The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
PROPOSED CLOSING JURY INSTRUCTIONS
Attached are the Court's proposed closing jury instructions. Any proposed modifications should be submitted as soon as practicable.
Several of the parties' proposed instructions have been modified for clarity, to eliminate unnecessary language, and to more closely follow the language used in the Ninth Circuit Model Civil Jury Instructions and Judicial Council of California Civil Jury Instructions ("CACI") upon which they are based.
Since the Court's proposed voir dire contains a neutral statement of the case, the parties' proposed, contested "claims and defenses" jury instructions are unnecessary and will not be used.
The parties' proposed instructions on Plaintiff's disability discrimination under the Americans with Disabilities Act ("ADA"), disability discrimination under the California Fair Employment & Housing Act ("FEHA"), and retaliation in violation of the Family Medical Leave Act ("FMLA") and California Family Rights Act ("CFRA") claims utilize different terminology for the element that requires Plaintiff to show a causal connection between the alleged adverse employment action taken and her disability. The parties' proposed instructions on these claims use the terms "motivating factor," "motivating reason," and "negative factor." It appears that the different terminology used for this element is without legal significance and could be confusing to the jury; therefore, the attached instructions use "motivating reason" consistently throughout and define that term once as follows: "A 'motivating reason' is a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision." The definition is based upon CACI Instruction No. 2507 -"'Motivating Reason' Explained."
The parties' proposed instructions on each of Plaintiff's claims require the Plaintiff to prove that the Defendant's alleged wrongful conduct was a "substantial factor" in causing her harm without defining the meaning of that term. The attached instructions define the term as follows: "A 'substantial factor' in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm." The definition is based upon CACI Instruction No. 430 - "Causation: Substantial Factor."
The parties proposed different instructions regarding the definition of "disability" under federal and California law. Plaintiff's proposed instructions specifically reference diabetes, whereas Defendant argues "Plaintiff's definition of disability improperly . . . provides that diabetes is considered a disability, when Plaintiff never disclosed diabetes in the complaint, in Plaintiff's verified administrative complaint, and/or in [Plaintiff's verified] interrogatory responses." (Def.'s Proposed Jury Instruction No. 24, ECF No. 108, at p. 32 (citing Def.'s Mot. in Limine No. 3, ECF No. 85.).) Defendant argued in its third motion in limine that "Plaintiff's interrogatory responses identified and specified two disabilities[: rheumatoid arthritis and a kidney infection], and those interrogatory responses were never supplemented or amended by the Plaintiff[;]" therefore, evidence regarding any other disabilities "should be excluded at trial" under Rules 26(e)(1) and 37(c)(1). (Def.'s Mot. in Limine No. 3, 2:1-2, 2:28-3:6.) Plaintiff opposed Defendant's in limine motion, arguing, inter alia:
Defendant was fully informed throughout discovery regarding the existence and scope of Plaintiff's Diabetes disability and has "defended against" Plaintiff's claims by subpoenaing each and every page of Plaintiff's 2009 and 2010 medical records, including all documentation that exists regarding Plaintiff's Diabetes disability. Defendant also cross-examined Plaintiff in deposition regarding Plaintiff's Diabetes disability. Under its initial Rule 26 disclosure obligations, Defendant disclosed doctors who treated Plaintiff for Plaintiff's Diabetes disability as potential trial witnesses. Defendant demanded expert reports regarding Plaintiff's medical conditions and health problems, which included information regarding Plaintiff's Diabetes and other disabilities. (Pl.'s Opp'n to Def.'s Mot. in Limine No. 3, 3:10-17, ECF No. 117.)
Federal Rule of Civil Procedure ("Rule") 26(e) requires a party to supplement or correct her discovery responses in a timely manner "if the party learn that in some material respect the . . . response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing . . . ." Fed. R. Civ. P. 26(e)(1)(A); see also Adv. Comm. Notes on 1993 Amendments to Fed. R. Civ. P. 26(e) ("There is, however, no obligation to provide supplemental or corrective information that has been otherwise made know to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition . . . .").
Defendant has not shown that Planitiff improperly failed to supplement her responses to interrogatories to list diabetes as a disability since Plaintiff's representations and exhibits filed in support of her opposition to Defendant's third motion in limine evince that such information was "otherwise . . . made known" to Defendant through discovery. Therefore the attached instructions include reference to diabetes as requested by Plaintiff.
Defendant also objects to Plaintiff's instruction concerning the definition of "disability" under California law, arguing that it "omits that an individual who has a transitory and minor impairment cannot be regarded as having an impairment." (Def.'s Proposed Jury Instruction No. 32, at p. 43.) However, California law does not appear to so limit its definition of "disability." See Diaz v. Fed. Express Corp., 373 F. Supp. 1034, 1046-53 (C.D. Cal. 2005) (discussing whether a temporary impairment can constitute a "disability" under FEHA). Therefore, Defendant's objection is overruled.
