Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 Thomas L. Stahl (New Mexico, pro hac vice) ([email protected]) Aaron C. Viets (New Mexico, pro hac vice) ([email protected]) 2 Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 3 Albuquerque, New Mexico 87102 (505) 765-5900 4 and 5 Paul A. Conant, SBN 012667 6 THOMSON CONANT PLC Northern Trust Bank Tower, Suite 925 7 2398 East Camelback Road Phoenix, Arizona 85016-9002 8 602.508.9010 9 10
IN THE UNITED STATES DISTRICT COURT

Attorneys for Defendants Albertson's, Inc. and Debra A. Collette

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FOR THE DISTRICT OF ARIZONA

Lewis Silverman, Cynthia Silverman, CIV-03-2268 PHX/NVW Plaintiffs, vs. ALBERTSONS, INC., a corporation, Debra A. Collette, Defendants. DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO DEFENDANT'S PROPOSED SUPPLEMENTAL JURY INSTRUCTION

At the pretrial conference, the Court asked the parties to formulate a single

19 supplemental jury instruction. This jury instruction was intended to do two things. First, it 20 was to include the substance of Ninth Circuit Model Jury Instructions 12.1A, 12.1B, and 21 12.1C. Second, it was to include the notion that the jury is not empanelled to second-guess 22 -1-

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1 Defendant's decision to discharge Plaintiff. The jury's job in this case will instead be to 2 decide whether Defendant's decision to discharge Plaintiff was unlawful. 3 The parties conferred but ultimately could not agree on a proposed jury instruction.

4 In the end, Plaintiff elected to submit an instruction that merely combines Model Jury 5 Instructions 12.1A, 12.1B, and 12.1C, and adds nothing more. (Compare Pl's Proposed 6 Jury Inst. on Pl's Burden of Proof and Pl's Objections to Def's Proposed Supp. Jury Inst. 7 ("Pl's Brief") at 7) with Ninth Circuit Model Jury Instructions 12.1A, 12.1B, and 12.1C. 8 Defendant's proposed instruction combines Model Jury Instructions 12.1A, 12.1B, and 9 12.1C, too, but it also includes the additional element that the Court discussed at the pretrial 10 conference. Defendant's proposed instruction expressly explains to the jury that if the jury 11 concludes that Defendant believed in good faith that Plaintiff improperly possessed 12 company property, the jury should find in Defendant's favor. Plaintiff argues that it is 13 inappropriate to instruct the jury along these lines. Plaintiff's objections should be 14 overruled. 15 I. 16 One of Plaintiff's arguments is that there is no authority for an instruction of the type 17 Defendant proposes, but Plaintiff is incorrect. In addition to the Court's verbal order to 18 formulate an instruction of the sort Defendant submitted, other judicial authority exists. For 19 example, the Eleventh Circuit Court of Appeals has approved of the following in Title VII 20 race and sex discrimination cases: 21 22 -2There is authority for instructing the jury that an employer is free to make its own business decisions.

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You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's [race] [sex or gender]. So far as you are concerned in this case, an employer may [discharge] . . . an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not favor the action taken and would have acted differently under the circumstances. Eleventh Circuit Pattern Jury Instruction 1.2.1; see also Seventh Circuit Pattern Jury

