UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JEAN ROBERT CADET,

Plaintiff,

v.

MADEIRA CITY SCHOOLS, et al.

Defendants.

:

:

:

:

:

:

CASE NO. C-1-01-131

(HOGAN, M. J.)

PLAINTIFF’S PROPOSED JURY

INSTRUCTIONS

Pursuant to Rules 49 and 51 of Federal Rules of Civil Procedure, Plaintiff Jean-Robert Cadet

submit their proposed jury instructions. Plaintiff reserves the right to submit additional proposed

jury instructions as warranted by the evidence, permitted by the Court and these rules of Civil

Procedure.

Respectfully submitted,

s/W. Kelly Lundrigan 

W. Kelly Lundrigan (0059211)

Rhonda S. Frey (0067343)

MANLEY BURKE

A LEGAL PROFESSIONAL ASSOCIATION

225 West Court Street

Cincinnati, Ohio 45202-1098

Telephone: (513) 721-5525

Facsimile: (513) 721-4268

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 1 of 34
-2-

PROVINCES OF THE COURT AND JURY

MEMBERS OF THE JURY:

Now that you have heard the evidence, it becomes my duty to instruct you as to the law

applicable to this case.

It is your duty as jurors to follow the law as stated in these instructions and to apply these

rules of law to the facts as you find them from the evidence in the case.

The following instructions will be provided to you in writing for your use during your

deliberations. Therefore, you need not try to memorize these instructions or be concerned about

taking notes.

You are not to single out one instruction alone as stating the law, but must consider the

instructions as a whole.

Nor are you to be concerned with the wisdom of any rule of law stated by the Court.

Regardless of any opinion you may have as to what the law ought to be, it would be a violation of

your sworn duty to base a verdict upon any other view of the law than that given in these

instructions; just as it would be a violation of your sworn duty, as judges of the facts, to base a

verdict upon anything but the evidence in the case.

Nothing I say in these instructions is to be taken as an indication that I have any opinion

about the facts of the case, or what that opinion is. It is not my function to determine the facts, but

yours.

Justice through trial by jury must always depend upon the willingness of each individual

juror to seek the truth from the same evidence presented to all the jurors; and to arrive at a verdict

by applying the same rules of law as given in the Court’s instructions.

Counsel may properly refer to the rules of law in their arguments. If, however, any

difference appears to you between the law as stated by counsel and the law as stated by the Court

in these instructions, you are to be governed by these instructions.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 2 of 34
-3-

ALL PERSONS EQUAL BEFORE THE LAW

This case should be considered and decided by you as an action between persons of equal

standing in the community, or equal worth and holding the same or similar stations in life. Both

Plaintiff and Defendant are entitled to the same fair trial at your hands. All persons stand equal

before the law and are to be dealt with as equals in a court of justice.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 3 of 34
-4-

COURT'S QUESTIONS TO WITNESSES

During the course of trial, I occasionally ask questions of a witness in order to clarify an

answer that I can see the jury did not understand. The Court is not an advocate for either side and

doesn’t want to be seen as taking sides. For that reason, this Court is reluctant to participate in the

questioning of witnesses, which is the function of the lawyers.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 4 of 34
-5-

OBJECTION BY COUNSEL

It is the duty of attorneys on each side of a case to object when the other side offers

testimony or other evidence which counsel believes is not properly admissible. No juror should ever

draw an unfavorable inference against an attorney who objects.

When the Court has sustained an objection to a question, you must disregard the question,

and may not speculate as to what the answer of the witness might have been.

Allowing testimony or other evidence to be introduced over the objection of counsel does

not indicate any opinion by the Court as to the weight or effect of such evidence. That is up to you

to determine.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 5 of 34
-6-

EVIDENCE

Unless you are otherwise instructed, the evidence in the case always consists of the sworn

testimony of the witnesses, regardless of who may have called them; all exhibits received in

evidence, regardless of who may have produced them; and all facts which may have been admitted

or stipulated.

Any evidence to which an objection was sustained by the Court, and any evidence ordered

stricken by the Court, must be entirely disregarded. Where I instructed you that some item of

evidence was received for a limited purpose only, you must follow that instruction.

Anything you may have seen or heard outside the courtroom is not evidence, and must be

entirely disregarded.

