Free Lodged Proposed Document - 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 ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S PROPOSED PRELIMINARY AND FINAL JUROR INSTRUCTIONS

Pursuant to Rule 51, Federal Rules of Civil Procedure, the parties request that the Court
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give the 9th Circuit Jury Instructions indicated by a mark on this Request, and any additional instructions that are submitted with this Request:

Instructions Requested To Be Given To The Jury At The Start Of The Trial 1. 2. 3. Statute Involved ­ Rehabilitation Act Statement of Plaintiff's Claims Order of Trial
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4. 5. 6. 7.

Evidence in the Case Inferences Defined Court's Questions to Witnesses Use of Interrogatories of a Party Instructions Requested To Be Given To The Jury At The Close Of Testimony

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Impeachment by Witnesses' Inconsistent Statements Statutory Proscription Against Discrimination Elements of a Failure to Accommodate Case Qualified Individual With a Disability Defined Essential Functions - Defined Disability ­ Defined Major Life Activities ­ Defined Substantially Limits ­ Defined Regarded as Substantially Limited in a Major Life Activity - Defined Reasonable Accommodation Interactive Process Undue Hardship ­ Defined Requests for Medical Information Under the ADA Rehabilitation Act Back Pay Compensatory Damages ­ Non-Pecuniary Election of Foreperson ­ Special Verdict Verdict Form ­ Jury Responsibility

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PROPOSED JURY INSTRUCTION NO. 1
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STATUTE INVOLVED ­ REHABILITATION ACT THIS IS AN ACTION FILED UNDER THE REHABILITATION ACT OF 1973. THE PURPOSE OF THE REHABILITATION ACT IS TO ELIMINATE

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DISCRIMINATION AGAINST INDIVIDUALS WITH DISABILITIES IN
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PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FUNDING.

AUTHORITY: 42 U.S.C. §12101(b), BARNETT v. U.S. AIR, INC., 228 F.3D 1105 (9TH CIR. 2000).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 2 STATEMENT OF PLAINTIFF'S CLAIMS THE PLAINTIFF IN THIS CASE, ALEXANDER JUNG, ALLEGES THAT THE DEFENDANT, THE UNITED STATES POSTAL SERVICE, DISCRIMINATED AGAINST HIM ON THE BASIS OF HIS DISABILITY IN VIOLATION OF THE REHABILITATION ACT WHEN IT KICKED HIM OUT OF THE POST OFFCIE AND WOULD NOT ALLOW HIM TO RETURN TO WORK. ALEX ALLEGES THE DEFENDANT VIOLATED THE REHABILITATION ACT BY FAILING TO CONSIDER REASONABLE ACCOMMODATIONS, WHICH WOULD HAVE ALLOWED HIM TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS POSITION AS A POSTAL SERVICE WORKER. THE PLAINTIFF ALLEGES THAT THE DEFENDANT FAILED TO CONSULT WITH HIM TO DETERMINE WHETHER A REASONABLE

ACCOMMODATION WAS POSSIBLE AND DID NOT FULFILL ITS DUTY TO PROVIDE HIM WITH A REASONABLE ACCOMMODATION. THE PLAINTIFF IS SEEKING TO RECOVER BACKPAY FOR THE PERIOD HE HAS NOT ALLOWED TO RETURN TO WORK. HE IS ALSO SEEKING

COMPENSATORY DAMAGES FOR THE EMOTIONAL DISTRESS HE SUFFERED AS A RESULT OF THE DEFENDANT'S CONDUCT.

AUTHORITY: ADAPTED FROM THE REHABILITATION ACT OF 1973, 29U.S.C.§794 (d), THE AMERICANS WITH DISABILITIES ACT OF 1990, §12101 et seq.; CIVIL RIGHTS ACT OF 1992, 42 U.S.C. §1981(b); DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS (1975); BELLO, DESMARAIS & HARRISON, MODEL JURY INSTRUCTIONS, EMPLOYMENT LITIGATION, §§107(1), 107(3), 107(4).

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GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 3 ORDER OF TRIAL

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THE CASE WILL PROCEED IN THE FOLLOWING ORDER: FIRST, THE PLAINTIFF MAY MAKE AN OPENING STATEMENT OUTLINING ITS CASE. THE DEFENDANT MAY ALSO MAKE AN OPENING STATEMENT OUTLINING ITS CASE IMMEDIATELY AFTER THE PLAINTIFF'S STATEMENT, OR IT MAY WAIT TO MAKE AN OPENING STATEMENT UNTIL THE CONCLUSION OF THE PLAINTIFF'S CASE. NEITHER PARTY IS REQUIRED TO MAKE AN OPENING STATEMENT. WHAT IS SAID IN OPENING

