Free Proposed Jury Instructions - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona State Bar No. 6835 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service, Defendant. The Defendant, pursuant to the Court's February 13, 2007 and April 10, 2007 Orders CIV-04-0429-PHX-MHM DEFENDANT'S PROPOSED JURY INSTRUCTIONS

17 (Doc. ## 89, 112), hereby requests that the Court include and use the attached jury instructions 18 in charging the jury. The instructions are derived from five sources: Manual of Model Civil 19 Jury Instructions for the District Courts of the Ninth Circuit (2007 and 2008); 3 E. Devitt, C. 20 Blackmar & M. Wolff (DBW), Federal Jury Practice and Instructions -- Civil (4th ed. 1987); 21 Modern Federal Jury Instructions Matthew Bender (2006); O'Malley, Grenig Lee, Federal Jury 22 Practice and Instructions, § 171.77 (5th ed. 2000) (updated with 2004 pocket part); Statutory and 23 decisional law; the Pretrial Order in this case. 24 Permission of the Court is requested to subsequently withdraw any of the attached 25 instructions and to offer such additional instructions as may become appropriate after the Court's 26 ruling upon additional pretrial and evidential issues. Further, Defendant submits these proposed 27 instructions on the basis that the jury decides only compensatory damages, not equitable 28 remedies such as back pay.

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Respectfully submitted this 8th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1 10.1B CIVIL RIGHTS--TITLE VII--DISPARATE TREATMENT--"SOLE REASON"--ELEMENTS AND BURDEN OF PROOF (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on

6 the law. 7 As to the plaintiff's claim that his disability was the sole reason for the defendant's

8 decision to change his work hours with no guarantee of hours, that he was sent home or was 9 required to use leave on unspecified dates, the plaintiff has the burden of proving the following 10 elements by a preponderance of the evidence: 11 12 13 1. 2. the plaintiff was required to change his work hours with no guarantee of hours; the plaintiff was sent home or was required to use leave on unspecified dates; and

To meet plaintiff's burden of proving his disparate treatment based on his disability,

14 plaintiff must show the following by a preponderance of evidence: 15 16 17 18 19 20 (a) (b) (c) (d) he was disabled within the meaning of the Rehabilitation Act; he was a qualified individual with a disability; that management took the actions as alleged because of his disability; and that he was treated differently than similarly situated employees outside of his protected class. If you find that the plaintiff has proved these elements, your verdict should be for the

21 plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your 22 verdict should be for the defendant as to those issues.1 23 24 25 26 27 28
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Adapted from 9th Cir. Instr. 10.1B.
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1 GIVEN AS REQUESTED: ______________ 2 GIVEN AS MODIFIED: ________________ 3 REFUSED: __________________________ 4 WITHDRAWN: ______________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2 1.2 CLAIMS AND DEFENSES (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) To help you follow the evidence, I will give you a brief summary of the positions of the

5 parties: 6 Plaintiff claims to have suffered from a disability which renders him substantially limited

7 in a major life activity of walking and lifting. Plaintiff claims that he has a disability within the 8 meaning of Section 504 of the Rehabilitation Act, because his employer regarded him as having 9 an impairment that prevents him from performing the duties of his position. Furthermore, 10 Plaintiff is a qualified individual with a disability within the meaning of Section 504 of the 11 Rehabilitation Act, because he is otherwise qualified for the position and can perform the 12 essential functions of the job with or without accommodation. 13 Plaintiff claims that the Defendant knew that he had a disability under the Rehabilitation

14 Act, and refused to provide reasonable accommodations. Plaintiff claims that Defendant 15 improperly started sending Plaintiff home. On March 5, 2002 Defendants changed Plaintiff work 16 hours from 3:00p.m. to 00:01a.m.; days off from Saturday/Sunday to Monday/Thursday; and 17 only 4 hours and NO GUARANTEE OF HOURS. Defendants ordered Plaintiff out of the 18 PMPPC facility. 19 Plaintiff claims that Defendant unilaterally determined they would not be able to

