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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

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Case 5:21-cv-00281-H

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
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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

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
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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
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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
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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).
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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
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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

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