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Amendments to civil jury instructions

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Amendments to civil jury instructions

The Committee on Standard Jury Instructions in Civil Cases has submitted to the Florida Supreme Court a report proposing new Section 416, Unlawful Discrimination and new jury instructions 416.1 (Introduction); 416.2 (Summary of Claims and Defenses); 416.3 (Greater Weight of the Evidence); 416.4 (Discrimination—Disparate Treatment); 416.5 (Legal Cause—Discrimination); 416.6 (Legal Cause—Damage); 416.7 (Issues on Plaintiff’s Claim); 416.8 (Burden of Proof on Claim); 416.9 (Unlawful Discrimination Damages); 416.10 (Affirmative Defense—Failure to Mitigate Lost Wages); 416.11 (Affirmative Defense—After-Acquired Evidence); and 416.12 (Reduction of Damages to Present Value).The court invites all interested persons to comment on the proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the court on or before May 2, with a certificate of service verifying that a copy has been served on Committee Chair Rebecca Mercier Vargas, Law Office of Kreusler-Walsh, Compiani & Vargas, P.A., 501 South Flagler Drive, Suite 503, West Palm Beach 33401, [email protected], and on the Bar staff liaison to the committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee 32399-2300, [email protected], as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until May 25 to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 16-01, CASE NO. SC16-323

416.2 SUMMARY OF CLAIMS AND DEFENSES

The claim[s] [and defenses] in this case [is] [are] as follows: (claimant) claims that (defendant) discriminated against [him] [her] by [discharging] [failing to hire] [(describe discriminatory treatment)] (claimant) because of (claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status], and that the (describe discriminatory treatment) caused [him] [her] damage.

(Defendant) denies that claim [and also claims that (claimant) (describe any affirmative defenses)].

[(Claimant)] [The parties] must prove [his] [her] [their] claim(s) [and defense(s)] by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

416.5 LEGAL CAUSE — DISCRIMINATION

(Claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status] is the legal cause of (defendant’s) decision to [discharge] [fail to hire] [(describe discriminatory treatment)] (claimant) if (defendant) made the decision because of (claimant’s) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status].

(If necessary, clarify the causation standard further.)
NOTES ON USE FOR 416.5

1. This instruction uses “because of,” the causation language in F.S.760.10(1). The committee takes no position on whether additional clarification is needed. We note that “because of” in employment statutes has been interpreted to mean numerous types of causation. See generally, “Gross Disunity,” 114 Penn. State L. Rev. 857 (2010) (“because of” can mean at least four different types of causation). Courts have focused on three possible meanings: “sole,” “but for,” and “motivating factor.” If an additional instruction is needed, it may vary depending on which protected factor is involved, as explained below.

2. Race, color, religion, sex, national origin. No Florida appellate court has stated which causation standard should be used for a Florida Civil Rights Act (“FCRA”) discrimination claim based on one of the five factors enumerated in Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”) Florida courts have endorsed the general rule that, because the FCRA was patterned after Title VII, the Florida statute should be given the same construction as the federal courts give the federal act. See, e.g., Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008). In 1991, Congress added the “motivating factor” causation standard to Title VII and added a “same decision” defense limiting damages. The Florida legislature never amended the FCRA to add the “motivating factor” causation standard and the “same decision” defense limiting damages.

3. Pregnancy. Title VII does not include “pregnancy” as a specifically enumerated factor. However, Title VII, as amended by the Pregnancy Discrimination Act, defines “[t]he terms ‘because of sex’ or ‘on the basis of sex’” to include “because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e(k). “Under Title VII, a plaintiff may prevail on a [pregnancy discrimination] claim by showing that her pregnancy ‘was a motivating factor’ for an employment decision.” Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (citing 42 U.S.C. § 2000e-2(m)); Torres-Skair v. Medco Health Solutions, Inc., 595 Fed. Appx. 847, 852 (11th Cir. 2014) (same).

The Florida Legislature amended the FCRA to include pregnancy as a specifically enumerated factor, effective July 1, 2015. F.S. 760.10; Laws 2015, c. 2015-68, § 6. Prior to that amendment, the Florida Supreme Court held that the FCRA’s prescription against discrimination because of “sex” includes discrimination based on pregnancy. Delva v. Continental Group, Inc., 137 So. 3d 371, 375 (Fla. 2014). No Florida appellate court has stated which causation standard should be used for an FCRA discrimination claim based on pregnancy. However, the “motivating factor” causation standard has been utilized in pregnancy discrimination claims brought concurrently under the FCRA and Title VII. See, e.g., Gee, 677 F.3d at 1054–1055, 1058–1059, 1062–1063 (noting that decisions construing Title VII guide the analysis of the plaintiff-employee’s pregnancy discrimination claim under the FCRA); Torres-Skair, 595 Fed. Appx. at 852–853.

