Free Proposed Jury Instructions - District Court of Delaware - Delaware

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CHARGE TO THE JURY

LINDA J. BLOZIS v. MELLON TRUST OF DELAWARE, NATIONAL ASSOCIATION; MELLON BANK, NATIONAL ASSOCIATION (formerly, MELLON BANK (DE) NATIONAL ASSOCIATION), and MELLON FINANCIAL CORPORATION Civil Action No. 05-891 SLR

ROBINSON, C.J. JUNE 18, 2007

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TABLE OF CONTENTS INSTRUCTION NO. 1. [PLAINTIFF'S PROPOSED] INTRODUCTION [PLAINTIFFS' PROPOSED] ............................................................... 1 INSTRUCTION NO. 1 [DEFENDANTS' PROPOSED] GENERAL INTRODUCTION -- PROVINCE OF THE COURT AND JURY .................... 2 INSTRUCTION NO. 2 [PLAINTIFF'S' PROPOSED] PROVINCE OF THE COURT AND JURY...................................................................... 3 INSTRUCTION NO. 3 [PLAINTIFF'S PROPOSED] THE PARTIES AND THEIR CONTENTIONS ................................................................ 4 INSTRUCTION NO. 4 [DEFENDANTS' PROPOSED] ALL PERSONS EQUAL BEFORE THE LAW -- ORGANIZATIONS............................... 5 INSTRUCTION NO. 5 [DEFENDANTS' PROPOSED] STATUS OF DEFENDANT DOES NOT IMPLY LIABILITY............................................ 6 INSTRUCTION NO. 6 [PLAINTIFF'S PROPOSED] EVIDENCE .................................................................................................. 7 INSTRUCTION NO. 7 [DEFENDANTS' PROPOSED] PREPONDERANCE OF THE EVIDENCE ..................................................................... 9 INSTRUCTION NO. 8 [PLAINTIFF'S PROPOSED] DIRECT AND CIRCUMSTANTIAL EVIDENCE............................................................ 10 INSTRUCTION NO. 8 [DEFENDANTS' PROPOSED] EVIDENCE - DIRECT - INDIRECT OR CIRCUMSTANTIAL........................................ 12 INSTRUCTION NO. 9 [DEFENDANTS' PROPOSED] SPECULATION IS NOT CIRCUMSTANTIAL EVIDENCE ........................................... 13 INSTRUCTION NO. 10 [DEFENDANTS' PROPOSED] QUESTIONS NOT EVIDENCE ..................................................................................... 14 INSTRUCTION NO. 11 [DEFENDANTS' PROPOSED] COURT'S COMMENTS NOT EVIDENCE.................................................................... 15 INSTRUCTION NO. 12 [DEFENDANTS' PROPOSED] LIMITED ADMISSION OF EVIDENCE - PURPOSE .................................................... 16 INSTRUCTION NO. 12 [PLAINTIFF'S PROPOSED] OBJECTIONS - RULINGS ON EVIDENCE.................................................................. 17 INSTRUCTION NO. 12 [DEFENDANTS' PROPOSED] OBJECTIONS ................................................................................................ 18

