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Arvell Irish and Leslie Moore v. Jewel Food Stores

February 23, 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

Pretrial conference held. Counsel are to submit any further objections to the court's proposed jury instructions or trial procedures in writing by no later than February 27, 2012 at 5 pm. Case remains set for trial at 9 am February 27, 2012. Parties are to continue to discuss settlement and notify the court no later than February 28, 2012, by 2 pm to avoid the assessment of jury costs. Pursuant to the court's request [122], the parties have each submitted a proposed instruction and a proposed special interrogatory regarding the standard the jury should use to identify Jewel's managerial employees. The court adopts the instruction and special interrogatory as stated in the Statement section of the order. The current proposed Final Jury Instructions, Preliminary Jury Instructions, and Preliminary Verdict Form are attached to this order.

O[ For further details see text below.] 01:30 Docketing to mail notices.

STATEMENT

The court has adopted elements of both parties' proposed instruction, as follows:

In determining whether a particular individual was a managerial employee of Defendant Jewel, you should consider the kind of authority Defendant gave to him, the amount of discretion he had in carrying out his job duties and the manner in which he carried them out. Factors that would tend to show that an employee of Defendant Jewel was a managerial employee include that the employee had discretionary authority to hire, discipline, or terminate employees. A managerial employee must have responsibilities that are important to the carrying out of the company's policies, but need not be one of Defendant Jewel's top managers, officers, or directors.

Defendant's Maintenance Supervisors, including Jerry Richmond, Walter Crenshaw, Ronald Alphonse, Ron Pezdek, Dave Spankroy, and Mohammed Khan, are not considered managerial employees as defined in this instruction.

The court has also edited the proposed punitive damages instruction for clarity.

In addition to the special interrogatory asking the jury to identify managerial employees, Defendant Jewel Food Stores, Inc. ("Jewel") proposed additional special interrogatories on whether Jewel made a good faith effort to implement an anti-discrimination policy, and on whether any managerial employees recklessly disregarded plaintiffs' rights. The instructions already specify, however, that to award punitive damages, the jury must find that Jewel did not make a good faith effort to implement an anti-discrimination policy, and that a managerial employee recklessly disregarded plaintiffs' rights. Moreover, the jury is presumed to follow the instructions they are given. Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 388 (7th Cir. 2011). Accordingly, the court declines to adopt Jewel's additional special interrogatories, and instead adopts plaintiffs' proposed special interrogatory, altered for clarity.

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. § 1981. Section 1981, as I will refer to this law, prohibits discriminatory conduct of an employer, including discriminatory working conditions, such as racial harassment.

In this case, Plaintiffs Irish and Moore claim that they were racially harassed at work by their co-workers, Wilfredo Soto and Jaime Guzman. To succeed on his claim, the Plaintiff you are considering must prove seven things by a preponderance of the evidence:

1. Plaintiff was subjected to racially harassing comments or racial graffiti or racist behavior by his co-workers, Wilfredo Soto and Jaime Guzman;

2. The conduct was unwelcome;

3. The conduct occurred because Plaintiff was African American;

4. The conduct was sufficiently severe or pervasive that a reasonable person in Plaintiff's position would find Plaintiff's work environment to be hostile or abusive;

5. At the time the conduct occurred, Plaintiff believed that the conduct made his work environment hostile or abusive;

6. Defendant knew or should have known about the conduct; and 7. Defendant did not take reasonable steps to correct the situation and prevent harassment from recurring.

If you find that the Plaintiff you are considering has proved by a preponderance of the evidence each of the things required of him, then you must find for that Plaintiff. However, if a Plaintiff did not prove by a preponderance of the evidence each of the things required of him, then you must find for Defendant as to that Plaintiff.

To decide whether a reasonable person would find a Plaintiff's work environment hostile or abusive, you must look at all the circumstances. These circumstances may include the frequency of the conduct; its severity; its duration; whether it was physically threatening or humiliating, and whether it unreasonably interfered with a Plaintiff's work performance. No single factor is required in order to find a work environment hostile or abusive.

Conduct that amounts only to ordinary socializing in the workplace, such as occasional horseplay, sporadic or occasional use of abusive language, race-related jokes, and occasional teasing, does not constitute an abusive or hostile environment. You should consider all the circumstances and the social context in which the conduct occurred. Only conduct amounting to a material change in the terms and conditions of employment amounts to an abusive or hostile environment.

In determining whether Defendant knew or should have known of the harassment, a Plaintiff must prove that (a) he made a concerted effort to inform Defendant of the racial harassment he was allegedly experiencing, or (b) the harassment was sufficiently obvious that an employee of the Defendant who had the authority to deal with the harassment had notice of the harassment.

To make a concerted effort to inform Defendant of the racial harassment in a situation in which Defendant has designated one or several "point persons" to accept complaints, a Plaintiff must report the harassment to at least one of those point persons.

The Question of Damages

If you find that a Plaintiff has proved any of his claims, then you must determine what amount of damages, if any, that Plaintiff is entitled to recover and report the amount of damages on your verdict form. If you find that a Plaintiff has failed to prove any of his claims, then you will not consider the question of damages as to that Plaintiff. I will instruct you on the law regarding damages at the end of the trial.

As I stated earlier, although this preliminary overview of the law is given to you now to help you better understand the evidence as it is presented at the trial, it is the final instructions on the law that I will read to you and physically give to you in the form of a hard copy for each of you that you should use in reaching your verdict as the jury in this trial.

In this case, the parties have already stipulated, or agreed, to certain facts in the Agreed Statement of Uncontested Facts, which has been given to you. You must now treat these agreed facts as having been proved for the purpose of this case.

As members of the jury, you may submit written questions for a witness to answer if you feel you need more information after the lawyers have finished questioning the witness. We do not expect you will have questions, but if you do, here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, if you have a question, you should write it down on a sheet of paper from your notebook, fold it over and hold it up. My clerk will retrieve it and then photocopy it, so I can speak with the lawyers about it as I must.

You may submit a question for a witness to clarify or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.

If you submit a question, the court staff will provide it to me and I will share your question with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question to the witness so that the witness may answer it. In some instances, I may modify the form or phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact or speculate on what the answer might be.

Here are several important things to keep in mind about your questions for the witnesses: First, all questions must be submitted in writing. Please do not ask questions orally of any witness.

Second, witnesses may not be recalled to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness's testimony.

Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not ...


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