IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA MCFADDEN,

Case No. 2:18-cv-544

Plaintiff,

Chief Judge Edmund A. Sargus, Jr.

v.

Magistrate Judge Jolson

CITY OF COLUMBUS, 

DEFENDANT’S PROPOSED CASEDefendant. SPECIFIC JURY INSTRUCTIONS

Defendant City of Columbus proposes the following case-specific jury instructions 

pursuant to the Court’s Order Setting Trial Date and Settlement Conference issued on November 

29, 2021 (ECF No. 56)

STATEMENT OF THE CASE

Melissa McFadden (“Plaintiff”), is employed with the City of Columbus, Division of 

Police. Plaintiff alleges Defendant, City of Columbus discriminated against her based on race and 

retaliated against her for engaging in protected activity, in violation of Title VII and Ohio Revised 

Code Ch. 4112, because she was subject to an internal investigation and temporarily reassigned

over discriminatory comments she made to subordinate officers. Defendant, City of Columbus 

denies these claims. 

It is your responsibility to decide whether Plaintiff has proven her claims by a 

preponderance of the evidence. I will discuss each of the elements necessary to prove these claims 

separately.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.01 (West 6th Ed.)

 

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GENERAL INSTRUCTION

42 U.S.C.A. §2000e-2(a) provides that:

It shall be an unlawful employment practice for an employer –

1. to fail or refuse to hire or to terminate any individual, or otherwise to discriminate against 

any individual with respect to her compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, sex, or national origin. 

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171:10 (West 6th Ed).

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DISPARATE TREATMENT 

In order for Plaintiff to establish her claim of race discrimination against Defendant, City 

of Columbus, in violation of Title VII and Ohio Revised Code Ch. 4112, Plaintiff has the burden of 

proving by a preponderance of the evidence that Defendant’s actions were motivated by Plaintiff’s 

race. 

Plaintiff must prove Defendant, City of Columbus intentionally discriminated against her, 

that is, Plaintiff’s race must be proven to have been a motivating factor in Defendant’s decision to 

investigate and temporarily reassign her. 

The mere fact Plaintiff is African American and was subject to an internal investigation

and temporarily reassigned is not sufficient, in and of itself, to establish Plaintiff’s claim under the 

law.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.20 (West 6th Ed.)

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PRETEXT INSTRUCTION 

You must decide whether Plaintiff has proven by a preponderance of the evidence that her 

race was a determining factor in the Defendant’s decision to investigate and temporarily reassign 

her.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171:28 (West 6

th Ed).

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TANGIBLE EMPLOYMENT ACTION

A “tangible employment action” is a significant change in employment status, such as 

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a 

decision causing a significant change in benefits. 

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.43 (West 6th Ed.)

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SAME DECISION INSTRUCTION 

If you determine Plaintiff proved that her race was a factor motivating or playing a part in 

Defendant’s decision to investigate and temporarily reassign her, then you must find for Plaintiff 

unless you determine Defendant, City of Columbus showed it would have reached the same 

decision regardless of Plaintiff’s race. 

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171:76 (West 6th Ed).

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LEGITIMATE BUSINESS REASON 

You must also consider any legitimate, nondiscriminatory reason or explanation by 

Defendant, City of Columbus for its decision. If you determine Defendant, City of Columbus has 

stated such a reason, then you must decide in favor of the Defendant unless Plaintiff proves by a 

preponderance of the evidence that the stated reason was not the true reason but was only a pretext 

or excuse for Defendant’s discriminating against Plaintiff because of Plaintiff’s race.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171:77 (West 6th Ed).

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ELEMENTS OF PLAINTIFF’S RETALIATION CLAIM

In order to prove her claim of retaliation in violation of Title VII and Ohio Revised Code Ch. 

4112, Plaintiff must prove, by the greater weight of the evidence, that she was subjected to an internal 

investigation and temporarily reassigned because she engaged in protected activity by opposing an 

unlawful, discriminatory practice. The burden of proof is always with Plaintiff.

Thus, Plaintiff must prove each of the following elements by the greater weight of the 

evidence:

1. That Plaintiff engaged in protected activity

2. That this exercise of protected activity was known to Defendant

3. That the Defendant thereafter took a materially adverse employment action 

against her; and

4. That there was a causal connection between the protected activity in which 

Plaintiff engaged and the adverse employment action.

If you find by a greater weight of the evidence that Plaintiff has proven each of the above 

elements, you must return a verdict for the Plaintiff. If you find that Plaintiff has failed to prove, by 

a greater weight of the evidence, any one of the elements of her claim, your deliberations are over, 

and you must find for Defendant.

Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009).

Abbott v. Crown Motor Co., Inc, 348 F.3d 537, 542 (6th Cir. 2003).

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PROTECTED ACTIVITY

In order to prove she engaged in protected activity, Plaintiff must prove by the greater weight 

of the evidence that she opposed an activity or practice that is unlawful and discriminatory under Title 

VII. An activity or practice is unlawful under Title VII if it is based on race, color, religion, or 

national origin. An activity or practice is unlawful under Ohio Revised Code 4112.02 if it is based 

on race, color, religion, sex, military status, national origin, age, or ancestry. Plaintiff must reasonably 

believe she was opposing conduct that is unlawful and discriminatory. Whether one has a reasonable 

belief includes both a subjective and objective component. Plaintiff must have a good faith belief that 

Defendant engaged in a discriminatory and unlawful activity or practice (the subjective component). 

Plaintiff’s belief must also be reasonable in light of the surrounding facts. In other words, a 

reasonable person would find the conduct to be unlawful and discriminatory (the objective 

component).

