Robinson v. HD Supply, Inc.

Filing 130

ORDER re PROPOSED TRIAL DOCUMENTS signed by Judge Garland E. Burrell, Jr on 2/21/14. (Kaminski, H)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 KRIS ROBINSON, 8 9 10 No. 2:12-cv-00604-GEB-AC Plaintiff, v. PROPOSED TRIAL DOCUMENTS HD SUPPLY, INC., 11 Defendant. 12 Attached are the Court’s proposed voir dire questions, 13 14 preliminary 15 verdict 16 should be submitted as soon as practicable. 17 jury form. A. Any instructions, proposed closing jury modifications to instructions, what is and attached Proposed Closing Jury Instructions 18 Several of the parties’ proposed instructions have been 19 modified for clarity, to eliminate unnecessary language, and to 20 more closely follow the language used in the Ninth Circuit Model 21 Civil Jury Instructions and Judicial Council of California Civil 22 Jury Instructions (“CACI”) upon which they are based. Since the Court’s proposed voir dire contains a neutral 23 24 statement of the case, the parties’ proposed “claims 25 and defenses” instruction is unnecessary and will not be used. 26 The parties’ proposed liability instructions include as 27 elements that Plaintiff was employed by Defendant, that Defendant 28 terminated Plaintiff’s employment, 1 and that Defendant was an 1 employer. Since each of these elements is undisputed, they have 2 been eliminated from the attached liability instructions. See 3 Final Pretrial Order 6:2-5, ECF No. 94. The goal is to “help the 4 jurors 5 Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997). to 6 concentrate The on the parties’ question[s] proposed at hand.” “disparate Achor v. treatment” 7 instruction, which is based upon CACI No. 2500, will not be given 8 since is duplicative 9 discrimination” instruction, 10 it of the which is parties’ specific “disability to disparate treatment based upon a disability. 11 The parties’ proposed “wrongful discharge/demotion in 12 violation 13 terminology for the element that requires Plaintiff to show a 14 causal connection between Plaintiff’s termination and his harm 15 than the other proposed liability instructions. This instruction 16 uses 17 liability instructions uses the phrase “substantial factor.” It 18 appears that the different terminology used for this element is 19 without legal significance and could be confusing to the jury; 20 therefore, 21 consistently throughout and define that term once as follows: “A 22 ‘substantial 23 reasonable person would consider to have contributed to the harm. 24 It must be more than a remote or trivial factor. It does not have 25 to be the only cause of the harm.” The definition is based upon 26 CACI Instruction No. 430 - “Causation: Substantial Factor.” 27 28 the of public word the The policy” “cause,” attached factor’ last in instruction whereas each instructions causing paragraph of use harm of utilizes the other “substantial is the different a factor parties’ proposed factor” that a proposed “accommodation” instruction has been deleted. Its content has 2 1 been 2 terms “major life activity,” “limits,” and “difficult” consistent 3 with California Code of Regulations section 11065(l). incorporated 4 The into Instruction parties’ proposed No. 10, “adverse which defines employment the action” 5 instruction will not be given since that phrase is not used in 6 the attached instructions. It is understood, and the attached 7 instructions reflect, that the adverse employment action at issue 8 is Plaintiff’s termination. 9 Plaintiff’s proposed instructions Nos. 1 and 2 have 10 been incorporated into Instruction No. 9, which is the liability 11 instruction on Plaintiff’s retaliation claim. 12 Plaintiff’s as not 16 intent 17 consistent with Colarossi v. Coty US Inc., 97 Cal. App. 4th 1142, 18 1153 (2002). direct or 9 circumstantial proposed instruction includes the be concerning Plaintiff’s ability to prove an employer’s retaliatory No. by not 15 Instruction supported will authorities. Plaintiff’s is 3 14 However, it No. given using since instruction 13 19 worded, proposed a evidence, No. 4 cited paragraph which will is not be 20 given. As stated above, Instruction No. 10 defines “major life 21 activity,” “limits” and “difficulty” as defined in the California 22 Code of Regulations. Further, there is no need to define “mental 23 disability” since it is not used in the attached instructions. 24 Instead, 25 Traumatic Stress Disorder specifically. 26 the The attached parties instructions have reference proposed Plaintiff’s inadequate Post damages 27 instructions. The attached proposed instructions include damages 28 instructions which are based upon the introductory language in 3 1 the Ninth Circuit’s Model Civil Jury Instruction No. 5.1 (Damages 2 – Proof), and CACI Instructions Nos. 2433 (Wrongful Discharge in 3 Violation of Public Policy – Damages), 3900 (Introduction to Tort 4 Damages – Liability Contested), 3902 (Economic and Noneconomic 5 Damages), 3903 (Items of Economic Damage), 3903C (Past and Future 6 Lost 7 Noneconomic Damage), and 3905A (Physical Pain, Mental Suffering, 8 and Emotional Distress). 