U.S. DISTRICT COURT ~ORTHERN DISTRICT OF TEXAS
FILED

IN THE UNITED STATES DISTRICT FOR THE NORTHERN DISTRICT C
DALLAS DIVISION

I 0 200 ,

CLER)~a-S. DISTRICT CO URT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
VJ
SERVICE ELECTRONICS, INC.

Deputy
CIVIL ACTION NO.
304CV1729-P
COMPLAINT

Defendant.

COMPLAINT This is an action under Title I of the Americans with Disabilities Act of 1990 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Sharon S. Mejia, who was denied hire by Defendant, Service Electronics, Inc. The Equal Employment Opportunity Commission ("Commission") alleges that the Defendant violated the Americans with Disabilities Act by failing to hire her for a Material Handler/Data Entry position based on her disability or perceived disability.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference §§706(f)(1),(3) and 707(a) of of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e-5(f)(1),(3) and 2000e-6(a), and pursuant to §102 of the Civil Rights Act of 1991, 42 U.S.C.§1981A.

2. The employment policies and practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Northern District of Texas, Dallas Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by § 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference §§706(f)(1),(3) and 707(a) of Title VII, 42 U.S.C. §2000e-5(f)(1),(3) and 2000e-6(a). 4. At all relevant times, Defendant, Service Electronics, Inc., has continuously been and is now doing business in the State of Texas and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under § 101(5) of the ADA, 42 U.S.C.§ 12111(5), and § 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference §§ 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(g) and (h). 6. At all relevant times, Defendant has been a covered entity under §101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than 30 days prior to the institution of this lawsuit, Sharon Mejia filed a charge of discrimination with the Commission alleging violation of Title I of the ADA by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.

COMPLAINT

2

8. The Defendant, Service Electronics, Inc., has engaged in unlawful employment practices, in violation of § 102 of Title I of the ADA, 42 U.S.C. § 12112, by failing to hire

Sharon Mejia for the available position of Material Handler/Data Entry because of her disability, hearing impairment, or because Defendant regarded Ms. Mejia as disabled.
9. The effect of the practices complained of in paragraph 8, above, has been to deprive Sharon Mejia of equal employment opportunities and has otherwise adversely affected her status as an applicant.
10. The unlawful policies and practices complained of in paragraph 8, above, were

committed intentionally. 11. The unlawful policies and practices complained of in paragraph 8, above, were
committed with malice or with reckless indifference to the federally protected rights of Sharon

Mejia.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction ensuring compliance with the ADA, and enjoining Defendant, Service Electronics, Inc., its officers, successors, assigns, and all persons in active

concert or participation with it, from engaging in any employment practice which discriminates on the basis of disability or perceived disability.
B. Order the Defendant to institute and carry out policies, practices and programs

that provide equal employment opportunities for qualified individuals with disabilities and which eradicate the effects of the Defendant’s past and present unlawful practices.
C. Order the Defendant to make whole Sharon Mejia by providing appropriate back

COMPLAINT

pay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of the Defendant’s unlawful employment practices, including but not limited to rightful place instatement of Ms. Mejia and/or front pay.
D. Order the Defendant to make whole Sharon Mejia by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including but not limited to emotional pain, suffering, inconvenience, humiliation, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial.
E. Order the Defendant to pay Sharon Mejia punitive damages for its malicious conduct or reckless indifference described in paragraph 8, 10, and 11 above, in an amount to be determined at trial.
Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the Commission its costs in this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
COMPLAINT

COMPLAINT

Respectfully submitted, ERIC S. DREIBAND General Counsel GWENDOLYN Y. REAMS
Regional Attorney Oklahoma State Bar No. 011782
SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
Senior Trial Attorney Virginia State Bar No. 39886 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2746 Fax No. (214) 253-2749

 
 '"
ORIGINAL

IN THE UNITED STATES DISTRICT COU FOR THE NORTHERN DISTRICT OF TEX
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, VS.
SERVICE ELECTRONICS, INC., Defendant.

§ §

-

§

§

§

§ CIVIL ACTION NO. 3:04-CV-1729-P

§

§

§

§

§

ORDER DENYING PLAINTIFF'S MOTION TO QUASH SUBPOENA DIRECTED TO COMDATA AND LIMITING SCOPE OF REQUEST FOR
EMPLOYMENT-RELATED DOCUMENTS

On this day, the Court considered Plaintiff Equal Employment Opportunity

Commission's motion to quash Defendant Service Electronics, Inc.'s subpoena for employment-

related records regarding Sharon Mejia to a third party, ComData. Having reviewed the motion

and considered the arguments of counsel, the Court finds that the motion should be DENIED, but

that the scope of the information requested should be limited. It is, therefore,

ORDERED that the Plaintiffs motion to quash is DENIED. It is further

ORDERED that the information requested in the subpoena to ComData will be

limited to include any and all employment and personnel records reflecting Sharon Mejia's dates

of employment, job title(s), compensation, job performance (including but not limited to

performance evaluations, disciplinary actions, attendance issues), reason for separation, job

. qualifications, job responsibilities, and any workplace accommodations made for Ms. Mejia. It
II ~further

Order Denying Plaintiffs Motion to Ouash Subpoena Directed to ComData and Limiting Scope of Request for Employment-Related Documents
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Page 1

ORDERED that no documents produced by ComData in response to the subpoena

will be used except in the prosecution and defense of the case and those documents will not be

disclosed to third parties except on order of the Court. Each party is to bear its own costs associated with this motion.

