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 23 24 25 26 27 28
Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 1 of 50

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants.

CIV-03-2268 PHX/NVW

JOINT PROPOSED JURY INSTRUCTIONS

The parties submit the following proposed jury instructions. I. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS USED BY ALL ARIZONA JUDGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

-2Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 2 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.2 CLAIMS AND DEFENSES To help you follow the evidence, I will give you a brief summary of the positions of the parties: The plaintiff claims that the defendant ended his employment because he is Jewish. The defendant denies the plaintiff's claim and contends that it fired the plaintiff for a lawful, non-discriminatory reason.

-3Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 3 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

-4Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 4 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; and (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

-5Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 5 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

-6Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 6 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.7 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

-7Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 7 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.8 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

-8Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 8 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the bailiff, courtroom deputy, or law clerk to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

-9Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 9 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

- 10 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 10 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the courtroom or the jury room. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

- 11 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 11 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict.

- 12 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 12 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 1.13 BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

- 13 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 13 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL 1.15

QUESTIONS TO WITNESSES BY JURORS

While it is not customary for a juror to ask a question of a witness, if you wish to do so, put the question in writing and hand it to the [marshal] [bailiff] [clerk] [law clerk]. The court and counsel will review your question. Do not be concerned if the question is not asked. Do not discuss your question with anyone, including the [marshal] [bailiff] [clerk] [law clerk]. Remember that you are not to discuss the case with other jurors until it is submitted for your decision.

- 14 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 14 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 2.1 CAUTIONARY INSTRUCTION - FIRST RECESS We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the bailiff, courtroom deputy, or law clerk to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

- 15 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 15 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 2.2 BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

- 16 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 16 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DF 2.4 STIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

- 17 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 17 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE
[When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

- 18 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 18 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL

2.10 LIMITED PURPOSE EVIDENCE

The testimony [you are about to hear] [you have just heard] may be considered only for the limited purpose of [describe purpose] and for no other purpose.

- 19 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 19 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return ­ that is a matter entirely up to you.

- 20 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 20 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 3.2 WHAT IS EVIDENCE The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated.

- 21 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 21 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, will say in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

- 22 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 22 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 3.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

- 23 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 23 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 3.6 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

- 24 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 24 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL

3.9 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

- 25 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 25 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL 3.10 CHARTS AND SUMMARIES IN EVIDENCE Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

- 26 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 26 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 4.1 DUTY TO DELIBERATE When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

- 27 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 27 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

- 28 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 28 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 4.3 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the bailiff, the courtroom deputy, or the law clerk, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone­including me­how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

- 29 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 29 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 4.4 RETURN OF VERDICT A verdict form has been prepared for you. Please follow the instructions in it. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

- 30 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 30 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 5.1 BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

- 31 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 31 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 6.1 CORPORATIONS AND PARTNERSHIPS - FAIR TREATMENT All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as any party.

- 32 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 32 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 6.2 LIABILITY OF CORPORATIONS - SCOPE OF AUTHORITY NOT IN ISSUE Under the law, a corporation is considered to be a person. It can only act through its employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its employees, agents, directors, and officers performed within the scope of authority.

- 33 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 33 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL 7.1 AND 7.2 AS MODIFIED IN SECTION 3. BELOW

- 34 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 34 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DF 7.1 AND 7.2 AS MODIFIED IN SECTION 4. BELOW

- 35 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 35 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DF 7.3 DAMAGES - MITIGATION The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence: 1. 2. that the plaintiff failed to use reasonable efforts to mitigate damages; and the amount by which damages would have been mitigated.

Plaintiff objects to this instruction without an instruction on lost wages to the jury, as an advisory jury or otherwise.

- 36 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 36 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PL 7.5 PUNITIVE DAMAGES If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety, rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.

Defendant 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).

- 37 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 37 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ST 12.1A DISPARATE TREATMENT--WHERE EVIDENCE SUPPORTS A "MOTIVATING FACTOR" 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.