Statements, questions, and arguments of counsel are not evidence.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 6 of 34
-7-

DIRECT AND CIRCUMSTANTIAL EVIDENCE

There are, generally speaking, two types of evidence from which a jury may properly find

the truth as to the facts of a case. One is direct evidence - such as the testimony of an eyewitness.

When a witness testifies about what is known to the witness as personal knowledge by virtue of his

or her own senses - what he or she observes and hears - that is called direct evidence. 

The second type of evidence is indirect or circumstantial evidence - the proof of a chain of

circumstances pointing to the existence or non-existence of certain facts. Circumstantial evidence

is of the same value as direct evidence. Circumstantial evidence is evidence which tends to prove

or disprove a disputed fact by proof of other facts. You infer based on reason and common sense

from an established fact the existence or nonexistence of some other fact. To infer, or to make an

inference, is to reach a reasonable conclusion of fact which you may, but are not required to, make

from other facts which you find have been established by direct evidence. Whether an inference is

made rests entirely with you. You may infer facts only from other facts that have been proved by

the greater weight of evidence, but you may not infer facts from a speculative or remote basis that

has not been established by the greater weight of the evidence. 

As a general rule, the law makes no distinction between direct and circumstantial evidence,

but simply requires that the jury find the facts in accordance with all the evidence in the case, both

direct and circumstantial.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 7 of 34
-8-

EVALUATION OF EVIDENCE

As the sole judges of the facts, you must determine which of the witnesses you believe, what

portion of their testimony you accept and what weight you attach to it. The law does not require you

to accept all of the evidence I have admitted, even though it is legally admissible. In determining

what evidence you will accept, you must make your own evaluation of each witness’s testimony and

determine the weight you choose to give that testimony. The testimony of a witness may fail to

conform to the facts as they occurred because the witness is intentionally telling a falsehood, did not

accurately see or hear, has faulty recollection, or has not expressed himself or herself clearly. There

is no magical formula by which one may evaluate testimony. You bring with you to this courtroom

all of the experience and background of your lives. In your everyday affairs you determine for

yourselves the reliability or unreliability of statements made to you by others. The same tests that

you use in your everyday dealings are the tests which you apply in your deliberations.

You should carefully scrutinize all the testimony given, the circumstances under which each

witness has testified, and every matter in evidence which tends to show whether a witness is worthy

of belief. Consider each witness' intelligence, motive, state of mind, and the witness’s appearance

and conduct while on the stand. Consider the witness's ability to observe the matters as to which

he or she has testified, and whether the witness impresses you as having an accurate recollection of

these matters. Consider also any relation each witness may bear to either side of the case; the

manner in which each witness might be affected by the verdict; and the extent to which, if at all,

each witness is either supported or contradicted by other evidence in the case.

Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of

different witnesses, may or may not cause you to discredit such testimony. Two or more persons

witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection,

like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy,

always consider whether it pertains to a matter of importance or an unimportant detail, and whether

the discrepancy results from innocent error or intentional falsehood.

A witness may also be discredited or “impeached” by contradictory evidence or by evidence

that at some other time the witness has said or done something or has failed to say or do something

which is inconsistent with the witness’s present testimony.

If a witness is shown knowingly to have testified falsely or incorrectly concerning any

material matter, you may or may not choose to distrust such witness’s testimony in other particulars

and you may or may not reject all the testimony of that witness.

After making your own judgment, you will give the testimony of each witness such weight,

if any, as you may think it deserves.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 8 of 34
-9-

EXPERT TESTIMONY

The rules of evidence ordinarily do not permit witnesses to testify as to opinions or

conclusions. An exception to this rule exists as to those whom we call “expert witnesses.”

Witnesses who, by education and experience, have become expert in some art, science, profession,

or calling, may state their opinions as to relevant and material matter, in which they profess to be

expert, and they may also state their reasons for the opinion.

Dr. Way is an economist who is Plaintiff’s expert witness and has testified as to his economic

analysis of Plaintiff’s damages. 

You should consider each expert opinion, and give it such weight as you think it deserves.

You are not bound to accept an expert’s opinion simply because the individual is an expert. If you

should decide that the opinion of an expert witness is not based upon sufficient education and

experience or if you should conclude that the reasons given in support of the opinion are not sound

or that the opinion is outweighed by other evidence, you may disregard the opinion entirely.

