Free Withdrawal of Document - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff Mary H. Beard (Admitted Pro Hac Vice) FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, Tennessee 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, PC Lori A. Higuera (#017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Facsimile: (602) 916-5999 Email: [email protected] Email: [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X,

JOINT PROPOSED JURY INSTRUCTIONS (Assigned to the Honorable David G. Campbell)

Defendants.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 C. B. The parties submit the following jury instructions for this case in accordance with the Court's Guidelines for Jury Instructions in Civil Cases. I. Ninth Circuit Model Civil Jury Instructions The following Ninth Circuit Model Jury Instructions are attached in full text: A. Preliminary Instructions ST PL DF ST ST ST ST ST ST ST ST ST ST ST § 1.1 § 1.2 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 Duty of Jury Claims and Defenses (modified by Plaintiff) Claims and Defenses (modified by Defendant) What is Evidence What is Not Evidence Evidence for Limited Purposes Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to Jury Taking Notes Outline of Trial Burden of Proof ­ Preponderance of the Evidence

Instructions During Trial ST ST ST ST ST ST ST § 2.1 § 2.2 § 2.3 § 2.4 § 2.6 § 2.10 § 2.13 Cautionary Instruction ­ First Recess Bench Conferences and Recesses Stipulated Testimony Stipulations of Fact Depositions as Substantive Evidence Limited Purpose Evidence Use of Interrogatories

Instructions at End of Case ST ST ST ST ST ST § 3.1 § 3.2 § 3.3 § 3.5 § 3.6 § 3.9 Duties of Jury to Find Facts and Follow Law What is Evidence What is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses Charts and Summaries Not Received in Evidence

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 III. II. F. E. D.

ST ST

§ 3.10 § 3.12

Charts and Summaries in Evidence Impeachment Evidence - Witness

Concluding Instructions ­ Jury Deliberations ST ST ST ST ST ST § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 Duty to Deliberate Use of Notes Communications with Court Return of Verdict Additional Instructions of Law Deadlocked Jury

BURDENS OF PROOF ST DF § 5.1 § 5.3 Burden of Proof ­ Preponderance of Evidence Complete Affirmative Defense

OTHER DF ST PL DF ST ST DF PL DF PL DF PL DF § 6.1 § 6.2 § 7.2 § 7.2 § 7.3 § 7.5 § 7.6 § 12.3A § 12.3A § 12.4A.1 § 12.4A.1 § 12.4A.1 § 12.5C Corporations and Partnerships ­ Fair Treatment Liability of Corporations - Scope of Authority Not in Issue Damages (modified by Plaintiff) Damages (modified by Defendant) Damages ­ Mitigation Punitive Damages Nominal Damages Retaliation ­ Elements (modified by Plaintiff) Retaliation ­ Elements (modified by Defendant) "Adverse Employment Action" in Retaliation Cases "Adverse Employment Action" in Retaliation Cases (Modified by Defendant) "Adverse Employment Action" in Retaliation Cases (modified by Plaintiff) Defendant ­ After-Acquired Evidence

Non-Model Instructions to Which the Parties Have Stipulated The parties have stipulated to the following non-model instructions: none. Non-Model Instructions Requested by Plaintiff Plaintiff requests the following non-model instructions:

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1.

Pretext Instruction

Non-Model Instructions Requested by Defendant Defendant requests the following non-model instructions: 1. 2. 3. 4. 5. 6. 7. 8. 9. At-Will Employment Law Governing Treatment of Employers Awarding of Damages Third Element of Retaliation Claim ­ Causal Link Isolated or Abstract Comments Permissible Decisions by Employee's Business Judgment Rule Notes Maintained by Employers Pretext

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, § 1.1.

