Free Uncategorized - District Court of Arizona - Arizona

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Tibor Nagy, No. 007465 Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 00504800 6760 N. Oracle Road, Suite 200 Tucson, Arizona 85704 Telephone: (520) 544-0300 [email protected] Karen Gillen, No. 018008 Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 00504800 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Telephone: (602) 778-3700 [email protected] Attorneys for Charles Schwab & Co., Inc.

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, vs. Charles Schwab Corporation, Defendant. Defendant, Charles Schwab & Co., Inc., by and through its counsel undersigned, and pursuant to this Court's April 24, 2007, hereby submits its Proposed Jury Instructions. No. CV04-0790-PHX-EHC DEFENDANT'S PROPOSED JURY INSTRUCTIONS

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1
(Duty of Jury) Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on the law. You must not infer from these instructions or from anything I may say or do as indicating that I have an opinion regarding the evidence or what your verdict should be. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so. In following my instructions, you must follow all of them and not single out some and ignore others; they are all important.

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Source: Model Civ. Jury Instr. 9th Cir. 1.1(b) (2007)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2
(Preponderance of the Evidence) When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

Source: Model Civ. Jury Instr. 9th Cir. 1.3 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3
(What Is Evidence) The evidence you are to consider in deciding what the facts are consists of: 1. 2. 3. the sworn testimony of any witness; the exhibits which are received into evidence; and, any facts to which the lawyers have agreed.

Source: Model Civ. Jury Instr. 9th Cir. 1.6 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4
(What Is Not Evidence) In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are

not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a

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duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been In addition

instructed to disregard, is not evidence and must not be considered.

sometimes testimony and exhibits are received only for a limited purpose; when I have given a limiting instruction, you must follow it. (4) Anything you may have seen or heard when the court was not in session is

not evidence. You are to decide the case solely on the evidence received at the trial.

Source: Model Civ. Jury Instr. 9th Cir. 1.7 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 5
(Evidence For Limited Purpose) Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

Source: Model Civ. Jury Instr. 9th Cir. 1.8 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 6
(Direct and Circumstantial Evidence) Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

Source: Model Civ. Jury Instr. 9th Cir. 1.9 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 7 (Credibility of Witnesses) In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it. In considering the testimony of any witness, you may take into account: (1) testified to; (2) (3) (4) (5) (6) and (7) any other factors that bear on believability. the witness's memory; the witness's manner while testifying; the witness's interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness's testimony; the reasonableness of the witness's testimony in light of all the evidence; the opportunity and ability of the witness to see or hear or know the things

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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

Source: Model Civ. Jury Instr. 9th Cir. 1.11 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8
(Bench Conferences and Recesses) From time to time during the trial, it became necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury was present in the courtroom, or by calling a recess. Please understand that while you were waiting, we were working. The purpose of these conferences was not to keep relevant information from you, but to decide how certain evidence was to be treated under the rules of evidence and to avoid confusion and error. Of course, we have done what we could to keep the number and length of these conferences to a minimum. I did not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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Source: Model Civ. Jury Instr. 9th Cir. 1.18 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 9
(Impeachment Evidence) The evidence that a witness lied under oath on a prior occasion may be considered, along with all other evidence, in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.

Source: Model Civ. Jury Instr. 9th Cir. 2.8 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 10
(Expert Opinion) Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions. Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Source: Model Civ. Jury Instr. 9th Cir. 2.11 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 11
(Charts and Summaries Not Received in Evidence) Certain charts and summaries not received in evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

Source: Model Civ. Jury Instr. 9th Cir. 2.12 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 12
(Charts and Summaries in Evidence) Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

Source: Model Civ. Jury Instr. 9th Cir. 2.13 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 13
(Evidence in Electronic Format) Those exhibits capable of being displayed electronically will be provided to you in that form, and you will be able to view them in the jury room. A computer, projector, printer and accessory equipment will be available to you in the jury room. A court technician will show you how to operate the computer and other equipment; how to locate and view the exhibits on the computer; and how to print the exhibits. You will also be provided with a paper list of all exhibits received in evidence. (Alternatively, you may request a paper copy of an exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need additional equipment or

