Bridging the justice gap in New York
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNETH PARKER, :
Plaintiff, : 99 Civ. 9873 (SHS) (THK)
- against - :
PLAINTIFFS
SERGEANT ROBERT KRUSEN, CORRECTIONS : PROPOSED JURY
OFFICERS FRANK A. REDA, CHARLES INSTRUCTIONS
HARRISON, and BARRY NORFLEET :
Defendants. :
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Plaintiff, by and through its counsel, hereby submits the following proposed jury instructions for the trial of this action. Plaintiff reserves the right to amend and supplement its proposed jury instructions as required.
Burden of Proof: Preponderance of Evidence
At various times in these instructions I will use the term burden of proof in order to inform you which party has the burden of proof on a particular claim or a particular issue.
The party who has the burden of proof on a particular issue has the burden of establishing his position on that issue by a preponderance of the evidence. If you conclude that the party who has the burden of proof on an issue has failed to establish his position by a preponderance of the evidence, you must decide against that party on that issue.
What does preponderance of evidence mean? A fact is established by a preponderance of evidence when it is shown that the fact is more likely true than not true. Preponderance of evidence means the greater weight of the evidence. You are to determine whether a fact is established by a preponderance of the evidence on the basis of the quality and persuasiveness of the evidence, not on the basis of the number of witnesses or exhibits. In determining whether a fact has been proved by a preponderance of the evidence, you should consider all of the relevant evidence. You should consider the relevant testimony of the witnesses, regardless of which party may have called them, and the relevant exhibits received in evidence, regardless of which party may have introduced them.
What if you find that the credible evidence of a particular fact is evenly divided between the parties, that it is equally probable that one side is right as it is that the other side is right? In that case you must decide that issue against the party who has the burden of proof. This is because the party who bears the burden of proof must establish more than equality of evidence; he must prove the fact at issue by a preponderance of the evidence. The party with the burden of proof, however, is not required to prove the elements of its claim by more than a preponderance. As long as you find that the balance tips, however slightly, in favor of the party with the burden of proof, so that the fact that party must prove is more likely true than not true, that fact will have been proved by a preponderance of evidence.
You may have heard the phrase proof beyond a reasonable doubt, which is the standard of proof required in a criminal trial. That requirement does not apply in this case, which is not a criminal case.
The Statute, Its Function, and Elements of Claim for Relief
The Statute and Its Function
Plaintiff Kenneth Parker asserts a claim against Corrections officers Frank A. Reda, Charles Harrison, Barry Norfleet and Sergeant Robert Krusen under a federal civil rights law, 42 U.S.C. § 1983. The statute provides a remedy for individuals who have been deprived of their federal constitutional rights under color of state law. Section 1983 states in part that:
Every person who, under color of [state law], subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution and [federal] laws, shall be liable to the party injured [for damages].
Section 1983 creates a remedy for people who have been deprived of rights secured to them by the United States Constitution. It was passed by Congress to enforce the Fourteenth Amendment of the Constitution. The Fourteenth Amendment provides in relevant part that:
no state shall ... deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.
Section 1983 itself does not establish or create any federally protected right. Rather, it allows the plaintiff in this case, Mr. Parker, to enforce rights guaranteed to him by the federal Constitution. Later in these instructions I will explain to you what these federal constitutional rights are, and what Mr. Parker must show to demonstrate a violation of these rights by the defendant corrections officers.
To establish his claim under section 1983, Mr. Parker must demonstrate, by a preponderance of the evidence, the following three elements:
First, that the defendant corrections officers conduct was under color of state law;
Second, that this conduct deprived Mr. Parker of a right protected by the Constitution of the United States; and
Third, that the corrections officers conduct was a proximate cause of the injuries and damages sustained by Mr. Parker.
I will explain each of these elements to you.
First Element: Color of Law
As to the first element - whether the corrections officers were acting under color of state law - that during the events at issue here the defendants as corrections officers working at Sing-Sing State Correctional Facility were acting under color of state law. Therefore, you will not need to concern yourselves with this first element of Mr. Parkers case.