9 Earnings), B. 3904 (Present Cash Value), 3905 (Items of Proposed Verdict Form 10 The attached general verdict form will be used rather 11 than the parties’ proposed special verdict forms. See Floyd v. 12 Laws, 13 general rule, the court has complete discretion over whether to 14 have the jury return a special verdict or a general verdict”). 15 Dated: 929 F.2d 1390, 1395 (9th February 21, 2014 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Cir. 1991) (stating “[a]s a 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 KRIS ROBINSON, Plaintiff, 13 v. 14 15 VOIR DIRE HD SUPPLY, INC., Defendant. 16 17 18 19 20 No. 2:12-cv-00604-GEB-AC Thank you for your presence and anticipated cooperation in the jury selection questioning process we are about to begin. This process concerns the right to a trial by jury, which is a 21 right that the founders of this nation considered an important 22 component of our constitutional system. 23 The court personnel who will assist me in this trial 24 are on the platform below me. The Courtroom Deputy is Shani 25 26 Furstenau. to her She is on the platform below me on my left side. Next is the Certified 27 28 [___________________________________]. 5 Court Reporter, 1 We are about to begin what is known as voir dire. The 2 purpose of voir dire is to ascertain whether you can be a fair 3 4 and impartial juror on this case. Near or at the end of the process, each party can use a certain amount of what are called 5 6 7 8 peremptory 13 14 15 excuse a potential juror from excused for other reasons. 1. Ms. Furstenau, please administer the oath to the 2. Counsel, the Jury Administrator randomly selected panel. 11 12 which sitting as a juror on this case. A potential juror can also be 9 10 challenges, potential jurors and placed their names on the sheet that has been given to each party in the numerical sequence in which they were randomly selected. Each juror has been placed in his or her 16 randomly-selected seat. 17 3. I will ask a series of questions to the jurors as 18 a group. If you have a response, please raise your hand or the 19 number 20 21 you’ve Generally, you been will given, be which given an reflects your opportunity seat to number. respond in accordance with the numerical order in which you are seated, with 22 23 24 the juror in the lowest numbered seat responding first. If no hand is raised, I will simply state “no response” for the record 25 and then ask the next question. If you know it is your turn to 26 respond to a question, you may respond before I call your name or 27 your seat number, by stating your last name or just your seat 28 6 1 number, then your response. That should expedite the process. 2 3 4 4. This termination of is a civil Plaintiff’s case concerning employment as Defendant’s an assistant transportation manager. Plaintiff alleges the following claims 5 6 7 against Defendant: discrimination based upon his alleged Post Traumatic Stress Disorder, failure to provide a reasonable 8 accommodation for his alleged Post Traumatic Stress Disorder, and 9 retaliation 10 employees 11 Center 12 13 14 15 16 for to to complaining drive the from Salinas to Defendant Defendant’s Distribution that Sacramento Center dispatching Distribution would result in violations of hours of service regulations. Plaintiff further alleges that this referenced conduct constitutes termination in violation of public policy. Defendant denies these allegations. 5. Raise your hand if you have any knowledge of the 17 facts or events in this case or if there is anything about the 18 allegations which causes you to feel that you might not be a fair 19 juror in this case. 20 21 6. Raise your hand if there is any reason why you will not be able to give your full attention to this case. 22 23 24 25 26 27 7. Raise your hand if you will not be able to decide this case based solely on the evidence presented at the trial or if you are opposed to judging a witness’s credibility. 8. Raise your hand if you will not apply the law I will give you if you believe a different law should apply. 28 7 1 2 3 4 9. argument The parties have informed me that the evidence and portion approximately 3-6 of the court trial days, should after which be completed in the case be will submitted to the jury for jury deliberation. We will be in trial 5 6 7 on Tuesdays, Wednesdays, and Thursdays from 9:00 a.m. to about 4:30 p.m. But as soon as you begin jury deliberation, you will be 8 expected to deliberate every day, except weekends, from 9:00 a.m. 9 to about 4:30 p.m., until you complete your deliberation. 10 11 12 13 14 15 16 17 If you cannot participate as a juror during these times, raise your hand. 10. 20 21 Plaintiff’s [himself/themselves], [his/their] counsel client, and introduce indicate any witness that [his/their] client may choose to call. 11. Defendant’s counsel now has the opportunity to do the same thing. 18 19 Would Raise your hand if you know or have had any interaction with any person just introduced or named. 