The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
I have modified the instructions in accordance with many of the suggestions and objections of counsel. In this memorandum I explain why I have rejected additional suggestions and objections.
The Significance of Dr. Scott's Testimony
As noted in my opinion pertaining to the motion in limine, plaintiff wants the jury to be instructed that, since the defendant hired Dr. Scott, he was the defendant's agent and, therefore,"you must take Dr. Scott's findings as though they were made by the defendant itself."
Having now heard the evidence, I will decline to give this instruction. First, as I indicated in the opinion on the motion in limine, the defendant has not presented any evidence that Dr. Scott was not authorized to perform the examination he did. Hence, I persist in my view that any argument that he was not authorized to do what he did would not be based on any evidence and would be an improper argument. I certainly do not understand the defendant's counsel to intend to make such an argument and, while it is probably unnecessary to do so, I will ask defendant's counsel to refrain from making such an argument.
I will not give the instruction plaintiff proposes, however. The evidence shows that Mr. Dutton decided to get additional information about plaintiff's physical ability to perform her job after he reviewed Dr. Scott's report. I will instruct the jury as to the fundamental agency principle that the defendant is bound by acts of its agents. But, if I tell the jury, as plaintiff proposes, that it is to view Dr. Scott's findings as though the defendant itself had made them, I fear that the jury may think that Mr. Dutton had to accept them as a matter of law and was legally disabled from seeking additional information. That is not the law. Furthermore, the question presented is whether Mr. Dutton's motivation was or was not retaliatory. Whether the defendant was"bound" by what Dr. Scott said is irrelevant to the crucial question of Mr. Dutton's motivation.
I also find it confusing for the jury to be told, as plaintiff proposes, that it must take Dr. Scott's findings"as though they were made by defendant itself" and then to tell them, as plaintiff also proposes, that"[t]he significance to attach to Dr. Scott's findings is for you to make." I am afraid that the latter phrase contradicts the former, for if I give the instruction plaintiff proposes, I am directing them as to the significance of Dr. Scott's testimony; indeed, I am coming much too close to directing a verdict on its significance.
Plaintiff proposes that I give the standard instruction as to her obligation to mitigate her damages. Defendant objects, pointing out that the questions of back pay and deductions therefrom (if any) are for the Court, if plaintiff prevails. Defendant's point is well taken. Additionally, I believe that the trial evidence has rendered plaintiff's applying for workmen's compensation of minor significance. At one point, plaintiff may have feared that the defendant would argue that her applying for and receiving such compensation on the basis of a finding of impairment by the Department of Labor is inconsistent with her claim of being fit for duty without qualification. But, Dr. Butler told us, with emphasis that I recall, that the impairment finding by the Department of Labor had nothing to do with his conclusion, and none of the other doctors disagreed. More significantly, Mr. Dutton never indicated that the Department of Labor finding had anything to do with his demand that doctors Scott and Starr give him additional information or his determination that plaintiff be examined by Dr. Butler. Finally, we have not heard from any witness from the Department of Labor as to the significance of its finding. The trial evidence has rendered the impairment insignificant and I see no reason to instruct the jury to provide an explanation as to why plaintiff applied for and received workmen's compensation.
I predicate all this upon the assumption that the defendant will not argue to the contrary in closing argument. If defendant's counsel intends to, I would appreciate counsel so advising me before the argument since I do not wish to interrupt counsel during closing argument either sua sponte or upon the raising of an objection by plaintiff's counsel.
Plaintiff protests that my instruction will leave the jury with the impression that the violation of her rights without more does not support an award of compensatory damages. The instruction specifically states:"You may award compensatory damages for emotional pain and suffering, inconvenience, and mental anguish if you find they were caused by defendant's retaliation."
Retaliation - Inferences to be Drawn
Plaintiff demands that the jury be instructed as to the kinds of evidence from which it may infer retaliatory motive. Thus, plaintiff argues that the jury is to be told that it may infer retaliatory motive from differences in treatment of employees who engage in protected activity, closeness in time between protected activity, and departures from an employer's ...