Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 2 3 4

Georgia A. Staton, 004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1752; (602) 263-7387 [email protected] Attorneys for Defendants

5 6 7 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 12 13 v. 14 15 16 17 Defendants. 18 19 The parties propose the following Jury Instructions to be read to the jury in this 20 case. By proposing these instructions, neither party waives the right to argue that the 21 evidence does not support any specific instruction. 22 I. 23 Because there are multiple claims in this case arising out of multiple events, the 24 jury's task will be unusually complicated. The parties are therefore proposing that the 25 case be decided on special interrogatories. This will ensure both that the jury sufficiently 26 understands what it is being asked to decide, and that legal issues pertaining on one Introduction -- Structure of Instructions and Verdict Forms. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Robert Gant and Betty Gant, Husband and Wife, Plaintiffs, STIPULATED PROPOSED JURY INSTRUCTIONS AND REQUEST FOR SPECIAL INTERROGATORIES NO. CV 03-2077-PHX-EHC Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs

Case 2:03-cv-02077-EHC

Document 99

Filed 06/27/2006

Page 1 of 33

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

particular claim are adequately preserved. The jury should be instructed that Plaintiffs are asserting six specific claims, and that it must decide each of those claims separately. It will then be given special interrogatories as to each claim. Once the jury has answered the special interrogatories, it will be apparent whether Plaintiffs have prevailed on one or more claims that entitle it to damages. The parties therefore propose that the jury be directed to answer the special interrogatories on liability, and only if its answers impose liability will the jury then be instructed on damages and asked to determine the amount of damages. II. Standard Instructions. The parties propose that the jury be given the following standard Ninth Circuit jury instructions. A. Instructions at End of Case. 9TH CIR. CIV. JURY INSTR. (2001): 3.1 3.2 3.3 3.5 3.6 3.11 B. Directions of Jury to Find Facts and Follow Law What is Evidence What is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses Two or more Parties- Different Legal Rights

Concluding Instructions - Jury Deliberations. 9TH CIR. CIV. JURY INSTR. (2001): 4.1 4.2 4.3 4.4 Duty to Deliberate Use of Notes Communication with Court Return of Verdict

2 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 2 of 33

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 By III.

C.

Burden on Proof. 9TH CIR. CIV. JURY INSTR. (2001): 5.1 Burden of Proof - Preponderance of the Evidence

Additional Instructions of Law and Forms of Verdict. The parties further request that this Court give the attached jury instructions, special

interrogatories and forms of verdict. RESPECTFULLY SUBMITTED this 27 TH day of June, 2006 JONES, SKELTON & HOCHULI LAW OFFICE OF ROBERT GREGORY, P.C. M.

s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 602-263-1752 Attorneys for Defendants

By: s/Robert M. Gregory w/permission Robert M. Gregory, Esq. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs

ORIGINAL of the foregoing e-filed this 27 th day of June, 2006 with the Clerk of the U.S. District Court District of Arizona COPIES mailed this same date to: Honorable Earl H. Carroll United States District Court Sandra Day O'Connor U. S. Courthouse, Suite 521 401 West Washington Street, SPC 48 Phoenix, Arizona 85003-2151 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs s/Gwen Coon

3 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 3 of 33

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

PROPOSED JURY INSTRUCTION NO. 1 PLAINTIFF'S CLAIMS Plaintiff asserts the following claims against Defendants: 1. 2. 3. 4. 5. Violation of federal civil rights; Employment discrimination -- disparate treatment on account of race; Employment discrimination -- disparate treatment on account of age; Employment discrimination -- hostile work environment; and Negligent supervision.

You will be instructed on the law regarding each claim, and will be asked to answer specific questions to determine whether any Defendant is liable for any claim.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

4 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 4 of 33

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

PROPOSED JURY INSTRUCTION NO. 2 VIOLATIONS OF FEDERAL CIVIL RIGHTS -- § 1983 ELEMENTS AND BURDEN OF PROOF Plaintiff claims that Defendant Pinal County violated his rights to equal protection under the U.S. Constitution by discriminating against him on the basis of his race in not promoting him in June 2001 or terminating him February 2002. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. 3. the acts or omissions of the defendant were intentional; the defendant acted under color of law; and the acts or omissions of the defendant were the cause of the deprivation of the plaintiff's rights protected by the Constitution or laws of the United States.

If you find that plaintiff has proved each of the elements, your verdict on this claim should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for Defendant Pinal County.

