Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 vs. 23 24 25 26 27 28 Defendant Albertson's, Inc., submits the following supplemental jury instruction in Albertson's, Inc., a corporation, and Debra A. Collette, Defendants. Plaintiffs, DEFENDANT'S PROPOSED SUPPLEMENTAL JURY INSTRUCTION Lewis Silverman, Cynthia Silverman, CIV-03-2268 PHX/NVW UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Thomas L. Stahl, SBN 6609 (New Mexico) (pro hac vice) Aaron C. Viets, SBN 12164 (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 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

Case 2:03-cv-02268-NVW Document 110 Filed 11/28/2005 PDF created with pdfFactory trial version www.pdffactory.com

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response to the Court's directive at the October 14, 2005 pretrial conference. Plaintiff opposes this instruction. This instruction is intended to replace Stipulated Instructions 12.1A, 12.1B, and 12.1C, and Defendant's Non-Model Instruction No. 3:

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, namely, a good faith belief that the plaintiff improperly possessed company property. 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. 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. 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. If, on the other hand, you conclude that the defendant discharged the plaintiff -2-

Case 2:03-cv-02268-NVW Document 110 Filed 11/28/2005 PDF created with pdfFactory trial version www.pdffactory.com

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solely because it believed in good faith that the plaintiff improperly possessed company property, your verdict should be for the defendant. 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.

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).

Dated this 28th day of November, 2005. RODEY DICKASON SLOAN AKIN & ROBB, P.A.

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

By

CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Defendant's Proposed Supplemental Jury Instruction was sent electronically to Plaintiff's counsel of record, David C. Larkin, on this 28th day of November, 2005.

By:

/s/ Aaron C. Viets Aaron C. Viets

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