Fralick v. Biaggi's Inc. et al

Filing 94

ORDER on Jury Instructions entered by Judge Joe Billy McDade on 2/13/2018. See full written Order for more information.(MA, ilcd)

E-FILED

Tuesday, 13 February, 2018 05:04:31 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CASEY FRALICK,
Plaintiff,
v.
BIAGGI’S INC., an Illinois corporation,
BIAGGI’S RISTORANTE ITALIANO
L.L.C., an Illinois Limited Liability
Company,
Defendants.

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Case No. 16-cv-1015
Honorable Joe B. McDade

ORDER PROVIDING NOTICE OF COURT’S PROPOSED JURY
INSTRUCTIONS
On February 8, 2018, the Court held a pre-trial conference in the abovecaptioned matter. The conference was continued to February 15, 2018. Prior to the
conference, the parties submitted Joint Jury Instructions, as well as individual
instructions proposed by each party. (See Doc. 70, Exhs. G, H, I). The parties also
submitted, in writing, their arguments regarding jury instruction disagreements.
Before the formal pre-trial conference began on February 8, the Court indicated to
the parties which instructions it intended to accept, reject, and accept as modified.
After thorough discussion, disputes remained on five instructions while the
remainder of the instructions were agreed to.
The Court hereby transmits the below proposed jury instructions so the parties
may review them before the final pre-trial conference on February 15, 2018.

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Court Proposed Instruction No. 1, as modified
To succeed on the interference claim, Plaintiff must prove all of the following
by a preponderance of the evidence:
First: Plaintiff had a health condition that was a “serious health condition.” I
will define “serious health condition” for you in a moment. The parties stipulate
that Plaintiff had a health condition that was a “serious health condition.”
Second: Defendant had appropriate notice of Plaintiff’s need for leave. I will
define “appropriate notice” for you in a moment.
Third: Defendant interfered with his right to take FMLA leave by not giving
him leave, terminating him, and not allowing him to return to his job or an
equivalent position.
This instruction follows Seventh Circuit Pattern Jury Instruction 10.2 for an
FMLA interference claim. For purposes of clarity for the jury, the Court combined
elements one and two from the pattern instruction, and added that the parties have
stipulated to the satisfaction of the first element. Court Proposed Instruction No. 1,
as modified, intends to replace Court Proposed Instruction No. 1. Plaintiff’s Proposed
Instruction No. 1 remains rejected because of this instruction.

Court Proposed Instruction No. 3
You have heard evidence that the Plaintiff lied on his application for
employment with the Defendant about a theft conviction. You may consider this
evidence in regard to Plaintiff’s character for truthfulness or untruthfulness.
Assuming you find for Plaintiff, you will have to assess the amount and type
of damages to which the Plaintiff is entitled. If you find that Plaintiff lied on his
application for employment with Defendant, and Defendant would have fired

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Plaintiff on learning of Plaintiff’s misconduct, Plaintiff’s damages may be curtailed
and limited through the date when Defendant learned of Plaintiff’s misconduct.

In its February 2, 2018, Order, the Court indicated that Plaintiff’s 2008 felony
theft condition would be admitted only on the issue of damages. (Doc. 88 at 5-6).
However, upon further consideration, the Court believes that the conviction should,
and must, be admitted for purposes of impeachment, as well. Federal Rule of
Evidence 609 limits the admissibility of convictions that are over ten years old.
Evidence of a conviction that is more than ten years old is admissible only if “its
probative value, supported by the specific facts and circumstances, substantially
outweighs its prejudicial effect,” and “the proponent gives an adverse party
reasonable written notice of the intent to use it so the party has fair opportunity to
contest its use.” FED. R. EVID. 609(b).
After considerable thought on the issue, the Court believes the probative value
of the conviction substantially outweighs its prejudicial effect because Biaggi’s almost
certainly would not have hired Plaintiff had it been aware that he was convicted of
felony theft for stealing from a prior employer. For that reason, this conviction is
extremely probative to the issues of damages and Plaintiff’s veracity. Thus, the Court
believes that this instruction adequately accounts for Plaintiff’s conviction, him lying
on his application about same, and for what purpose the jury can consider each act
when analyzing the evidence in this matter. Court Proposed Instruction No. 3 intends
to replace Joint Instruction No. 38 and Court Instruction No. 2.

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Court Proposed Instruction No. 4
To succeed on the retaliation claim, Plaintiff must prove all of the following
by a preponderance of the evidence:
First: Plaintiff had a health condition that was a “serious health condition.” I
will define “serious health condition” for you in a moment. The parties stipulate
that Plaintiff had a health condition that was a “serious health condition.”
Second: Defendant had appropriate notice of Plaintiff’s need for leave. I will
define “appropriate notice” for you in a moment.
Third: that Plaintiff’s FMLA leave was a motivating factor in Defendants’
decision to terminate him. The term “motivating factor” means a reason why
Defendants took the action that they did. It does not have to be the only reason.
If you find that Plaintiff’s FMLA leave motivated Defendants to terminate
Plaintiff’s employment, you must find for Plaintiff - unless you decide that
Defendants have proved by a preponderance of the evidence that they would have
terminated him even if Plaintiff had not taken FMLA leave.
If you find that Defendants have proved that, then you must find for
Defendants. If you find that Defendants have not proved that, then you must find
for Plaintiff.
The Seventh Circuit Pattern Jury Instruction 10.4 for an FMLA retaliation
claim uses the ambiguous bracketed phrase “protected activity.” 1 The parties
disagreed about how to define “protected activity.” Seventh Circuit case law indicates
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10.4 Elements of FMLA Retaliation Claim
To succeed on this claim, Plaintiff must prove, by a preponderance of the evidence, that his [protected activity]
was a motivating factor in Defendant's decision to [adverse action] him. The term "motivating factor" means a
reason why Defendant took the action that it did. It does not have to be the only reason.
If you find that Plaintiff's [protected activity] motivated Defendant to [adverse action] him, you must find for
Plaintiff - unless you decide that Defendant has proved by a preponderance of the evidence that it would have
[adverse action] him even if Plaintiff had not [protected activity].
If you find that Defendant has proved that, then you must find for Defendant. If you find that Defendant has
not proved that, then you must find for Plaintiff.

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that an employee engages in “protected activity” if they suffered from a serious health
condition and provided sufficient notice of their intent to take leave. See Nicholson v.
Pulte Homes Corp., 609 F.3d 819, 828 (7th Cir. 2012). Therefore, the Court added the
elements of notice and serious health condition to the retaliation claim. This is
consistent with the fact that the only difference between an interference claim and a
retaliation claim is the discriminatory intent element of a retaliation claim. Court
Proposed Instruction No. 4 should also alleviate Defendant’s concern about the unfair
use of the term “leave” in any proposed instruction. The phrase “FMLA leave” as used
in the proposed third element above is consistent with the phrasing of the last
element in an interference claim. The term “FMLA leave” only becomes pertinent
once the jury has found the notice and serious health condition elements satisfied.
Court Proposed Instruction No. 4 intends to replace Plaintiff’s Proposed Instruction
No. 2. Defendant’s Proposed Instruction No. 9 remains rejected because of this
instruction.

Parties should come to the February 15, 2018, final pre-trial conference
prepared to discuss these instructions.
SO ORDERED.
Entered this 13th day of February, 2018.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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