Free Trial Memo - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT KENDRA HEWITT, DARLENE WHALEY And ETHEL L. WRIGHT PLAINTIFFS vs METROPOLITAN DISTRICT COMMISSION DEFENDANT JOINT TRIAL MEMORANDUM (1) TRIAL COUNSEL: CIVIL ACTION NO.: 301CV2037MRK January 18, 2005

For Plaintiff: For Defendant Robert W. Heagney Anthony J. Palermino 555 Franklin Avenue 945Wethersfield Avenue Hartford, CT 06114 Hartford, CT 06114 Phone: (860) 296-2111 Phone: (860) 296-0035 Fax: (860) 296-8494 Fax (860) 296-9468 E-mail:[email protected] E-mail:[email protected].

Stuart E. Brown 555 Franklin Avenue Hartford, CT 06114 Phone: (860)296-2111 ext. 140 Fax: (860) 296-8494 E-mail: [email protected] (2) JURISDICTION:

Gary R. Atkinson 945 Wethersfield Avenue Hartford, CT 06114 Phone: (860) 296-0035 Fax (860) 296-9468 E-mail: [email protected]

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331, as the case involves questions of federal constitutional and statutory rights, and pursuant to 28 U.S.C. § 1343, as the case involves allegations of deprivations of federal civil rights.

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(3)

JURY/NON-JURY:

This case is to be tried to a jury.

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LENGTH OF TRIAL:

Counsel estimate that the presentation of evidence in this matter will require a total of six (6) days: Plaintiff's case requiring four (4) days of testimony and Defendant's case requiring two (2) days. (5) FURTHER PRETRIAL PROCEEDINGS:

Plaintiffs Darlene Whaley and Ethel Wright have reached an agreement with the MDC as to an appropriate settlement of their portions of this case. They will be filing withdrawals upon receipt of the agreed consideration for settlement from the Defendant. Both parties intend to object to certain exhibits and will file written objections to same. In addition, the Defendant will file a motion in limine to preclude testimony and evidence on the following: 1]. Any evidence by Plaintiff Hewitt concerning a claim for constructive discharge; and

2]. Any evidence of alleged discrimination against MDC employees or former employees who are not parties to this action. The only objection to be noted now is to Morgan's medical records. The admission of these records requires expert testimony, and no expert has been identified. (6) NATURE OF CASE:

Plaintiff's Statement:

The Plaintiff, Kendra Morgan, has brought the present action in a single count. The Plaintiff claims that she was discriminated against in the terms and conditions of her employment in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e), et seq. The plaintiff seeks compensatory damages for her economic damages (lost pay, lost benefits, etc.) and non-economic damages (stress, humiliation, emotional distress, etc.). The Plaintiff also seeks reimbursement of costs and attorneys' fees incurred in the present action.

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Defendant's Statement: The defendant, The Metropolitan District Commission, denies that it discriminated against the plaintiff on the basis of her race, denies that the plaintiff suffered any adverse job action, and, even if the plaintiff is able to prove discrimination, denies that she sustained any damages. In addition, the MDC claims that some of Plaintiffs' allegations of discriminatory treatment are barred under the applicable statute of limitations, that the doctrine of qualified immunity applicable to discretionary and governmental functions of the MDC bars the plaintiffs' claims, that the MDC exercised reasonable care to prevent and correct any harassment by a supervisor that the plaintiffs failed to take advantage of the MDC's reporting procedures and to mitigate damages and, that the plaintiffs failed to arrange that a notice of right to sue was issued by the Equal Employment Opportunity Commission (EEOC), indicating failure to exhaust an administrative remedy. (7) TRIAL BY MAGISTRATE JUDGE

The parties have conferred and they do not desire to have the present case tried by a Magistrate Judge.

(8)

EVIDENCE

WITNESSES FOR PLAINTIFF · Kendra Morgan (Plaintiff) i. Anticipated testimony: Plaintiff will provide first-hand testimony as to the allegations set forth in her complaint; Plaintiff's employment at MDC and the events surrounding the allegations of the complaint ii. Duration of testimony: five (5) hours iii. Morgan is likely to testify Susan Gessay (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Gessay's employment history at MDC ii. Duration of testimony: one and a half (1.5) hours iii. Gessay is likely to testify Darlene Whaley (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: witnessing incidents of adverse treatment and discrimination towards the Plaintiff 3

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ii. Duration of testimony: one and a half (1.5) hours iii. Whaley is likely to testify Monece Ritter (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: witnessing incidents of adverse treatment and discrimination towards the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Ritter is likely to testify Linda Foster (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Foster will testify about the work actually being performed by Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Foster is to be called if the need arises Sheila Fredericks (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Fredericks will testify about the work actually being performed by the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Fredericks is to be called only if the need arises Karen Feeney (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Feeney will testify about the work that was actually being performed by the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Feeney is to be called only if the need arises Florence Oten (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Oten will testify about the work that was actually being performed by the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Oten is to be called if the need arises Julia Hudson (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Hudson will testify about the work that was actually being performed by the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Hudson is to be called if the need arises Jennifer Taylor (address: ) i. Anticipated testimony: witnessing incidents of adverse treatment and discrimination towards the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Taylor is likely to testify Tammy Richardson (address: P.O.Box 281054, E. Hartford, CT 06128) i. Anticipated testimony: witnessing incidents of adverse treatment and discrimination towards the Plaintiff ii. Duration of testimony: one and a half (1.5) hours iii. Richardson is likely to testify James Michel (address: 555 Main Street, Hartford, CT) 4

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i. Anticipated testimony: witnessing incidents of adverse treatment and discrimination towards the Plaintiff ii. Duration of testimony: two and a half (2.5) hours iii. Michel is likely to testify Margaret Roughan (1690 San Silvestro Drive, Venice, FL) i. Anticipated testimony: participation in incidents of adverse treatment and discrimination towards the Plaintiff ii. Duration of testimony: two (2) hours iii. Roughan is to be called only if the need arises Ethel Wright (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: Kendra Morgan's employment at MDC ii. Duration of testimony: one hour (1) hour iii. Wright is to be called only if the need arises Robert Zaik (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: the Defendant's policies and procedures as to reclassification and retroactive pay ii. Duration of testimony: one and a half (1.5) hours iii. Zaik is likely to testify Edward Skowronek (address: 555 Main Street, Hartford, CT) i. Anticipated testimony: identification and authentication of payroll records and testimony explaining same ii. Duration of testimony: two (2) hours iii. Skowronek is likely to testify

The Plaintiff reserves the right to call additional witnesses for rebuttal in response to evidence submitted by the Defendant not reasonably anticipated prior to the beginning of the trial.

