Free Proposed Jury Instructions - 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 Joint Jury Instructions

Pursuant to this Court's Order of September 17, 2007, the parties submit this Joint List of proposed Jury Instructions:1 1. PROPOSED MODEL INSTRUCTIONS:

The parties reserve their right to supplement this List as appropriate, including lodging any applicable objections.

1

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Party

Proposing

or M o d e l

J u r y Description Instruction: Duty of Jury

of

Jury

Stipulated to: Stipulated Stipulated Stipulated Stipulated

Instruction Number: §1.1A §1.1C §1.2 §1.3

Prior to Final Instructions Claims and Defenses Burden of Proof-Preponderance of the Evidence

Stipulated Stipulated Stipulated Stipulated

§1.6 §1.7 §1.8 §1.9

What is Evidence What is not Evidence Evidence for Limited Purpose Direct Evidence and Circumstantial

Stipulated Stipulated Stipulated Stipulated Stipulated Stipulated Stipulated Defendants Stipulated

§1.10 §1.11 §1.12 §1.13 §1.14 §1.19 §1.12 §1.15 §1.18

Rulings on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to Jury Taking Notes Outline of Trial Cautionary Instruction Questions to Witnesses by Juror B e n ch Recesses Conferences and

Stipulated Stipulated

§2.2 §2.4

Stipulations of Fact Depositions in Lieu of Live Testimony

Stipulated Stipulated Stipulated

§2.10 §3.1 §3.2 -2-

Use of Interrogatories of a Party Duty to Deliberate Communication with Court

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Stipulated Stipulated Stipulated Stipulated Stipulated Stipulated

§3.3 §4.1 §5.1 §5.2 §5.3 §5.4

Return of Verdict Corporations-Fair Treatment Damages-Proof Measures of Types of Damages Damages­Mitigation Damages Arising in the FutureDiscount to Present Cash Value

Stipulated Stipulated Plaintiff

§5.5 §5.6 §10.1A

Punitive Damages Nominal Damages Civil Rights Title VII--disparate Treatment--where Supports "Sole Evidence or

Reason"

"Motivating Factor" Defendants §10.1B Civil Rights-Title VII-Disparate T reatment-" S o l e Plaintiff §10.1C Reason"-

Elements and Burden of Proof Civil Rights-Title VII-Disparate T reatment-"Sole R e a s o n"-

Elements and Burden of Proof Stipulated §10.2A Civil Rights-Title VII­Hostile Work Environment-Harassment because of Protected

Characteristics Elements Stipulated §10.2A Hostile Work Environment-Sexual Harassment-Elements Stipulated §10.2B Civil Rights-Title VII-Hostile Work Environment -3Caused by

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Supervisor-Claim Vicarious Employment Defense

based

upon

Liability-Tangible Action-Affirmative

Civil Rights-Title VII-Hostile Work Environment Caused by nonimmediate supervisor based or on

coworker­claim negligence

Tangible Defined

Employment

Action

NON-MODEL JURY INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED: Inapplicable. NON-MODEL JURY INSTRUCTIONS REQUESTED BY PLAINTIFF: None. NON-MODEL JURY INSTRUCTIONS REQUESTED BY DEFENDANTS:

PUNITIVE DAMAGES AGAINST AN EMPLOYER

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The law provides that punitive damages may only be assessed against an employer when the unlawful conduct was committed by an important or high-ranking managerial employee and the employer failed to make good faith efforts to comply with the law. An employee employed in a managerial capacity does not include every supervisory employee. Rather, to be employed in a managerial capacity, the employee must be an important member of the defendant's management. The mere fact that an employee is given the title such as "manager" or "director" does not automatically mean that the employee is employed in a managerial capacity. Rather, an employee who acts in a managerial capacity for purposes of punitive damages is one who has the power to make independent decisions regarding personnel matters, who has the authority to determine company policy, or who has the authority to approve personnel actions. In determining whether the defendant has engaged in good faith efforts to comply with the law, you should consider any relevant factor demonstrating the defendant's efforts, or lack thereof, to comply with the law against harassment, including such factors as whether the defendant has instituted policies and procedures prohibiting harassment, and whether the defendant has trained its managerial personnel with respect to ensure equal treatment of minorities.

Authority: Ninth Circuit Model Civil Jury Instruction 5.5; Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999).

[Plaintiff objects to this instruction because it does not reflect the law of the Ninth Circuit and is duplicative of other model Ninth Circuit instructions.]

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STRAY REMARKS In determining whether the plaintiff was discriminated against, you may not consider as evidence remarks made by someone other than the person who made the decision to terminate the plaintiff or, even if made by the person who made the decision to terminate the plaintiff, were unrelated to the decision-making process. Authority: Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990).

[Plaintiff objects to this instruction because it does not reflect the law of the Ninth Circuit and is duplicative of other model Ninth Circuit instructions.]

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Respectfully submitted this 19th day of October 2007. MONTOYA JIMENEZ A Professional Association

Stephen G. Montoya
Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff AKIN GUMP STRAUSS HAUER & FELD LLP s/ Stephanie K. Osteen M. Brett Burns Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants

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I hereby certify that on October 19, 2007, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

Stephen G. Montoya

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