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STATEMENT IS NOT EVIDENCE, BUT IS SIMPLY DESIGNED TO PROVIDE
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YOU WITH AN INTRODUCTION TO THE EVIDENCE WHICH THE PARTY MAKING THE STATEMENT INTENDS TO PRODUCE. SECOND, THE PLAINTIFF WILL INTRODUCE EVIDENCE IN SUPPORT OF

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HIS CLAIMS.
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AT THE CONCLUSION OF THE PLAINTIFF'S CASE, THE

DEFENDANT MAY INTRODUCE EVIDENCE. THE DEFENDANT, HOWEVER, IS NOT OBLIGED TO INTRODUCE ANY EVIDENCE OR TO CALL ANY WITNESSES. IF THE DEFENDANT INTRODUCES EVIDENCE, THE PLAINTIFF MAY THEN INTRODUCE REBUTTAL EVIDENCE. THIRD, THE PARTIES MAY PRESENT CLOSING ARGUMENTS TO YOU AS TO WHAT THEY CONSIDER THE EVIDENCE HAS SHOWN AND AS TO THE INFERENCES WHICH THEY CONTEND YOU SHOULD DRAW FROM THE EVIDENCE. WHAT IS SAID IN CLOSING ARGUMENT, JUST AS WHAT IS SAID IN OPENING STATEMENT, IS NOT EVIDENCE. THE ARGUMENTS ARE

DESIGNED TO PRESENT TO YOU THE CONTENTIONS OF THE PARTIES

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BASED ON THE EVIDENCE INTRODUCED. THE PLAINTIFF HAS THE RIGHT TO OPEN AND TO CLOSE THE ARGUMENT. FOURTH, I WILL INSTRUCT YOU ON THE LAW WHICH YOU ARE TO APPLY IN REACHING YOUR VERDICT.

AUTHORITY: DEVITT, BLACKMAR & WOLFF, INSTRUCTIONS (4th ED. 1987), 70.02.

FEDERAL

JURY

PRACTICE

AND

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED:

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WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE
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PROPOSED JURY INSTRUCTION NO. 4
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EVIDENCE IN THE CASE THE EVIDENCE IN THE CASE WILL CONSIST OF THE SWORN TESTIMONY OF THE WITNESSES, REGARDLESS OF WHO MAY HAVE CALLED THEM; AND ALL EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM; AND ALL FACTS WHICH MAY HAVE BEEN JUDICIALLY NOTICED, AND WHICH I INSTRUCT YOU TO TAKE AS TRUE FOR THE PURPOSES OF THE CASE. DEPOSITIONS MAY ALSO BE RECEIVED IN EVIDENCE. DEPOSITIONS CONTAIN SWORN TESTIMONY, WITH COUNSEL FOR EACH PARTY BEING ENTITLED TO ASK QUESTIONS. TESTIMONY PRODUCED IN A DEPOSITION MAY BE READ TO YOU IN OPEN COURT. DEPOSITION TESTIMONY MAY BE ACCEPTED BY YOU, SUBJECT TO THE SAME INSTRUCTIONS WHICH APPLY TO WITNESSES TESTIFYING IN OPEN COURT. STATEMENTS AND ARGUMENTS OF COUNSEL ARE NOT EVIDENCE IN THE CASE, UNLESS MADE AS AN ADMISSION OR STIPULATION OF FACT. WHEN THE ATTORNEYS ON BOTH SIDES STIPULATE OR AGREE TO THE EXISTENCE OF A FACT YOU MUST, UNLESS OTHERWISE INSTRUCTED, ACCEPT THE STIPULATION AS EVIDENCE, AND REGARD THAT FACT AS

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PROVED. THE COURT MAY TAKE JUDICIAL NOTICE OF CERTAIN FACTS OR EVENTS. WHEN THE COURT DECLARES THAT IT WILL TAKE JUDICIAL

NOTICE OF SOME FACT OR EVENT, YOU MUST ACCEPT THAT FACT AS TRUE. ANYTHING YOU MAY HAVE SEEN OR HEARD OUTSIDE THE COURTROOM IS NOT EVIDENCE, AND MUST BE ENTIRELY DISREGARDED.
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AT THE END OF THE TRIAL, YOU WILL HAVE TO MAKE YOUR DECISION BASED ON WHAT YOU RECALL OF THE EVIDENCE. YOU WILL NOT HAVE A WRITTEN TRANSCRIPT TO CONSULT, AND IT IS DIFFICULT AND TIME CONSUMING FOR THE REPORT TO READ BACK LENGTHY TESTIMONY. I URGE YOU TO PAY CLOSE ATTENTION TO THE TESTIMONY AS IT IS GIVEN.

AUTHORITY: ADAPTED FROM DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS (4th ED. 1987), 70.03, AND MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, 3RD EDITION, 1.8.

