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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KRIS ROBINSON,
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No. 2:12-cv-00604-GEB-AC
Plaintiff,
v.
PROPOSED TRIAL DOCUMENTS
HD SUPPLY, INC.,
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Defendant.
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Attached are the Court’s proposed voir dire questions,
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preliminary
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verdict
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should be submitted as soon as practicable.
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jury
form.
A.
Any
instructions,
proposed
closing
jury
modifications
to
instructions,
what
is
and
attached
Proposed Closing Jury Instructions
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Several of the parties’ proposed instructions have been
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modified for clarity, to eliminate unnecessary language, and to
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more closely follow the language used in the Ninth Circuit Model
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Civil Jury Instructions and Judicial Council of California Civil
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Jury Instructions (“CACI”) upon which they are based.
Since the Court’s proposed voir dire contains a neutral
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statement
of
the
case,
the
parties’
proposed
“claims
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and
defenses” instruction is unnecessary and will not be used.
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The parties’ proposed liability instructions include as
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elements that Plaintiff was employed by Defendant, that Defendant
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terminated
Plaintiff’s
employment,
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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
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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”
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instruction, which is based upon CACI No. 2500, will not be given
8
since
is
duplicative
9
discrimination”
instruction,
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it
of
the
which
is
parties’
specific
“disability
to
disparate
treatment based upon a disability.
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The parties’ proposed “wrongful discharge/demotion in
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violation
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terminology for the element that requires Plaintiff to show a
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causal connection between Plaintiff’s termination and his harm
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than the other proposed liability instructions. This instruction
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uses
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liability instructions uses the phrase “substantial factor.” It
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appears that the different terminology used for this element is
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without legal significance and could be confusing to the jury;
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therefore,
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consistently throughout and define that term once as follows: “A
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‘substantial
23
reasonable person would consider to have contributed to the harm.
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It must be more than a remote or trivial factor. It does not have
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to be the only cause of the harm.” The definition is based upon
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CACI Instruction No. 430 - “Causation: Substantial Factor.”
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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
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1
been
2
terms “major life activity,” “limits,” and “difficult” consistent
3
with California Code of Regulations section 11065(l).
incorporated
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The
into
Instruction
parties’
proposed
No.
10,
“adverse
which
defines
employment
the
action”
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instruction will not be given since that phrase is not used in
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the attached instructions. It is understood, and the attached
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instructions reflect, that the adverse employment action at issue
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is Plaintiff’s termination.
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Plaintiff’s proposed instructions Nos. 1 and 2 have
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been incorporated into Instruction No. 9, which is the liability
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instruction on Plaintiff’s retaliation claim.
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Plaintiff’s
as
not
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intent
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consistent with Colarossi v. Coty US Inc., 97 Cal. App. 4th 1142,
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1153 (2002).
direct
or
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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
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However,
it
No.
given
using
since
instruction
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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
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instructions which are based upon the introductory language in
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1
the Ninth Circuit’s Model Civil Jury Instruction No. 5.1 (Damages
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– Proof), and CACI Instructions Nos. 2433 (Wrongful Discharge in
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Violation of Public Policy – Damages), 3900 (Introduction to Tort
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Damages – Liability Contested), 3902 (Economic and Noneconomic
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Damages), 3903 (Items of Economic Damage), 3903C (Past and Future
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Lost
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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
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The attached general verdict form will be used rather
11
than the parties’ proposed special verdict forms. See Floyd v.
12
Laws,
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general rule, the court has complete discretion over whether to
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have the jury return a special verdict or a general verdict”).
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Dated:
929
F.2d
1390,
1395
(9th
February 21, 2014
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4
Cir.
1991)
(stating
“[a]s
a
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KRIS ROBINSON,
Plaintiff,
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v.
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VOIR DIRE
HD SUPPLY, INC.,
Defendant.
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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
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right that the founders of this nation considered an important
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component of our constitutional system.
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The court personnel who will assist me in this trial
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are on the platform below me. The Courtroom Deputy is Shani
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Furstenau.
to
her
She is on the platform below me on my left side. Next
is
the
Certified
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[___________________________________].
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Court
Reporter,
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We are about to begin what is known as voir dire. The
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purpose of voir dire is to ascertain whether you can be a fair
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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
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peremptory
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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.
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which
sitting as a juror on this case. A potential juror can also be
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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
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randomly-selected seat.
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3.
I will ask a series of questions to the jurors as
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a group. If you have a response, please raise your hand or the
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number
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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
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the juror in the lowest numbered seat responding first. If no
hand is raised, I will simply state “no response” for the record
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and then ask the next question. If you know it is your turn to
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respond to a question, you may respond before I call your name or
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your seat number, by stating your last name or just your seat
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number, then your response. That should expedite the process.
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4.
