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)

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