Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 117-5

Filed 05/26/2006

Page 1 of 3

Pa t 'C mp t gIs u t nN . 6 lnis o ei n t co o 2 if f n r i ADEA Claims and Elements T efd rl g Dsr n t ni E l me t c (wl a i h A E o "g h e ea A e i i ai n mp y n A tI ic lt e D A rA e c mi o o l lt a t h ratrpo it d ci n t ni a a p c o e l me tw eh rnh i , c , ee f ) rh i i r ai n l s e t f mp y n, h te i i g " e b s s mi o l s o r n in terms and conditions of employment, in firing, in retirement, or in rehiring, against any person over forty (40) years of age. To prove his claim of age discrimination, Mr. Cadorna must prove the following three (3) essential elements by a preponderance of the evidence: (1) That Plaintiff Cadorna was within the protected age group, that is, was forty years of age or over, at the time of his termination or teCts eu a t ri tt o h i'rfs l e s e r y o na otherwise grant him full relief; (2) That Plaintiff Cadorna was involuntarily terminated from his employment, or denied reinstatement or other full monetary relief by Defendant City and County of Denver; (3) That Pa t C d ra age was a motivating factor in his termination or in lni a on ' if f s teD fn a t i'rfs l ri tt h or pay him other full monetary relief in lieu h ee d n Cts eu a t e s e i y o na m of reinstatement. You are hereby instructed that Plaintiff has already established the first two e s ni e me t T eeoe y uaeo lc ldu o t d tr n w eh r lnis se t l l ns h rfr, o r n ae p n o eemi h te Pa t ' a e . y l e if f age was a motivating factor for his termination, o frh Cts eu a t ri tt h ro te i'rfs l e s e i y o na m or otherwise grant him full monetary relief after it decided that he did not commit the offense for which he was terminated.

Case 1:04-cv-01067-MSK-CBS

Document 117-5

Filed 05/26/2006

Page 2 of 3

Plaintiff is not required to prove that his age was the sole motivation or even the primary motivation for D fn a t a t n a a s h The plaintiff need only prove ee d n' co s g i t i s i n m. that his age was a moi t gfc rnD fn a t a t n a a s h ta i ta h tai a t i ee d n' co s g i t i h t ,h t i v n o s i n m, s s age played a part in D fn a t a t n a a s h ee d n' co s g i t i s i n m. Plaintiff is not required to produce direct evidence of unlawful motive. After all, Intentional discrimination is seldom admitted. It must normally be inferred from circumstantial evidence, that is, the existence of other facts tending to show that Plainis g w s r le ta n t moi t gfc rnD fn a t a t n t 'a e a moe i l h n o a tai a t i ee d n' co s f f ky v n o s i against him. One form of such circumstantial evidence is proof that the reason given for the action against the plaintiff is false, that is, a pretext, for discrimination. Direct evidence is explicit proof of discrimination, in the form of statements or policies that clearly show that an unlawful motive was a motivating factor in an employment decision. Statements by decision-makers for the City that they terminated or refused reinstate full monetary relief to Plaintiff because of his age would be direct evidence of age discrimination. This is an unusual case, in that Plaintiff has introduced direct evidence to prove that the City refused to reinstate him or grant him full monetary relief because of his age. The direct evidence on which Plaintiff relies is the Civil Service Commission Hearing Officer' and the Civil Service Commission' e pc rln eu o t fact s , s x li ea c p n he , it i Plaintiff is over 50 years old to justify their refusal to reinstate him as a firefighter, or grant him full monetary relief in the place or reinstatement.

Case 1:04-cv-01067-MSK-CBS

Document 117-5

Filed 05/26/2006

Page 3 of 3

If you find that Plaintiff has proved by a preponderance of the evidence that, if he had been younger, or under 40, Defendant City would not have terminated him, you must find that his termination constituted unlawful age discrimination. Likewise, if you find that Plaintiff has proved by a preponderance of the evidence that, if he had been younger, or under 40, the City would have reinstated him and/or granted him full monetary relief after deciding that he did not commit the offense used to justify his termination, o mu ti ta teCts eu a t ri tt h o oh r i y u s f d h th i'rfs l e s e i r tews n y o na m e grant him full monetary relief for his termination constituted unlawful age discrimination. I should remind you that the ADEA only prohibits discrimination against Plaintiff because of his age. You may not find that the Defendant committed age discrimination j t e a s y ufe Pa t 'tr n t nor inability to get his job back or win other u b c u e o e l lnis emi i s if f ao monetary relief was unfair. You must find that his age was a motivating factor in D fn a t a t n a a s h ee d n' co s g i t i s i n m.

Authority: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir. 1992). 3 Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions §106.03 (2000). Eleventh Circuit Pattern Jury Instructions, §1.4.1 (2000). 29 U.S.C.A. §623 3 Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions §106.01 (2000).