TRIAL BRIEF Plaintiff's Brief in Support of Jury Charge by Shannon Corbett. (Harris, Carrie)¶
Corbett v. Texas Tech University Health Sciences Center, No. 5:21-cv-00281-H (N.D. Tex.) · Dkt. 54 · 2023-07-03 · PDF
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Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 1 of 6 PageID 792 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION § § § § § § § § § § SHANNON CORBETT Plaintiff, V. TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Defendant. CASE NO. 5:21-CV-00281-H __________________________________________________________________ PLAINTIFF’S BRIEF IN SUPPORT OF HER PROPOSED JURY CHARGES ______________________________________________________________ Carrie A. Harris, Esq. Texas Bar No. 24094705 Matthew L. Harris, Esq. Texas Bar No. 24072812 MATTHEW HARRIS LAW, PLLC 1101 Broadway Lubbock, Texas 79401 Tel. (806) 702-4852 Fax (800) 985-9479 FrontDesk@MatthewHarrisLaw.com Attorneys for Plaintiff Shannon Corbett July 3, 2023 i Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 2 of 6 PageID 793 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION § § § § § § § § § § SHANNON CORBETT Plaintiff, V. TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Defendant. CASE NO. 5:21-CV-00281-H __________________________________________________________________ PLAINTIFF’S BRIEF IN SUPPORT OF HER PROPOSED JURY CHARGES __________________________________________________________________ TO THE HONORABLE JUDGE JAMES WESLEY HENDRIX: NOW COMES Shannon Corbett, hereinafter called Plaintiff, who files this, her Brief in Support of her Proposed Jury Charges and will show the Court as follows: I. SUMMARY OF THE ISSUES 1. Plaintiff will show that a jury instruction on the Ellerth/Faragher affirmative defense will unfairly surprise Plaintiff. 2. Plaintiff will show that Fifth Circuit Pattern Civil Jury Instruction 11.22 (2020) should follow a jury charge on the affirmative defense of mitigation to the extent that the affirmative defense of mitigation is included in the jury charge. II. BACKGROUND 3. In Defendant’s Original Answer and Affirmative Defenses to Plaintiff’s First Amended Petition (Dkt. 1-16) and the Joint Report Regarding Contents of Scheduling Order (Exhibit A), Defendant Texas Tech University Health Sciences Center (“TTUHSC” herein) pled the Page 2 of 6 Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 3 of 6 PageID 794 affirmative defense of mitigation. 4. In the Joint Pretrial Order (Dkt. 40), TTUHSC omitted the affirmative defense of mitigation and pled the following: — Dkt. 40, p. 3. III. A JURY INSTRUCTION ON THE ELLERTH/FARAGHER AFFIRMATIVE DEFENSE WILL UNFAIRLY SURPRISE PLAINTIFF 5. Central to requiring the pleading of affirmative defenses is the prevention of unfair surprise. Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987). A defendant should not be permitted to “lie behind a log” and ambush a plaintiff with an unexpected defense. Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987). 6. A final pretrial order supersedes all previous pleadings. Rockwell Intern. Corp. v. United States, 549 U.S. 457, 474, (2007). 7. The elements of the Ellerth/Faragher affirmative defense are that: (a) the employer exercised reasonable care to prevent and correct promptly the harassing behavior; and (b) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 8. In Perales, the United States District Court for the Western District of Texas adopted an Eleventh Circuit opinion in holding that a defendant adequately pled the Ellerth/Faragher affirmative defense when the defendant expressly pleaded the first element of the Ellerth/Faragher defense and the affirmative defense of plaintiff's failure to mitigate her damages. Perales v. YesA Page 3 of 6 Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 4 of 6 PageID 795 Communities, Inc., No. CIV. SA-12-CA-450-PM, 2013 WL 3245357, at *7 (W.D. Tex. June 26, 2013). 9. TTUHSC requests that the Court insert a jury instruction on the Ellerth/Faragher affirmative defense. See Joint Proposed Jury Charge, p. 14. TTUHSC has failed to plead the first element of the Ellerth/Faragher affirmative defense since its assertion in the Joint Pretrial Order does not allege that TTUHSC exercised reasonable care to prevent the harassing behavior. TTUHSC does not assert that “promptly responding to Plaintiff’s charge of discrimination filed with the Texas Tech University System Office of Equal Opportunity (“EO”)” prevents the harassing behavior complained of by Plaintiff. Additionally, since the Joint Proposed Jury Charge supersedes Dkt. 1-16 and Exhibit A, TTUHSC explicitly abandoned the affirmative defense of mitigation. 10. Therefore, this Court should DENY TTUHSC’s request to insert Ellerth/Faragher affirmative defense in the jury instructions, as well as the applicable jury questions, because it constitutes a surprise to Plaintiff because TTUHSC never pled the defense. IV. FIFTH CIRCUIT PATTERN CIVIL JURY INSTRUCTION 11.22 (2020) SHOULD FOLLOW A JURY CHARGE ON THE AFFIRMATIVE DEFENSE OF MITIGATION TO THE EXTENT THAT THE DEFENSE IS INCLUDED IN THE JURY CHARGE 11. Although duty to mitigate damages falls squarely on a Title VII and TCHRA claimant, the employer has burden of proving failure to mitigate. Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990); see also Jackson v. Host Intern., Inc., 426 Fed. Appx. 215, 222 (5th Cir. 2011). To meet this burden, an employer may demonstrate that substantially equivalent work was available and that a Title VII and TCHRA claimant did not exercise reasonable diligence to obtain it. Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990); see also Jackson v. Host Intern., Inc., 426 Fed. Appx. 215, 222 (5th Cir. 2011). Page 4 of 6 Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 5 of 6 PageID 796 12. The 5th Circuit Pattern Jury Charge 11.14 clearly shows that the affirmative defense of failure to mitigate should not be provided without context. In contrast to TTUHSC’s proposed jury charge (See Joint Proposed Jury Charge, p. 14), 5th Circuit Pattern Jury Charge 11.14 requires a court to provide the jury with an explanation of the three elements a defendant must prove in order to succeed on mitigation: — Fifth Circuit Pattern Civil Jury Instruction 11.22 (2020), p. 225-26. 13. Therefore, to the extent that the Court finds that TTUHSC did not completely abandon the affirmative defense of mitigation in the Joint Pretrial Order, this Court should include the entire Fifth Circuit Pattern Civil Jury Instruction 11.22 on the affirmative defense of mitigation and the accompanying questions [5th Cir. PJC 11.14]. WHEREFORE, PREMISES CONSIDERED, Shannon Corbett prays that the Court GRANT Plaintiff Brief in Support of her Proposed Jury Charges in accordance with the issues set Page 5 of 6 Case 5:21-cv-00281-H Document 54 Filed 07/03/23 Page 6 of 6 PageID 797 forth in this brief. Respectfully submitted, MATTHEW HARRIS LAW, PLLC 1101 Broadway Lubbock, Texas 79401-3303 FrontDesk@MatthewHarrisLaw.com Tel: (806) 702-4852 | Fax: (800) 985-9479 Carrie A. Harris, Esq. State Bar No. 24094705 Attorney for Plaintiff Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Federal Rules of Civil Procedure on July 3, 2023, in the manner indicated below. Carrie A. Harris, Esq. Attorneys for Defendant OFFICE OF THE ATTORNEY GENERAL Yvonne D. Bennett Heather L. Dyer P.O. Box 12548 Austin, Texas 78711-2548 Yvonne.Bennett@oag.texas.gov Heather.Dyer@oag.texas.gov Tel: (512) 463-2120 | Fax: (512) 320-0667 Via Email Page 6 of 6