12. Raise your hand if you have ever served as a juror in the past. 22 State whether it was a civil or criminal case, and 23 24 state whether the jury reached a verdict, but do not state the 25 actual verdict reached. 26 13. 27 Raise your hand if you have had any experience or are aware of anything that could have a bearing on your ability 28 8 1 2 3 4 to be a fair and impartial juror in this case. 14. Now, I am going to ask you to put yourselves in the position of each lawyer and party in this case. Raise your hand if you have information that you think should be shared 5 6 7 8 before each side is given an opportunity to exercise what are called peremptory challenges. 15. The Courtroom Deputy Clerk will give juror number 9 one a sheet on which there are questions that I want each of you 10 to answer. Please pass the sheet to the juror next to you after 11 you answer the questions. The sheet asks you to state: 12 13 14 15 16 Your name and your educational background and the educational background of any person residing with you; and Your present and former occupations and the present and former occupations of any person residing with you. 17 18 19 20 21 22 23 24 25 26 27 28 9 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 KRIS ROBINSON, Plaintiff, 13 14 15 16 No. 2:12-cv-00604-GEB-AC v. PRELIMINARY JURY INSTRUCTIONS HD SUPPLY, INC., Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 10 1 Preliminary Instruction No. 1 2 3 4 Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on the law. 5 You must not infer that I have an opinion regarding the 6 7 8 evidence or what your verdict should be from these instructions or from anything I may say or do. 9 It is your duty to find the facts from all the evidence 10 in the case. To those facts you will apply the law as I give it 11 to you. You must follow the law as I give it to you whether you 12 13 14 15 16 agree with it or not. And 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 to do so. 17 In following my instructions, you must follow all of 18 them and not single out some and ignore others; they are all 19 important. 20 21 22 23 24 25 26 27 28 11 1 Preliminary Instruction No. 2 2 3 4 I am now going to give you jury admonitions that you must remember. When we take recesses, I may you to remember the reference these 5 6 7 8 admonitions something by telling similar to that. You are required admonitions to follow or these admonitions whether or not I remind you to remember them: 9 First, keep an open mind throughout the trial, and do 10 not decide what the verdict should be until you and your fellow 11 jurors have completed your deliberations at the end of the case. 12 13 14 15 Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other 16 information about the case or to the issues it involves during 17 the course of your jury duty. Thus, until the end of the case or 18 unless I tell you otherwise: 19 20 21 Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing 22 23 24 the case in person, in writing, by phone or electronic means, via e-mail, Facebook, website, text App, messaging, or or feature. other any Internet room, 25 blog, 26 communicating with your fellow jurors until I give you the case 27 for deliberation, and it applies to communicating with everyone 28 12 This chat applies to 1 else including your family members, your employer, and the people 2 involved in the trial, although you may notify your family and 3 4 your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury 5 6 7 8 service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. 9 Because you will receive all the evidence and legal 10 instruction you properly may consider to return a verdict: do not 11 read, 12 13 14 15 watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet, or using other reference materials; and do not make any 16 investigation or in any other way try to learn about the case on 17 your 18 parties have a fair trial based on the same evidence that each 19 party has had an opportunity to address. 20 21 own. The law requires these restrictions to ensure Third, if you need to communicate with me, simply give a signed note to my courtroom clerk, or to the court reporter if 22 23 the my courtroom clerk is not present, who will give it to me. 24 25 26 27 28 13 1 Preliminary Instruction No. 3 2 3 4 There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers 5 6 7 an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer 8 may object. If I overrule the objection, the question may be 9 answered or the exhibit received. If I sustain the objection, the 10 question cannot be answered, and the exhibit cannot be received. 11 Whenever I sustain an objection to a question, you must ignore 12 13 14 15 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 16 means that when you are deciding the case, you must not consider 17 the evidence that I told you to disregard. 