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Norman P. Lupescu v. Janet Napolitano

May 13, 2011

NORMAN P. LUPESCU, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Before the court are the parties' cross-objections to each other's proposed jury instruction regarding the causation element required under Title VII, as amended by the Civil Rights Act of 1991.

I. BACKGROUND

Norman Lupescu, a white man, brought this employment discrimination case against his former employer, the Transportation Security Administration (the "TSA"), alleging that the TSA discriminated against him based on his race when it fired him. For a more complete description of the underlying facts of this Title VII employment discrimination case, see the court's prior opinions. See, e.g., Lupescu v. Napolitano, 700 F. Supp. 2d 962 (N.D. Ill. 2010).

The parties dispute which jury instruction should be given regarding the causation element required under Title VII, as amended by the Civil Rights Act of 1991. Lupescu proposes the following instruction:

Norman Lupescu claims that he was terminated by TSA because of his race. To succeed on this claim, Mr. Lupescu must prove by a preponderance of the evidence that his race was a motivating factor in TSA's decision to terminate his employment.

As used in these instructions, an unlawful employment practice is established when Mr. Lupescu demonstrates that race was a motivating factor in TSA's decision to terminate him, even though other factors also motivated his termination.

If you find that Mr. Lupescu has proved this claim by a preponderance of the evidence, then you must find for Mr. Lupescu. However, if you find that Mr. Lupescu did not prove this claim by a preponderance of the evidence, then you must find for TSA. (Pl.'s Proposed Instruction No. 4.) The TSA objects to this instruction, arguing that it is an inconsistent statement of the law and is inconsistent with Seventh Circuit Pattern Civil Jury Instruction No. ("Pattern Instruction") 7.01. However, Pattern Instruction 7.01 pertains to whether a police department or a municipality is a party, so, since it is undisputed that neither are involved here, this must be an error. See Federal Civil Jury Instructions of the Seventh Circuit 7.01 (2009). Since the TSA has consistently argued for the use of Pattern Instruction 3.01, the court concludes that this is what the TSA must have intended to assert here. In any event, Lupescu replies that his instruction is consistent with the plain language of Title VII and with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., --- U.S. ----, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). In addition, Lupescu points out that this court gave this instruction at the last trial.

The TSA would like the court to give the instruction set forth in the main text of Pattern Instruction 3.01*fn1 , except that the TSA substituted the parties' names and other appropriate details for placeholders (e.g. "Plaintiff," "Defendant," "[adverse employment action]")). The TSA's proposed instruction reads as follows:

Norman Lupescu claims that he was terminated by TSA because of his race. To succeed on this claim, Norman Lupescu must prove by a preponderance of the evidence that he was terminated by TSA because of his race.

To determine that Norman Lupescu was terminated because of his race, you must decide that TSA would not have terminated Norman Lupescu had he been a different race but everything else had been the same.

If you find that Norman Lupescu has proved this by a preponderance of the evidence, then you must find for Norman Lupescu. However, if you find that Norman Lupescu did not prove this by a preponderance of the evidence, then you find for TSA. (Def.'s Proposed Instruction C.) Lupescu objects to this instruction, arguing that: (1) the court rejected this instruction in the last trial, and (2) the "because of" language would confuse the jury by "suggest[ing] that it could only find for [Lupescu] if he proved that discrimination was the sole or primary reason he was fired." (Pl.'s Objection to Def.'s Proposed Instruction C (citing Olson v. New York, 2009 WL 690236 (2d Cir. 2009), and Gross, 129 S. Ct. at 2349)).

II.LEGAL STANDARD

"[D]istrict courts are best advised to rely on the statutory language in framing jury instructions." Hernandez v. HCH Miller Park Joint Venture, 418 F.3d 732, 738 (7th Cir. 2005) (citing Akrabawi v. Carnes Co., 152 F.3d 688, 694 (7th Cir. 1998)). "Nonetheless, jury instructions need not be perfect." Id. (citing Schobert v. Ill. Dep't of Transp., 304 F.3d 725, 730 (7th Cir. 2002)). The Seventh Circuit gives district courts "substantial discretion with respect to the precise wording of jury instructions so long as the final result, read as a whole, completely and correctly states the law." Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). "Good instructions use simple words in short, concrete sentences." Gehring v. Case Corp., 43 ...


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