WITNESSES FOR DEFENDANT 1]. Robert J. Zaik, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Mr. Zaik will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: four (4) hours. iii. Mr. Zaik is likely to testify. 2]. Robert Hagen, MDC, 555 Main Street, Hartford, CT 5

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i.

ii. iii.

Anticipated testimony: Mr. Hagen will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. Duration of testimony: one (1) hour. Mr. Hagan is likely to testify.

3]. Edward Skowronek, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Mr. Skowronek will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: one (1) hour. iii. Mr. Skowronek is likely to testify. 4]. Russell Mannila, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Mr. Mannila will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: two (2) hours. iii. Mr. Mannila is likely to testify. 5]. Robert Moore, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Mr. Moore will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: one (1) hour. iii. Mr. Moore is likely to testify. 6]. Patricia Speicher-Werbner, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Ms. Speicher-Werbner will testify about the MDC's employment policies, the MDC's handling of employee complaints, including allegations of discrimination, the MDC's handling of the plaintiffs' complaint, the MDC's affirmative action programs, and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: three (3) hours. iii. Ms. Speicher-Werbner is likely to testify. 7]. James Michel, MDC, 555 Main Street, Hartford, CT i. Anticipated testimony: Mr. Michel will testify about his knowledge of the plaintiffs' allegations in their complaint and the MDC's responses to the plaintiffs' claims of discrimination. ii. Duration of testimony: two (2) hours. iii. Mr. Mannila is likely to testify. 8]. Margaret Roughan, 1690 Sand Silvestro Drive, Venice, Florida 6

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i.

ii. iii.

Anticipated testimony: Ms. Roughan will testify about the MDC's employment policies, the MDC's handling of employee complaints, including allegations of discrimination and, the MDC's handling of the complaints of Plaintiff. Duration of testimony: one (1) hour. Ms. Roughan will be called if the need arises.

9]. Norman LeBlanc i. Anticipated testimony: Mr. LeBlanc will testify about his knowledge of the Plaintiffs' allegations in their complaint and the MDC's responses to the Plaintiffs' claims of discrimination. ii. Duration of testimony: one (1) hour. iii. Mr. LeBlanc will be called if the need arises.

10]. Ron Farina, CPC, 50 Founders Plaza, Suite 304, East Hartford, CT 06108 i. Anticipated testimony: Mr. Farina will testify about information regarding the recruitment and qualifications for the job of head of Human Resources. ii. Duration of testimony: one (1) hour. iii. Mr. Farina will be called if the need arises.

The Defendant reserves the right to call additional witnesses for rebuttal in response to evidence submitted by the Plaintiff not reasonably anticipated prior to the beginning of the trial. EXHIBITS FOR PLAINTIFF 1. 2. 3. 4. 5. 6. 7. 8. Kendra Morgan performance evaluation 1994 Kendra Morgan performance evaluation 1995 Kendra Morgan performance evaluation 1996 Kendra Morgan performance evaluation 1997 Kendra Morgan performance evaluation 1998 Kendra Morgan performance evaluation 1999 Kendra Morgan performance evaluation 2000 Memo from Roughan to Gozzo, dated January 31, 1994, Subject: New Hires/Transfers 9. Memo from Roughan to Gozzo, dated May 13, 1996, subject Work Center Re-Locations 10. Documents to be subpoenaed from the MDC evincing the reclassification or promotion of Susan Gessay 11. Documents to be subpoenaed from the MDC evincing the amounts of 7

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retroactive pay awarded to Susan Gessay 12. Payroll records to be subpoenaed from MDC as to Kendra (Hewitt) Morgan 13. Payroll records to be subpoenaed from MDC as to Susan Gessay for January 1994 through January 2002 14. Correspondence from Szestakow to Hewitt, dated May 5, 1998, Subject: verification of employment 15. Memo from Mannila to Hewitt, dated April 5, 2000, Subject: Classification Change 16. MDC's 1997 Classification Review status report 17. MDC's response to Interrogatories #5/ Request for Production #6: Schedule of Retro-Active Pay Adjustments 18. Medical Records for Kendra Morgan 19. E-mail from Donna Szestakow to James Michel: subject Kendra Morgan's job responsibilities EXHIBITS FOR DEFENDANT

Kendra Hewitt 1]. Local 3713 Collective Bargaining Agreement 2001. 2]. Memo from Roughan to Gozzo - May 13, 1996. 3]. Memo from Mannila to Hewitt - April 5, 2000. 4]. Memo from Skowronek to Michel - June 29, 2000. 5]. Memo from Skowronek to Michel ­ September 27, 2000. 6]. Memo from Edward Skowronek to James Michel dated August 30, 2001 and attached evaluation. 7]. Resignation letter from Hewitt to Skowronek dated December 20, 2001. 8]. Salary history of Kendra Hewitt 9]. Retroactivity calculation

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STIPULATIONS 1. The Plaintiff, Kendra Morgan, is an African-American female. 2. Kendra Morgan was employed by the Defendant, Metropolitan District Commission ("MDC"), from January, 1994 through January, 2002. 3. The MDC is a municipal corporation with an administrative office at 555 Main Street, Hartford, Connecticut.

Proposed Voir Dire Questions ­ attached. 8

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Proposed Jury Instructions ­ attached. Proposed Verdict Form ­ attached.

Brief Description of Case and Parties

The Present case involves a controversy between the Plaintiff, Kendra Morgan, and the Defendant, the Metropolitan District Commission. At certain points, you may hear the Defendant referred to as the "MDC" for short. Mrs. Morgan is a former African-American employee of the Metropolitan District Commission. This case will involve allegations of racial discrimination in the workplace against an employee, Kendra Morgan. Plaintiff Hewitt contends that she was discriminated against because of her race, and was denied retroactive pay for her promotion to Accounting Clerk. The MDC denies any discrimination based upon the Plaintiff's race. It will be left to you, the members of the jury, to determine whether there was discrimination against Mrs. Morgan, and, if so, what recovery is she entitled to.

