Downing v. Department of Finance and Administration et al

Filing 103

ORDER: The Court will hold another pretrial at 10:00 a.m. Monday, 4/2/2018 to discuss the final exhibits and law issues, as needed. Voir dire will begin at 1:00 p.m. 91 Motion is denied with caveats. 99 Motion is granted in part and denied in par t. The Court is attaching its working drafts of the voir dire, the preliminary instructions, the final instructions, the questions/verdict, and the Rehab Act damages instruction and question. If the parties would prefer to have the Court ask certain questions to the jurors, please submit them to chambers for consideration by close of business on 3/30/2018. Signed by Judge D. P. Marshall Jr. on 3/29/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
WILLIAM R. DOWNING, JR.

v.

PLAINTIFF

No. 4:15-cv-570-DPM

DEPARTMENT OF FINANCE AND
ADMINISTRATION, an Agency of the
State of Arkansas; BOB HAUGEN and
DAVID JUSTICE, Both in their
Individual and Official Capacities

DEFENDANTS

ORDER
1.

Schedule. We'll start trial as planned on Monday, 2 April

2018 in Courtroom 1A of the Richard Sheppard Arnold United States
Courthouse. The Court will hold another pretrial at 10:00 Monday
morning to discuss the final exhibits and law issues, as needed. The
voir dire will begin at 1:00 p.m. We'll pick our jury, do the preliminary
instructions, and open Monday afternoon.

The proof will start at

8:30 a.m. Tuesday and each morning thereafter. Counsel should arrive

by 8:15 each morning.
2.

Pending motions. For the reasons stated on the record at

yesterday's pretrial hearing, the motion to reconsider, NQ 91, is denied
with caveats. And the motion to quash Haugen's subpoena, NQ 99, is
granted in part and denied in part.

3.

Jury instructions. The Court is attaching its working drafts

of (1) the voir dire, (2) the preliminary instructions, (3) the final
instructions, (4) the questions/verdict, and (5) the Rehab Act damages
instruction and question. After further thought, the Court agrees with
the parties that the second part of draft Question 1- about the businessjudgment rule - shouldn't go to the jury. Instead, this issue will be tried
to the Court. Liability and damages will be bifurcated, as discussed
yesterday.
4.

Damages. The Court is inclined to agree with Downing that

emotional distress damages are available, but the Court is continuing
its research and thinking on this point. These drafts include that line
item. If the law is unclear, submission seems the route most likely to
avoid a retrial after any appeal. The Court will hear further argument
if we get there.
5.

Witnesses and Exhibits. The Court appreciates the parties'

electronic and paper copies of the potential witnesses and exhibits.
Please continue collaborating on the audit documents. And please alert
the Court as soon as possible with updated electronic copies of
Downing' s exhibits if there is an agreement on more redactions.
During trial, by the close of business each day counsel should let each
other know who they'll be calling the following day.
6.

Voir Dire. The Court will conduct most of the voir dire,

with follow-up by each side-ten to fifteen minutes at most. Please
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focus your questioning. Voir dire is not a time to explain the law or the
burden of proof, to explain what the case is about, to seek
commitments, or to pump the potential jurors full of fairness. Instead,
please ask lean questions about potential jurors' experiences and views
to ferret out bias. If the parties would prefer to have the Court ask
certain questions, please submit them to chambers for consideration by
close of business on Friday, 30 March 2018.
7.

Openings and Closings. Twenty minutes a side for opening

Monday afternoon. Five-minute mini-openings a side every morning
thereafter. Thirty minutes a side for closing. Downing may reserve
some rebuttal.
8.

Objections. Please avoid speaking objections in front of the

jury. A word or two will do. If the Court needs to hear more, we'll
have a bench conference.
So Ordered.
D.P. Marshall Jr.
United States District Judge
i. ~ MAAc4.. ~o t ~

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(1) VOIR DIRE

-1Court's Draft V oir Dire
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A.

Preliminaries
• Thank you for serving. Echo "Called to Serve."
• A morning of speaking the truth, voir dire

= twelve

people good and true.
• Two to three days - school day.
• Urgent or extraordinary obligations this week?
• Rules of the Road:
- Can I be completely fair and impartial?
- Can I decide the case based solely on the
evidence seen and heard in this courtroom, the
law as explained by the Court, and my common
sense?
- Questions and Answers. You

=

you and your

immediate family.
- Raise your hand, state your name, and answer.
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- Can answer at the bench if uncomfortable
answering a particular question in front of
others.
- Eighteen, but all- Notepads.
- Questionnaires. Summary.

Confirm lawyers

have.
- Case Sketch-Not evidence, just background
1.

