Harrell v. Independence County, Arkansas et al

Filing 82

ORDER: The Court appreciates the parties' suggestions about jury instructions. The Court is attaching its current working drafts of (1) the preliminary instructions, (2) the final instructions, and (3) the verdict forms. We'll take these up first thing Monday morning. Signed by Judge D. P. Marshall Jr. on 4/3/2015. (Attachments: # 1 Preliminary Instructions, # 2 Final Jury Instructions, # 3 Verdict Forms)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the beginning of the
trial and during the trial remain in effect. I now give you some additional
instructions on the law that applies to this case. You must, of course, continue
to follow all the instructions I gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and will be
available to you in writing in the jury room. I emphasize, however, that this
does not mean they are more important than my earlier instructions. Again,
all my instructions, whether given in writing or spoken from this bench, must
be followed.
It is your duty as jurors to follow the law as stated in the instructions,
and to apply the given rules of law to the facts as you find them to be from the
evidence in this case.
You are not to single out one instruction alone as stating the law, but
must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as
stated by the Court. Regardless of any opinion you may have as to what the
law ought to be, it would be a violation of your sworn duty to base a verdict
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upon any other view of the law other than that given in the instructions of the
Court; just as it would be a violation of your sworn duty, as judges of the
facts, to base a verdict upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication that I
have any opinion about the facts of the case, or what that opinion is. It is not
my function to determine the facts. You will determine the facts. During this
trial I have occasionally asked questions of witnesses. Do not assume that
because I asked questions I hold any opinion on the matters to which my
questions related.
Justice through trial by jury must always depend on the willingness of
each individual juror to seek the truth about the facts from the same evidence
presented to all the jurors; and to arrive at a verdict by applying the same
rules of law as given in the Court’s instructions.
Statements and arguments of counsel are not evidence in the case.
When the lawyers on both sides stipulate or agree on the existence of a fact,
however, the Jury must accept the stipulation and regard that fact as proved.
The evidence in the case always consists of the sworn testimony of the
witnesses, regardless of who may have called them and any documents,
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photographs, or other items that are received by the Court, and all facts that
may have been admitted or stipulated. Any evidence on which an objection
was sustained by the Court—and any witness statement or tangible item that
was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not
evidence, and it must be entirely disregarded.

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INSTRUCTION NO. 2
In conducting your deliberations and returning your verdict, there are
certain rules you must follow.
First, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your discussions
and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in
the jury room. You should try to reach agreement if you can do so without
violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after
you have considered all the evidence, discussed it fully with your fellow
jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades
you that you should. But do not come to a decision simply because other
jurors think it is right, or simply to reach a verdict. Remember at all times that
you are not partisans. You are judges—judges of the facts. Your sole interest
is to seek the truth from the evidence in the case.

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Third, if you need to communicate with me during your deliberations,
you may send a note to me, through the court security officer, that is signed
by one or more jurors. I will respond as soon as possible either in writing or
orally in open court.

Remember that you should never tell anyone

—including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the
law that I have given to you in my instructions. The verdict must be
unanimous. Again, nothing I have said or done is intended to suggest what
your verdict should be—that is entirely for you to decide.

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INSTRUCTION NO. 3
This case should be considered and decided by you as a dispute
between persons of equal worth. All persons stand equal before the law and
are to be treated as equals.

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INSTRUCTION NO. 4
You are the sole judges of the credibility of the witnesses and the weight
and value to be given to their testimony. In deciding what the facts are, you
may have to decide what testimony you believe and what testimony you do
not believe. You may believe all of what a witness said, or only part of it, or
none of it.
In deciding what testimony to believe, you may consider the witness’s
intelligence; the opportunity the witness had to see or hear the things about
which he or she testified; the witness’s memory; any motives a witness may
have for testifying a certain way; the manner and demeanor of the witness
while testifying; whether the witness said something different at an earlier
time; the general reasonableness or unreasonableness of the testimony; and
the extent to which the testimony is consistent with any other evidence that
you believe.
In deciding whether or not to believe a witness, keep in mind that
people sometimes hear or see things differently and sometimes forget things.
You need to consider therefore whether a contradiction is an innocent

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misrecollection, lapse of memory, or an intentional falsehood—and that may
depend on whether it has to do with an important fact or only a small detail.