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EVIDENTIARY PROBLEMS

See Section 5, above.

PLAINTIFF, KENDRA MORGAN

DEFENDANT, THE METROPOLITAN DISTRICT COMMISSION

By: ______________________________ Robert W. Heagney (ct05858) E-mail: [email protected] Stuart E. Brown (ct24659) E-mail: [email protected] Hassett & George, P.C. 555 Franklin Avenue

By: _________________________________ Anthony J. Palermino E-mail:[email protected] Gary Atkinson E-mail: [email protected] 945 Wethersfield Avenue Hartford, CT 06114 9

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Hartford, CT 06114 Phone: (860) 296-2111 Fax: (860) 296-8494

Phone: (860) 296-0035 Fax: (860) 296-9468

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT KENDRA HEWITT, DARLENE WHALEY And ETHEL L. WRIGHT PLAINTIFFS vs METROPOLITAN DISTRICT COMMISSION DEFENDANT CIVIL ACTION NO.: 301CV2037MRK January 18, 2005

DEFENDANT MDC'S PROPOSED VOIR DIRE QUESTIONS

The Defendant, Metropolitan District Commission, ("MDC") submits the following proposed voir dire questions: 1. Do you know of the MDC, which supplies drinking water, sewer services,

waste collection, water pollution control, and other services in the Greater Hartford area? What is your opinion? 2. be impartial? 3. Do you know anyone who works for the MDC? If so, who do you know? Are you a customer of the MDC? If so, will that fact affect your ability to

How do you know that person? 4. Have you read anything about the MDC's efforts to achieve racial diversity

among its employees? If so, what have you read? 5. Do you know anyone who has claimed discrimination against his or her

employer? If so, what was the claim? 6. Do you believe that employees and managers or supervisors of different 11

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races can have disagreements about workplace issues, and even take unreasonable positions on those issues, without those disagreements constituting race discrimination? 7. Have you ever been involved in a situation at work where you believed that

an employee was discriminated against? 8. Have you ever been involved in a situation at work where an employee

claimed that he or she was discriminated against but you believed that the action taken was not discrimination? Please describe. 9. Do you understand that, just because someone files a legal claim, that

person is not entitled to compensation and that, in order to recover any compensation, that person must actually prove his or her claims with evidence? 10. Have you ever served on a jury before? If so, what was the case about? DEFENDANT METROPOLITAN DISTRICT COMMISSION

BY____________________________ ANTHONY J. PALERMINO Their Attorney Law Offices of Anthony J. Palermino 945 Wethersfield Avenue Hartford, Connecticut 06114 (860) 296-0035 ct05651

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT KENDRA HEWITT, DARLENE WHALEY And ETHEL L. WRIGHT PLAINTIFFS 12 CIVIL ACTION NO.: 301CV2037MRK

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vs METROPOLITAN DISTRICT COMMISSION DEFENDANT

January 18, 2005

DEFENDANT'S PROPOSED JURY INSTRUCTIONS INSTRUCTION NO. 1: SECTION 1981 STATUTE Section 1981 of the Federal Civil Rights Act provides: (a) State of equal rights

All persons within the jurisdiction of the United States shall have the same rights in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) Definition

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and -1the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. Authorities: 42 U.S.C. § 1981.

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-2INSTRUCTION NO. 2 SECTION 1981 - ELEMENTS OF CLAIM In order for the plaintiff to establish his claim against the MDC, the plaintiff has the burden of proving by a preponderance of the evidence that the MDC had a discriminatory purpose or motive in that the MDC's actions were, more likely than not, motivated by the plaintiff's race. In order to recover under section 1981, the plaintiff must prove each of the following elements by a preponderance of the evidence: 14

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First, that the plaintiff must prove that the MDC failed to promote the plaintiff, threatened the plaintiff, created a hostile work environment, refused to reclassify his position, and removed his job responsibilities; and Second, that the plaintiff's race was a substantial or motivating factor that prompted the MDC's decisions. In order for the plaintiff to recover on his claim against the MDC, the plaintiff must prove that the MDC intentionally discriminated against the plaintiff. That is, the plaintiff's race must be proven to have been a motivating factor in the MDC's actions allegedly taken toward the plaintiff. The mere fact that the plaintiff is an African-American and was not promoted, received threats, perceived his workplace as hostile, was not reclassified, or had his job responsibilities changed, is not sufficient, in and of itself, to establish the plaintiff's claim under the law. -3If either of the above elements has not been proved a preponderance of the evidence, you must decide in favor of the MDC and you must not consider the plaintiff's claim any further. Authorities: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions § 170.20 (5th ed. 2001).

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INSTRUCTION NO. 3

-4MOTIVATING FACTOR

The term "motivating factor" means that the evidence must show that, but for the plaintiff's race, the plaintiff would not have been treated the way he was treated by the MDC. The term "motivating factor" does not mean that it was the MDC's only motivation for its decision not to promote the plaintiff, but it must have been a substantial factor that actually led the MDC to make its decision. Authorities: O'Malley, Grenig & Lee, Federal Jury Practice and Instructions § 170.20 (5th ed. 2001).

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-5INSTRUCTION NO. 4 SECTION 1981 - FAILURE TO PROMOTE You should be mindful that the law applicable to this case requires that an employer not discriminate against an employee applicant because of the employee's or applicant's race. So far as you are concerned in this case, an employer may fail to promote an employee or applicant for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the plaintiff to lead you to substitute your own judgment for that of the MDC even though you personally may not favor the action taken and would have acted differently under the circumstances. Neither does the law require an employer to extend any special or favorable treatment to employees or applicants because of their race. On the other hand, it is not necessary for the plaintiff to prove that the plaintiff's 17

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race was the sole or exclusive reason for the MDC's decision. It is sufficient if the plaintiff proves that his race was a determinative consideration that made a difference in the MDC's decision. If you find in the plaintiff's favor with respect to each of the facts that the plaintiff must prove, you must then decide whether the MDC has shown by a preponderance of the evidence that the plaintiff would not have been promoted for reasons apart from race, then your verdict should be for the MDC. -6Authorities: Eleventh Circuit Pattern Jury Instructions (Civil Cases), Federal Claims Instruction No. 1.3.1 (2000).

