Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Luis F. Ramirez (#022653) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Marcela Johnson, Plaintiff,

NO. CV 04-0790 PHX-EHC PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

Charles Schwab Corporation, Defendant. Plaintiff Marcela Johnson, by and through undersigned counsel, pursuant to Rules 51 of the Federal Rules of Civil Procedure and Rules of Practice for the District of Arizona and the Court's Order dated April 20, 2007, submits the following proposed jury instructions. Some of the instructions may not be necessary during or at the end of the case (e.g. charts, summaries, stipulations, limited purpose evidence). Plaintiff provides those instructions in the event the need arises during trial for them. I. PLAINTIFF'S PROPOSED MODEL CIVIL JURY INSTRUCTIONS § 1.1B Duty of Jury § 1.2 Claims and Defenses § 1.3 Burden of Proof - Preponderance of the Evidence § 1.6 What Is Evidence

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§ 1.7 What is Not Evidence § 1.8 Evidence for a Limited Purpose § 1.9 Direct and Circumstantial Evidence § 1.10 Ruling On Objections § 1.11 Credibility Of Witnesses § 1.12 Conduct Of The Jury § 1.13 No Transcript Available To Jury § 1.14 Taking Notes § 1.18 Bench Conferences and Recesses § 1.19 Outline Of Trial § 2.1 Stipulations Of Testimony § 2.2 Stipulations Of Fact § 2.4 Depositions in Lieu of Live Testimony § 2.10 Use of Interrogatories of a Party § 2.12 Charts and Summaries Not Received in Evidence § 2.13 Charts and Summaries in Evidence § 3.1 Duty to Deliberate § 3.2 Communication With Court § 3.3 Return Of Verdict § 5.1 Damages--Proof § 5.2 Measures of Types of Damages § 5.5 Punitive Damages §10.1A Civil Rights--Title VII--Disparate Treatment--Where Evidence Supports "Sole Reason" or "Motivating Factor" §10.2A Civil Rights--Title VII--Hostile Work Environment--Harassment Because of Protected Characteristics--Elements

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§ 10.2C Civil Rights--Title VII--Hostile Work Environment Caused by NonImmediate Supervisor or by Co-Worker--Claim Based on Negligence § 10.3 Civil Rights--Title VII--Retaliation--Elements and Burden of Proof PLAINTIFF'S PROPOSED NON-MODEL INSTRUCTIONS PL'S No. 1 42 U.S.C. § 1981

RESPECTFULLY SUBMITTED this 18th day of May, 2007. QUARLES & BRADY LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Luis F. Ramirez Attorneys for Plaintiff Marcela Johnson

I hereby certify that on May 18, 2007, I electronically transmitted the attached 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: Joseph T Clees Michelle Hamilton Ganz Tibor Nagy Karen Gillen [email protected] [email protected] [email protected] [email protected]

A copy of this document was provided to The Honorable Earl H. Carroll. 18 19 20 21 22 23 24 25 26 s/ Jeannie Fraser

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SECTION I ­ NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS 1.1B 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.

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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1.2

CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the parties: Plaintiff Marcela Johnson, a Hispanic female, claims that Defendant Charles Schwab discriminated against when it subjected her to unwelcome sexual comments and touching and terminated her employment. Plaintiff claims that her gender, national origin, and retaliation were motivating factors in Defendant's decision to terminate her. The plaintiff has the burden of proving these claims. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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1.3 BURDEN OF PROOF--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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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1.6

WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

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1.7

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 will say 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 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 instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I give 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

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GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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1.8

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.

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1.9

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.

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1.10

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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1.11

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) (7) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability. the opportunity and ability of the witness to see or hear or know the things

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

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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1.12

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including members of your family, people involved in the trial, or anyone else; this includes discussing the case in internet chat rooms or through internet "blogs," internet bulletin boards or e-mails. Nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately; Second, do not read or listen to any news stories, articles, radio, television, or online reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Finally, until this case is given to you for your deliberation and verdict, you are not to discuss the case with your fellow jurors.

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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1.13

NO TRANSCRIPT AVAILABLE TO JURY

During deliberations, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given. If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me know so that I can correct the problem. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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1.14

TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. No one will read your notes. They will be destroyed at the conclusion of the case. Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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1.18 BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become 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 is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. Of course, we will do what we can to keep the number and length of these conferences to a minimum. I may 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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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1.19

OUTLINE OF TRIAL

Trials proceed in the following way: First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may crossexamine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict.

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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2.1 STIPULATED TESTIMONY The parties have agreed what Cheri Melle's testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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2.2

STIPULATIONS OF FACT

The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

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2.4

DEPOSITION AS SUBSTANTIVE EVIDENCE

A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] The deposition of [witness] was taken on [date]. You should consider deposition testimony, presented to you in court in lieu of live testimony, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.] GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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2.10 USE OF INTERROGATORIES OF A PARTY

Evidence [will now be] [was] presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers [have been] [were] given in writing and under oath, before the actual trial, in response to questions that were submitted in writing under established court procedures. You should consider the answers, insofar as possible, in the same way as if they were made from the witness stand.

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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2.12 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

Certain charts and summaries not received in evidence [may be] [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 GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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2.13 CHARTS AND SUMMARIES IN EVIDENCE

Certain charts and summaries [may be] [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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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3.1 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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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3.2 COMMUNICATION 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 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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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3.3 RETURN OF VERDICT

A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] 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.