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INSTRUCTION NO. 5
A witness may be discredited or impeached by contradictory evidence
or by evidence that at some other time the witness has said or done
something, or has failed to say or do something that is inconsistent with the
witness’s present testimony.
If you believe any witness has been impeached and thus discredited,
you may give the testimony of that witness whatever credibility, if any, you
think it deserves.
If a witness is shown knowingly to have testified falsely about any
material matter, you have a right to distrust that witness’s other testimony
and you may reject all the testimony of that witness or give it whatever
credibility you think it deserves.
An act or omission is “knowingly” done, if the act is done voluntarily
or intentionally, and not because of mistake or accident or other innocent
reason.

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INSTRUCTION NO. 6
In considering the evidence in this case you are not required to set aside
your common sense or common knowledge. You have the right to consider
all the evidence in light of your own observations and experiences in the
affairs of life.

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INSTRUCTION NO. 7
In these instructions you are told that one or the other party has the
burden to prove certain facts. The burden of proving a fact is placed upon the
party whose claim or defense depends upon that fact. The party who has the
burden of proving a fact must prove it by a preponderance of the evidence.
To prove something by the “preponderance of the evidence” is to prove that
it is more likely true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you
cannot find that fact has been proved. The preponderance of the evidence is
not necessarily established by the greater number of witnesses or exhibits a
party has presented.
You may have heard of the term “proof beyond a reasonable doubt.”
This is a stricter standard, which applies in criminal cases. It does not apply
in civil cases like this one. You should, therefore, put it out of your minds.

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INSTRUCTION NO. 8
You must consider Harrell’s gender discrimination claim against each
defendant separately. Independence County, Fulmer, individually, and Potts,
individually, are each entitled to have the case decided solely on the claim
against them, and based solely on the evidence that applies to each of them.

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INSTRUCTION NO. 8A
If there’s no contract for a fixed term, subject to some exceptions, either
the employer or the employee may end an employment relationship at any
time.

This is called the employment-at-will doctrine.

There was no

employment contract between Harrell and Independence County. Therefore,
Harrell could be fired for good cause, no cause, or even a morally wrong
cause. You can’t return a verdict for Harrell just because you disagree with
the decision to fire her or conclude that the decision was unreasonable. But
the law forbids treating an at-will employee such as Harrell differently
because of her gender. The law does not allow Independence County, Fulmer,
or Potts to discriminate against Harrell because she is a woman. Employers
may take subjective considerations into account in making their employment
decisions. But these consideration may hide discrimination, and so you should
scrutinize them.

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INSTRUCTION NO. 9
Your verdict must be for Genie Harrell and against Independence
County on her claim of gender discrimination under Title VII if Harrell has
proved the following elements:
First, Independence County fired Harrell; and
Second, Harrell’s gender was a motivating factor or played a part in
the decision to fire her.
If Harrell has not proved both elements against Independence County then
your verdict must be for the County.
Harrell’s gender was a “motivating factor,” if her gender played a
part or a role in the firing decision. But Harrell’s gender need not have
been the only reason for the decision to fire her.
You may find that Harrell’s gender was a motivating factor if she has
proved that the stated reason for the firing decision was not the real reason,
but was a pretext to hide gender discrimination.

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INSTRUCTION NO. 10
If you find in favor of Harrell under Instruction No. 9, then you must
answer the following question in the verdict forms: Has Independence County
proven that it would have fired Harrell regardless of her gender? In other
words, would the County have made the same decision if Harrell was a man?

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INSTRUCTION NO. 11
Your verdict must be for Genie Harrell and against Odus Fulmer,
individually, on her claim of gender discrimination under the Equal
Protection Clause if Harrell has proved all the following elements:
First, Fulmer fired Harrell;
Second, Harrell’s gender was the determining factor in the decision to
fire her; and
Third, Fulmer was acting under color of State law.
If Harrell has not proved all three elements against Fulmer then your verdict
must be for him.
Harrell’s gender was the determining factor only if Fulmer would not
have fired Harrell but for her gender. Harrell’s gender, however, need not
have been the only reason for the decision to fire her.
You may find that Harrell’s gender was the determining factor if she has
proved that the stated reason for the firing decision was not the real reason,
but was a pretext to hide gender discrimination.