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-7INSTRUCTION NO. 5: SECTION 1981 - INTENT In order to establish the plaintiff's case, the plaintiff must prove by a preponderance of the evidence that the MDC was motivated by a racially discriminatory purpose. In other words, the plaintiff must provide that the MDC intentionally and purposefully discriminated against the plaintiff because of his race. The plaintiff must prove that the MDC actually was motivated by a racially discriminatory purpose. It is not enough for the plaintiff to show that the MDC's conduct had a negative effect on members of the plaintiff's race. Authorities: Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377, 105 L.Ed.2d 132 (1989). General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).

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INSTRUCTION NO. 6:

-8SECTION 1981 HOSTILE WORK ENVIRONMENT

I want to charge you separately with the additional legal requirements for the plaintiff's claim that the MDC created a hostile work environment on account of his race. In order to prove that his work environment was hostile, the plaintiff must prove by a preponderance of the evidence each of the following elements: First, that he was subjected to harassment in the form of failure to be promoted, threatening and derogatory treatment, refusal to reclassify his position, and remand of his job responsibilities by the MDC; Second, that the MDC actually engaged in such conduct; Third, that the alleged harassment by the MDC was based upon the plaintiff's race; Fourth, that the plaintiff's claimed conduct was so pervasive and severe as to affect detrimentally the terms and conditions of the plaintiff's employment at the MDC; and Fifth, that the MDC's actions would have detrimentally affected a reasonable person of the same race in plaintiff's position. Authorities: 42 U.S.C. § 1981. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-69 (1986). Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993). Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), cert. denied, 118 S. Ct. 336 (1997). 20

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-93 Hon. Edward J. Devitt, et al., Federal Jury Practice And Instructions §§ 104.01, 104.09B (4th ed. 1987 & Supp. 1997).

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INSTRUCTION NO. 7: SECTION 1981 HOSTILE WORK ENVIRONMENT ­ PERVASIVE AND SEVERE CONDUCT If you determine that the plaintiff has proven that the conduct he alleges actually occurred, you cannot find for the plaintiff on his Second Count unless you also determine that the plaintiff has proven that the MDC's conduct was so pervasive and severe as to affect detrimentally the terms and conditions of the plaintiff's employment and that it created an abusive environment. When you are considering this element of the plaintiff's hostile work environment claim, you should remember that not all workplace conduct that may be described as "harassment" violates section 1981. For harassment to be actionable, it must be sufficiently severe or pervasive to alter the condition of the victim's employment and it must create an abusive working environment. The conduct must be extreme to amount to a change in the terms and conditions of employment. Isolated incidents are not enough to constitute harassment. Rather, in order to succeed on his claim, the plaintiff must prove that his workplace was permeated with discriminatory intimation, ridicule and insults. In order to determine whether the plaintiff has proven that there was an abusive working environment, you must consider all of the circumstances of the plaintiff's employment. Thus, you should consider the frequency of the alleged discriminatory conduct. As a general rule, incidents must be repeated and -11sufficiently continuous and concerted to be deemed "pervasive" within the meaning of section 1981. Isolated remarks or occasional episodes of harassment generally are not sufficient to establish a violation. 22

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You should also consider whether the alleged discriminatory conduct was physically threatening or humiliating, or on the contrary, whether it was merely offensive. If you determine that the MDC's conduct toward the plaintiff was merely offensive, you must find for the MDC. It is important that you remember that section 1981 does not arbitrate workplace stability. Nor does section 1981 prohibit genuine but innocuous differences in the ways people of different races routinely interact with members of the same or opposite race. Incidents that are merely offensive or inappropriate if they are isolated and discrete as opposed to being pervasive and severe are not enough to constitute a hostile work environment. The law does not punish trivial behavior. As such, simple teasing, offhand comments and isolated incidents (unless extremely serious) do not amount to discrimination. Only extreme conduct amounting to a material change in the terms and conditions of employment is actionable. If the plaintiff has failed to prove by a preponderance of the evidence that the alleged conduct was so severe and pervasive as to create a hostile and abusive work environment, then you must find for the MDC. -12Authorities: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268-69, 141 L.Ed.2d 633 (1998). Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998). Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. ____, 118 S. Ct. 998 (1998). 23

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Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Quinn v. Green Tree Credit Corp., No. 97-9045, 1998 U.S. App. LEXIS 28108, *22 (2d Cir. Nov. 5, 1998). Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir. 1998). Tomka v. Seiler Corp., 66 F.3d 1295, 1306 n.5 (2d Cir. 1995). Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992). Carrero v. New York City Hous. Auth., 890 F.2d 569, 577-78 (2d Cir. 1989).

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INSTRUCTION NO. 8: SECTION 1981 HOSTILE WORK ENVIRONMENT ­ OBJECTIVE AND SUBJECTIVE STANDARD For the plaintiff to prevail on his hostile work environment claim, he must prove that the allegedly racially hostile environment was both objectively and subjectively offensive. In other words, the plaintiff must prove that he subjectively perceived the conduct to be hostile and that a reasonable person also would find that conduct to be hostile and abusive. In determining whether a hostile work environment existed, you first must consider the evidence from the perspective of a reasonable person. This is an objective standard and requires you to look at the evidence from the perspective of a reasonable person's reaction to a similar environment under similar circumstances. You cannot view the evidence from the perspective of an overly sensitive person. Instead, you must consider the total circumstances and determine whether the alleged harassing behavior could be objectively classified as the kind of behavior that would seriously affect the psychological well-being of a reasonable person. If a reasonable person would view the MDC's behavior as hostile, you must then look at the evidence from the plaintiff's perspective. The plaintiff must subjectively perceive the environment to be hostile.

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Authorities: Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998).). Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997), cert. denied, 118 S. Ct. 336 (1997). Brittell v. Dep't of Correction, 247 Conn. 148, 166-67, 717 A.2d 1254 (1998).

-15INSTRUCTION NO. 9: TITLE VII STATUTE

Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful 26

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employment practice for an employer ... 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." Authorities: 42 U.S.C. § 2000e-2.

