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 Plaintiffs

Brian Goodwin JoEllen Benton SHUGHART THOMSON & KILROY, P.C.
One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012 (602) 650-2068 (fax) 264-7033

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Beth D'Aguanno and Frankie Tyree, plaintiffs, vs. American Builders & Contractors Supply Co., Inc., doing business as ABC Supply Company, Inc., defendant. Pursuant to the Court's Order of March 30, 2005, the parties submit the following proposed jury instructions. Dated this 19th day of August, 2005.

No. CV 03-1408-PHX-DGC Proposed Joint Jury Instructions

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MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiffs s/ JoEllen Benton Brian Goodwin JoEllen Benton Shughart Thomson & Kilroy, P.C. One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012

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I. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS ST § 1.1 ­ DUTY OF JURY Ladies and Gentleman: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

Authority: Ninth Circuit Model Civil Jury Instructions 1.1.

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ST § 1.2 ­ CLAIMS AND DEFENSES To help you follow the evidence, I will give you a brief summary of the positions of the parties:

Authority: Ninth Circuit Model Civil Jury Instructions 1.2

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ST §1.3 ­ WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

Authority: Ninth Circuit Model Civil Jury Instructions 1.3

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ST § 1.4 ­ WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; and (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

Authority: Ninth Circuit Model Civil Jury Instructions 1.4

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ST § 1.5 ­ EVIDENCE FOR LIMITED PURPOSE Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

Authority: Ninth Circuit Model Civil Jury Instructions 1.5

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ST § 1.6 ­ DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

Authority: Ninth Circuit Model Civil Jury Instructions 1.6

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ST § 1.7 ­ RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

Authority: Ninth Circuit Model Civil Jury Instructions 1.7

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ST § 1.8 ­ CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

Authority: Ninth Circuit Model Civil Jury Instructions 1.8

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ST § 1.9 ­ CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

Authority: Ninth Circuit Model Civil Jury Instructions 1.9

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ST § 1.10 ­ NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

Authority: Ninth Circuit Model Civil Jury Instructions 1.10

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ST § 1.11 ­ TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

Authority: Ninth Circuit Model Civil Jury Instructions 1.11

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ST § 1.12 ­ OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case]. After that, you will go to the jury room to deliberate on your verdict.

Authority: Ninth Circuit Model Civil Jury Instructions 1.12

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ST § 1.13 ­ BURDEN OF PROOF/PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

Authority: Ninth Circuit Model Civil Jury Instructions 1.13

ACCEPTED DENIED MODIFIED

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ST § 2.1 ­ CAUTIONARY INSTRUCTION/FIRST RECESS We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

Authority: Ninth Circuit Model Civil Jury Instructions 2.1

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ST § 2.2 ­ BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

Authority: Ninth Circuit Model Civil Jury Instructions 2.2

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ST § 2.3 ­ STIPULATED TESTIMONY The parties have agreed what [witness]'s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.

Authority: Ninth Circuit Model Civil Jury Instructions 2.3.

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ST § 2.4 ­ STIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

Authority: Ninth Circuit Model Civil Jury Instructions 2.4

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ST § 2.6 ­ DEPOSITION AS SUBSTANTIVE EVIDENCE [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

Authority: Ninth Circuit Model Civil Jury Instructions 2.6

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ST § 2.10 ­ LIMITED PURPOSE EVIDENCE The testimony [you are about to hear] [you have just heard] may be considered only for the limited purpose of [describe purpose] and for no other purpose.

Authority: Ninth Circuit Model Civil Jury Instructions 2.10

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ST §2.13 ­ USE OF INTERROGATORIES OF A PARTY Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand.

Authority: Ninth Circuit Model Civil Jury Instructions 2.13

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ST § 3.1 ­ DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you.

Authority: Ninth Circuit Model Civil Jury Instructions 3.1

ACCEPTED DENIED MODIFIED

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ST § 3.2 ­ What Is Evidence The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated.

Authority: Ninth Circuit Model Jury Instructions 3.2

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ST § 3.3 ­ What Is Not Evidence In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing

arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.]