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supplies, you may make a request by sending a note. In the event of any technical problem, or if you have questions about how to operate the computer or other equipment, you may send a note to the [clerk] [bailiff], signed by your foreperson or by one or more members of the jury. Be as brief as possible in describing the problem and do not refer to or discuss any exhibit you were attempting to view. If a technical problem or question requires hands-on maintenance or instruction, a court technician may enter the jury room [with [the clerk] [the bailiff] [me] present for the sole purpose of assuring that the only matter that is discussed is the technical problem.] When the court technician or any non-juror is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician or any non-juror other than to describe the technical problem or to seek information about operation of equipment. Do not discuss any exhibit or any aspect of the case. The sole purpose of providing the computer in the jury room is to enable jurors to view the exhibits received in evidence in this case. You may not use the computer for any other purpose. At my direction, technicians have taken steps to make sure that the computer does not permit access to the Internet or to any "outside" website, database, directory, game, or other material. Do not attempt to alter the computer to obtain access 14

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to such materials. If you discover that the computer provides or allows access to such materials, you must inform me immediately and refrain from viewing such materials. Do not remove the computer or any electronic data [disk] from the jury room, and do not copy any such data.

Source: Model Civ. Jury Instr. 9th Cir. 2.14 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 14
(Introduction to Claims) The plaintiff claims that: · · · · · She was terminated based on her national origin. She was terminated based on her gender. She was sexually harassed; and She was retaliated against for engaging in protected conduct.

Schwab denies each of plaintiff's claims. Schwab claims that plaintiff was dismissed because she lied in violation of Schwab's Business Conduct Policy. I will now provide you with the law you must follow with respect to each claim brought by the plaintiff and the defenses raised by Schwab.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 15
(National Origin Discrimination) National origin discrimination means the denial of equal employment opportunity because of a person's place of origin, or the person's ancestor's place of origin, or because the person has the physical, cultural or linguistic characteristics of a national origin group.

Source: 29 C.F.R. § 1606.1.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 16
(National Origin Discrimination) Plaintiff has brought a claim of employment discrimination against Schwab. Plaintiff claims that her national origin (Hispanic) was a motivating factor for Schwab's decision to discharge her. Schwab denies that plaintiff's national origin was a motivating factor for Schwab's decision to discharge her and further claims its decision to discharge her was based upon lawful reasons.

Source: Model Civ. Jury Instr. 9th Cir. 10.1A (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 17
(National Origin Discrimination) Elements And Burden Of Proof As to plaintiff's claim that her national origin was a motivating factor for Schwab's decision to discharge her, the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. plaintiff was discharged by Schwab; and 2. plaintiff's national origin was a motivating factor in Schwab's decision to discharge plaintiff. If plaintiff has failed to prove either of these elements, your verdict should be for Schwab. If plaintiff has proved both of these elements, the plaintiff is entitled to your verdict, even if you find that Schwab's conduct was also motivated by a lawful reason.

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Source: Model Civ. Jury Instr. 9th Cir. 10.1C (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 18
(Proof of Discrimination) Plaintiff cannot rely upon mere speculation to prove her claim that Schwab discriminated against her because of her national original.

Source: Federal Employment Jury Instructions (2000) § 1:1100.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 19
(Gender Discrimination) The plaintiff has brought a claim of employment discrimination against Schwab. The plaintiff claims that her gender was a motivating factor for Schwab's decision to discharge her. Schwab denies that plaintiff's gender was a motivating factor for Schwab's decision to discharge her and further claims its decision to discharge her was based upon lawful reasons.