-16INSTRUCTION NO. 10: TITLE VII ESSENTIAL ELEMENTS

In order for the plaintiff to establish his claim against the MDC under Title VII, the plaintiff has the burden of proving by a preponderance of the evidence that the MDC's 27

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actions were motivated by the plaintiff's race. The plaintiff must prove that the MDC intentionally discriminated against him, that is, that his race must be proven to have been a motivating factor in the MDC's conduct that the plaintiff claims about. The mere fact that the plaintiff is an African-American and was treated differently from other employees of the MDC is not sufficient, in and of itself, to establish the plaintiff's claim under the law. In showing that the plaintiff's race was a motivating factor, the plaintiff is not required to prove that his race was the sole motivation or even the primary motivation for the MDC's decision. The plaintiff need only prove that his race played a motivating part in the MDC's decision even though other factors may also have motivated the MDC. Authorities: Cabrera v. Jakabovitz, 24 F.3d 373, 381-82 (2d Cir.), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994). O'Malley, Grenig & Lee, Federal Jury Practice and Instructions §171.10.

INSTRUCTION NO. 11:

-17HOSTILE WORK ENVIRONMENT ­ EMPLOYER LIABILITY DEFENSE

If the plaintiff has proven by a preponderance of the evidence each of these elements, then he has established that he was subjected to a hostile work environment. In order to find for the plaintiff, the plaintiff must still show that the MDC should be held liable for his claimed harassment. When a supervisor engages in harassing activity, the employer is presumed to be 28

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liable for that harassment unless the employer can prove that (1) the employer exercised reasonable care to prevent and promptly correct any harassment by the supervisor, and (2) the employee unreasonably failed to avail himself of any corrective or preventative opportunities provided by the employer or to avoid harm otherwise or that the employee took prompt and remedial measures to address the harm. Thus, you may not find the MDC liable for any conduct engaged in by its supervisors if the MDC proved that it exercised reasonable care to prevent and promptly corrected any harassment and that the plaintiff unreasonably failed to avail himself of any corrective or preventative opportunities provided by the employer. Authorities: Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998). Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268-69, 141 L.Ed2d 633 (1998). -18Quinn v. Green Tree Credit Corp., No. 97-9045, 1998 U.S. App. LEXIS 28108, *17 (2d Cir. Nov. 5, 1998).

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-19INSTRUCTION NO. 12: HOSTILE WORK ENVIRONMENT ­ EMPLOYER'S REASONABLE CARE DEFENSE As part of this defense, the MDC must prove to you that it engaged in reasonable care to prevent and correct any harassment. In determining whether the MDC has proven this, you may consider whether it had a workplace harassment policy with a complaint procedure in effect during the plaintiff's employment. Authorities: Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998). Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268-69, 141 L.Ed2d 633 (1998). Quinn v. Green Tree Credit Corp., No. 97-9045, 1998 U.S. App. LEXIS 28108, *17 (2d Cir. Nov. 5, 1998). 30

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-20-

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INSTRUCTION NO. 13: "SAME DECISION" DEFENSE You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's race. So far as you are concerned in this case, an employer may fail to promote an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the MDC even though you personally may not favor the action taken and would have acted differently under the circumstances. Neither does the law require an employer to extend any special or favorable treatment to employees because of their race. Authorities: PriceWaterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 1776, 104 L.Ed.2d 268 (1989). Eleventh Circuit Pattern Jury Instructions (Civil Cases), Federal Claims Instruction No. 1.2.1 (2000).

-21INSTRUCTION NO. 14: BUSINESS JUDGMENT Even if an employer is mistaken and its business judgment is wrong, an employer is 32

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entitled to make its own policy and business judgment. An employer may make those employment decisions as it sees fit, as long as it is not unlawful. In determining whether the MDC's stated reason for its actions was a pretext for discrimination, you may not question its business judgment. Discriminatory intent established just because you disagree with the business judgment of the MDC, unless you find that the MDC was actually motivated by a discriminatory interest. Authorities: Desert Palace, Inc. v. Costa, 123 S.Ct 2148 (2003). Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Smith v. F.W. Morse & Co., 76 F.3d 413, 422 (1st Cir. 1996). Bahl v. Royal Indem. Co., 115 F.3d 1283, 1291 (7th Cir. 1997). Davidson v. Time, Inc., 972 F.Supp. 148, 153 (E.D.N.Y.1997). Montana v. First Fed. Savings & Loan Ass'n, 869 F.2d 100, 106 (2d Cir. 1989).

-22--

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT KENDRA HEWITT, DARLENE WHALEY And ETHEL L. WRIGHT PLAINTIFFS vs METROPOLITAN DISTRICT COMMISSION DEFENDANT CIVIL ACTION NO.: 301CV2037MRK January 18, 2005

DEFENDANT'S PROPOSED VERDICT FORM

The Metropolitan District Commission would submit the following forms for each named Plaintiff. I. LIABILITY ISSUES A. DISPARATE TREATMENT UNDER TITLE VII You must answer Questions 1, 2 and 3. Has the Plaintiff proved by a preponderance of the evidence that: 1. The MDC took an adverse employment action against them?

_____YES

_____NO

2. The Plaintiff's race was a substantial or motivating factor in the MDC's decision to take an adverse employment action against them?

_____YES

_____NO

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3. The MDC's adverse employment action proximately caused any injuries sustained by the Plaintiff? _____YES _____NO

If you answered "Yes" to Questions 1, 2 and 3, then you have found in favor of the Plaintiff on her claim of Disparate Treatment Under Title VII. If you have answered "No" to Questions 1, 2 and 3, then you have found for the MDC on the Plaintiff's claim of Disparate Treatment under Title VII.

B. HOSTILE WORK ENVIRONMENT UNDER TITLE VII You must answer Questions 1, 2, 3 and 4. Has the Plaintiff proved by a preponderance of the evidence that: 1. The Plaintiff was subjected to a racially hostile work environment? _____YES _____NO

2. There is a specific basis for attributing the conduct that created the hostile environment to her employer, the MDC?

_____YES

_____NO

3.

The Plaintiff's race was a substantial or motivating factor in the MDC's conduct?