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000)

Offutt v. Warren County Regional Jail, 109 Fed. Appx. 740 (6th Cir. 2004)

Warren v. Ohio Dept. Public Safety, 24 Fed. Appx. 259, 265 (6th Cir. 2004)

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MATERIALLY ADVERSE EMPLOYMENT ACTION

Plaintiff must prove by a greater weight of the evidence that she was subjected to a materially 

adverse employment action. A materially adverse employment action is one that a reasonable 

employee would find materially adverse and which would dissuade a reasonable employee from 

making or supporting a charge of discrimination. A materially adverse employment action is more 

than petty slights or minor annoyances. De minimus employment actions are not materially adverse. 

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415 (2006).

Bowman v. Shawnee State University, 220 F.3d 456, 462 (6th Cir. 2000).

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CAUSAL CONNECTION

To establish a causal connection, Plaintiff must prove, by the greater weight of the evidence, 

that the protected activity was the likely reason for the adverse action. 

EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)

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BUSINESS JUDGMENT INSTRUCTION

You may not return a verdict for Plaintiff just because you might disagree with Defendant’s 

decision. An employer has the right to make personnel decisions for any reason that is not 

discriminatory or retaliatory.

Brocklehurst v. PPG Industries, Inc., 123 F.3d 890 (6th Cir. 1997)

Walker v. AT&T Technologies, 995 F.2d 846 (8th Cir. 1993)

Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997)

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AFFIRMATIVE DEFENSE INSTRUCTION

If you find in Plaintiff’s favor for each fact she must prove, you must decide whether 

Defendant, City of Columbus has shown by a preponderance of the evidence that it would have 

investigated and temporarily reassigned Plaintiff even if Defendant, City of Columbus had not 

taken Plaintiff’s race into account. If you find that Plaintiff would have been investigated and 

temporarily reassigned for reasons other than her race, you must make that finding in your verdict. 

If you find for Plaintiff and against Defendant, City of Columbus on this defense, you 

must consider Plaintiff’s compensatory damages. 

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171:20 (West 6th Ed)

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COMPENSATORY DAMAGES

If you find that Defendant retaliated against Plaintiff in violation of Title VII and Ohio 

Revised Code 4112.02, you should consider what to award. You may award only such damages as 

will reasonably compensate Plaintiff for such injury and damages as you find, by a preponderance of 

the evidence, that she has sustained as a direct consequence of the acts of Defendant. The fact that I 

am instructing you about the general law of damages is in no way indicative of whether you should 

or should not award damages in this particular case. Instructions concerning damages do not in any 

fashion indicate my views as to whether the Plaintiff has or has not met her burden to prove that the 

Defendant acted unlawfully so as to cause her damages. 

If you find that Defendant retaliated against Plaintiff in violation of Title VII and Ohio 

Revised Code 4112.02, you may award damages to compensate for the retaliation. These are known 

as actual or compensatory damages. You may award compensation only for such injuries and 

damages that Plaintiff demonstrated she sustained by a preponderance of the evidence. You may not 

consider remote, indefinite, or speculative injuries or damages. Damages must not be based on 

speculation or sympathy. They must be based on evidence presented at trial, and only on that 

evidence. Plaintiff has the burden of proving compensatory damages by a preponderance of the 

evidence.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.90 (West 6th Ed.)

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MULTIPLE CLAIMS

You must not award compensatory damages more than once for the same injury. If Plaintiff

prevails on both her Title VII and Ohio Revised Code 4112.02 claims and establishes a dollar amount 

for her injuries, you must not award any additional compensatory damages on each claim. Plaintiff 

is only entitled to be made whole once, and may not recover more than she has lost.

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NO PUNITIVE OR EXEMPLARY DAMAGES

If you find in favor of Plaintiff on her claim of retaliation and if you determine Plaintiff is 

entitled to damages, in determining the amount of damages you may not include or add to the damages 

any sum for the purpose of punishing Defendant, City of Columbus, or serving as an example to warn 

others.

42 U.S.C. §1981a (b)(1)

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.94 (West 6th Ed.)

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MITIGATION OF DAMAGES

Plaintiff must make every reasonable effort to minimize or reduce her damages. This is 

referred to as “mitigation of damages.” Defendant has the burden to prove by a preponderance of the 

evidence that Plaintiff failed to mitigate economic damages. If you find by a preponderance of the 

evidence Plaintiff unreasonably failed to take advantage of an opportunity to lessen damages, you 

should deny her recovery for those damages she would have avoided had she taken advantage of the 

opportunity. You must not compensate Plaintiff for any of Plaintiff’s loss of compensation resulting 

from Plaintiff’s failure to make reasonable efforts to reduce her loss of compensation.

Federal Jury Practice and Instructions, Vol. 3C, Sec. 171.95 (West 6th Ed.)

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ATTORNEY FEES

In assessing damages, you must not consider attorney fees or the costs of litigating this 

case. Attorney fees, if relevant at all, are for the Court to decide and not the jury to determine. 

Therefore, attorney fees and costs should play no part in your calculation of damages. 

Authority: 42 U.S.C. Sec. 2000e-5(k)

Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000)

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Respectfully Submitted,

/s/ Paul M. Bernhart

Westley M. Phillips (0077728)

Susan E. Williams (0073375)

Paul M. Bernhart (0079543)

Assistant City Attorneys

CITY OF COLUMBUS, DEPARTMENT OF LAW

ZACH KLEIN, CITY ATTORNEY

77 North Front Street, Columbus, Ohio 43215

(614) 645-7385 / (614) 645-6949 (fax)

wmphillips@columbus.gov

sewilliams@columbus.gov

pmbernhart@columbus.gov

Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on May 9, 2022, I electronically filed the foregoing with the Clerk of 

the Court by using this Court’s CM/ECF system, which will send a notice of this electronic filing 

to all counsel of record in this matter.

/s/ Paul M. Bernhart

Paul M. Bernhart (0079543)

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