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Downing v. Department of Finance and Administration

United States District Court, E.D. Arkansas, Western Division

March 29, 2018

DEPARTMENT OF FINANCE AND ADMINISTRATION, an Agency of the State of Arkansas; BOB HAUGEN and DAVID JUSTICE, Both in their Individual and Official Capacities DEFENDANTS



         1. Schedule. We'll start trial as planned on Monday, 2 April 2018 in Courtroom 1A of the Richard Sheppard Arnold United States Courthouse. The Court will hold another pretrial at 10:00 Monday morning to discuss the final exhibits and law issues, as needed. The voir dire will begin at 1:00 p.m. We'll pick our jury, do the preliminary instructions, and open Monday afternoon. The proof will start at 8:30 a.m. Tuesday and each morning thereafter. Counsel should arrive by 8:15 each morning.

         2. Pending motions. For the reasons stated on the record at yesterday's pretrial hearing, the motion to reconsider, No. 92, is denied with caveats. And the motion to quash Haugen's subpoena, No. 99, is granted in part and denied in part.

         3. Jury instructions. The Court is attaching its working drafts of (1) the voir dire, (2) the preliminary instructions, (3) the final instructions, (4) the questions/verdict, and (5) the Rehab Act damages instruction and question. After further thought, the Court agrees with the parties that the second part of draft Question 1 - about the business-judgment rule - shouldn't go to the jury. Instead, this issue will be tried to the Court. Liability and damages will be bifurcated, as discussed yesterday.

         4. Damages. The Court is inclined to agree with Downing that emotional distress damages are available, but the Court is continuing its research and thinking on this point. These drafts include that line item. If the law is unclear, submission seems the route most likely to avoid a retrial after any appeal. The Court will hear further argument if we get there.

         5. Witnesses and Exhibits. The Court appreciates the parties7 electronic and paper copies of the potential witnesses and exhibits. Please continue collaborating on the audit documents. And please alert the Court as soon as possible with updated electronic copies of Downing's exhibits if there is an agreement on more redactions. During trial, by the close of business each day counsel should let each other know who they'll be calling the following day.

         6. Voir Dire. The Court will conduct most of the voir dire, with follow-up by each side -ten to fifteen minutes at most. Please focus your questioning. Voir dire is not a time to explain the law or the burden of proof, to explain what the case is about, to seek commitments, or to pump the potential jurors full of fairness. Instead, please ask lean questions about potential jurors' experiences and views to ferret out bias. If the parties would prefer to have the Court ask certain questions, please submit them to chambers for consideration by close of business on Friday, 30 March 2018.

         7. Openings and Closings. Twenty minutes a side for opening Monday afternoon. Five-minute mini-openings a side every morning thereafter. Thirty minutes a side for closing. Downing may reserve some rebuttal.

         8. Objections. Please avoid speaking objections in front of the jury. A word or two will do. If the Court needs to hear more, we'll have a bench conference.

         So Ordered.

         (1) VOIR DIRE

         A. Preliminaries

         • Thank you for serving. Echo "Called to Serve”

         • A morning of speaking the truth, voir dire = twelve people good and true.

         • Two to three days - school day.

         • Urgent or extraordinary obligations this week?

         • Rules of the Road:

- Can I be completely fair and impartial?
- Can I decide the case based solely on the evidence seen and heard in this courtroom, the law as explained by the Court, and my common sense?
- Questions and Answers. You = you and your immediate family.
- Raise your hand, state your name, and answer.
- Can answer at the bench if uncomfortable answering a particular question in front of others.
- Eighteen, but all - Notepads.
- Questionnaires. Summary. Confirm lawyers have.
- Case Sketch - Not evidence, just background
i. This is a civil case. The Plaintiff, William Downing, is suing his former employer, the Department of Finance and Administration, and two of his managers there, Bob Haugen and David Justice. After a few years working at the Department, Downing needed hip-replacement surgery. He went on twelve weeks of FMLA leave.

         When he returned, he had some permanent hip-related restrictions from his doctor. Downing says the Department and his managers changed his job, failed to accommodate his physical limitations, and ultimately fired him because of his leave and his limitations. The Department, Haugen, and Justice say they didn't change the job, tried to accommodate Downing's limitations, and fired him only because he couldn't do key parts of the job. The jury will decide what the facts truly are.

         • Introductions

         - Plaintiff William R. Downing Jr.

