Free Proposed Jury Instructions - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertsons, Inc., a corporation, Debra A. Collette, Defendants. In light of defendant's submission of non-model Jury Instructions regarding the employer's business judgment, plaintiff requests the Court to instruct the jury regarding the permissible inference of discrimination if the jury disbelieves the employer's reason for discharge in accordance with the attached non-model instruction. It is not necessary to instruct the jury regarding the presumptions and burdens of the McDonnell Douglas framework for considering indirect evidence of a discriminatory motive. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509­10 n. 3 (1993). See Comment to § 12.1, Manual of Model Jury Intructions, Ninth Circuit (2001). However, in accordance with recent authority, plaintiff requests "permissible inference" jury instructions on his religious discrimination claim for termination of his employment with regard to defendant's reason for its decision. Specifically, plaintiff No. CIV-O3-2268-PHX-NVW PLAINTIFF'S REQUEST FOR PERMISSIBLE INFERENCE INSTRUCTION

requests the Court to instruct the jury that if plaintiff has established the elements of his religious discrimination claim by a preponderance of the evidence and if the jury does not believe defendant's reasons for its actions, the jury may, but is not required to, find for plaintiff. This instruction is necessary in this trial as set forth in the following authority.

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In 2000, the Supreme Court held: . . . [O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. [citation omitted] Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 120809, 147 L. Ed. 2d 105, 120 (2000). The Ninth Circuit has yet ruled on whether the jury must be instructed on the permissible inference of discrimination if it finds the defendant's reasons to be false and pretext. However, three Circuit Courts have ruled that such an instruction is required. In Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3rd Cir.1998), the Third Circuit Court of Appeals held that: . . . [the] trial court must ensure 'that the jury be given full and complete instructions by relating the law to the relevant evidence in the case.' ... . . . it is clear that the jury must be given the legal context in which it is to find and apply the facts. It is difficult to understand what end is served by reversing the grant of summary judgment for the employer on the ground that the jury is entitled to infer discrimination from pretext . . . if the jurors are never informed that they may do so. Accordingly . . . the jurors must be instructed that they are entitled to infer, but need not, that the plaintiff's ultimate burden of demonstrating intentional discrimination by a preponderance of the evidence can be met if they find that the facts needed to make up the prima facie case have been established and they disbelieve the employer's explanation for its decision. Id., 147 F.3rd at 279-280. In Cabrera v. Jakabovitz, 24 F.3d 372 (2nd Cir.), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994), the Second Circuit Court of Appeals agreed with the Third Circuit, holding [T]he jury needs to be told ... [it] is entitled to infer, but need not infer, that this burden has been met if they find that the four [elements of the prima facie case] previously set forth have been established and they disbelieve the defendant's explanation. Id., 24 F.3d at 382.(citation omitted). -2Case 2:03-cv-02268-NVW Document 117 Filed 03/02/2006 Page 2 of 5

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The Tenth Circuit has also held that failure to give the permissible inference instruction was reversible error. "[W]e hold that in cases such as this, a trial court must instruct jurors that if they disbelieve an employer's proffered explanation they may-- but need not--infer that the employer's true motive was discriminatory." Townsend v. Lumberman's Casualty Ins. Co., 294 F.3d 1232, 1240 (10th Cir. 2002).1 Accordingly, in light of the foregoing authority, the Court should instruct the jury on the permissive inference in accordance with the attached proposed instruction. Respectfully submitted this 1st day of March, 2006. DAVID C. LARKIN, P.C. By: s/ David C. Larkin David C. Larkin Attorney for Plaintiffs

In Townsend, the Tenth Circuit noted that two circuits, the Seventh and the Eleventh, had ruled that such an instruction was not necessary: Gehring v. Case Corp., 43 F.3d 340 (7th Cir.1994) and Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969 (11th Cir. 2000). The Tenth Circuit stated that in light of the Supreme Court's reaffirmation of the permissive inference in pretext cases in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-46, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000), these other earlier circuit cases were not persuasive. Id. 294 F.3d at 1238-41. -3-

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PLAINTIFF'S REQUESTED PERMISSIBLE INFERENCE PRETEXT INSTRUCTION ON RELIGIOUS DISCRIMINATION CLAIM If you find that plaintiff has established the elements of his claim for religious discrimination by a preponderance of the evidence and you disbelieve defendant's explanation for its decision to discharge plaintiff, you may, but are not required to, find for the plaintiff.

SOURCE: Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 1208-09, 147 L. Ed. 2d 105, 120 (2000); Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3rd Cir.1998); Cabrera v. Jakabovitz, 24 F.3d 372 (2nd Cir.); Townsend v. Lumberman's Casualty Ins. Co., 294 F.3d 1232, 1240 (10th Cir. 2002).

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Electronic notice and service of documents provided to: Jeffrey L. Lowry, Esq. Thomas L. Stahl, Esq.
Aaron C. Viets, Esq.

Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendant /s David C. Larkin

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