Second Element: Deprivation of a Federal Right
The second element of Mr. Parkers claim is that the corrections officers conduct deprived him of a federal right. Mr. Parker claims in this case that he was deprived of his right to be free of cruel and unusual punishment under the Eighth Amendment to the Federal Constitution. I will explain later in these instructions what Mr. Parker must prove in order to establish that he was deprived of his Eighth Amendment rights.
Third Element: Proximate Cause
The third element that Mr. Parker must prove is that the defendants conduct was a proximate cause of plaintiffs injury and damage. Under Section 1983 the defendant corrections officers are responsible for the natural consequences of their actions. An act is a proximate cause if it was a substantial factor in bringing about Mr. Parkers injury. You must determine whether injury or damage suffered by Mr. Parker was a reasonably foreseeable consequence of the corrections officers conduct. An injury that is a direct result, or a reasonably probable consequence of a defendants conduct, was proximately caused by that conduct. The question is whether a reasonable person would regard the corrections officers conduct as being a cause of the injury. If so, the conduct is a proximate cause.
A proximate cause need not always be the nearest cause either in time or in location. In addition, the law recognizes that there may be more than one proximate cause of an injury. Many factors, or the conduct of two or more people, may operate at the same time, either independently or together, to cause an injury.
General Wrap-up on Elements of the Claim:
Multiple Defendants
Mr. Parkers claim against each of these individual corrections officers must be considered separately by you. If you find that Mr. Parker has proven all three elements of his claim by a preponderance of the evidence with respect to a particular corrections officer whom you are considering separately, you should find that individual corrections officer liable. If you find that Mr. Parker has not proven any one of these elements with respect to the particular corrections officer you are considering, then you must find that officer not liable and return a verdict against Mr. Parker with respect to that individual officer. It is possible that Mr. Parker will prove his case against all, none, or some of the defendants. The fact that you find that one of the officers is or is not liable does not determine your verdict as to any other one of these officers.
Prisoner Excessive Force Claim Instruction
Earlier I discussed the three elements of Mr. Parkers Section 1983 claim: color of state law; deprivation of Eighth Amendment rights; and proximate cause. I will now provide further and more detailed instructions on what Mr. Parker must prove to establish that he was deprived of his Eighth Amendment rights. Inmates are protected from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. This includes the right not to be assaulted or beaten without legal justification.
Mr. Parker claims that the defendant corrections officers, Frank Reda, Charles Harrison and/or Barry Norfleet, violated his Eighth Amendment constitutional rights by using excessive and unnecessary force against him. Mr. Parker also claims that defendant, Sergeant Robert Krusen, violated his Eighth Amendment constitutional rights by standing idly by while other corrections officers illegally assaulted him.
In order to prove a violation under the Eighth Amendment against defendants Reda, Harrison and/or Norfleet, Mr. Parker must show that they unnecessarily and wantonly inflicted pain on him. Whether a use of force against a prison inmate is unnecessary or wanton depends on whether force was applied in a good faith effort to maintain or restore discipline, or whether it was done maliciously or sadistically to cause harm. In order to prove a violation under the Eighth Amendment in this case, therefore, Mr. Parker must prove each of the following two elements by a preponderance of the evidence:
First, that Reda, Harrison and/or Norfleet, by knocking Mr. Parker to the floor and beating him on the head and body while he was on the floor, used force against him maliciously and sadistically, for the very purpose of causing him harm; and
Second, that Mr. Parker suffered some harm as a result of Reda, Harrison and/or Norfleets use of force.
If Mr. Parker fails to prove either of these elements against any one of the corrections officers you must find for that defendant corrections officer. The first element is to be evaluated by a subjective analysis of an officers state of mind at the time force was used. To act maliciously means to intentionally do a wrongful act without just cause or excuse, with an intent to inflict injury or under circumstances that show an evil intent. In deciding whether this element has been proved against any corrections officer, I remind you that you must give prison officials wide deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain internal security in the prison. Not every push or shove, even if it later seems unnecessary, is an illegal use of excessive force. Whether or not the force used in this instance was excessive is an issue for you to decide on the basis of whether such force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
Some of the things you may want to consider in determining whether Reda, Harrison and/or Norfleet unnecessarily and wantonly inflicted pain on Mr. Parker include:
(1) the extent of the injury Mr. Parker suffered;
(2) the need for the application of force;
(3) the relationship between the need and the amount of force used;
(4) the threat reasonably perceived by the responsible officials; and
(5) any efforts made to temper the severity of a forceful response.