As with other witnesses, you have the duty of deciding what weight, if any, should be given

to the testimony of experts.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 9 of 34
-10-

JURY'S RECOLLECTION CONTROLS

If any reference by the Court or counsel to matters of evidence does not coincide with your

own recollection, it is your recollection which should control during your deliberations.

In connection with notes you may have taken during the trial, neither your own notes nor

those of fellow jurors should replace your own recollection, for it is possible that a note may be in

error. If your personal recollection of the evidence is different than the information contained in any

juror’s notes, you must rely on your recollection.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 10 of 34
-11-

EACH PARTY ENTITLED TO THE BENEFIT OF ALL EVIDENCE

There is no significance to be attached to the fact that certain witnesses were called to the

witness stand by one party rather than the other. Each party is entitled to the benefit of any evidence

tending to establish its contentions, even though such evidence may have come from the other

party's witnesses.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 11 of 34
-12-

PREPONDERANCE OF THE EVIDENCE

Plaintiff has the burden to prove every essential element of his claim by a preponderance of

the evidence. If he does not do so, then you should find for Defendant. If you find the evidence to

be evenly balanced, then you must find for Defendant.

To establish something by a "preponderance of the evidence" means simply to prove that

something is more likely to be so than not so. To put it differently, if you were to put Plaintiff’s and

Defendant’s evidence on opposite sides of the scales, Plaintiff would have to make the scales tip

somewhat on his side in order to prevail. 

Plaintiff need only prove his case by a preponderance of the evidence; he need not prove his

case beyond a reasonable doubt, as is necessary in criminal cases. But speculation or mere

possibility is not sufficient to support a judgment in Plaintiff’s favor. Plaintiff is not obliged to

produce all of the witnesses who may know something about his case; he simply has the burden to

produce sufficient evidence to prove his case by a preponderance of the evidence.

The test is not which side brings the greater number of witnesses or produces the greater

quantity of testimony, but which side produces those witnesses and evidence which in your minds

are the more accurate and trustworthy.

In determining whether any fact in issue has been proved by a preponderance of the evidence

in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses,

regardless of who may have called them, and all exhibits received in evidence, regardless of who

may have produced them.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 12 of 34
-13-

THE STATUTES DEFINING PLAINTIFF’S CLAIM

Plaintiff alleges claims against both the Board and Mate and Imhoff, school administrators.

42 U.S.C. Section 1983 provides a plaintiff with a course of action if his constitutional rights have

been violated. In this case, Plaintiff claims that his right to equal protection under the Fourteenth

Amendment has been violated by the Defendants. In order for Plaintiff to succeed on a 42 U.S.C.

Section 1983 claim, he must prove that the Defendants discriminated against him on the basis of his

race, thus depriving him of the equal protection under the law. 

42 U.S.C. Section 1981 prohibits state actors, such as boards of education, principals and

assistant principals, from discriminating against persons on the basis of race in the making and

enforcing of contracts. Plaintiff claims that the Board, Mate, and Imhoff discriminated against him

when they refused to pay him for taking on an additional class and giving up his planning period,

as other similarly situated Caucasian teachers were being paid. As a result, Plaintiff claims that

Defendants discriminated against him in the making and enforcing of contracts. 

The Ohio Civil Rights Statute, Ohio Revised Code § 4112.02(A) provides that it is an

unlawful discriminatory practice for an employer to discharge a person without just cause, or

otherwise discriminate with respect to hire, tenure, terms, conditions, or privileges of employment,

because of a person’s race.

 The statutes prohibit an employer from discriminating because of race. You are instructed

that Defendants were employers for purposes of the statutes involved in this case. The purpose of

these statutes is to promote the employment of all persons based on their ability rather than their

race.

The state and federal discrimination statutes, however, does not require that an employer give

special treatment to a person because of that person’s race, nor does it prohibit an employer from

making employment decisions for reasons other than race which may appear to you to be contrary

to good business judgment. The statute is not a vehicle for reviewing business decisions or

personality conflicts. An employer has a right to be wrong in the handling of employees so long as

it does not discriminate on the basis of race. On the other hand, an employer’s business decision

may not be credible and may be a reason advanced to conceal unlawful discrimination.