20 accommodate Plaintiff at the PMPPC. Defendants did not engage in any discussion with 21 Plaintiff to attempt to problem solve Plaintiff's need for accommodation at the PMPPC. 22 Defendant has intentionally discriminated against Plaintiff because of his disability in regard to 23 the terms, conditions and privileges of employment. Such discrimination includes, but is not 24 limited to, failure to make reasonable accommodation and placement on disability leave. 25 26 27 The plaintiff has the burden of proving these claims. The defendant denies those claims and also contends that: Plaintiff is not disabled under the Rehabilitation Act because his physical impairment did

28 not substantially limit his major life activities of lifting and standing;

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Plaintiff is not a qualified individual with a disability because he is unable to perform the

2 essential function of his position as a manual distribution clerk with or without reasonable 3 accommodations; 4 5 Plaintiff was not regarded as having disability under the Rehabilitation Act; Defendant did engage in the interactive process and provide Plaintiff with requested and

6 reasonable accommodations including: 7 8 9 10 11 12 13 a. b. c. Defendant did provided Plaintiff with light duty assignments; Defendant did provide Plaintiff with extended leave; Defendant did follow United States Postal Service Policies and Procedures

regarding leave, attendance, light duty, and discipline; and d. Defendant's reasons for his actions are legitimate, nondiscriminatory

business reasons in accordance with United States Postal Service Policies and Procedures.2

14 GIVEN AS REQUESTED: ______________ 15 GIVEN AS MODIFIED: ________________ 16 REFUSED: __________________________ 17 WITHDRAWN: ______________________ 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Adapted from 9th Cir. Instr. 1.2.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3 LIMITING INSTRUCTION RE SPECIFIED EVIDENCE (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Some evidence may be admitted at trial for background purposes only. This is an

5 employment discrimination suit. The employment discrimination laws do not permit the plaintiff 6 to receive damages for many of the alleged acts you will hear about during this trial. In this 7 case, the plaintiff may recover damages ­ if at all ­ only arising out of the following events: 8 9 10 11 12 13 14 15 16 17 · · · · · On September 25, 2001, Plaintiff's work hours were changed from 3:00 p.m. 11:30 p.m. to 7:55 p.m. - 4:25 a.m. Plaintiff's request to sit in a soft cushion chair on or about October 29, 2001. On unspecified dates between September 25, 2001 through September 28, 2002, Plaintiff was told to leave work early and take leave. On February 4, 2002, Plaintiff was issued a Notice of Suspension for Continued Failure to Maintain Regular Attendance. The temporary Light Duty Offer(s) extended to Plaintiff on dates including but not limited to on or about March 5, 2002 and/or March 8, 2002. The law does not permit the plaintiff to receive damages for certain alleged acts of the C

18 defendant. For example, the plaintiff may not recover any damages for the following matters: 19 Any acts occurring after he rejected the temporary light duty job offer on or

20 about March 5, 2002. 21 22 · Any claims of damage after his removal on September 28, 2002.

Any evidence you may hear about such matters is for background purposes only, to help

23 you better put the plaintiff's claims and the defendant's defenses in context.3 24 25 26 27 28
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Adapted from 9th Cir. Instr. 1.8.
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1 GIVEN AS REQUESTED: ______________ 2 GIVEN AS MODIFIED: ________________ 3 REFUSED: __________________________ 4 WITHDRAWN: ______________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4 SYMPATHY (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Under your oath as jurors you are not to be swayed by sympathy. You should be guided

5 by the evidence presented during the trial, without regard to the consequences of your decision. 6 You have been chosen to try the issues of fact and reach a verdict on the basis of the evidence 7 or lack of evidence. If you let sympathy interfere with your clear thinking there is a risk that you 8 will not arrive at a just verdict. All parties to a civil lawsuit are entitled to a fair trial. You must 9 make a fair and impartial decision so that you will arrive at a just verdict.4 10 GIVEN AS REQUESTED: ______________ 11 GIVEN AS MODIFIED: ________________ 12 REFUSED: __________________________ 13 WITHDRAWN: ______________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Modern Federal Jury Instructions, Civil, Instruction 71-10 (Matthew Bender).
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 5 IMPEACHMENT -- INCONSISTENT STATEMENTS (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) A witness may be discredited or impeached by contradictory evidence; or by evidence

