Opinion
No. CIV 04-565 LFG/WDS.
November 4, 2005
ORDER SETTLING JURY INSTRUCTIONS
THIS MATTER is before the Court on Plaintiff's Proposed Jury Instructions ("PPI") [Doc. 84], and Defendant's Proposed Jury Instructions ("DPI") [Doc. 82]. The Court has considered the evidence presented, the proposed instructions, the authorities relied on by the parties as well as the prior rulings of the Court, and intends to instruct the jury as follows.
Existence of a Contract
In PPI-3, Plaintiff adapts NM UJI Civ. 13-801 and sets forth the conditions for existence of a contract — offer, acceptance, consideration, and mutual assent. He then states that the parties agree there was a legally enforceable contract and the only dispute is whether the contract was breached.
Defendant initially argued in its motion for summary judgment that no valid contract exists because the parties did not have a meeting of the minds on the issue of whether a 5% increase on promotion, as contained the County's personnel plan, was meant to apply to Plaintiff's annual salary or to his hourly rate. Defendant never disputes, however, that the 5% provision is valid and applicable to Plaintiff's situation. Indeed, Defendant's position that Plaintiff did in fact receive far more than a 5% pay raise (based on his hourly rate) contains within itself an implicit assumption that the 5% pay raise provision was valid and enforceable, the only dispute being in interpretation of the provision — does the 5% apply to annual salary, or to hourly rate?
In his response to the summary judgment motion, Plaintiff citesHartbarger v. Frank Paxton Co., 115 N.M. 665, 857 P.2d 775 (1993), which holds that "Once the employee has successfully shown that the employer has demonstrated an intent to restrict its power to discharge [or, as in this case, its power to give anything less than a 5% pay increase upon promotion], absent evidence to the contrary, the court will imply in law that the requirement of mutual assent has been met. There need be no separate factual finding of mutual assent." Id., 115 N.M. at 671.
It appears reasonable to accept Plaintiff's position that a contract of employment exists, based on the comprehensive and mandatory Human Resources rules and regulations, because all four elements are there: offer, acceptance, consideration and mutual assent. The only dispute is over interpretation of a term of the contract, which goes to whether a breach occurred: If the term is interpreted in Plaintiff's manner, and the jury determines that oral representations set a minimum annual salary, then there was a breach; if it is interpreted as Defendant contends, there was no breach.
Defendant has not submitted a jury instruction which raises an issue of "mutual assent." However, Defendant did submit an instruction (DPI-39) stating that the jury must determine whether there was an implied agreement that Plaintiff would receive a pay raise upon promotion to captain. This instruction is adapted from the instruction on wrongful discharge and isn't meant to apply to determinations of whether a contract exists in other situations; those instructions are included in the NM UJI Civ. chapter on contracts. It is far more appropriate to advise the jury that there is a contract, and their job is to interpret its terms. The Court therefore rejects DPI-39.
The Court further accepts PPI-3, as well as PPI-5, which tells the jury that it must interpret the ambiguous term regarding the 5% increase, taking into account certain factors. This instruction also includes PPI-6 to 8, which are taken directly from NM UJI and which elaborate on each of the factors listed in PPI-5. The issue of whether it's the annual salary or the hourly rate, upon which the 5% increase is to work, thus becomes an issue of interpretation of a contract term rather than an issue of whether a contract exists at all.
Plaintiff also requests, in PPI-4, an instruction telling the jury that the personnel rules and regulations of a public employer form a contract of employment, if certain conditions are met. This instruction is not necessary, as the Court will advise the jury that a contract exists.
Covenant of Good Faith and Fair Dealing
In PPI-2, Plaintiff sets forth his contentions under the breach of contract claim. This proposed instruction includes the statement that Plaintiff claims Defendant breached the covenant of good faith and fair dealing, and he sets forth the elements of such a claim.