Source: Model Civ. Jury Instr. 9th Cir. 10.1A (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 20
(Gender Discrimination) Elements And Burden Of Proof As to plaintiff's claim that her gender was a motivating factor for Schwab's decision to discharge her, plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. plaintiff was discharged by Schwab; and 2. plaintiff's gender was a motivating factor in Schwab's decision to discharge plaintiff. If plaintiff has failed to prove either of these elements, your verdict should be for Schwab. If plaintiff has proved both of these elements, the plaintiff is entitled to your verdict, even if you find that Schwab's conduct was also motivated by a lawful reason.

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Source: Model Civ. Jury Instr. 9th Cir. 10.1C (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 21
(Proof of Discrimination) Plaintiff cannot rely upon mere speculation to prove her claim that Schwab discriminated against her because of her gender.

Source: Federal Employment Jury Instructions (2000) § 1:1100.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 22
(Discrimination in Violation of § 1981) Elements And Burden Of Proof As to plaintiff's claim that her national origin was a motivating factor for Schwab's decision to discharge her, the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. plaintiff was discharged by Schwab; and 2. plaintiff's national origin was a motivating factor in Schwab's decision to discharge plaintiff. If plaintiff has failed to prove either of these elements, your verdict should be for Schwab. If plaintiff has proved both of these elements, the plaintiff is entitled to your verdict, even if you find that Schwab's conduct was also motivated by a lawful reason.

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Source: Model Civ. Jury Instr. 9th Cir. 10.1C (April 2007); Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004); Romero v. UPS, 2007 WL 779693, *2 (D. Ariz. Mar. 12, 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 23
(Same Actor Inference) If you conclude that the same person was responsible for hiring and dismissing plaintiff, then you should infer that there was no discrimination based on gender or national origin and return a verdict in favor of Schwab on plaintiff's gender, national origin, and § 1981 claims.

Source: Coghland v. Am. Seafoods Co., 413 F.3d 1090, 1096 (9th Cir. 2005).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 24
(Sexual Harassment) Plaintiff seeks damages against Schwab for a sexually hostile work environment while employed by Schwab. In order to establish a sexually hostile work environment, plaintiff must prove each of the following elements by a preponderance of the evidence: 1. plaintiff was subjected to sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature; 2. the conduct was unwelcome; 3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create a sexually abusive or hostile work environment; 4. the plaintiff perceived the working environment to be abusive or hostile; and, 5. a reasonable woman in the plaintiff's circumstances would consider the working environment to be abusive or hostile. Whether the environment constituted a sexually hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance. Source: Model Civ. Jury Instr. 9th Cir. 10.2A (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 25
(Sexual Harassment) Plaintiff seeks damages from Schwab for a hostile work environment caused by sexual harassment. Plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. Steinert; and 2. a member of Schwab's management knew or should have known of the Plaintiff was subjected to a sexually hostile work environment by Ed

harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment. A person is a member of management if the person has substantial authority and discretion to make decisions concerning the terms of the harasser's employment or the plaintiff's employment, such as authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the plaintiff's employment. A person who lacks such authority is nevertheless part of management if he or she has an official or strong duty in fact to communicate to management complaints about work conditions. You should consider all the circumstances in this case in determining whether a person has such a duty. Schwab's remedial action must be reasonable and adequate. Whether Schwab's remedial action is reasonable and adequate depends upon the remedy's effectiveness in stopping the individual harasser from continuing to engage in such conduct and in discouraging other potential harassers from engaging in similar unlawful conduct. An effective remedy should be proportionate to the seriousness of the offense. If you find that the plaintiff has proved both of the elements on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for Schwab.

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Source: Model Civ. Jury Instr. 9th Cir. 10.2C (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 26
(Subject To Sexual Advances) The law does not prohibit all employment-related verbal or physical harassment. Plaintiff must establish that she was targeted for harassment because of her gender and not merely subjected to non-actionable offensive behavior. Merely being subjected to words having sexual content or connotations does not mean harassment has occurred.

