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Arvell Irish and Leslie Moore v. Jewel Food Stores

February 10, 2012

ARVELL IRISH AND LESLIE MOORE
v.
JEWEL FOOD STORES, INC.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge James F. Holderman than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The court proposes to provide the jury the attached Preliminary Verdict Form and Agreed Statement of Uncontested Facts prior to opening statements on February 29, 2012. The court has modified the parties' proposed verdict form to promote clarity. The court also proposes to read to the jury the attached Preliminary Jury Instructions before opening statements on February 29, 2012. The court also attaches its proposed Final Jury Instructions. The court's resolution of the parties' objections are included in the Statement section of the order. Counsel are to file any objections to the Verdict Form, the Preliminary Jury Instructions, or the Final Jury Instructions by February 21, 2012.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiffs' Proposed Jury Instruction No. 1

The court has adopted this instruction, because it accurately describes this case and may assist the jury in understanding the claims.

Plaintiff's Proposed Jury Instruction No. 2/ Defendant's Proposed Jury Instruction No. 1

The court has placed the definition of a hostile or abusive work environment after the numbered elements of the claim, instead of after element #4, because both element #4 and element #5 refer to a hostile or abusive work environment. The court has included the optional ameliorating instruction because the instruction may assist the jury in identifying a hostile or abusive work environment in a case such as this one, where the evidence will likely be closely balanced.

Defendant's Proposed Jury Instruction No. 2

The court declines to give this instruction, because it merely repeats the requirement that the defendant know or should know of the harassment, which is already included in the instructions. Moreover the evidence will likely show that the plaintiffs reported at least some of the alleged misconduct through the defendant's complaint hotline, so this is not a case where "[a]n employer is not liable for co-employee . . . harassment when a mechanism to report the harassment exists, but the victim fails to utilize it." Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003). Accordingly, it is not appropriate to instruct the jury that complainants are expected to contact an employer's point person for accepting complaints.

Plaintiffs' Proposed Jury Instruction Nos. 3 & 4

The court has modified and combined these two instructions to eliminate redundancies. The court agrees with the defendant that it is not necessary to state that damages are not restricted to loss of money, given that there likely will be no evidence that the defendants suffered money damages, and that the non-monetary basis of damages is sufficiently covered in the instructions.

Plaintiffs' Proposed Jury Instruction No. 5

The court has included the instruction on punitive damages, but will remove it if appropriate after the court rules on the defendant's partial motion for summary judgment. The language of the punitive damages instruction may be revisited in light of the evidence introduced at trial.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

ARVELL IRISH and LESLIE MOORE, Plaintiffs, v. JEWEL FOOD STORES, INC., Defendant.

No. 10 C 7265

PRELIMINARY VERDICT FORM

Part I - Hostile Work Environment Claim

I. We, the jury, find as follows on Plaintiff Arvell Irish's hostile work environment claim against Jewel Food Stores, Inc.:

For Arvell Irish____________ For Jewel Food Stores, Inc.____________

II. We, the jury, find as follows on Plaintiff Leslie Moore's hostile work environment claim against Jewel Food Stores, Inc.:

For Leslie Moore____________ For Jewel Food Stores, Inc.

Part II - Compensatory Damages

I. Arvell Irish (answer only if you found for Arvell Irish in Part I)

We, the jury, assess compensatory damages for the injuries suffered by Arvell Irish in the amount of: $_____________

II. Leslie Moore (answer only if you found for Leslie Moore in Part I)

We, the jury, assess compensatory damages for the injuries suffered by Leslie Moore in the amount of: $_____________

Part III - Punitive Damages

I. Arvell Irish (answer only if you found for Arvell Irish in Part I)

We, the jury, award punitive damages to Arvell Irish in the amount of: $_____________

II. Leslie Moore (answer only if you found for Leslie Moore in Part I)

We, the jury, award punitive damages to Leslie Moore in the amount of: $____________

Part IV - Juror Signatures

Please each sign and date below. Then notify the marshal. The Foreperson should bring this signed and dated Verdict Form into the courtroom to return the Jury's Verdict.

____________________________________ Foreperson Juror

____________________________________ Juror Juror

____________________________________ Juror Juror

____________________________________ Juror Juror

Date: ___________________

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

ARVELL IRISH and LESLIE MOORE, Plaintiffs, v. JEWEL FOOD STORES, INC., Defendant.

No. 10 C 7265

PRELIMINARY JURY INSTRUCTIONS

Members of the jury, I will give you a preliminary overview of the law that relates to this trial that you, as the jury, are to apply to the facts in deciding this case. This overview is given to you at this time to help you better understand the parties' positions as the evidence is presented to you during the trial. Although this preliminary overview of the law is given to you now, it is the final instructions on the law that I will read to you before your deliberations that you should use in deciding the case.

At that time, I will give each of you a hard copy of the final instructions on the law and it is the final instructions on the law, as I said, that you should use in deciding the case.

This is a race discrimination case. Plaintiffs Arvell Irish and Leslie Moore are employed as janitors at Jewel Food's Distribution Center in Melrose Park, Illinois. They have alleged that they were subjected to a hostile work environment because of their race in the form of racial comments, graffiti and other conduct by two other Hispanic janitors that worked in the same facility. The Plaintiffs further contend that the Defendant, Jewel Foods, is legally responsible for allowing this conduct to occur because the Company knew about the alleged conduct and did not take reasonable steps to prevent the conduct.

The Company denies that Plaintiffs were subjected to a hostile work environment because of their race. The Company also contends that it cannot be held legally responsible for the conduct of the Plaintiffs' two co-workers because it took reasonable steps to maintain a workplace free of race-based harassment.

In a civil lawsuit like this one, the burden is on the party bringing the claim to prove every element of the claim by a "preponderance of the evidence." A preponderance of the evidence simply means evidence that persuades you that the claim is more probably true than not true.

In deciding whether any fact has been proven by a preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all the witnesses, regardless of who may have called them, and all the exhibits received in evidence, regardless of who may have produced them.

If the proof establishes each element of the claim by a preponderance of the evidence, then you should find for the party bringing that claim. If the proof fails to establish any element of the claim by a preponderance of the evidence, then you should find for the party against whom the claim was brought.

I will now discuss Plaintiffs' claim that they were subjected to a hostile work environment because of their race.

Plaintiff Arvell Irish and Leslie Moore's Claim for Racial Discrimination

Plaintiffs Arvell Irish and Leslie Moore have brought this lawsuit under a federal law know as 42 U.S.C. ยง 1981. Section 1981, as I will refer to this law, prohibits discriminatory conduct of an employer, including ...


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