This
termination
of
is
a
civil
Plaintiff’s
case
concerning
employment
as
Defendant’s
an
assistant
transportation manager. Plaintiff alleges the following claims
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against Defendant: discrimination based upon his alleged Post
Traumatic
Stress
Disorder,
failure
to
provide
a
reasonable
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accommodation for his alleged Post Traumatic Stress Disorder, and
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retaliation
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employees
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Center
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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
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facts or events in this case or if there is anything about the
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allegations which causes you to feel that you might not be a fair
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juror in this case.
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6.
Raise your hand if there is any reason why you
will not be able to give your full attention to this case.
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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.
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2
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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
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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
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expected to deliberate every day, except weekends, from 9:00 a.m.
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to about 4:30 p.m., until you complete your deliberation.
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If you cannot participate as a juror during these
times, raise your hand.
10.
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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.
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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.
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State whether it was a civil or criminal case, and
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state whether the jury reached a verdict, but do not state the
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actual verdict reached.
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13.
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Raise your hand if you have had any experience or
are aware of anything that could have a bearing on your ability
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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
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before each side is given an opportunity to exercise what are
called peremptory challenges.
15.
The Courtroom Deputy Clerk will give juror number
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one a sheet on which there are questions that I want each of you
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to answer. Please pass the sheet to the juror next to you after
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you answer the questions. The sheet asks you to state:
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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.
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KRIS ROBINSON,
Plaintiff,
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No. 2:12-cv-00604-GEB-AC
v.
PRELIMINARY JURY INSTRUCTIONS
HD SUPPLY, INC.,
Defendant.
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1
Preliminary Instruction No. 1
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3
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Ladies and gentlemen: You are now the jury in this
case. It is my duty to instruct you on the law.
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You must not infer that I have an opinion regarding the
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evidence or what your verdict should be from these instructions
or from anything I may say or do.
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It is your duty to find the facts from all the evidence
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in the case. To those facts you will apply the law as I give it
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to you. You must follow the law as I give it to you whether you
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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.
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In following my instructions, you must follow all of
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them and not single out some and ignore others; they are all
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important.
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Preliminary Instruction No. 2
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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
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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:
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First, keep an open mind throughout the trial, and do
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not decide what the verdict should be until you and your fellow
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jurors have completed your deliberations at the end of the case.
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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
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information about the case or to the issues it involves during
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the course of your jury duty. Thus, until the end of the case or
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unless I tell you otherwise:
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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
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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,
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blog,
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communicating with your fellow jurors until I give you the case
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for deliberation, and it applies to communicating with everyone
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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
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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
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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.
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Because you will receive all the evidence and legal
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instruction you properly may consider to return a verdict: do not
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read,
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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
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your
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parties have a fair trial based on the same evidence that each
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party has had an opportunity to address.
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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
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the
my courtroom clerk is not present, who will give it to me.
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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
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an exhibit into evidence, and a lawyer on the other side thinks
that it is not permitted by the rules of evidence, that lawyer
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may object. If I overrule the objection, the question may be
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answered or the exhibit received. If I sustain the objection, the
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question cannot be answered, and the exhibit cannot be received.
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Whenever I sustain an objection to a question, you must ignore
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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
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means that when you are deciding the case, you must not consider
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the evidence that I told you to disregard.
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Preliminary Jury Instruction No. 4
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3
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In reaching your verdict, you may consider only the
testimony and exhibits received into evidence. Certain things are
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7
not evidence, and you may not consider them in deciding what the
facts are. I will list them for you:
First,
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arguments
and
statements
by
lawyers
are
not
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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
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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
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evidence. Attorneys have a duty to object when they believe a
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question is improper under the rules of evidence. You should not
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be influenced by the objection or by the court’s ruling on it.
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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
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exhibits are received only for a limited purpose; if I give a
limiting instruction, you must follow it.
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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
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the evidence received at the trial.
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Preliminary Instruction No. 5
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3
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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.
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If at any time during the trial you cannot hear what is
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said or see what is shown, let me know so that I can correct the
10
problem.
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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
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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.
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You should not be overly influenced by your notes or those of
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your fellow jurors.
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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
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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.
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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
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granting or denying a request for a conference as any indication
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of my opinion of the case or of what your verdict should be.
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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
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6
7
subjects. You should therefore treat these facts as having been
proved.
8
Defendant hired Plaintiff on March 24, 2008;
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Plaintiff was terminated on February 10, 2010;
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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
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A “statute mile” is measured as 5,280 feet. An “air
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mile” is measured as 6,076 feet under the Federal Motor Carrier
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Safety Administration Act.
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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
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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
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10
the
11
evidence, and counsel for Plaintiff may cross-examine.
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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.
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3
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6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
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KRIS ROBINSON,
Plaintiff,
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No. 2:12-cv-00604-GEB-AC
v.
CLOSING JURY INSTRUCTIONS
HD SUPPLY, INC.,
Defendant.
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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
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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.
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In following my instructions, you must follow all of
them and not single out some and ignore others; they are all
equally important.
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1
Instruction No. 2
2
3
4
The evidence you are to consider in deciding what the
facts are consists of:
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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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