Free Trial Brief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

Richard J. Harris #013859 Richard J. Harris Law Offices, P.C. 4445 East Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 (480) 854-3500 Fax (480) 654-3669 David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorneys for Plaintiff UNITED STATES DISTRICT COURT

9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Matthew Shaffer moves the Court to settle the jury instruction regarding plaintiff's duty to mitigate his damages by making reasonable efforts to find employment on the grounds that plaintiff will be prejudiced if the Court allows defendant to cross-examine plaintiff regarding his failure to seek employment at Wal-Mart and M cDonalds, as it did in Mr. Shaffer's deposition. If the Court agrees with plaintiff that the duty to mitigate limits Mr. Shaffer's duty to seek only comparable employment, then such questions regarding whether Mr. Shaffer looked for minimum wage jobs in mitigation would not be relevant and would be greatly prejudicial to plaintiff, particularly if there are jurors who work or have worked for Wal-Mart, McDonalds or similar low paying employers. Plaintiff makes this vs. State of Arizona Citizens Clean Election Commission; Colleen Conner and Chad Jacobs, husband and wife; Defendants. Matthew Shaffer, Plaintiff, No. CIV 03-2344-PHX-FJM MOTION TO SETTLE JURY INSTRUCTION ON MITIGATION AND TRIAL MEMORANDUM OF LAW RE: EVIDENCE ISSUE REGARDING MITIGATION OF DAMAGES IN EMPLOYM ENT CASE

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

motion at this time because the jury instruction issue has only just arisen with the submission by defendants of an legally insufficient and inappropriate instruction. Plaintiff provides this memorandum of law regarding the jury instruction issue and the direct examination evidence issue that arises in the mitigation of Shaffer's damages. Defendants have offered a general jury instruction on mitigation of damages, Model Instruction No. 7.3 (9th Circuit Manual of Model Civil Jury Instructions (2004)) as follows: 7.3 DAMAGES--MITIGATION The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence: 1. that the plaintiff failed to use reasonable efforts to mitigate damages; and 2. the amount by which damages would have been mitigated.

Plaintiff contends that this instruction is not appropriate for an employment case where the mitigation concerns efforts to find subsequent employment because it does not qualify the duty to mitigate by limiting the employee's job search to comparable employment. Plaintiff has offered instead Revised Arizona Jury Instructions (Civil) Fourth Edition, Employment 6 as a mitigation instruction in plaintiff's claims for damages for lost wages from his Arizona statutory wrongful termination claim and contends that this mitigation instruction should be applicable to mitigation in all of his claims where lost wages are an issue EMPLOYMENT LAW 6 Implied and Express Contract (Mitigation of Damages) [Name of Defendant] claim that [name of plaintiff] could have earned money

26 from other substantially similar employment, and therefore [name of 27 plaintiff]'s damages should be reduced. [Name of plaintiff] is required to make 28 -2-

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

reasonable efforts to reduce damages by trying to find substantially similar. To establish this, [name of defendant] must show [name of plaintiff] failed to make reasonable efforts to reduce damages by trying to find substantially similar employment. [Name of plaintiff] has no responsibility to accept employment that is not substantially similar to his or her prior employment, nor does [name of plaintiff] have a responsibility to accept employment that imposes an undue burden or hardship. The difference between the defendants' offered mitigation instruction and plaintiff's instruction is obvious. With defendants' instruction, plaintiff has a duty to seek any job. Under the Arizona employment contract mitigation instruction, plaintiff "has no responsibility to accept employment that is not substantially similar to his or her prior employment, nor does [he] have a responsibility to accept employment that imposes an undue burden or hardship." The Arizona instruction for mitigation in an employment case where lost wages is an element of damages is substantially similar to federal law of mitigation in employment cases. For example, in Title VII discrimination cases, Title VII "requires the claimant to use reasonable diligence in finding other suitable employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065 (1982). Defendant has the burden of proving that the plaintiff failed to mitigate his damages. Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir.1980), cert. denied,451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981). To satisfy this burden, defendant has to prove "that, based on undisputed facts in the record, during the time in question there were substantially equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one." EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir.1994) (emphasis in original). See also Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1449 (9th Cir.1990); Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978); Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9 th Cir. 1995) (citing the all of the aforementioned cases).