Concerning Sgt. Krusen, Mr. Parkers claim is not that Krusen violated his constitutional rights by actually assaulting him, but rather that Krusen idly stood by while his subordinates, Reda, Harrison and/or Norfleet illegally assaulted Mr. Parker. Krusen denies this, and indeed, denies that Mr. Parker was assaulted at all. Mr. Parker has the burden of proving by a preponderance of the evidence that Krusen intentionally or recklessly permitted other corrections officers to assault him. An act. is done intentionally if it was done on purpose. If it was because of a mistake or accident, it is not intentional. An act is done recklessly when an individual knows of likely harmful consequences and is in a position to prevent the harm, yet disregards it.
A corrections officer like Sgt. Krusen has an affirmative duty to intercede on behalf of a citizen like Mr. Parker whose constitutional rights are being violated by other corrections officers in his presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers when that officer observes or has reason to know that a constitutional violation is being committed, and had a realistic opportunity to intervene to prevent the harm from occurring. Whether Krusen had a realistic opportunity to intercede in order to prevent the constitutional violation must be based on your assessment of the situation faced by Krusen. You must ask yourselves, did the situation provide Krusen with a realistic opportunity to intercede to prevent the constitutional violations that may have occurred?
In order to hold Sgt. Krusen liable for the underlying constitutional deprivation, Mr. Parker must establish, by a preponderance of the evidence, that Krusen had reason to know that the conduct of Reda, Harrison and/or Norfleet was unconstitutional and that Krusen had the opportunity to intercede to prevent the violation or some portion of the violation and did not do so. Mr. Parker must also establish separately that Krusen, having seen Mr. Parker beaten, was alerted to the need to protect him from further abuse. If Mr. Parker proves that Krusen had an opportunity to intervene, but did not, and if he establishes that this failure to intervene contributed to the harm inflicted on him by the other corrections officer or corrections officers, then Krusen should be held liable for wantonly and callously choosing not to make a reasonable attempt to stop Reda, Harrison and/or Norfleet from violating Mr. Parkers constitutional rights.
Direct and Circumstantial Evidence
Evidence comes in various forms, including the sworn testimony of witnesses, exhibits and stipulations. There are two different kinds of evidence: direct evidence and circumstantial evidence.
Direct evidence can prove a material fact by itself. It doesnt require any other evidence. It does not require you to draw any inferences. A witnesss testimony is direct evidence when the witness testifies to what is known from her own personal knowledge by virtue of what she has seen, touched, or heard. The only question when you are presented with such testimony is whether you believe the witnesss testimony. A document or physical object may also be direct evidence when it can prove a material fact by itself, without any other evidence or inference. You may, of course, have to determine the genuineness of the document or object.
Circumstantial evidence is the opposite of direct evidence. It cannot prove a material fact by itself. Rather, it is evidence that tends to prove a material fact when considered together with other evidence and by drawing inferences.
Here is a simple example of circumstantial evidence. Assume that when you got up this morning it was a nice, sunny day. But when you looked around you noticed that the streets and sidewalks were wet. You had no direct evidence that it rained during the night. But, on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to infer that it had rained during the night.
Not all circumstantial evidence presents such a clear compelling inference; the strength of the inferences arising from circumstantial evidence is for you to determine. It is for you to decide how much weight to give to any evidence.
Inferences from circumstantial evidence may be drawn on the basis of reason, experience, and common sense. Inferences may not, however, be drawn on the basis of guesswork, speculation or conjecture.
The law does not require a party to introduce direct evidence. A party may prove a fact based entirely on circumstantial evidence or upon a combination of direct and circumstantial evidence. Circumstantial evidence is not less valuable than direct evidence. The law makes no distinction between direct and circumstantial evidence. You are to consider all the evidence in the case, both direct and circumstantial, in determining what the facts are, and in arriving at your verdict.