Source: 9th CIR. CIV. JURY INSTR. (2001), 11.1, as modified.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 5

Case 2:03-cv-02077-EHC

Document 99

Filed 06/27/2006

Page 5 of 33

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

PROPOSED JURY INSTRUCTION NO. 3 UNDER COLOR OF LAW DEFINED Acts are done under color of law when a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation.

Source: 9th CIR. CIV. JURY INSTR. (2001), 11.2.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

6 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 6 of 33

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

PROPOSED JURY INSTRUCTION NO. 4 EQUAL PROTECTION -- RACE DISCRIMINATION To establish that Defendant Pinal County violated Plaintiff's right to equal protection, Plaintiff must prove, by a preponderance of the evidence: 1. That because of Plaintiff's race, Defendant Pinal County intentionally treated him differently from other similarly situated people. That an official policy was the moving force behind the Constitutional deprivation.

"Official policy" means: (1) a rule or regulation promulgated, adopted, or ratified by the governmental entity's legislative body; a policy statement or decision that is officially made by the county's policy-making official; a custom that is a permanent, widespread, well-settled practice that constitutes a standard operating procedure of the county; or an act or omission ratified by the county's policy-making official.

Source: Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555 (1977) (only intentional discrimination violates equal protection). Source: 9th CIR. CIV. JURY INSTR. (2001), 11.12, as modified; Monell v. Dep't of Social Srvcs., 769 U.S. 658, 694 (1978); Oviatt By and Through Waugh v. Pearce, 954 F.3d 1470, 1474 (9th Cir. 1992).

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 7

Case 2:03-cv-02077-EHC

Document 99

Filed 06/27/2006

Page 7 of 33

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

FORM OF VERDICT NO. 1 VIOLATION OF CONSTITUTIONAL RIGHTS On Plaintiff's claim against Defendant Pinal County for violation of constitutional rights, we the jury, duly empaneled, find in favor of (check one): ___ Plaintiff ___ Defendant

8 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 8 of 33

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

PROPOSED INSTRUCTION NO.

5

DISPARATE TREATMENT ­ WHERE EVIDENCE SUPPORTS "SOLE REASON" OR "MOTIVATING FACTOR" The Plaintiff has brought a claim of employment discrimination against the Defendant. The Plaintiff claims that his race was either the sole reason or a motivating factor for the Defendant's decision to not promote the Plaintiff in June 2001 or to terminate him in February 2002. The Defendant denies that Plaintiff's race was either the sole reason or a motivating factor for the Defendant's decision to not promote the Plaintiff in June 2001 or to terminate him in February 2002 and further claims the decision to not promote the Plaintiff was based upon lawful reasons.

Source: 9 th CIR. CIV. JURY INSTR. 12.1(A).

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

9 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 9 of 33

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

PROPOSED JURY INSTRUCTION NO.

6

DISPARATE TREATMENT-- "SOLE REASON"--ELEMENTS AND BURDEN OF PROOF As to the plaintiff's claim that his race was the sole reason for the defendant's decision to not promote him in June 2001 or to terminate him in February 2002, the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. the plaintiff was not promoted by the defendant; and the plaintiff was not promoted solely because of the plaintiff's race.

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.

Source: 9 th CIR. CIV. JURY INSTR. 12.1(B) (Approved 8/2004)

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

10 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 10 of 33

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

PROPOSED JURY INSTRUCTION NO. 7 DISPARATE TREATM ENT ­ "MOTIVATING FACTOR" ­ ELEMENTS AND BURDEN OF PROOF As to the Plaintiff's claim that his race was a motivating factor for the Defendant's decision to not promote him in June 2001 or to terminate him in February 2002, the Plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. 2. The Plaintiff was not promoted by the Defendant; and, The Plaintiff's race was a motivating factor in the Defendant's decision to not promote the Plaintiff.

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.