_____YES

_____NO

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4. The MDC's actions proximately caused any injuries sustained by the Plaintiff?

_____YES

_____NO

If you answered "YES" to Questions 1, 2, 3 and 4, then you must answer Questions 5 and 6 below. If you answered "NO" to Question 1, 2, 3, or 4, then you may skip Questions 5 and 6.

MDC's Affirmative Defense: Has the MDC proved by a preponderance of the evidence that:

5. The MDC exercised reasonable care to prevent and promptly correct any harassment by the Plaintiff's supervisors?

_____YES

_____NO

6. The Plaintiff unreasonably failed to avail herself of any corrective or preventive opportunities provided by the MDC or to avoid harm otherwise?

_____YES

_____NO

If you answered "YES" to Questions 1, 2, 3 and 4, and you answered "NO" to Question 5 or 6, then you have found for Plaintiff on her claim of Hostile Work Environment under Title VII. If you answered "NO" to Question 1, 2, 3, or 4 or if you answered "YES" to Questions 5 and 6, then you have found for the MDC on the Plaintiff's claim of Hostile Work Environment under Title VII. C. DISPARATE TREATMENT UNDER SECTION 1981 You must answer Questions 1, 2 and 3. Please note that your answers to Questions 1, 2 and 3 in Section D must be the same as your answers to Questions 1, 2, and 3 in Section A, above. 36

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Has the Plaintiff proved by a preponderance of the evidence that: 1. The MDC took an adverse employment against her?

_____YES

_____NO

2. The Plaintiff's race was a substantial or motivating factor in the MDC's decision to take adverse employment action against her?

_____YES

_____NO

3. The MDC's adverse employment action proximately caused any injuries sustained by the Plaintiff?

_____YES

_____NO

If you answered "YES" to Questions 1, 2 and 3, then you have found in favor of the Plaintiff on her claim of Disparate Treatment Under Section 1981. If you have answered "NO" to Question 1, 2, or 3, then you have found for the MDC on the Plaintiff's claims of Disparate Treatment under Section 1981. E. HOSTILE WORK ENVIRONMENT UNDER SECTION 1981 You must answer Questions 1, 2, 3 and 4. Please note that your answers to Questions 1, 2, 3, and 4 in Section E must be the same as your answers to Questions 1, 2, 3, and 4 in Section B above. Has the Plaintiff proved by a preponderance of the evidence that: 1. The Plaintiff was subjected to a racially hostile work environment?

_____YES

_____NO

2. There is a specific basis for attributing the conduct that created the hostile environment to her employer, the MDC? 37

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_____YES

_____NO

3. The Plaintiff's race was a substantial or motivating factor in the MDC's conduct?

_____YES

_____NO

4. The MDC's actions proximately caused any injuries sustained by the Plaintiffs?

_____YES

_____NO

If you answered "YES" to Questions 1,2,3, and 4, then you must answer Questions 5 and 6 below. If you answered "NO" to Question 1, 2, 3 or 4, then you may skip Questions 5 and 6. Please note that your answers to Questions 5 and 6 in Section E must be the same as your answers to Questions 5 and 6 in Section B, above.

MDC's Affirmative Defense: Has the MDC proved by a preponderance of the evidence that: 5. The MDC exercised reasonable care to prevent and promptly

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correct any harassment by the Plaintiff's supervisors. _____YES _____NO

6. The Plaintiff unreasonably failed to avail herself of any corrective or preventive opportunities provided by the MDC or otherwise available?

_____YES

_____NO

If you answered "YES" to Questions 1, 2, 3 and 4, and you answered "NO" to Question 5 or 6, then you have found for the Plaintiffs on their claim of Hostile Work Environment under Section 1981. If you answered "NO" to Question 1, 2, 3, or 4 or if you answered "YES" to Questions 5 and 6, then you have found for the MDC on the Plaintiffs' claims of Hostile Work Environment under Section 1981.

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT KENDRA MORGAN, Plaintiff : : : : : : : : CIVIL ACTION NO. 3:01 CV 2037 (MRK)

THE METROPOLITAN DISTRICT COMMISSION, Defendant

January 18, 2005

PLAINTIFF'S PROPOSED VOIR DIRE 1. 2. 3. 4. 5. Name of present employer? Job duties? Have you ever been a supervisor? Have you had people working for you? Have you ever worked in the field of labor relations, industrial relations or personnel? Have you ever taken any courses in law or personnel or labor relations? Have you ever been active in a union? Have you ever worked in a union shop? Do you have any close relatives employed by a municipality, state or city agency? Have you ever had the power to discharge or discipline? To recommend discipline? Do you have any close relatives that have ever been fired or laid off? Do you know of any of the lawyers in this case? Do you know of any of the following persons who are listed as witnesses? (List names on pretrial list). Have you ever been part of a group that signed a petition or letter protesting working conditions or criticizing your superior? 40

6. 7. 8. 9. 10. 11. 12.

13.

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14. 15.

Have you or a member of your immediate family ever filed a lawsuit? Have you or a member of your immediate family ever filed a grievance or an appeal of an adverse employment decision? Have you ever protested a written job appraisal or job evaluation? Have you ever prepared a job appraisal or evaluation of another employee? Do you think there is anything improper about an employee testifying against his current employer? Do you think a company may choose to treat an employee differently if the employee is viewed as having been disloyal? Have you ever owned your own business or been self-employed? Have you ever been a victim of discrimination of any kind? Have you ever filed a discrimination charge with the EEOC or other government agency? Have you ever been accused of discriminating against an employee? Do you believe discrimination in employment is a problem today? Have you ever been in a situation where you felt threatened by a fellow employee? Do you believe it is appropriate for a supervisor to yell at an employee in front of others? If the evidence showed that plaintiff was entitled to recover a very large amount of money would you have any difficulty in voting to make such a large award? Have you ever served on a jury before? Have you ever served as a juror in a criminal case? Do you understand that in a civil case plaintiff only has the burden of proving his case by a preponderance of the evidence? Do you understand plaintiff does not have to prove his case beyond a reasonable doubt as in a criminal case? Will you follow the instructions of law of the court concerning circumstantial indirect evidence and your right to make inferences and draw conclusions from circumstantial evidence even though there may be no direct evidence? 41

16. 17. 18.