___________________________________

Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S. Ct. 1510 (1994).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 13 of 34
-14-

BOARD LIABILITY UNDER 42 U.S.C. § 1983 AND 42 U.S.C. § 1981

Individual liability under the federal statutes, 42 U.S.C. § 1983 and 42 U.S.C. § 1981 is

different than the Board’s liability under the state statutes. Although a board may be liable under

Ohio Revised Code Section 4112 for the actions of its employees, under 42 U.S.C. §1983 and 42

U.S.C. § 1983, a board may be liable if it caused a constitutional tort through a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. A

formal adopted policy is not required; established custom or usage may be sufficient. Ratification

of a subordinate’s decision may create liability on the part of a board. To ratify means to authorize

or otherwise approve, retroactively, an agreement or conduct either expressly or by implication. For

the Madeira Board to be liable under § 1983 or § 1981, the Plaintiff must show that the Board is

responsible for the discrimination of Plaintiff on the basis of his race, and that Plaintiff was not paid

for taking on an additional class as the white teachers he worked with were. In order for Defendant

Board to be liable under § 1983, Plaintiff must so that the toleration of a custom within the Madeira

schools by the Madeira City Schools Board of Education or a decision made by the Board or the

Ratification of a subordinate’s’s decision such as Mate or Imhoff, caused or resulted in racial

harassment, racial discrimination or retaliation. The Board is liable to Plaintiff under these statutes

if he can prove the existence of unconstitutional actions by the Board itself.

___________________________________

City of St. Louis v. Praprotnik, 485 U.S. 112 (1998).

Monell v. New York City Dept. Of Social Services, 436 U.S. 658 (1978).

Meyers v. Cincinnati, 14 F.3d 1115 (6th Cir. 1994)

Hull v. Cuyahoga Valley Joint Vocational School Dist. Bd. Of Ed., 926 F.2d 505 (1991).

Black’s Law Dictionary, (6th Ed., West Group).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 14 of 34
-15-

INDIVIDUAL LIABILITY UNDER 42 U.S.C. § 1983 AND 42 U.S.C. § 1981

For individual state actions Mate and Imhoff to be liable, the Plaintiff must show that each

engaged in active unconstitutional behavior. That is, Plaintiff must show that Mate and Imhoff

participate, encouraged, authorised or acquiesced in racial harassment, racial discrimination or

retaliation. Negligence as to the existence of harassment may constitute an intentional act of

discrimination if the administrators knew of should have know of the discrimination. Plaintiff must

establish by a preponderance of the evidence that Mate and/or Imhoff violated a clearly established

constitutional right of Plaintiff. 

___________________________________

Long v. Norris, 929 F.2d 1111 (6th Cir. 1991).

Blankenship v. Parke Care Centers, Inc., 123 F.3d 868 (6th Cir. 1997).

Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 15 of 34
-16-

ESSENTIAL ELEMENTS OF PLAINTIFF’S RACE 

DISCRIMINATION CLAIMS

O.R.C § 4112.02 forbids a government employer from engaging in actions that discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of such

individual’s race. 

In order to establish his race discrimination claim, Plaintiff must prove, by a preponderance

of the evidence, that:

1. He is a member of a protected class. (You are instructed that Plaintiff

is a member of a protected class because he is black.);

2. He was subject to unwelcome harassment;

3. The harassment was based on his race;

4. The harassment unreasonably interfered with his work performance

and created a hostile work environment; and

5. His employer knew or should have known of the racial harassment

and failed to implement prompt and appropriate corrective action. 

Plaintiff must show that Defendant intentionally discriminated against him on the basis of

his race. Plaintiff, however, is not required to produce direct evidence of intentional discrimination.

Intentional discrimination may be inferred from the existence of other facts. 

In order to defend against a claim of discrimination, Defendant has no burden to prove that

its reasons for Plaintiff’s demotion were good, justifiable, or fair. It does not matter if you agree or

disagree with Defendant’s reasons. If the Defendant states a legitimate, nondiscriminatory reason

for its determination of Plaintiff’s salary and why Plaintiff was told to accept a mentor or resign,

Plaintiff must establish by a preponderance of the evidence that the reasons stated by Defendant

were pretextual and not the actual reasons and that a real reason was unlawful discrimination.

