2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Luuuuuuu. ROXANN J. FRANKLIN - MASON, Plaintiff, V. Civil Action No. 03 - 945 (JEB) RAY MABUS, Secretary of the Navy, LIIIIIIIIIIIIIIIII Defendant. IIIIIIIIII FINAL JURY INSTRUCTIONS Ladies and gentlemen, the time has now come when all of the evidence is in. It is now up to me to instruct you on the law. Before we talk about the specific claims alleged here and some of the specific issues in this case, I want to take a few moments to talk about some general rules of law. Some of these will repeat what I told you in my preliminary instructions. Function of the Court My function is to conduct this trial in an orderly, fair, and efficient manner; to rule on questions of law; and to instruct you on the law that applies in this case. It is your duty to accept the law as I instruct you. You should consider all the instructions as a whole. You may not ignore or refuse to follow any of them. Function of the Jury Your function, as the jury, is to determine what the facts are in this case. You are the sole judges of the facts. . While it is my responsibility to decide what is admitted as evidence during the trial, you alone decide what weight, if any, to give to that evidence. You alone decide the credibility or believability of the witnesses, 2 You should determine the facts without prejudice, fear, sympathy, or favoritism. You should not be improperly influenced by anyone's race, ethnic origin, or gender. Decide the case solely from a fair consideration of the evidence. You may not take anything I may have said or done as indicating how I think you should decide this case. If you believe that I have expressed or indicated any such opinion, you should ignore it. The verdict in this case is your sole and exclusive responsibility. Party Designations During the course of the trial, you have heard references to the terms plaintiff and defendant. To put it as simply as possible, the plaintiff is the person who starts a lawsuit, and the defendant is the person who is sued by the plaintiff. During your deliberations, however, you must not attach any significance in weighing the evidence to the terms plaintiff and defendant. In other words, the fact that the plaintiff has filed a lawsuit against the defendant does not mean that the plaintiff is entitled to your verdict or that her evidence is entitled to greater weight than the defendant's evidence. A plaintiff must prove every element of her claim against a defendant by a preponderance of the evidence, a standard I will explain in a moment, before she is entitled to prevail. Jury's Recollection Controls If any reference by the court or the attorneys to evidence does not coincide with your own recollection of the evidence, it is your recollection that should control during your deliberations. Considering the Evidence in the Case During your deliberations, you may consider only the evidence or lack of evidence properly admitted in this trial. The evidence in this case was the sworn testimony of the SWOIII witnesses and the exhibits that were admitted into evidence. 2 2 TA When you consider the evidence, you are permitted to draw, from the facts that you find V f 1 have been proven, such reasonable inferences as you feel are justified in the light of your experience. Number of Witnesses The relative weight of the evidence on a particular issue is not determined by the number of witnesses testifying for either side. You should consider all the facts and circumstances in evidence to determine which of the witnesses are worthy of greater belief. You may find that the testimony of a smaller number of witnesses on one side is more believable than the testimony of AS ON O a greater number of witnesses on the other side. Indeed, the testimony of a single witness, which you believe to be the truth, is enough to prove any fact. If, after considering all the evidence in the case, you hold a greater belief in the accuracy and reliability of one or a few witnesses ' testimony, then you may base your verdict on that testimony, even though a larger number of witnesses may have testified to the contrary. Equality of Litigants Our system of justice requires that you decide the facts of this case in an impartial manner. You must not be influenced by bias, sympathy, prejudice or public opinion. It is a a violation of your sworn duty to base your verdict upon anything other than the evidence in the case. In reaching a just verdict, you must consider and decide this case as an action between persons of equal standing in the community and of equal worth. The government has the same right to a fair trial as a private individual. All persons, including entities, stand equal before the law and are to be treated as equals in this court. In other words, the fact that a plaintiff or defendant is an entity must not affect your decision. 3 2 Statements of Counsel - - Not Evidence The statements and arguments of the lawyers are not evidence. They are only intended to assist you in understanding the evidence. Inadmissible and Stricken Evidence The lawyers in this case sometimes objected when the other side asked a question, made an argument, or offered evidence that the objecting lawyer believed was not proper, You must not hold such objections against the lawyer who made them or the party s / he represents. It is the lawyers ' responsibility to object to evidence that they believe is not admissible. If, during the course of the trial, I sustained an objection to a lawyer's question, you should ignore the question, and you must not speculate as to what the answer would have been. 11SWEI * If, after a witness answered a question, I ruled that the answer should be stricken, you should ignore both the question and the answer and they should play no part in your deliberations. Likewise, exhibits as to which I have sustained an objection or that I ordered stricken are not evidence, and you must not consider them in your deliberations. Credibility of Witnesses In determining whether the Plaintiff has proved her case, you must consider and weigh the testimony of all the witnesses who have appeared before you, You are the sole judge of the credibility of the witnesses. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed. In reaching a conclusion as to the credibility of any witness, you may consider any matter that may have a bearing on the subject. You may consider the demeanor and the behavior of the witness on the witness stand; the witness's manner of testifying; whether the witness impresses you as a truthful person; whether the witness impresses you as having an accurate memory and 2 recollection, whether the witness has any motive for not telling the truth; whether the witness had a full opportunity to observe the matters about which he or she has testified; whether the witness has any interest in the outcome of this case, or friendship or hostility toward other people TL Y concerned with this case. If you believe that any witness has shown him or herself to be biased or prejudiced, for or against either side in this trial, you may consider and determine whether such bias or prejudice has colored the testimony of the witness so as to affect the desire and capability of that witness to tell the truth. You should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive. Prior Inconsistent Statement Under Oath You have heard evidence that certain witnesses made earlier statements under oath in depositions or prior proceedings and that these statements may be inconsistent with their testimony here at trial. If you find that the earlier statement is inconsistent with the witness's testimony here in court, you may consider this inconsistency in judging the credibility of the witness. You also may consider this earlier statement as evidence that what was said in the earlier statement was true. Nature of Case Not to be considered One of the questions you were asked when we were selecting this jury was whether the nature of the case â that is, retaliation â would affect your ability to render a fair and impartial verdict. There was a reason for that question. You must not allow the nature of the case itself to affect your verdict. You must consider only the evidence that has been presented in this case in rendering a fair and impartial verdict. 2 Burden of Proof The party who makes a claim has the burden of proving it. This burden of proof means that the plaintiff must prove every element of her claim by a preponderance of the evidence. To establish a fact by a preponderance of the evidence is to prove that it is more likely so than not so. In other words, a preponderance of the evidence means that the evidence produces in your mind the belief that the thing in question is more likely true than not true. If, after considering all of the evidence, the evidence favoring the plaintiff's side of an issue is more convincing to you, and causes you to believe that the probability of truth favors the plaintiff on that issue, then the plaintiff will have succeeded in carrying the burden of proof on that issue. The term " preponderance of the evidence " does not mean that the proof must produce absolute or mathematical certainty. For example, it does not mean proof beyond a reasonable doubt as is required in criminal cases. Whether there is a preponderance of the evidence depends on the quality, and not the quantity, of evidence. In other words, merely having a greater number of witnesses or documents bearing on a certain version of the facts does not necessarily constitute a preponderance of the evidence. If you believe that the evidence is evenly balanced on an issue the plaintiff had to prove, then your finding on that issue must be for the defendant. Evidence Produced by Adversary In determining whether any fact has been proved by a preponderance of the evidence, you should consider all the evidence bearing upon that fact, regardless of who produced it. A party is 2 entitled to benefit from all evidence that favors her or it whether she or it produced it or she or its adversary produced it. Retaliation Cause of Action Plaintiffs cause of action is for retaliation under Title VII of the Civil Rights Act. To prevail on this claim, Plaintiff must prove the following elements: 1. She engaged in protected activity; 2. She was subjected to a materially adverse action after the protected activity took place; and 3. There was a causal connection between the protected activity and the materially adverse action, meaning that the Navy took such action against her because of her protected activity. There is no dispute as to the first element. In other words, the Navy does not dispute that Plaintiff filed an EEO claim and then her 1996 lawsuit alleging discrimination, which she continued to litigate through 2004. All of these actions constitute protected activity. The dispute is over the second and third elements. To be materially adverse, the Navy's actions must be more than those petty slights or minor annoyances that often take place at work and that all employees experience. The Navy must have acted toward Plaintiff in a manner that a reasonable employee would have found ma materially adverse, which means that the Navy's actions well might have dissuaded a reasonable worker from engaging in protected activity. Those materially adverse actions may have taken the form of separate specific acts, but there is no claim remaining in this case that it took the form of a hostile work environment. In addition, Plaintiff cannot and has not claimed in this case that the 2 Navy breached the settlement agreement in the earlier case, and you may not consider that any such breach constitutes retaliation, As to the third element, Plaintiff must prove that the Navy took such adverse actions against her because she had engaged or was engaging in protected activity. Constructive Discharge Plaintiff contends that, as part of her retaliation, the Navy constructively discharged her. In other words, although the Navy did not fire her, its actions forced her to retire. In order to establish a constructive discharge, Plaintiff must prove that the Navy made her working conditions so intolerable or unendurable that a reasonable person in Plaintiff's position would have felt compelled to resign under the circumstances, Right to Make Business Decisions In considering whether Plaintiff has established retaliation, you may consider the Navy's position that Plaintiffs supervisors ' interaction with her were not related to her engaging in protected activity, but were instead legitimate business decisions. Defendant has only the burden of articulating a legitimate, nonretaliatory reason for its actions. The Navy does not have to persuade you of this fact by a preponderance of the evidence. Even if an employer is mistaken and its business judgment is wrong, an employer is entitled to make its own policy and business judgments. An employer may make those employment decisions as it sees fit, as long as they are not unlawful. Retaliation is not established just because you disagree with the business judgment of Defendant, unless you find that Defendant's reason was a pretext - i. e ., not the true reason â for retaliation. If you find that the employer's stated reason for an employment action is not credible, then you may, but need not, infer retaliation on the basis of Plaintiff's protected activity. 