Free Proposed Jury Instructions - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 William P. Allen #011161 ALLEN LAW FIRM, LLC 1650 North First Avenue Phoenix, Arizona 85003 Telephone (602) 495-6502 Fax (602) 277-9839 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Connie B. Pappas, Plaintiff, vs. J.S.B. Holdings, Inc., d.b.a. R&D Specialty/Manco, Defendant. In accordance with the Court's Trial Order, plaintiff hereby requests and submits the following proposed Ninth Circuit Model Jury Instructions with no modifications and three proposed modified Ninth Circuit Model Jury Instructions with authority for modification. Dated this 12th day of June, 2006. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin and ALLEN LAW FIRM, LLC By: /s William P. Allen William P. Allen Attorneys for Plaintiff No. CV-03-1449-PHX-PGR PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

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Electronic notice and service of documents provided to: Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Attorneys for Defendants /s David C. Larkin

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Ninth Circuit Model Jury Instructions with No Modifications: Section No. 1.1 1.2 1.3 1.4 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.15 2.1 2.2 2.6 2.10 2.13 3.0 3.1 3.2 3.3 3.5 Description Duty of Jury Claims and Defenses What Is Evidence What Is Not Evidence Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to Jury Taking Notes Outline of Trial Burden of Proof -- Preponderance of the Evidence Question to Witnesses by Jurors Cautionary Instruction--First Recess Bench Conferences and Recesses Deposition as Substantive Evidence Limited Purpose Evidence Use of Interrogatories of a Party Cover Sheet Duties of Jury to Find Facts and Follow Law What Is Evidence What Is Not Evidence Direct and Circumstantial Evidence -3-

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PLAINTIFF'S REQUESTED JURY INSTRUCTION NO. 1 Modified Ninth Circuit Model Jury Instruction 7.1 and 7.2 (combined in accordance with Model Instruction 7.1) 7.1 Damages--Proof. 7.2 Measures of Types of Damages. 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. You may not reduce damages for the reasonable value of wages and employment by an offset for any unemployment insurance benefits you believe plaintiff may have received.

Authority for Modification: Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982) ("unemployment benefits received by a successful plaintiff in an [Title VII] employment discrimination action are not offsets against a backpay award").

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PLAINTIFF'S REQUESTED JURY INSTRUCTION NO. 2 Modified Ninth Circuit Model Jury Instruction 12.2A Hostile Work Environment ­ Harassment Because of Protected Characteristics ­ elements The plaintiff seeks damages against the defendant for subjecting her to a hostile work environment because of her sex while employed by the defendant. In order to establish a hostile work environment because of her sex, the plaintiff must prove each of the following elements by a preponderance of the evidence: 1. the plaintiff was subjected to slurs, insults, jokes or other verbal comments or

physical contact or intimidation from male co-workers because she is a woman; 2. 3. a woman; 4. 5. the plaintiff perceived the working environment to be abusive or hostile; and a reasonable woman in the plaintiff's circumstances would consider the the conduct was unwelcome; the conduct was sufficiently severe or pervasive to alter the conditions of the

plaintiff's employment and create a abusive or hostile work environment because she is

working environment to be abusive or hostile. Whether the environment constituted a hostile work environment because plaintiff's sex 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.

Authority for Modification: Equal Employment Opportunity Commission v. National Education Association, Alaska, 422 F.3d 840 (9th Cir. 2005). Harassing conduct need not be motivated by sexual desire to support a claim of unlawful harassment nor do plaintiffs need to prove that the actor had a specific intent to "target" women. Id. at 844. Also, Unlawful sexual harassment may occur even when "the harassers do not realize that their conduct creates a hostile working environment." Id. at 845, citing Ellison v. Brady, 924 F.2d -6-

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872 (9th Cir.1991). The ultimate question is whether a member of one sex is exposed to disadvantageous conditions of employment that the other sex is not. Id. at 844, citing Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993).

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PLAINTIFF'S REQUESTED JURY INSTRUCTION NO. 3 Modified Ninth Circuit Model Jury Instruction 12.2C Hostile Work Environment Caused by Non-immediate Supervisor or by Co-worker--claim Based on Negligence The plaintiff seeks damages from the defendant for a hostile work environment caused by harassment because she is a woman. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. the plaintiff was subjected to a hostile work environment by a co-workers because she is a woman; and 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 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 harassers 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. 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. Authority for Modification: Equal Employment Opportunity Commission v. National Education Association, Alaska, 422 F.3d 840 (9th Cir. 2005). Harassing conduct need not be motivated by sexual desire to support a claim of unlawful harassment nor do -8Case 2:03-cv-01449-PGR Document 89 Filed 06/12/2006 Page 8 of 9

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plaintiffs need to prove that the actor had a specific intent to "target" women. Id. at 844. Also, Unlawful sexual harassment may occur even when "the harassers do not realize that their conduct creates a hostile working environment." Id. at 845, citing Ellison v. Brady, 924 F.2d 872 (9th Cir.1991). The ultimate question is whether a member of one sex is exposed to disadvantageous conditions of employment that the other sex is not. Id. at 844, citing Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993).

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