Free Lodged Proposed Document - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

Stephanie Osteen AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201 Telephone: (214) 969-2800 Fax: (214) 969-4343

[email protected]

Tricia Schafer MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A.
2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 Phone: (602) 889-5341 Facsimile: (602) 285-5100

[email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Patrice Jerome, plaintiff, vs. Midway Holdings, Inc. and Midway Chevrolet, Inc., defendants.

No. CV 03-1913-PHX-MHM Proposed Forms of Verdict

Pursuant to this Court's Order of September 17, 2007, the parties submit their respective proposed Forms of Verdict.

Case 2:03-cv-01913-MHM

Document 98

Filed 10/19/2007

Page 1 of 7

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Plaintiff's Proposed Forms of Verdict The jury must unanimously agree on the answers to the following questions: Has Ms. Jerome proven by a preponderance of evidence that she was subjected to a hostile work environment­as defined by this instructions­ while employed by Defendants? YES_______ NO_______

Has Ms. Jerome proven by a preponderance of the evidence that she was discharged by Defendants because of her gender? YES_______ NO_______

If your answer to Questions Number 1 or Number 2 is "YES," then please answer question Numbers 3 and 4. If your answer to question Number 1 and Number 2 is "NO," then the Foreperson should sign this Form of Verdict and you should not answer Questions 3 or 4.

State the amount of compensatory damages, if any, Ms. Jerome should be awarded against Defendants. AMOUNT $___________

State the amount of punitive damages, if any, Ms. Jerome should be awarded against Defendants. AMOUNT $___________

FOREPERSON____________________

DATE____________________________

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Defendants' Objections To Plaintiff's Proposed Form of Verdict Defendants object to Plaintiff's proposed form of verdict because the questions are not consistent with applicable Ninth Circuit Model Civil Jury Instructions. Defendants also object to Plaintiff's proposed form of verdict because it does not include a question requiring the jury to make a predicate finding that Defendants intentionally acted with malice or reckless indifference to Plaintiff's federally-protected right against sex discrimination and sexual harassment before imposing an award of punitive damages. Defendants further object to Plaintiff's proposed form of verdict because it does not include questions regarding Defendants' affirmative defenses, on which Defendants bear the burden of proof at trial. Defendants' Proposed Form of Verdict

QUESTION NO. 1 Did Plaintiff prove by a preponderance of the evidence that she was discharged by Defendants solely because of her sex? ANSWER "Yes" or "No": __________

QUESTION NO. 2 Did Plaintiff prove by a preponderance of the evidence that: (a) Plaintiff was subjected to slurs, insults, jokes or other verbal comments or physical contact or intimidation of a sexual nature by a supervisor; and (b) the conduct was unwelcome; and -3Case 2:03-cv-01913-MHM Document 98 Filed 10/19/2007 Page 3 of 7

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(c) the conduct was sufficiently severe or pervasive to alter the conditions of the Plaintiff's employment and create a sexually abusive or hostile work environment; and (d) Plaintiff perceived the working environment to be abusive or hostile; and (e) a reasonable woman in Plaintiff's circumstances would consider the working environment to be abusive or hostile? ANSWER "Yes" or "No": __________

If you answered "No" to Question No. 1 and Question No. 2, please stop and do not answer any more questions. If you answered "Yes" to Question No. 1 and "No" to Question No. 2, please skip Question No. 3 and proceed to Question No. 4. If you answered "Yes" to Question No. 2, please proceed to Question No. 3.

QUESTION NO. 3 Did Defendants prove by a preponderance of the evidence that (a) Defendants exercised reasonable care to prevent and promptly correct the sexually harassing behavior; and (b) Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by Defendants or unreasonably failed to otherwise avoid harm? ANSWER "Yes" or "No": __________

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If you answered "Yes" to Question No. 1, or "Yes" to Question No. 2 and "No" to Question No. 3, please proceed to Question No. 4. Otherwise, please do not answer any more questions.

QUESTION NO. 4 Please state below the amount of compensatory damages to which Plaintiff is entitled, if any. If you find Plaintiff is entitled to no damages, please enter "$0" below: $ __________

QUESTION NO. 5 Did Defendants prove by a preponderance of evidence: (a) that Plaintiff failed to use reasonable efforts to mitigate her damages; and (b) the amount by which Plaintiff's damages would have been mitigated had she used reasonable efforts? ANSWER "Yes" or "No": __________

If you answered Question No. 4 with a number other than "$0", please proceed to Question No. 6. If you answered Question No. 4 with a number other than "$0" and answered "No" to Question No. 5, please skip Question No. 6 and proceed to Question No. 7.

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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 $ __________ questions. had she used reasonable efforts: $ __________

QUESTION NO. 6 Please state below the amount by which Plaintiff's damages would have been mitigated

QUESTION NO. 7 Did Plaintiff prove, by a preponderance of evidence, that Defendants intentionally acted with malice or reckless indifference to Plaintiff's federally-protected right against sex discrimination and sexual harassment? ANSWER "Yes" or "No": __________

If you answered "No" to Question No. 7, please stop and do answer any more

If you answered "Yes" to Question No. 7, please proceed to Question No. 8.

QUESTION NO. 8 Please state below, or place $0, the amount of punitive damages, if any, assessed against Defendants:

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Dated the 19th day of October 2007. MONTOYA JIMENEZ A Professional Association

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Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

AKIN GUMP STRAUSS HAUER & FELD LLP s/ Stephanie Osteen Stephanie Osteen 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201 Attorney for Defendants

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