SIGNED thi~ day of ~

,2004.

Order Denying Plaintifrs Motion to Ouash Subpoena Directed to ComData and Limiting Scope of Request for Employment-Related Documents
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AGREED TO AS TO FORM AND CONTENT:
FOR THE PLAINTIFF:
ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 140 470
Senior Trial Attorney Virginia State Bar No. 39886
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2746 Fax No. (214) 253-2749
FOR THE DEFENDANT:
"-P~~~/tf;
Paul E. Hash Texas Bar No. 09198020 Kristin L. Bauer Texas Bar No. 24006813
JACKSON LEWIS, LLP 3811 Turtle Creek Boulevard, Suite 500 Dallas, Texas 75219 Tel. No. (214) 520-2400 Fax No. (214) 520-2008

Order Denying Plaintiff's Motion to Ouash Subpoena Directed to ComData and Limiting Scope of Request for Employment-Related Documents
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 it'

U.S. DISTRICT COURT
IN THE UNITED STATES DISTRIC ~ERN DISTRICT OF TEXAS

FOR THE NORTHERN DISTRICT 0 TEXA' FILED

DALLAS DNISION

§ EQUALENWLOYMENTOPPOR~

FEB - 7 2006

COMMISSION, Plaintiff,

§
ORIG~NAL

CLERK, U.S. DISTRICT COURT
~------D~ep~uty-------

§

v.

§ CNIL ACTION NO. 3:04-CV-1729-P

§

§

SERVICE ELECTRONICS, INC.,

§

§

Defendant.

§

COURT'S CHARGE TO THE JURy MEMBERS OF THE JURy:
Now that you have heard all of the evidence, it becomes my duty to give you the instructions of the Court concerning the law applicable to this case.
It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of rule stated by me.
Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law other than that given in the instructions of the Court, just as it would also be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything other than the evidence in the case.
In deciding the facts of this case, you must not be swayed by bias or prejudice or favor as to any party. A corporation and all other persons are equal before the law and must be treated as COURT'S CHARGE TO THE JURy - Page 1

I,
equals in a court ofjustice. Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the Court in these instructions, and reach a just verdict regardless of the consequences.
This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. A governmental entity and a corporation are both entitled to the same fair trial at your hands as is a private individual. The law is no respecter of persons, and all persons, including governmental entities and corporations, stand equal before the law and are to be dealt with as equals in a court of justice.
When a corporate entity is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee acting in a supervising or managerial capacity of a corporate entity may bind that entity by his or her acts and declarations made while acting within the scope of his or her duties as an employee of that corporate entity. An "employee" is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result sought to be accomplished. A party is an "agent" of another party if the party acts with the other party's authority. Authority for another to act for a party must arise from the party's agreement that the other act on behalf and for the benefit of the party. If a party so authorizes another to perform an act, that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.
COURT'S CHARGE TO THE JURy - Page 2

/,
".
As stated earlier, it is your duty to determine the facts, and in so doing you must consider only the evidence I have admitted in the case. The term "evidence" includes the sworn testimony of the witnesses, the exhibits admitted in the record, and stipulated facts. Stipulated facts must be accepted as proven facts. Any evidence as to which an objection was sustained by the Court and any evidence ordered stricken by the Court, must be entirely disregarded.
Remember that any statements, objections or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing, to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.
Generally speaking, there are two types of evidence which a jury may consider in properly fmding the truth as to the facts in this case. One is "direct" evidence - such as testimony of an eyewitness. The other is "indirect" or "circumstantial" evidence - the proof of a chain of circumstances which points to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury fmd the facts from a preponderance of all the evidence, both direct and circumstantial.
So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case.
COURT'S CHARGE TO THE JURy - Page 3

Now, I have said that you must consider all ofthe evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or "believability" of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness, you should consider his or her relationship to Plaintiff or to Defendant; his or her interest, if any, in the outcome of the case; his or her manner of testifying; his or her opportunity to observe or acquire knowledge concerning the facts about which he or she testified; his or her candor, fairness and intelligence; and the extent to which he or she has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.
Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or nonexistence of any fact. You may find that the testimony of a smaller number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.
During the trial of this case, certain testimony has been read to you by way of depositions, consisting of sworn answers to questions asked of the witnesses in advance of trial. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by the jury in the same way, insofar as possible, as if the witness had been present and had given from the witness stand the same testimony as given in the deposition.
I will instruct you as to which party has the burden of proof on each essential element of its claim in the case. The party having the burden of proof on each issue of fact must prove that fact by a "preponderance of the evidence." A preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force
COURT'S CHARGE TO THE JURy - Page 4

