FCPS Appellee's Brief and Cross Appeal

Appellate review in Petrilli v Silberman, and whether former Booker T Washington Principal Peggy Petrilli is granted a new trial, hangs on the question of Judge James Ishmael’s threshold jury instruction:

“Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?”

Juries have tremendous power over people's lives. Granting them such power directly expresses our faith in the system of justice, democratic governance, and whether the public has faith that jury verdicts can be fair, unbiased, and accurate.

In recent years, however, concerns have been raised about the quality and integrity of the outcomes reached by juries. Some believe that jurors are too frequently biased, or incompetent to render just verdicts. Jurors can misunderstand instructions from the judge on legal issues, fail to recall critical evidence, or suffer from boredom during trials - particularly in complex trials.
For these reasons, and perhaps others, the quality of jury instructions is critical to guiding the jury toward a result that is based on sound legal principles rather than biased, arbitrary or sloppy reasoning.

The central question under review in Petrilli v Silberman is whether a fair set of jury instructions existed, but there's some other stuff too. The district wants the Court of Appeals to agree that Petrilli voluntarily resigned and leave Fayette County Circuit Court Judge James Ishmael's ruling undisturbed. They request the court to confirm the trial jury or alternatively grant the district's cross appeal for a directed verdict on all issues, which would pretty much do the same thing.

KSN&C had hoped to present the district’s arguments alongside those of Appellant Peggy Petrilli, but we were unable to secure the cooperation of counsel for the school district. KSN&C thanks Sam Givens at the Kentucky Court of Appeals and Judge Ishmael for their assistance.

The following is a summary of the district’s point of view.

District arguments in Petrilli v Silberman:

· The threshold jury instruction was not preserved for review. This is a procedural argument and I won’t pretend to understand its subtleties. Apparently, in order to “preserve” an issue for appellate review, the attorney must …do something…like object. Objections are preserved for appellate review only if those objections are made and ruled on in the trial court. And McNeil argues that Dale Golden’s objections came during a preliminary hearing, as KSN&C has reported. See: Nebraska Law Review for a discussion. So, if I’ve got this argument right, McNeill says Golden objected to the jury instruction during a preliminary hearing, but not in the trial court, and therefore, it was not properly preserved. I would only note that during oral argument, the judges were aware of this argument but at least two of the judges did not appear to be buying it.

· McNeill says the threshold jury instruction was proper. Golden seeks what is called a de novo review of Judge Ishmael’s threshold jury instruction and McNeill says that’s not the correct way for the court to look at it. “The threshold jury instruction was proper because once the jury found that Petrilli voluntarily resigned, she could no longer meet the essential elements necessary to prove her claims of an adverse employment action.” McNeill pins his position on the argument that Petrilli was not under any time pressure (which might give rise to a constructive discharge) because she first brought up the idea of resignation, did so with advice from counsel, negotiated her separation, and had been given options to avoid resignation, including suspension with pay, which McNeill told the court was not an adverse employment action. Again, it is not clear that the appellate judges bought this argument.

· The district argues that Petrilli had no right to a constructive discharge jury instruction because it was not properly preserved, Petrilli’s arguments are misleading, and that during the pre-trial stage of the case, Golden had argued that they were not making a constructive discharge claim.

· McNeill argues that the court erred in not granting the district a directed verdict on the reverse discrimination claim and that Petrilli did not suffer an adverse employment action. McNeill says Petrilli confuses not wanting to resign with choosing to voluntarily resign once confronted with substantial complaints about her running of the school.

· McNeill states that Petrilli was qualified to serve as principal…

· ..but that she was replaced by a white man, Jock Gum. Gum had served as an interim principal, finishing out the year. However, the hiring of Wendy Brown, a black woman, was at the core of the case, and here McNeill argues that Silberman and the board could not be held responsible because it was the school council who hired Brown.

· The district says that the court improperly failed to grant their motion for a directed verdict on retaliation claims, whistleblower claims.

· …that the trial court was correct to excuse Brenda Allen from any claims.

· …that the court properly handled jury selection.

· …that the trial court was correct to disallow testimony from Allen.

· …that the court was correct to overrule complaints from Golden against McNeill, and a requested second deposition of Doug Adams. During oral argument, one judge made statements inferring that the misconduct claim would likely go nowhere.

· …that the court was correct to overrule Petrilli’s Motion in Limine on prior bad acts when it allowed testimony on related issues at BTWA.

· …some lawyerly something about how McNeill used depositions to impeach and rehabilitate witnesses…

· That the court erred by refusing to dismiss Silberman as officially and as an individual.