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1.2 CLAIMS AND DEFENSES (Modified by Plaintiff) It is unlawful for an employer to discriminate against any person with respect to compensation, tenure, conditions or privileges of employment because of that person's race, color, religion, sex or national origin. The Plaintiff in this case, Sean Hargrow, claims that the defendant, Federal Express Corporation, unlawfully discriminated and retaliated against him because he engaged in protected activity by opposing unlawful discrimination and filing charges with the EEOC. Defendant, Federal Express Corporation, denies any retaliation.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.2 (modified).

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1.2 CLAIMS AND DEFENSES (Modified by Defendant) To help you follow the evidence, I will give you a brief summary of the positions of the parties. The Plaintiff, Sean Hargrow, claims that the defendant, Federal Express Corporation, unlawfully retaliated against him by discharging him because he filed a federal lawsuit. Defendant, Federal Express Corporation, denies any retaliation and contends that it discharged Plaintiff based on its Medical Leave of Absence Policy. Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.2 (modified).

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.3.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.4.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.5.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.6.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.7.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.8.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.9.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.10.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.11.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.12.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 1.13.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.1.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.2.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.3.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.4.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.6.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.10.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.13. Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand. 2.13 USE OF INTERROGATORIES OF A PARTY

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.1.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.2.

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3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it. (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at trial.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.3.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.5.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.6.

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3.9 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE Certain charts and summaries that have not been received into evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in this case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.9.

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3.10 CHARTS AND SUMMARIES IN EVIDENCE Certain charts and summaries have been received into evidence to illustrate information brought out in trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.10.

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3.12 IMPEACHMENT EVIDENCE ­ WITNESS You have heard evidence that [witness], a witness, [e.g. has been convicted of a felony, lied under oath on a prior occasion, etc]. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 3.12.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.1.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.2. 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.3.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.4.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.5.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 4.6.

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

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 5.1.

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5.3 COMPLETE AFFIRMATIVE DEFENSE On any claim, if you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff on that claim, unless you also find that the defendant has proved an affirmative defense, in which event your verdict should be for the defendant on that claim.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 5.3.

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6.1 CORPORATIONS AND PARTNERSHIPS­FAIR TREATMENT All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as any party.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 6.1.

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6.2 LIABILITY OF CORPORATIONS ­ SCOPE OF AUTHORITY NOT IN ISSUE Under the law, a corporation is considered to be a person. It can only act through its employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its employees, agents, directors, and officers performed within the scope of authority.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 6.2.

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7.2 DAMAGES - RETALIATION (Modified by Plaintiff) If you find that plaintiff provided defendant retaliated against plaintiff in violation of Title VII of the Civil Rights Act of 1964 or § 1981, then you must award plaintiff such sum as you find by a preponderance of the evidence will fairly and justly compensate plaintiff for damages you find plaintiff sustained as a direct result of defendant's retaliatory conduct. In determining the measure of damages, you should consider: The nature and extent of the injuries; The loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; The mental, physical, emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; The reasonable value of necessary psychological care, treatment, and services received to the present time; The reasonable value of necessary psychological and psychiatric care, treatment, and services which with reasonable probability will be required in the future; The reasonable value of necessary medical care, treatment, and services received to the present time; The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future; and The reasonable value of wages, earnings, earning capacity, employment, and employment opportunities lost to the present time.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 7.2 (modified); 42 U.S.C. § 1981a(a)(1).

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7.2 DAMAGES - RETALIATION (Modified by Defendant) If you find that plaintiff provided defendant retaliated against plaintiff in violation of Title VII of the Civil Rights Act of 1964 or § 1981, then you must award plaintiff such sum as you find by a preponderance of the evidence will fairly and justly compensate plaintiff for damages you find plaintiff sustained as a direct result of defendant's retaliatory conduct. In determining the measure of damages, you should consider: The nature and extent of the injuries; The loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; The mental, physical, emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; The reasonable value of necessary medical care, treatment, and services received to the present time; The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future; and The reasonable value of wages, earnings, earning capacity, employment, and employment opportunities lost to the present time.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 7.2 (modified).