and produces in your minds a belief that what is sought to be proved is more likely true than not true. In other words, to establish a claim by a preponderance of the evidence merely means to prove that the claim is more likely so than not so.
In determining whether any fact in issue has been proved by a preponderance of the evidence, you the jury may 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 introduced them. If the proof should fail to establish any essential element of Plaintiffs claim by a preponderance of the evidence, the jury should fmd for Defendant as to that claim.
A witness may be "impeached" or discredited by contradictory evidence, by a showing that he or she testified falsely concerning a material matter, or by evidence that at some other time he or she said or did something, or failed to say or do something, which is inconsistent with the witness' present testimony.
If you believe that any witness has been so impeached, it is in your exclusive province to give the testimony of that witness such credibility or weight, if any, as you think it deserves.
In answering the questions which I will submit to you, answer "yes" or "no" unless otherwise instructed. A "yes" answer must be based on a preponderance ofthe evidence. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no."
After I have completed reading these instructions and reviewing the verdict form and jury questions with you, counsel will have the opportunity to make their closing arguments.
Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that all members of the jury agree to it. You therefore may not enter into an agreement to be bound by a majority or any vote other than a unanimous one.
COURT'S CHARGE TO THE JURY - Page 5

Remember at all times that you are not partisans. Rather, you are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Upon retiring to the jury room, you should ftrst select one juror to act as your presiding officer who will preside over your deliberations and will be your spokesperson here in Court. A verdict form has been prepared for your convenience. Your presiding officer will sign in the space provided below after you have reached your verdict.
If, during your deliberations, you wish to communicate with the Court, you should do so only in writing by a note handed to the Deputy Marshal and signed by the presiding officer. During your deliberations, you will set your own work schedule, deciding for yourselves when and how frequently you wish to recess and for how long.
After you have reached your verdict, you will return these instructions together with your written answers to the questions that I will submit to you. Do not reveal your answers until such time as you are discharged, unless otherwise directed by me.
Date:· February~, 2006.
UNITED STATES DISTRICT JUDGE
COURT'S CHARGE TO THE JURy - Page 6

STIPULATIONS OF FACT The parties have stipulated, or agreed, that the following are facts:
1. Defendant is an employer, as that term is defined by the ADA. 2. Defendant has more than 200 employees. 3. Sharon Mejia has a hearing impairment: without her hearing aids, she has 96
percent hearing loss in her left ear; and 86 percent loss in her right ear. 4. Even with her hearing aids, Sharon Mejia's hearing loss is characterized as
"moderately severe" to "severe." 5. Sharon Mejia is disabled, as defined by the ADA based on her hearing
impairment. 6. Sharon Mejia applied for a position as a material handler/data entry on or about
September l3, 2002. 7. Sharon Mejia came to Service Electronics to interview for the material
handler/data entry position through a temporary services company, Sterling Personnel Services, Inc. 8. Kristi Phillips is an employee of Sterling Personnel Services (not Service Electronics) who helped coordinate Sharon Mejia's interview with Service Electronics. 9. Service Electronics made the fmal hiring decisions regarding temporary applicants - not Sterling Personnel Services. 10. The position for which Sharon Mejia applied was a temporary position with no set term of employment.
COURT'S CHARGE TO THE JURy - Page 7

"
11. The position for which Sharon Mejia applied paid $9.50 per hour. 12. Sharon Mejia was not selected for the material handler/data entry position. 13. Angelita Anguiano and Guadalupe Santoya were selected for the material
handler/data entry position. 14. Sharon Mejia obtained a full-time data entry position with Antech Diagnostics on
or about January 29,2003. 15. Sharon Mejia initially earned approximately $9.36 per hour with Antech
Diagnostics; she currently earns approximately $9.73 per hour. You must now treat these as facts as having been proved for the purpose of this case.
AMERICANS WITH DISABILITIES ACT OF 1990 The Americans with Disabilities Act of 1990, often called "the ADA," makes it unlawful for any employer to discriminate against a qualified individual with a disability because of his or her disability with respect to job application procedures, hiring, employee compensation or any other term, condition and privilege of employment. The law is intended to eliminate discrimination in the workplace. The ADA was designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to individuals without disabilities. The Equal Employment Opportunity Commission, or EEOC, is an agency of the United States charged with processing and investigating complaints regarding violations of the Americans with Disabilities Act.
COURT'S CHARGE TO THE JURy - Page 8