5 that at some other time the witness has said or done something, or has failed to say or do 6 something which is inconsistent with the witness' trial testimony. 7 Evidence of a prior inconsistent statement is not to be considered by you as affirmative

8 evidence in determining liability. Evidence of a prior inconsistent statement was placed before 9 you for the more limited purpose of helping you decide whether to believe the trial testimony 10 of the witness who contradicted him or herself. If you find that the witness made an earlier 11 statement that conflicts with his or her trial testimony, you may consider that fact in deciding 12 how much of the trial testimony, if any, to believe. 13 In making this determination, you may consider whether the witness purposely made a

14 false statement or whether it was an innocent mistake; whether the inconsistency concerns an 15 important fact, or whether it had to do with a small detail; whether the witness had an 16 explanation for the inconsistency, and whether that explanation appealed to your common sense. 17 It is exclusively your duty, based upon all the evidence and your own good judgment, to

18 determine whether the prior statement was inconsistent, and if so how much, if any, weight to 19 give to the inconsistent statement in determining whether to believe all or part of the witness' 20 testimony.5 21 GIVEN AS REQUESTED: ______________ 22 GIVEN AS MODIFIED: ________________ 23 REFUSED: __________________________ 24 WITHDRAWN: ______________________ 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE Modern Federal Jury Instructions, Civil, Instruction 76-5 (Matthew Bender).
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 6 COMPLETE AFFIRMATIVE DEFENSE (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) On any claim, if you find that each of the elements on which the plaintiff has the burden

5 of proof has been proved, your verdict should be for the plaintiff on that claim, unless you also 6 find that the defendant has proved an affirmative defense, in which event your verdict should 7 be for the defendant on that claim.6 8 GIVEN AS REQUESTED: ______________ 9 GIVEN AS MODIFIED: ________________ 10 REFUSED: __________________________ 11 WITHDRAWN: ______________________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Adapted from 2001 9th Cir. Instr. 5.3.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 7 DUTY TO DELIBERATE (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) When you retire, you should elect one member of the jury as your foreperson. That

5 person will preside over the deliberations and speak for you here in court. 6 You will then discuss the case with your fellow jurors to reach agreement if you can do

7 so. Your verdict must be unanimous. 8 Each of you must decide the case for yourself, but you should do so only after you have

9 considered all the evidence, discussed it fully with the other jurors, and listened to the views of 10 your fellow jurors. 11 Do not be afraid to change your opinion if the discussion persuades you that you should.

12 Do not come to a decision simply because other jurors think it is right. 13 It is important that you attempt to reach a unanimous verdict but, of course, only if each

14 of you can do so after having made your own conscientious decision. Do not change an honest 15 belief about the weight and effect of the evidence simply to reach a verdict.7 16 A verdict form has been prepared for your convenience. You will take this form to the

17 jury room. Please note that the verdict form contains several questions. The answer to each 18 question, if any, must be the unanimous answer of the jury. Your foreperson will write the 19 unanimous answer for the jury in the space provided at the end of each question. As you will 20 note from the instructions in the verdict form, depending on how you answer a question, it may 21 or may not be necessary to answer the next question. Follow the instructions provided. 22 After you have reached unanimous agreement on a verdict, your foreperson will fill in

23 the verdict form that has been given to you, sign and date it, and advise the clerk or bailiff in the 24 courtroom that you are ready to return to the courtroom. 25 26 27 28
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Adapted from DBW §§ 74.01, 74.07 and 9th Cir. Instr. 3.1.
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1 GIVEN AS REQUESTED: ______________ 2 GIVEN AS MODIFIED: ________________ 3 REFUSED: __________________________ 4 WITHDRAWN: ______________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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SPECIFIC INSTRUCTIONS AFTER CLOSE OF EVIDENCE DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8 ELEMENTS OF REHABILITATION ACT EMPLOYMENT ACTION (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) To establish a claim of disability discrimination under the Rehabilitation Act, the plaintiff