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INSTRUCTION NO. 13 [PLAINTIFF'S PROPOSED] CREDIBILITY OF WITNESSES .................................................................................... 19 INSTRUCTION NO. 14 [DEFENDANT'S PROPOSED] EVIDENCE IN THE CASE -- STIPULATIONS -- JUDICIAL NOTICE -- INFERENCES PERMITTED ................................................................................................ 21 INSTRUCTION NO. 15 [PLAINTIFF'S PROPOSED] NUMBER OF WITNESSES AND EVIDENCE.............................................................. 22 INSTRUCTION NO. 16 [PLAINTIFF'S PROPOSED] EXPERT WITNESSES ................................................................................................ 23 INSTRUCTION NO. 16 [DEFENDANTS' PROPOSED] EXPERT TESTIMONY ................................................................................................ 24 INSTRUCTION NO. 17 [DEFENDANTS' PROPOSED] WEIGHING CONFLICTING EXPERT TESTIMONY ..................................................... 25 INSTRUCTION NO. 18 [PLAINTIFF'S PROPOSED] DEPOSITION OF PRIOR TESTIMONY ........................................................................ 26 [INSTRUCTION NO. 19 [PLAINTIFF'S PROPOSED] EVIDENCE - CHARTS AND SUMMARIES................................................................... 27 INSTRUCTION NO. 19 [DEFENDANTS' PROPOSED] CHARTS AND SUMMARIES ........................................................................................ 28 INSTRUCTION NO. 20 [PLAINTIFF'S PROPOSED] VERDICT BASED ON EVIDENCE................................................................................ 29 INSTRUCTION NO. 21 [DEFENDANTS' PROPOSED] OPENING AND CLOSING STATEMENTS ................................................................... 30 INSTRUCTION NO. 22 [DEFENDANTS' PROPOSED] CREDIBILITY OF WITNESSES -- DISCREPANCIES IN TESTIMONY ........................ 31 INSTRUCTION NO. 23 PLAINTIFF AS WITNESS ....................................................... 32 INSTRUCTION NO. 24 [DEFENDANTS' PROPOSED] PLAINTIFF'S CLAIM THAT MELLON TRUST OF DELAWARE, NATIONAL ASSOCIATION, MELLON BANK, N.A. AND MELLON FINANCIAL CORPORATION ARE A SINGLE EMPLOYER ........................................................................................ 33 INSTRUCTION NO. 25 [DEFENDANTS' PROPOSED] PLAINTIFF'S SPECIFIC FEDERAL CAUSES OF ACTION .......................................... 36 INSTRUCTION NO. 26 [DEFENDANTS' PROPOSED] EMPLOYEE CAN ONLY SUE FOR UNLAWFUL CONDUCT....................................... 38

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INSTRUCTION NO. 27 [PLAINTIFF'S PROPOSED] BURDEN OF PROOF ................................................................................................ 39 INSTRUCTION NO. 28 [PLAINTIFF'S PROPOSED] PROTECTED ACTIVITY AND RETALIATION UNDER THE ADEA.............................. 41 INSTRUCTION NO. 29 [PLAINTIFF'S PROPOSED] ESSENTIAL ELEMENTS OF PLAINTIFF'S RETALIATION CLAIM -INDIRECT EVIDENCE ................................................................................................ 42 INSTRUCTION NO. 30 [DEFENDANT'S PROPOSED] ADEA RETALIATION - ELEMENTS.............................................................................. 45 INSTRUCTION NO. 31 [DEFENDANT'S PROPOSED] RETALIATION: PROTECTED ACTIVITY...................................................................... 47 INSTRUCTION NO. 32 [DEFENDANT'S PROPOSED] RETALIATION: CAUSAL CONNECTION .................................................................... 48 INSTRUCTION NO. 33 [DEFENDANT'S PROPOSED] RETALIATION-CAUSAL CONNECTION ...................................................................... 49 A. TEMPORAL PROXIMITY ALONE IS GENERALLY INSUFFICIENT .............. 49 B. ABSENCE OF TEMPORAL PROXIMITY CREATES MORE STRINGENT BURDEN ................................................................................................................... 49 INSTRUCTION NO. 35 [DEFENDANT'S PROPOSED] TIMING OF ANY COMPLAINT MADE .......................................................................... 51 INSTRUCTION NO. 36 [DEFENDANT'S PROPOSED] RETALIATION: DEFENDANTS' EXPLANATION......................................................... 52 INSTRUCTION NO. 37 [DEFENDANT'S PROPOSED] RETALIATION: PRETEXT DEFINED........................................................................... 53 INSTRUCTION NO. 38 [DEFENDANT'S PROPOSED] RETALIATION: DETERMINATIVE EFFECT................................................................ 54 INSTRUCTION NO. 39 [DEFENDANT'S PROPOSED] BURDEN IS NOT ON THE DEFENDANTS .................................................................. 55 INSTRUCTION NO. 40 [DEFENDANTS' PROPOSED] SINCERE BELIEF OF RETALIATION NOT ENOUGH ................................................. 56 INSTRUCTION NO. 41 [DEFENDANTS' PROPOSED] THE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) .................................... 57 INSTRUCTION NO. 42 [DEFENDANTS' PROPOSED] DISCRIMINATION: PLAINTIFF'S BURDEN TO PROVE PRETEXT............................ 59