Credibility of Witnesses
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. It is solely for you, the jury, to determine the credibility of a witnesss testimony. Credibility means the believability of a witnesss testimony. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
Reliability of Eyewitness Testimony
You have heard the testimony of an eyewitness to the events involving the defendant corrections officers and Mr. Parker. In evaluating an eyewitnesses testimony, you should take the following factors into consideration:
Corrections Officers and Civilian Witnesses
You have heard the testimony of witnesses who are prisoners and the testimony of witnesses who are corrections officers.
In evaluating this testimony, you are to apply the same standards of evaluation to each witness. You shall not give any greater or lesser weight to the testimony of a witness solely because of his occupation as a corrections officer.
Plaintiffs Status as Prisoner
The fact that Mr. Parker was a prisoner at the time of the alleged violation has absolutely no bearing either on his constitutional right to be free from cruel and unusual punishment or on his right to recover damages if you find, based on the evidence in this trial, that his rights have been violated. You should evaluate his credibility in the same way that you would evaluate the credibility of any witness.
Damages
If you find that Mr. Parker is entitled to recover against all or any one of the four defendant corrections officers, then you will have to determine the amount of damages that will fairly and reasonable compensate him for those injuries that you believe he actually sustained as a direct consequence of the conduct of Reda, Harrison, Norfleet and/or Krusen.
In instructing you on damages, I am not expressing any views one way or the other as to whether Mr. Parker should recover in this case. It is for you to decide on the evidence, and the law as I have instructed you, whether Mr. Parker is entitled to recover from any of the four defendants. If you have decided that he is not entitled to recover, you should go no further. Only if you decide that he is entitled to recover will you consider the amount of damages to be awarded.
If you find in favor of Mr. Parker that one or several of the defendant corrections officers violated his Eighth Amendment rights by using excessive force against him on May 23, 1999, you will fix one lump sum that will justly and fairly compensate him for all the injuries you find he sustained.
First, you must include in your verdict an award for all the injuries and pain and suffering that you find Mr. Parker has sustained as a result of this incident to date.
Second, you must include an award for any mental or emotional distress that you find Mr. Parker has endured from the personal injuries sustained in the incident.
Third, if you find that any of the injuries Mr. Parker sustained as a result of this incident are permanent, you must make an appropriate allowance for them in your verdict.
The measure of damages for pain, suffering and emotional distress is reasonable compensation to be fixed by you in the light of all the evidence in this case. You are trusted to find a sum of money that you deem fair, reasonable and adequate. And you must do so in light of your common knowledge and general experience, and without regard to sentiment and fanciful standards. You as jurors must arrive at a sum of money that will justly, fairly and adequately compensate Mr. Parker for the actual pain, suffering and emotional distress you find that he endured as the direct result of defendant corrections officers use of excessive force on May 23, 1999.
In sum, your award should be neither excessive nor inadequate; it should be fair, just and reasonable.
Dated: New York, New York
June 18, 2001
WHITE & CASE LLP
By:
Daniel P. Goldberg (DPG-6322)
Martin J. Valasek (MV-3980)
1155 Avenue of the Americas
New York, New York 10036
Tel: (212) 819-8200
Fax: (212) 354-8113
Attorneys for Plaintiff
TO: ATTORNEY GENERAL
OF THE STATE OF NEW YORK
Constantine A. Speres (CS-9100)
Assistant Attorney General
120 Broadway
New York, New York 10271
(212) 416-8567/8610
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNETH PARKER, :
Plaintiff, : 99 Civ. 9873 (SHS) (THK)
- against - :
CERTIFICATE
SERGEANT ROBERT KRUSEN, CORRECTIONS : OF SERVICE
OFFICERS FRANK A. REDA, CHARLES
HARRISON, and BARRY NORFLEET :
Defendants. :
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I, TIMOTHY PFEIFER, certify that on June 18, 2001 I caused to be served the foregoing PLAINTIFFS MOTION IN LIMINE TO PRECLUDE EXPERT WITNESS LAZARO, PLAINTIFFS MOTION IN LIMINE TO PRECLUDE DEFENDANTS INTRODUCTION OF PLAINTIFFS PRIOR CRIMINAL CONVICTIONS, PLAINTIFFS PROPOSED JURY INSTRUCTIONS, and PLAINTIFFS PROPOSED VOIR DIRE QUESTIONS by arranging for overnight delivery, addressed as follows:
TO: ATTORNEY GENERAL
OF THE STATE OF NEW YORK
Constantine A. Speres (CS-9100)
Assistant Attorney General
120 Broadway
New York, New York 10271
(212) 416-856718610
Attorneys for Defendants
Date: June 18, 2001
Timothy Pfeifer
SAMPLE JURY CHARGE/INSTRUCTIONS
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
[PLAINTIFF],
Plaintiff,
- against - ____ Civ. ___ (___)
[DEFENDANTS] PLAINTIFFS [or DEFENDANTS
REQUESTS TO CHARGE
Defendant.
