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should never tell anyone—including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. The verdict must be unanimous. Again, nothing I have said or done is intended to suggest what your verdict should be—that is entirely for you to decide.
This case should be considered and decided by you as a dispute between persons of equal worth. All persons stand equal before the law and are to be treated as equals.
You are the sole judges of the credibility of the witnesses and the weight and value to be given to their testimony. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: the witness's intelligence; the opportunity the witness had to see or hear the things about which he or she testified; the witness's memory; any motives a witness may have for testifying a certain way; the manner and demeanor of the witness while testifying; whether the witness said something different at an earlier time; the general reasonableness or unreasonableness of the testimony; and the extent to which the testimony is consistent with any other evidence that you believe.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection, a lapse of memory, or a lie—and that may depend on whether the contradiction has to do with an important fact or only a small detail.
A witness may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has said or done something or has failed to say or do something that is inconsistent with the witness's present testimony.
If you believe any witness has been impeached and thus discredited you may give the testimony of that witness whatever credibility, if any, you think it deserves.
If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust that witness's other testimony and you may reject all the testimony of that witness or give it whatever credibility you think it deserves.
An act or omission is "knowingly" done if the act is done voluntarily or intentionally, and not because of mistake or accident or other innocent reason.
In considering the evidence in this case you are not required to set aside your common sense or common knowledge. You have the right to consider all the evidence in light of your own observations and experiences in the affairs of life.
It is the sworn duty of the lawyer on each side of the case to object when the other side offers testimony or exhibits which that attorney believes are not properly admissible. Only by raising an objection can a lawyer request and obtain a ruling from the Court on the admissibility of that evidence being offered by the other side. You should not be influenced against a lawyer or his client because the lawyer has made objections. Do not attempt, moreover, to interpret my rulings on objections as somehow indicating to you who I think should win or lose the case.
In these instructions you are told that one or the other party has the burden to prove certain facts. The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by the "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. But the preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You may have heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies only in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
You must consider Harrell's claims against each defendant separately. Jefferson County, sheriff Gerald Robinson, deputy Lafayette Woods, and deputy Stanley James are each entitled to have the case decided solely on the claims against them, and solely based on the evidence that applies to each of them.
If there's no contract for a fixed term, subject to some exceptions, either the employer or the employee may end an employment relationship at any time. This is called the employment-at-will doctrine. There was no employment contract between Harrell and Jefferson County. Therefore, Harrell could be fired for a good reason, no reason at all, or even a reason that's morally wrong. You can't return a verdict for Harrell just because you disagree with the decision to fire him or conclude that the decision was harsh or unreasonable. But the law forbids treating an at-will employee such as Harrell differently because of his race or because he exercised his Family and Medical Leave Act rights. The law does not allow Jefferson County, sheriff Robinson, deputy Woods, or deputy James to discriminate against Harrell because of race or because he exercised FMLA rights. Employers may take subjective considerations into account in making their employment decisions. But these considerations may hide discrimination, and so you should scrutinize them.
Your verdict must be for David Harrell and against Gerald Robinson on Harrell's firing race discrimination claim if Harrell has proved three elements:
First, Robinson fired Harrell;
Second, Harrell's race was the determining factor in the decision to fire him; and
Third, Robinson was acting under color of state law.
If Harrell has not proved all three elements against Robinson then your verdict must be for Robinson. Harrell's race was the determining factor only if Robinson would not have fired Harrell but for his race. Harrell's race, however, need not have been the only reason for the decision to fire him. You may find that Harrell's race was the determining factor if he has proved that the stated reason for his firing was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Lafayette Woods, on Harrell's firing race discrimination claim if Harrell has proved three elements:
First, Woods recommended firing Harrell;
Second, Harrell's race was the determining factor in Woods's decision to recommend firing;
Third, Woods was acting under color of state law.