18 19 20 21 22 23 24 25 26 27 28 14 1 Preliminary Jury Instruction No. 4 2 3 4 In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are 5 6 7 not evidence, and you may not consider them in deciding what the facts are. I will list them for you: First, 8 arguments and statements by lawyers are not 9 evidence. The lawyers are not witnesses. What they will say in 10 their opening statements, closing arguments, and at other times 11 is intended to help you interpret the evidence, but it is not 12 13 14 evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. Second, questions and objections by the lawyers are not 15 16 evidence. Attorneys have a duty to object when they believe a 17 question is improper under the rules of evidence. You should not 18 be influenced by the objection or by the court’s ruling on it. 19 20 21 Third, 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, sometimes testimony and 22 23 24 exhibits are received only for a limited purpose; if I give a limiting instruction, you must follow it. 25 Fourth, anything you see or hear when the court is not 26 in session is not evidence. You are to decide the case solely on 27 the evidence received at the trial. 28 15 1 Preliminary Instruction No. 5 2 3 4 5 6 7 During deliberations, 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. 8 If at any time during the trial you cannot hear what is 9 said or see what is shown, let me know so that I can correct the 10 problem. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 1 Preliminary Instruction No. 6 2 3 4 If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself 5 6 7 8 until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you. When you leave, your notes shall be left on the seat on which you are seated. 9 Whether or not you take notes, you should rely on your 10 own memory of the evidence. Notes are only to assist your memory. 11 You should not be overly influenced by your notes or those of 12 your fellow jurors. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 1 Preliminary Instruction No. 7 2 3 4 From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of 5 6 7 the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please 8 understand 9 purpose of these conferences is not to keep relevant information 10 from you, but to decide how certain evidence is to be treated 11 under the rules of evidence and to avoid confusion and error. 12 13 14 15 that while you are waiting, we are working. The 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 16 granting or denying a request for a conference as any indication 17 of my opinion of the case or of what your verdict should be. 18 19 20 21 22 23 24 25 26 27 28 18 1 Preliminary Instruction No. 8 2 3 4 The court accepts as having been proved the following facts, even though no evidence has been introduced on the 5 6 7 subjects. You should therefore treat these facts as having been proved. 8 Defendant hired Plaintiff on March 24, 2008; 9 Plaintiff was terminated on February 10, 2010; 10 11 12 13 14 15 16 The Sacramento number of Distribution statute Center and miles its between Salinas Defendant’s Distribution Center is 130 statute miles; The number of air miles between Defendant’s Sacramento Distribution Center and its Salinas Distribution Center is 113 air miles; and 17 A “statute mile” is measured as 5,280 feet. An “air 18 mile” is measured as 6,076 feet under the Federal Motor Carrier 19 Safety Administration Act. 20 21 22 23 24 25 26 27 28 19 1 Preliminary Instruction No. 9 2 3 4 The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not 5 6 7 8 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. Plaintiff will then present evidence, and counsel for 9 10 the 11 evidence, and counsel for Plaintiff may cross-examine. 12 13 14 15 16 17 Defendant may cross-examine. Then Defendant may present 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. After that, you will go to the jury room to deliberate on your verdict. 18 19 20 21 22 23 24 25 26 27 28 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KRIS ROBINSON, Plaintiff, 10 11 12 13 No. 2:12-cv-00604-GEB-AC v. CLOSING JURY INSTRUCTIONS HD SUPPLY, INC., Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 1 Instruction No. 1 2 3 4 Members of the jury, now that you have heard all the evidence and the arguments of the parties, it is my duty to 5 6 7 instruct you on the law which applies to this case. Each of you is in possession of a copy of these jury instructions, which you 8 may take 9 into the jury room for your use if you find it necessary. 10 It is your duty to find the facts from all the evidence 11 in the case. To those facts you must apply the law as I give it 12 13 14 15 to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. 16 That means that you must decide the case solely on the evidence 17 before you and according to the law. You will recall that you 18 took an oath promising to do so at the beginning of the case. 19 20 21 In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. 