x
In addition to the Courts standard jury instructions, the plaintiff/defendant hereby submits the following requests for jury instructions:
Instruction No. 1
[Insert Proposed Jury Instructions here].
[Samples of Proposed Jury Instructions are provided on pp. 80-89]
Respectfully submitted,
[signature]
Plaintiff/Defendant, Pro Se
Dated: , 199_
New York, New York
Note: The following Jury Instructions have been adapted from Modern Federal Jury Instructions (Matthew Bender 1997) and Model Jury Instructions Employment Litigation (American Bar Association 1994). They are provided solely to give you an idea of the sorts of instructions which may be used in Section 1983 and employment discrimination actions. These instructions are not exhaustive. Additionally, the judge is under no obligation to use your proposed jury charge. Finally, because the law used as the basis for these jury instructions may change, you should not rely on the instructions contained herein as an accurate statement of current law.
SECTION 1983 CLAIMS
Instruction No. ___
42 U.S.C. § 1983
The law to be applied in this case is the federal civil rights law, which provides a remedy for individuals (or other entities) who have been deprived of their constitutional (or statutory) rights under color of state law. Section 1983 of Title 42 of the United States Code states:
Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory, or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
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Authority
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Instruction No. ___
Burden of Proof
I shall shortly instruct you on the elements of plaintiffs section 1983 claim[.]
The plaintiff has the burden of proving each and every element of his section 1983 claim by a fair preponderance of the evidence. If you find that any one of the elements of plaintiffs section 1983 claim has not been proven by a fair preponderance of the evidence, you must return a verdict for the defendant.
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Authority
42 U.S.C. § 1983; Adapted from L. Sand, et al., Copyright © 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 5 Modern Federal Jury Instructions, ¶ 87.03, Instruction 87-65 (citing Gomez v. Toledo, 446 U.S. 635 (1980)).
Instruction No. ___
Burden of ProofPreponderance of theEvidence
What does a reponderance of evidence mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not to the amber of witnesses or documents. In determining whether a claim has been proved by a preponderance of the evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.
If you find that the credible evidence on a given issue is evenly divided between the partiesthat it is equally probable that one side is right as it is that the other side is rightthen you must decide that issue against the party having this burden of proof. That is because the party bearing this burden must prove more than simple equality of evidencehe must prove the element at issue by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of the party with this burden of proof-that what the party classroom is more likely true than not truethen that element will have been proved by a preponderance of evidence. Some of you may have heard of proof beyond a reasonable doubt, which is the proper standard of proof in a criminal trial. That standard has no application in this civil case, and you must disregard it.
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Authority
42 U.S.C. § 1983; Adapted from L. Sand, et al., Copyright © 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 4 Modern Federal Jury Instructions, ¶ 73.01, Instruction 73-2
Instruction No. ___
Elements of a Section 1983 Claim
To establish a claim under Section 1983, plaintiff must establish, by a preponderance of the evidence, each of the following three elements:
First, that the conduct complained of was committed by a person or persons acting under color of state law;
Second, that this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States; and
Third, that the defendants acts were the proximate cause of the injuries and consequent damages sustained by the plaintiff.
I shall now examine each of the three elements in greater detail.
