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. No. CIV-O3-2268-PHX-NVW PLAINTIFF'S PROPOSED JURY INSTRUCTION ON PLAINTIFF'S BURDEN OF PROOF AND PLAINTIFF'S OBJECTIONS TO DEFENDANT'S PROPOSED SUPPLEMENTAL JURY INSTRUCTION

Plaintiff hereby submits the following attached supplemental jury instruction in response to the Court's directive at the October 14, 2005 pretrial conference. This instruction combines 9th Circuit Model Jury Instructions 12.1A, 12.1B, and 12.1C. Plaintiff objects to defendants including a "good faith" affirmative defense instruction within a model jury instruction which is intended to set forth plaintiff's burden of proof in a Title VII disparate treatment case, especially without setting forth who has the burden of proving "good faith", without defining "good faith", and without authority for even using the term "good faith" in a Title VII discrimination jury instruction. Plaintiff's objections are set forth more fully in the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES Defendant has submitted a supplemental jury instruction that contains improper instruction regarding an alleged "good faith belief." The instruction includes objectionable non-model instructions, highlighted as follows:

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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, namely, a good faith belief that the plaintiff improperly possessed company property. ... For example, if you conclude that the defendant discharged the plaintiff because it believed in good faith that the plaintiff improperly possessed company property, your verdict should be for the defendant. ... If, on the other hand, you conclude that the defendant discharged the plaintiff solely because it believed in good faith that the plaintiff improperly possessed company property, your verdict should be for the defendant. First, there is no authority for including this jury instructions in any federal decision in the entire federal case data bank in Westlaw. In Gilchrist v. Jim Slemons Imports, Inc. 803 F.2d 1488, 1495-96 (9th Cir. 1986), an age discrimination case where, unlike the case at bar, there is a "good faith" affirmative defense available to an employer with regard to statutory liquidated damages, the Court of Appeals held that it was not error to not include a "good faith" instruction in instructing the jury whether the employer's violation of the ADEA was wilful as follows: Slemons contends that the jury instructions also were erroneous because *1496 they did not include a specific reference to a good faith defense. Although we do not pass on whether such an instruction may be given, we hold that a good faith defense instruction is not necessary. In Thurston, the Supreme Court concluded that the good faith and reasonable grounds defense is "reflected in the proviso to § 7(b) of the [Act] that relates to willfulness." 105 S.Ct. at 625 n. 22. Therefore, the district judge did not need to instruct the jury concerning a good faith defense. An instruction that adequately states Thurston's "willful" standard is sufficient.

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The two cases cited by defendant as authority for its proposed instruction are summary judgment cases where, buried in dicta, the Court acknowledged that on summary judgment, an employer is not liable for discrimination in a disparate impact case if the uncontroverted evidence showed the employer believed its decision was not based on discrimination. In other words, the plaintiff failed to provide evidence from which a reasonable juror could find that the employment decision was based upon discriminatory animus, which is what plaintiff must prove at trial, as set forth in the 9th Circuit Model Jury Instructions 12.1A, B and C. Neither case uses the term "good faith belief." Accordingly, neither case cited is authority for including an instruction on a jury finding of a "good faith belief" in a Title VII disparate treatment case. In fact, a corporation, a legal but inanimate person, is not capable of having a belief, only its agents and employees are. The use of the phrase "good faith" in this context, though common, is mistaken. "Good faith" is a subjective concept. The subjective inquiry in a Title VII discrimination case is whether a decision-maker had a discriminatory intent, not whether the decision-maker had a "good faith" belief that its decision was proper. Which human has to have this good faith belief is not specified in the defendant's proposed instruction. The ambiguity could be unfairly prejudicial to plaintiff. Furthermore, the instruction is inserted in a combination of 9th Circuit model instructions setting forth the plaintiff's burden of proof and the results of plaintiff's success or failure at meeting that burden. Defendant's "good faith beliefs" are not an element of plaintiff's claim and plaintiff has no burden to prove them. Using the word "conclude", defendant's proposed instruction instructs the jury that it may make a finding that "defendant believed in good faith" and defendant "believed in good faith." However, the instruction does not set forth whose burden it is to prove this "good faith belief" or what must be proven to constitute good faith. Even if the jury could be instructed to make such a finding of fact in a Title VII case, then someone has to prove it, namely, defendant, and the jury must be instructed regarding defendant's burden of proof to avoid confusing or misleading the jury.