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

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UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 5
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INFERENCES DEFINED YOU ARE TO CONSIDER ONLY THE EVIDENCE IN THE CASE. HOWEVER, IN YOUR CONSIDERATION OF THE EVIDENCE YOU ARE NOT LIMITED TO THE BALD STATEMENTS OF THE WITNESSES. IN OTHER

WORDS YOU ARE NOT LIMITED TO WHAT YOU SEE AND HEAR AS THE WITNESSES TESTIFY. YOU ARE PERMITTED TO DRAW, FROM FACTS

WHICH YOU FIND HAVE BEEN PROVED, SUCH REASONABLE INFERENCES AS SEEM JUSTIFIED IN THE LIGHT OF YOUR EXPERIENCE. INFERENCES ARE DEDUCTIONS OR CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD YOU TO DRAW FROM FACTS WHICH HAVE BEEN ESTABLISHED BY EVIDENCE IN THE CASE.

AUTHORITY: ADAPTED FROM DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS (4th ED. 1987), 72.04.

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 6
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COURT'S QUESTIONS TO WITNESSES DURING THE COURSE OF A TRIAL, I MAY OCCASIONALLY ASK QUESTIONS OF A WITNESS, IN ORDER TO BRING OUT FACTS NOT THEN FULLY COVERED IN THE TESTIMONY. PLEASE DO NOT ASSUME THAT I HOLD ANY OPINION ON THE MATTERS TO WHICH MY QUESTIONS MAY HAVE RELATED. REMEMBER THAT YOU, AS JURORS, ARE AT LIBERTY TO DISREGARD ALL COMMENTS OF THE COURT IN ARRIVING AT YOUR OWN FINDINGS AS TO THE FACTS.

AUTHORITY: DEVITT, BLACKMAR & WOLFF, INSTRUCTIONS (4th ED. 1987), 70.13.

FEDERAL

JURY

PRACTICE

AND

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 7
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STATUTORY PROSCRIPTION AGAINST DISCRIMINATION
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THE REHABILITATION ACT PROVIDES, IN PART, THAT NO EMPLOYER SHALL DISCRIMINATE AGAINST A QUALIFIED INDIVIDUAL WITH A DISABILTY BECAUSE OF THAT PERSON'S DISABILITY IN REGARD TO THE TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT. THE ADA DEFINES "DISCRIMINATE" TO INCLUDE THE FAILURE TO MAKE REASONABLE ACCOMMODATION TO THE KNOWN PHYSICAL OR MENTAL LIMITATIONS OF AN OTHERWISE QUALIFIED INDIVIDUAL WITH A DISABILITY. AUTHORITY: __________; REHABILITATION ACT AMENDMENTS OF 29 C.F.R. § 794(D) 1992, PUBLIC LAW NO. 102-569, SEC. 506, 106 STAT. 4344, 4428 (1992) (CODIFIED AT 29 U.S.C. § 794 (D) ("THE STANDARDS USED TO DETERMINE WHETHER THIS SECTION HAS BEEN VIOLATED IN A COMPLAINT ALLEGING EMPLOYMENT DISCRIMINATION UNDER THIS SECTION SHALL BE THE STANDARDS APPLIED UNDER TITLE I OF THE AMERICANS WITH DISABILITIES ACT").

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 8
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ELEMENTS OF A FAILURE TO ACCOMMODATE CASE IN ORDER TO MEET HIS BURDEN OF PROOF IN A FAILURE TO ACCOMMODATE CASE UNDER THE REHABILITATION ACT, THE PLAINTIFF ALEXANDER JUNG MUST ESTABLISH THAT: 1. HE WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY AT THE TIME SHE REQUESTED AN ACCOMMODATION; 2. THE DEFENDANT HAD NOTICE OF HIS DISABILITY AND THE NEED FOR AN ACCOMMODATION; 3. AN ACCOMMODATION EXISTS WHICH WOULD ALLOW ALEX TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS POSITION; AND 4. THE DEFENDANT FAILED TO PROVIDE ALEX WITH A REASONABLE ACCOMMODATION. IF YOU FIND THAT THE PLAINTIFF ALEXANDER JUNG HAS

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ESTABLISHED EACH OF THESE ELEMENTS, YOU MUST FIND IN FAVOR OF THE PLAINTIFF. THE PLAINTIFF IS NOT REQUIRED TO PROVE THAT THE UNITED STATES POSTAL SERVICE INTENDED TO DISCRIMINATE AGAINST HIM.

AUTHORITY:

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ADAPTED FROM 42 U.S.C. § 12112(b); LYONS v. LEGAL AID SOCIETY, 68 F.3D 1512, 1515 (2D CIR. 1995); TH ZUKE V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, 166 F.3D 1041 (9 CIR. 1999). GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 9 QUALIFIED INDIVIDUAL WITH A DISABILITY ­ DEFINED THE TERM "QUALIFIED INDIVIDUAL WITH A DISABILITY' MEANS AN INDIVIDUAL WITH A DISABILITY WHO, WITH OR WITHOUT A REASONABLE ACCOMMODATION, CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE EMPLOYMENT POSITION.