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Authority
Adapted from L. Sand, et al., Copyright © 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 5 Modern Federal Jury Instructions, ¶ 87.03, Instruction 87-65 (citing Parratt v. Taylor, 451 U.S. 527 (1981))
Instruction No.
Second ElementDeprivation of Right
The second element of plaintiff's claim is that he was deprived of a federal right by the defendant. In order for the plaintiff to establish the second element, be must show, by a preponderance of the evidence: first, that the defendant committed the acts alleged by plaintiff; second, that those acts caused the plaintiff to suffer the loss of a federal right; and, third, that, in performing the acts alleged, the defendant acted [intentionally or recklessly).
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Authority
Adapted from L. Sand, et al., Copyright © 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 5 Modern Federal Jury Instructions, ¶ 87.03, Instruction 87-74 (citing Maine v. Thiboutot, 448 U.S. 1 (1980); Martinez v. California, 444 U.S. 277 (1980); Baker v. McCollan, 443 U.S. 137 (1979); Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978)).
EMPLOYMENT DISCRIMINATION CLAIMS
Instruction No. ___
Intentional Discrimination (Disparate Treatment] in Title VII Employment Cases
Essential Elements - The Statute
Plaintiff bases his (her] lawsuit of Title VII of the Civil Rights Act of 1964. The Act provides that it shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. A motivating factor is a factor that played a part in defendant's employment practice decision.
You most find for plaintiff on his [her] [e.g., employment discrimination] claim if both the following elements are proved by a preponderance of the evidence:
First, that defendant [e.g., failed to hire, promote, or demoted] the plaintiff; and
Second, that plaintiff's [e.g., race, gender, religion] was a motivating factor in defendant's decision.
You must find for the defendant if either of these elements has not been proved.
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Authority
Adapted from L. Sand, et al., Copyright © 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 5 Modern Federal Jury Instructions, ¶ 88.04, Instruction 88-42.
Instruction No. ___
Plaintiff's Burden of Prof Disparate Treatment Claim under Title VII
To prevail on a claim of intentional discrimination, the plaintiff must prove beyond a preponderance of the evidence that the defendant had a reason or motive to discriminate against [him/her) in the matter before this court. The plaintiff must prove, either directly or indirectly, that there is evidence of intentional] discrimination. Direct evidence would include oral or written statements showing a discriminatory motivation for the defendant's treatment of the plaintiff. Indirect or circumstantial evidence would include proof of a set of circumstances that would allow cm to reasonably believe that [race/color/national origin/gender] was a motivating factor in the defendant's treatment of the plaintiff.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02(1), at 11 (citing 42 U.S.C. § 2000e-2(m); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248 (1981)).
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Instruction No. ___
Direct Evidence of Disparate Treatment
Direct evidence is evidence of remarks or actions that, if believed, directly prove that the plaintiff's [membership in a protected class] was a factor in the defendant's decision [to discharge/not to him/etc.] the plaintiff.
Stray remarks in the workplace do not constitute direct evidence of discrimination. This means that statements made by persons not involved in the decision [to discharge/not to hire/etc.] the plaintiff or statements made by decision makers that are unrelated to the decision do not constitute direct evidence that the plaintiffs [membership in a protected class) was a factor in the decision.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02[2], at 13 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
Instruction No. ___
Defenses Against Direct Evidence of Discrimination
[Discharging/not hiring/etc.] an employee who is [a member of a protected class] is not illegal if the reason for doing so is unrelated to the employee's [membership in a protected class]. Therefore, the fact that the plaintiff is [a member of a protected class] is not, in and of itself, evidence of discrimination.
If you find that the plaintiff was [discharged/not hired/etc.] because of factors other than [his/her] [membership in a protected class], you must decide in favor of the defendant. Only if you decide that the plaintiff's [membership in a protected class] was a factor that motivated or played a part in the defendant's decision [to discharge/not to hire/etc.] the plaintiff, can you decide in favor of the plaintiff.
However, even if you decide that the plaintiff's [protected status] has been shown to have been a factor in the defendant's action, if you also decide that the defendant demonstrated that it would have reached the same decision irrespective of the plaintiff's [protected status], then you cannot award damages to the plaintiff.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02[2], at 14 (citing McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248 (1981)).