Source: 9 th CIR. CIV. JURY. INSTR. (2004), 12.1C. Approved 12/2004.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 11

Case 2:03-cv-02077-EHC

Document 99

Filed 06/27/2006

Page 11 of 33

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

FORM OF VERDICT NO. 2 EMPLOYMENT DISCRIMINATION -- DISPARATE TREATMENT ON ACCOUNT OF RACE Please answer the following questions: 1. Has the Plaintiff proved by a preponderance of the evidence that the Plaintiff's race was the sole reason or a motivating factor for the Defendant's decision not to promote him in June 2001? Yes No

2. Has the plaintiff proved by a preponderance of the evidence that the plaintiff's race was the sole reason for the defendant's decision to terminate him in February 2002? Yes No

Special Interrogatories
1. Has the plaintiff proved by a preponderance of the evidence, that the plaintiff's race was the sole reason for the defendant's decision not to promote him in June 2001 or to terminate him February 2002? ________ Yes ________ No

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 race was a motivating factor for the defendant's decision not to promote him in June 2001 or to terminate him in February 2002? ________ Yes ________ No

If the answer to Question No. 2 is "no," do not answer any further questions on this claim that he was discriminated against on the basis of race. If the answer to Question No. 2 is "yes", proceed to Question No. 3.

12 Case 2:03-cv-02077-EHC Document 99 Filed 06/27/2006 Page 12 of 33

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

3. Has the defendant proved by a preponderance of the evidence that the defendant's decision not to promote plaintiff in June 2001 or to terminate him in February 2002 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 not to promote Plaintiff in June 2001 or to terminate him in February 2002 even if the plaintiff's race had played no role in the defendant's decision. ________ Yes ________ No

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. If your answer to Question No. 1 is "yes" or your answers to Nos. 3 or 4 is "no", proceed to Page 31 or 32 depending on which verdict form the Court determines is appropriate.

Source: 9 TH CIR. CIV. JURY INSTR. 12.1(A) Approved 8/2004.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 13

Case 2:03-cv-02077-EHC

Document 99

Filed 06/27/2006

Page 13 of 33

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

PROPOSED JURY INSTRUCTION NO. 8 AGE DISCRIMINATION -- DISPARATE TREATMENT Plaintiff alleges that Defendants discriminated against him based on age in violation of federal law by not promoting him in June 2001. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. the plaintiff was not promoted; the plaintiff was 40 years of age or older at the time of the action; and the plaintiff's age was the motivating factor in Pinal County's decisions not to promote; in other words, Pinal County would not have made the same decisions but for the plaintiff's age, or the plaintiff's age was the determining factor in the defendant's decision not to promote plaintiff; in other words, the defendant would not have made the same decision but for the plaintiff's age.

If you find each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, plaintiff has failed to prove any of these elements, your verdict should be for the defendant." Source: 9th CIR. CIV. JURY INSTR. (2001), 14.2, revised 3/2002, as modified.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

Case 2:03-cv-02077-EHC

Document 99

14 Filed 06/27/2006

Page 14 of 33

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

PROPOSED JURY INSTRUCTION NO.

9

AGE DISCRIMINATION ­ DISPARATE IMPACT ­ DEFENSE ­ BUSINESS NECESSITY The defendant contends that its selection criterion was based on legitimate business reasons. The defendant has the burden of proving both of the following elements by a preponderance of the evidence: 1. 2. the selection criterion is job related for the position in question; and the selection criterion is consistent with business necessity.

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.

Source: 9 th CIR. CIV. JURY INSTR. (2004) 14.7.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

Case 2:03-cv-02077-EHC

Document 99

15 Filed 06/27/2006

Page 15 of 33

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 2. Yes 1.

FORM OF VERDICT NO. 3 AGE DISCRIMINATION ­ DISPARATE TREATMENT Has the plaintiff proved by a preponderance of the evidence that the plaintiff's age was the motivating factor in Pinal County's decision not to promote plaintiff in June 2001?

No

Or

Has the plaintiff proved by a preponderance of the evidence that the plaintiff's age was the determining factor in Pinal County's decision not to promote plaintiff in June 2001? Yes No

Case 2:03-cv-02077-EHC

Document 99

16 Filed 06/27/2006

Page 16 of 33

PROPOSED JURY INSTRUCTION NO. 10 1 HOSTILE WORK ENVIRONMENT 2 3 4 1. 5 6 7 8 9 10 5. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED Source: 9 th CIR. CIV. JURY INSTR. (2004), 12.2A, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Fuller v. City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir.1995). a reasonable man in the plaintiff's circumstances would consider the working environment to be abusive or hostile. 4. 2. 3. the plaintiff was subjected to slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature; the conduct was unwelcome; the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create a racially abusive or hostile work environment the plaintiff perceived the working environment to be abusive or hostile; and Plaintiff alleges that he was subjected to a racially hostile work environment. In order to establish a racially hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence:

Whether the environment constituted a racially hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance.