The claimed harassment must create a work atmosphere that is both subjectively and

objectively hostile. That is, the conduct must be severe or pervasive enough to create an

environment that a reasonable person would find hostile or abusive, and the employee must

subjectively regard that environment as abusive. 

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 16 of 34
-17-

In determining whether the conduct is severe or pervasive enough to constitute a hostile work

environment, you may consider the frequency of the discriminatory conduct; it severity; whether it

is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employees work performance. 

Plaintiff must show that but for the fact of his race, he would not have been the object of

harassment. 

Once a Plaintiff has demonstrated that the harassment was because of race and was

sufficiently severe and pervasive, he must show that his employer bears responsibility for the

harassment. An employer may only be liable if it fails to implement prompt and remedial action.

Further, when an employer is aware of and responds to charges of racial harassment, mere

negligence as to the content of the response is not enough to make the employer liable. 

In determining whether a hostile work environment existed, you must consider the evidence

from the perspective of a reasonable person. This is an objective standard and requires you to look

at the evidence from the perspective a reasonable person’s reaction to a similar environment under

similar circumstances. You must consider the total circumstances and determine whether the alleged

harassing behavior could be objectively classified as the kind of behavior that would seriously affect

the psychological well-being of a reasonable person.

___________________________________

Moore v. Kuka Welding Systems, 171 F.3d 1073 (6th Cir. 1999).

Blankenship v. Parke Care Centers, Inc., 123 F.3d 868 (6th Cir. 1997). 

Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999). 

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 17 of 34
-18-

PLAINTIFF’S CLAIMS ON CONSTRUCTIVE DISCHARGE

Constructive discharge exists where an employee involuntarily chooses to leave his or her

job. The test for determining whether an employee was constructively discharged is whether the

employer’s actions made working conditions so intolerable that a reasonable person under the

circumstances would have felt compelled to resign. This is an objective test. The employer’s

subjective intent is irrelevant to this determination.

The Plaintiff left his job and claims that he was constructively discharged by the Board. The

defendants claim that the Plaintiff voluntarily left the job. If you find by the greater weight of the

evidence that the defendants, regardless of their intent, made the Plaintiff’s working conditions so

difficult and unpleasant that a reasonably prudent person under the same or similar circumstances

would feel compelled to resign or leave the employment, then you must find that the Plaintiff was

constructively discharged.

___________________________________

2 OJI 266.25 (2003); Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578 (1996); United Parcel

Service v. OCRC, 71 Ohio App. 3d 146 (1991); Moore v. Kuka Welding Systems, 171 F.3d 1073,

1080 (6th Cir. 1999); Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 18 of 34
-19-

PLAINTIFF’S DISPARATE TREATMENT CLAIMS

Disparate treatment occurs if an employer treats some people less favorably than others

because of their race. An individual suffers disparate treatment when he is singled out and treated

less favorably than other similarly situated non-minority employees on account of her race. It is

Plaintiff’s task to demonstrate that for the same or similar conduct, he was treated differently than

similarly situated non-minority employees. To be deemed similarly situated, the individual with

whom Plaintiff seeks to compare his treatment must have dealt with the same administration, must

have been subject to the same standards and have engaged in the same conduct without

differentiating or mitigating circumstances that would distinguish their conduct or the employer’s

treatment of it. Plaintiff need not demonstrate an exact correlation with the employee receiving

more favorable treatment in order for the two to be considered “similarly situated.” Rather, Plaintiff

and the employee with whom he seeks to compare herself must be similar in all of the relevant

aspects. If you find that the compared employee is indeed similarly situated to Plaintiff, in order for

you to find for Plaintiff under Ohio Civil Rights Act, you must find that the differences in treatment,

if any, were based on the fact that Plaintiff is African-American and thus were based upon race. 

To prove his case, Plaintiff must do more than simply discredit Defendant’s explanation for

their decisions not to pay him the same amount and for requiring him to accept a mentor or resign.

Rather, Plaintiff must prove two things by a preponderance of the evidence:

1. He is a member of a protected class. (You are instructed that Plaintiff

is a member of a protected class.); and

2. He was treated less favorably than a similarly situated non-minority

employee. 

To prove he was actually treated differently because of his race, Plaintiff must prove that

“but for” his race, he would not have been treated differently than other similarly situated people

of a different race. In other words, his race was a motivating factor in the decision to force him to

accept a mentor or resign and a factor in the decision not to pay him for teaching an additional class

and giving up his planning period.