Defendant objects to certain language Plaintiff proposes be included in her definitions of "reasonable accommodation" under both federal and California law. Specifically, Defendant states:
Plaintiff's jury instruction[s] regarding the definition of reasonable accommodation incorrectly state that reasonable accommodation may include a "finite leave of absence if, upon returning to work following the leave, the employee will likely be able to resume her duties." This is incorrect. Case law provides that finite leave of absence may constitute a reasonable accommodation if it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. Kranson v. Fed. Exp. Corp., 2012 WL 4715337 at *8 (N.D. Cal. 2012).
(Def.'s Proposed Instructions, 30.)
The attached instructions include reference to leaves of absence constituting a reasonable accommodation consistent with Ninth Circuit and California authority. See Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1135 (9th Cir. 2001) (citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999)); Jensen v. Wells Fargo Bank, 74 Cal. App. 4th 245, 263 (1999).
The parties propose different instructions concerning Plaintiff's California law failure to engage in the interactive process claim. Defendant's instruction includes as an element that a "reasonable accommodation" was available, whereas Plaintiff's instruction does not. "There is [an apparent] split of authority as to whether [a plaintiff] must . . . prove that reasonable accommodation was possible before there is a violation for failure to engage in the interaction process." Directions for Use CACI No. 2546, "Disability Discrimination -Reasonable Accommodation - Failure to Engage in Interactive Process (Gov. Code § 12940(n)." However, in Scotch v. Art Inst. of Calif. -Orange Cnty., Inc., 173 Cal. App. 4th 986, 364-65 (2009), the California Court of Appeal attempted to reconcile the apparent split and held "[t]o prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." Therefore, the attached instruction on this claim includes as an element that a "reasonable accommodation" was available.
Lastly, the attached instructions do not include punitive damages instructions since the parties' proposed instructions fail to distinguish between the federal and state standards for the award of punitive damages. The January 17, 2013 Minute Order (ECF No. 133) directed the parties to submit supplemental proposed instructions concerning punitive damages no later than 12:00 p.m. on January 22, 2013.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Sujla Maharaj, Plaintiff, v. California Bank & Trust, Defendant.
CLOSING JURY INSTRUCTIONS
Members of the jury, now that you have heard all the evidence and the arguments of the parties, it is my duty to instruct you on the law which applies to this case. Each of you is in possession of a copy of these jury instructions, which you may take into the jury room for your use if you find it necessary.
It is your duty to find the facts from all the evidence in the case. To those facts you must apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you and according to the law. You will recall that you took an oath promising to do so at the beginning of the case.
In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important.
When a party has the burden of proof on any claim or defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or defense is more probably true than not true.
When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence.
You should base your decision on all of the evidence, regardless of which party presented it.
An entity, California Bank & Trust, is a party to this lawsuit. This entity is entitled to the same fair and impartial treatment that you would give to an individual. You must decide this case with the same fairness that you would use if you were deciding the case between individuals.
The evidence you are to consider in deciding what the facts are consists of: the sworn testimony of any witness; the exhibits that are received into evidence; and any facts to which the parties have agreed.
In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:
First, arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, will say in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
Second, questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it.
Third, testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, sometimes testimony and exhibits are received only for a limited purpose; if I gave a limiting instruction, you must follow it.
Fourth, anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as a testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact.
You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
In considering the testimony of any witness, you may take into account: the opportunity and ability of the witness to see or hear or know the things testified to; the witness's memory; the witness's manner while testifying; the witness's interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness's testimony; the reasonableness of the witness's testimony in light of all the evidence; and any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.
Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.
The parties have agreed to certain facts that will be read to you. You should therefore treat these facts as having been proved. The stipulated facts are as follows:
1. California Bank & Trust is a California-based bank with various branches located throughout California, including branches in the San Francisco Bay Area, the Sacramento area, and Southern California.
2. On January 16, 1990, Plaintiff was hired as a bank teller, in the position of "Teller I," at California Bank & Trust's Millbrae branch by a predecessor of California Bank & Trust, Sumitomo Bank.
3. On April 1, 1994, Plaintiff's title at California Bank & Trust's Millbrae Branch became Assistant Operations Supervisor.
4. On September 1, 1995, Plaintiff's title at California Bank & Trust's Millbrae Branch became Operations Supervisor.
5. In 2002, Plaintiff moved her residence to Sacramento, and transferred to California Bank & Trust's Sacramento Main Branch, which is the branch she worked at until 2010. Plaintiff assumed the position of "Customer Service Representative I" upon beginning her employment in the Sacramento Main Branch.
6. From 2003 to 2005, Plaintiff's title at California Bank & Trust was "Customer Service Representative II."
7. From 2006 to 2010, Plaintiff's title at California Bank & Trust was "Customer Service Representative III."
8. From January 1, 2005, through the date of termination in 2010, Plaintiff was employed as a full-time employee at California Bank & Trust.
9. Beginning May 15, 2009, and ending July 27, 2009, Plaintiff took a leave of absence from her job at California Bank & Trust due to Plaintiff's medical condition.
10. Plaintiff took another medical leave later in 2009. Plaintiff began her second medical leave on December 28, 2009.
11. On or about February 4, 2010, California Bank & Trust provided to Plaintiff a letter in which California Bank & Trust wrote that due to the business needs of the bank and the expiration of 12 weeks of protected medical leave, the Sacramento Main Branch needed to begin the process of filling the teller position that ...