2 Damages If you find that Ms. Franklin - Mason has carried her burden of showing that it was more IS INIO likely than not that the Navy retaliated against her, you must then consider the issue of the LIA damages that she has sustained. Plaintiff is entitled to damages that the Navy's actions proximately caused. In other words, Defendant is liable only for the damages that its conduct caused. . In considering the amount of damages, you may only award damages for non - economic loss. That is, you may awaid Plaintiff danmages for any mental anguish, humiliation, or pain and suffering she endured from such retaliation. You may not, however, award any money for fost wages, back pay, medical bills, future economic damages, or to punish the Navy - - i. e ., punitive damages. If you find that the Navy is liable, it is up to me to award such economic damages. It is also up to me to make any award of attorney fees. Speculative Damages The burden of proof is upon Plaintiff to establish all elements of her damages by a preponderance of the evidence. She must prove her damages with reasonable certainty. You may only award her damages for past injury that is not speculative. Speculative damages are those that might be possible but are remote or based on guesswork. Plaintiff does not have to prove her exact damages, however. You may award her damages that are based on a just and reasonable TL estimate derived from relevant evidence. [ ATTORNEYS WILL NOW GIVE CLOSING ARGUMENTS ] Before I excuse you to deliberate, I want to discuss a few final matters with you: 2 Selection of Foreperson When you return to the jury room, you should first select a foreperson to preside over your deliberations and to be your spokesperson here in court. There are no specific rules regarding how you should select a foreperson. That is up to you. However, as you go about the task, be mindful of your mission - - to reach a fair and just verdict based on the evidence. Consider selecting a foreperson who will be able to facilitate your discussions, who can help you organize the evidence, who will encourage civility and mutual respect among all of you, who will invite each juror to speak up regarding his or her views about the evidence, and who will promote a full and fair consideration of that evidence. Cautionary Instruction on Communication and Research DIIII As you retire to the jury room to deliberate, I also wish to remind you of an instruction I gave you at the beginning of the trial. During deliberations, you may not communicate with anyone not on the jury about this case. This includes any electronic communication such as email or text or any blogging about the case. In addition, you may not conduct any independent investigation during deliberations. This means you may not conduct any research in person or electronically via the internet or in another way. Communications Between Court and Jury During Jury's Deliberations If it becomes necessary during your deliberations to communicate with me, you may send a note by deputy, signed by your foreperson or by one or more members of the jury. No member of the jury should try to communicate with me except by such a signed note, and I will never communicate with any member of the jury on any matter concerning the merits of this case, except in writing or orally here in open court. 10 2 R ! Bear in mind also that you are never, under any circumstances, to reveal to any person - - not the clerk or me - how jurors are voting until after you have reached a unanimous verdict. This means that you should never tell me, in writing or in open court, how the jury is divided on any matter â for example, 4 - 4 or 7 - 1 - or in any other fashion â or whether the vote favors the plaintiff, the defendant, or is on any other issue in the case. Jurors ' Duty to Deliberate It is your duty as jurors to consult with one another and to deliberate expecting to reach an agreement. You must decide the case for yourself but you should do so only after thoroughly discussing it with your fellow jurors. You should not hesitate to change an opinion when convinced that it is wrong. You should not be influenced to vote in any way on any question just because another juror favors a particular decision or holds an opinion different from your own. You should reach an agreement only if you can do so in good conscience. In other words, you should not surrender your honest beliefs about the effect or weight of evidence merely to return a verdict or solely because of other jurors ' opinions. Attitude and Conduct of Jurors in Deliberations The attitude and conduct of jurors at the beginning of their deliberations are matters of considerable importance. It may not be useful for a juror, upon entering the jury room, to voice a strong expression of an opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may cause that juror to hesitate to back away from an announced position after a discussion of the case. Furthermore, many juries find it useful to avoid an initial vote upon retiring to the jury room. Calmly reviewing and 2 discussing the case at the beginning of deliberations is often a more useful way to proceed. Remember that you are not partisans or advocates in this matter, but you are judges of the facts. Unanimity of Verdict A verdict must represent the considered judgment of each juror, and in order to return a verdict, each juror must agree on the verdict. In other words, your verdicts must be unanimous, Exhibits During Deliberations I will be sending into the jury room with you the exhibits that have been admitted into evidence. You may examine any or all of them as you consider your verdicts. Please keep in mind that exhibits that were only marked for identification but were not admitted into evidence will not be given to you to examine or consider in reaching your verdict. Furnishing the Jury With a Copy of the Instructions I will provide you with a copy of my instructions. During your deliberations, you may, if you want, refer to these instructions. While you may refer to any particular portion of the instructions, you are to consider the instructions as a whole and you may not follow some and e a ignore others. If you have any questions about the instructions, you should feel free to send me a note. Please return your instructions to me when your verdict is rendered. Delivering the Verdict When you have reached your verdict, just send me a note telling me you have reached your verdict, and have your foreperson sign the note. Do not tell me what your verdict is. The foreperson should fill out and sign the verdict form that will be provided. We will then call you into the courtroom and ask you your verdict in open court, Thank you. You may now retire to begin your deliberations.