AUTHORITY: 42 U.S.C. § 12111(8); DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS 106A.O4 (4TH Ed. and 2000 Supplement).

GIVEN AS REQUESTED:
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GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

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UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 10
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ESSENTIAL FUNCTIONS ­ DEFINED
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THE TERM "ESSENTIAL FUNCTIONS" OF AN EMPLOYMENT POSITION
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MEANS THE BASIC, FUNDAMENTAL DUTIES OF THE JOB THE PLAINTIFF
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HOLDS.
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THE TERM "ESSENTIAL FUNCTIONS" DOES NOT INCLUDE THE

MARGINAL FUNCTIONS OF THE POSITION. IN DETERMINING WHETHER A PARTICULAR JOB FUNCTION IS
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ESSENTIAL, YOU MAY CONSIDER THE EMPLOYERS JUDGMENT AS TO
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WHICH JOB FUNCTIONS ARE ESSENTIAL, THE WRITTEN JOB DESCRIPTIONS
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PREPARED BEFORE ADVERTISING OR INTERVIEWING APPLICANTS FOR
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THE JOB, THE AMOUNT OF TIME SPENT ON THE JOB PERFORMING THE
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FUNCTION, THE CONSEQUENCES OF NOT REQUIRING THE EMPLOYEE TO
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PERFORM THE FUNCTION, THE WORK EXPERIENCES OF EMPLOYEES WHO
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HAVE HELD THAT JOB.
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AUTHORITY: 29 C.F.R. §1630.2(n); DEVITT, BLACKMAR, AND WOLFF, FEDERAL JURY PRACTICE AND PROCEDURE 104.A.06 GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE
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PROPOSED JURY INSTRUCTION NO. 11
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DISABILITY - DEFINED THE TERM "DISABILITY" MEANS, WITH RESPECT TO AN INDIVIDUAL:

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1.

A PHYSICAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE OF THE MAJOR LIFE ACTIVITIES OF THE INDIVIDUAL;

2. 3.

A RECORD OF SUCH AN IMPAIRMENT; OR BEING REGARDED AS HAVING SUCH AN IMPAIRMENT.

AUTHORITY: 42 U.S.C. §12102(2).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 12
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MAJOR LIFE ACTIVITIES ­ DEFINED "MAJOR LIFE ACTIVITIES" ARE THOSE BASIC ACTIVITIES THAT THE AVERAGE PERSON IN THE GENERAL POPULATION CAN PERFORM WITH LITTLE OR NO DIFFICULTY. MAJOR LIFE ACTIVITIES INCLUDE CARING FOR ONESELF, PERFORMING MANUAL TASKS, WALKING, LIFTING, BENDING, SPEAKING, LEARNING, AND WORKING. THIS LIST IS NOT EXHAUSTIVE. OTHER MAJOR LIFE ACTIVITIES INCLUDE, BUT ARE NOT LIMITED TO, REPRODUCTION AND EATING.

AUTHORITY: 29 C.F.R. §1630.2(I); BRAGDON V. ABBOTT, 524 U.S. 624, 118 S. CT. 2196 (1998); IRJAVAC V. HOLY FAMILY HEALTH PLUS, 13 F.SUPP. 2D 737, 746-747 (N.D. ILL. 1998).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 13 SUBSTANTIALLY LIMITS ­ DEFINED

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THE TERM "SUBSTANTIALLY LIMITS" MEANS:
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1.
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UNABLE TO PERFORM A MAJOR LIFE ACTIVITY THAT THE

AVERAGE PERSON IN THE GENERAL POPULATION CAN PERFORM; OR 2.
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SIGNIFICANTLY RESTRICTED AS TO THE CONDITION, MANNER,

OR DURATION UNDER WHICH AN INDIVIDUAL CAN PERFORM A PARTIULAR MAJOR LIFE ACTIVITY AS COMPARED TO THE CONDITION,
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MANNER OR DURATION UNDER WHICH THE AVERAGE PERSON IN THE
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GENERAL POPULATION CAN PERFORM THAT SAME MAJOR LIFE ACTIVITY.
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THE
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FOLLOWING

FACTORS

SHOULD

BE

CONSIDERED

IN

DETERMINING WHETHER AN INDIVIDUAL IS SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY:
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THE NATURE AND SEVERITY OF THE

