Free Other Notice - 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 Jeffrey L. Lowry, Esq. Aaron C. Viets, Esq. Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 Albuquerque, New Mexico 87102 Telephone (505) 765-5900 Fax (505) 768-7395 Attorneys Pro Hac Vice for Defendant Albertsons UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants. Defendant proposes the following special verdict form: We the jury find as follows: 1. Has the plaintiff proved by a preponderance of the evidence, that the plaintiff's PARTIES' PROPOSED VERDICT FORMS CIV-03-2268-PHX-NVW

religion was the sole reason for the defendant's decision to discharge him? ________ Yes ________ No

Case 2:03-cv-02268-NVW

Document 104

Filed 09/23/2005

Page 1 of 8

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If the answer to Question No. 1 is "yes," proceed to Question No. 5. If the answer to Question No. 1 is "no," proceed to Question No. 2.

2.

Has the plaintiff proved by a preponderance of the evidence that the plaintiff's

religion was a motivating factor for the defendant's decision to discharge him? ________ Yes ________ No

If the answer to Question No. 2 is "no," do not answer any further questions. If the answer to Question No. 2 is "yes," proceed to Question No. 3.

3.

Has the defendant proved by a preponderance of the evidence that the

defendant's decision to discharge plaintiff was also motivated by a lawful reason? ________ Yes ________ No

If your answer to Question No. 3 is "no," proceed to Question No. 5. If your answer to Question No. 3 is "yes," proceed to Question No. 4.

4.

Has the defendant proved, by a preponderance of the evidence, that the

defendant would have made the same decision to discharge plaintiff even if the plaintiff's religion had played no role in the defendant's decision to discharge him? ________ Yes ________ No

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If your answer to Question No. 4 is "yes," do not answer any further questions on damages related to the plaintiff's claim of disparate treatment.

If your answer to Question No. 4 is "no", proceed to Question 5.

5. [The judge should draft further special verdict questions to cover damages, including punitive damages if appropriate.]

The jury foreperson must sign and date below: ____________________________________ Foreperson

Dated: _________________________________

PLAINTIFF OBJECTS to defendant's proposed special verdict form. Plaintiff has provided simple verdict forms for this one claim discrimination trial. However, if the Court considers a special verdict form, the defendant's proposed special verdict is not appropriate in the Ninth Circuit because it does not follow the Ninth Circuit Special Verdict model for disparate treatment included in Ninth Circuit Model Instruction No. 12.1A which provides

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as follows (without the motivating factor affirmative defense that Albertsons has not asserted):

1.

Has the plaintiff proved by a preponderance of the evidence, that the plaintiff's

religion was the sole reason for the defendant's decision to terminate plaintiff's employment? ________ Yes ________ No

If the answer to Question No. 1 is "yes," proceed to Question No. 3. If the answer to Question No. 1 is "no," proceed to Question No. 2.

2.

Has the plaintiff proved by a preponderance of the evidence that the plaintiff's

religion was a motivating factor for the defendant's decision to terminate plaintiff's employment? ________ Yes ________ No

If the answer to Question No. 2 is "no," do not answer any further questions. If the answer to Question No. 2 is "yes," proceed to Question No. 3

3.

[The judge should draft further special verdict questions to cover damages,

including punitive damages if appropriate.]

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Plaintiff proposes:

3.

We find that defendant Albertsons' should pay plaintiff Lewis Silverman that

following damages:

Economic

$

Mental and Emotional Pain and Suffering

$

Punitive

$

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Plaintiff proposes the following verdict forms:

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 VERDICT

We, the jury, duly empaneled and sworn in the above-entitled action, on plaintiff Lewis Silverman's claim for religious discrimination in the termination of his employment by defendant Albertsons, Inc., upon our oaths do find in favor of plaintiff Lewis Silverman and against defendant Albertsons, Inc. and find the damages to be as follows: Economic Mental and Emotional Pain and Suffering Punitive Dated: [Jurors Signature lines] -6Case 2:03-cv-02268-NVW Document 104 Filed 09/23/2005 Page 6 of 8

$ $ $ , 2005

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Defendant objects in particular to submitting the question of economic damages (lost wages) to the jury because lost pay is an equitable remedy, as explained in Defendant's Non-Model Instruction No. 1. Defendant also objects to submitting a request for punitive damages to the jury because (1) there is insufficient evidence for a jury to conclude that Defendant acted with malice or reckless indifference to a possible violation of Title VII and (2) Defendant acted in good faith. See Kolstad v. American Dental Ass'n, 524 U.S. 526, 535 (1999); Costa v. Desert Palace, Inc., 299 F.3d 838, 864 (9th Cir. 2002).

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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 VERDICT

We, the jury, duly empaneled and sworn in the above-entitled action, on plaintiff Lewis Silverman's claim for religious discrimination in the termination of his employment by defendant Albertsons, Inc., upon our oaths do find in favor of defendant Albertsons, Inc. Dated: [Jurors Signature lines] , 2005