This is a civil case. The Plaintiff, William
Downing, is suing his former employer, the
Department

of

Finance

and

Administration, and two of his managers
there, Bob Haugen and David Justice. After
a few years working at the Department,
Downing needed hip-replacement surgery.
He went on twelve weeks of FMLA leave.

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When he returned, he had some permanent
hip-related restrictions from his doctor.
Downing says the Department and his
managers

changed

his job,

failed

to

accommodate his physical limitations, and
ultimately fired him because of his leave
and his limitations.

The Department,

Haugen, and Justice say they didn't change
the job, tried to accommodate Downing's
limitations, and fired him only because he
couldn't do key parts of the job. The jury
will decide what the facts truly are.

• Introductions
- Plaintiff William R. Downing Jr.
Lawyers

=

Luther Sutter and Luc Gillham

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- Defendants

Department

of

Finance

and

Administration, Bob Haugen, and David Justice
Lawyers= Jennifer Merritt and Christine Cryer
- Haugen excused because of illness.
- Witnesses [Read Lists]
- Know the parties? Lawyers? Witnesses?
B.

Call Eighteen, But All- Notepads

C.

General Background Questions
• Know other panel members? Know lawyers or Court
staff? Know witnesses?
• Legal training or experience?

Deal with the law

regularly through work?

• Prior jury service?
• Prior court experience? Sued or been sued? Witness?
• Religious convictions against sitting in judgment?
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• Negative feelings about civil justice system?
- Too many lawsuits?

- If sue, then win?
D.

Case-Specific Questions
Remember, answer about you and your immediate
family; approach to answer sensitive questions
• Employed

1n

personnel

or

human

resources?

Involved at work in approving or disapproving leave
by other employees?
• Anyone ever employed by a state agency? A statefunded program?
• Anyone

work

regularly

with

folks

from

the

Department of Finance and Administration?
• Anyone ever taken FMLA leave from work?
• Anyone ever had a physical disability?

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• Anyone ever sought a workplace accommodation for
a physical disability?
• Any prior experience with the Department of Finance
and Administration?
• Any strong opinions about the Department of Finance
and Administration and the work it does?
• Anyone ever bought surplus property from the
Department of Finance and Administration?
E.

Juror Question Time

F.

The Unasked Question?

G.

Lawyers' Follow-Up Questions? Fed. R. Civ. P. 47(a).

H.

Strikes for Cause. Fed. R. Civ. P. 47(c):

*Rule 47. Selecting Jurors

(a) EXAMINING JURORS. The court may permit the parties
or their attorneys to examine prospective jurors or may itself
do so. If the court examines the jurors, it must permit the
parties or their attorneys to make any further inquiry it
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I.

Peremptory Challenges. Fed. R. Civ. P. 47(b).**

considers proper, or must itself ask any of their additional
questions it considers proper.
(b) PEREMPTORY CHALLENGES. The court must allow the
number of peremptory challenges provided by 28 U.S.C.
§ 1870.
(c) EXCUSING A JUROR. During trial or deliberation, the
court may excuse a juror for good cause.

Allen v. Brown Clinic, 531 F.3d 568, 572 (8th Cir. 2008).
"To challenge a juror for cause, a party must show actual
partiality growing out of the nature and circumstances of the case.
A district court is required to strike for cause any juror who is
shown to lack impartiality or the appearance of impartiality, and,
absent abuse of discretion, we will not interfere with the district
court's determination of juror qualifications. The district court is
given broad discretion in determining whether to strike jurors for
cause because it is in the best position to assess the demeanor and
credibility of the prospective jurors."
**

28u.s.c.§1870
"In civil cases, each party shall be entitled to three
peremptory challenges. Several defendants or several
plaintiffs may be considered as a single party for the purposes
of making challenges, or the court may allow additional
peremptory challenges and permit them to be exercised
separately or jointly.
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• Three each side.
• Challenging Strikes. Race or Gender? Batson.***

J.

Seat and Swear Jury.
"You and each of you do solemnly swear or affirm to
well and truly try the matter now on trial and render a
true verdict according to the law and the evidence, so
help you God."

All challenges for cause or favor, whether to the array or
panel or to individual jurors, shall be determined by the
Court."
***

Three-part test.

"In order to succeed on a Batson challenge, a party must
satisfy a three-part test. First, an objecting party must make a
prima facie showing that a peremptory challenge was made on
the basis of race. Second, if a prima facie showing has been
made, the party striking the juror must offer a race-neutral
basis for striking the juror in question. Third, the trial court
must determine whether the objecting party has proven the
ultimate question of purposeful discrimination. . . . We ...
strongly urge the district courts to make on-the-record rulings
articulating the reasoning underlying a determination on a
Batson objection." Cook v. City of Bella Villa, 582 F.3d 840, 854
(8th Cir. 2009).
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K.

Thanks and Goodbye venire.