IMPAIRMENT; THE DURATION OF THE IMPAIRMENT; AND THE PERMANENT OR LONG TERM IMPACT RESULTING FROM THE IMPAIRMENT.
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AUTHORITY:
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29 C.F.R. §1630.2(j).
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GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 14
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REGARDED AS SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY ­ DEFINED AN INDIVIDUAL WHO IS REGARDED BY HER EMPLOYER AS HAVING

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AN IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY
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IS AN INDIVIDUAL WITH A DISABILITY.
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AN INDIVIDUAL WILL BE THE INDIVIDUAL HAS A

REGARDED AS HAVING A DISABILITY IF:
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PHYSICAL IMPAIRMENT THAT DOES NOT SUBSTANTIALLY LIMIT MAJOR LIFE ACTIVITIES BUT IS TREATED BY HER EMPLOYER AS HAVING SUCH
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LIMITATIONS; OR HAS A PHYSICAL IMPAIRMENT THAT SUBSTANTIALLY
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LIMITS MAJOR LIFE ACTIVITIES ONLY AS A RESULT OF THE ATTITUDES OF
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OTHERS TOWARD SUCH IMPAIRMENT.
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AUTHORITY:
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29 C.F.R. §1630.2(l).
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GIVEN AS REQUESTED:
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GIVEN AS MODIFIED:
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REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 15 REASONABLE ACCOMMODATION AN EMPLOYER MUST PROVIDE A REASONABLE ACCOMMODATION TO THE KNOWN PHYSICAL OR MENTAL LIMITATIONS OF AN EMPLOYEE WITH A DISABILITY. AN ACCOMMODATION IS ANY CHANGE IN THE WORK ENVIRONMENT OR IN THE WAY THINGS ARE CUSTOMARILY DONE THAT ENABLES AN INDIVIDUAL WITH A DISABILITY TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB. A FEW EXAMPLES OF A REASONABLE ACCOMMODATION ARE JOB RESTRUCTURING, PART-TIME OR MODIFIED WORK SCHEDULES,

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REASSIGNMENT TO A VACANT POSITION, AND ADJUSTMENT OR MODIFICATION OF POLICIES, THE PROVISION OF READERS AND INTERPRETERS AND OTHER SIMILAR ACTIONS. AN EMPLOYEE'S REQUEST FOR REASONABLE ACCOMMODATION NEED NOT USE MAGIC WORDS AND CAN BE IN PLAIN ENGLISH. THE EMPLOYEE NEED NOT MENTION THE REHABILITATION ACT OR USE THE WORDS "REASONABLE ACCOMMODATION."

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AUTHORITY: ADAPTED FROM 29 C.F.R. §1613.704(b) AND INTERPRETIVE GUIDANCE AND EEOC TECHNICAL ASSISTANCE MANUAL, 3.6 AND 3.7; ADAPTED FROM 42 U.S.C. 12111 (9); INTERPRETIVE GUIDANCE TO 29 C.F.R. 1630.2 (0); 12112 (b)(5)(A); 29 C.F.R. 1630.9 (O); SCHMIDT v. SAFEWAY, INC., 864 F. SUPP. 991 (D. ORE. 1994).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED:

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WITHDRAWN:
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UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 16 INTERACTIVE PROCESS REASONABLE ACCOMMODATION IS A PROBLEM-SOLVING

INTERACTIVE PROCESS INVOLVING BOTH THE EMPLOYER AND THE EMPLOYEE. ONCE THE EMPLOYER IS NOTIFIED OF THE NEED FOR AN

ACCOMMODATION, THE EMPLOYER MUST CONSULT WITH THE EMPLOYEE DIRECTLY TO EXCHANGE INFORMATION AND MUST CONSIDER THE EMPLOYEE'S NEEDS AND PREFERENCES IN ATTEMPTING TO DETERMINE THE APPROPRIATE ACCOMMODATION. THIS INTERACTIVE PROCESS IS

MANDATORY, AND NEITHER SIDE CAN DELAY OR OBSTRUCT THE PROCESS. AN EMPLOYEE'S REQUEST FOR AN ACCOMMODATION WILL

TRIGGER THE INTERACTIVE PROCESS WHEN THE EMPLOYER IS THE ONE WHO PERCEIVES THE NEED FOR SUCH AN ACCOMMODATION, THEN THE EMPLOYER HAS THE RESPONSIBILITY OF INITIATING THE INTERACTIVE PROCESS TO DETERMINE IF THERE IS AN ACCOMMODATION WHICH WILL ENABLE THE EMPLOYEE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB. THE INTERACTIVE PROCESS REQUIRES COMMUNICATION AND GOOD FAITH EXPLORATION OF POSSIBLE ACCOMMODATIONS. A PARTY THAT OBSTRUCTS OR DELAYS THE INTERACTIVE PROCESS IS NOT ACTING IN GOOD FAITH. A PARTY THAT FAILS TO COMMUNICATE BY WAY OF

INITIATION OR RESPONSE MAY ALSO BE ACTING IN BAD FAITH.