- 38 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 38 of 50

1 2 3 4 5 6

ST 12.1B DISPARATE TREATMENT--"SOLE REASON"--ELEMENTS
AND BURDEN OF PROOF 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.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 39 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 39 of 50 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.

1 2 3 4 5 6

ST 12.1C DISPARATE TREATMENT--"MOTIVATING FACTOR"-- ELEMENTS
AND BURDEN OF PROOF 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.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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.

- 40 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 40 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2. NON-MODEL INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED None.

- 41 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 41 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3. NON-MODEL INSTRUCTIONS REQUESTED BY PLAINTIFF

- 42 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 42 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PLAINTIFF'S NON-MODEL REQUESTED JURY INSTRUCTION NO. 1 It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: In determining the measure of damages, you should consider: The nature and extent of the injuries; The mental and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; The reasonable value of wages and employment to the present time; The plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture.

Source: Ninth Circuit Model Instructions 7.1 and 7.2 Defendant objects to Plaintiff's Non-Model Requested Jury Instruction No. 1 because it calls upon the jury to determine lost wages, which is equitable relief. The Court, not the jury, should decide questions of equity. See Def's Proposed Non-Model Instruction 1 and authorities cited therein. Defendant's alternative instruction is Defendant's Proposed Non-Model Instruction No. 1.

- 43 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 43 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PLAINTIFF'S NON-MODEL REQUESTED JURY INSTRUCTION NO. 2 MITIGATION Plaintiff has a duty to use reasonable diligence in finding other suitable employment. Defendant has the burden of proving with a preponderance of the evidence that plaintiff failed to mitigate his damages and must prove the following: 1. during the time in question there were substantially equivalent jobs available, which the plaintiff could have obtained, and 2. Plaintiff failed to use reasonable diligence in seeking one. Source: Plaintiff requests this instruction to the jury as an advisory jury regarding his claim for back pay. Title VII "requires the claimant to use reasonable diligence in finding other suitable employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065 (1982). Defendant has the burden of proving that the plaintiff failed to mitigate his damages. Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir.1980), cert. denied,451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981). To satisfy this burden, defendant has to prove "that, based on undisputed facts in the record, during the time in question there were substantially equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one." EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir.1994) (emphasis in original). See also Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1449 (9th Cir.1990); Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978); Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995) (citing the all of the aforementioned cases). Defendant objects to Plaintiff's Non-Model Requested Jury Instruction No. 3 because it calls upon the jury to determine the amount of lost wages, which is equitable relief. The Court, not the jury, should decide questions of equity. See Def's Proposed Non-Model Instruction 1 and authorities cited therein. Defendant's alternative instruction is Defendant's Proposed Non-Model Instruction 1 and Ninth Circuit Model Jury Instruction 7.3 (a general mitigation instruction, appropriate because Plaintiff has an obligation to mitigate all damages, including damages at law which the jury must decide).

- 44 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 44 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANT

- 45 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 45 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 46 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 46 of 50

DEFENDANT'S NON-MODEL INSTRUCTION No. 1 It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff on his religion discrimination claim, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Your damage award must be based upon evidence and not upon speculation, guesswork, or conjecture. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: The emotional pain and suffering the plaintiff experienced and which with reasonable probability will be experienced in the future. You should not consider (if any) the plaintiff's lost wages, earnings, earning capacity, employment, or employment opportunities. The court will decide this aspect of the plaintiff's claim for damages. Source: Ninth Circuit Model Jury Instructions 7.1 and 7.2; Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir. 2000) ("Title VII of the Civil Rights Act of 1964 permits courts to grant equitable remedies to employees who have been impermissibly discriminated against by employers with fifteen or more employees. The relevant remedies include reinstatement and awards of back pay and front pay.") (internal citation omitted) (emphasis added); Dollar Systems, Inc. v. Avcar Leasing Systems, Inc., 890 F.2d 165, 170 (9th Cir. 1989) (no right to try equitable claims to jury); see also Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1152 (9th Cir. 1999) (jury in Title VII case instructed not to consider any evidence of wage and benefit loss when computing damages); Pl's Compl. at 7 (requesting "equitable relief . . . including . . . front pay [and] back pay"). Plaintiff objects to this because the Court should allow the jury to find lost wages damages on an advisory basis pursuant to Fed.R.Civ.P. 52(a), which finding the Court may adjust in its discretion, and has provided damages instructions hereinabove. Further, the Supreme Court has not ruled on this issue, and has thus far, declined to rule on whether a Title VII plaintiff is entitled to a jury trial on back pay claims. Lorillard v. Pons, 434 U.S. 575, 583-84, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEFENDANT'S NON-MODEL INSTRUCTION No. 2 Cynthia Silverman is no longer a plaintiff to this lawsuit. Debra A. Collette is no longer a defendant to this lawsuit.