6 must prove the following elements by a preponderance of the evidence: 7 8 9 10 11 12 13 14 15 16 17 3. 2. 1. During the relevant time frame, the plaintiff had a disability within the meaning of the Rehabilitation Act; the plaintiff was a qualified individual, as that term is defined elsewhere in these instructions; and (a) the plaintiff's disability was the determining factor in the defendant's decisions regarding plaintiff's light duty requests between October 2001 and March 2002 (in other words, the defendant would not have made the same decision but for the plaintiff's disability), or (b) the defendant violated a duty to reasonably accommodate the plaintiff's disability. If you find that each of the elements on which the plaintiff has the burden of proof has

18 been proved, your verdict should be for the plaintiff, unless you also find that the defendant has 19 proved an affirmative defense, in which event your verdict should be for the defendant on that 20 claim. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict 21 should be for the defendant.8 22 GIVEN AS REQUESTED: ______________ 23 GIVEN AS MODIFIED: ________________ 24 REFUSED: __________________________ 25 WITHDRAWN: ______________________ 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE Adapted from former 9th Cir. Instr. 5.3, current 12.1.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 9 PHYSICAL IMPAIRMENT (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) The first element of the Rehabilitation Act claim that the plaintiff must prove is that the

5 plaintiff had a recognized disability under the Rehabilitation Act bewteen October 2001 and 6 March 2002. A"disability" under the Rehabilitation Act is a physical impairment that

7 substantially limits one or more of the major life activities of such individual. 8 The terms "disability" and "physical impairment" include any physiological disorder, or

9 condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following 10 body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech 11 organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and 12 endocrine. 13 Major life activities are the normal activities of living which a non-disabled person can

14 do with little or no difficulty, such as caring for oneself, performing manual tasks, walking, 15 sleeping, seeing, hearing, speaking, breathing, learning, engaging in sexual relations, 16 reproducing, interacting with others, and working. 17 A limitation is substantial if the disabled person is unable to perform the activity or is

18 significantly restricted in doing so. 19 20 21 22 Factors to consider in deciding whether a major life activity is substantially limited include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact of the impairment.9

23 GIVEN AS REQUESTED: ______________ 24 GIVEN AS MODIFIED: ________________ 25 REFUSED: __________________________ 26 WITHDRAWN: ______________________ 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE Adapted from 9th Cir. Instr. 12.2.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 10 QUALIFIED INDIVIDUAL (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) The second element of the Rehabilitation Act claim that the plaintiff must prove is that

5 the plaintiff is a qualified individual under the Rehabilitation Act. 6 The term qualified individual means an individual with a disability who, with or without

7 a reasonable accommodation, as that term is defined elsewhere in these instructions, can perform 8 the essential functions of the employment position that such individual holds or desires. The 9 individual must satisfy the requisite skill, experience, education, and other job-related 10 requirements of the employment position.10 11 GIVEN AS REQUESTED: ______________ 12 GIVEN AS MODIFIED: ________________ 13 REFUSED: __________________________ 14 WITHDRAWN: ______________________ 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Adapted from 9th Cir. Instr. 12.6.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 11 ABILITY TO PERFORM ESSENTIAL FUNCTIONS--FACTORS (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) If you find that the plaintiff was qualified for the employment position, you must

5 determine, by a preponderance of the evidence, whether the plaintiff was able to perform all of 6 the essential functions of the employment position with or without a reasonable accommodation, 7 as that term is defined elsewhere in these instructions, at the time of the light duty offers between 8 October 2001 and March 2002. 9 An essential function of an employment position means the fundamental job duties of the

10 employment position the plaintiff holds or desires. It does not include the marginal functions 11 that may occur through the course of a job. 12 You must consider the defendant's judgment as to what functions of a job are essential.