Plaintiff's Objections: Plaintiff's only objection to Defendant's modification of this instruction is that it does not include in the measure of damages the "value of necessary psychological and psychiatric care, treatment, and services which with reasonable probability will be required in the future." As this is a component of Plaintiff's damages and because Plaintiff wants to ensure that the jury does not exclude damages for psychological and psychiatric treatment based on a potential narrow reading of "medical care, treatment and services", Plaintiff objects to this instruction.

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7.3 DAMAGES - MITIGATION The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence: 1. 2. that the plaintiff failed to use reasonable efforts to mitigate damages; and the amount by which damages would have been mitigated.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 7.3.

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7.5 PUNITIVE DAMAGES If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate the plaintiff, but to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, oppressive or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference of the plaintiff's safety and rights or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. An act or omission is oppressive if the person who [performs] [fails to perform] it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 7.5.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 7.6. 7.6 NOMINAL DAMAGES The law which applies in this case authorizes an award of nominal damages. If you find for the plaintiff but find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 12.3A. If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant. action. 2. 3. the employer subjected the plaintiff to an adverse employment action; and the protected activity was a motivating factor in the adverse employment The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. the plaintiff engaged in or was engaging in an activity protected under federal law, that is legally protected opposition to unlawful discrimination such as filing informal or formal complaints, filing charges with the Equal Employment Opportunity Commission and/or filing a lawsuit; 12.3A RETALIATION - ELEMENTS (Modified by Plaintiff)

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12.3A RETALIATION - ELEMENTS (Modified by Defendant) The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. federal law. the plaintiff engaged in or was engaging in an activity protected under

the employer subjected the plaintiff to an adverse employment action; and

5. there was a causal link between the protected activity and the adverse employment action. If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 12.3A (modified); Vasquez v. County of L.A., 349 F.3d 634, 642 (9th Cir. 2004).

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§ 12.4A.1 "ADVERSE EMPLOYMENT ACTION" IN RETALIATION CASES An action is an adverse employment action if it is reasonably likely to deter an employee from engaging in protected activity.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 12.4A.1.

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12.4A.1 "ADVERSE EMPLOYMENT ACTION" IN RETALIATION CASES (Modified by Defendant) An adverse employment action is conduct that results in a material change in the terms, conditions, or privileges of employment, such as a termination, demotion, negative employment reference, failure to promote, or undeserved performance review. Source: Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (citations omitted); Green v. Maricopa County Comm. College Sch. Dist., 265 F. Supp. 2d 1110, 1120-21 (D. Ariz. 2003). Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law. By not including other employment actions considered to be adverse. Plaintiff urges the Court to reject this instruction and give Model Jury Instruction 12.4A.1. In the event that the Court considers a modified version of Model Jury Instruction 12.4A1, Plaintiff requests that his proposed modified Model Jury Instruction 12.4A.1 be used in this case.

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12.4A.1 "ADVERSE EMPLOYMENT ACTION" IN RETALIATION CASES (Modified by Plaintiff) An action is an adverse employment action if it is reasonably likely to deter an employee from engaging in protected activity. An adverse employment action is conduct that results in a material change in the terms, conditions, or privileges of employment, such as a termination, layoff, demotion, failure to promote, lateral transfer, the imposition of a burdensome work schedule, disciplinary action, negative job reference, failure to promote, low rating on job performance review and decreased job responsibilities.

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 12.4A.1 (modified); Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); Manatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (denial of transfer); Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F.3d 493, 500-501, 506 (9th Cir. 2000) (low rating on job performance review, decreased responsibilities and failure to receive promotions); Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir.1997) (negative job reference), cert. denied, 523 U.S. 1122 (1998); Miller v. Fairchild Ind., Inc., 885 F.2d 498, 503 (9th Cir.1989) (layoff), cert. denied, 494 U.S. 1056 (1990); Yartzoff v. Thomas, 809 F.2d 1371,1376 (9th Cir. 1987) (transfer of job duties and "undeserved" performance ratings); Ruggles v. California Polytechnic State University, 797 F.2d 782, 785 (9th Cir. 1996) (failure to hire); EEOC v. Crown Zellerbach Corp. 720 F.2d 1008, 1012 (9th Cir. 1983) (four month disciplinary suspension).

