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Marshall v. Rawlings Co. LLC

United States District Court, W.D. Kentucky, Louisville Division

March 30, 2018

GLORIA MARSHALL
v.
THE RAWLINGS COMPANY, LLC

          JURY INSTRUCTIONS

         INTRODUCTION

         Members of the jury, it is now time for me to instruct you about the law that you must follow in deciding this case. I will start by explaining your duties and the general rules that apply in every civil case. Then I will explain the elements, or parts, of the two claims in question.

         You have two main duties as a juror:

         The first is to decide what the facts are from the evidence that you saw and heard here in Court. Deciding what the facts are is your job-not mine. Nothing that I have said or done during this trial was meant to influence your decision about the facts in any way.

         Your second duty is to take the law that I give you and apply it to the facts. It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you during the trial and these instructions now. All of the instructions are important, and you should consider them together as a whole.

         The lawyers may have talked about the law during their arguments. But if what they said is different from what I say, you must follow what I say. What I say about the law controls.

         Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel toward one side or the other influence your decision in any way. The law does not permit you to be governed by sympathy, prejudice, or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as I give it to you, and reach a just verdict, regardless of the consequences.

         You should consider and decide this case as a dispute between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. All persons and businesses stand equal before the law and are to be treated as equals.

         You are to consider only the evidence in the case. Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses regardless of who called the witness, all exhibits received in evidence regardless of who may have produced them, and all facts and events that may have been admitted or stipulated to.

         Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you understand the evidence, but it is not evidence.

         Another part of your job as jurors is to decide how credible, or believable, each witness was. This is your job, not mine. It is up to you to decide if a witness's testimony was believable and how much weight you think it deserves. You are free to believe everything that a witness said, or only part of it, or none of it at all. But you should act reasonably and carefully in making these decisions.

         INSTRUCTION NO. 1

         Burden of Proof

         Gloria Marshall, whom I will refer to as "the Plaintiff" throughout these instructions, has the burden of proving her case by what is called a preponderance of the evidence. This means that the Plaintiff must produce evidence that, considered in light of all the facts, leads you to believe that what she claims is more likely true than not.

         The term "preponderance of the evidence" does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.

         In determining whether any fact in issue has been established by a preponderance of the evidence in the case, you may-unless otherwise instructed-consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received into evidence, regardless of who may have produced them.

         You may have heard of the term "proof beyond a reasonable doubt." That is a stricter legal standard applicable in criminal cases. It does not apply in civil cases like this one. Therefore, you should disregard it.

         INSTRUCTION NO. 2

         The Nature of an FMLA Claim

         The Plaintiff claims that she was retaliated against by The Rawlings Company, which I will refer to as "the Defendant" in these instructions, for exercising her rights under the Family and Medical Leave Act, a law which is often referred to as "FMLA."

         This law entitles an eligible employee to take up to twelve weeks of unpaid leave during any twelve-month period for many different reasons. One of these reasons would be because the employee has a serious health condition which makes her unable to perform the essential functions of her position.

         The FMLA gives the employee the right, following FMLA leave, to either return to the position she held when the leave began, or to an equivalent position. An "equivalent position" is a position that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perks, and status. It must involve the same or substantially the same duties, which must entail substantially equivalent skill, effort, responsibility, and authority.

         Under the FMLA, it is unlawful for any employer to interfere with, restrain or deny a right provided by the FMLA, or to retaliate against an employee for taking FMLA.

         As you listen to the instructions on this claim, please keep in mind that some of the terms I will use have a special meaning under the law. So please remember to consider the specific definitions I give you, rather than using your own opinion as to what these terms mean.

         INSTRUCTION NO. 3

         Elements of an FMLA Retaliation Claim: the Plaintiffs Demotion

         In this case, the Plaintiffs first claim against the Defendant is for retaliation in violation of the FMLA. She first claims that she was retaliated against unlawfully when she was demoted from Team Lead to Analyst. In order to prevail on her claim of FMLA retaliation relating to her demotion, the Plaintiff must prove all of the following things by a preponderance of the evidence:

First, the Plaintiff engaged in an "FMLA-protected activity;"
Second, the Defendant knew that she was exercising her rights under the FMLA;
Third, after learning of the Plaintiffs exercise of FMLA rights, the Defendant took adverse employment action against her by demoting her; and
Fourth, the Plaintiffs act of engaging in FMLA-protected activity was a motivating factor for the adverse employment action of demoting her.