13 If the defendant has prepared a written description before advertising or interviewing applicants 14 for the job, this description is evidence of the essential functions of the job.11 15 GIVEN AS REQUESTED: ______________ 16 GIVEN AS MODIFIED: ________________ 17 REFUSED: __________________________ 18 WITHDRAWN: ______________________ 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Adapted from 9th Cir. Instr. 12.7.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 12 REASONABLE ACCOMMODATION (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) If you find the plaintiff qualified for the position but able to perform the job only with

5 some form of accommodation, then you must determine whether the defendant had a duty to 6 provide a reasonable accommodation. 7 To establish the defendant's duty to provide a reasonable accommodation, the plaintiff

8 must prove, by a preponderance of the evidence, both of the following elements: 9 10 11 12 13 14 15 16 and 2. the defendant could have made a reasonable accommodation, as that term is defined 1. (a) the plaintiff informed the defendant of the need for an accommodation due

to a disability, or (b) the defendant knew, or had reason to know: (i) (ii) that the plaintiff has a disability; and that the plaintiff was experiencing workplace problems

because of the disability.

17 elsewhere in these instructions, that would have enabled the plaintiff to perform the essential 18 functions of the job. 19 A reasonable accommodation does not include changing or eliminating any essential

20 function of employment, shifting any of the essential functions of the subject employment to 21 others, or creating a new position for the disabled employee. 22 If the plaintiff rejects a reasonable accommodation that is necessary to enable the plaintiff

23 to perform the essential functions of the position, and plaintiff cannot, as a result of that 24 rejection, perform the essential functions of the position, the plaintiff cannot be considered a 25 qualified individual.12 26 27 28
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Adapted from 9th Cir. Instr. 12.8.
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1 GIVEN AS REQUESTED: ______________ 2 GIVEN AS MODIFIED: ________________ 3 REFUSED: __________________________ 4 WITHDRAWN: ______________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 13 DUTY TO ACCOMMODATE (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) An employer who is aware of the need for an accommodation has a mandatory

5 obligation to engage in the interactive process with the employee to identify and implement 6 appropriate reasonable accommodations.13 As a prerequisite to a failure-to-accommodate 7 claim, an employee must also fully and in good faith engage in the interactive process with 8 the employer to fashion an appropriate accommodation.14 9 Neither the employer nor the employee may disrupt the interactive process.15 An

10 employee who unreasonably fails to provide medical information requested by the employer 11 to support a requested accommodation is responsible for the failure of the interactive process 12 and relieves the employer of it duty to engage further in that process.16 If the interactive 13 process fails, the employer bears liability only if it was responsible for the process' 14 breakdown.17 15 GIVEN AS REQUESTED: ______________ 16 GIVEN AS MODIFIED: ________________ 17 REFUSED: __________________________ 18 WITHDRAWN: ______________________ 19 20 21 22 23 24
14 C.F.R. §§ 1630, 1630.2(o)(3), app. 1630.9; Taylor v. Principal Financial Group, Inc. 25 93 F.3d 155, 165 (5th Cir. 1996) 13

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Humphrey v. Memorial Hosp. Assoc., 239 F.3d 1128, 1137 (9th Cir. 2001).

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Humphrey, 239 F.3d at 1137-38. Allen v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003). Zivkovic v. S. Cal Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2000).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 14 LEAVE AS A REASONABLE ACCOMMODATION (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Granting a leave of absence may be a reasonable accommodation if, at the time of the

5 decision, there were plausible reasons to believe that such leave could have enabled the 6 plaintiff to perform the essential functions of the job.18 7 The requirement to grant a leave where there were plausible reasons to believe that it

