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Clifford v. American Drug Stores8/22/2005
them unduly prominent although the instruction may be a legal proposition. [Citations.] . . . Repetitious reference, in the instructions, that under the circumstances related the jury `must find in favor . . . of defendant' has been condemned. [Citation.]" (Dodge v. San Diego Electric Ry. Co., supra, 92 Cal.App.2d at p. 764.)
Sav-On's first examples of repetitive instructions were BAJI No. 12.05 and one following it, instructing with regard to harassment. A closer look at Sav-On's argument reveals that its complaint is that the second instruction was not repetitive enough. The trial court read BAJI No. 12.05, which included the following: " he harassing conduct . . . was unwelcome and sufficiently severe or pervasive that it had the purpose of effect of altering the conditions of plaintiff's employment and creating an intimidating, hostile, abusive, or offensive working environment . . . ." A short time later, the trial court instructed: "In determining what constitutes sufficiently pervasive harassment, the acts of harassment cannot be occasional, isolated, sporadic, or trivial."
After stating its position that the instructions were repetitive and unduly emphasized Clifford's case, Sav-On contends that the second instruction was erroneous because it did not repeat the requirement that harassing conduct be "`severe and pervasive."' Sav-On has already argued against its own position, and we need not address it further.
Sav-On also contends that the second instruction was inconsistent with BAJI No. 12.05. We disagree. It merely defined pervasive, which was included in BAJI No. 12.05 without definition.
Next, Sav-On contends that the retaliation instructions were conflicting. Again, Sav-On's argument conflicts with its contention that the instructions were repetitive. An instruction cannot be both repetitive and conflicting.
Sav-On acknowledges that as read, BAJI No. 12.10 was correct insofar as it defined an adverse employment action as a "materially adverse change in the terms of plaintiff's employment . . . [that] must be both detriment and substantial. . . ."
Sav-On claims error, however, in the following instruction setting forth the elements of a discrimination cause of action: "One, defendants are the employer; two, plaintiff was an employee of the defendants; three, defendants made decisions adverse to the plaintiff in regards to compensation and terms, conditions, or privileges of employment; four, the plaintiff's claim of sex harassment and/or retaliation were motivating factors in the defendant's decision; and five, the defendant's decision caused plaintiff injury, damage, loss, or harm."
The instruction just quoted was incorrect, Sav-On contends, because it left out the qualification that the adverse employment action be "material" and "substantial." Thus, once again, Sav-On complains that the instruction is erroneous, because it is
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