"
It is unlawful to fail or to refuse to hire a qualified applicant for a position because of that applicant's disability. To succeed in this case, the EEOC must prove the following three items by a preponderance of the evidence:
(1) Sharon Mejia has a disability; (2) Sharon Mejia was qualified for the position of Material HandlerlData Entry at the
Defendant's worksite; (3) Defendant failed or refused to hire Sharon Mejia for the position of Material
HandlerlData Entry because of her disability. Defendant has conceded that elements (1) and (2) are met, in that Sharon Mejia has a disability and was qualified for the position of Material HandlerlData Entry. Plaintiff must prove that Sharon's Mejia's disability was a motivating factor that prompted Service Electronics not to hire her. It is not necessary for the Plaintiff to prove that disability was the sole or exclusive reason for Service Electronics' decision. It is sufficient if the Plaintiff proves that the alleged disability was a determining factor that made a difference in the employer's decision. You should be mindful, however, that the law applicable to this case requires only that an employer not discriminate against an employee because ofthe employee's disability. So far as you are concerned in this case, an employer may refuse to hire or otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or pennit any sympathy for the employee to lead you to substitute your own judgment for that of Service Electronics even though you personally may not approve of the action taken and would have acted differently under the circumstances.
COURT'S CHARGE TO THE JURy - Page 9

PROOF OF DISABILITY DISCRIMINATION In proving that Sharon Mejia was discriminated against based on her disability, the EEOC does not have to prove that Ms. Mejia's disability was the only reason Defendant failed or refused to hire Ms. Mejia. The EEOC need only prove that Ms. Mejia's disability was a "motivating factor" in the Defendant's decision. The term "motivating factor" means a consideration that moved the Defendant toward its decision. In showing that Ms. Mejia's disability was a motivating factor, you need not determine that Ms. Mejia's disability was the sole motivation or even the primary motivation for the Defendant's decisions. The EEOC need only prove that Ms. Mejia's disability was a motivating factor in the Defendant's decision even though other factors may also have motivated the Defendant. In determining whether discrimination on the basis of Ms. Mejia's disability was the true reason for the Defendant's decision not to hire her, you should consider whether the reasons offered by the Defendant for this decision are credible. If you find that the reason presented by the Defendant is not worthy of belief, then you may, but are not required to, conclude that the· stated reason is a "pretext" or a cover-up for disability discrimination. Pretext means that the reason offered by the company is actually a cover-up or subterfuge for discrimination. Pretext can be shown by introducing evidence that contradicts or disproves the Defendant's stated reason. In making such a finding, you may consider to what extent, if any, the Defendant's reason has remained consistent or has changed during the course of the EEOC investigation and judicial process.
COURT'S CHARGE TO THE JURy - Page 10

You may conclude that Ms. Mejia's disability was the true reason for Defendant's failure to hire her. This conclusion may be based solely upon your determination that the Defendant's explanations are not believable, or upon other factors that convince you that, more likely than not, discrimination based on Ms. Mejia's disability was the true reason for the failure to hire. If you find that Ms. Mejia's disability was the true reason for the Defendant's failure to hire her, then you must find in favor of the EEOC.
As with all findings and conclusions you reach, your ultimate findings of whether the Defendant discriminated against Ms. Mejia because of her disability must be based upon the evidence you have heard and seen in this trial. You may not speculate as to other reasons the Defendant may have had for its decision which are not supported by evidence.
QUESTION NO.1 Do you fmd that the EEOC has proven, by a preponderance of the evidence, that Sharon Mejia's disability was a motivating factor in Service Electronics' decision to not hire her for a temporary position? Answer "Yes" or ''No.''
ANSWER: ->~hQ"",-------
If you answer "Yes," then proceed to Question No.2. If you answer ''No,'' do not proceed to any additional questions.
COURT'S CHARGE TO THE JURy - Page 11

QUESTION NO.2 Ifyou have found that Sharon Mejia's disability was a motivating factor in its decision to not hire her for a temporary position, do you nevertheless find that Service Electronics has proven, by a preponderance of the evidence, that it would not have hired her anyway for reasons unrelated to her disability? Answer "Yes" or "No." ANSWER: ______________________ Ifyou answer "No," then proceed to Question No.3. If you answer "Yes," do not proceed to any additional questions.
BACKPAY DAMAGES If you find by a preponderance of the evidence that Defendant refused to hire Sharon Mejia because ofher disability, in violation ofthe Americans with Disabilities Act, then you must determine what sum of money she is entitled to receive as backpay. You should not interpret the fact that I have given instructions about the Plaintiff's damages as an indication in any way that I believe that the Plaintiff should, or should not, win this case. It is your task first to decide whether the Defendant is liable. I am instructing you on damages only so that you will have guidance in the event you decide that the Defendant is liable and that the Plaintiff is entitled to recover money from the Defendant. Backpay damages are calculated as the difference between what Sharon Mejia would have earned had she been hired by Defendant and what she has earned at other jobs in the interim. Interest, overtime, salary increases and fringe benefits such as vacation and sick pay are
COURT'S CHARGE TO THE JURy - Page 12