8 would accommodate the plaintiff's disability cannot be repeatedly invoked, thus permitting 9 an unqualified plaintiff to avoid termination by requesting a leave of absence each time the 10 plaintiff is about to be fired. The fact that a prior leave was granted and was unsuccessful 11 may be a relevant consideration in determining whether additional leave would be a 12 reasonable accommodation.19 13 GIVEN AS REQUESTED: ______________ 14 GIVEN AS MODIFIED: ________________ 15 REFUSED: __________________________ 16 WITHDRAWN: ______________________ 17 18 19 20 21 22 23 24 25 26 Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878-79 (9th Cir. 1989); Humphrey v. Memorial Hospitals Assn, 239 F.3d 1128, 1137 (9th Cir. 2001); Dark v. Curry County, 451 27 F.3d 1078, 1090 (9th Cir. 2006). 19 28 Humphrey, 239 F.3d at 1136 n.13 (dicta. Citing Kimbro, 889 F.2d at 879 n 10).
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 15 REGARDED AS (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) Under the Rehabilitation Act an employee who is "regarded as" disabled is not

5 entitled to a reasonable accommodation.20 6 GIVEN AS REQUESTED: ______________ 7 GIVEN AS MODIFIED: ________________ 8 REFUSED: __________________________ 9 WITHDRAWN: ______________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

Kaplan v. City of North Las Vegas, 323 F.3d 1226 (9th Cir. 2003)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 16 LEGITIMATE REASON FOR EMPLOYMENT DECISION (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) You must also consider any legitimate, nondiscriminatory reason or explanation stated

5 by defendant for its decision. If you determine that the defendant has stated such a reason, 6 then you must decide in factor of the defendant unless the plaintiff proves by a 7 preponderance of the evidence that the stated reason was not the true reason but was only a 8 pretext or excuse for the defendant's discriminating against the plaintiff because of the 9 plaintiff's disability. 21 10 GIVEN AS REQUESTED: ______________ 11 GIVEN AS MODIFIED: ________________ 12 REFUSED: __________________________ 13 WITHDRAWN: ______________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 O'Malley, Grenig Lee, Federal Jury Practice and Instructions, § 171.77 (5th ed. 2000) (updated with 2004 pocket part) (modified to address grounds of discrimination alleged in this 28 case).
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 17 DAMAGES -- PROOF (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) It is the Court's duty to instruct you about the measure of damages. By instructing

5 you on damages, the Court does not mean to suggest for which party your verdict should be 6 rendered. 7 If you find for the plaintiff, you must determine his damages. The plaintiff has the

8 burden of proving damages by a preponderance of the evidence. Damages means the amount 9 of money which will reasonably and fairly compensate the plaintiff for injury you find was 10 caused by the defendant's unlawful discrimination, if any. 11 Should you find the defendant liable, the Court will calculate the amount of pay, lost You will determine the

12 benefits and attorney fees to which the plaintiff is entitled, if any.22

13 amount of compensatory damages, over and above pay, lost benefits, and attorney fees, to 14 which the plaintiff is entitled, if any. Compensatory damages under the law applicable in this 15 case include past and future monetary losses and nonmonetary losses, if you find these were 16 caused by the defendant's allegedly illegal acts.23 Monetary losses include things that are

17 quantifiable, such as moving expenses, job search expenses, medical expenses, psychiatric 18 expenses and the like. Nonmonetary losses include intangibles such as emotional pain, 19 suffering, inconvenience, mental anguish and loss of enjoyment of life. Damages are not 20 allowed as a punishment and cannot be imposed or increased to penalize the defendant.24 21 22 23 24 25 26 27 28
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The plaintiff has the burden of proving damages by a preponderance of the evidence,

Compensatory damages under the Civil Rights Act of 1991 do not include backpay, interest on frontpay, or any other type of equitable relief authorized by Title VII.
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42 U.S.C. § 1981a(b)(3). 42 U.S.C. § 1981a(b)(1).
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1 and it is for you to determine what damages, if any, have been proved. Your award must be 2 based upon evidence and not upon speculation, guesswork or conjecture.25 3 GIVEN AS REQUESTED: ______________ 4 GIVEN AS MODIFIED: ________________ 5 REFUSED: __________________________ 6 WITHDRAWN: ______________________ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Adapted from 9th Cir. Instr. 5.1; Civil Rights Act of 1991, § 102(b)(3), 42 U.S.C. § 1981a(b)(3).
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 18 POOR MANAGEMENT DECISION NOT SUFFICIENT (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) You may not return a verdict for the plaintiff just because you disagree with the

