Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Case 2:03-cv-02268-NVW Document 118 Filed 03/02/2006 Page 1 of 4

Thomas L. Stahl, SBN 6609 (New Mexico) (pro hac vice) Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third St., NW - Suite 2200 Albuquerque, New Mexico 87102 Telephone: (505) 765-5900 [email protected] Paul A. Conant, SBN 012667 Thomson Conant, PLC Northern Trust Bank Tower Suite 925 2398 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 508-9010 Attorneys for Defendants Albertsons, Inc. and Debra A. Collette

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants.

CIV-03-2268 PHX/NVW

DEFENDANT'S SECOND PROPOSED SUPPLEMENTAL JURY INSTRUCTION

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The plaintiff has brought a claim of employment discrimination against the defendant. The plaintiff claims that his religion 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 religion was either the sole reason or a motivating factor for the defendant's decision to discharge the plaintiff and further claims the decision to discharge the plaintiff was based upon a lawful reason. As to the plaintiff's claim that his religion was the sole reason for the defendant's decision to discharge him, the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. 2. the plaintiff was discharged by the defendant; and the plaintiff was discharged solely because of the plaintiff's religion.

If you find that the plaintiff has proved both of these elements, 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. As to the plaintiff's claim that his religion was a motivating factor for the defendant's decision to discharge him, the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. 2. the plaintiff was discharged by the defendant; and the plaintiff's religion was a motivating factor in the defendant's decision to discharge the plaintiff.

If the plaintiff has failed to prove either of these elements, your verdict should be for the defendant. If the plaintiff has proved both of these elements, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. The plaintiff is entitled to monetary damages if you find that the defendant's decision was motivated both by religion and a lawful reason, unless the defendant proves by a preponderance of the evidence that the defendant would have made the same decision even if the plaintiff's religion had played no role in the employment decision. The defendant is not liable if the decision to discharge the plaintiff was based solely on an honest belief that the plaintiff was guilty of improper possession of company property.

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You may not return a verdict for the plaintiff just because you disagree with the defendant's decision to discharge the plaintiff or believe it to be harsh or unreasonable.

Source: Ninth Circuit Model Civil Jury Instructions 12.1A, 12.1B, and 12.1C; Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1115 (9th Cir. 2003); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002); Eighth Circuit Model Jury Instruction 5.94; Salguero v. City Of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004) (employers have "substantial latitude" under the law to make "discipline related decisions"); Allocco v. City of Coral Gables, 221 F. Supp. 2d 1317, 1371-72 (S.D. Fla. 2002) (similar).

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Respectfully submitted this 2nd day of March 1006. RODEY DICKASON SLOAN AKIN & ROBB, P.A.

By

/s/ Thomas L. Stahl Thomas L. Stahl 201 Third St. NW, Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendant

CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Defendant's Second Proposed Supplemental Jury Instruction was hand-delivered to Plaintiff's counsel of record, David C. Larkin, on this 1st day of March, 2006.

/s/ Thomas L. Stahl

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