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12.C DEFENSE ­ AFTER-ACQUIRED EVIDENCE The defendant contends that the defendant would have made the same decision to discharge the plaintiff because [describe the after-discovered misconduct]. If the defendant proves by a preponderance of the evidence that the defendant could have made the same decision and would have discharged the plaintiff because of [describe the after-acquired evidence], you should limit any award of back pay to the date the employer would have made the decision to discharge the plaintiff as a result of [describe the afteracquired evidence].

Authority: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 12.5C.

Plaintiff's Objection: Plaintiff objects to this instruction because it is irrelevant.

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 1 Pretext You must consider any legitimate, non-discriminatory reason or explanation stated by the defendant for its decision to take adverse employment action against plaintiff after he engaged in protected activity. In order to be legitimate, the reason must have been present at the time the defendant decided to take adverse action against plaintiff. You may not consider any reasons that the defendant may have discovered after the adverse employment action was taken. If you determine the defendant has stated such a reason, plaintiff must prove by a preponderance of the evidence that the excuse for the adverse employment action is not the true reason, but is instead only a pretext or excuse for retaliating against plaintiff because of the protected activity. Plaintiff can establish that the defendant's reason was actually an excuse for its discriminatory actions by offering direct evidence of discrimination, such as statements showing a discriminatory motivation for the defendants' treatment of plaintiff. Plaintiff may also prove pretext by offering indirect evidence tending to show that the defendant's proffered reason for its discriminatory actions is not credible or is false. If you find the defendant's real reason for taking adverse employment action against plaintiff was false, you may infer that the real reason was discrimination or retaliation. Authority: Adapted from Model Jury Instructions, Employment Litigation (ABA Section ofthLitigation 1994) 1.03(2)(a); Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221-22 (9 Cir. 1998); Payne v. Northwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997) (shifting pretext may be used to disprove defendant's proffered reasons); Reeves v. Sanderson Plumbing, Inc., 120 S.Ct. 2109 (2000) (plaintiff may show pretext by proving defendant's proffered reasons are false); St Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993) (plaintiff need not offer additional evidence outside her prima facie case to prove discrimination). Defendant's Objection: Defendant objects to this jury instruction on the basis that it does not place the appropriate burden on Plaintiff in proving pretext. This instruction does not properly state the law regarding pretext in the cases cited herein. Defendant has proposed its own version of this jury instruction as Defendant's Proposed Jury Instruction No. 9.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1 AT WILL EMPLOYMENT The law presumes that employment is "at will." This means that an employer may discharge an employee for any reason or for no reason at all but may not discharge an employee for an unlawful reason. SOURCE: A.R.S. § 23-1501. RAJI (CIVIL) 4th Employment Law 1A Plaintiff's Objection: This Instruction is irrelevant because at-will employees are entitled to the protections of Title VII and 42 U.S.C. § 1981.

GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. _2 LAW GOVERNING TREATMENT OF EMPLOYEES __ You should keep in mind that under the law, Plaintiff's claims and Defendant's defenses are directed only toward whether Defendant violated applicable law. There are, of course, many ways in which an employer might treat an employee unfairly, but the law does not require fair treatment of all employees. An employee is entitled to relief under applicable law only if the unfairness takes the form of illegal treatment motivated by the employee's retaliation claim.

SOURCE: Adapted from Pattern Jury Instructions, Civil Cases (U.S. Fifth Circuit District Judges Association, 1983 ed.), Federal Claims Instruction No. 10 (1983 ed.) (as modified); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law, is vague and misleading. The statements that "the law does not require fair treatment of all employees. An employee is entitled to relief under applicable law only if the unfairness takes the form of illegal treatment motivated by the employee's retaliation claim[.]" are misleading and misstatkes the applicable law. An employee may seek relief for unfair treatment that is discriminatory or violates public policy and is not limited to seek redress only in response to retaliation. This instruction should not be given.

GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3 AWARDING OF DAMAGES You are not to award damages for any injury or condition from which the Plaintiffs may have suffered, or may now be suffering, unless it has been established by a preponderance of the evidence in the case that such injury or condition was proximately caused by the Defendant's conduct. An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence that the act or failure to act played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. SOURCE: First paragraph adapted from O'Malley, Grenig & Lee, § 128.70; Second paragraph O'Malley, Grenig & Lee, § 120.60 Plaintiff's Objection: Plaintiff objects to this instruction because there is no Ninth Circuit Model Instruction on causation in employment discrimination cases. The Ninth Circuit committee on jury instructions recommends that the term "proximate cause" not be used in jury instructions. See Comment on Model Instruction 3.8 Causation. Model Instructions 7.2 and 12.3A provide the elements of retaliation and the measure of damages to be awarded in this case. The proposed instruction is prejudicial and misstates applicable law.

GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4 THIRD ELEMENT OF RETALIATION CLAIM ­ CASUAL LINK To establish the third element of a retaliation claim, Plaintiff must establish that the decisionmaker as to his termination knew of his prior protected activity. It is not enough for the Plaintiff to show that someone in the organization knew of the protected expression; instead, the Plaintiff must show that the person taking the adverse action was aware of the protected expression. Plaintiff must also prove his prior alleged complaints of discrimination motivated his termination. Timing alone cannot establish a causal connection between the alleged protected activity and the alleged adverse action. The mere fact that Plaintiff was discharged after allegedly complaining about discrimination is not sufficient to establish a causal link between the alleged complaints and his discharge.

Clark County v. Breeden 532 US 268, 273 (2001); Foraker v. Apollo Group, Inc. 427 F. Supp. 2d 936, 944 (D. Ariz 2006); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 79699 (9th Cir. 1982); Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004). Harrison v. Metropolitan Govt. of Nashville, 80 F.3d 1107, 1118 (6th Cir. 1996), cert. denied, 519 U.S. 863 (1996); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986); Figgous v. Allied/Bendix Corp., 906 F.2d 360 (8th Cir. 1990); Clark v. Crysler Corp., 673 F.2d 921 (7th Cir.), cert. denied, 459 U.S. 873 (1982); Hamm v. Board of Regents, 708 F.2d 647, 653 (11th Cir. 1983); Farshy v. Kagan, 585 F.2d 749 (5th Cir. 1978).

Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law. Model Instruction 12.3A provides the elements of retaliation and should be given. GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________ SOURCE: Mauter v. Hardy, Corp., 825 F.2d 1554, 1558 (11th Cir. 1987); Gunter v. CocaCola Co., 843 F.2d 482, 484 (11th Cir. 1988). Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law and is vague and ambiguous as to "isolated abstract comments." Defendant can cite to no model instruction or Ninth Circuit case law to support such an instruction. Isolated abstract comments are not sufficient to raise even a prima facie inference of retaliation and alleged retaliating remarks or statements attributed to persons other than the ultimate decisionmaker are too attenuated to be given any weight. DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 5 ISOLATED OR ABSTRACT COMMENTS

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 6 PERMISSIBLE DECISIONS BY EMPLOYERS The employer may base employment decisions regarding plaintiff on a good reason, a bad reason, a reason based on erroneous facts or no reason at all, as long as the reason was not because plaintiff is engaged in protected activity.

Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1983); Moore v. Sears, Roebuck & Co., 683 F.2d 1321 (11th Cir. 1982).

Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law and is vague and ambiguous as to "good reason, bad reason, a reason based on erroneous facts or no reason at all." For example, an employer's decision that is based on a party's race may violate Title VII without the existence of protected activity. The instruction is misleading and prejudicial. Defendant can cite to no model instruction or Ninth Circuit case law to support such an instruction. This instruction should not be given.

GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 7 BUSINESS JUDGMENT RULE The employer's stated reason does not have to be a reason that you, as jurors, would act on or approve. Employers are permitted to make business decisions without a court or a jury's interference -- so long as those decisions are not made because an employee engaged in protected activity.

Green v. Maricopa County Comm. College School District, 265 F. Supp 2d 1110, 1128 (D. Ariz 2003); Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1063 (9th cir. 2002). Plaintiff's Objection: Plaintiff objects to this instruction because it is not a Model Instruction in the Ninth Circuit and no Ninth Circuit case has recommended a business judgment instruction. The instruction unfairly emphasizes one of the elements in the case to benefit Defendant, i.e., that Defendant acted for a nondiscriminatory or nonretaliatory reason which is accurately covered in prior instructions. Kelly v. Airborne Freight, 140 F.3d 335, 350-51 (1st Cir. 1998), cert. denied, 525 U.S. 992 (1998) (employer not entitled to "business judgment instruction", where the other instructions did not permit or suggest that the jury could predicate a finding of age discrimination on their disagreement with the employer's business judgment); Cooper v. Paychex, 960 F.Supp. 966, 971 (E.D. Va. 1997), aff'd, 163 F.3d 598 (4th Cir. 1998)(business judgment instruction inappropriate absent evidence which presents a danger the jury will decide the case on some improper basis.)

GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIVEN ______________________ REFUSED ____________________ GIVEN AS MODIFIED _________ WITHDRAWN ________________ Plaintiff's Objection: Plaintiff objects to this instruction because it misstates the law and unfairly urges the jury to negate its evaluation of the evidence in favor of a position that benefits Defendant. SOURCE: Fuentes v. Perski, 32 F.3d 759, 766 (3d Cir. 1994). NOTES MAINTAINED BY EMPLOYERS The fact that an employer possesses and/or maintains notes of conversation or meetings held with an employee, or documents regarding an employee's work performance, employment history and other employment related matters does not support an inference of harassment, discrimination or retaliation by the employer. DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 8

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 9 PRETEXT You must consider any legitimate, non-discriminatory reason or explanation stated by the defendant for its decision to take adverse employment against plaintiff after he engaged in protected activity. In order to be legitimate, the reason must have been present at the time the defendant decided to take adverse action against plaintiff. You may not consider any reasons that the defendant may have discovered after the adverse employment action was taken. If you determine the defendant has stated such a reason, plaintiff must prove by a preponderance of the evidence using specific, substantial evidence that the excuse for retaliating against plaintiff was because of the protected activity. Plaintiff can establish that the defendant's specific/substantial reason was actually an excuse for its discriminatory actions by offering evidence of discrimination, such as statements showing retaliatory motivation for the defendants' treatment of plaintiff. Plaintiff may also prove pretext by offering indirect evidence tending to show that the defendant's proffered reason for its retaliatory actions is not credible or is false. If you find that Plaintiff has proven with specific, substantial evidence that the stated reason for taking the employment adverse action is false or not legitimate, you may infer more than likely that the reason was retaliation.

Authority: Adapted from Model Jury Instructions, Employment Litigation (ABA Section of Litigation 1994) 1.03 (2)(a); Godwin v. Hunt Wessson; 150 F.3d 1217, 122022(9th Cir. 1998); Payne v. Northwest Corp., 113 F3d 1079, 1080 (9th Cir. 1997) (shifting pretext may be used to disprove defendant's proffered reasons); Reeves v. Sanderson Plumbing, Inc., 120 S. Ct. 2109 (2000) (plaintiff may show pretext by proving defendant's proffered reasons are false): St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993)(plaintiff need not offer additional evidence outside her prima facie case to prove discrimination). Plaintiff's Objection: Plaintiff objects to this instruction because it misstates Plaintiff's burden of proof for pretext. Plaintiff p