Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. NO. CV 03-2077-PHX-EHC DEFENDANTS' REQUESTED JURY INSTRUCTIONS

In a conference with the Court on October 27, 2006, the Court suggested that it would be of benefit for each side to tender those substantive jury instructions which they believe should be given to the jury in light of the evidence produced at trial. Defendants believe that the structure previously suggested by the parties ­ an initial instruction identifying the currently existing claims, followed by instructions and special interrogatory as to each claim is in keeping with the format recommended by the Ninth Circuit Civil Jury Instructions.1

Defendants provide these instructions to assist the Court. Defendants reserve the right to argue that any tendered instruction is not supported by the evidence.
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DATED this 29th day of October, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County Original e-filed and copies of the foregoing faxed/e-mailed this 29th day of October 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Fax: 602-322-7539 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 FAX: 480-452-1753 E-mail: [email protected] s/Letitia L. Wright

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PROPOSED JURY INSTRUCTION NO. 1 Plaintiff asserts the following claims against Defendants: 1. 2. 3. 4. 5. Employment discrimination ­ disparate treatment on account of age (Counts One and Five). Employment discrimination ­ disparate treatment on account of race (Counts Two and Five). Violation of federal civil rights -- equal protection (Count Three). Employment discrimination ­ hostile work environment (Count Four). Intentional infliction of emotional distress (Count Seven).2

You will be instructed on the law regarding each claim, and will be asked to answer specific questions to determine whether the Defendant is liable for any claim. Do not be concerned that one or more counts are not listed.

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This Court granted summary judgment on this claim. The Court has informally stated that it is considering re-instating the claim. Defendant offers an instruction on this cause of action not because it is supported by the evidence, but solely because of the Court's comments. Defendants separately file a Rule 50 Motion for Judgment as a matter of law on this claim.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2 Plaintiff's claim that he was discriminated against when he was terminated on February 8, 2002 is no longer an issue for you to decide. You may consider the February 8, 2002 termination as background evidence only to explain and put into context subsequent events.

Source: Dosier v. Miami Valley Broadcasting Corporation, 656 F.2d 1295, 1298 (1981) (discrimination claim included in settlement is barred by the doctrine of res judicata.)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3 Plaintiff's claim that he was discriminated against when he was assigned to Region One and not to Region Three when he was reinstated to the Pinal County Sheriff's Office in August 2002, and his claim that he was restricted to performing administrative duties, are no longer issues for you to decide. You may consider them as background information only to explain and put into context subsequent events.

Source: Court order dated February 15, 2005 (pgs. 7, 9, 11-12)

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PROPOSED JURY INSTRUCTION NO. 4 VIOLATIONS OF FEDERAL CIVIL RIGHTS Plaintiff claims in Count three that Defendant 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. 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.

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

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PROPOSED JURY INSTRUCTION NO. 5 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.

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PROPOSED JURY INSTRUCTION NO. 6 EQUAL PROTECTION -- RACE DISCRIMINATION To establish that Defendant violated Plaintiff's right to equal protection, Plaintiff must prove, by a preponderance of the evidence: 1. 2. That because of Plaintiff's race, Defendant 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) (2) (3) (4) 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); 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).

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

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PROPOSED INSTRUCTION NO.

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DISPARATE TREATMENT ­ WHERE EVIDENCE SUPPORTS "SOLE REASON" OR "MOTIVATING FACTOR" In Counts Two and Five, Plaintiff has brought a claim of employment discrimination against the Defendant alleging 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. 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 and further claims the decision to not promote the Plaintiff was based upon lawful reasons.

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

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PROPOSED JURY INSTRUCTION NO.

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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, 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 was not promoted solely because of his 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: 9th CIR. CIV. JURY INSTR. 12.1(B) (Approved 8/2004)

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PROPOSED JURY INSTRUCTION NO. 9 DISPARATE TREATMENT ­ "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, 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: 9th CIR. CIV. JURY. INSTR. (2004), 12.1C. Approved 12/2004.

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FORM OF VERDICT NO. 2 Special Interrogatories 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 for the Defendant's decision not to promote him in June 2001? Yes _____ No _____

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

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? Yes _____ No _____

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

3.

Has the Defendant proved by a preponderance of the evidence that the Defendant's decision not to promote Plaintiff in June 2001 also motivated by a lawful reason? Yes _____ No _____

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

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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 even if the Plaintiff's race had played no role in the Defendant's decision. Yes _____ No _____

If your answer is "yes," do not answer any further questions related to the Plaintiff's claim of disparate treatment. If your answer is "no", proceed to Paragraph 5.

5.

If your answer to Question No. 1 is "yes" or your answers to Question Nos. 3 or 4 is "no", proceed to Page 30 of these instructions.

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

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PROPOSED JURY INSTRUCTION NO. 10 AGE DISCRIMINATION -- DISPARATE TREATMENT Plaintiff alleges in Counts One and Five that Defendant discriminated against him based on his age in violation of federal and state 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. 3. 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 determining factor in the Defendant's decision not to promote him; 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.

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FORM OF VERDICT NO. 3 AGE DISCRIMINATION ­ DISPARATE TREATMENT 1. Has the Plaintiff proved by a preponderance of the evidence that the Plaintiff's age was the determining factor in the Defendant's decision not to promote him in June 2001? Yes No

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 11 STRAY REMARKS To demonstrate direct evidence of discrimination, Plaintiff must show conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude. However, stray remarks in the workplace, statements by non-decision makers, or decision-makers unrelated to the decisional process itself are not sufficient to satisfy Plaintiff's burden in this regard.