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The law gives plaintiff the burden of proving the defendant's decision to terminate him was motivated by a discriminatory animus. "Good faith" applied to the defendant employer is an extraneous word for "nondiscriminatory reason." If plaintiff does not prove a discriminatory motive, defendant prevails. In addition to being unsupported by any legal authority as properly included in the instruction to the jury, "good faith" is therefore irrelevant here. An irrelevant instruction may easily mislead the jury regarding the elements of plaintiff's burden of proof. Defendant is not entitled to an irrelevant jury instruction. U.S. v. Foppe, 993 F.2d 1444, 1452 (9th Cir. 1993). Even if an instruction on "good faith" was relevant, defendant's proposed instruction regarding "good faith" is woefully incomplete. Dang v. Cross ,422 F.3d 800, 806 (9th Cir. 2005) (Incomplete jury instructions where record provided an evidentiary basis for such an instruction was reversible error). As set forth above, defendant's use of the language "if you conclude" and "you conclude" in its proposed instruction is clearly instructing the jury it may make a finding of fact on the issue of "good faith belief." Thus, the instruction fails to specify who has the burden of proving that fact and what it means. Further, a "good faith belief" is a complex legal concept that without proper instruction is sorely misleading. For example, in 9th Circuit Model Jury instruction in Securities cases instructs with specificity the affirmative defense of "good faith belief" as follows: [9th Cir. Model Instruction] 21.9 SECURITIES ACT--AFFIRMATIVE DEFENSE OF BROKER OR DEALER (RULE 10B­5) If you find that the defendant [insert name of broker or dealer] is a controlling person, you must consider whether the defendant induced a violation and acted in good faith. The defendant has the burden of proving both of the following elements by a preponderance of the evidence: 1. 2. the defendant did not directly or indirectly induce the violation; and the defendant acted in good faith. Good faith can be established only by proving that the defendant maintained and enforced a reasonable and proper system of supervision and internal control. -4-

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If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant. Here, Albertsons improperly requests the Court to insert an ambiguous minimalist "good faith" affirmative defense finding instruction into the Ninth Circuit Model instructions for plaintiff's burden of proof without specifying that defendant has to prove its "good faith" and without any specification or guidance of what constitutes "good faith" under the circumstances. Thus, the instruction is incomplete for its failure to specify what constitutes a "good faith belief and what defendant must prove. Although plaintiff denies that a "good faith" finding of fact is appropriate in a Title VII case like this, in the spirit of compromise reserving his objections, and without attempting to define "good faith", plaintiff proposed to defendant the following pathbreaking language: The defendant has the burden of proving that it acted in good faith, and that the discharge was a reasonable employment action under the circumstances, including a good faith investigation. Defendant rejected it, so an effort by plaintiff to define "good faith" in an instruction obviously would have been futile and a waste of time. Defendant's counsel responded to plaintiff's counsel that Albertsons does not believe it had to make a good faith investigation of the charge of "improper possession of property" against Silverman for a jury to find it acted in good faith in discharging him for that reason. However, the evidence in this case will show that Mr. Silverman's manager, Ms. Collette, who he has alleged to have discriminated against him because he is Jewish, carried out the investigation for defendant Albertsons, and that her investigation was incomplete and misleading on purpose. Accordingly, with the evidence presented, if the Court gave a "good faith" instruction over plaintiff's objections, then 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 -5-

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consideration. See e.g., Hardage v. CBS Broadcasting, Inc. 427 F.3d 1177, 1192 (9th Cir. 2005) ("[A]n employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer.") "A party is entitled to an instruction about his or her theory of the case if it is supported by law and has foundation in the evidence." Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) Defendant's proposed language, "[defendant] further claims the decision to discharge the plaintiff was based upon a lawful reason, namely, a good faith belief that the plaintiff improperly possessed company property. . . " is further objectionable because a question of fact exists whether defendant actually claims that plaintiff was fired solely for improperly possessing company property. Mr. Silverman will testify that he was told by defendant that he was fired for theft. It is improper to include this statement in the instruction as a factual statement when it is disputed. For all of the foregoing reasons, the Court should not modify the 9th Circuit Model Jury Instructions and instruct the jury in accordance with the attached instruction combining Model Instructions 12.1A, 12.1B and 12.1C. Respectfully submitted this 28th day of November, 2005. DAVID C. LARKIN, P.C. By: s/ David C. Larkin David C. Larkin Attorney for Plaintiffs

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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PLAINTIFF'S PROPOSED JURY INSTRUCTION NINTH CIRCUIT MODEL JURY INSTRUCTIONS 12.1A, 12.1B AND 12.1C (as modified for religious discrimination) 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 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: 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 plaintiff has failed to prove either of these elements, your verdict should be for the defendant. If 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.

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