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(2) DRAFT PRELIMINARY INSTRUCTIONS

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PRELIMINARY INSTRUCTION NO. 1
Ladies and gentlemen, I will take a few moments now to give
you some initial instructions about this case and about your duties
as jurors. At the end of the trial I will give you further instructions.
I may also give you instructions during the trial.

Unless I

specifically tell you otherwise, all these instructions - both those I
give you now and those I give you later-are equally binding on
you and must be followed.
I am the judge of the law and you are the judges of the facts.
As judges of the facts, it's your duty to determine the truth from
the evidence and the reasonable inferences arising from the
evidence. In making your factual decisions, you must not engage
in guess work or speculation.
This is a civil case. As I said, William Downing has sued his
former employer, the Arkansas Department of Finance and
Administration, and two of his former managers there, Bob
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Haugen and David Justice.

The Department of Finance and

Administration is a state agency that handles, among many other
things, the redistribution and sale of surplus property used in state
government.

The surplus property includes things like office

furniture, vehicles, computers, and furnishings .

Mr. Downing

worked for the Department handling this surplus property. He
worked in the warehouse, did some computer tasks, and made
online sale.
Downing has hip problems.

He asked for, and received,

twelve weeks of FMLA leave because he needed hip-replacement
surgery. About a month after he returned to work, Downing's
doctor concluded that Downing couldn't work more than two days
a week in the warehouse or lift anything heavier than fifty pounds.
The Department decided that Downing could no longer perform
the essential functions of his job. Downing was fired.

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Downing alleges that the Department, Haugen, and Justice
violated the Family Medical Leave Act, the Americans with
Disabilities Act, and the Rehabilitation Act.

He says they

unlawfully changed his job while he was on leave, didn't
accommodate his physical limitations, and then fired him for
discriminatory reasons. The Department, Haugen, and Justice say
they didn't change the job, tried to accommodate Downing's
limitations, and fired him only because he couldn't do key parts of
the job.
Haugen is ill. I've excused him from attending the whole
trial. If he is well enough later in the week, he'll testify. We'll see.
I'll keep you posted. Don't hold it against Haugen, Justice, or the

Department that Haugen isn't here. And don't lean in Haugen's
favor out of concern for his health.
From all the evidence, you will decide what the facts are and
answer the liability questions I'll list for you in a moment. Your
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answers to these questions will be your verdict in this case. You
are entitled to consider all the evidence in the light of your own
observations and experiences in the affairs of life. You may use
reason and common sense to draw conclusions from facts that have
been established by the evidence. Depending on your answers to
the liability questions, the Court may ask you some questions
about damages.
Do not allow any sympathy or any prejudice to influence you.
The law demands of you a just verdict, unaffected by anything
except the evidence, your common sense, and the law as I give it to
you.
You should not take anything I may say or do during the trial
as indicating what I think of the evidence or what I think your
verdict should be.

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PRELIMINARY INSTRUCTION NO. 2
I have mentioned the word" evidence." "Evidence" includes
the testimony of witnesses, documents, and other things received
as exhibits, any facts that have been stipulated- that is, formally
agreed to by the parties- and any facts that have been judicially
noticed- that is, facts which I say you may, but are not required to,
accept as true, even without evidence.
Certain things are not evidence:
1.

Statements, arguments, questions, and comments by

lawyers representing the parties in the case are not evidence.
2.

Objections are not evidence. Lawyers have a right to

object when they believe something is improper. You should not
be influenced by the objection.

If I sustain an objection to a

question, you must ignore the question and must not try to guess
what the answer might have been.

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3.

Testimony that I strike from the record, or tell you to

disregard, is not evidence and must not be considered.
4.

Anything you see or hear about this case outside the

courtroom is not evidence, unless I specifically tell you otherwise
during the trial.
Furthermore, a particular item of evidence is sometimes
received for a limited purpose only. That is, it can be used by you
only for one particular purpose, and not for any other purpose. I
will tell you when that occurs, and instruct you on the purposes for
which the item can and cannot be used.
Finally, some of you may have heard the terms "direct
evidence" and ,.,. circumstantial evidence."

concerned with those terms.

You should not be

The law makes no distinction

between direct and circumstantial evidence. You should give all
evidence the weight and value you believe it is entitled to receive.

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PRELIMINARY INSTRUCTION NO. 3
In deciding what the facts are, you will 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 of any witness to believe, you
should consider several things:

the witness's intelligence; the

opportunity the witness had to have seen or heard the things
testified about; the witness's memory; any motives that witness
may have for testifying a certain way; the manner of the witness
while testifying; whether that witness said something different at
an earlier time; the general reasonableness of the testimony; and
the extent to which the testimony is consistent with other evidence
that you believe.
A caution about considering a witness's demeanor while
testifying. Many folks are nervous just being in court. And there
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are bold liars and shy truth-tellers. Use your common sense and
be discerning when judging someone's credibility based on their
demeanor on the stand.
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 misrecollection or lapse of memory
or an intentional falsehood. That may depend on whether it has to
do with an important fact or only a small detail.