         The term "FMLA-protected activity" includes, but is not limited to, requesting or taking leave under the FMLA.

         With respect to the fourth element listed above, the Plaintiff may recover under one of two alternative and mutually exclusive legal theories:

         Theory One. The first theory is that the "decision maker, " that is, Laura Plumley, the individual who made the decision to demote the Plaintiff, harbored a retaliatory bias in making the decision to demote the Plaintiff from Team Lead to Analyst. Under Theory One, you must ask the question of whether the Plaintiffs act of engaging in an FMLA-protected activity was a motivating factor in Laura Plumley's decision to demote her. In determining whether the Plaintiffs taking of FMLA leave was a "motivating factor" in Laura Plumley's decision, it is not necessary that the Plaintiff prove that her FMLA leave was the sole reason for Laura Plumley's decision; the FMLA leave may just be a motivating reason. A motivating reason is a reason or desire that causes someone to take action.

         Theory Two. The second, alternative legal theory under which the Plaintiff may recover is a theory of liability called "Cat's Paw" liability. Theory Two ("Cat's Paw") creates the basis for employer liability even when there is no evidence of bias against the Plaintiff by the ultimate decision maker, here meaning Laura Plumley, the person who made the decision to demote the Plaintiff. Instead, the theory rests on the allegation that a biased subordinate intentionally manipulated Laura Plumley. Under these circumstances, Laura Plumley's intent as the decision maker does not matter, and consequently the honesty of her belief does not matter. Under Theory Two ("Cat's Paw"), you the jury must ask this question: whether Jeff Bradshaw and/or Mike Eisner, motivated by a retaliatory bias, intentionally manipulated the decision maker, Laura Plumley, who, in turn, made the decision to demote the Plaintiff. In other words, in the absence of evidence that Laura Plumley harbored a retaliatory bias against her, the Plaintiff may prevail under Theory Two ("Cat's Paw") if she shows by a preponderance of the evidence that Mike Eisner and/or Jeff Bradshaw intentionally manipulated Laura Plumley, and the fact that the Plaintiff had taken FMLA leave was a "motivating factor" in their decision to deliver that information to Laura Plumley.

         In reaching your decision regarding the "motivating factor" element under Theory Two ("Cat's Paw"), you should look to the individuals that the Plaintiff contends held retaliatory motives or biases against her based on the fact that the Plaintiff had taken FMLA leave: Mike Eisner and Jeff Bradshaw. Then, you should ask the question of whether one or both of these individuals intentionally manipulated Laura Plumley for retaliatory purposes, and whether that information played a role in the decision to demote the Plaintiff.

         Keep in mind that, under Theory Two ("Cat's Paw"), the decision maker's intent does not matter and, consequently, the honesty of the decision maker's belief that he or she is not acting unlawfully in rendering an adverse employment decision like demoting an employee does not matter.

         If you determine that the Plaintiff, either under Theory One or Theory Two ("Cat's Paw"), has proven the four above-referenced elements by a preponderance of the evidence, then you must find in favor of the Plaintiff on her claim of FMLA retaliation relating to her demotion.

         However, even if you find that the Plaintiff has proven the four above-referenced elements by a preponderance of the evidence, but you further find that the Defendant has proven by a preponderance of the evidence that, even if it did take the Plaintiffs exercise of her rights under the FMLA into account, it would have made the decision to demote the Plaintiff anyways, then you must find for the Defendant on this claim.

         INSTRUCTION NO. 4

         Elements of an FMLA Retaliation Claim: the Plaintiffs Termination

         As I said before, the Plaintiffs first claim against the Defendant is for retaliation in violation of the FMLA. She also claims that she was retaliated against unlawfully when she was terminated from her job with the Defendant. In order to prevail on her claim of FMLA retaliation relating to her termination, the Plaintiff must prove all of the following things by a preponderance of the evidence:

First, the Plaintiff engaged in an "FMLA-protected activity;"
Second, the Defendant knew that she was exercising her rights under the FMLA;
Third, after learning of the Plaintiffs exercise of FMLA rights, the Defendant took adverse employment action against her by terminating her; and
Fourth, the Plaintiffs act of engaging in FMLA-protected activity was a motivating factor for the adverse employment action of terminating her.