4.Age. Courts have held that decisions construing the federal Age Discrimination in Employment Act (ADEA) apply to the FCRA’s age discrimination provision. See, e.g., Fla. State Univ. v. Sondel, 685 So.2d 923 (Fla. 1st DCA 1996). The U.S. Supreme Court interpreted the ADEA to require “but for” causation. Gross v. FFL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).

5. Handicap. Courts have held that decisions construing the federal Americans with Disabilities Act (ADA) apply to FCRA’s handicap discrimination provision. See, e.g., Byrd v. BT Foods, Inc., 26 So.3d 600 (Fla. 4th DCA 2010). There is a split among the federal circuits as to whether the ADA requires “motivating factor” or “but for” causation. Compare Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (“motivating factor”), with Lewis v. HumboldtAcquisition Corp., 681 F.3d 312, 322 (6th Cir. 2012) (“but for”).

6. Marital Status. Marital status discrimination cases decided under the FCRA do not provide clear guidance on the causation standard to be applied. See Sanders v. Mayor’s Jewelers, Inc., 942 F. Supp. 571 (S.D. Fla. 1996) (holding that complaint alleging “discriminatory intent” or marital status “as motivating factor” was sufficient to state a claim); Nat’l Indus., Inc. v. Comm’n on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988) (holding that, because no record of the hearing was provided, the agency could not reject the hearing officer’s finding that marital status was not “a motivating factor” and that no “discriminatory intent” was present).

The Florida Supreme Court has held that the term “marital status,” as used in the FCRA section prohibiting discrimination based on marital status, “means the state of being married, single, divorced, widowed or separated, and does not include the specific identity or actions of an individual’s spouse.” Donato v. American Tel. & Tel. Co., 767 So.2d 1146, 1154–1155 (Fla. 2000).

7. The committee takes no position as to whether a trial court should instruct on a permissive inference of pretext, that is, the employer’s stated reason for the adverse employment action was not the real reason but was given to hide a discriminatory reason. No Florida appellate decision has addressed the issue in a trial context. At least one Florida appellate decision has employed the pretext consideration in the context of a summary judgment motion. See generally Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192 (Fla. 1st DCA 2008) (reversing summary judgment where evidence was susceptible to a reasonable inference that the explanation offered by the defendant for eliminating plaintiff’s job was pretextual). There is disagreement among the federal circuits as to whether a pretext instruction is required in employment discrimination cases under Title VII. See Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir. 2001) (error not to give pretext inference instruction), with Palmer v. Bd. of Regents, 208 F.3d 969 (11th Cir. 2000) (no error in refusing to instruct jury that it could infer discrimination if it believed plaintiff’s prima facie case and disbelieved defendant’s reason for adverse employment action).

416.8 BURDEN OF PROOF ON CLAIM

If the greater weight of the evidence does not support the claim of (claimant), then your verdict should be for (defendant).

However, if the greater weight of the evidence supports the claim of (claimant), [then your verdict should be for (claimant) and against (defendant)] [then you shall consider the defense[s] raised by (defendant)].

[If the greater weight of the evidence supports the defense, your verdictshould be for (defendant). However, if the greater weight of the evidence does not support the defense, your verdict should be for (claimant) and against (defendant).]

416.9 UNLAWFUL DISCRIMINATION DAMAGES

If you find for (defendant), you will not consider the matter of damages. But if you find for (claimant), you should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate [him] [her] for such damage, including any such damage as (claimant) is reasonably certain to incur in the future. You shall consider the following elements of damages:

[any] [the difference between] lost wages and benefits to the date of trial [and what (claimant) earned during that time].

[any mental anguish] [loss of dignity] and [(describe other intangible injuries)] experienced in the past or to be experienced in the future. There is no exact standard for measuring such damages. The amount should be fair and just in the light of the evidence.

[any punitive damages warranted.] (insert applicable punitive damages instruction).

NOTES ON USE FOR 416.9

1. Lost wages and benefits. The court may issue an order “providing affirmative relief from the effects of the discriminatory practice, including back pay.” F.S. 760.11(5). Under Florida law, back pay is a legal remedy decided by the jury, and front pay is an equitable remedy that does not include a right to jury determination. O’Neal v. Fla. A&M Univ., 989 So.2d 6 (Fla. 1st DCA 2008) (decided under Florida’s Whistle-blower’s Act). Some federal courts submit front pay issues to the jury for an advisory verdict. See, e.g., Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1438 (11th Cir. 1991); Hudson v. Chertoff, 473 F. Supp. 2d 1279 (S.D. Fla. 2007); Hill v. Xerox Corp., 998 F. Supp. 1378, 1385 n 9 (N.D. Fla. 1998); Quitto v. Bay Colony Golf Club, Inc., 2007 WL 4098847, *1–2 (M.D. Fla. 2007). The Committee takes no position on instructing the jury to determine front pay or on the use of an advisory verdict.