Source: Doc. No. 83 (granting summary judgment to defendants on cause of action to which Mrs. Silverman and Ms. Collette were parties).

Plaintiff objects that the instruction is unnecessary because neither is Mrs. Silverman and Ms. Collette are included as defendants in any other jury instruction.

- 47 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 47 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEFENDANT'S NON-MODEL INSTRUCTION No. 3

The defendant is not liable to the plaintiff in this lawsuit if the defendant discharged the plaintiff solely because Debra A. Collette honestly believed the plaintiff was guilty of on-the-job misconduct.

Source: Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002); Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1115 (9th Cir. 2003).

Plaintiff objects to this instruction because the law of the liability of defendant in this religious discrimination case is set forth in the stipulated 9th Circuit Model Instructions 12.1A through C above. The Ninth Circuit has not included this instruction from its case law in its Model Instructions. Further, the instruction is confusing because, for example, Ms. Collette in not a defendant, and further, as an employee of defendant Albertsons, she may have had an honest belief that Silverman was guilty of on-the-job misconduct, and may have fired him under Albertsons' policy solely for that reason (because, inter alia, Jewishness is not grounds for firing under Albertsons' policy), but, if she was unlawfully discriminating against Mr. Silverman, may not have fired another employee who was not Jewish for that same misconduct.

- 48 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 48 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEFENDANT'S NON-MODEL INSTRUCTION No. 4 You may not return a verdict for the plaintiff just because you might disagree with the defendant's decision to discharge the plaintiff or believe it to be harsh or unreasonable.

Source: Eighth Circuit Model Jury Instruction 5.94; Salguero v. City Of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004) (employers have "substantial latitude" under the law to make "discipline related decisions"); Allocco v. City of Coral Gables, 221 F. Supp. 2d 1317, 1371-72 (S.D. Fla. 2002) (similar).

Plaintiff objects to this instruction because it misstates the law and misleads the jury where here the jury may infer pretext and discrimination from the harshness of the penalty itself. The jury may legitimately find liability if it finds that the decision was incorrect or harsh or unreasonable, and that it was because of her discriminatory animus that she chose to terminate his employment rather than hold a fair investigation and drop it or give him a write-up or temporary suspension. In Stalter v. Wal-Mart, 195 F.3d 285, 290-291 (7th Cir. 1999), the Seventh Circuit Court of Appeals found the severity of the punishment itself to provide a reasonable inference that the reason given was not sincere and raised the question whether the reason was pretext for a discriminatory reason, that the punishment "strikes us as swatting a fly with a sledge hammer." 195 F.3d at 291. In like manner, a reasonable jury in this case could infer that Mr. Silverman did not do anything worthy of discharge here and that the severity of the punishment of a three year employee raises an inference of a underlying discriminatory reason.

- 49 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 49 of 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated this 23rd day of September, 2005.

/s/ David C. Larkin Attorney for Plaintiff

/s/ Thomas L. Stahl Attorney for Defendant

- 50 Case 2:03-cv-02268-NVW Document 103 Filed 09/23/2005 Page 50 of 50