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PRELIMINARY INSTRUCTION NO. 4
At the end of the trial you must make your decisions based on
what you recall of the evidence. You will not have a written
transcript to consult, and it may not be practical for the court
reporter to read back lengthy testimony.

You must pay close

attention to the testimony as it is given.
If you wish, however, you may take notes to help you

remember what witnesses said. If you do take notes, please keep
them to yourself until you and your fellow jurors go to the jury
room to answer the interrogatories. And do not let note taking
distract you so that you do not hear other answers by the witness.
When you leave at night, your notes will be secured and not
read by anyone.

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PRELIMINARY INSTRUCTION NO. 5

During the trial it will be necessary for me to talk with the
lawyers out of the hearing of the jury, either by having a bench
conference while the jury is present in the courtroom, or by calling
a recess. Please understand that while you are waiting, we are
working. The purpose of these conferences is to decide how certain
evidence is to be treated under the rules of evidence, and to avoid
confusion and error. We will, of course, do what we can to keep
the number and length of these conferences to a minimum.

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PRELIMINARY INSTRUCTION NO. 6

Finally, to ensure fairness, you as jurors must obey the
following rules:

First, do not talk among yourselves about this case, or about
anyone involved with it, until the end of the case when you go to
the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about
anyone involved with it, until the trial has ended and you have
been discharged as jurors.

Third, when you are outside the courtroom do not let anyone
tell you anything about the case, or about anyone involved with it
until the trial has ended and your verdict has been accepted by me.
If someone should try to talk to you about the case during the trial,

please report it to the bailiff immediately.

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Fourth, during the trial you should not talk with or speak to

any of the parties, lawyers, or witnesses involved in this case -you
should not even pass the time of day with any of them. It is
important not only that you do justice in this case, but that you also
give the appearance of doing justice. If a person from one side of
the lawsuit sees you talking to a person from the other side-even
if it is simply to pass the time of day- an unwarranted and
unnecessary suspicion about your fairness might arise.

If any

lawyer, party, or witness does not speak to you when you pass in
the hall, ride the elevator or the like, it is because they are not
supposed to talk or visit with you.
Fifth, it will be necessary for you to tell your family, friends,

teachers, coworkers, or employer about your participation in this
trial so that you can let them know you are required to be in court.
You should warn them not to ask you about this case, not to tell
you anything they know or think they know about this case, and
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not to discuss this case 1n your presence. You must not
communicate

with

anyone

about

the

parties,

witnesses,

participants, claims, evidence, or anything else related to this case,
or tell anyone anything about the jury's deliberations in this case
until after I accept your verdict or until I give you specific
permission to do so.
During the trial, while you are in the courthouse, and after
you leave for the day, do not provide any information to anyone
by any means about this case. For example, do not talk face-to-face
or use any electronic device or media, such as the telephone, a cell
phone, a smart phone, iPad, computer, the Internet, any Internet
service, any text or instant messaging service, any Internet chat

room, blog, or website such as Facebook, Instagram, YouTube, or
Twitter, to communicate to anyone any information about this case
until I accept your verdict.

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Sixth, do not do any Internet research- using Google, for
example. Do not do any research by using libraries, reading the
newspapers, or in any other way making any investigation about
this case on your own. Do not visit or view any place discussed in
this case and do not use Internet maps or Google Earth or any other
program or device to search for or to view any place discussed in
the testimony. Also do not research any information about this
case, the law, or the people involved, including the parties, the
witnesses, the lawyers, or me. Don't, for example, look at the
Department's website about surplus property for sale.
Ask each juror: Juror No. - , on your oath, do you promise
not to post anything about your jury service on any social media

website such as Facebook, Twitter, Instagram, or the like during
the trial? On your oath, do you promise not to use the Internet to
look up anything about the case, the matters discussed, the

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lawyers, Downing, the Department, Haugen, Justice, me, or the
law?