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Instruction No. _____
Indirect Evidence of Disparate Treatment
To establish discrimination by using indirect evidence, the plaintiff must prove what is called a prima facie case of [protected class] discrimination.
To establish a prima facie case, the plaintiff must prove each of the following elements by a preponderance of the evidence:
(1) that [he/she] was a member of a protected group;
(2) that [he/she] applied and was qualified for a job for which the employer was seeking applicants;
(3) that despite [his/her] qualifications, [he/she] was rejected; and
(4) that after [his/her] rejection, the position remained open and the employer continued to seek applications from persons with the plaintiff's qualifications.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02[3], at 17.
Instruction No. ____
Defenses to Indirect Evidence of Discrimination
In this case, the plaintiff must prove by a preponderance of the evidence that [his/her] [membership in a protected Class] was a motivating factor in the defendant's decision [to discharge/not to hire/etc.] [him/her]. The plaintiff's [membership in a protected class] was a motivating factor if you find that it played a role in the defendant's decision, even though other factors may have also played roles in that decision.
You must consider any legitimate, nondiscriminatory reason or explanation stated by the defended for in decision. If you find that the defendant has stated a valid reason, then you must decide in favor of the defendant unless the plaintiff proves by a preponderance of the evidence that the stated reason was not the true reason but is only a pretext or excuse for discriminating against the plaintiff because of [his/her] [membership in a protected class].
The plaintiff can attempt to prove pretext directly by persuading you by a preponderance of the evidence that [his/her] [membership in a protected class] was more likely the reason for the defendant's decision than the reason stated by the defendant.
The plaintiff can also attempt to prove that the defendant's stated reason for its decision [to discharge/not to hire/etc.] is a pretext by persuading you that it is just not believable. However, it is not enough for the plaintiff simply to prove that the defendant's stated reason for its decision was not the true reason. The reason for this is that the plaintiff always must prove by a preponderance of the evidence that [he/she] was [discharged/not hired/etc.] because of [his/her] [membership in protected class). Therefore, even if you decide that the defendant did not truly rely on the stated reason for its decision (to discharge/not to hire/etc.), you cannot decide in favor of the plaintiff without further evidence that the defendant relied instead on the plaintiff's [membership in a protected class].
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02[3][a], at 20 (citing 42 U.S.C. § 2000e-2(m); McDonnell Douglass Corp.. v. Green, 411 U.S. 792 (1973); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248 (1981)); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
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Instruction No.
Legitimate Nondiscriminatory Reason
A legitimate nondiscriminatory reason is any reason or explanation unrelated to the plaintiff's [membership in a protected class]. In considering the legitimate nondiscriminatory reason stated by the defendant for its decision, you are not to second-guess that decision or to otherwise substitute your judgment for that of the defendant.
In this case, the ultimate burden of persuading the jury that the defendant intentionally discriminated against the plaintiff because of [his/her] [membership in a protected class] remains at all times with the plaintiff. The defendant is therefore not required to prove that its decision was actually motivated by the stated legitimate nondiscriminatory reason.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.02[3][b], at 22 (citing 42 U.S.C. § 2000e-2(k)(1)(C)(2); Griggs v. Duke Power Co., 401 U.S. 424 (1971)).
MISCELLANEOUS ISSUES
Instruction No. ___
Stipulation of Facts
A stipulation of facts is an agreement among the parties that a certain fact is true. You must regard such agreed facts as true.
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Authority
Adapted from L. Sand, et al., Copyright© 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 4 Modern Federal Jury Instructions, ¶ 74.02, Instruction 74-4.
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Instruction No. ___
Compensatory Damages
Just because I am instructing you on how to award damages does not mean that I have any opinion on whether or not the defendant should be held liable.
If you return a verdict for the plaintiff, then you must consider the issue of actual damages. If you return a verdict for the plaintiff, then you must award him such sum of money as you believe will fairly and justly compensate him for any injury you believe be actually sustained as a direct consequence of the conduct of the defendant. [Compensable injuries include physical and/or emotional pain and suffering which the plaintiff has endured.]