19.

20. 21.

22. 23. 24. 25.

26.

27. 28. 29.

30.

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31.

At the end of the case when you retire to deliberate, will you vote according to your conscience? If you find that a preponderance or greater weight of the evidence shows that plaintiff was treated differently than other employees on unlawful discriminatory grounds, would you have any problem in entering a verdict for plaintiff'? Will you base your decision solely upon the evidence and law and not upon the sympathy or personal dislike of any of the parties, witnesses, or lawyers? Do you know of any fact or reason which would tend to make you biased or prejudiced for or against any of the parties? Do you know of any reason why you cannot give my client a fair trial? Will you promise me that if the preponderance of the evidence shows plaintiff is entitled to a verdict that you will return a verdict in favor of plaintiff? Have you any fixed ideas relative to anyone who files a lawsuit that would affect your judgment as a fair and impartial juror? Have you any preconceived ideas about this type of case that would affect your judgment as a fair and impartial juror?

32.

33.

34.

35. 36.

37.

38.

RESPECTFULLY SUBMITTED, PLAINTIFF, KENDRA MORGAN

By: UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
KENDRA MORGAN,

NO.3:01CV2037 (MRK) Plaintiff, v. 42

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THE METROPOLITAN DISTRICT COMMISSION, Defendant.

PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

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TABLE OF CONTENTS
INTRODUCTION .................................................................................................3 PART I: GENERAL INSTRUCTIONS .................................................................4 A. ROLE OF THE COURT .............................................................................4 B. INSTRUCTIONS TO BE CONSIDERED AS A WHOLE 5 C. BOTH SIDES ENTITLED TO FULL AND FAIR HEARING..................6 D. OBJECTIONS AND RULINGS .................................................................7 E. DUTIES OF THE JURY ........................................ ....................................9 F. "PROVE," "FIND," AND "ESTABLISH"................................................10 G. BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE .....11 H. FORMS OF EVIDENCE...........................................................................13 I. WHAT IS NOT EVIDENCE ....................................................................14 J. DIRECT & CIRCUMSTANTIAL EVIDENCE .......................................15 K. INFERENCE DEFINED ...........................................................................16 L. WITNESS CREDIBILITY - GENERAL..................................................17 M. IMPEACHMENT OF WITNESS .............................................................18 N. UNCONTRADICTED TESTIMONY ......................................................18 PART II: THE ISSUES AND CLAIMS IN THIS CASE A. DISPARATE TREATMENT UNDER TITLE VII B. DISPARATE TREATMENT UNDER SECTION 1981 19 20 23

PART III: PLAINTIFF'S DAMAGES ...................... ......................................... 24 A. GENERAL INSTRUCTIONS ON DAMAGES ....................................... 24 B. COMPENSATORY DAMAGES.............................................................. 25 C. MITIGATION OF DAMAGES ................................................................ 28 D. NOMINAL DAMAGES............................................................................ 28 PART IV: FINAL INSTRUCTIONS ................................................................... 29 A. NOTE TAKING ........................................................................................ 29 B. UNANIMOUS VERDICT......................................................................... 30 C. ADDITIONAL INSTRUCTIONS............................................................. 31

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INTRODUCTION Members of the jury, you now have heard all of the evidence in the case as well as the final arguments of the parties. I will now instruct you concerning the law that applies in this case. After that, you will return to the jury room to deliberate in accordance with my instructions. Before I give you these instructions, however, I want to express my thanks to you for the time and energy you have devoted to this trial. Jury service is rarely convenient, but without you justice could not be done in this case. It will take some time for me to read these instructions to you, but it is important that you listen carefully and pay close attention. You have been provided with a copy of my instructions so that you can read along as we go. If you want to make notes, please use your notebooks because we will collect your copy of the instructions at the end of my instructions and you will not be permitted to take your copy into the jury room with you. Only one official copy will be allowed in the jury room for your consideration. My instructions will be in four parts: first, I will discuss general rules concerning the role of the court and the duty of the jury; in the second and third parts, I will go over the issues in this case and set out the specific elements that you must find based on the evidence at trial; and fourth, I will give you some rules and guidelines for your deliberations. Before we begin, I ask you to look over the other document that was placed on your seats - namely, the Verdict Form. After I have given these instructions, you will go back into the jury room to deliberate. You will have with you the following: the original of the Verdict Form, the original exhibits, one copy of these instructions and any personal notes that you may have taken. At the conclusion of your deliberations, you will use the Verdict Form to report your verdict to the court and the parties. 45

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PART I: GENERAL INSTRUCTIONS

A.

ROLE OF THE COURT
As judge, I perform basically two functions during the trial. First, I decide what

evidence you may consider. You have heard me doing that throughout the trial. Second, I instruct you on the law that you are to apply to the facts in this case. I gave you some preliminary instructions before trial began, but it is now-at the close of evidence-that the final instructions governing your deliberations are given, so please be patient and listen closely. I believe that everything I am going to tell you is consistent with the preliminary instructions I gave you at the start of the trial, but if you have any doubt, you should not rely on anything different I may have said in the preliminary instructions. The instructions I am now giving you must guide your deliberations in this case. It is your duty to take the law as I will give it to you and to apply it to the facts as you determine them. You must take the law as I give it to you and if any attorney or any witness or exhibit has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. Also, you must not substitute your own notions or opinions of what the law is or ought to be for what I tell you the law is in my instructions.

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B.

INSTRUCTIONS TO BE CONSIDERED AS A WHOLE
This is a long instruction, and I may repeat certain parts. That does not mean that

those parts should be emphasized. You should not single out anyone part of my instructions and ignore the rest. Instead, you should consider all of the instructions as a whole and consider each instruction in light of all the others. The order in which I give you instructions does not indicate their relative importance. Do not read into these instructions, or into anything I have said or done, any suggestion from me about what verdict you should return - that is a matter for you alone to decide. I should also point out to you that, although you have been given a copy of the instructions to follow as I deliver them, if I say aloud anything at all different from what is written, you must follow what I say here in court.

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C.