6 Instruction 3.07 ("[Y]ou should not concern yourself with whether Defendant's actions were 7 wise, reasonable, or fair. Rather, your concern is only whether Plaintiff has proved that 8 Defendant" violated the law.) Defendant's proposed instruction distills this concept and 9 places it in context with the facts. If the jury concludes that Defendant fired Plaintiff for the 10 sole reason that it believed he improperly possessed company property, the jury's work is 11 over because it will necessarily have concluded that Defendant did not violate the law. At 12 that point the jury should stop deliberations and render a verdict for Defendant. 13 Because it is an accurate statement of law, the notion that an employer is free to 14 make its own business decisions, good or bad, applies with full force throughout a lawsuit 15 such as this. Accordingly, in support of its proposed jury instruction, Defendant cited two 16 cases in which the Ninth Circuit reviewed the trial courts' application of this business 17 judgment principle on summary judgment, Hernandez v. Spacelabs Medical, Inc., 343 F.3d 18 1107, 1115 (9th Cir. 2003) and Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 19 (9th Cir. 2002). Plaintiff argues that the Hernandez and Villiarimo decisions are irrelevant 20 because they did not arise in the context of the trial court's charge to the jury, but that 21 difference is immaterial. Hernandez and Villiarimo stand for the proposition that courts do 22
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1 not sit to decide whether an employer made good or bad business decisions, and juries are 2 not empanelled in Title VII cases to do so either. 3 II. 4 Plaintiff also argues that Defendant's proposed instruction is erroneous because it 5 does not state who in Defendant's organization must have believed Plaintiff engaged in 6 misconduct. The Court should dismiss this objection out of hand because it is misdirected 7 and overstated. Plaintiff's real beef is with Ninth Circuit Model Jury Instructions 12.1A, 8 12.1B, and 12.1C. These instructions call upon the jury to determine whether a corporate 9 defendant was motivated by an unlawful reason. They do not require the jury to decide who 10 in the Defendant's organization had the unlawful motivation, but there is nothing erroneous 11 in that. The parties have already agreed that the jury should be instructed that a corporation 12 "can only act through its employees, agent, directors, or officers." (Stipulated jury 13 instruction 6.2.) Accordingly, the jury will have sufficient guidance to decide whether 14 Defendant acted with an unlawful purpose in discharging Plaintiff and whether it concluded 15 that Plaintiff misappropriated company property. 16 III. 17 18 Defendant does not have a burden to prove that it concluded in good faith that Plaintiff improperly possessed company property. Another of Plaintiff's arguments is that it should be Defendant's burden to prove that The jury already has adequate instruction on how corporations act through their employees.

19 it concluded in good faith that Plaintiff improperly possessed company property. This 20 objection of Plaintiff's rests on the incorrect assumption that the statement in Defendant's 21 proposed instruction about what Defendant believed is an affirmative defense. A defendant 22 -4-

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1 in a civil lawsuit has burdens of proof only as to its affirmative defenses. Tovar v. U.S. 2 Postal Service, 3 F.3d 1271, 1284 (9th Cir. 1993) ("In every civil case, the defendant bears 3 the burden of proof as to each element of an affirmative defense.") (Thompson, J., 4 concurring in part and dissenting in part). An affirmative defense consists of new facts or 5 arguments that, if true, defeat the plaintiff's allegations even if those are all true as well. 6 Black's Law Dictionary 451 (8th ed. 2004). Defendant's assertion that it believed in good 7 faith that Plaintiff misappropriated company property is not an affirmative defense. If 8 Plaintiff proves his case, it is no defense (except perhaps as to some damages, see Ninth 9 Circuit Model Jury Instruction 12.1C) that Defendant believed that Plaintiff improperly 10 possessed company property. Indeed, the jury may be instructed that if Defendant had both 11 lawful and unlawful reasons for its discharge decision, Plaintiff may still recover. See id. 12 Accordingly, Defendant does not have the burden of proving that it believed Plaintiff 13 improperly possessed company property. 14 IV. 15 The term "good faith" does not need a definition. Plaintiff's next objection is that the term good faith is erroneously undefined.

16 Plaintiff does not provide a suggested definition. Defendant submits that good faith need 17 not be defined. The Court should define only terms of art that lay jurors might not 18 otherwise understand. See, e.g., Ninth Circuit Model Jury Instruction 12.4 (defining 19 "adverse employment action," "tangible employment action," and "constructive discharge"). 20 If the Court nonetheless feels that good faith should be defined, the following definition is 21 appropriate: "The defendant acted in `good faith' if it honestly or actually believed that the 22 -5-

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1 plaintiff improperly possessed company property, even if its belief was incorrect." This 2 definition follows from Hernandez and Villiarimo. Plaintiff points out correctly that these 3 cases do not use the term good faith, but they certainly embody the concept. Hernandez and 4 Villiarimo hold that an employer's actual belief (Hernandez, 343 F.3d at 1115) or honest 5 belief (Villiarimo, 281 F.3d at 1063) that an employee engaged in misconduct defeats the 6 plaintiff's claim, even if that belief turns out to be mistaken. See also George v. Leavitt, 7 407 F.3d 405, 415-16 (D.C. Cir. 2005). 8 Defendant would also not object if the Court decides simply to omit the phrase good