(4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

Authority: Ninth Circuit Model Civil Jury Instructions 3.3 ACCEPTED DENIED MODIFIED

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ST § 4.1 ­ Duty To Deliberate When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

Authority: Ninth Circuit Model Civil Jury Instructions 4.1

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ST § 4.2 ­ USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

Authority: Ninth Circuit Model Civil Jury Instructions 4.2

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ST § 4.3 ­ COMMUNICATION WITH THE COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone, including me, how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

Authority: Ninth Circuit Model Civil Jury Instructions 4.3

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ST § 4.4 ­ RETURN OF VERDICT A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

Authority: Ninth Circuit Model Civil Jury Instructions 4.4

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ST § 4.5 ­ ADDITIONAL INSTRUCTIONS OF LAW At this point I will give you a further instruction. By giving a further instruction at this time, I do not mean to emphasize this instruction over any other instruction. You are not to attach undue importance to the fact that this was read separately to you. You shall consider this instruction together with all of the other instructions that were given to you. [Insert text of new instruction.] You will now retire to the jury room and continue your deliberations.

Authority: Ninth Circuit Model Civil Jury Instructions 4.5

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ST § 4.6 ­ DEADLOCKED JURY Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you. As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict. All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position. I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important. You may now retire and continue your deliberations.

Authority: Ninth Circuit Model Civil Jury Instructions 4.6

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ST § 5.1 ­ BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

Authority: Ninth Circuit Model Civil Jury Instructions 5.1

ACCEPTED DENIED MODIFIED

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D § 5.2 ­ BURDEN OF PROOF ­ CLEAR AND CONVINCING EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim [or affirmative defense] is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard. You should base your decision on all of the evidence, regardless of which party presented it.

Authority: Ninth Circuit Model Civil Jury Instructions 5.2

ACCEPTED DENIED MODIFIED

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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 - 34 ACCEPTED DENIED Authority: Ninth Circuit Model Civil Jury Instructions 5.3 ST § 5.3 ­ COMPLETE AFFIRMATIVE DEFENSE On any claim, 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 on that claim, unless you also find that the defendant has proved an affirmative defense, in which event your verdict should be for the defendant on that claim.

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MODIFIED ST § 6.1 - CORPORATIONS AND PARTNERSHIPS ­ FAIR TREATMENT All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as any party.

Authority: Ninth Circuit Model Civil Jury Instruction 6.1

ACCEPTED DENIED MODIFIED

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D § 12.2A ­ HOSTILE WORK ENVIRONMENT ­ HARASSMENT BECAUSE OF PROTECTED CHARACTERISTICS ­ ELEMENTS The plaintiff seeks damages against the defendant for a sexually hostile work environment while employed by the defendant. In order to establish a sexually hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence: (1) the plaintiff was subjected to sexual advances, requests for sexual conduct,

or other verbal or physical conduct of a sexual nature; (2) (3) the conduct was unwelcome; 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; (4) and (5) a reasonable woman in the plaintiff's circumstances would consider the the plaintiff perceived the working environment to be abusive or hostile;

working environment to be abuse of hostile. Whether the environment constituted a sexually 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.

Authority: Ninth Circuit Model Civil Jury Instruction 12.2A

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12.2B HOSTILE WORK ENVIRONMENT CAUSED BY SUPERVISOR--CLAIM BASED UPON VICARIOUS LIABILITY--TANGIBLE EMPLOYMENT ACTION-- AFFIRMATIVE DEFENSE An employer may be liable when a supervisor with immediate or successively higher authority over the employee creates a sexually hostile work environment for that employee. The plaintiffs claim that they were subjected to a sexually hostile work environment by their supervisors. The defendant denies the plaintiff's claim. The plaintiff must prove [his] [her] claim by a preponderance of the evidence. In addition to denying the plaintiffs' claims, 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 they suffered a tangible employment action as a result of harassment by the supervisor. If a plaintiff has proved that she suffered a tangible employment action as a result of harassment by the supervisor, you must not consider the affirmative defense. If a plaintiff has not proved that she 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. the defendant exercised reasonable care to prevent and promptly correct the sexually harassing behavior, and 2. the plaintiff unreasonably failed to take advantage of any preventive 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.

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D § 12.2C - HOSTILE WORK ENVIRONMENT CAUSED BY NONIMMEDIATE SUPERVISOR OR BY CO-WORKER--CLAIM BASED ON NEGLIGENCE The plaintiff seeks damages from the defendant for a hostile work environment caused by sexual harassment. 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 sexually hostile work environment by a coworker or co-workers; 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 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. 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.

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Authority: Ninth Circuit Model Civil Jury Instruction 12.2C

ACCEPTED DENIED MODIFIED

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PLAINTIFF'S 7.1 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, 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: The nature and extent of the plaintiff's injuries; The mental, physical, emotional pain and suffering experienced and which with reasonable probability will be experienced in the future. 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.

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PLAINTIFF'S 7.6 NOMINAL DAMAGES The law which applies to this case authorizes an award of nominal damages. If you find for the plaintiff 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.