2. Compensatory Damages. The court may award “compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and other intangible injuries….” F.S. 760.11(5). Examples of “other intangible injuries” for which damages have been awarded under the FCRA include “emotional distress,” Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348-49 (11th Cir. 2000); “emotional injury,” City of Hollywood v. Hogan, 986 So.2d 634, 649-50(4th DCA 2008); “humiliation and embarrassment,” Melluzzo v. Pub. Advocate, 2006 WL 5159197, at *3 (M.D. Fla. 2006); “pain and suffering” and “loss of capacity for enjoyment of life experienced in the past or to be experienced in the future,” Moses v. K-Mart Corp., 905 F.Supp. 1054, 1060 n.7 (S.D. Fla.1995), aff’d 119 F.3d 10 (S.D. Fla. 1997).

3. Punitive Damages. The court may award punitive damages not to exceed $100,416. F.S. 760.11(5). Pending further development of the law, the committee takes no position as to whether the Florida standard or the heightened federal standard for holding an employer vicariously liable for punitive damages for the conduct of its employee should apply. See Speedway SuperAmerica, LLC v. DuPont, 933 So.2d 75 (Fla. 5th DCA 2006) (certifying the question of whether the state or federal standard applies), review dismissed 955 So.2d 533 (Fla. 2007).

“Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999). However, “it is not clear what the standard is for punitive damages awarded under section 760.10,” DuPont, 933 So.2d at 89, and the committee takes no position as to the standard for determining whether punitive damages are warranted. The FCRA, unlike Title VII, “simply provides that punitive damages may be awarded,” without any express requirement as to what action is appropriate for punitive damage. Id. at 89-90.

Some federal courts have applied Title VII’s punitive damages standard to claims for punitive damages under the FCRA. See, e.g., Hipp v. Liberty Nat. Life Ins. Co., 65 F. Supp. 2d 1314 (11th Cir. 1999), aff’d in part, rev’d in part on other grounds 252 F.3d 1208 (11th Cir. 2001). “To recover punitive damages under Title VII, a plaintiff must prove that defendant has ‘engaged in discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303, 1319 (S.D. Fla. 2004) (quoting 42 U.S.C. § 1981a(b)(1)). “Malice or reckless indifference is shown when the employer knowingly violates federal law….” Id. at 1319-1320 (citing Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999)). “[A]n employer must at least discriminate in the face of a perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 535; Richardson, 334 F. Supp. 2d at 1320.

416.12 REDUCTION OF DAMAGES TO PRESENT VALUE

Any amount of damages that you allow for wages and benefits to be lost in the future should be reduced to its present money value and only the present money value of those future economic damages should be included in your verdict.

The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate (claimant) for these losses as they are actually experienced in future years.

NOTES ON USE FOR 416.12

1. Front pay is an equitable remedy that does not include a right to jury determination. If the judge presents the issue to a jury with the other damages in 416.9, then this instruction should be given.

2. Designing a standard instruction for reduction of damages to present value is complicated by the fact that there are several different methods used by economists and courts to arrive at a present value determination. Cf., e.g., Delta Air Lines, Inc. v. Ageloff, 552 So.2d 1089 (Fla. 1989); Bould v. Touchette, 349 So.2d 1181 (Fla. 1977) (even without evidence, juries may consider effects of inflation); Loftin v. Wilson, 67 So.2d 185 (Fla. 1953) (lost stream of income approach); Renuart Lumber Yards v. Levine, 49 So.2d 97 (Fla. 1950) (using approach similar to calculation of cost of annuity); Seaboard Coast Line R.R. Co. v. Garrison, 336 So.2d 423 (Fla. 2d DCA 1976) (discussing real interest rate discount method and inflation/market rate discount methods); see also Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983); Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir. 1982); Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967) (total offset method).

3. Until the Florida Supreme Court or the legislature adopts one approach to the exclusion of other methods of calculating present money value, the committee assumes that the present value of future economic damages is a finding to be made by the jury on the evidence; or, if the parties offer no evidence to control the finding, that the jury will properly resort to its own common knowledge and by argument. See Seaboard Coast Line R.R. Co. v. Burdi, 427 So.2d 1048 (Fla. 3d DCA 1983).

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