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AN EMPLOYER WHO FAILS TO ENGAGE IN THIS INTERACTIVE PROCESS IN GOOD FAITH IS LIABLE FOR DAMAGES UNDER THE ADA IF A REASONABLE ACCOMMODATION WOULD HAVE BEEN POSSIBLE. THIS MEANS THAT IF YOU FIND THAT ALEXANDER JUNG IS A QUALIFIED INDIVIDUAL WITH A DISABILITY, AND THAT DEFENDANT KNEW OF HER NEED FOR A REASONABLE ACCOMMODATION AND FAILED TO ENGAGE IN GOOD FAITH IN AN INTERACTIVE PROCESS TO DETERMINE A REASONABLE ACCOMMODATION, YOU MUST FIND IN FAVOR OF THE PLAINTIFF, IF YOU ALSO FIND THAT A REASONABLE ACCOMMODATION OF ALEX'S DISABILITY WOULD HAVE BEEN POSSIBLE. IN DETERMINING WHETHER A REASONABLE ACCOMMODATION WOULD HAVE BEEN POSSIBLE, YOU CAN CONSIDER POSSIBLE

ACCOMMODATIONS OTHER THAN THOSE ACTUALLY PROPOSED BY ALEX. AUTHORITY: 29 CFR 1630.9 AND INTERPRETIVE GUIDANCE AND EEOC TECHNICAL ASSISTANCE MANUAL, 3.7 AND 3.8; BARNETT V. U.S. AIR, INC. 228 F.3D 1105, 111 (9TH CIR. 2000); TAYLOR V. PHOENIXVILLE SCHOOL DIST., 184 F.3D 296, 315 (3D CIR. 1999); BECK V. UNIVERSITY OF WISCONSIN BOARD OF REGENTS, 75 F.3D, 1130, 1135 (7TH CIR. 1996). GIVEN AS REQUESTED:

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GIVEN AS MODIFIED:
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REFUSED: WITHDRAWN: UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 17 UNDUE HARDSHIP ­ DEFINED THE TERM "UNDUE HARDSHIP" MEANS AN ACTION REQUIRING SIGNIFICANT DIFFICULTY OR EXPENSE. IN DETERMINING WHETHER AN ACCOMMODATION WOULD CAUSE THE DEFENDANT AN UNDUE HARDSHIP, YOU SHOULD CONSIDER THE NATURE AND COST OF THE

ACCOMMODATION NEEDED, THE OVERALL FINANCIAL RESOURCES OF THE DEFENDANT AND THE NUMBER OF PERSONS EMPLOYED BY THE DEFENDANT, AND THE SCOPE OF THE DEFENDANT'S BUSINESS,

INCLUDING THE COMPOSITION, STRUCTURE, AND FUNCTION OF THE DEFENDANT'S WORKFORCE. THE DEFENDANT OF HAS THE THE BURDEN TO PROVE A BY A

PREPONDERANCE ACCOMMODATION

EVIDENCE CAUSE AN

THAT UNDUE

PROPOSED BY

WOULD

HARDSHIP

DEMONSTRATING THE ACTUAL COST OF THE ACCOMMODATION WOULD CONSTITUTE A HARDSHIP. A FINDING OF "UNDUE HARDSHIP" CANNOT BE BASED ON MERE SPECULATION OF WHAT THE OUTCOME OF A GIVEN ACCOMMODATION WOULD BE.

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AUTHORITY: 42 U.S.C. 12111 (10)(A) AND (B); BARNETT V. U.S. AIR, INC., 228 F.3D 1105, 112021 (9TH CIR. 2000); HALL V UNITED STATES POSTAL SERV., 857 F.2d 1073, 1080 (6th CIR 1988); NELSON V. THORNBURGH, 567 F. SUPP. 369, AFF'D, 732 F.2D 146 (3RD CIR. 1985), CERT. DENIED, 469 U.S. 1188 (1985); SEE E.G., BROWN V. GEN. MOTORS CORP., 601 F.2D 956, 961 (8TH CIR. 1979).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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1 2