You shall award actual damages only for those injuries which you find that plaintiff has proven by a preponderance of the evidence. Moreover, you shall award actual damages only for those injuries which you find plaintiff has proven by a preponderance of evidence to have been the direct result of conduct by the defendant in violation of section 1983. That is, you may not simply award actual damages for any injury suffered by plaintiffyou must award actual damages only for those injuries that are a direct result of actions by the defendant which violated plaintiff's federal rights under color of law.
Actual damages must not be based on speculation or sympathy. They must be based on the evidence presented at trial, and only on that evidence.
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Authority
Adapted from L. Sand, et al., Copyright© 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 5 Modern Federal Jury Instructions, ¶ 87.03, Instruction 87-87 (citing Memphis Community School District v. Stachurs, 477 U.S. 299 (1986); Smith v. Wade, 461 U.S. 30 (1983); Carey v. Piphus, 435 U.S. 247 (1978)).
Instruction No. ___
Front Pay
You shall also calculate separately, as future damages, a monetary amount equal to the present value of the wages and benefits that the plaintiff would have earned had [he/she] not been [discriminated against/terminated/constructively discharged] for that period from the date of your verdict until the date when the plaintiff would have voluntarily resigned or obtained other employment.
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.07[2], at 59.
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Instruction No. ___
Back Pay
If you determine that the defendant discriminated against the plaintiff in [failing to promote/terminating/constructively discharging] [him/her], then you must determine the amount of damages that the defendant has caused the plaintiff.
You may award as actual damages an amount that reasonably compensates the plaintiff for any lost wages and benefits, taking into consideration any increases in salary and benefits, including pension, that the plaintiff would have received had [he/she] not been discriminated against. Basically, you have the ability to make the plaintiff whole for any wages or other benefits that [he/she] has lost as a result of [his/her] [denial of promotion/termination/ constructive discharge].
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Authority
Adapted from Desmarais, Douglas W., et al., Copyright© 1994 American Bar Association and reprinted with permission from Model Jury Instructions, Employment Litigation, ¶ 1.07[1], at 58 (citing Lorilland.. v. Pons, 434 U.S. 575 (1978)).
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Instruction No. ____
Impeachment by Felony Conviction
You have heard the testimony of a witness who was previously convicted of a crime punishable by more than one year in jail (or involving dishonesty or false statement). This prior conviction was put into evidence for you to consider in evaluating the witness' credibility. You may consider the fact that the witness who testified is a convicted felon in deciding how much of his testimony to accept and what weight, if any, it should be given.
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Authority
Adapted from L. Sand, et al., Copyright© 1997 by Matthew Bender & Co., Inc., and reprinted with permission from 4 Modern Federal Jury Instructions, ¶ 76.01, Instruction 76-6 (citing United States v. Corcione, 592 F.2d 111 (2d Cir.), cert. denied, 440 U.S. 975 (1979)).
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Instruction No. ___
State Employee Witness
[substitute county or city, if applicable)
During this trial you have heard the testimony of some witnesses who are or were correction officers or employees of the State of New York. The testimony of a correction officer or government employee is not deserving of more or less consideration, or greater or lesser weight, than that of an ordinary witness.
It is your decision, after reviewing all of the evidence, whether to accept the testimony of the law enforcement witness and to give that testimony whatever weight, if any, you find that it deserves.
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Authority
United States v. Augello, 452 F.2d 1135, 1139 (2d Cir. 1971), cert. denied, 406 U.S. 922 (1972); United States v. Reid, 410 F.2d 1223, 1227 (7th Cir. 1969).
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Instruction No. ___
Missing Witness
If either party failed to produce a witness, who was available to the party and whose testimony would clarify the events at issue, the jury may draw an adverse inference that the testimony of that witness would have been unfavorable to that party. Where, however, the missing witness is as likely to favor one party as the other, then the jury is free to infer that the witness' testimony would have been unfavorable to either side, to both sides, or could draw no inference at all. Whether a witness is available depends on all the facts and circumstances bearing upon the witness' relation to the party, and not merely on physical presence or accessibility.
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Authority
Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 275 (2d Cir. 1996); United States v. Torres, 845 F.2d 1165, 1169-1170 (2d Cir. 1988).