Jottings By An Employer's Lawyer

Monday, December 10, 2007

Two 5th Circuit Approved Jury Instructions in Discrimination Case

In the age of the vanishing jury trial it is rare to get decisions on the validity of jury charges, so it is always nice to have 5th Circuit endorsed language. In Price v. Rosiek Construction Co. (5th Cir. 12/10/07) [pdf] the Court upheld a jury determination of no discrimination in the face of a challenge to two instructions.

The first was on the effect of a determination by the TWC-CRD or EEOC (here the TWC -CRD had issued a cause finding). The lower court had instructed that:

[a]ny finding or determination of the EEOC that discrimination occurred or that it could not find sufficient evidence of discrimination “is not dispositive of whether discrimination occurred."

The court further instructed:

The findings or determinations of the EEOC are therefore not binding on the trier of fact. You may, but are not required, to accept the findings in the EEOC reports. The reports do not relieve you of your obligation to review all of the evidence in the case and to make your decisions based on the facts as you read them.

The trial court had also given this instruction that employers will find helpful:

Title VII does not shield against harsh treatment in the workplace. Nor does the statute require the employer to have good cause for its decisions. Title VII is not a vehicle for second-guessing business decisions. The employer may take adverse action against an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason.

Of course the Court was considering these instructions in light of a favorable jury verdict and under an abuse of discretion standard, but still they are now "5th Circuit" approved.

The Court also dealt with an issue currently pending before the Supreme Court -- whether so called "me too" evidence of discrimination should be allowed. And just as some of the U.S. Supreme Court justices apparently had concerns about allowing such evidence at oral argument, the 5th Circuit did as well.

It upheld the trial court's exclusion of evidence by a fellow employee of Price concerning discrimination against him. The Court was cautious, not wanting to get out too far ahead of what the Supreme Court might do, emphasizing that the other employee did not have any evidence about the decision maker in Price's case and in any event the testimony could have had only a slight effect.


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