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PLAINTIFF'S 7.5 PUNITIVE DAMAGES If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are 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, 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, rights , or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. 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.

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 1

Hostile Work Environment Caused by Non-immediate Supervisor or by Co-worker--claim Based on Negligence

Plaintiff Tyree seeks damages from the defendant for a hostile work environment caused by sexual harassment. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence:

1. Plaintiff Tyree was subjected to a sexually hostile work environment by Jerry Pearman, Andy Pearman and Pedro Santiago; 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 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 - 43 -

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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.

Source: 9th Circuit Model Civil Jury Instruction 12.2C

Given:

______________________________

Refused: ______________________________ Modified: ______________________________

_____________________________________ Judge

[Plaintiffs object to this instruction because it duplicates the Ninth Circuit Model Instruction already submitted above.]

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DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 2

Hostile Work Environment Caused by Non-immediate Supervisor or by Co-worker--claim Based on Negligence

Plaintiff D'Aguanno seeks damages from the defendant for a hostile work environment caused by sexual harassment. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence:

1. Plaintiff D'Aguanno was subjected to a sexually hostile work environment by Brian Chinavare, Roger Sole, Richard Toddey, Lance Patterson, Richard Oliver and Marvin Turnick; 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.

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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.

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.

Source: 9th Circuit Model Civil Jury Instruction 12.2C

Given:

______________________________

Refused: ______________________________ Modified: ______________________________ _____________________________________ Judge

[Plaintiffs object to this instruction because it duplicates the Ninth Circuit Model Instruction already submitted above.]

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DEFENDANT'S REQUESTED INJURY INSTRUCTION NO. 3

HOSTILE WORK ENVIRONMENT CAUSED BY SUPERVISOR--CLAIM BASED UPON VICARIOUS LIABILITY--TANGIBLE EMPLOYMENT ACTION-- AFFIRMATIVE DEFENSE

An employer may be liable when a supervisor with immediate or successively higher authority over the employee creates a sexually hostile work environment for that employee. Plaintiff Tyree claims that she was subjected to a sexually hostile work environment by Jerry Pearman, and that he was her immediate supervisor or a person with successively higher authority over her.

The defendant denies the plaintiff's claim. The plaintiff must prove her 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 she suffered a tangible employment action as a result of harassment by the supervisor.

If plaintiff has proved that she suffered a tangible employment action as a result of harassment by the supervisor, you must not consider the affirmative defense.

If plaintiff has not proved that she 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:

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1.

the defendant exercised reasonable care to prevent and promptly correct the sexually harassing behavior, and

2.

the plaintiff unreasonably failed to take advantage of any preventive 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 Circuit Model Civil Jury Instruction 12.2B Given: ______________________________ Refused: ______________________________ Modified: ______________________________ _____________________________________ Judge [Plaintiffs object to this instruction because it duplicates the Ninth Circuit Model Instruction already submitted above.]

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DEFENDANT'S REQUESTED INJURY INSTRUCTION NO. 4 HOSTILE WORK ENVIRONMENT CAUSED BY SUPERVISOR--CLAIM BASED UPON VICARIOUS LIABILITY--TANGIBLE EMPLOYMENT ACTION-- AFFIRMATIVE DEFENSE An employer may be liable when a supervisor with immediate or successively higher authority over the employee creates a sexually hostile work environment for that employee. Plaintiff D'Aguanno claims that she was subjected to a sexually hostile work environment by Pedro Santiago, and that he was her immediate supervisor or a person with successively higher authority over her. The defendant denies the plaintiff's claim. The plaintiff must prove her 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 she suffered a tangible employment action as a result of harassment by the supervisor. If plaintiff has proved that she suffered a tangible employment action as a result of harassment by the supervisor, you must not consider the affirmative defense. If plaintiff has not proved that she 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. the defendant exercised reasonable care to prevent and promptly correct the sexually harassing behavior, and the plaintiff unreasonably failed to take advantage of any preventive 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.

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Source: 9th Circuit Model Civil Jury Instruction 12.2B Given: ______________________________ Refused: ______________________________ Modified: ______________________________ _____________________________________ Judge [Plaintiffs object to this instruction because it duplicates the Ninth Circuit Model Instruction already submitted above.]

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CERTIFICATE OF SERVICE

:

I hereby certify that on August 19, 2005, I electronically transmitted the attached 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: Brian Goodwin JoEllen Benton Shughart Thomson & Kilroy, P.C. One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012

:

I further certify that on August 19, 2005, the attached document was also sent via United States First Class Mail, postage prepaid to:

The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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