Case 2:03-cv-02077-EHC

Document 99

17 Filed 06/27/2006

Page 17 of 33

PROPOSED JURY INSTRUCTION NO. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 2. 15 16 17 18 19 20 21 22 23 24 25 26 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

11

HOSTILE ENVIRONMENT CAUSED BY SUPERVISOR An employer may be liable when a supervisor with immediate or successively higher authority over the employee creates a racially hostile work environment for that employee. The Plaintiff claims that he was subjected to racially hostile work environment by Roger Vanderpool and/or Hal Campbell and that they were persons who had higher authority over Plaintiff. Pinal County denies the Plaintiff's claim. The Plaintiff must prove his claim by a preponderance of the evidence. In addition to denying the Plaintiff's claim, Pinal County has asserted an affirmative defense. Before you consider this affirmative defense, you must first decide whether Plaintiff has proved by a preponderance of the evidence that he suffered a tangible employment action as a result of harassment by the supervisor. If Plaintiff has proved that he suffered a tangible employment action as a result of the harassment by the supervisor, you must not consider the affirmative defense. If Plaintiff has not proved that he suffered a tangible employment action, then you must decide whether the defendant has proved by a preponderance of the evidence each of the following elements: 1. Pinal County exercised reasonable care to prevent and promptly correct the racially harassing behavior, and the Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or unreasonably failed to otherwise avoid harm.

If the Defendant proves these elements, the Plaintiff is not entitled to prevail on this claim. Source: 9 th CIR. CIV. JURY INSTR. (8/2004) 12.2B. This instruction is based upon Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 764-65 (1998) Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998) and Swinton v. Potomac Corporation, 270 F.3d 794, 802 (9 th Cir. 2001), cert. denied, 535 U.S. 1018 (2002). This instruction addresses harassment by a supervisor with immediate or successively higher authority over the plaintiff. Use the first two paragraphs if no Ellerth/Faragher affirmative defense is applicable. Use the entire instruction if an Ellerth/Faragher defense is to be considered by the jury.

Case 2:03-cv-02077-EHC

Document 99

18 Filed 06/27/2006

Page 18 of 33

PROPOSED JURY INSTRUCTION NO. 12 1 TANGIBLE EMPLOYMENT ACTION DEFINED 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 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 19 Filed 06/27/2006 Source: 9 th CIR. CIV. JURY INSTR. (2004) 12.4B. Approved 8/2004. Tangible employment actions are the means by which a supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment action requires an official act of the enterprise, a company act. A tangible employment action consists of a significant change in employment status such as failing to promote or a significant change in responsibilities.

Case 2:03-cv-02077-EHC

Document 99

Page 19 of 33

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

PROPOSED JURY INSTRUCTION NO. 13 "ADVERSE EMPLOYMENT ACTION" IN DISPARATE TREATMENT CASES An action is an adverse employment action if it materially affects the terms, conditions, or privileges of employment.

Source: 9 th CIR. CIV. JURY INSTR. (2004) 12.4A2. Approved 8/2004.

_________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 20 Filed 06/27/2006

Case 2:03-cv-02077-EHC

Document 99

Page 20 of 33

PROPOSED JURY INSTRUCTION NO. 14 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 _________GIVEN REFUSED _________MODIFIED _________GIVEN AS MODIFIED 21 Filed 06/27/2006 Source: 9 th CIR. CIV. JURY INSTR. (2004)12.2C. Approved 8/2004. If you find that the plaintiff has proved both of the elements on which the plaintiff has the burden of proof, 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. The defendant's remedial action must be reasonable and adequate. Whether the defendant's remedial action is reasonable and adequate depends upon the remedy's effectiveness in stopping the individual harasser from continuing to engage in such conduct and in discouraging other potential harassers from engaging in similar unlawful conduct. An effective remedy should be proportionate to the seriousness of the offense. 1. the plaintiff was subjected to a racially hostile work environment by a nonimmediate supervisor; and 2. the defendant or a member of defendant's management knew or should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment. A person is a member of management if the person has substantial authority and discretion to make decisions concerning the terms of the harasser's employment or the plaintiff's employment, such as authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the plaintiff's employment. A person who lacks such authority is nevertheless part of management if he or she has an official or strong duty in fact to communicate to management complaints about work conditions. You should consider all the circumstances in this case in determining whether a person has such a duty. The plaintiff seeks damages from the defendant for a hostile work environment caused by harassment. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: HOSTILE WORK ENVIRONMENT CAUSED BY NON-IMMEDIATE SUPERVISOR OR BY CO-WORKER--CLAIM BASED ON NEGLIGENCE