9 faith rather than defining it. Defendant's proposed instruction would still be consistent with 10 the law without that qualifier. No matter what the Court decides, it should reject Plaintiff's 11 position. Plaintiff is trying to sow confusion with his arguments about good faith, when in 12 fact no confusion need exist. The concept is simple: If the jury concludes that Defendant 13 discharged Plaintiff for the lone reason that Defendant believed Plaintiff improperly 14 possessed company property, the jury should understand that its verdict should be for 15 Defendant. 16 V. 17 Defendant's investigation is irrelevant. Plaintiff's final position is that if the Court adopts Defendant's proposed instruction

18 over his objection 19 20 21 22 -6then whether Albertsons conducted a good faith investigation is significantly relevant to whether it acted in "good faith" in terminating Mr. Silverman under the circumstances, and plaintiff is entitled to an instruction including that consideration.

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1 (Pl's Brief at 5-6.) In support Plaintiff relies mainly on the dissent in Hardage v. CBS 2 Broadcasting, Inc., 427 F.3d 1177, 1192 (9th Cir. 2005). Plaintiff claims that the Hardage 3 dissent stands for the notion that a failure to investigate can lead to liability. In fact, when 4 read in context, the passage Plaintiff cites from Hardage is clearly referring to the 5 Burlington Industries/Faragher affirmative defense. See, e.g., Hardage, 427 F.3d at 1192 6 ("Thus, contrary to the majority's holding . . . an employer must fulfill its duty to prevent 7 and correct the alleged harassment . . . Notably, not one of these options fulfilled CBS's 8 legal duty to investigate and correct the harassing behavior."). That defense is embodied in 9 Ninth Circuit Model Jury Instruction 12.2B, which is not relevant to this case. Model 10 Instruction 12.2B obligates an employer defendant to prove that it "exercised reasonable 11 care to . . . promptly correct . . . harassing behavior." Ninth Circuit Model Jury Instruction 12 12.2B (emphasis added) (Heading: "Hostile Work Environment Cause By Supervisor 13 Claim Based Upon Vicarious Liability - Tangible Employment Action - Affirmative 14 Defense"). This is not a harassment/hostile work environment case. Plaintiff's lone 15 remaining claim is that Defendant discharged him because he is Jewish. (Doc. No. 1, ¶ 18.) 16 Plaintiff is certainly free to spend his trial time attempting to prove that Defendant failed to 17 investigate before concluding that he improperly possessed company property. Instructing 18 the jury that Defendant was obligated by law to make "a good faith investigation" is another 19 matter. (Pl's Brief at 5.) As Plaintiff points out, a party is only entitled to an instruction on 20 his case theory if it is supported by law. (Id. at 6.) Any instruction suggesting that 21 Defendant in this case was obligated to conduct an investigation is not supported by law. 22 -7-

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Conclusion An employer is entitled to run its business as it sees fit so long as its conduct does not

3 violate the law. Accordingly, if the jury in this case concludes that Defendant believed that 4 Plaintiff improperly possessed company property and that Defendant discharged Plaintiff for 5 this reason alone, the jury should cease deliberations and find for Defendant. Plaintiff may 6 not like the instruction that informs the jury of the law, but that does not make the 7 instruction objectionable. The Court should overrule Plaintiff's objections. 8 9 10 11 12 13 14 and 15 16 17 18 19 20 21 22 -8CERTIFICATE OF SERVICE Paul A. Conant THOMSON CONANT PLC Northern Trust Bank Tower, Suite 925 2398 East Camelback Road Phoenix, Arizona 85016-9002 602.508.9010 Attorneys for Defendants Albertsons and Collette /s/ Aaron C. Viets Thomas L. Stahl Aaron C. Viets 201 Third St., Suite 2200 Albuquerque, New Mexico 87102 By Dated this 12th day of December 2005. Respectfully submitted, RODEY DICKASON SLOAN AKIN & ROBB, P.A.

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It is hereby certified that a true and correct copy of the foregoing Defendant's

2 Response to Plaintiff's Objections to Defendant's Proposed Supplemental Jury Instruction 3 was sent electronically to Plaintiff's counsel of record, David C. Larkin, on this 12th day of 4 December, 2005. 5 By: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 -9/s/ Aaron C. Viets Aaron C. Viets

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