among the items which should be included in backpay. Basically, you have the ability to make Sharon Mejia whole for any wages or other benefits that she has lost as a result of the denied hire.
You are not required to calculate backpay with mathematic certainty. You may make an estimate of the amount of money that will constitute just and reasonable compensation based on the facts that are before you.
MITIGATION OF DAMAGES A claimant who has suffered discrimination is required to use reasonable efforts to mitigate her damages. The Defendant has the burden of proof in showing that Sharon Mejia did not use reasonable efforts in seeking alternative employment to mitigate her backpay damages. The reasonableness of Ms. Mejia's diligence should be evaluated in light of her individual characteristics and the specific job market. The question of mitigation is one of fact and relies on such factors as reasonableness, similarity and diligence. Whether an aggrieved individual has mitigated her damages requires a factual assessment of the reasonableness of her conduct. A diligent individual attempting to mitigate damages would at least check the want ads, register with employment agencies, and discuss job opportunities with friends and acquaintances. If you find Defendant is liable and that Sharon Mejia has suffered damages, she may not recover for backpay damages which she could have avoided through reasonable effort. If you find by a preponderance of the evidence that Sharon Mejia unreasonably failed to take advantage
COURT'S CHARGE TO THE JURY - Page 13

of an opportunity to lessen her backpay damages, you should deny her recovery for those damages which she would have avoided had she taken advantage of the opportunity.
You are the sole judge of whether Sharon Mejia acted reasonably in avoiding or minimizing her damages. An injured party may not sit idly by when presented with an opportunity to reduce her backpay damages. However, she is not required to exercise unreasonable efforts or to incur unreasonable expenses in mitigating the damages.
The Defendant has the burden of proving the damages which Sharon Mejia could have mitigated. In deciding whether to reduce Sharon Mejia's backpay damages because of her failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether the Defendant has satisfied its burden of proving that Sharon Mejia's conduct was not reasonable.
The Defendant must prove that substantially equivalent employment was available in the specific line of work in which Sharon Mejia was engaged and that Sharon Mejia refused to accept this employment. Substantially equivalent employment is employment that affords virtually identical promotion opportunities, compensation, job responsibility, working conditions and status as the position that Sharon Mejia applied for with Defendant. Defendant must prove that Sharon Mejia's conduct was so inadequate as to constitute an unreasonable failure to seek employment. The range of reasonable conduct in a job search is broad and Sharon Mejia must be given the benefit of every doubt.
The law does not require that Sharon Mejia be held to the highest standard of diligence in seeking employment. The law does not require that Sharon Mejia actually be successful at finding another job. Furthermore, the law does not require that Sharon Mejia take lesser or
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dissimilar work. Sharon Mejia was not required to take a demotion or demeaning position. She was also not required to accept employment that was located an unreasonable distance from her home.
QUESTION NO.3 What amount of back pay damages, if any, is Sharon Mejia entitled to receive? Answer in dollars and cents, if any.
$---------------
COMPENSATORY DAMAGES If you fmd that the Defendant did not hire Sharon Mejia because of her disability then you must determine an amount that is fair compensation for her damages. These damages are called compensatory damages. The purpose of compensatory damages is to make Sharon Mejia whole that is, to compensate her for the damages which she has suffered and/or will, in all reasonable probability, suffer in the future, as a consequence of Defendant's illegal conduct. The EEOC has claimed that as a result of Defendant's unlawful treatment of Sharon Mejia, she has suffered from emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other mental and emotional pain. Emotional harm may manifest itself, for example, as sleeplessness, anxiety, stress, depression, humiliation, emotional distress, or loss of self esteem. The EEOC is not seeking damages for psychic injury or psychiatric disorder. Thus,
COURT'S CHARGE TO THE JURy - Page 15

.",
the use of corroborating medical evidence testimony at trial is not necessary in order for the Plaintiff to prove this claim for non-pecuniary compensatory damages.
Ifyou find that the EEOC has proven by a preponderance of the evidence that Sharon Mejia has suffered from mental or emotional distress as a result of the discrimination, then you must determine an amount that is fair compensation for her damages. No evidence of monetary value of such intangible things, such as emotional pain, suffering, inconvenience, mental anguish, loss ofenjoyment of life and other mental and emotional pain must be introduced into evidence. No exact standard exists for fixing the compensation to be awarded for these elements of damages. The damages that you award must be fair compensation -- no more and no less. The award you make should be fair in light of the evidence.
Computing this award may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require Sharon Mejia to prove the amount of her losses with mathematical precision, but only with as much accuracy as the circumstances permit.
QUESTION NO.4 What amount of compensatory damages, if any, is Sharon Mejia entitled to receive? Answer in dollars and cents, if any. (1) Past Emotional Harm.
ANSWER: $_ _ _ _ _ __ (2) Future Emotional Harm.
ANSWER: $_______________
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. , "

..
"

(3) Past Mental Anguish. ANSWER: $_ _ _ _ _ __
(4) Future Mental Anguish. ANSWER: $_ _ _ _ _ _ __

PUNITIVE DAMAGES If you find for Plaintiff, you may, but are not required to, assess punitive damages against Service.Electronics. The purposes ofpunitive damages are to punish a defendant for its conduct and to serve as an example or warning to the defendant and others not to engage in similar conduct in the future. You may award these damages ifyou determine by a preponderance ofthe evidence that one or more ofthe Defendant's acts was done with malice or with reckless indifference to the federally protected rights of Sharon Mejia. The terms "malice" or "reckless indifference" pertain to the Defendant's knowledge that it may be acting in violation of federal law. Malicious conduct is the intentional doing ofa wrongful act with knowledge that the act was wrongful. Reckless indifference is when an act is done with a lack of concern for the consequences of the action. In determining whether the Defendant acted with malice or reckless indifference toward Sharon Mejia by subjecting her to discrimination, you need only conclude that Defendant had knowledge that it may be acting in violation of federal law, or that the Defendant was aware of the risk that its actions violated federal law. Further, you do not need to conclude that Defendant's conduct was egregious or outrageous discrimination.