The plaintiff’s subjective belief of race discrimination, however genuine, cannot be the basis

of a finding that Defendants discriminated against Plaintiff because of his race. Personal beliefs,

conjecture, and speculation do not give rise to an inference of discrimination. Plaintiff must produce

evidence, other than his own opinion that would lead you to reasonably conclude that, more likely

than not, the reason was his race.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 19 of 34
-20-

In this case, it is undisputed that Plaintiff is African-American, a protected status. It is also

undisputed that Plaintiff was not paid for teaching an additional class and giving up his planning

period, and was told to accept a mentor or resign. You must decide whether Plaintiff’s race was a

motivating factor in Defendants’ decisions.

___________________________________

Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 20 of 34
-21-

PLAINTIFF’S RETALIATION CLAIM

Plaintiff also alleges that he was subjected to adverse employment conditions as a result of

taking Plaintiff’s opposition and complaining of Defendants’ wrongful conduct and the racial

harassment he suffered. Plaintiff claims that it violates Ohio law and public policy to retaliate

against an employee for reporting and opposing wrongful conduct.

To establish retaliation, the Plaintiff must demonstrate that:

1. He engaged in protected activity. (You are instructed that making

reports and complaints of racial discrimination and harassment are

protected activities under the law.);

2. His exercise of his civil rights was known to Defendants;

3. The Defendants took adverse action to him and;

4. There was a causal connection between the protected activity and the

adverse employment action. 

If you find that Plaintiff’s report and opposition was a determining factor in Defendant’s

decision to take adverse employment actions against Plaintiff, you will find in favor of Plaintiff on

this claim.

The statute prohibiting discrimination does not prohibit an employer from making

employment decisions for reasons other than discrimination which may appear to you to be contrary

to good business judgment. The statute is not a vehicle for reviewing business decisions or

personality conflicts. An employer has a right to be wrong in the handling of employees or even to

treat an employee unfairly as long as the employer does not discriminate against the employee based

on his race.

An adverse employment action is one that objectively changes a condition or term of

Plaintiff’s employment. It is insufficient for the Plaintiff to claim that an act caused him subjective

harm, rather the law requires the employer act in such a way that a reasonable person would find that

such action materially impacts his or her work environment. 

_________________________________

EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 21 of 34
-22-

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

To prevail on a claim for intentional infliction of emotional distress, appellant must

demonstrate the following four elements: (1) the actor intended to cause emotional distress or knew

or should have known that the actions would result in serious emotional distress; (2) the actor's

conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was

such that it would be considered utterly intolerable in a civilized society; (3) the actor's actions were

the proximate cause of appellant's injury; and (4) appellant suffered severe mental anguish.

___________________________________

Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375, 453 N.E.2d 666.

Osman v. Isotec, 960 F. Supp. 118 (S.D. Ohio 1997).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 22 of 34
-23-

DAMAGES

If you find for the Plaintiff, then you must decide by the greater weight of the evidence an

amount of money that will reasonably compensate the Plaintiff for the actual injury proximately

caused by the conduct of the defendants.

Compensatory damages intended to make Plaintiff whole for any loss he may have suffered

as a result of the defendants’ actions. Such an award should be considered as fair and just

compensation for all of Plaintiff’s damages, no more and no less. Compensatory damages are not

intended as punishment. Plaintiff has the burden of proving his compensatory damages by a

preponderance of the evidence. It is for the jury to determine what damages, if any, will be awarded.

You may determine that the Plaintiff is entitled to damages including back pay, front pay, and

compensatory damages for mental anguish and suffering.

If you find for the Plaintiff, you may determine that he is entitled to recover back pay. Back

pay means lost wages and benefits, including any increases in wages or benefits lost because of

discrimination and/or retaliation. The amount of wages and benefits due is determined by

calculating the amount that would have been earned from the date the Plaintiff’s employment

terminated to the present. You may include all forms of compensation that the employee proved he

would have earned, but for the discriminatory and retaliatory acts, including salary, bonuses,

vacation pay, pension, health insurance, and other benefits.