Source: Oncale v. Sundown Offshore Services, Inc., 523 U.S. 75, 80 (1998); Burris v. Safeway, Inc., 2006 WL 2731113, *1 (D. Ariz. Sept. 25, 2006).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 27
(Unwelcome Conduct) In order to determine whether the conduct about which plaintiff complains was unwelcome, you must assess how the plaintiff reacted to the alleged conduct.

Source: Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 28
(Unwelcome Conduct) If you find that plaintiff did not report to a member of management the conduct she alleges was harassment, your verdict should be for Schwab on plaintiff's sexual harassment claim.

Source: Stuart v. Gen. Motors Corp., 217 F.3d 621, 632 (8th Cir. 2000); Balletti v. Sun-Sentinel Co., 909 F.Supp. 1539 (S.D. Fla. 1995).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 29
(Retaliation) Plaintiff claims that Schwab retaliated against her. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: (1) (2) activity. If you find that the plaintiff has proved these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for Schwab. Source: Model Civ. Jury Instr. 9th Cir. 10.3 (April 2007); Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1134-35 (9th Cir. 2006); McGinest v. GTE Gen. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). that plaintiff engaged in an activity protected under federal law; and Schwab discharged the plaintiff because she engaged in the protected

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 30
(Statutorily Protected Activity) In order to establish that she engaged in a statutorily protected activity, plaintiff must present evidence that when she reported that Ed Steinert had engaged in unlawful sexual harassment (1) she had a subjective good faith belief that the conduct had occurred and was sexually abusive or hostile, and (2) her belief was objectively reasonable. If plaintiff has failed to prove either of these elements, your verdict should be for Schwab on plaintiff's retaliation claim.

Source: Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Mayo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994); Little v. United Techs., 103 F.3d 956 (11th Cir. 1997).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 31
(Untrue Statements) An employer is entitled to dismiss an employee if the employer has a good faith belief that the employee lied during the employer's internal investigation. If you find that Schwab had a good faith belief that plaintiff lied during Schwab's internal investigation, and that Schwab dismissed her for that reason, you must find in favor of Schwab.

Source: EEOC v. Total Systems Servs., Inc., 221 F.3d 1171 (11th Cir. 2000); Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990); Unt v. Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir. 1990).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 32
(At-Will Employment) Plaintiff was an at-will employee meaning that she could resign from Schwab at any time with or without notice or cause. Likewise, Schwab could dismiss plaintiff at any time with or without notice and with or without cause.

Source: A.R.S. § 23-1501.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 33
(Business Judgment) If you determine that Schwab dismissed plaintiff based on a legitimate, nondiscriminatory reason then you must find for Schwab on plaintiff's retaliation claim. This is true even if you disagree with Schwab's decision.

Source: Green v. Maricopa County Cmty. College Sch. Dist., 265 F.Supp.2d 1110, 1128 (D. Ariz. 2003); Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000); Simms v. Oklahoma, 165 F.3d 1321, 1330 (10th Cir. 1999).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 34
(Damages) It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by Schwab. It is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture.

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Source: Model Civ. Jury Instr. 9th Cir. 5.1, 5.2 (April 2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 35
(Pain and Suffering) You may consider whether the plaintiff suffered pain and suffering due to the actions of Schwab. However, plaintiff cannot recover damages for any condition that has arisen as a result of this lawsuit or any other proceeding or claim against Schwab.

Source: Knussman v. State of Maryland, 272 F.3d 625, 641-42 (4th Cir. 2001); Clark v. United States, 660 F.Supp. 1164, 1200 (W.D. Wash. 1987), aff'd, 856 F.2d 1443 (9th Cir. 1988); Blakely v. Continental Airlines, Inc., 992 F.Supp. 731, 736 n. 3 (D. N.J. 1998); Stoleson v. United States, 708 F.2d 1217, 1223 (7th Cir. 1983).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 36
(Back Pay) [This instruction should be used only in the event the Court elects to give the issue of equitable relief to the jury]

If you find that Schwab discriminated or retaliated against plaintiff, then you may determine the amount of back pay that plaintiff has proven was caused by Schwab's wrongful conduct. Any backpay award is limited to the actual economic loss, if any, sustained by plaintiff. In determining backpay, you should first calculate the amount of pay plaintiff would have earned if she was not terminated on November 5, 2003 until the present. You must then subtract any and all wages earned by plaintiff from November 6, 2003 until the present from this figure.