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INSTRUCTION NO. 12
Your verdict must be for Genie Harrell and against Greg Potts,
individually, on her claim of gender discrimination under the Equal
Protection Clause if Harrell has proved all the following elements:
First, Potts fired Harrell;
Second, Harrell’s gender was the determining factor in the decision to
fire her; and
Third, Potts was acting under color of State law.
If Harrell has not proved all three elements against Potts then your verdict
must be for him.
Harrell’s gender was the determining factor only if Potts would not
have fired Harrell but for her gender. Harrell’s gender, however, need not
have been the only reason for the decision to fire her.
You may find that Harrell’s gender was the determining factor if she has
proved that the stated reason for the firing decision was not the real reason,
but was a pretext to hide gender discrimination.

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INSTRUCTION NO. 13
Acts are done under color of law when a person acts or purports to act
in the performance of official duties under any state, county, or municipal
law, ordinance or regulation.

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INSTRUCTION NO. 14
You may infer gender discrimination against one employee by
comparing the discipline of another employee of the opposite gender under
similar circumstances. Harrell offers Kenny Mize as a comparator. To draw
a reasonable inference of gender discrimination, however, you must find by
a preponderance of the evidence that Harrell and Mize were similarly situated
in all relevant respects. This includes:
1. Dealing with the same supervisor;
2. Being subject to the same work standards;
3. Engaging in misconduct of comparable seriousness without any
mitigating or extenuating circumstances; and
4. Being punished differently for similar misconduct.

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INSTRUCTION NO. 15
Harrell has separate claims against Independence County, Fulmer, and
Potts. Consider each claim, and related damages, separately. Harrell may not
recover two or three times for the same damages.

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INSTRUCTION NO. 16
If you find in favor of Harrell under Instruction No. 9 (the Title VII
elements instruction for Independence County), and if you answered “no”
under Instruction No. 10 (the same decision instruction), then you must award
Harrell a sum against Independence County that will fairly and justly
compensate Harrell for any damages you find she sustained as a direct result
of the decision to discharge the her. Harrell’s claim for damages includes two
distinct types of damages. Consider them separately.
First, you must determine the amount of any wages and fringe benefits
Harrell would have earned in her employment with Independence County if
she had not been discharged on 8 July 2011through the date of your verdict,
minus the amount of earnings and benefits that Harrell received from other
employment during that time.
Harrell has a duty under the law to “mitigate” her damages—that is, to
exercise reasonable diligence under the circumstances to minimize her
damages. Therefore, if it has been proved that Harrell failed to seek out or
take advantage of an opportunity that was reasonably available to her, you
must reduce her damages by the amount of the wages and fringe benefits
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Harrell reasonably could have earned if she had sought out or taken
advantage of such an opportunity.
Second, you must determine the amount of any other damages
sustained by Harrell, such as emotional distress and damage to her
reputation. You must enter separate amounts for each type of damages in the
verdict form and must not include the same items in more than one category.
Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award damages under this
Instruction by way of punishment or through sympathy.

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INSTRUCTION NO. 17
If you find in favor of Harrell under Instruction No. 11 (the Equal
Protection elements instruction for Odus Fulmer), then you must award
Harrell a sum against Fulmer, individually, that will fairly and justly
compensate Harrell for any damages you find she sustained as a direct result
of the decision to discharge the her. Harrell’s claim for damages includes two
distinct types of damages. Consider them separately.
First, you must determine the amount of any wages and fringe benefits
Harrell would have earned in her employment with Independence County if
she had not been discharged on 8 July 2011through the date of your verdict,
minus the amount of earnings and benefits that Harrell received from other
employment during that time.
Harrell has a duty under the law to “mitigate” her damages—that is, to
exercise reasonable diligence under the circumstances to minimize her
damages. Therefore, if it has been proved that Harrell failed to seek out or
take advantage of an opportunity that was reasonably available to her, you
must reduce her damages by the amount of the wages and fringe benefits

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Harrell reasonably could have earned if she had sought out or taken
advantage of such an opportunity.
Second, you must determine the amount of any other damages
sustained by Harrell, such as emotional distress and damage to her
reputation. You must enter separate amounts for each type of damages in the
verdict form and must not include the same items in more than one category.
Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award damages under this
Instruction by way of punishment or through sympathy.

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INSTRUCTION NO. 18
If you find in favor of Harrell under Instruction No. 12 (the Equal
Protection elements instructions for Greg Potts), then you must award Harrell
a sum against Potts, individually, that will fairly and justly compensate
Harrell for any damages you find she sustained as a direct result of the
decision to discharge the her.