Source: Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995); Federal Employment Jury Instructions, 2006 § 3:271.

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PROPOSED JURY INSTRUCTION NO. 12 HOSTILE WORK ENVIRONMENT Plaintiff claims in Count Four 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: 1. 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 a reasonable person in the Plaintiff's circumstances would consider the working environment to be abusive or hostile.

4. 5.

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 the Plaintiff's work performance.

Source: 9th CIR. CIV. JURY INSTR. (2004), 12.2A, (As modified); 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).

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PROPOSED JURY INSTRUCTION NO.

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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 a racially hostile work environment by Roger Vanderpool and/or Hal Campbell and that they were persons who had higher authority over Plaintiff. Defendant 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, the Defendant 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. 2. Defendant 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: 9th 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 (9th 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.

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PROPOSED JURY INSTRUCTION NO. 14 TANGIBLE EMPLOYMENT ACTION DEFINED 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.

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

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PROPOSED JURY INSTRUCTION NO. 15 "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: 9th CIR. CIV. JURY INSTR. (2004) 12.4A2. Approved 8/2004.

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FORM OF VERDICT NO. 4 HOSTILE WORK ENVIRONMENT On Plaintiff's claim that he was subjected to a hostile work environment caused by a supervisor, we the jury, duly empaneled, find in favor of (check one): Plaintiff Defendant

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PROPOSED JURY INSTRUCTION NO. 16 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (ELEMENTS OF CLAIM) Plaintiff claims that Defendant intentionally or recklessly caused him emotional distress. On this claim, Plaintiff must prove: 1. 2. 3. Defendant's conduct was extreme and outrageous; and Defendant's conduct was either intentional or reckless; and Defendant's conduct caused Plaintiff to suffer severe emotional distress.

distress.

Conduct is "intentional" if a person's objective is to cause emotional

Conduct is "reckless" if a person is aware of and disregards the near certainty that it would result in emotional distress.

Source: Revised Arizona Jury Instructions (Civil), 4th, Intentional Torts 16

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PROPOSED JURY INSTRUCTION NO. 17 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (EXTREME AND OUTRAGEOUS CONDUCT) "Extreme and outrageous" means conduct that a reasonable member of the community would regard as atrocious and beyond all possible bounds of decency. A person's conduct is outrageous if: 1. 2. 3. Defendant knew that Plaintiff is particularly susceptible to emotional distress; Defendant's conduct was not privileged or Defendant had no legitimate business purpose for its conduct; and Defendant abused a position or relationship with the Plaintiff which gave the Defendant actual or apparent authority over the Plaintiff, such as an attempt to extort money by a threat of arrest.

Source: Revised Arizona Jury Instructions (Civil), 4th, Intentional Torts 17.

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FORM OF VERDICT NO. 5 On Plaintiff's claim of intentional infliction of severe emotional distress, we the jury duly empaneled, find in favor of (check one). Plaintiff Defendant

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PROPOSED JURY INSTRUCTION NO. 18 DAMAGES ­ PROOF 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 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 Defendant. 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: 9th CIR. CIV. JURY INSTR. (2001), 7.1.

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PROPOSED JURY INSTRUCTION NO. 19 MEASURES OF TYPES OF DAMAGES In determining the measure of damages, you should consider: conduct; and The reasonable value of wages Plaintiff lost as a result of Defendant's The mental, physical, and emotional pain and suffering experienced.

Comment There must be evidence to support this instruction. See Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 339-42 (1988). See also Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 508-509 (9th Cir.2000) Source: 9th CIR. CIV. JURY INSTR. (2001), 7.2

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PROPOSED JURY INSTRUCTION NO. 20 NOMINAL DAMAGES 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 or claim against Defendant for a violation of his Constitutional rights to equal protection, 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.

Source: 9th CIR. CIV. JURY INSTR. (2001), 7.6; see, e.g., Chew v. Gates, 27 F.2d 1432, 1437 (9th Cir. 1994) (Section 1983 action), cert. denied, 513 U.S. 1148 (1995); Parton v. GTE North, Inc., 971 F.2d 150,154 (8th Cir. 1992) (Title VII action).

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PROPOSED JURY INSTRUCTION NO. 21 WILLFUL AGE DISCRIMINATION--DAMAGES 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 willful. The Plaintiff has the burden of proving willfulness 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.

Source: 9th CIR. CIV. JURY INSTR. (2004) 14.9. As modified.

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FORM OF VERDICT NO. 6 If you have found for Plaintiff on: 1. Plaintiff's claim for violation of his constitutional rights (see Pg. 9) Or 2. Plaintiff's claim of discrimination on the basis of race (see Pg. 14) Or 3. Plaintiff's claim of discrimination on the basis of age (see Pg. 16) Or 4. Plaintiff's claim of hostile work environment (see Pg. 22) Or 5. Intentional Infliction of Emotional Distress (see Pg. 25)

Complete the following verdict form: We the jury, duly empaneled, find in favor of Plaintiff in the amount of: $ $ For lost wages For mental, physical and emotional pain and suffering

________________________________ Presiding Juror

______________________ Date

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FORM OF VERDICT NO. 7 verdict form: If you have found for Defendant on all claims complete the following

We the jury, duly empaneled, find in favor of Defendant.

Presiding Juror

Date

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