Seventh, do not read any news stories or articles in print, on

the Internet, or in any blog, about the case or about anyone
involved with it, or listen to any radio or television reports about
the case or about anyone involved with it. In fact, until the trial is
over I suggest that you avoid reading any newspapers or news
journals at all, and avoid listening to any TV or radio newscasts at
all. I do not know whether there might be any news reports of this
case, but if there are, you might inadvertently find yourself reading
or listening to something before you could do anything about it. I
can assure you, however, that by the time you have heard the
evidence in this case, you will know more about the matter than
anyone will learn through the news media.
Finally, I want to reiterate that, before the trial is over, you
are bound by your oaths not to discuss the evidence with anyone -16 Court's Draft Preliminary Instructions
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not even with a member of your family. And I think you can
understand the fairness and reasonableness of that rule. When we
start discussing the evidence and explaining the proof, there is a
tendency to start making up our minds. And you jurors are bound
by your oaths to keep an open mind on all of the material issues in
the case until you have heard, seen, or otherwise experienced all of
the evidence, not just some of it; until you have received the
Court's final instructions as to the law; and until you have had the
benefit of the lawyers' closing arguments.

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PRELIMINARY INSTRUCTION NO. 7
When the lawyers have finished questioning each witness,
you may propose questions to clarify the testimony.

In your

questions, follow these rules:
• Don't express any opinion about the testimony;
• Don't argue with a witness; and
• Don't sign your name or juror number.
Submit your questions in writing by passing them to the
Court Security Officer. I will review each one with the lawyers. If
the question is proper, the lawyers or I will ask it.
Don't put any special weight on a question just because a
juror suggested it. Don't put any special weight on the question
because I may be the one asking it. And consider the witness's
answer just like any other piece of evidence.
You may not get your question answered. For example, I may
decide that the question is not proper under the rules of evidence.
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And even if the question is proper, you may not get an immediate
answer. For example, a later witness or a coming exhibit may
provide the answer.
Don't feel slighted or disappointed if your question isn't
asked or answered immediately.

Remember, you are not

advocates for either side; you are impartial judges of the facts.

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PRELIMINARY INSTRUCTION NO. 8
The trial will proceed in the following manner:
First, Downing' s lawyer will make an opening statement.
Next, the lawyer for the Department, Haugen, and Justice will
make an opening statement.

An opening statement is not

evidence, but simply a summary of what the lawyer expects the
evidence to be.
Downing' s lawyer will then present evidence by calling
witnesses, and the lawyer for the Department, Haugen, and Justice
may cross-examine those witnesses. Following Downing's case,
the lawyer for the Department, Haugen, and Justice will present
evidence by calling witnesses, and Downing' s lawyer may crossexamine those witnesses.
Finally, Downing' s lawyer may offer rebuttal evidence.
After presentation of evidence is completed, the lawyers will
make their closing arguments to summarize and interpret the
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evidence for you. As with opening statements, closing arguments
are not evidence.
After the closing arguments, the Court will give you some
final instructions. Then you'll go to the jury room to deliberate on
your verdict.

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PRELIMINARY INSTRUCTION NO. 9
You need to know a few terms of law to answer some of the
fact questions in this case. Here are definitions of those legal terms.
You don't have to write down these definitions or the questions.
My staff will hand them out now. Please follow along as I read
them.

• Essential job functions are the fundamental duties of
Downing' s job. Marginal functions are not essential functions
of the job.

• Equivalent means virtually identical in terms of pay, benefits,
and working conditions, including privileges, perquisites,
and status. It must involve the same or substantially similar

duties, skill, effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that
substantially limits one or more major life activities.

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- Substantially limits is a broad term. An impairment can
be substantially limiting even though it doesn't prevent
Downing from performing a major life activity.
Impairments or effects of impairments that last (or are
expected to last) less than six months may be
substantially limiting.

In

deciding whether an

impairment substantially limits a major life activity, you
should compare Downing' s ability to perform the major
life activity with an average person's ability.

- Major life activities include (but aren't limited to)
performing manual tasks, walking, standing, lifting,
bending, and working.

• Downing was regarded as having a disability if he had an
actual or perceived physical impairment, regardless of
whether the impairment limits or is perceived to limit a major
life activity.
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- Downing cannot be regarded as having a disability if his
impairment was transitory and minor.
- A transitory impairment is one with an actual or
expected duration of six months or less. (This is unlike
an actual disability, which doesn't have a time limit.)
• Downing's disability (whether actual or perceived) was a

motivating factor if that disability played a part in the
Department's decision to fire Downing.
• An accommodation is a modification to the work place that
allows a person with a disability to perform the essential
functions of the job or allows the person to enjoy the same
benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be
made under the circumstances and may include (but is not
limited to): job restructuring; part-time or modified work
schedules; reassignment to a vacant position; acquisition or
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modifications of equipment or devices; and other similar
accommodations.

Reasonable accommodation does not

include creating a new position or bumping another
employee in order to reassign a disabled employee.
Reasonable accommodation also does not necessarily mean
the accommodation requested or preferred by Downing.