Case 2:03-cv-02077-EHC

Document 99

Page 21 of 33

FORM OF VERDICT NO. 4 1 HOSTILE WORK ENVIRONMENT 2 3 4 5 6 7 8 9 Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant Pinal County On Plaintiff's claim for a hostile work environment cause by non-immediate supervisor or by a co-worker, we the jury, duly empaneled, find in favor of (check one): On Plaintiff's claim for a hostile work environment caused by a supervisor, we the jury, duly empaneled, find in favor of (check one): ___ Plaintiff ___ Defendant Pinal County

Case 2:03-cv-02077-EHC

Document 99

22 Filed 06/27/2006

Page 22 of 33

PROPOSED JURY INSTRUCTION NO. 1 NEGLIGENT SUPERVISION 2 3 4 1. Defendant Roger Vanderpool's conduct was tortious; 5 6 7 8 4. the failure to supervise caused Plaintiff injury. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED

15

Plaintiff claims Pinal County Board of Supervisors negligently supervised Defendant Roger Vanderpool. On this claim, Plaintiff must prove by a preponderance of the evidence that

2. the Pinal County Board of Supervisors knew or should have known that Defendant Roger Vanderpool would act in such a way; 3. the Pinal County Board of Supervisors, armed with that actual or constructive knowledge, failed to adequately supervise Defendant Roger Vanderpool, and

If you find that Plaintiff has proved each of these elements, your verdict should be for the Plaintiff. If, on the other hand, the Plaintiff has failed to prove any of these elements, your verdict should be for the Defendant Pinal County.

Source: Humana Hosp. Desert Valley v. Superior Court, 154 Ariz. 396, 742 P.2d 1382 (App. 1987); Kassman v. Busfield Enterprises, Inc., 131 Ariz. 163, 639 P.2d 353 (App. 1981); Restatement (Second) of Agency § 213; RAJI (Civil) 3 rd Fault 8.

Case 2:03-cv-02077-EHC

Document 99

23 Filed 06/27/2006

Page 23 of 33

1 2 3 4 ___ Plaintiff 5

FORM OF VERDICT NO. 5 NEGLIGENT SUPERVISION On Plaintiff's claim for a negligent supervision, we the jury, duly empaneled, find in favor of (check one):

___ Defendant Pinal County 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Case 2:03-cv-02077-EHC

Document 99

24 Filed 06/27/2006

Page 24 of 33

PROPOSED JURY INSTRUCTION NO. 16 1 DAMAGES ­ PROOF 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 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED Source: 9th CIR. CIV. JURY INSTR. (2001), 7.1. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. If you find for the plaintiff on any of his claims, 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 defendants. 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. 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.

Case 2:03-cv-02077-EHC

Document 99

25 Filed 06/27/2006

Page 25 of 33

1 2 3 4 and 5

PROPOSED JURY INSTRUCTION NO. 17 MEASURES OF TYPES OF DAMAGES In determining the measure of damages, you should consider: The reasonable value of wages plaintiff lost as a result of Defendants' conduct; The mental, physical, and emotional pain and suffering experienced.

6 7 8 9 10 11 12 13 14 Source: 9th CIR. CIV. JURY INSTR. (2001), 7.2. 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED In awarding the plaintiff wages, you must deduct from the award any salary, wages, and any other benefits the plaintiff received from Pinal County from the date Pinal County denied his promotion to the date of trial.

Case 2:03-cv-02077-EHC

Document 99

26 Filed 06/27/2006

Page 26 of 33

PROPOSED JURY INSTRUCTION NO. 1 DAMAGES--MITIGATION 2 3 4

18

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:

5 1. that the plaintiff failed to use reasonable efforts to mitigate damages; and 6 2. the amount by which damages would have been mitigated. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED Source: 9 th CIR. CIV. JURY INSTR. (2004) 7.3.

Case 2:03-cv-02077-EHC

Document 99

27 Filed 06/27/2006

Page 27 of 33

PROPOSED JURY INSTRUCTION NO. 19 1 PUNITIVE DAMAGES 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 GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED 28 Filed 06/27/2006 Source: 9 th CIR. CIV. JURY INSTR. (2005) 7.5 as modified. Approved 9/2005. Punitive damages may not be awarded against Pinal County. Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages. If you find for the plaintiff and against Roger Vanderpool, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate the plaintiff, but 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, oppressive 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 and rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. An act or omission is oppressive if the person who performs or fails to perform it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power. 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.