Harrell’s claim for damages includes two

distinct types of damages. Consider them separately.
First, you must determine the amount of any wages and fringe benefits
Harrell would have earned in her employment with Independence County if
she had not been discharged on 8 July 2011through the date of your verdict,
minus the amount of earnings and benefits that Harrell received from other
employment during that time.
Harrell has a duty under the law to “mitigate” her damages—that is, to
exercise reasonable diligence under the circumstances to minimize her
damages. Therefore, if it has been proved that Harrell failed to seek out or
take advantage of an opportunity that was reasonably available to her, you
must reduce her damages by the amount of the wages and fringe benefits

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Harrell reasonably could have earned if she had sought out or taken
advantage of such an opportunity.
Second, you must determine the amount of any other damages
sustained by Harrell, such as emotional distress and damage to her
reputation. You must enter separate amounts for each type of damages in the
verdict form and must not include the same items in more than one category.
Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award damages under this
Instruction by way of punishment or through sympathy.

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INSTRUCTION NO. 19
If you find in favor of Harrell, but you find that her damages have no
monetary value, then you must return a verdict for Harrell in the nominal
amount of$1.00.

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INSTRUCTION NO. 20
In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.
If you find in favor of Harrell and assess damages under Instruction No. 16,
No. 17, No. 18, or No. 19, then you must decide whether any of the three
defendants—Independence

County,

Fulmer, individually, or Potts,

individually— acted with malice or reckless indifference to Harrell’s right not
to be discriminated against on the basis of her gender. A defendant acted
with malice or reckless indifference if:
It has been proved that the defendant knew that the termination was in
violation of the law prohibiting gender discrimination, or acted with reckless
disregard of that law.
If you find that a defendant acted with malice or reckless indifference
to Harrell’s rights, then, in addition to any other damages to which you find
Harrell entitled, you may, but are not required to, award Harrell an additional
amount as punitive damages for the purposes of punishing the defendant for
engaging in misconduct and deterring the defendants and others from
engaging in the same misconduct in the future. You should presume that
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Harrell has been made whole for her injuries by the damages awarded under
Instruction No. 16, No. 17, No. 18, and No. 19
If you decide to award punitive damages, you should consider the
following in deciding the amount:
1. How reprehensible the defendant’s conduct was. In this regard, you
may consider whether the harm suffered by Harrell was physical or economic
or both; whether there was violence, deceit, intentional malice, reckless
disregard for human health or safety; whether the defendant’s conduct that
harmed Harrell also posed a risk of harm to others; whether there was any
repetition of the wrongful conduct and past conduct of the sort that harmed
Harrell.
2. How much harm the wrongful conduct caused Harrell and could
cause Harrell in the future.
3. What amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant’s financial condition,
to punish the defendant for its wrongful conduct toward the plaintiff and to
deter the defendant and others from similar wrongful conduct in the future.

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The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to Harrell.
You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against each
defendant may be the same or they may be different.

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INSTRUCTION NO. 21
The verdict forms are simply the written notice of your decision. See the
attached questions.
You will take the verdict forms to the jury room, and when each of you
has agreed on the answers, your foreperson will fill in the forms for each
question that you are called upon to answer to reflect your unanimous
decision, sign and date them, and then advise the court security officer that
you are ready to return to the Courtroom.
I add the caution that nothing said in the instructions—and nothing in
the verdict forms I’ve prepared for your convenience—is or was intended to
suggest or convey in any way or manner any intimation as to what answers
I think you should find. How you choose to answer the verdict form shall be
the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with
the Court, you may send a note by the court security officer, signed by your
foreperson, or by one or more members of the Jury. No member of the Jury
should ever attempt to communicate with the Court by any means other than
a signed writing; and the Court will never communicate with any member of
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the Jury on any subject touching the merits of the case, other than in writing,
or orally here in open Court.
You will note from the oath about to be taken by the court security
officer to act as bailiff that he, and all other persons, are forbidden to
communicate in any way or manner with any member of the Jury on any
subject touching the merits of the case. Bear in mind also that you must never
reveal to any person, not even to the Court, how the Jury stands, numerically
or otherwise, on the issue presented to you unless or until you reach a
unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together
in the jury room, and not to permit any person to speak to or communicate
with them, concerning this case, nor to do so yourself unless by order of the
Court or to ask whether they have agreed on a verdict, and to return them into
the Courtroom when they have so agreed, or when otherwise ordered by the
Court, so help you God?

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