• Undue hardship means significant difficulty or expense to the
Department. Some things to consider are:
- The nature and cost of the accommodation;
- The number, type, and location of the Department's
various facilities;
- The financial resources of the Department's facility that

would be involved in providing the accommodation;
the number of employees at that facility; and the overall
impact of the accommodation on that facility;
- The financial resources and size of the Department itself;
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- The type of work the Department performs, including
the structure and functions of the Department's
workforce.
Now, here are the questions that the jury will probably have
to answer. The questions might change a little, depending on the
evidence. But if that happens, I'll tell you.

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QUESTIONS
1.

Were Downing's pre-leave and post-leave jobs equivalent?
No - Yes

2.

When Downing returned from leave, was he able to perform
the essential functions of his pre-leave job?
No - Yes

3.

Did Downing have an actual disability?
No - Yes
If you answered "yes," did the Department know about
Downing' s disability?
Yes
No - -

4.

Whether Downing was actually disabled or not, did Bob
Haugen or David Justice regard Downing as having a
disability?
Yes - No - -

5.

At the time Downing was fired, did his hip-related
restrictions prevent him from being able to perform any
essential job functions?
No - Yes

6.

Was Downing fired solely because of an actual or perceived
disability?
No - Yes - -

If you answered "yes" to Question 6, skip Question 7.
- 27 Court's Draft Preliminary Instructions
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7.

Was Downing's actual or perceived disability a motivating
factor in the Department's decision to fire Downing?
Yes
No - -

If you answered "yes," would the Department have fired
Downing even if it had not considered his disability?
Yes
No - Answer the remaining Questions only if you found (see
Question 3) that Downing was actually disabled and that
the Department knew it.
8.

After returning from leave, did Downing seek an
accommodation for any disability?
No - Yes

9.

At the time Downing was fired, could he have performed
the essential functions of his job with a reasonable
accommodation?
No - Yes - would providing the
If you answered "yes,"
accommodation have created an undue hardship on the
Department?
No - Yes - -

10.

If you conclude that Downing requested an accommodation
(see Question 8), was he fired solely because he sought that
accommodation?
Yes
No
Inapplicable __
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PRELIMINARY INSTRUCTION NO. 10
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 a "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've probably 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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Downing has the burden of proof, by a preponderance of the
evidence, on these disputed factual issues:
• The Department, Haugen, and Justice refused to reinstate
him to the same or a substantially similar job after he
returned from leave.
• He had an actual or perceived disability that the
Department, Haugen, and Justice knew about.
• He could perform the essential functions of his job both at
the time he returned from FMLA leave and at the time he
was fired, with or without a reasonable accommodation.
• He was fired solely because of an actual or perceived
disability, or his actual or perceived disability was a
motivating factor in the Department's decision to fire him.
• After returning from leave, he requested and was denied a
reasonable accommodation.

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• He was fired solely because he sought a reasonable
accommodation.
The Department, Haugen, and Justice have the burden of proof,
by a preponderance of the evidence, on these disputed factual
issues:
• Downing would have been fired even if the Department,
Haugen, and Justice had not considered his disability in its
decision to fire him.
• Accommodating Downing would have imposed an undue
hardship on the Department.

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(3) DRAFT FINAL INSTRUCTIONS

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FINAL 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.
You must, of course, continue to follow the instructions I gave
you earlier, as well as those I give you now. You must not single
out some instructions and ignore others because all are important.
This is true even though some of those I gave you at the beginning
of the trial are not repeated here.
The instructions I am about to give you now are in writing
and will be available to you in the jury room.

I emphasize,

however, that this does not mean they are more important than my
earlier instructions. Again, all instructions, whenever given and
whether in writing or not, must be followed.

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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 that 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.

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FINAL INSTRUCTION NO. 2
It is your duty to find from the evidence what the facts are.

Do not allow sympathy or prejudice to influence you. The law
demands of you a just verdict, unaffected by anything except the
evidence, your common sense, and the law as I give it to you.

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FINAL INSTRUCTION NO. 3
I have mentioned the word "evidence." The "evidence" in
this case consists of the testimony of witnesses, the documents and
other things received as exhibits, and the facts that have been
stipulated-that is, formally agreed to by the parties.
You may use reason and common sense to draw deductions
or conclusions from facts which have been established by the
evidence in the case.
Certain things are not evidence. I will list those things again
for you now:
1.

Statements, arguments, questions, and comments by
lawyers representing the parties in the case are not

evidence.
2.

Objections are not evidence. Lawyers have a right to
object when they believe something is improper. You
should not be influenced by the objection. If I sustained
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an objection to a question, you must ignore the question
and must not try to guess what the answer might have
been.
3.

Testimony that I struck from the record, or told you to
disregard, is not evidence and must not be considered.

4.

Anything you saw or heard about this case outside the
courtroom is not evidence.

Finally, if you were instructed that some evidence was
received for a limited purpose only, you must follow that
instruction.