Case 2:03-cv-02077-EHC

Document 99

Page 28 of 33

PROPOSED JURY INSTRUCTION NO. 20 1 NOMINAL DAMAG ES 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 GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED Source: 9 th CIR. CIV. JURY INSTR. (2001), 7.6; see, e.g., Chew v. Gates, 27 F.2d 1432, 1437 (9 th Cir. 1994) (Section 1983 action), cert. denied, 513 U.S. 1148 (1995); Parton v. GTE North, Inc., 971 F.2d 150,154 (8 th Cir. 1992) (Title VII action). The law that applies to this case authorizes an award of nominal damages. If you find for the plaintiff on his race or age discrimination claims against Pinal County or claims against Pinal County for a violation of his Constitutional rights, but you find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

Case 2:03-cv-02077-EHC

Document 99

29 Filed 06/27/2006

Page 29 of 33

PROPOSED JURY INSTRUCTION NO. 21 1 WILLFUL AGE DISCRIMINATION--DAMAGES 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 _________GIVEN _________REFUSED _________MODIFIED _________GIVEN AS MODIFIED Source: 9 th CIR. CIV. JURY INSTR. (2004) 14.9. As modified. If you find the plaintiff was discriminated against on the basis of age and is entitled to recover compensatory damages, you must determine if the defendant's conduct was wilful. The plaintiff has the burden of proving wilfulness by a preponderance of the evidence. A defendant's conduct is willful if the defendant knew or showed reckless disregard for whether the failure to promote plaintiff in June 2001 was prohibited by the law. If you find that the defendant willfully violated the law, the plaintiff is entitled to double damages. This means that the court would award the damages you have calculated plus an equal amount as liquidated damages.

Case 2:03-cv-02077-EHC

Document 99

30 Filed 06/27/2006

Page 30 of 33

FORM OF VERDICT NO. 6 1 2 3 4 5 Or 6 7 8 9 10 Or 11 4. Plaintiff's claim of hostile work environment (see Pg. 22 Instruction) 12 Or 13 5. Plaintiff's claim of negligent supervision (see Pg. 24 Instruction) 14 15 16 1. Constitutional rights 17 2. Race discrimination 18 3. Age discrimination 19 4. Hostile work environment 20 5. Negligent supervision 21 22 23 24 $ 25 26 Presiding Juror Case 2:03-cv-02077-EHC Document 99 Date 31 Filed 06/27/2006 Page 31 of 33 Complete the following verdict form: We the jury, duly empaneled, find Plaintiff's damages to be: $ $ $ $ $ We the jury, duly empaneled, find Plaintiff's damages to be: 2. Plaintiff's claim of discrimination on the basis of race (see Pg. 13 Instruction) Or 3. Plaintiff's claim of discrimination on the basis of age (see Pg. 16 Instruction) Plaintiff believes that the verdict form should read as follows: If you have found for Plaintiff on: 1. Plaintiff's claims for violation of his constitutional rights (see Pg. 8 Instruction)

FORM OF VERDICT NO. 6 1 2 3 4 5 Or 6 7 8 9 10 Or 11 4. Plaintiff's claim of hostile work environment (see Pg. 22 Instruction) 12 Or 13 5. Plaintiff's claim of negligent supervision (see Pg. 24 Instruction) 14 15 Complete the following verdict form: 16 17 18 19 20 Presiding Juror 21 22 23 24 25 26 Date $ We the jury, duly empaneled, find in favor of Plaintiffs in the amount of . 2. Plaintiff's claim of discrimination on the basis of race (see Pg. 13 Instruction) Or 3. Plaintiff's claim of discrimination on the basis of age (see Pg. 16 Instruction) Defendant believes that the verdict form should read as follows: If you have found for Defendant on: 1. Plaintiff's claims for violation of his constitutional rights (see Pg. 8 Instruction)

Case 2:03-cv-02077-EHC

Document 99

32 Filed 06/27/2006

Page 32 of 33

FORM OF VERDICT NO. 7 1 If you have found for Defendants on all claims complete the following verdict 2 3 We the jury, duly empaneled, find in favor of Defendants. 4 5 6 Presiding Juror 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date form:

Case 2:03-cv-02077-EHC

1644281_1

Document 99

33 Filed 06/27/2006

Page 33 of 33