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Mwaniki v. eBay9/23/2005
that she was discharged, harassed, denied promotion, denied equal pay, and retaliated against because of her race and national origin. After summary judgment proceedings and stipulations, the only theory remaining for trial was plaintiff's claim that she had been discharged in retaliation for supporting the contractor's discrimination claim. Plaintiff submitted the evidence about her support of the contractor's claim of discrimination. Defendant submitted the evidence about plaintiff's misrepresentation of the Netscape scripts. It also relied on evidence that the supervisor who discharged plaintiff did not know of the contractor's claim or plaintiff's support for the claim. Significantly, plaintiff offered no evidence that her automation group was testing Netscape web browsers at the time she had affirmed that fact.
The parties presented competing jury instructions on liability both of which were derived from CACI No. 2505. The trial court accepted plaintiff's proposed instruction, and rejected defendant's proposed instruction. It ultimately instructed the jury in the language of CACI No. 2505 as follows: "To establish [the retaliation] claim, [plaintiff] must prove all of the following: One, that [plaintiff] gave statements to [defendant] that supported [the contractor's] charge of discrimination. Two, that [defendant] discharged [plaintiff]. Three, that [plaintiff's] having given statements to [defendant] that supported [the contractor's] charge of discrimination was a motivating reason for [defendant's] decision to discharge [plaintiff]. Four, that [plaintiff] was harmed, and five, that [defendant's] retaliatory conduct was a substantial factor in causing [plaintiff's] harm."
The parties disagreed on the need to instruct on a mixed-motive affirmative defense. The trial court agreed with defendant and ultimately instructed the jury over plaintiff's objection in the language of BAJI No. 12.26 as follows: "If you find that the employer's action, which is the subject of plaintiff's claim, was actually motivated by both retaliatory and nonretaliatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision. [ ] An employer may not, however, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Neither may an employer meet its burden by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. [ ] The essential premise of this defense is that a legitimate reason was present, and standing alone, would have induced the employer to make the same decision."
The parties agreed on the need to instruct on the definition of "substantial factor," and the trial court ultimately instructed the jury in the language of CACI No. 430 as follows: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm."
The parties jointly prepared the verdict form based on CACI VF-2504, which tracked CACI No. 2505 through the first four questions. Plaintiff objected to questions 5, 6, and 7, which pertained to the mixed-motive affirmative defense.
The first four questions, answers, and instructions on the special verdict form read as follows.
"1. Did [plaintiff] give statement(s) to [defendant] that supported [the contractor's] charge of discrimination? [Answer: Yes.]
"If your answer to question 1 is yes, then answer question 2
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