22 23 24 25 26 27 28 22 1 Instruction No. 2 2 3 4 The evidence you are to consider in deciding what the facts are consists of: 5 6 7 8 the sworn testimony of any witness; the exhibits that are received into evidence; and any facts to which the parties have agreed. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 1 Instruction No. 3 2 3 4 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as a testimony by a 5 6 7 8 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. 9 You should consider both kinds of evidence. The law 10 makes no distinction between the weight to be given to either 11 direct or circumstantial evidence. It is for you to decide how 12 much weight to give to any evidence. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 1 Instruction No. 4 2 3 4 In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to 5 6 7 8 believe. You may believe everything a witness says, or part of it, or none of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it. In considering the testimony of any witness, you may 9 10 take into account: 11 12 the opportunity and ability of the witness to see or hear or know the things testified to; 13 the witness’s memory; 14 the witness’s manner while testifying; 15 the witness’s interest in the outcome of the case and 16 17 any bias or prejudice; 18 19 whether evidence contradicted the witness’s testimony; 20 21 other the reasonableness of the witness’s testimony in light of all the evidence; and 22 any other factors that bear on believability. 23 The 24 weight of the evidence as to a fact does not 25 necessarily depend on the number of witnesses who testify about 26 it. 27 28 25 1 Instruction No. 5 2 3 4 Plaintiff has burden of proving each of his claims by a preponderance of the evidence. This means you must be persuaded 5 6 7 8 9 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 1 Instruction No. 6 2 3 4 Plaintiff alleges he was terminated in violation of public policy. To prevail on this claim, Plaintiff must prove, by 5 6 a preponderance of the evidence, each of the following elements: 7 First, 8 9 dispatching 10 Distribution 11 result 12 13 14 15 16 in Plaintiff’s employees Center violation Plaintiff’s Post to to of the complaints drive Salinas hours Traumatic from and Stress to Defendant Defendant’s Distribution service Disorder Sacramento Center regulations was a that would and/or substantial motivating reason for his termination; and Second, the termination was a substantial factor in causing Plaintiff harm. 17 18 19 20 21 22 23 24 25 26 27 28 27 1 Instruction No. 7 2 3 4 Plaintiff against him based alleges on his Defendant Post wrongfully Traumatic discriminated Stress Disorder. To 5 6 7 prevail on this claim, Plaintiff must prove, by a preponderance of the evidence, each of the following elements: 8 First, 9 Stress Disorder diagnosis; 10 Second, 11 14 15 16 knew Plaintiff’s of Post Plaintiff’s Traumatic Post Traumatic Stress Disorder limited a major life activity; 12 13 Defendant Third, Plaintiff was able to perform his essential job duties with reasonable accommodation for his Post Traumatic Stress Disorder; Fourth, Plaintiff’s Post Traumatic Stress Disorder 17 and/or Defendant’s belief that Plaintiff had a history of Post 18 Traumatic Stress Disorder was a substantial motivating reason for 19 his termination; 20 21 Fifth, Plaintiff was harmed; and Sixth, the termination 22 23 causing Plaintiff’s harm. 24 25 26 27 28 28 was a substantial factor in 1 Instruction No. 8 2 3 4 Plaintiff alleges Defendant failed to reasonably accommodate his Post Traumatic Stress Disorder. To prevail on 5 6 7 this claim, Plaintiff must prove, by a preponderance of the evidence, each of the following elements: 8 First, 9 Stress Disorder diagnosis; 10 11 Second, 14 15 Plaintiff’s of Post Plaintiff’s Traumatic Post Traumatic Stress Disorder Third, Plaintiff was able to perform his essential job duties with reasonable accommodation for his Post to provide Traumatic Stress Disorder; Fourth, 16 17 knew limited a major life activity; 12 13 Defendant Defendant failed reasonable accommodation for Plaintiff’s Post Traumatic Stress Disorder; 18 Fifth; Plaintiff was harmed; and 19 Sixth, 20 21 Defendant’s failure to provide reasonable accommodation was a substantial factor in causing Plaintiff’s harm. 22 23 A “reasonable accommodation” is a reasonable change to 24 25 the workplace that allows an employee 26 perform the essential duties of the job. 27 28 29 with a disability to 1 Reasonable accommodations may include the following: 2 Making the workplace readily accessible to and usable 3 4 by employees with disabilities; Changing job responsibilities or work schedules; 5 6 7 Reassigning the employee to a vacant position; Modifying or providing equipment or devices; 8 Modifying tests or training materials; 9 Providing qualified interpreters or readers; or 10 Providing 11 individual with a disability. other similar accommodations for an 12 13 14 15 16 If more than one accommodation is reasonable, an employer makes a reasonable accommodation if it selects one of those accommodations in good faith. 