In PPI-10, Plaintiff's statement of the elements of a claim for breach of contract, he adds something not included in the uniform instruction — that a contractual obligation includes the obligation of good faith.
Plaintiff also seeks to include PPI-9, which is the statement that each party to a contract is required to perform its obligations under the contract in good faith and with fair dealing. He cites NM UJI Civ 13-832 as the source for this instruction. However, that UJI states "No instruction drafted." The committee comment to this instruction notes that "[t]he extent to which such a duty of good faith is recognized in New Mexico outside of insurance contract cases and cases governed by the UCC is open to some doubt" and it leaves the giving or not giving of an instruction up to the individual judge on a case-by-case basis.
The Court determines that the giving of this instruction is not warranted and therefore eliminates the paragraph on good faith and fair dealing from PPI-2 and 10. Plaintiff originally claimed a breach of contract based on a policy provision of non-discrimination, but the Court previously held that that provision was a general statement of policy and not sufficiently specific to create a contract that defendant would not discriminate [Doc. 70]. Allowing Plaintiff to claim a contractual duty of good faith and fair dealing at this point would only serve to reinsert this general claim into the case by the back door. Since the law is unclear, and in light of Judge Brack's prior ruling, it will be left out of the case.
Definition of Intentional Discrimination
PPI-12 deals with intent in discrimination cases. It reads, "Discrimination is intentional if it is done voluntarily, deliberately, and willfully and not by accident, inadvertence or other innocent reason. You may consider statements made, acts done or omitted and all facts and circumstances which show whether or not defendant acted intentionally and not by accident."
PPI-15 reads, "Because direct evidence of discrimination is difficult to obtain, employees such as Plaintiff must often rely on circumstantial evidence to prove their employer's discriminatory intent. Therefore, you may infer, from the circumstantial evidence that Plaintiff's race ("Hispanic") was a substantial factor in Defendant's decision to establish his rate of pay on promotion." Then PPI-16 lists several bits of evidence which Plaintiff suggests the jury can use in inferring that plaintiff's race was a substantial factor.
Plaintiff cites no authority, other than the McDonnell Douglas case for PPI-15 and 16. The standard instructions for Title VII cases do not include a statement defining intent, and there is nothing in NM UJI Civ that defines "intentional" acts or states how intent is to be established (other than the statement that in contract cases the intentions of the parties are to be determined by examining their language and conduct, objectives, and surrounding circumstances, a statement which was included in the contracts instruction).
Federal Jury Practice and Instructions ("FJPI") suggests a shorter statement setting forth the rule that plaintiff is not required to produce direct evidence of intentional discrimination, and the jury may infer intentional discrimination from the existence of other facts. The Court opts to use this instead of the PPI-12, 15, and 16. FJPI recommends that the jury not be instructed in the format of the complex burden-shifting scheme of McDonnell Douglas, and neither party has offered that format in their proposed instructions. Therefore, the Court adopts the approach set forth in FJPI.
Personal Liability for Failing to Intervene to Stop Discriminatory Conduct
In PPI-18, Plaintiff requests an instruction stating that an employee who has authority to intervene or take remedial measures to halt discriminatory conduct may be personally liable if he knows of wrongful conduct and fails to take action.Plaintiff cites Hall v. Gus Construction, Inc., 842 F.2d 1010 (8th Cir. 1988) as authority for this instruction. That case involved a work environment in which women employees were subjected to severe hostile sexual innuendoes and unwelcome touching and other harassment at a male-dominated work place. One of the elements of a sexual harassment claim, as set forth in theHall opinion, is the fact that the employer knew or should have known of the harassing conduct and failed to take remedial action.
The present case is not a sexual harassment case, nor does it involve a hostile work environment, as that claim has already been dismissed. There is no issue in this case as to individual liability of supervisors, as no individual has been named as a defendant. The Court therefore rejects PPI-18.