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INSTRUCTION NO. 43 [PLAINTIFF'S PROPOSED] AGE DISCRIMINATORY DISCHARGE IN VIOLATION OF THE ADEA (CIRCUMSTANTIAL EVIDENCE PARADIGM) ............................................................. 60 INSTRUCTION NO. 44 [DEFENDANTS' PROPOSED] DISCRIMINATION: DEFENDANTS' EXPLANATION................................................... 61 INSTRUCTION NO. 45 [PLAINTIFF'S PROPOSED] AGE DISCRIMINATION IN TERMS AND CONDITIONS OF EMPLOYMENT IN VIOLATION OF THE ADEA (CIRCUMSTANTIAL EVIDENCE PARADIGM) ................ 64 INSTRUCTION NO. 46 [PLAINTIFF'S PROPOSED] SEX DISCRIMINATION IN TERMS AND CONDITIONS OF EMPLOYMENT IN VIOLATION OF TITLE VII (CIRCUMSTANTIAL EVIDENCE PARADIGM) ................... 67 INSTRUCTION NO. 47 [DEFENDANTS' PROPOSED] TITLE VII ­ SEX DISCRIMINATION ............................................................................. 70 INSTRUCTION NO. 48 [DEFENDANT'S PROPOSED] DISCRIMINATION: DEFENDANTS' EXPLANATION................................................... 71 INSTRUCTION NO. 49 DISCRIMINATION: PLAINTIFF'S BURDEN TO PROVE PRETEXT ................................................................................................ 72 INSTRUCTION NO. 50 [DEFENDANT'S PROPOSED] DISCRIMINATION: PRETEXT DEFINED .................................................................... 73 INSTRUCTION NO. 51 [DEFENDANTS' PROPOSAL] SINCERE BELIEF OF DISCRIMINATION NOT ENOUGH ........................................... 74 INSTRUCTION NO. 52 [DEFENDANT'S PROPOSED] NOT PROPER TO SECOND-GUESS EMPLOYER'S BUSINESS DECISIONS ........... 75 INSTRUCTION NO. 53 [DEFENDANTS' PROPOSED] DISCRIMINATION GENERALLY -- NO RIGHT TO SPECIAL TREATMENT ............... 76 INSTRUCTION NO. 54 [PLAINTIFFS' PROPOSED] INJURIES - CAUSATION.............................................................................................. 77 INSTRUCTION NO. 55 [PLAINTIFFS' PROPOSED] DAMAGES GENERALLY.............................................................................................. 78 INSTRUCTION NO. 57 [PLAINTIFF'S PROPOSED] EFFECT OF INSTRUCTIONS AS TO DAMAGES ........................................................ 80 INSTRUCTION NO. 57 [DEFENDANTS' PROPOSED] EFFECT OF INSTRUCTION AS TO DAMAGES .......................................................... 81 INSTRUCTION NO. 58 [DEFENDANTS' PROPOSED] SYMPATHY ................................................................................................ 82 -v-

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INSTRUCTION NO. 59 [PLAINTIFFS' PROPOSED] ECONOMIC DAMAGES - BACKPAY............................................................................ 83 INSTRUCTION NO. 60 [DEFENDANTS' PROPOSED] BACK PAY ................................................................................................ 84 INSTRUCTION NO. 61 [PLAINTIFF'S PROPOSED] LOST PENSION AND 401(K) BENEFITS ..................................................................... 86 INSTRUCTION NO. 62 [PLAINTIFF'S PROPOSED] MITIGATION OF DAMAGES ........................................................................................ 87 INSTRUCTION NO. 63 [DEFENDANTS' PROPOSED] MITIGATION ................................................................................................ 89 INSTRUCTION NO. 64 [DEFENDANTS' PROPOSED] COMPENSATORY DAMAGES ..................................................................................... 90 INSTRUCTION NO. 65 [PLAINTIFF'S PROPOSED] DAMAGES FOR MENTAL SUFFERING....................................................................... 90 INSTRUCTION NO. 66 [PLAINTIFF'S PROPOSED] DAMAGES FOR INJURY TO REPUTATION................................................................ 93 INTERROGATORY NO. 67 [PLAINTIFFS' PROPOSED] DAMAGES FOR HUMILIATION.................................................................................... 94 INSTRUCTION NO. 68 NO RIGHT TO RECOVER DAMAGES FOR EVERY HUMAN WRONG ................................................................................................ 95 INTERROGATORY NO. 69 [PLAINTIFFS' PROPOSED] WILLFULNESS UNDER THE ADEA............................................................................. 96 INTERROGATORY NO. 70 [PLAINTIFFS' PROPOSED] LIQUIDATED DAMAGES UNDER THE ADEA ............................................................. 97 INTERROGATORY NO. 71 [DEFENDANTS' PROPOSED] LIQUIDATED DAMAGES UNDER THE ADEA ............................................................. 98 INTERROGATORY NO. 72 PUNITIVE DAMAGES INTERROGATORY NO. 73 PUNITIVE DAMAGES [PLAINTIFF'S PROPOSED] ....................................................................................... 99 [DEFENDANTS' PROPOSED] ..................................................................................... 101