17 18 19 20 21 22 23 24 25 26 27 28 30 1 Instruction No. 9 2 3 4 Plaintiff alleges Defendant retaliated against him for complaining to Defendant that dispatching employees to drive from 5 6 7 Defendant’s Sacramento Distribution Center to the Salinas Distribution Center would result in violation of hours of service 8 regulations. To prevail on this claim, Plaintiff must prove, by a 9 preponderance of the evidence, each of the following elements: 10 First, Plaintiff reasonably and in good faith believed 11 that dispatching employees to drive from Defendant’s Sacramento 12 13 14 Distribution Second, Third, Salinas Distribution Center would Plaintiff complained to Defendant about the Plaintiff’s complaints were a substantial motivating reason for his termination; 19 Fourth; Plaintiff was harmed; and 20 21 the referenced violation of hours of service regulations; 17 18 to result in violation of hours of service regulations; 15 16 Center Fifth; the termination was a substantial factor in causing Plaintiff’s harm. 22 23 An employee is protected against retaliation if the 24 25 employee reasonably and in good 26 complained of constituted unlawful conduct whether or not the 27 challenged conduct is ultimately found to be unlawful. 28 31 faith believed that what he 1 2 3 4 An employee is not required to use special words when complaining believes of is conduct unlawful that for he reasonably the complaint and to in be good a faith protected 5 6 7 activity. The communication relevant to the question is whether employer the sufficiently employee’s conveyed the 8 employee’s reasonable concern that the employer is acting in an 9 unlawful manner. 10 11 12 13 14 15 Both direct and circumstantial evidence can be used to show an employer’s retaliation may intent consist of to retaliate. remarks made Direct by evidence decision of makers showing a retaliatory motive. Circumstantial evidence typically 16 relates to factors such as an employee’s job performance, the 17 timing of events, and how the employer treated the employee in 18 comparison to other similarly situated workers. 19 20 21 22 23 24 25 26 27 28 32 1 Instruction No. 10 2 3 4 5 The phrase “major life activity” includes physical, mental, and social activities, especially those life activities that affect employability or otherwise present a barrier to 6 7 employment or advancement. “Major life activities” include, but are not limited 8 9 to, caring for oneself, performing manual tasks, seeing, hearing, 10 eating, sleeping, walking, standing, sitting, reaching, lifting, 11 bending, speaking, breathing, learning, reading, concentrating, 12 thinking, communicating, interacting with others, and working. 13 14 A disability “limits” a major life activity if it makes 15 16 the achievement of the major life activity difficult. Whether a disability “limits” a major life activity 17 18 shall be determined without regard to mitigating measures or 19 reasonable accommodations, unless the mitigating measure itself 20 limits a major life activity. 21 22 Whether achievement of a major life activity is 23 24 25 “difficult” is an individualized determination, which may consider what most people in the general population can perform 26 with little or no difficulty, what members of Plaintiff’s peer 27 group can perform with little or 28 33 no difficulty, and/or what 1 Plaintiff would be able to perform with little or no difficulty 2 in the absence of a disability. 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 1 Instruction No. 11 2 3 4 In deciding whether a job duty is “essential,” you may consider, among other factors, the following: 5 Whether the reason the job exists is to perform that 6 7 duty; Whether 8 9 there is a limited number of employees available who can perform that duty; 10 Whether the job duty is highly specialized so that the 11 person currently holding the position was hired for his or her 12 expertise or ability to perform the particular duty. 13 14 Evidence of whether a particular duty is “essential” 15 16 includes, but is not limited to, the following: Defendant’s 17 18 as to which functions are essential; 19 20 judgment Defendant’s written job descriptions prepared before advertising or interviewing applicants for the job; 21 The amount of time spent on the job performing the 22 23 24 25 duty; The consequences of not requiring the person currently holding the position to perform the duty; 26 The terms of a collective bargaining agreement; 27 The work experiences of past persons holding the job; 28 35 1 2 3 4 The current work experience of persons holding similar jobs; and reference to the importance of the job in prior performance reviews. 5 6 7 “Essential job duties” do not include the marginal 8 duties of the position. “Marginal duties” are those that, if not 9 performed would not eliminate the need for the job, or those that 10 could be readily performed by another employee, or those that 11 could be performed in another way. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36 1 Instruction No. 12 2 3 4 A “substantial motivating reason” is a reason that actually contributed to Plaintiff’s termination. It must be more 5 6 7 than a remote or trivial reason. It does not have to be the only reason motivating the termination. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 1 Instruction No. 13 2 3 4 5 Plaintiff alleges he was terminated because of his Post Traumatic Stress Disorder and/or his complaints about the violation of hours of service regulations, which are unlawful 6 7 8 reasons to terminate someone. Defendant alleges Plaintiff was terminated because of insubordination, which is a lawful reason 9 to terminate someone. 10 If you find that Plaintiff’s Post Traumatic Stress 11 Disorder and/or his complaints about the violation of hours of 12 service regulations was a substantial motivating reason for his 13 14 15 termination, you must then consider Defendant’s stated reason for the termination. If you find that Plaintiff’s insubordination was also a 16 17 substantial motivating reason, then you must determine whether 18 Defendant 19 anyway based on his insubordination even if Defendant had not 20 also been substantially motivated by Plaintiff’s Post Traumatic 21 22 Stress has proven Disorder that and/or it his would have complaints terminated about the Plaintiff violation of hours of service regulations. 23 In determining whether Plaintiff’s insubordination was 24 25 a substantial motivating reason, determine what actually 26 motivated Defendant, not what it might have been justified in 27 doing. 28 38 1 If you find that Defendant terminated Plaintiff only 2 for a discriminatory and/or retaliatory reason, you will be asked 3 4 to determine the amount of damages that Plaintiff is entitled to recover. If, however, you find that Defendant would have insubordination, then 5 6 7 terminated Plaintiff anyway because of Plaintiff will not be entitled to damages. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39 1 Instruction No. 14 2 3 4 5 In California, employment is presumed to be “at will.” That means that an employer may terminate an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair 6 7 8 reason, as long as its action is not for a discriminatory and/or retaliatory reason. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 1 Instruction No. 15 2 3 4 A “substantial factor” in causing harm is a factor that a reasonable person would consider to have contributed to the 5 6 7 harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41 1 2 Instruction No. 16 3 4 It is the duty of the Court to instruct you about the 5 6 7 8 measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. 9 If you decide that Plaintiff has proved any of his 10 claims against Defendant, you must also decide how much money 11 will 12 13 14 15 reasonably compensate Plaintiff for the harm. This compensation is called “damages.” Plaintiff has the burden of proving damages by a preponderance of the evidence. Plaintiff does not have to prove the exact amount of 16 damages that will provide reasonable compensation for the harm. 17 However, you must not speculate or guess in awarding damages. 18 19 20 21 22 23 24 25 26 27 28 42 1 Instruction No. 17 2 3 4 The damages claimed by Plaintiff fall into two categories, which are called economic damages and non-economic 5 6 7 damages. You will be asked on the verdict form to state the categories of damages separately. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 1 Instruction No. 18 2 3 4 The following are the specific items of economic damages claimed by Plaintiff: 5 6 Past and future loss of wages and benefits. 7 8 To recover damages for past lost wages and benefits, 9 Plaintiff must prove the amount of wages and benefits that he has 10 lost to date. 11 12 13 14 15 16 To recover damages for future lost wages and benefits, Plaintiff must prove the amount of wages and benefits he will be reasonably certain to lose in the future as a result of the harm caused by Defendant. 17 Any award for future economic damages should be reduced 18 to present cash value. This is necessary because money received 19 now will, through investment, grow to a larger amount in the 20 21 future. Defendant must prove the amount by which future economic damages should be reduced to present value. 22 23 24 25 To find present cash value, you must determine the amount of money that, if reasonably invested today, will provide Plaintiff with the amount of his future economic damages. 26 27 28 44 1 In determining the period that Plaintiff’s employment 2 was reasonably certain to have continued, you should consider 3 4 such things as: Plaintiff’s age, work performance, and intent to 5 6 7 8 9 10 continue employment with Defendant; Defendant’s prospects for continuing the operations involving Plaintiff; and Any other factor that bears on how long Plaintiff would have continued to work. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45 1 Instruction No. 19 2 3 4 The following are the specific items of non-economic damages claimed by Plaintiff: 5 Past and future emotional pain and suffering. 