In addition, if you find for the Plaintiff, you may consider an award of front pay. Front pay

includes the amount the Plaintiff would have earned from the date of the verdict until the date you

find the Plaintiff’s loss of future pay and benefits will cease. The purpose of front pay is to

temporarily compensate the Plaintiff while he seeks comparable employment, and not to give longterm compensation from the present to retirement. Among the factors to be considered in deciding

the amount of front pay are the following:

1. the age of the Plaintiff and his reasonable prospects of obtaining

comparable employment;

2. salary, bonuses, vacation pay, and other pay;

3. expenses associated with finding new employment; and 

4. the replacement value of fringe benefits until comparable fringe

benefits are obtained for a reasonable length of time.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 23 of 34
-24-

In determining the amount of front pay, you must deduct the amount of wages and benefits

you believe Plaintiff will receive from replacement income during the period of front pay awarded.

While the damages must be proven with reasonable certainty, the Plaintiff is not required to

prove with unrealistic precision the amount of lost earnings, if any, due him. Any uncertainties in

the amount the Plaintiff could have earned should be resolved against the defendant employer.

You must also consider whether to compensate Plaintiff for any proven humiliation,

embarrassment, mental anguish and loss of reputation. Compensatory damages are intended to

compensate one for the mental aspects of injury, including, but not limited to, personal humiliation,

embarrassment, mental anguish and suffering, and loss of reputation. In deciding this amount, if

any, you will consider the nature, character, seriousness and duration of any emotional pain,

suffering, mental anguish, or humiliation the Plaintiff may have experienced.

___________________________________

2 OJI 266.77 (2002); Worrell v. Multipress, Inc., 45 Ohio St.3d. 241 (1989); Ohio Civil Rights

Comm’n v. Ingram, 69 Ohio St.3d. 89 (1994); Elek v. Huntington National Bank, 60 Ohio St.3d. 135

(1991); Keys v. U.S. Welding, Fabricating and Mfg., 1992 WL 218302 (N.D. Ohio 1992).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 24 of 34
-25-

PUNITIVE DAMAGES

If you find for Plaintiff and award compensatory damages, you may also consider whether

you will separately award punitive damages. Punitive damages may be awarded against the

defendants as a punishment to discourage others from committing similar wrongful acts. 

You may award punitive damages if you find by the greater weight of the evidence that the

defendants acted with actual malice or with reckless indifference to the Plaintiff’s rights under

federal and/or state law. In this case, you may award punitive damages if you find that the

Defendants engaged in discriminatory and/or retaliatory practices or acted with malice or reckless

indifference to the rights of Plaintiff to be free from such discrimination and/or retaliation in

employment. 

Actual malice is defined as (1) that state of mind under which a person’s conduct is

characterized by hatred, ill will or a spirit of revenge; or (2) a conscious disregard for the rights and

safety of other persons that has a great probability of causing substantial harm.

Reckless indifference means indifference of an egregious character to the Plaintiff's rights

to be free of such discriminatory or retaliatory conduct. Reckless indifference reflects that entire

want of care which would raise the presumption of a conscious disregard to consequences.

___________________________________

Johnson v. Railway Express Agency, 421 U.S. 454 (1975); Hall v. Consolidated Freightways Corp.

of Delaware, 337 F.3d 669 (6th Cir. 2003); Preston v. Murty, 32 Ohio St.3d 334 (1987); Rice v.

Certainteed Corp., 84 Ohio St.3d 417 (1999); 1 OJI 23.70 (2002).

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 25 of 34
-26-

MITIGATION OF DAMAGES 

Plaintiff has an obligation to use reasonable efforts to mitigate or lessen his damages by

seeking and continuing to seek comparable employment in a related field. If Plaintiff failed to make

reasonable efforts to obtain comparable employment, he is not entitled to recover any damages

incurred after the date he failed to mitigate.

Plaintiff, however, does not have the burden of proving that he mitigated his damages. On

this issue, Defendant has the burden of showing by a preponderance of the evidence that Plaintiff

did not exercise reasonable diligence in seeking comparable employment in a related field.