COURT'S CHARGE TO THE JURY - Page 17

•

Ii,' ..

Plaintiffmust prove bya preponderance ofthe evidence that Service Electronics' managerial
employees acted within the scope oftheir employment and in reckless disregard of Sharon Mejia's
right not to be discriminated against. In determining whether Dwayne Gragg was a managerial
employee ofService Electronics, you should consider the kind ofauthority Service Electronics gave
him, the amount of discretion he had in carrying out his job duties and the manner in which he
carried them out. You should not, however, award Plaintiffpunitive damages ifService Electronics
proves that it made a good faith effort to prevent discrimination in the workplace, including but not
limited to implementing an anti-discrimination policy and educating its employees on the ADA's
prohibitions.
Ifyou find that punitive damages are appropriate, then you must use sound reason in setting
the amount ofthose damages. Punitive damages, if any, should be in an amount sufficient to fulfill
the purposes that I have described to you, but should not reflect bias, prejudice, or sympathy toward
either party. In determining the amount ofany punitive damages, you should consider the following
factors:
- the reprehensibility of Service Electronics' conduct; - the impact of Service Electronics' conduct on Plaintiff; - the relationship between Plaintiff and Service Electronics; - the likelihood that Service Electronics would repeat the conduct if an award of punitive damages is not made; - Service Electronics' financial condition; - the relationship of any award of punitive damages to the amount of actual harm the Plaintiff suffered.

COURT'S CHARGE TO THE JURy - Page 18

QUESTION NO.5 Do you fmd that the EEOC has proven, by a preponderance ofthe evidence, that Defendant acted with malice or with reckless indifference to the federally protected rights of Sharon Mejia? Answer "Yes" or "No." ANSWER: ______________________
QUESTION NO.6 If your answer to Question No.5 is "Yes," then what amount of punitive damages, if any, should be assessed against the Defendant for its conduct? Answer in dollars and cents, if any.
$---------------
COURT'S CHARGE TO THE JURy - Page 19

CERTIFICATE

We, the jury, have answered the above and foregoing questions as herein indicated, and herewith

return same into court as our verdict.

DATE: /1- 'Y-OG

QgJlto. ~O~ BY: PRE IDrnGOFFIRoFTiURY

COURT'S CHARGE TO THE JURy - Page 20

 
 U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

FEB 82~

EQUAL EMPLOYMENT OPPORTUNITY, §

COMMISSION,

§

§

Plaintiff,

§

§

~

§

§

SERVICE ELECTRONICS, INC.,

§

§

Defendant.

§

CIVIL ACTION NO. 3:04-CV-1729-P

FINAL JUDGMENT

Pursuant to the jury verdict of February 7, 2006, plaintifftakes nothing from her

employment discrimination claims. Accordingly, costs incurred by defendant shall be assessed

against plaintiff.

IT IS SO ORDERED.
Signed this ~ day of February 2006.

UNITED STATES DISTRICT mDGE

CASE·CLO ED

 
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CLOSED, ECF, JURY, SANDERSON
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:04-cv-01729

Equal Employment Opportunity Commission v. Service Electronics, Inc Assigned to: Judge Jorge A Solis Cause: 28:1331 Fed. Question: Employment Discrimination

Date Filed: 08/10/2004 Date Terminated: 02/08/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Robert A Canino, Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2750 Email: robert.canino@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronetta J Francis Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2746 Fax: 214/253-2749 FAX Email: Ronetta.Francis@eeoc.gov ATTORNEY TO BE NOTICED

Suzanne M Anderson Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2740 Fax: 214/253-2749 FAX Email: suzanne.anderson@eeoc.gov ATTORNEY TO BE NOTICED

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V. Defendant Service Electronics, Inc

represented by Paul Ellis Hash Jackson Lewis 3811 Turtle Creek Blvd Suite 500 Dallas, TX 75219 214/520-2400 Fax: 214/520-2008 FAX Email: hashp@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristin L Bauer Jackson Lewis 3811 Turtle Creek Blvd Suite 500 Dallas, TX 75219 214/520-2400 Email: bauerk@jacksonlewis.com ATTORNEY TO BE NOTICED

Date Filed 08/10/2004 08/10/2004 08/10/2004 08/10/2004 09/24/2004 10/18/2004 10/18/2004 10/18/2004 10/21/2004