BOTH SIDES ENTITLED TO FULL AND FAIR HEARING
Regardless of your ultimate decision about the parties' claims and defenses, both

parties in this case are entitled to a full and fair hearing. The parties are entitled to a trial free from prejudice or bias. Our justice system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence, regardless of the final outcome of the case. It is your duty, therefore, to give careful thought to every issue set forth by these instructions, regardless of any general feeling that you may have about which party is right. In deciding the facts or applying the law as I have given it to you, you must not be swayed by bias or prejudice for or against any party. All persons, including Kendra Morgan and the MDC, stand equal before the law and are to be dealt with as equals in a court of justice, regardless of who they are and regardless of how large or small they may be. You must not be swayed by your personal opinions about any of the issues raised in this trial. You must not be swayed by sympathy for any party. You should be guided solely by the evidence presented during trial and the law that I give you, without regard to the consequences of your verdict. I know that you will do this and in that way reach a just and true verdict. You have been chosen to try the issues of fact and to reach an impartial verdict on the basis of the evidence or lack of evidence. If you let your sympathy for one side or another to interfere with your clear thinking, there is a risk that you will not arrive at a just verdict.

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D.

OBJECTIONS AND RULINGS
Our courts operate under an adversary system in which we believe that the truth will

emerge through the competing presentations of adverse parties. It is the role of the attorneys to press as hard as they can for their respective positions. In fulfilling that role, they have not only the right, but the obligation to make objections to the introduction of evidence they feel is improper. You should not show any prejudice against an attorney or his client because the attorney objected to the admission of evidence or the phrasing of a question, or asked the court to rule on an objection or the propriety of a question.. The application of the rules of evidence is not always clear, and lawyers (and even judges) often disagree about what is permissible and what is not. It has been my job as the judge to resolve these disputes during the course of the trial. It is important for you to realize, however, that my rulings on evidentiary matters have nothing to do with the ultimate merits of the case, and are not to be considered as points scored for one side or the other. You are not to concern yourself with why a lawyer made an objection or why I ruled on it in the manner that I did. You should draw no inference from the fact that a lawyer objected to evidence. Nor should you draw any inference from the fact that I might have sustained or overruled an objection. My rulings on objections have nothing to do with the merits of the case or with the credibility of the witnesses. If I have sustained an objection to a question asked of a witness, you must disregard the question entirely, and may draw no inference from the question, nor speculate about what the witness would have said if he or she had been permitted to answer the question. If! have stricken an answer, you must disregard the part of the answer that was stricken, because it is not evidence. 49

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A final word about the attorneys: during the course of a trial, one cannot help but recognize the various personalities and styles of the attorneys. However, it is important for you as jurors to recognize that this is not a contest among attorneys. Whatever you may think about the conduct of the lawyers during this trial, you must remember that this dispute is about the parties, not the lawyers, and you must decide this case solely on the basis of the evidence. Remember, statements and characterizations of the evidence by the attorneys are not evidence. Insofar as you find their closing arguments helpful, take advantage of them, but it is your memory and your evaluation of the evidence and my instructions on the law that counts in this case.

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E.

DUTIES OF THE JURY
As members of the jury, you are the sole and exclusive judges of the facts. You pass

upon the evidence. You determine the credibility of witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide should be drawn from the facts you determine, and you weigh the evidence. No one may invade your province or function as jurors. Because you are the sole and exclusive judges of the facts, I do not mean to indicate, in this charge or at any time during the trial, any opinion as to the facts or as to what your verdict should be. The rulings I have made during the trial are not any indication of a view of what your decision should be or which party should prevail in this case, because I have no view on those matters. In order for you to determine the facts, you must rely upon your own recollection of the evidence. In reaching a verdict, you must carefully and impartially consider all of the evidence in the case and then apply the law as I have explained it to you. Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any understanding or interpretation of the law other than the one I give you. The verdict you reach must be unanimous; that is, agreed upon by each of you. You must each decide the case for yourself, but do so only after impartial consideration of the evidence in the case with your fellow jurors.

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F.

"PROVE," "FIND" AND "ESTABLISH"
Throughout the remainder of my instructions to you, I will use the word "prove"

when talking about what Mrs. Morgan must do in order to establish the MDC's liability or what the MDC must do to establish certain of its defenses. My use of the word "prove" means "prove by the appropriate burden of proof," even if I do not always repeat those words. Similarly, when I speak of your "finding" various facts, you must find those facts to have been proven by the appropriate burden of proof, even if I simply use the word "find." Likewise, I will speak of the parties "establishing" various facts. Even if I simply use the word "establish," you must find that fact has been established by the appropriate burden of proof.

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G.

BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE
Because this is a civil case, the Plaintiff, Kendra Morgan has the burden of proving

every disputed part of her claims by a preponderance of the evidence. The Defendant, the Metropolitan District Commission - also referred to as the MDC - has the burden of proving each element of the defenses that I will mention later. Preponderance of the evidence means evidence which, considered in light of all the facts, leads you to believe that the plaintiffs claims are more likely true than not. For Mrs. Morgan to prevail in a civil case such as this one, she must prove all the essential elements of her claims by the greater weight of the evidence. This does not mean that the party who calls the most witnesses or offers the most exhibits should prevail. Rather, it means that the party who offers the evidence that you find most persuasive prevails. As I mentioned in my preliminary instructions, it might be helpful to visualize a pair of balanced scales. Imagine that you put on one scale the evidence you find credible, relevant and supportive of the plaintiff on a particular issue, and place on the other scale the evidence you find credible, relevant and supportive of the defendant. If the scales tip in favor of the defendant on that issue, even a little bit, or if the scales are evenly balanced, the plaintiff has not sustained her burden of proof on the issue. But if the scales tip in favor of the plaintiff on that issue, even a little bit, then on that issue she will have sustained her burden of proof. In determining whether a claim has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who may have called them, and all the exhibits received in evidence, regardless of who may have presented them. 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 number of witnesses or exhibits. 53

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Some of you may have heard of proof beyond a reasonable doubt, which is the proper standard of proof in a criminal trial. That requirement does not apply to a civil case such as this, and you should not consider or discuss that standard in your deliberations.

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H.

FORMS OF EVIDENCE Next I want to discuss with you generally what we mean by evidence and how you

should consider it. The evidence from which you are to decide what the facts are comes in one of three forms: First, there is the sworn testimony of witnesses, including