If Harrell has not proved all three elements against Woods then your verdict must be for Woods. Harrell's race was the determining factor only if Woods would not have recommended firing Harrell but for his race. Harrell's race, however, need not have been the only reason for the decision to recommend firing him. You may find that Harrell's race was the determining factor if he has proved that the stated reason for recommending his firing was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Stanley James, on Harrell's firing race discrimination claim if Harrell has proved three elements:
First, James recommended firing Harrell;
Second, Harrell's race was the determining factor in James's decision to recommend firing;
Third, James was acting under color of state law.
If Harrell has not proved all three elements against James then your verdict must be for James. Harrell's race was the determining factor only if James would not have recommended firing Harrell but for his race. Harrell's race, however, need not have been the only reason for the decision to recommend firing him. You may find that Harrell's race was the determining factor if he has proved that the stated reason for recommending his firing was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Gerald Robinson on Harrell's decertification race discrimination claim if Harrell has proved all three elements:
First, Robinson sought Harrell's decertification;
Second, Harrell's race was the determining factor in Robinson's decision to seek Harrell's decertification;
Third, that Robinson was acting under color of state law.
If Harrell has not proved all three elements against Robinson, then your verdict must be for Robinson. Harrell's race was the determining factor only if Robinson would not have sought Harrell's decertification but for his race. Harrell's race, however, need not have been the only reason for the decision to seek his decertification. You may find that Harrell's race was the determining factor if he has proved that the stated reason for seeking his decertification was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Lafayette Woods, on Harrell's decertification race discrimination claim if Harrell has proved three elements:
First, Woods recommended pursuing Harrell's decertification;
Second, Harrell's race was the determining factor in Woods's decision to recommend pursuing his decertification;
Third, that Woods was acting under color of state law.
If Harrell has not proved all three elements against Woods, then your verdict must be for Woods. Harrell's race was the determining factor only if Woods would not have recommended seeking Harrell's decertification but for his race. Harrell's race, however, need not have been the only reason for the decision to seek his decertification. You may find that Harrell's race was the determining factor if he has proved that the stated reason for seeking his decertification was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Stanley James on Harrell's decertification race discrimination claim if Harrell has proved three elements:
First, James recommended pursuing Harrell's decertification;
Second, Harrell's race was the determining factor in James's decision to recommend pursuing his decertification;
Third, James was acting under color of state law.
If Harrell has not proved all three elements against James, then your verdict must be for James. Harrell's race was the determining factor only if James would not have recommended seeking Harrell's decertification but for his race. Harrell's race, however, need not have been the only reason for the decision to seek his decertification. You may find that Harrell's race was the determining factor if he has proved that the stated reason for seeking his decertification was not the real reason, but was a pretext to hide race discrimination.
Your verdict must be for David Harrell and against Jefferson County on Harrell's Family and Medical Leave Act firing claim if Harrell has proved six elements:
Third, Harrell provided timely notice to Jefferson County of his need for leave;
Fourth, Harrell gave Jefferson County enough information (as soon as was practicable) so that the County should have known the leave was for the birth of Harrell's son;
Fifth, Jefferson County fired Harrell; and
Sixth, Harrell's leave was a motivating factor in the County's decision to fire Harrell.
If Harrell has not proved all six elements against Jefferson County, then your verdict must be for the County. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Gerald Robinson on Harrell's Family and Medical Leave Act firing claim if Harrell has proved six elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to Gerald Robinson of his need for leave;
Fourth, Harrell gave Gerald Robinson enough information (as soon as was practicable) so that the Robinson should have known the leave was for the birth of Harrell's son;
Fifth, Robinson fired Harrell; and
Sixth, Harrell's leave was a motivating factor in Robinson's decision to fire Harrell.
If Harrell has not proved all six elements against Robinson, then your verdict must be for Robinson. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Lafayette Woods on Harrell's Family and Medical Leave Act firing claim if Harrell has proved six elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to Woods of his need for leave;
Fourth, Harrell gave Woods enough information (as soon as was practicable) so that the Woods should have known the leave was for the birth of Harrell's son;
Fifth, Woods recommended firing Harrell; and
Sixth, Harrell's leave was a motivating factor in Woods's decision to fire Harrell.