#

Docket Text

1 COMPLAINT against Service Electronics, Inc , filed by Equal Employment Opportunity Commission.(lmr, ) (Entered: 08/12/2004)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission.(filed with complaint) (lmr, ) (Entered: 08/12/2004)
2 CERTIFICATE OF INTERESTED PERSONS by Equal Employment Opportunity Commission. (lmr, ) (Entered: 08/12/2004)
***Magistrate Judge William F. Sanderson chosen by random selection to handle matters that may be referred in this case. (lmr, ) (Entered: 08/12/2004)
3 WAIVER OF SERVICE Returned Executed as to Service Electronics, Inc. Waiver sent on 8/10/2004, answer due 10/12/2004. (lmr, ) (Entered: 09/24/2004)
4 ANSWER to Complaint by Service Electronics, Inc.(lmr, ) (Entered: 10/19/2004)
5 CERTIFICATE OF INTERESTED PERSONS by Service Electronics, Inc. (lmr, ) (Entered: 10/19/2004)
6 CORPORATE DISCLOSURE STATEMENT by Service Electronics, Inc. (lmr, ) (Entered: 10/19/2004)
7 Order for Scheduling Order Proposal: Proposed Scheduling Order due by 11/23/2004. (Signed by Judge Jorge A Solis on Oct 21, 2004) (jyg, ) (Entered: 10/22/2004)

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11/23/2004 12/03/2004 12/07/2004
12/07/2004
12/08/2004 12/15/2004 12/28/2004
01/07/2005 01/12/2005 08/30/2005 09/14/2005 09/14/2005 11/28/2005 01/17/2006 01/20/2006

8 Joint Proposal for contents of scheduling and discovery order by Equal Employment Opportunity Commission, Service Electronics, Inc. (svc, ) (Entered: 11/29/2004)
9 MOTION for Expedited Review and MOTION to Quash by Equal Employment Opportunity Commission with Incorporated Brief. (jyg, ) (Entered: 12/06/2004)
10 SCHEDULING ORDER: Amended Pleadings due by 3/1/2005. Discovery due by 8/31/2005. Pretrial Conference set for 1/20/2006 10:30 AM before Judge Jorge A Solis. Joinder of Parties due by 2/1/2005. Jury Trial set for 2/6/2006 09:00 AM before Judge Jorge A Solis. Proposed Pretrial Order due by 1/13/2006. Pretrial Materials due by 1/30/2006.(see order for specifics) (Signed by Judge Jorge A Solis on 12/07/04) (lmr, ) (Entered: 12/08/2004)
11 ORDER OF REFERENCE..Referring 9 MOTION to Quash and Motion for Expedited Review and filed by Equal Employment Opportunity Commissionto Judge William F. Sanderson for hearing, if necessary and determination. (Signed by Judge Jorge A Solis on 12/07/04) (lmr, ) (Entered: 12/08/2004)
12 Minute Entry for proceedings held before Judge Wm F Sanderson Jr: Telephone Conference. Re:Motion to Quash. (lmr, ) (Entered: 12/10/2004)
13 CERTIFICATE by Service Electronics, Inc. (lmr, ) (Entered: 12/22/2004)
14 ORDER denying 9 Motion to Quash. It is Ordered that no documents produced by ComData in response to the subpoena will be used except in the prosecution and defense of the case and those documents will not be disclosed to third parties except on order of the Court. Each party is to bear its own costs associated with this motion.(see order for specifics) (Signed by Judge Wm F Sanderson Jr on 12/28/04) (lmr, ) (Entered: 12/28/2004)
15 Certificate. (lmr, ) (Entered: 01/10/2005)
16 Certificate filed by Service Electronics, Inc. (lmr, ) (Entered: 01/13/2005)
17 Certificate of Deposition Upon Written Questions from: Dr. Jesus Ramirez. (lmr, ) (Entered: 09/01/2005)
18 Joint Settlement Status Report by Equal Employment Opportunity Commission, Service Electronics, Inc. (lmr, ) (Entered: 09/16/2005)
19 Certificate of Deposition Upon Written Questions from: Parkland Memorial Hospital.(lmr, ) (Entered: 09/16/2005)
20 STANDING ORDER DESIGNATING CASE FOR ENROLLMENT IN THE ELECTRONIC CASE FILES "ECF" SYSTEM.- see order for specifics. (Signed by Judge Jorge A Solis on 11/28/05) (lmr, ) (Entered: 11/28/2005)
21 Proposed Pretrial Order by Equal Employment Opportunity Commission, Service Electronics, Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Hash, Paul) (Entered: 01/17/2006)
22 Minute Entry for proceedings held before Judge Jorge A Solis : Pretrial Conference held on 01/20/06. (Court Reporter Shawn McRoberts.) (lmr, ) (Entered: 01/20/2006)

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01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/30/2006 01/30/2006
01/30/2006
01/30/2006 01/30/2006
01/30/2006
01/30/2006 01/30/2006 01/30/2006 01/30/2006
01/30/2006