Constructive Discharge
Plaintiff claims constructive discharge, and it is not clear whether he intended this to be a separate cause of action under state law, a part of his Title VII claim, or a part of his breach of contract claim. The Court will treat constructive discharge as coming in under the Title VII claim, for the following reasons.
First, New Mexico does not really have an independent cause of action for constructive discharge:
Constructive discharge is not an independent cause of action, such as a tort or a breach of contract. Instead, constructive discharge is a doctrine that permits an employee to recast a resignation as a de facto firing, depending on the circumstances surrounding the employment relationship and the employee's departure . . . Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.Gormley v. Coca-Cola Enterprises, 137 N.M. 192, 109 P.3d 280, 282 (2005).
A claim of constructive discharge is also cognizable under Title VII. Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997). When a plaintiff brings the claim under Title VII, he must show that his race or national origin, or the fact that he filed claims and lawsuits alleging discrimination and challenging defendant's pay practices, was a motivating factor in defendant's conduct that led to the alleged constructive discharge.
Alleging constructive discharge allows the plaintiff to pursue compensatory damages for breach of contract beyond the time of his resignation. Gormley, 109 P.3d at 282. The Court therefore included Plaintiff's PPI-25, which makes this statement, and placed it in the damage instructions. The Court also added language re: mitigation to the effect that such damage must be reduced by any amount plaintiff earned or could have earned by reasonable effort after that date and up to the date of trial. See, FJPI § 171.95, and third paragraph of notes following that instruction.
Defendant requests two separate instructions which restate or elaborate on elements of the constructive discharge claim. DPI-60 instructs that the jury may not find a constructive discharge unless a reasonable person would view his working conditions as intolerable. DPI-61 states that the jury may assume that a reasonable person is one who "does not consistently ignore or minimize his own faults while exaggerating the conduct of others and assigning malignant intent to facially benign acts and statements."
DPI-60 simply reiterates one element of the constructive discharge claim. DPI-61 is best left for counsel to raise in closing argument, on the issue of whether Plaintiff did or did not act reasonably.
Retaliation and Liquidated Damages under the FLSA
Plaintiff requests a single instruction on retaliation (PPI-19), even though he has alleged retaliation under Title VII (for filing a grievance and an EEOC claim complaining of the failure to give him a pay raise), and a separate cause of action for retaliation under the FLSA (for filing a lawsuit complaining of failure to provide overtime pay in violation of the FLSA.
The Court will give two separate instructions on the two causes of action, because different facts underlie the two separate claims and because damages for the two claims are somewhat different, in that a successful claim under the FLSA supports liquidated damages per the statute.
29 U.S.C. § 215(a)(3) prohibits any person from discharging or in any manner discriminating against an employee because the employee filed a complaint or instituted a proceeding under the FLSA. As noted above, Plaintiff filed a federal lawsuit on October 23, 2003 against the Town of Bernalillo and Stan Holden (who had a dual role as fire chief of Santa Fe County and Director of the Bernalillo Emergency Medical Services and who supervised Plaintiff in both capacities, as Plaintiff worked as a part-time paramedic for Bernalillo EMS while he was employed with Santa Fe County). That lawsuit, Henson, et al. v. Town and Bernalillo and Stan Holden, Civ. 03-1229 WBS/RHS, alleged violations of the FLSA in failing to pay its employees for overtime as required by law. That case resulted in a settlement. On November 7, 2003, Plaintiff also filed suit under the FLSA in state court against the Santa Fe County Fire Department and Stan Holden.
In the present lawsuit, Plaintiff claims that Defendant's actions toward him, including allegations of repeated and continuous harassment, unwarranted disciplinary actions, invasions of privacy, unconstitutional searches and seizures of personal papers and property, modifications of job duties, threats of physical harm, and false accusations of criminal conduct [Amended Complaint, Doc. 19, at ¶ 40], were taken in order to retaliate against him for the FLSA actions.