If Harrell has not proved all six elements against Woods, then your verdict must be for Woods. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Stanley James on Harrell's Family and Medical Leave Act firing claim if Harrell has proved six elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to James of his need for leave;
Fourth, Harrell gave James enough information (as soon as was practicable) so that the James should have known the leave was for the birth of Harrell's son;
Fifth, James recommended firing Harrell; and
Sixth, Harrell's leave was a motivating factor in James's decision to recommend firing Harrell.
If Harrell has not proved all six elements against Robinson, then your verdict must be for Robinson. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Jefferson County on Harrell's Family and Medical Leave Act decertification claim if Harrell has proved all the following elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to Jefferson County of his need for leave;
Fourth, Harrell gave Jefferson County enough information (as soon as was practicable) so that Jefferson County should have known the leave was for the birth of Harrell's son;
Fifth, Jefferson County sought Harrell's decertification; and
Sixth, Harrell's leave was a motivating factor in the County's decision to seek Harrell's decertification.
If Harrell has not proved all six elements against Jefferson County, then your verdict must be for the County. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Gerald Robinson on Harrell's Family and Medical Leave Act decertification claim if Harrell has proved all the following elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to Robinson of his need for leave;
Fourth, Harrell gave Robinson enough information (as soon as was practicable) so that Robinson should have known the leave was for the birth of Harrell's son;
Sixth, Harrell's leave was a motivating factor in the Robinson's decision to seek Harrell's decertification.
If Harrell has not proved all six elements against Robinson, then your verdict must be for the Robinson. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Lafayette Woods on Harrell's Family and Medical Leave Act decertification claim if Harrell has proved all the following elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to Woods of his need for leave;
Fourth, Harrell gave Woods enough information (as soon as was practicable) so that Woods should have known the leave was for the birth of Harrell's son;
Fifth, Woods recommended pursuing Harrell's decertification; and
Sixth, Harrell's leave was a motivating factor in the Woods's decision to recommend pursuing Harrell's decertification.
If Harrell has not proved all six elements against Woods, then your verdict must be for the Woods. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
Your verdict must be for David Harrell and against Stanley James on Harrell's Family and Medical Leave Act decertification claim if Harrell has proved all the following elements:
First, Harrell was an FMLA-eligible employee;
Second, Harrell needed leave because of the birth of his son;
Third, Harrell provided timely notice to James of his need for leave;
Fourth, Harrell gave James enough information (as soon as was practicable) so that James should have known the leave was for the birth of Harrell's son;
Fifth, James recommended pursuing Harrell's decertification; and
Sixth, Harrell's leave was a motivating factor in the James's decision to recommend pursuing Harrell's decertification.
If Harrell has not proved all six elements against James, then your verdict must be for the James. "Timely notice" means notifying the employer as soon as practicable after learning of the need to take leave.
If you find that Harrell's FMLA leave related to his son's birth motivated Harrell's firing, then you must decide whether Harrell would have been fired anyway. If you find that Harrell's FMLA leave motivated the decertification effort, then you must decide whether that effort would have been made anyway. In other words, consider whether Jefferson County or the County officers would have made the same decisions if Harrell was not Caucasian or had not exercised his FMLA rights. Jefferson County, Robinson, Woods, and James have the burden of proving that they would have made the same decisions.
If you find in favor of Harrell under Instruction No. 11, or No. 14, or both, then you must award Harrell a sum against Gerald Robinson, individually, that will fairly and justly compensate Harrell for any damages you find he sustained as a direct result of any race-based decision to discharge him or seek his decertification. Harrell may be entitled to two kinds of damages—wages and fringe benefits.