5 defendant's decision or believe it to be an unwise, unfair, or poor decision. The law does not 6 require that employees must always be treated fairly or that employers may take actions only 7 for good reasons.26 Favoritism, unfair treatment, and unwise or illogical business decisions

8 are not unlawful discrimination unless they are based on an employee's protected 9 characteristics.27 10 disability. 11 GIVEN AS REQUESTED: ______________ 12 GIVEN AS MODIFIED: ________________ 13 REFUSED: __________________________ 14 WITHDRAWN: ______________________ 15 16 17 18 Sanchez v. Philip Morris Inc., 992 F.2d 244, 248 (10th Cir. 1993) (holding that in Title VII cases, "we are not in the business of determining whether an employer acted prudently or 19 imprudently"); Archuleta v. Colorado Dept. Of Institutions, 936 F.2d 483, 487 (10th Cir. 1991) ("Title VII does not ensure that employees will always be treated fairly or that they will be 20 discharged only for meritorious reasons."); see also Furaus v. Citadel Comm. Corp., 168 Fed. Appx. 257 (10th Cir.. Jan. 30, 2006) ("The reasonableness of management decisions is not the 21 subject of the civil rights laws, as we have observed countless times."). 22 23 24 25 26 27 28 Taken v. Oklahoma Corporation Comm'n, 125 F.3d 1366, 1369-70 (10th Cir. 1997) ("Favoritism, unfair treatment and unwise business decisions do not violate Title VII unless based on a prohibited classification."). See also Bullington v. United Air Lines, Inc., 186 F.3d 1031, 1318-19 (10th Cir. 1999) (in a Title VII case, ruling that the "relevant inquiry is not whether [the employer's] reasons are wise, fair, or correct"); Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1535-36 (10th Cir. 1995) (holding that an "employer's exercise of erroneous or even illogical business judgment does not constitute pretext."); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1426 (10th Cir. 1993) (ruling, in an ADEA case, that there was no error in giving a jury instruction that read, in part, "An employer may fail to hire an employee for an other non-discriminatory reason, good or bad, fair or unfair, and you should not second-guess that decision. . . . . You are not to substitute your judgment for that of defendant in its employment decisions."); Sanchez v. Philip Morris Inc., 992 F.2d 244, 247 (10th Cir. 1993) (holding that Title VII is "not violated by the exercise of erroneous or even illogical business judgment.")
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The only relevant protected characteristic at issue in this case is physical

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 19 DAMAGES ­ MITIGATION (COURT READS AND PROVIDES WRITTEN INSTRUCTIONS) The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate

5 means to avoid or reduce damages. 6 If you find the plaintiff is entitled to damages, the defendant has the burden of proving

7 by a preponderance of the evidence: 8 9 1. 2. That the plaintiff failed to use reasonable efforts to mitigate damages; and The amount by which damages would have been mitigated.28

10 GIVEN AS REQUESTED: ______________ 11 GIVEN AS MODIFIED: ________________ 12 REFUSED: __________________________ 13 WITHDRAWN: ______________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_______________________________________ UNITED STATES DISTRICT COURT JUDGE DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth Suzanne M. Chynoweth Assistant U.S. Attorney

Adapted from 9th Cir. Instr. 7.3.
Document 130 Filed 06/08/2007 Page 27 of 28

Case 2:04-cv-00429-MHM

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CERTIFICATE OF SERVICE I hereby certify that on June 8, 2007, I electronically transmitted the attached

3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 Rosval A. Patterson 6 777 E. Thomas Rd. Phoenix, AZ 85014 7 8 S/ LaRee Zickefoose Office of the U.S. Attorney 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:04-cv-00429-MHM

Document 130

Filed 06/08/2007

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