The FLSA provides for liquidated damages when the employer violates the Act by retaliation. As noted above, 29 U.S.C. § 215(a)(3) prohibits retaliation. 29 U.S.C. § 216(b) provides that, "Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages." Therefore, if Plaintiff convinces the jury that the Defendant behaved toward him as alleged, and that this behavior was motivated by a retaliatory motive, he can claim liquidated damages under the Act. He has submitted an instruction to this effect, PPI-26, and the Court will so instruct the jury.
In his instruction (PPI-19) setting forth the cause of action for retaliation, Plaintiff adds a sentence stating that, as with the claim of discrimination, Plaintiff need not establish that the retaliatory reason was the sole or exclusive reason for his adverse treatment, but only that it was a substantial factor; he also seeks to include a sentence stating that, as with the claim of discrimination, Plaintiff may prove his claim through circumstantial evidence.
It is not necessary to include these two sentences. I used Defendant's suggested language for the third element of these claims, which states that plaintiff must show that his protected conduct was "a motivating factor" in the alleged adverse action — that encompasses Plaintiff's "sole or exclusive reason" language. And the statement about circumstantial evidence is covered elsewhere in the instructions.
Plaintiff added a separate instruction, PPI-20, which reiterates what he presented in PPI-19. He does not cite any authority for this instruction. It is duplicative. The Court will not give PPI-20.
Punitive Damages
PPI-27 asks the jury to consider punitive damages. This instruction will be rejected. Plaintiff did not ask for punitive damages in his complaint, and such damages are not available against the county. In addition, he refers to "Defendant Stan Holden" in the instruction, but Mr. Holden has not been named as an individual defendant in this case.
Special Verdict
Defendant did not submit a proposed verdict form. Plaintiff submitted a simple form, asking the jury to decide what the damages should be for each cause of action.
The better course is to use a special verdict form, asking the jury to state, for each of the four causes of action, whether plaintiff established the claim by a preponderance of the evidence. After these four are listed, the Court instructs the jury that if they answered "No" to all of them, that would constitute their verdict in favor of Defendant and against Plaintiff, and they should not answer any further questions. However, if they answered "Yes" to any one or more of the first four questions, they should continue on and state whether Plaintiff suffered a constructive discharge (as this is not separate cause of action but only goes to damages). The jury is then asked to state an amount of damages for each of the various elements listed in the damages instructions.
Plaintiff's proposed jury verdict asks the jury to state an amount for each cause of action. The Court decided not to use this, because the four causes of action have slightly different measures of damage, but some of them are overlapping (e.g., lost wages, mental anguish). There is a danger of duplicate recovery unless the jury is asked to set an amount for each element of damage. The damages section of the special verdict also informs the jury that Plaintiff can recover liquidated damages only if he has proved his FLSA retaliation claim, and that Plaintiff can recover past wages after the date he resigned only if he has proved constructive discharge; the jury is also reminded to reduce future lost wages to present value.
Proximate Cause
In DPI-17, Defendant proposes the following language to be included in the list of things that plaintiff has to prove: "The plaintiff also contends and has the burden of proving that such discrimination, retaliation and breach of contract was a proximate cause of the injuries and damages." Also in DPI-17, Defendant seeks to include, in the statement of Defendant's denials, the statement that "The defendant also denies that its alleged discrimination, retaliation and/or breach of contract is the proximate cause of plaintiff's injuries or damages." Defendant also proposes a separate instruction defining proximate cause (DPI-19).
The court will leave this language out of the instructions. The argument that defendant's actions did not cause any harm is implicit in his denials to each of these charges. For instance, Defendant claims that it did not breach the contract because it actually did give plaintiff a pay raise; it is unnecessary and confusing to add the claim that defendant's breach was not the "proximate cause" of plaintiff's injury. And the claims for discrimination and retaliation include the element that Plaintiff's race or national origin was a "motivating factor" in the employer's action; this has been called a "causation" element, but the Court need not use the term "proximate cause."