PROPOSED JURY INSTRUCTION NO. 18 REQUESTS FOR MEDICAL INFORMATION

3

THE REHABILITATION ACT PROHIBITS AN EMPLOYER FROM MAKING
4

INQUIRIES OF AN EMPLOYEE AS TO THE NATURE OR SEVERITY OF THE
5

EMPLOYEE'S DISABILITY, UNLESS SUCH INQUIRY IS SHOWN TO BE JOB6

RELATED AND CONSISTENT WITH BUSINESS NECESSITY.
7 8

THIS MEANS

THAT THE EMPLOYER MAY MAKE MEDICAL INQUIRIES ONLY TO DETERMINE IF THE EMPLOYEE IS ABLE TO PERFORM THE ESSENTIAL
9

FUNCTIONS OF THE JOB AND TO DETERMINE AN APPROPRIATE
10

ACCOMMODATION.
11

ANY MEDICAL INFORMATION OBTAINED MUST BE TREATED AS A
12

CONFIDENTIAL MEDICAL RECORD, AND SUPERVISORS AND MANAGERS
13

MAY BE INFORMED REGARDING NECESSARY RESTRICTIONS ON THE
14

WORK
15 16

OR

DUTIES

OF

THE

EMPLOYEE

AND

NECESSARY

ACCOMMODATIONS. AUTHORITY:
17

42 U.S.C. §12112(d)(4)(A) and (C); 29 C.F.R. §1630.14(c).
18

GIVEN AS REQUESTED:
19

GIVEN AS MODIFIED:
20

REFUSED:
21 22 23 24

WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE
25

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PROPOSED JURY INSTRUCTION NO. 19
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

REHABILITATION ACT BACK PAY IF YOU FIND THAT THE DEFENDANT PLACED ALEX ON UNPAID LEAVE BECAUSE OF HIS DISABILITY AND FAILED TO PROVIDE HIM WITH A REASONABLE ACCOMMODATION, IN VIOLATION OF THE REHABILITATION ACT, THEN YOU MUST AWARD SUCH DAMAGES WHICH WILL RESTORE ALEX TO THE ECONOMIC POSITION HE WOULD HAVE OCCUPIED BUT FOR THE UNLAWFUL CONDUCT OF HIS EMPLOYER. THIS WILL INCLUDE BACK PAY. THE PURPOSE OF BACK PAY IS TO MAKE THE PERSON WHOLE FOR ANY WAGES OR BENEFITS LOST AS A RESULT OF THE EMPLOYER'S UNLAWFUL CONDUCT. BACK PAY IS THE AMOUNT OF MONEY ALEXANDER JUNG WOULD HAVE EARNED AS A POSTAL SERVICE EMPLOYEE FROM MARCH 2002 THROUGH THE PRESENT DATE, MINUS ANY WAGES HE ACTUALLY EARNED DURING THIS PERIOD. IN CALCULATING BACK PAY, YOU MAY TAKE INTO ACCOUNT ANY INCREASES IN SALARY AND BENEFITS, INCLUDING ANY INCREASE IN PENSION BENEFITS THAT YOU FIND THE PLAINTIFF WOULD HAVE RECEIVED. IN CALCULAING BACK PAY, UNREALISTIC PRECISION IS NOT REQUIRED AND UNCERTAINITIES IN DETERMINING WHAT ALEXANDER JUNG WOULD HAVE RECEIVED BUT FOR THE DISCRIMINATION SHOULD BE RESOLVED AGAINST THE DISCRIMINATING EMPLOYER. YOU MAY MAKE AN ESTIMATE OF THE AMOUNT OF BACK PAY THAT WILL CONSTITUTE

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JUST AND REASONABLE COMPENSATION FOR LOST WAGES AND BENEFITS BASED UPON THE FACTS THAT ARE BEFORE YOU.

AUTHORITY: ADAPTED FROM BELLO, DESMARAIS & HARRISON, MODEL JURY INSTRUCTIONS, EMPLOYMENT LITIGATION, 107(1); MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, 3RD EDITION, 7.01; 42 U.S.C. §2000e-5(g); ALBEMARLE PAPER CO. V MOODY, 422 u.s. 405, 425 (1975); FORD MOTOR COMPANY V. EEOC, 458 u.s. 219 (1982); GALINDO V. STOODY CO., 793 F.2d 1502, 1507 (9th Cir. 1986); FORD V. ALFARO, 785 F.2D 835, 842 (9TH Cir. 1986).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 20 COMPENSATORY DAMAGES-NON PECUNIARY IF YOU FIND THAT THE PLAINTIFF HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT DISCRIMINATED AGAINST HIM OR FAILED TO PROVIDE A REASONABLE ACCOMMODATION FOR HIS DISABILITY THAT WOULD HAVE ALLOWED HIM TO CONTINUE TO PERFORM HIS POSITION IN THE POSTAL SERVICE, YOU MUST CONSIDER WHETHER THE PLAINTIFF IS ENTITLED TO COMPENSATORY DAMAGES. ALEX HAS ALLEGED THAT AS A RESULT OF THE DEFENDANT'S DISCRIMINATION, HE SUFFERED EMOTIONAL PAIN, SUFFERING, INCONVENIENCE, MENTAL ANGUISH, AND/OR LOSS OF ENJOYMENT OF