         The term "FMLA-protected activity" includes, but is not limited to, requesting or taking leave under the FMLA.

         Again, with respect to the fourth element listed above, the Plaintiff may recover under one of two alternative, mutually exclusive legal theories:

         Theory One. The first theory is that the "decision maker, " that is, George Rawlings, the individual who made the decision to terminate the Plaintiff, harbored a retaliatory bias in making that decision. Under this theory, you must ask the question of whether the Plaintiffs act of engaging in an FMLA-protected activity was a motivating factor in George Rawlings' decision to terminate her. In determining whether the Plaintiffs taking of FMLA leave was a "motivating factor" in George Rawlings' decision to terminate her, it is not necessary that the Plaintiff prove that her FMLA leave was the sole reason for the decision; the FMLA leave may just be a motivating reason. A motivating reason is a reason or desire that causes someone to take action.

         Theory Two. The second, alternative legal theory under which the Plaintiff may recover is a theory of liability called "Cat's Paw" liability. Theory Two ("Cat's Paw") creates the basis for employer liability even when there is no evidence of bias against the Plaintiff by the ultimate decision maker, here meaning George Rawlings, the person who made the decision to terminate the Plaintiff. Instead, the theory rests on the allegation that a biased subordinate intentionally manipulated George Rawlings. Under these circumstances, George Rawlings' intent does not matter, and consequently the honesty of his belief does not matter. Under Theory Two ("Cat's Paw"), you the jury must ask this question: whether Jeff Bradshaw and/or Mike Eisner intentionally manipulated an intermediate decision maker, Laura Plumley, who in turn, either oblivious to or adopting the subordinate's bias, influenced the ultimate decision maker, George Rawlings. In other words, in the absence of evidence that either Laura Plumley or George Rawlings harbored a retaliatory bias against her, the Plaintiff may prevail under Theory Two ("Cat's Paw") if she shows by a preponderance of the evidence that Jeff Bradshaw and/or Mike Eisner intentionally manipulated Laura Plumley, the fact that the Plaintiff had taken FMLA leave was a "motivating factor" in their decision to deliver that information to Laura Plumley, and finally, that George Rawlings was influenced by the information provided to him by Laura Plumley in reaching his decision to terminate the Plaintiff.

         In reaching your decision regarding the "motivating factor" element under Theory Two ("Cat's Paw"), you should look to the individuals that the Plaintiff contends held retaliatory motives or biases against her based on the fact that the Plaintiff had taken FMLA leave: Mike Eisner and Jeff Bradshaw. Then, you should ask the question of whether one or both of these individuals intentionally manipulated Laura Plumley for retaliatory purposes, and whether that information was then relayed to George Rawlings, and finally, whether that information played a role in the decision to terminate the Plaintiff.

         Keep in mind that, under Theory Two ("Cat's Paw"), the decision maker's intent does not matter and, consequently, the honesty of the decision maker's belief that he or she is not acting unlawfully in rendering an adverse employment decision like terminating an employee does not matter.

         If you determine that the Plaintiff, either under Theory One or Theory Two ("Cat's Paw"), has proven the four above-referenced elements by a preponderance of the evidence, then you must find in favor of the Plaintiff on her claim of FMLA retaliation relating to her termination.

         However, even if you find that the Plaintiff has proven the four above-referenced elements by a preponderance of the evidence, but you further find that the Defendant has proven by a preponderance of the evidence that, even if it did take the Plaintiffs exercise of her rights under the FMLA into account, it would have made the decision to terminate the Plaintiff anyways, then you must find for the Defendant on this claim.

         INSTRUCTION NO. 5

         The Nature of an ADA Discrimination Claim

         I will now instruct you on the Plaintiffs second claim in this case. The Plaintiffs second claim is one for discrimination in violation of the Americans with Disabilities Act, often referred to as the "ADA." Under the ADA, it is illegal for an employer to discriminate against a person with a disability if that person is qualified to do the essential functions of her job and the employer is aware of her limitations. In this case, the Plaintiff claims that the Defendant discriminated against her by demoting and, later, terminating her because she had a disability.

         You have heard testimony that the Plaintiff sent emails to Mike Eisner which contained certain medical information relating to the Plaintiff. You also heard testimony that Mike Eisner forwarded those emails to Jeff Bradshaw. Sharing that medical information with Jeff Bradshaw or others is not a violation of the ADA.