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Source: 42 U.S.C. § 2000e-5(g); Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1020-21 (9th Cir. 2000).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 37
(Mitigation) The plaintiff has a duty to use reasonable diligence to mitigate damages by seeking and maintaining substantially similar employment. In order to show that plaintiff did not attempt to reduce or avoid any damages, Schwab must prove by a preponderance of the evidence: 1. 2. that the plaintiff failed to use reasonable efforts to mitigate damages; and the amount by which damages would have been avoided or reduced.

[The following paragraphs should be used only in the event the Court elects to give the issue of equitable relief to the jury] If you find that plaintiff failed to exercise reasonable effort to mitigate her damages by not seeking or maintaining similar employment, plaintiff is not entitled to any backpay. If you find that plaintiff voluntarily quit a job or was terminated for cause, she cannot recover backpay for any period of unemployment that occurred after she quit or was terminated for cause. If you find that plaintiff failed to exercise reasonable diligence in looking for a comparable job after her termination, then she is not entitled to any recovery for backpay for periods of unemployment that occurred as a result of her failure to exercise diligent efforts to find alternative employment.

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Source: Model Civ. Jury Instr. 9th Cir. 5.3 (April 2007); Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1020-21 (9th Cir. 2000); 42 U.S.C. § 2000e-5(g); Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1277 (4th Cir. 1984).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 38
(Punitive Damages) If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate a plaintiff, but to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that Schwab's conduct was malicious, oppressive or in reckless disregard of the plaintiff's federally protected rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety or rights, or Schwab acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In

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considering punitive damages, you may consider the degree of reprehensibility of Schwab's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. Source: Model Civ. Jury Instr. 9th Cir. 5.5 (as modified) (2007); Kolstad v. American Dental Ass'n., 527 U.S. 526, 540-544 (1999); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516-17 (9th Cir. 2000). Given ____ Refused ____ Modified ____ Withdrawn ____ .
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 39
(Affirmative Defense to Punitive Damages) If you find that Schwab has taken good faith efforts to comply with federal law, then you may not award plaintiff punitive damages. Schwab's establishment, implementation, and enforcement of anti-discrimination policies is evidence that Schwab has made a good faith effort to prevent discrimination and comply with federal law.

Source: Kolstad v. American Dental Ass'n., 527 U.S. 526, 545 (1999); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516-17 (9th Cir. 2000).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 40
(Duty to Deliberate) When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not hesitate to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

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Source: Model Civ. Jury Instr. 9th Cir. 3.1 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 41
(Communications with Court) If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to

communicate with me except by a signed writing; I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone--including me--how the jury

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stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

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Source: Model Civ. Jury Instr. 9th Cir. 3.2 (2007).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 42
(Return of Verdict) A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

Source: Model Civ. Jury Instr. 9th Cir. 3.3 (2007).

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RESPECTFULLY SUBMITTED this 18th day of May 2007. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

By: s/ Karen Gillen Karen Gillen 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Tibor Nagy 6760 N. Oracle Road, Suite 200 Tucson, Arizona 85704 Attorneys for Charles Schwab & Company, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on the 18th of May 2007, I electronically transmitted the foregoing document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Dawn C. Valdivia, Esq. Quarles Brady Streich Lang, LLP Two North Central Avenue Phoenix, Arizona 85004 Attorneys for Plaintiff Marcela Johnson

s/ Stephanie A. O'Dell

11
4966614.1

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