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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA McFADDEN, : CIVIL ACTION NO. 18cv544

: 

 Plaintiff, : 

 : JUDGE SARGUS

 v. : 

: MAGISTRATE JUDGE JOLSON

: 

CITY OF COLUMBUS, : 

 Defendant : 

PLAINTIFF’S OBJECTIONS TO DEFENDANT’S PROPOSED JURY 

INSTRUCTIONS

Plaintiff, Melissa McFadden makes the following objections to Defendant’s Proposed Jury 

Instructions. 

 Defendant’s Proposed Instruction: 

• Omits Equal Protection

• Omits First Amendment

• Uses “Plaintiff” instead of “Lt. McFadden” throughout. 

• Starts for Disparate Treatment with “a motivating factor” but then switches under 

Pretext to “a determining factor.” Does not explain, the way our proposed JI do, 

what either means, and further confuses by saying under Disparate Treatment 

“intentionally “ discriminated. Broadens focus discrimination being a motivation 

for the investigation, while our proposed JI focus on the punitive reassignment 

during investigation, not the investigation itself. (Doc # 68 PAGE ID 5424) 

• Omits the “overlapping claims” sentence in our proposed JI. 

• Gives a “Tangible” definition without earlier explaining that tangibility is an 

element. (Doc # 68 PAGE ID 5426) 

• Under “Same Decision” uses “showed” rather than “proved by a preponderance 

of the evidence,” the phrase City uses for Lt. McFadden’s burden, then later under 
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“Affirmative Defense” uses the proper language; therefore, omit the “Same 

Decision” instruction since somewhat duplicative yet different from catch-all 

“Affirmative Defense” one. In the latter, refers only to race (since discrimination 

can be proven by a motivating factor) without explaining that inapplicable to 

retaliation. If going to include, relocate to discrimination portion and clarify that, 

on Lt. McFadden’s discrimination claim, the City of Columbus etc. (Doc # 68 

PAGE ID 5427)

• Under “Legitimate Business Reason” includes only one of the three alternative 

ways (not true reason, rather then alternatively more likely motivated or 

insufficient to motivate).

• Under “Protected Activity” initially suggests that the practice she opposed must 

have been illegal, then confuses by adding that she need only believe it so.

• Under “Causal Connection” for retaliation, omits “but for” and substitutes “the 

likely reason” for the adverse action. Hard to know whether this is better for Lt. 

McFadden, but our proposed JI accurately describe: “if but for her criticism the 

City of Columbus would not have assigned her to the property room and physical 

and dirty duties inconsistent with her rank, there was causation.”

• On “Compensatory Damages,” omits discrimination from the first sentence 

(though mentioned damages under the “Affirmative Defense.” Also omits the 

components, especially humiliation, anguish, frustration, and sadness,” we 

describe, as well as the absence of any need for evidence on the dollar value of 

such damages.

• On “Mitigation,” the City starts with Lt. McFadden “must make every reasonable 

effort to minimize or reduce her damages.” The “every” overstates. Under Sixth 

Circuit law, “[a] claimant is only required to make reasonable efforts

to mitigate damages, and is not held to the highest standards of 

diligence.” Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 624 (6th

Cir. 1983). We object to the entire mitigation instruction unless the City gives 

some illustration to the jury about what mitigation might involve. While a 

terminated employee bringing an employment discrimination or retaliation case 

has a duty to mitigate damages by seeking substantially equivalent employment, 

Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, 880 F.3d 791, 799 

(6th Cir. 2018), imposing that duty in a reassignment case strays from economic 

damages, just as the first but not all the sentences in the City’s JI does, and 

insinuates to a jury contributory negligence, more aggressive mental or 

psychological health treatment, and perhaps even better care for physical 

injury. If given at all, must focus on economic damages and illustrate since the 

typical mitigation of alternative employment is not at issue. (Doc # 68 PAGE ID 

5438)
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Respectfully submitted,

OF COUNSEL:

Louis A. Jacobs (002101)

(LAJOhio@aol.com) 

177 19th St., Apt. 9C

Oakland, CA 94612

(614) 203-1255

Fax (510) 250-9007

By: /s/ John S. Marshall

John S. Marshall (0015160) 

(jmarshall@marshallforman.com) 

Samuel M. Schlein (0092194) 

(sschlein@marshallforman.com) 

MARSHALL AND FORMAN LLC

250 Civic Center Dr., Suite 480 

Columbus, Ohio 43215-5296 

(614) 463-9790 

Fax (614) 463-9780 

 

CERTIFICATE OF SERVICE

 This is to certify that a copy of the foregoing was filed with the Court on this 18 day of 

May, 2022, using the CM/ECF system, which will send notification of such filing to all counsel 

of record. Parties may access this filing through the court’s filing system. 

By: /s/ John S. Marshall

John S. Marshall (0015160)