         Finally, as you listen to these instructions, please keep in mind that many of the terms I will use have a special meaning under the law. So please remember to consider the specific definitions I give you, rather than using your own opinion as to what these terms mean.

         INSTRUCTION NO. 6

         Elements of the Plaintiffs ADA Discrimination Claim Relating to her Demotion

         I will now instruct you on the individual elements of a claim for discrimination under the ADA, as they relate to the Plaintiffs demotion from Team Lead to Analyst. The Plaintiff claims that her disability was the reason for the Defendant's decision to demote her. To succeed on this claim, the Plaintiff must prove by a preponderance of the evidence, each of the following five things:

First, the Plaintiff had a "disability, " as that term is defined under the ADA, or was "regarded" by the Defendant as having a disability;
Second, the Plaintiff was otherwise "qualified" to perform the "essential functions" of her job with or without accommodation;
Third, the Defendant demoted the Plaintiff;
Fourth, the employer knew or had reason to know of the Plaintiffs disability; and
Fifth, the Defendant demoted the Plaintiff "because of her disability."

         "Because of her disability"

         The fifth element of an ADA discrimination claim requires that the Plaintiff show she was demoted "because of her disability." With respect to this fifth element, the Plaintiff may recover under one of two alternative, mutually exclusive legal theories:

Theory One. Under Theory One, the Plaintiff must prove by a preponderance of the evidence that the decision maker, that is, Laura Plumley, the individual who made the decision to demote the Plaintiff, harbored a discriminatory bias in making the decision to demote her, and that her disability was the "but for cause" of Laura Plumley's decision to demote her. In other words, the sole reason why Laura Plumley decided to demote the Plaintiff was her disability or Laura Plumley's having regarded her as having a disability. This differs from the "motivating factor" language of the Plaintiffs FMLA retaliation claim.
Theory Two. The second, alternative legal theory under which the Plaintiff may recover is "Cat's Paw" liability. Similar to her claim of FMLA retaliation, the Plaintiff has made the claim that the Defendant is liable for ADA discrimination under Theory Two ("Cat's Paw"), which creates a basis for employer liability when there is no evidence of bias against the Plaintiff by the ultimate decision maker, here meaning Laura Plumley, the person who made the decision to demote the Plaintiff. Instead the theory rests on the idea that a biased subordinate intentionally manipulated Laura Plumley. Under these circumstances, Laura Plumley's intent as the decision maker does not matter, and consequently the honesty of her belief does not matter. Under Theory Two ("Cat's Paw"), you the jury must ask this question: whether the Plaintiff has proven by a preponderance of the evidence that Jeff Bradshaw and/or Mike Eisner, because of the Plaintiffs disability or their having regarded her as having a disability, intentionally manipulated the decision maker, Laura Plumley, in her decision to demote the Plaintiff.

         Remember, under the Cat's Paw theory, the decision maker's intent does not matter and, consequently, the honesty of the decision maker's belief that he or she is not acting unlawfully in rendering an adverse employment decision like demoting an employee does not matter.

         If you determine that the Plaintiff, under either Theory One or Theory Two (Cat's Paw"), has proven each of the five elements of the ADA Discrimination claim relating to her demotion by a preponderance of the evidence, then you must find for the Plaintiff on this claim. If you find that the Plaintiff has failed to prove any one of these five elements by a preponderance of the evidence, then you must find for the Defendant.

         INSTRUCTION NO. 7

         Elements of the Plaintiffs ADA Discrimination Claim Relating to her Termination

         I will now instruct you on the individual elements of a claim for discrimination under the ADA, as they relate to the Plaintiffs termination. The Plaintiff also claims that her disability was the reason for the Defendant's decision to terminate her. To succeed on this claim, the Plaintiff must prove by a preponderance of the evidence, each of the following five things:

First, the Plaintiff had a "disability, " as that term is defined under the ADA, or was "regarded" by the Defendant as having a disability;
Second, the Plaintiff was otherwise "qualified" to perform the "essential functions" of her job with or without accommodation;
Third, the Defendant terminated the Plaintiff;
Fourth, the employer knew or had reason to know of the Plaintiffs disability; and
Fifth, the Defendant terminated the Plaintiff "because of her disability."

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