12

LIFE. COMPENSATORY DAMAGES ARE INTENDED TO MAKE A PERSON
13 14 15 16 17 18 19 20 21 22 23 24 25

WHOLE FOR SUCH INJURIES. IF YOU DETERMINE THAT THE PLAINTIFF HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT HE HAS EXPERIENCED EMOTIONAL PAIN, SUFFERING, INCONVENIENCE, MENTAL ANGUISH, OR LOSS OF ENJOYMENT OF LIFE, YOU MUST AWARD HIM MONETARY DAMAGES FOR THOSE INJURIES. THE PLAINTIFF IS NOT REQUIRED TO

HAVE SEEN A DOCTOR IN ORDER TO BE ENTITLED TO SUCH DAMAGES. NO EVIDENCE OF THE MONETARY VALUE OF SUCH PAIN AND SUFFERING HAS BEEN OR NEEDS TO BE, INTRODUCED INTO EVIDENCE. NO EXACT STANDARD EXISTS FOR FIXING THE COMPENSATION TO BE AWARDED FOR THESE INJURIES. THE MONETARY DAMAGES THAT YOU AWARD MUST BE REASONABLE AND FAIR COMPENSATION.

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WHEN CONSIDERING THE AMOUNT OF MONETARY DAMAGES TO WHICH THE PLAINTIFF MAY BE ENTITLED, YOU SHOULD CONSIDER THE NATURE, CHARACTER, AND SERIOUSNESS OF ANY EMOTIONAL PAIN, SUFFERING, INCONVENIENCE, MENTAL ANGUISH, OR LOSS OF ENJOYMENT OF LIFE THAT SHE FELT. YOU MUST ALSO CONSIDER ITS EXTENT OR DURATION, AS ANY AWARD YOU MAKE MUST COVER THE DAMAGES ENDURED BY HER SINCE THE WRONGDOING, TO THE PRESENT TIME, AND EVEN INTO THE FUTURE IF YOU FIND AS FACT THAT THE PROOFS

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

PRESENTED JUSTIFY THE CONCLUSION THAT HIS EMOTIONAL STRESS AND ITS CONSEQUENCES HAVE CONTINUED TO THE PRESENT TIME OR CAN REASONABLY BE EXPECTED TO CONTINUE IN THE FUTURE.

AUTHORITY: ADAPTED FROM BELLO, DESMARAIS, HARRISON, MODEL JURY INSTRUCTIONS, EMPLOYMENT LITIGATION, 1.07[3] (1994); DEVITT, BLACKMAR AND WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS 104.05, 104.06, 104A.11 (4th ED. 1987 & SUPP. 1995); 42 U.S.C. 1981a AND b.

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 21
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ELECTION OF FOREPERSON - SPECIAL VERDICT UPON RETIRING TO THE JURY ROOM YOU WILL SELECT A FOREPERSON. THE FOREPERSON WILL PRESIDE OVER YOUR

DELIBERATIONS, AND WILL BE YOUR SPOKESPERSON HERE IN COURT. SPECIAL VERDICT FORMS HAVE BEEN PREPARED FOR YOUR

CONVENIENCE. YOU WILL TAKE THESE VERDICT FORMS TO THE JURY ROOM. THE ANSWERS TO THE SPECIFIC VERDICTS IN THE SPACE PROVIDED MUST BE THE UNANIMOUS ANSWER OF THE JURY. WHEN YOU HAVE REACHED UNANIMOUS AGREEMENT AS TO YOUR SPECIFIC VERDICTS, YOUR FOREPERSON WILL DATE AND SIGN THE FORMS, AND THE JURY WILL THEN RETURN WITH THE COMPLETED FORMS TO THE COURTROOM.

AUTHORITY: ADAPTED FROM DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS, §74.04 (4th ED. 1987 & SUPP. 2000).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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PROPOSED JURY INSTRUCTION NO. 22
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

VERDICT FORM - JURY RESPONSIBILITY IT IS PROPER TO ADD THE CAUTION THAT NOTHING SAID IN THESE INSTRUCTIONS AND NOTHING IN ANY FORM OF VERDICT PREPARED FOR YOUR CONVENIENCE IS MEANT TO SUGGEST OR CONVEY IN ANY WAY OR MANNER WHAT VERDICT I THINK YOU SHOULD FIND. WHAT THE VERDICT SHALL BE IS THE SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY OF THE JURY.

AUTHORITY: ADAPTED FROM DEVITT, BLACKMAR & WOLFF, FEDERAL JURY PRACTICE AND INSTRUCTIONS, 74.07 (4th ED. 1987 & SUPP. 2000).

GIVEN AS REQUESTED: GIVEN AS MODIFIED: REFUSED: WITHDRAWN:

UNITED STATES DISTRICT COURT JUDGE

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Dated this 8st 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 I hereby certify that on the 8st 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: 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: s/Rosval A. Patterson Rosval A. Patterson

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