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FINAL INSTRUCTION NO. 4
Also, some of you may have heard the terms "direct

evidence" and "circumstantial evidence." Do not be concerned
with those terms. The law makes no distinction between direct and
circumstantial evidence. You should give all evidence the weight
and value you believe it is entitled to receive.

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FINAL INSTRUCTION NO. 5
In deciding what the facts are, you will 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, consider several
things: the witness's intelligence; the opportunity the witness had
to have seen or heard the things testified about; the witness's
memory;

any motives that witness may have for testifying a

certain way; the manner of the witness while testifying; whether
that witness said something different at an earlier time; the general
reasonableness of the testimony;

and the extent to which the

testimony is consistent with any evidence that you believe.
A caution about considering a witness's demeanor while
testifying. Many folks are nervous just being in court. And there
are bold liars and shy truth-tellers. Use your common sense and
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be discerning when judging someone's credibility based on their
demeanor on the stand.
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 misrecollection or 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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FINAL INSTRUCTION NO. 6

As I told you at the start of trial, you need to know a few terms
of law to answer some of the fact questions in this case. Here,
again, are definitions of those legal terms.

• Essential job functions are the fundamental duties of
Downing' s job. Marginal functions are not essential functions
of the job.

• Equivalent means virtually identical in terms of pay, benefits,
and working conditions, including privileges, perquisites,
and status. It must involve the same or substantially similar
duties, skill, effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that

substantially limits one or more major life activities.

- Substantially limits is a broad term. An impairment can
be substantially limiting even though it doesn't prevent
Downing from performing a major life activity.
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Impairments or effects of impairments that last (or are
expected to last) less than six months may be
substantially limiting.

In

deciding whether

an

impairment substantially limits a major life activity, you
should compare Downing' s ability to perform the major
life activity with an average person's ability.

- Major life activities include (but aren't limited to)
performing manual tasks, walking, standing, lifting,
bending, and working.
• Downing was regarded as having a disability if he had an
actual or perceived physical impairment, regardless of
whether the impairment limits or is perceived to limit a major
life activity.
- Downing cannot be regarded as having a disability if his
impairment was transitory and minor.

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- A transitory impairment is one with an actual or
expected duration of six months or less. (This is unlike
an actual disability, which doesn't have a time limit.)
• Downing's disability (whether actual or perceived) was a

motivating factor if that disability played a part in the
Department's decision to fire Downing.
• An accommodation is a modification to the work place that
allows a person with a disability to perform the essential
functions of the job or allows the person to enjoy the same
benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be
made under the circumstances and may include (but is not
limited to): job restructuring; part-time or modified work
schedules; reassignment to a vacant position; acquisition or
modifications of equipment or devices; and other similar
accommodations.

Reasonable accommodation does not
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include creating a new position or bumping another
employee in order to reassign a disabled employee.
Reasonable accommodation also does not necessarily mean
the accommodation requested or preferred by Downing.

• Undue hardship means significant difficulty or expense to the
Department. Some things to consider are:
- The nature and cost of the accommodation;
- The number, type, and location of the Department's
various facilities;
- The financial resources of the Department's facility that
would be involved in providing the accommodation;
the number of employees at that facility; and the overall

impact of the accommodation on that facility;
- The financial resources and size of the Department itself;

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- The type of work the Department performs, including
the structure and functions of the Department's
workforce.

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FINAL INSTRUCTION NO. 7
This case is submitted to you on questions. Your answers to
these questions will be your verdict in this case.
The questions ask whether or not you find certain facts. You
may find a fact only if it has been proven by a preponderance of
the evidence.
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 a "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

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preponderance of the evidence is not necessarily established by the
greater number of witnesses or exhibits a party has presented.
You've probably 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.
Downing has the burden of proof, by a preponderance of the
evidence, on these disputed factual issues:
• The Department, Haugen, and Justice refused to reinstate
him to the same or a substantially similar job after he
returned from leave.
• He had an actual or perceived disability that the

Department, Haugen, and Justice knew about.
• He could perform the essential functions of his job both at
the time he returned from FMLA leave and at the time he
was fired, with or without a reasonable accommodation.
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• He was fired solely because of an actual or perceived
disability, or his actual or perceived disability was a
motivating factor in the Department's decision to fire him.
• After returning from leave, he requested and was denied a
reasonable accommodation.
• He was fired solely because he sought a reasonable
accommodation.
The Department, Haugen, and Justice have the burden of proof,
by a preponderance of the evidence, on these disputed factual
ISsues:
• Downing would have been fired even if the Department,
Haugen, and Justice had not considered his disability in its
decision to fire him.
• Accommodating Downing would have imposed an undue
hardship on the Department.