-3-

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The same principle of mitigation applies to Shaffer's claims for damages from termination in connection with defendants' violation of his constitutional right to freedom of speech. "A monetary award in form of back pay in a suit involving unlawful discharge of a public employee in violation of his rights of freedom of speech and association is determined to date of effective reemployment subject to standard rules of mitigation and outof-pocket expenses incurred in obtaining interim employment. Gerrin v. Hickey, 464 F.Supp. 276, 283 (D.C.Ark., 1979). Furthermore, if Shaffer only has a duty to seek substantially equivalent employment, any questions by defendant's counsel regarding whether Shaffer looked for a job a Wal-Mart or McDonalds or a similar non-comparable employer to the CCEC, would be made without a good faith belief that Shaffer could have found a comparable job. In In re Air Disaster at Lockerbie, 37 F.3d 804, 825 (2 nd Cir. 1994), the Second Circuit approved the trial court's exclusion of cross-examination of experts as to certain theories of the accident for which the counsel could have no good faith belief that there was evidentiary support for the theories. The Second Circuit stated that "the precluded questions could have drawn the jury into misleading conjecture." 37 F.2d at 825. In Guilbeau v. W.W. Henry Co., 85 F.3d 1149 (5 th Cir. 1996), the Fifth Circuit reversed a plaintiff's verdict in a product liability case where the plaintiff's counsel consistently asked questions on cross-examination to a witness, Balling, the defendant's technical director, that referred to the product as containing "pentachlorophenol" even though the evidence showed that the product contained "sodium pentachlorophenate, not penachlorophenol." The plaintiff "failed to present any competent evidence that pentachlorophenol is a form of sodium pentachlorophenate." Id. 85 F.3d at 1162. The Court stated: Whether counsel acted out of ignorance or in an effort to mislead the jury and trick Balling (it certainly appears to be the latter) is unknown; but it makes no difference because irrespective of their motive, the questions, which assumed a fact that was not in evidence, are not evidence.

-4-

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Id. 85 F.3d at 1166. The Court found this material to the reversal of the verdict, even though the defendant made no attempt to rectify the impact of the improper questioning at trial, unlike Shaffer who is now attempting to obtain prevent this in advance. In United States v. Sanchez, 176 F.3d 1214 (9 th Cir. 1999), the Ninth Circuit held that a question asked that assumed facts not in evidence, and which were not put in evidence was not harmless, even after the trial court sustained objections and the jury was instructed that statements by attorneys were not evidence. The Ninth Circuit stated: During cross-examination, the prosecutor asked the defendant the following question: "Can you explain to me Mr. Sanchez, why you have a reputation [for] being one of the largest drug dealers on the reservation but you don't have more than one source of supply?" The court sustained Sanchez's objection to the question. The Government admits that "this question perhaps went further than it should." It notes, however, that Sanchez was not required to answer the question and that the court in its closing instructions properly instructed the jury that "statements of counsel are not to be regarded as evidence." The Government also points out that this was the only attempt to ask Sanchez about his drug-dealing reputation. The Government's responsive argument is unpersuasive. The question assumed facts not in evidence. No attempt w as made by the prosecutor to show that he acted in good faith because he had w itnesses available to prove the facts insinuated in the question. The question was not harmless to Sanchez's right to a fair trial because it suggested to the jury that the defendant had "a reputation for being one of the largest drug dealers on the reservation." (emphasis added) Id. 176 F.3d at 1223. Likewise, if defendants' counsel's cross-examination questions regarding whether Shaffer looked for non-professional work dissimilar to his career work would not be harmless to his right to a fair trial because the questions would suggest to the jury that Shaffer had a duty to accept any job or should have accepted any job, contrary to the law. The U.S. Supreme Court has held that a prosecutor who "mistakes facts in his crossexamination of witnesses" and assumes "prejudicial facts not in evidence," "overstepped the bounds of that propriety and fairness that should characterize the conduct of such an officer

-5-

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

in the prosecution of a criminal offense." Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629 (1935). The Court should resolve the jury instruction question regarding Shaffer's duty to mitigate and order defendants' counsel not to question him regarding whether he looked for work that was not comparable to his position with the CCEC. Simply instructing the jury that statements of attorneys are not evidence will not suffice. Sanchez, supra. Respectfully submitted this 9 day of September, 2005. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin Attorney for Plaintiff AND Richard J. Harris RICHARD J. HARRIS LAW OFFICES, P.C. Attorney for Plaintiff Electronic notice and service of documents provided to: Jay A. Zweig, Esq. Melissa R. Berren, Esq. Gallagher & Kennedy, P.A. 2575 East Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants /s David C. Larkin

20 21 22 23 24 25 26 27 28 -6-

Case 2:03-cv-02344-FJM

Document 92

Filed 09/09/2005

Page 6 of 6