         Lawyers = Luther Sutter and Luc Gillham

         - Defendants Department of Finance and Administration, Bob Haugen, and David Justice Lawyers = Jennifer Merritt and Christine Cryer

         - Haugen excused because of illness.

         - Witnesses [Read Lists]

         - Know the parties? Lawyers? Witnesses?

         B. Call Eighteen, But All - Notepads

         C. General Background Questions

         • Know other panel members? Know lawyers or Court staff? Know witnesses?

         • Legal training or experience? Deal with the law regularly through work?

         • Prior jury service?

         • Prior court experience? Sued or been sued? Witness?

         • Religious convictions against sitting in judgment?

         • Negative feelings about civil justice system?

         - Too many lawsuits?

         - If sue, then win? D. Case-Specific Questions

         Remember, answer about you and your immediate family; approach to answer sensitive questions

         • Employed in personnel or human resources? Involved at work in approving or disapproving leave by other employees?

         • Anyone ever employed by a state agency? A state-funded program?

         • Anyone work regularly with folks from the Department of Finance and Administration?

         • Anyone ever taken FMLA leave from work?

         • Anyone ever had a physical disability?

         • Anyone ever sought a workplace accommodation for a physical disability?

         • Any prior experience with the Department of Finance and Administration?

         • Any strong opinions about the Department of Finance and Administration and the work it does?

         • Anyone ever bought surplus property from the Department of Finance and Administration?

         E. Juror Question Time

         F. The Unasked Question?

         G. Lawyers' Follow-Up Questions? Fed.R.Civ.P. 47(a).

         H. Strikes for Cause. Fed.R.Civ.P. 47(c).[*]

         I. Peremptory Challenges. Fed.R.Civ.P. 47(b).[**]

         • Three each side.

         • Challenging Strikes. Race or Gender? Batson.[***]

         J. Seat and Swear Jury.

         "You and each of you do solemnly swear or affirm to well and truly try the matter now on trial and render a true verdict according to the law and the evidence, so help you God."

         K. Thanks and Goodbye venire.



         Ladies and gentlemen, I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all these instructions-both those I give you now and those I give you later - are equally binding on you and must be followed.

         I am the judge of the law and you are the judges of the facts. As judges of the facts, it's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation.

         This is a civil case. As I said, William Downing has sued his former employer, the Arkansas Department of Finance and Administration, and two of his former managers there, Bob Haugen and David Justice. The Department of Finance and Administration is a state agency that handles, among many other things, the redistribution and sale of surplus property used in state government. The surplus property includes things like office furniture, vehicles, computers, and furnishings. Mr. Downing worked for the Department handling this surplus property. He worked in the warehouse, did some computer tasks, and made online sale.

         Downing has hip problems. He asked for, and received, twelve weeks of FMLA leave because he needed hip-replacement surgery. About a month after he returned to work, Downing's doctor concluded that Downing couldn't work more than two days a week in the warehouse or lift anything heavier than fifty pounds. The Department decided that Downing could no longer perform the essential functions of his job. Downing was fired.

         Downing alleges that the Department, Haugen, and Justice violated the Family Medical Leave Act, the Americans with Disabilities Act, and the Rehabilitation Act. He says they unlawfully changed his job while he was on leave, didn't accommodate his physical limitations, and then fired him for discriminatory reasons. The Department, Haugen, and Justice say they didn't change the job, tried to accommodate Downing's limitations, and fired him only because he couldn't do key parts of the job.

         Haugen is ill. I've excused him from attending the whole trial. If he is well enough later in the week, he”ll testify. We'll see. I'll keep you posted. Don't hold it against Haugen, Justice, or the Department that Haugen isn't here. And don't lean in Haugen's favor out of concern for his health.

         From all the evidence, you will decide what the facts are and answer the liability questions I'll list for you in a moment. Your answers to these questions will be your verdict in this case. You are entitled to consider all the evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. Depending on your answers to the liability questions, the Court may ask you some questions about damages.

         Do not allow any sympathy or any prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

         You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.


         I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, documents, and other things received as exhibits, any facts that have been stipulated - that is, formally agreed to by the parties - and any facts that have been judicially noticed-that is, facts which I say you may, but are not required to, accept as true, even without evidence.

         Certain things are not evidence:

1. Statements, arguments, questions, and comments by lawyers representing the parties in the case are not evidence.
2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.
3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.
4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.

         Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.

         Finally, some of you may have heard the terms " direct evidence" and "circumstantial evidence." You should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

         PRELIMINARY ...

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