Defendant is still free to argue that Plaintiff suffered no loss and is entitled to no damages, and the jury will be instructed on plaintiff's obligation to mitigate damages. In addition, the jury will have to determine whether racial or national origin discrimination was a motivating factor in the retaliation and discrimination claims. Any reference to "proximate cause" muddies the waters and confuses the issues.
Additional Considerations with Respect to the Discrimination Claim
Defendant requests an instruction (DPI-43) that, in determining whether intentional discrimination occurred, the jury "may consider" whether plaintiff was treated differently from similarly situated non-Hispanics. Defendant also asks for an instruction (DPI-44) that the jury may consider it unlikely that the same person who hired plaintiff would also discriminate against him.
These are not elements of the cause of action for discrimination and are best left for closing argument.
Defendant also requests an instruction (DPI-45) telling the jury that if it finds defendant discriminated against plaintiff for reasons unrelated to his race or national origin, they must find the defendant not liable. The Court will not give this as a separate instruction, as the substance of this proposed instruction is already included in the statement of what plaintiff has to prove in order to establish the discrimination claim ( i.e., that race/national origin was a "motivating factor"). This instruction would emphasize that one element and is repetitive.
Additional Factors with Respect to Retaliation
Defendant requests an instruction (DPI-48) which states that unless Plaintiff makes a specific complaint of racial or national origin discrimination, he cannot prevail on his Title VII retaliation claim, as vague references to discrimination and harassment are not sufficient.
The Court rejects this instruction, as Plaintiff filed a specific claim with the EEOC alleging discrimination because of his race/national origin; "vague references" are not at issue in the case.
Defendant also requests an instruction (DPI-49) which states, "If you find no adverse employment action was taken against plaintiff after he filed his charge of discrimination, you must find defendant not liable for Title VII retaliation." This is simply a restatement of one of the elements of the retaliation claim, and the jury has already been told that Plaintiff must establish this element; the instruction is therefore rejected. The same holds true for DPI-55, which is essentially the same proposed instruction but relates to the claim of retaliation under the FLSA.
Defendant requests a separate instruction (DPI-51) which states that if you find that the charge of discrimination was not the motivating factor for the retaliation, you must find for defendant on this claim. This is repetitive, and the Court will not include it. The instruction on elements of the claim for retaliation already includes "motivating factor" as an element; in addition, that instruction includes Defendant's language regarding the "but for" standard. The Court also left out a similar requested instruction (DPI-57), which is essentially the same proposed instruction but relates to the claim of retaliation under the FLSA.
Adverse Employment Action
Defendant requests an instruction (DPI-58) which defines "adverse employment action." This is a correct statement of the law, and the Court will include it after the instructions setting forth the elements of the two retaliation claims.
Mitigation of Damages
Defendant requested two different instructions on duty to mitigate. DPI-24, based on NM UJI Civ 13-860, is included in the contracts portion of the NM UJI. It reads, "A party may not recover as damage any cost or loss which he reasonably could have avoided."
DPI-27, based on NM UJI Civ 13-1811, is included in the personal injury damages section of the UJI. It reads in pertinent part, "an injured person must exercise ordinary care to minimize or lessen his damages. Damages caused by failure to exercise such care cannot be recovered."
This is not a tort action, but the discrimination claims do allege an injury. Plaintiff has also alleged a contract claim. The Court will therefore use both of Defendant's proposed instructions, combined into one instruction.
Failure to mitigate damages is an affirmative defense on which defendant bears the burden of proof. Blacker v. U-Haul Co. of N.M., Inc., 113 N.M. 542, 828 P.2d 975 (Ct.App. 1992); United Int'l Holdings, Inc. v. The Wharf (Holdings), Ltd., 210 F.3d 1207 (10th Cir. 2000). See also, FJPI § 71.94. The Court therefore added the statement that Defendant has the burden of proving that Plaintiff failed to mitigate.
IT IS SO ORDERED.