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FINAL INSTRUCTION NO. 8
In conducting your deliberations and returning your verdict,
there are certain rules you must fallow. I will list those rules for
you now.

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 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.

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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.

Third, if you need to communicate with me during your
deliberations, you may send a note to me through the court
security officer, 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 not 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. 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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Finally, the Question form is simply the written notice of the

decision that you reach in this case. You will take this form to the
jury room; and when each of you has agreed on the answers, your
foreperson will fill in the form, sign and date it, and advise the
court security officer that you are ready to return to the courtroom.
The court security officer, and all other persons, are forbidden
from communicating in any way with any member of the jury on
any subject touching the merits of this case. Also, you are never to
reveal to any person, not even to the Court, how the jury stands,
numerically or otherwise, on the issues presented to you unless or
until you reach a unanimous verdict.
COURT SECURITY OFFICER OATH

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
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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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(4) VERDICT FORM

-1 -

Court's Draft Verdict Form
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QUESTIONS
1.

Were Downing's pre-leave and post-leave jobs equivalent?

No - -

Yes - 2.

When Downing returned from leave, was he able to perform
the essential functions of his pre-leave job?

No - -

Yes - 3.

Did Downing have an actual disability?

No - -

Yes - -

If you answered "yes," did the Department know about
Downing' s disability?

No - -

Yes - 4.

Whether Downing was actually disabled or not, did Bob
Haugen or David Justice regard Downing as having a
disability?

No - -

Yes - 5.

At the time Downing was fired, did his hip-related
restrictions prevent him from being able to perform any
essential job functions?

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No - -

Yes - 6.

Was Downing fired solely because of an actual or perceived
disability?
Yes - -

No - -

If you answered "yes" to Question 6, skip Question 7.

7.

Was Downing's actual or perceived disability a motivating
factor in the Department's decision to fire Downing?
Yes - -

No - -

If you answered "yes," would the Department have fired
Downing even if it had not considered his disability?

No - -

Yes - -

Answer the remaining Questions only if you found (see
Question 3) that Downing was actually disabled and that
the Department knew it.
8.

After returning from leave, did Downing seek an
accommodation for any disability?
Yes - -

No - -

-3Court's Draft Verdict Form
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9.

At the time Downing was fired, could he have performed
the essential functions of his job with a reasonable
accommodation?
Yes - -

No - -

yes,"
would providing the
If you
answered
accommodation have created an undue hardship on the
Department?
If

Yes - 10.

No - -

If you conclude that Downing requested an accommodation
(see Question 8), was he fired solely because he sought that
accommodation?

Yes - - No - -

Inapplicable __

Sign and date this form.

Date & Time

Foreperson
-4Court's Draft Verdict Form

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(5) DAMAGES INSTRUCTION AND QUESTION

-1-

Court's Draft Rehab Act
Damages Instruction and Question
29 March 2018

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William Downing v. DFA et al.

INSTRUCTION NO. 9
Based on your answers to the Court's Questions about
liability, Downing has prevailed on his claim under the
Rehabilitation Act. You must now award Downing a sum that you
find will fairly and justly compensate him for his damages you find
he sustained as a direct result of the Department's conduct.
Damages include:
• Wages and fringe benefits you find Downing would
have earned in his employment with the Department if
he hadn't been fired. This amount should reflect the
time period of 4 June 2014 (when Downing was fired)
through today. You must subtract any earnings and
benefits that Downing received from other employment
during that time. Award only a net loss amount; and
• Mental anguish, inconvenience, and other nonmonetary
losses. If you find that Downing suffered any of these,
you must enter separate amounts for each type and must
not include the same items in more than one category.

-2Court's Draft Rehab Act
Damages Instruction and Question
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Downing has a legal duty to "mitigate" his damages-that is,
to exercise reasonable diligence under the circumstances to
minimize his damages. Therefore, if you find that Downing failed
to seek out or take advantage of an opportunity that was
reasonably available to him, you must reduce his damages by the
amount of the wages and fringe benefits Downing reasonably
could have earned if he had sought out or taken advantage of such
an opportunity.
Downing must prove his damages by a preponderance of the
evidence. Remember, throughout your deliberations, you must
not engage in any speculation, guess, or conjecture. And you must
not award any damages as punishment or because of sympathy.
If you do not find that Downing' s damages have monetary

value, then you must return a verdict for Downing in the nominal
amount of One Dollar.

-3-

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Damages Instruction and Question
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QUESTION

State the amount of Downing's damages (as that term is
defined in Instruction No. 9) from the Department's decision to fire
Downing on 4 June 2014.

Wages and fringe benefits:

$____

Mental anguish, inconvenience,
& other nonmonetary losses:

$_ _ __

Sign and date this form.

Date & Time

Foreperson
-4Court's Draft Rehab Act
Damages Instruction and Question
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