You must determine the amount of any wages and fringe benefits Harrell would have earned in his employment with Jefferson County if he had not been discharged on 3 November 2009 through the date of your verdict, minus the amount of earnings and benefits that Harrell received from other employment during that time.
Harrell has a duty under the law to "mitigate" his damages—that is to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if it has been proved that Harrell failed to seek out or take advantage of any opportunity that was reasonably available to him, you must reduce his damages by the amount of wages and fringe benefits Harrell could have earned if he had sought out or taken advantage of such an opportunity.
Remember, throughout your deliberations, you must not engage in any speculation, guess work, or conjecture and you must not award damages under this instruction by way of punishment or through sympathy.
If you find in favor of Harrell under Instruction No. 12, or No. 14, or both, then you must award Harrell a sum against Lafayette Woods, individually, that will fairly and justly compensate Harrell for any damages you find he sustained as a direct result of any race-based decision to discharge him or seek his decertification. Harrell may be entitled to two kinds of damages—wages and fringe benefits.
You must determine the amount of any wages and fringe benefits Harrell would have earned in his employment with Jefferson County if he had not been discharged on 3 November 2009 through the date of your verdict, minus the amount of earnings and benefits that Harrell received from other employment during that time.
Harrell has a duty under the law to "mitigate" his damages—that is to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if it has been proved that Harrell failed to seek out or take advantage of any opportunity that was reasonably available to him, you must reduce his damages by the amount of wages and fringe benefits Harrell could have earned if he had sought out or taken advantage of such an opportunity.
Remember, throughout your deliberations, you must not engage in any speculation, guess work, or conjecture and you must not award damages under this instruction by way of punishment or through sympathy.
If you find in favor of Harrell under Instruction No. 13, or No. 16, or both, then you must award Harrell a sum against Stanley James, individually, that will fairly and justly compensate Harrell for any damages you find he sustained as a direct result of any race-based decision to discharge him or seek his decertification. Harrell may be entitled to two kinds of damages—wages and fringe benefits.
You must determine the amount of any wages and fringe benefits Harrell would have earned in his employment with Jefferson County if he had not been fired on 3 November 2009 through the date of your verdict, minus the amount of earnings and benefits that Harrell received from other employment during that time.
Harrell has a duty under the law to "mitigate" his damages—that is to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if it has been proved that Harrell failed to seek out or take advantage of any opportunity that was reasonably available to him, you must reduce his damages by the amount of wages and fringe benefits Harrell could have earned if he had sought out or taken advantage of such an opportunity.
Remember, throughout your deliberations, you must not engage in any speculation, guess work, or conjecture and you must not award damages under this instruction by way of punishment or through sympathy.
If you find that, but for Harrell's exercise of FMLA rights, the County would not have fired him, pursued decertification, or both, then you must award Harrell compensatory damages. Those damages must fairly and justly compensate Harrell for any damages you find he sustained. Harrell may be entitled to two kinds of damages—wages and fringe benefits.
You must determine the amount of any wages and fringe benefits Harrell would have earned in his employment with Jefferson County if he had not been fired on 3 November 2009 through the date of your verdict, minus the amount of earnings and benefits that Harrell received from other employment during that time.
Harrell has a duty under the law to "mitigate" his damages—that is to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if it has been proved that Harrell failed to seek out or take advantage of any opportunity that was reasonably available to him, you must reduce his damages by the amount of wages and fringe benefits Harrell could have earned if he had sought out or taken advantage of such an opportunity.
Remember, throughout your deliberations, you must not engage in any speculation, guess work, or conjecture and you must not award damages under this instruction by way of punishment or through sympathy.
If you find in favor of Harrell, but you find that his damages have no monetary value, then you must return a verdict for Harrell in the nominal amount of $1.00.
Harrell has separate claims against Jefferson County, Robinson, Woods, and James. Consider each claim, and related damages, separately. But Harrell may not recover more than once for the same damages.