6 7 8 No fixed standard exists for deciding the amount of 9 these non-economic damages. You must use your judgment to decide 10 a reasonable amount, if any, based on the evidence and your 11 common sense. 12 13 To recover for future non-economic damages, Plaintiff 14 15 16 must prove that he is reasonably certain to suffer that harm in the future. 17 18 19 20 21 For future non-economic damages, determine the amount in current dollars paid at the of judgment that will compensate Plaintiff for future noneconomic harm, if any. Any award for future non-economic damages 22 23 time reduced to present cash value. 24 25 26 27 28 46 should not be further 1 Instruction No. 20 2 3 4 Plaintiff is seeking damages from Defendant in several claims. However, each item of damages may be awarded only once, 5 6 7 regardless of the number of claims prevail. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47 on which Plaintiff may 1 Instruction No. 21 2 3 4 If you decide that Defendant’s conduct was a substantial factor in causing Plaintiff’s harm, you must decide 5 6 7 8 whether that conduct justifies an award of punitive damages. The amount, if any, of punitive damages will be an issue decided later. 9 At this time, you must decide whether Plaintiff has 10 proved that Defendant engaged in that conduct with malice or 11 oppression. 12 13 14 15 16 17 To do this, Plaintiff must prove, by clear and convincing evidence, one or more of the following elements: The conduct constituting malice or oppression was committed by one or more officers, directors, or managing agents of Defendant who acted on behalf of Defendant; or The conduct constituting malice or oppression was 18 authorized by one or more officers, directors, or managing agents 19 of Defendant; or 20 21 One or more officers, directors, or managing agents of Defendant knew of the conduct constituting malice or oppression, 22 23 and adopted or approved that conduct after it occurred. 24 25 “Clear and convincing evidence” means it is highly 26 probable that the fact is true. This is a higher standard of 27 proof than proof by a preponderance of the evidence. 28 48 1 2 3 4 “Malice” means that Defendant acted with intent to cause injury or that Defendant’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety 5 6 7 8 of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences. 9 10 11 12 “Oppression” means that Defendant’s conduct was despicable and subjected Plaintiff to cruel and unjust hardship in knowing disregard of his rights. 13 14 15 “Despicable conduct” is conduct that is so vile, base, 16 or contemptible that it would be looked down on and despised by 17 reasonable people. 18 19 20 21 An employee is a “managing if he or she exercises substantial independent authority and judgment in his or her corporate decision making such that his or her decisions 22 23 agent” ultimately determine corporate policy. 24 25 26 27 28 49 1 Instruction No. 22 2 3 4 When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will 5 6 preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors 7 8 to reach 9 agreement if you can do so. Your verdict must be unanimous. 10 Each of you must decide the case for yourself, but you 11 should do so only after you have considered all of the evidence, 12 13 14 discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do 15 not be persuades afraid you to that change you your should. Do opinion 16 discussion not 17 if come the to a decision simply because other jurors think it is right. 18 It is important that you attempt to reach a unanimous 19 verdict but, of course, only if each of you can do so after 20 21 having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply 22 23 to reach a verdict. 24 25 26 27 28 50 1 Instruction No. 23 2 3 4 A verdict form has been prepared for you. After you have reached unanimous agreement on the verdict, your foreperson 5 6 7 8 will fill in the form that will be given to you, sign and date it, and advise the United States Marshal’s representative outside your door that you are ready to return to the courtroom. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51 1 Instruction No. 24 2 3 4 If it becomes necessary during your deliberations to communicate with me, you may send a note through the United 5 6 7 States Marshal’s representative, signed by your foreperson or by one or more members of the jury. No member of the jury should 8 ever attempt to communicate with me except by a signed writing; 9 and I will communicate with any member of the jury on anything 10 concerning the case only in writing, or here in open court. If 11 you send out a question, I will consult with the parties before 12 13 14 15 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 16 jury stands, 17 reached 18 disclose any vote count in any note to the court. a numerically unanimous or verdict otherwise, or 19 20 21 22 23 24 25 26 27 28 52 have until been after you discharged. Do have not

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