Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

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Plaintiff's Instruction No. 1 The Court will now explain the claims and defenses of each party to the case and the law governing the case. These instructions include both general instructions and instructions specific to the claims and defenses in this case. You must consider all the general and specific instructions together. You must all agree on your verdict, applying the law, as you are now instructed, to the facts as you find them to be. The parties to this case are Marian J. Barcikowski, the plaintiff, and the Sun Microsystems, Inc., the defendant. The plaintiff claims that the defendant interfered with, restrained or denied the plaintiff's exercise of or his attempt to exercise any right provided under the Family and Medical Leave Act by requiring him to work while he was on FMLA leave; by not giving him an annual pay increase while he was on FMLA leave; by not restoring him to the position of employment he held when his FMLA leave commenced or to an equivalent position with equivalent compensation, benefits, pay, and other terms and conditions of employment; and by terminating his employment after he had returned or attempted to return to work from his FMLA leave. The defendant denies that it interfered with, restrained, or denied the plaintiff's exercise of or his attempt to exercise any right provided under the FMLA leave. It claims that the plaintiff was reinstated upon his return from FMLA leave and that he received the same pay and benefits as he had received before his leave commenced. The defendant further claims that the plaintiff was treated as he would have been treated had he not taken FMLA leave. These are the issues you are to decide.

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Authority: CJI-Civ. 2:1 (CLE ed. 2005)

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Plaintiff's Instruction No. 2 The parties stipulate as follows: 1. 2. of Colorado. 3. 4. The defendant at one time employed the plaintiff. The defendant is an "employer" within the meaning of 29 U.S.C. §2611(4). Venue is proper in this Court. The defendant does business in the City and County of Broomfield, State

At all times pertinent hereto, the defendant engaged in commerce or in any industry or activity affecting commerce, and employed fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or proceeding calendar year. 5. During 2001, the Plaintiff was the Controller-Americas for Sun Education

Services Finance, a line of business of the defendant. 6. The plaintiff commenced leave pursuant to the FMLA on or about

September 25, 2001. 7. 1998. The plaintiff began working for the defendant on or about January 28,

The plaintiff was notified on January 29, 2002, that he was going to be

terminated from his position of employment with the defendant, effective February 12, 2002. 8. 12, 2002. The defendant terminated the plaintiff's employment, effective February

Authority: CJI Civ. 1:11 (CLE ed. 2005)(modified)

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Plaintiff's Instruction No. 3 A corporation may act only through natural persons as its agents or employees. In general, agents or employees of a corporation may bind that corporation by their acts and declarations made while acting within the scope of their authority delegated to them by the corporation, or within the scope of their duties as employees of the corporation. Authority: ed. 2000) 3 O'Malley, Grenig & Lee, Fed. Jury Practice and Instructions § 108.01 (5th

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Plaintiff's Instruction No. 4 You have heard testimony about an electronic spreadsheet that is no longer available. The plaintiff contends that this evidence was in the control of the defendant and that it would have proven facts material to the matter in controversy. If you find that the defendant could have produced this electronic spreadsheet, that the spreadsheet was within its control and that this spreadsheet would have been material in deciding facts in dispute in this case, then you are permitted, but not required, to infer that this evidence would have been favorable to the plaintiff. In deciding whether to draw this inference, you should consider whether the evidence not produced would merely have duplicated other evidence already before you. You may also consider whether the defendant had a reason for not producing this evidence, which was explained to your satisfaction. Authority: Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418-19 (10th Cir. 1987); 29 C.F.R. §§1602.14, 1602.31; Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003). .

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Plaintiff's Instruction No. 5 The Family and Medical Leave Act provides eligible employees the right to take a total of twelve weeks of unpaid leave per year (1) to care for a newborn son or daughter, (2) to care for a child placed with the employee through adoption or foster care, (3) to care for an immediate family member with a "serious health condition," or (4) to care for the employee's own "serious health condition" that renders the employee unable to perform his or her work functions. After the period of qualified leave expires, the employee

generally is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed before the employee took the leave. To insure the availability of these guarantees, the FMLA declares that it is unlawful for any employer to interfere with, restrain, or deny the exercise of the attempt to exercise, any right provided by the FMLA.

Authority: 3 O'Malley, Grenig & Lee, Fed. Jury Practice and Instructions § 179.10 (2005 pocket part).

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Plaintiff's Instruction No. 6 Employer actions that deter employees' exercise of their rights under the FMLA constitute "interference" or "restraint" with the employee's exercise of those rights. Attaching negative consequences to an employee's exercise of his or her protected rights under the FMLA leave tends to chill an employee's willingness to exercise those rights.

Authority: Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); Conoshenti v. Public Serv. Elec. & Gas, Co, 364 F.3d 135, 147 (3d Cir. 2004).

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Plaintiff's Instruction No. 7 If an employer interferes with the FMLA-created right to medical leave or to reinstatement following that leave, that interference is a violation of that statute, regardless of the employer's intent.

Authority: 2000).

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir.

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Plaintiff's Instruction No. 8 In order to establish that the defendant interfered with, restrained, or denied the exercise or the attempt to exercise any of the plaintiff's rights under the FMLA, the plaintiff must prove by a preponderance of the evidence: (1) (2) That he was entitled to FMLA leave; That some adverse action by the employer interfered with his right to FMLA

leave or to his right to restoration of employment; and (3) That the employer's action was related to his exercise or attempted exercise

of his FMLA rights.

Authority:

Jones v. Denver Public Schools, 427 F.3d 1315, 1319 (10th Cir. 2005).

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Plaintiff's Instruction No. 9 In deciding whether any action by the defendant was related to the exercise or attempted exercise of the plaintiff's FMLA rights, you should consider all of the evidence in this case. The evidence that you can consider includes whether the defendant disciplined or warned the plaintiff about possible discipline before he began his FMLA leave, the reason or reasons given by the defendant for its action, evidence supporting or rebutting the reasons given by the employer for its action, and the timing of that action. A period of one and one-half months or less between an employee's exercise or attempted exercise of his FMLA rights and an employer's adverse action may, by itself, establish that the employer's action was related to the exercise or attempted exercise of the employee's FMLA rights.

Authority: 2000).

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 962 (10th Cir.

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Plaintiff's Instruction No. 10 If you find in favor of the plaintiff, then you must determine whether the defendant has proved by a preponderance of the evidence that it would have decided to take the same action without regard to the plaintiff's request for, or taking of, FMLA leave or restoration to his former position or to an equivalent position.

Authority: 3 O'Malley, Grenig & Lee, Fed. Jury Practice and Instructions § 179.50 (2005 pocket part) (modified); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955: 962-63 (10th Cir. 2000).

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Plaintiff's Instruction No. 11 If you find in favor of the plaintiff, then you must determine whether the defendant acted in good faith. You must find the defendant acted in good faith if you find by a preponderance of the evidence that when the defendant informed the plaintiff not to report to work or when it terminated his employment, the defendant reasonably believed that its actions complied with the Family and Medical Leave Act. Authority: 3 O'Malley, Grenig & Lee, Fed. Jury Practice and Instructions § 179.53 (2005 pocket part) (modified).

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Plaintiff's Instruction No. 12 If you find in favor of the plaintiff, then you must award the plaintiff the amount of any wages, salary and employment benefits the plaintiff would have earned in the plaintiff's employment with the defendant if the plaintiff had not been discharged on February 12, 2002, minus the amount of earnings and benefits from other employment received or that will be received by the plaintiff. Authority: 3 O'Malley, Grenig & Lee, Fed. Jury Practice and Instructions § 179.60 (2005 pocket part) (modified).