In addition to damages mentioned in other instructions, the law permits the jury under certain circumstances to award punitive damages. If you find in favor of Harrell and assess damages against any of the three officers, then you must decide whether any of the three individual defendants—Robinson, Woods, or James,—acted with malice or reckless indifference to Harrell's right not to be discriminated against on the basis of race. A person acted with malice or reckless indifference if it has been proved that he knew that the race-based termination or the decertification effort was in violation of the law.
If you find that the person acted with malice or reckless indifference to Harrell's rights, then in addition to any other damages to which you find Harrell entitled, you may, but are not required to, award Harrell an additional amount as punitive damages for the purposes of punishing a person for engaging in misconduct and deterring him and others from engaging in the same misconduct in the future. You should presume that Harrell has been made whole for his injuries by the damages awarded under Instruction No. 22, No. 23, No. 24, and No. 26.
If you decide to award punitive damages, you should consider the following in deciding the amount:
1. How reprehensible Robinson's, Woods's, or James's conduct was. In this regard, you may consider whether the harm suffered by Harrell was physical or economic or both; whether there was violence, deceit, intentional malice, reckless disregard for human health or safety; whether the persons's conduct that harmed Harrell also posed a risk of harm to others; whether there was any repetition of the wrongful conduct and past conduct of the sort that harmed Harrell.
2. How much harm the wrongful conduct caused Harrell and could cause Harrell in the future.
3. What amount of punitive damages, in addition to the other damages already awarded, is needed, considering Robinson's, Woods's, or James's financial condition to punish him for his wrongful conduct toward Harrell and to deter him and others from similar wrongful conduct in the future.
The amount of any punitive damages award should bear a reasonable relationship to the harm caused to Harrell.
You may assess punitive damages against any or all of the officers or you may refuse to impose punitive damages. If punitive damages are assessed against more than one person, the amounts assessed against each person may be the same or they may be different.
Finally, the verdicts are simply the written notice of the decisions that you reach in this case. I'll read them now. You will take these verdicts to the jury room, and when each of you has agreed on the answers, your foreperson will fill in each verdict that you are called upon to answer to reflect your unanimous decision, sign and date it when you have reached all your verdicts, then advise the court security officer that you are ready to return to the courtroom.
I add the caution that nothing said in the instructions—and nothing in the verdict forms I've prepared for your convenience—is or was intended to suggest or convey in any way or manner any intimation about what answers I think you should find. How you choose to answer the verdicts shall be the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with the Court, you may send a note by the court security officer, signed by your foreperson, or by one or more members of the Jury. No member of the Jury should ever attempt to communicate with the Court by any means other than a signed writing; and the Court will never communicate with any member of the Jury, on any subject touching the merits of the case, other than in writing, or orally here in open Court.
You will note from the oath about to be taken by the court security officer to act as bailiff that he, and all other persons, are forbidden to communicate in any way or manner with any member of the Jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person, not even to the Court, how the Jury stands, numerically or otherwise, on the issues presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together in the jury room, and not to permit any person to speak to or communicate with them, concerning this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and to return them into the courtroom when they have so agreed, or when otherwise ordered by the Court, so help you God?
If you find Harrell suffered damages but his damages have no monetary value, then enter a nominal damages amount of $1.00 as submitted in Instruction No. 26.
If you find Harrell suffered damages but his damages have no monetary value, then enter a nominal damages amount of $1.00 as submitted in Instruction No. 26.
If you find Harrell suffered damages but his damages have no monetary value, then enter a nominal damages amount of $1.00 as submitted in Instruction No. 26.
If you find Harrell suffered damages but his damages have no monetary value, then enter a nominal damages amount of $1.00 as submitted in Instruction No. 26.
Has James proved he would have recommended pursuing Harrell's decertification even if he hadn't taken FMLA leave?
If you find Harrell suffered damages but his damages have no monetary value, then enter a nominal damages amount of $1.00 as submitted in Instruction No. 26.