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5.1 DAMAGES--PROOF

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 on the plaintiff's claim for disparate treatment based on sex, 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 the defendant. You should consider the following: The nature and extent of the injuries; The mental and emotional pain and suffering experienced;: Your award must be based upon evidence and not upon speculation, guesswork or conjecture. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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5.1 DAMAGES--PROOF

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 on the plaintiff's claim for disparate treatment based on national origin, 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 the defendant. You should consider the following: The nature and extent of the injuries; The mental and emotional pain and suffering experienced. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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5.1 DAMAGES--PROOF

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 on the plaintiff's claim for disparate treatment based on retaliation, 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 the defendant. You should consider the following: The nature and extent of the injuries; The mental and emotional pain and suffering experienced. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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5.5 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 the defendant's conduct was malicious, oppressive or in reckless disregard of the plaintiff's 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 the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. An act or omission is oppressive if the person who performs it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff. 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 considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.

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GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

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10.1A CIVIL RIGHTS--TITLE VII--DISPARATE TREATMENT--WHERE EVIDENCE SUPPORTS "SOLE REASON" OR "MOTIVATING FACTOR"

The plaintiff has brought a claim of employment discrimination against the defendant. The plaintiff claims that her sex was either the sole reason or a motivating factor for the defendant's decision to discharge the plaintiff. The defendant denies that the plaintiff's sex was either the sole reason or a motivating factor for the defendant's decision to discharge the plaintiff.

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10.1A CIVIL RIGHTS--TITLE VII--DISPARATE TREATMENT--WHERE EVIDENCE SUPPORTS "SOLE REASON" OR "MOTIVATING FACTOR"

The plaintiff has brought a claim of employment discrimination against the defendant. The plaintiff claims that her national origin was either the sole reason or a motivating factor for the defendant's decision to discharge the plaintiff. The defendant denies that the plaintiff's national origin was either the sole reason or a motivating factor for the defendant's decision to discharge the plaintiff.

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10.2A CIVIL RIGHTS--TITLE VII--HOSTILE WORK ENVIRONMENT-- HARASSMENT BECAUSE OF PROTECTED CHARACTERISTICS--ELEMENTS

The plaintiff seeks damages against the defendant for a sexually hostile work environment while employed by the defendant. In order to establish a sexually hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence: 1. the plaintiff was subjected to verbal comments and physical contact 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. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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10.2C CIVIL RIGHTS--TITLE VII--HOSTILE WORK ENVIRONMENT CAUSED BY NON-IMMEDIATE SUPERVISOR OR BY CO-WORKER--CLAIM BASED ON NEGLIGENCE

The plaintiff seeks damages from the defendant for a hostile work environment caused by sexual harassment. The plaintiff has the burden of proving both of the

6 7 8 9 10 2. the defendant or a member of the defendant's management knew or 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. The defendant's remedial action must be reasonable and adequate. Whether the defendant'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 should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment. following elements by a preponderance of the evidence: 1. the plaintiff was subjected to a sexually hostile work environment by a co-worker; and

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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 the defendant. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

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10.3 CIVIL RIGHTS--TITLE VII--RETALIATION--ELEMENTS AND BURDEN OF PROOF

The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:

5 6 7 8 9 2. the employer subjected the plaintiff to an adverse employment action, that is the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.] or [3. the protected activity was a motivating factor in the adverse employment action. If you find that the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. If the plaintiff has proved all three of these elements, the plaintiff is entitled to your verdict, unless the defendant has proved by a preponderance of the evidence that it would have made the same decision even if the plaintiff's participation in a protected activity had played no role in the employment decision. In that event, the defendant is entitled to your verdict, even if the plaintiff has met [her] [his] burden of employer terminated the plaintiff's employment; and 3. the plaintiff was subjected to the adverse employment action because of her reports to management about the unwanted comments and touching. If you find that the plaintiff has proved all three of these elements, your verdict should be 1. the plaintiff engaged in or was engaging in an activity protected under federal law, that is the plaintiff reported that she had been subject to unwelcome comments and touching by a co-worker.

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proof on all three of the above elements.]

GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN

_____ _____ _____ _____

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SECTION II ­ PLAINTIFF'S PROPOSED NON-MODEL CIVIL JURY INSTRUCTIONS

Elements of a Section 1981 Claim-- Disparate Treatment --Mixed-Motive
In this case plaintiff is alleging that defendant terminated plaintiff. In order for plaintiff to recover on this discrimination claim against defendant, plaintiff must prove that defendant intentionally discriminated against plaintiff. This means that plaintiff must prove that her race was a motivating factor in defendant's decision to terminate plaintiff. To prevail on this claim, plaintiff must prove both of the following by a preponderance of the evidence: First: Defendant terminated; and Second: Plaintiff's national origin was a motivating factor in defendant's decision. Although plaintiff must prove that defendant acted with the intent to discriminate, plaintiff is not required to prove that defendant acted with the particular intent to violate plaintiff's federal civil rights. In showing that plaintiff's race was a motivating factor for defendant's action, plaintiff is not required to prove that her national origin was the sole motivation or even the primary motivation for defendant's decision. Plaintiff need only prove that her national origin played a motivating part in defendant's decision even though other factors may also have motivated defendant. As used in this instruction, plaintiff's national origin was a "motivating factor" if her national origin played a part in defendant's decision to terminate plaintiff. GIVEN AS REQUESTED GIVEN AS MODIFIED REFUSED WITHDRAWN _____ _____ _____ _____

SOURCE: Model Civil Jury Instructions, § 6.1.1, Third Circuit.

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