Free Objection - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant. ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

PLAINTIFF'S OBJECTIONS TO DEFENDANT'S PROPOSED JURY INSTRUCTIONS

Plaintiff, Alexander Jung, pursuant to the Court's June 13, 2007 order, hereby
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submits his objections to Defendant's Proposed Jury Instructions. Plaintiff requests that
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the Court allow him to reserve the right to modify these objections subject to
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modifications of the Joint Pretrial Order lodged June 1, 2007, rulings on the motions in
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limine, and the evidence that is presented at trial.
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Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 1:
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Plaintiff objects to this instruction because it misstates Plaintiff's burden of proof for the
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Rehabilitation Act. Plaintiff proposes a jury instruction for Rehabilitation Act that
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properly explains Plaintiff's burden of proof.
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Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 2: Plaintiff objects to this instruction because it misstates Plaintiff's claims. Plaintiff proposes a jury instruction for Plaintiff claims that properly explains Plaintiff's claims.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 3: Plaintiff objects to this instruction because it attempts to limits damages under the Rehabilitation Act which allow for compensatory damages. Plaintiff disagrees with the facts as stated in the instruction. Furthermore Plaintiff moves under Fed. Rul. Evd 403 regarding the 2002 Notice of suspension issue.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 4. Plaintiff objects to this instruction because this instruction is already covered by 9th Model Rule 1.1a.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 6. Plaintiff objects to this instruction because Defendant has not proven a single Affirmative Defense (see motions in limine).

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 7. Plaintiff objects to this instruction because this instruction is already covered by 9th Model Rule 3.1

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 8.

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Plaintiff objects to this instruction because it misstates Plaintiff's burden of proof for the Rehabilitation Act. Plaintiff proposes a jury instruction for Rehabilitation Act that properly explains Plaintiff's burden of proof

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 9. Plaintiff objects to this instruction because it misstates the law and is confusing. Plaintiff proposes a separate jury instruction for Disability; Physical Impairment and Major life activities.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 11. Plaintiff objects to this instruction. Please remove facts from instruction.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 12. Plaintiff objects to this instruction because it argumentative, misstates the law and is confusing. Plaintiff proposes a separate jury instruction for Reasonable Accommodation that is more understandable.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 13. Plaintiff objects to this instruction because there has been no evidence to support this instruction and it will confuse the jury.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 14. Plaintiff objects to this instruction because there has been no evidence to support this instruction and it will confuse the jury.

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Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 15. Plaintiff objects to this instruction because it misstates the law and is confusing. Plaintiff has proposed a jury instruction for the Rehabilitation Act.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 16. Plaintiff objects to this instruction because the 9th Circuit Court of Appeals has stated that the jury should not be instructed regarding the three step allocation of proof and burdens of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and it progeny. See Model Jury Instructions (Civil) Ninth Circuit 12.1A

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 17. Plaintiff objects to this instruction because this instruction is already covered by 9th Model Rule 5.1 and 5.2 which should be used.

Plaintiff's Objection to Defendant's Proposed Jury Instruction No. 18. Plaintiff objects to this instruction because it is not a Model Instruction in the Ninth Circuit and no Ninth Circuit case has recommended a business judgment instruction. The instruction unfairly emphasizes one of the elements in the case to benefit Defendant, i.e., that Defendant acted for a nondiscriminatory reason which is accurately covered in prior
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instructions. Kelly v. Airborne Freight, 140 F.3d 35, 350-51 (1 Cir. 1998), cert. denied, 525 U.S. 992 (1998) (employer not entitled to "business judgment instruction", where the other instructions did not permit or suggest that the jury could predicate a finding of age discrimination on their disagreement with the employer's business judgment); Cooper v.
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Paychex, 960 F.Supp. 966, 971 (E.D. Va. 1997), aff'd, 163 F.3d 598 (4 Cir.

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1998)(business judgment instruction inappropriate absent evidence which presents a danger the jury will decide the case on some improper basis.)

Dated this 19th day of June, 2007

s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

CERTIFICATE OF SERVICE

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I hereby certify that on the 19th of June, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected]

A copy of this document was provided by mailed to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:
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s/Stephanie Coulter Stephanie Coulter

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