In order to meet its burden of proving that Plaintiff failed to mitigate damages, Defendant

must show by a preponderance of the evidence that there were comparable positions available,

which Plaintiff could have discovered and could have obtained and for which he was qualified, and

that Plaintiff failed to exercise reasonable diligence in seeking such employment. Even if Defendant

fails to offer evidence on the issue of mitigation, its burden may be satisfied by Plaintiff’s evidence.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 26 of 34
-27-

NO INFERENCE TO BE DRAWN FROM 

COURT'S DAMAGES INSTRUCTIONS

The fact that I have instructed you on the elements of damages does not mean that I have any

opinion as to what damages, if any at all, you should award in this case.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 27 of 34
-28-

IMPARTIAL CONSIDERATION OF EVIDENCE

You have been chosen and sworn as jurors in this case to try the issues of fact presented by

the allegations of Plaintiff’s complaint and Defendant’s answers thereto. You are to perform this

duty without bias or prejudice as to any party. Our system of law does not permit jurors to be

governed by sympathy, prejudice, or public opinion. Both the parties and the public expect that you

will carefully and impartially consider all the evidence in the case, follow the law as stated by the

Court, and reach a just verdict, regardless of the consequences.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 28 of 34
-29-

ELECTION OF FOREPERSON

Upon retiring to the jury room, you will select one of your members to act as your

foreperson. The foreperson will preside over your deliberations, make certain that every juror has

an opportunity to be heard, and will be your spokesperson here in Court. He or she will hand your

verdict to the Clerk when you return to Court.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 29 of 34
-30-

DELIBERATIONS

After you adjourn to the jury room, it is your duty to deliberate on the evidence that has been

presented to you. It may be helpful for you to first review the instructions I have just read to you

and the verdict form which will be found in the back of the jury book. That will provide guidance

for organizing and discussing the evidence that both sides have presented during the trial.

You may take a poll of the jury members regarding a verdict at any time, but a vote may be

more productive after you have first thoroughly discussed all the evidence before you.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 30 of 34
-31-

UNANIMOUS VERDICT AND DUTY TO DELIBERATE

The verdict must represent the considered judgment of each juror. In order to return a

verdict, it is necessary that each juror agree. Your verdict must be unanimous.

It is your duty as jurors to consult with one another, and to deliberate with a view to reaching

an agreement, if you can do so without abandoning your individual judgment. You must each decide

the case for yourself, but only after an impartial consideration of the evidence in the case with your

fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and

change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as

to the weight or effect of evidence, solely because of the opinion of your fellow jurors, or for the

mere purpose of returning a verdict or because of the time of day.

Remember at all times that you are not partisans. You are judges - judges of the facts. Your

sole intent is to seek the truth from the evidence in the case.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 31 of 34
-32-

NO RECOMMENDED VERDICT

Nothing said in these instructions and nothing in any form of verdict prepared for your

convenience is meant to suggest or convey in any manner what verdict I think you should find.

What the verdict shall be is the sole and exclusive duty and responsibility of the jury.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 32 of 34
-33-

VERDICT FORM

You will take one verdict form with you into the jury room. This form contains a series of

questions. You will enter your unanimous findings on it by answering each question "Yes" or "No,"

and filling in the blanks if appropriate. When you have reached a unanimous agreement as to your

verdict, the foreperson will fill in, date and sign the form. All other jurors will sign the verdict form.

Then advise the Court that you are ready to return to the courtroom with your verdict by pressing

the buzzer.

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 33 of 34
-34-

Respectfully submitted,

s/W. Kelly Lundrigan 

W. Kelly Lundrigan (0059211)

Rhonda S. Frey (0067343)

MANLEY BURKE

A LEGAL PROFESSIONAL ASSOCIATION

225 West Court Street

Cincinnati, Ohio 45202-1098

Telephone: (513) 721-5525

Facsimile: (513) 721-4268

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of October, 2003, a copy of the foregoing document was

filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s

electronic filing system. Parties may access this filing through the Court’s system.

s/W. Kelly Lundrigan 

W. Kelly Lundrigan (0059211)

Rhonda S. Frey (0067343)

MANLEY BURKE

A LEGAL PROFESSIONAL ASSOCIATION

225 West Court Street

Cincinnati, Ohio 45202-1098

Telephone: (513) 721-5525

Facsimile: (513) 721-4268

ATTORNEYS FOR PLAINTIFF

N:\CLIENTS\Cadet\Trial\juryinstructions3.mlb.wpd-wlh

Case 1:01-cv-00131-TSH Document 66 Filed 10/08/2003 Page 34 of 34