23 Designation of Deposition by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 01/25/2006)
24 Exhibit List by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 01/25/2006)
25 Witness List by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 01/25/2006)
26 Designation of Deposition by Service Electronics, Inc. (Hash, Paul) (Entered: 01/25/2006)
27 Designation of Deposition by Service Electronics, Inc. (Hash, Paul) (Entered: 01/25/2006)
28 Exhibit List by Service Electronics, Inc. (Hash, Paul) (Entered: 01/25/2006)
29 Witness List by Service Electronics, Inc. (Hash, Paul) (Entered: 01/25/2006)
30 MOTION to Strike Defendant's Witnesses by Equal Employment Opportunity Commission (Francis, Ronetta) (Entered: 01/30/2006)
31 ***REDOCKETED AS DOCUMENT NO. 42***Exhibit List Objections by Equal Employment Opportunity Commission. (Francis, Ronetta) Modified on 1/31/2006 (lmr, ). (Entered: 01/30/2006)
32 MOTION in Limine by Equal Employment Opportunity Commission (Attachments: # 1 Text of Proposed Order)(Francis, Ronetta) (Entered: 01/30/2006)
33 Proposed Voir Dire by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 01/30/2006)
34 ADDITIONAL ATTACHMENTS to 30 MOTION to Strike Defendant's Witnesses by Plaintiff Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 01/30/2006)
35 ***REDOCKETED AS DOCUMENT NO. 43*** MOTION Objections to Defendant's Proposed Jury Instructions by Equal Employment Opportunity Commission (Francis, Ronetta) Modified on 1/31/2006 (lmr, ). (Entered: 01/30/2006)
36 MOTION in Limine by Service Electronics, Inc (Hash, Paul) (Entered: 01/30/2006)
37 OBJECTION to Plaintiff's Jury Charge filed by Service Electronics, Inc. (Hash, Paul) (Entered: 01/30/2006)
38 Proposed Voir Dire by Service Electronics, Inc. (Hash, Paul) (Entered: 01/30/2006)
39 OBJECTION to Plaintiff's Exhibits filed by Service Electronics, Inc. (Attachments: # 1 Exhibit A-C# 2 Exhibit D-I# 3 Exhibit J-M)(Hash, Paul) (Entered: 01/30/2006)
40 OBJECTION to Plaintiff's Designation of Dr. Johnson filed by Service Electronics, Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B-D)(Hash, Paul)

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01/30/2006
01/30/2006
01/30/2006 01/30/2006
01/30/2006 02/06/2006
02/06/2006 02/07/2006
02/07/2006 02/07/2006 02/07/2006 02/07/2006 02/07/2006 02/08/2006
02/17/2006

(Entered: 01/30/2006)
41 OBJECTION to Plaintiff's Designation of Barbara Fuller filed by Service Electronics, Inc. (Attachments: # 1 Exhibit A-C)(Hash, Paul) (Entered: 01/30/2006)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding Exhibit List31..Redocket due to incorrect event selected. (lmr, ) (Entered: 01/31/2006)
42 OBJECTION to Defendant's 28 Exhibit List filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/31/2006)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding MOTION Objections to Defendant's Proposed Jury Instructions35..Redocket due to incorrect event. (lmr, ) (Entered: 01/31/2006)
43 OBJECTION to Defendant's Proposed Jury Instruction and Questions filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/31/2006)
44 Minute Entry for proceedings held before Judge Jorge A Solis : Day 1 of Jury Trial begun on 2/6/2006. (Court Reporter Shawn McRoberts.) (lmr, ) (Entered: 02/07/2006)
45 Jury Roll. (lmr, ) (Entered: 02/07/2006)
46 Minute Entry for proceedings held before Judge Jorge A Solis : Day 2 of Jury Trial completed on 2/7/2006. (Court Reporter Shawn McRoberts.) (lmr, ) (Entered: 02/09/2006)
47 COURT'S CHARGE TO THE JURY/JURY VERDICT. (lmr, ) (Entered: 02/09/2006)
48 Jury Notes. (lmr, ) (Entered: 02/09/2006)
49 Receipt for Exhibits to attorney for Equal Employment Opportunity Commission. (lmr, ) (Entered: 02/09/2006)
50 Receipt for Exhibits to attorney for Service Electronics, Inc. (lmr, ) (Entered: 02/09/2006)
51 Certification of Trial Exhibits for Jury Deliberations by Equal Employment Opportunity Commission, Service Electronics, Inc. (lmr, ) (Entered: 02/09/2006)
52 FINAL JUDGMENT...Pursuant to the jury verdict of February 7, 2006, plaintiff takes nothing from her employment discrimination claims. Accordingly, costs incurred by defendant shall be assessed against plaintiff. (Signed by Judge Jorge A Solis on 02/08/06) (lmr, ) (Entered: 02/09/2006)
53 Costs Taxed in amount of $ 3664.00 against Equal Employment Opportunity Commission. (lmr, ) (Entered: 02/17/2006)

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