INSTRUCTION NO. 74 [DEFENDANTS' PROPOSED] PUNITIVE DAMAGES -- CLEAR AND CONVINCING EVIDENCE ............................. 103 INSTRUCTION NO. 75 [DEFENDANTS' PROPOSED] AMOUNT OF PUNITIVE DAMAGES .......................................................................... 104 - vi -

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INSTRUCTION NO. 76 [DEFENDANTS' PROPOSED] LIMITATIONS ON PUNITIVE DAMAGE AWARDS..................................................... 105 INSTRUCTION NO. 77 [DEFENDANTS' PROPOSED] THE JURY SHALL NOT AWARD ATTORNEY'S FEES OR COSTS .......................... 106 INSTRUCTION NO. 78 [DEFENDANTS' PROPOSED] ELECTION OF FOREPERSON -- INTERROGATORIES TO THE JURY ................... 107 INSTRUCTION NO. 79 [DEFENDANTS' PROPOSED] INTERROGATORIES TO THE JURY FORM -- JURY'S RESPONSIBILITY............... 108 INSTRUCTION NO. 80 [DEFENDANTS' PROPOSED] COMMUNICATIONS BETWEEN COURT AND JURY DURING JURY'S DELIBERATIONS .............................................................................................. 109 INSTRUCTION NO. 81 [PLAINTIFFS' PROPOSED] DELIBERATION AND VERDICT................................................................................. 110 INSTRUCTION NO. 82 [PLAINTIFFS' PROPOSED] DUTY TO DELIBERATE ............................................................................................. 111 INTERROGATORY NO. 83 UNANIMOUS VERDICT [PLAINTIFFS' PROPOSED] ..................................................................................... 113

INSTRUCTION NO. 84 [PLAINTIFFS' PROPOSED] COURT HAS NO OPINION......................................................................................... 114

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INSTRUCTION NO. 1.

[PLAINTIFF'S PROPOSED]

INTRODUCTION [PLAINTIFFS' PROPOSED] Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case. I will start by explaining your duties and the general rules that apply in every civil case. Then I will explain some rules that you must use in evaluating particular testimony and evidence. I will explain the positions of the parties and the law you will apply in this case. Finally, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return. Please listen very carefully to everything I say. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 1 [DEFENDANTS' PROPOSED] General Introduction -- Province of the Court and Jury MEMBERS OF THE JURY: Now that you have heard the evidence and the arguments, it is my duty to give you the instructions of the Court on the law that you must apply to this case. As jurors, it is your duty to follow the law as I state it to you, and to apply that law to the facts as you find them from the evidence in the case. Do not single out one instruction alone as stating the law, but consider my instructions as a whole. Also, do not be concerned with whether you agree or disagree with the law as I state it. Nothing in these instructions is an indication that I have any opinion about the facts of the case, or what that opinion is. It is your job, not my job, to determine the facts. You must perform your duties as jurors without bias or prejudice as to either party. The law does not permit sympathy, prejudice or public opinion to affect your decisions. The law requires, and both parties expect, that you will carefully and impartially consider all of the evidence, follow the law as I explain it to you, and reach a just verdict, regardless of the consequences.1

Given Modified Refused

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Adapted from Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions, Vol. 3 § 71.01 (1987) (hereinafter "Federal Jury Practice and Instructions"). 2

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INSTRUCTION NO. 2 [PLAINTIFF'S' PROPOSED] PROVINCE OF THE COURT AND JURY Members of the Jury, in a case such as this, it is important that you bear in mind the distinction between your duties and my duties. You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. You are the sole judges of the facts. It is your judgment, and your judgment alone, to determine what the facts are, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way. Your second duty is to take the law that I give you, apply it to the facts, and decide if, by a preponderance of the evidence, the defendants are liable. Now, as far as my duty is concerned, I have the duty of advising you about the law that you should apply to the facts as you find them. You are not to consider whether the principles I state to you are sound or whether they accord with your own views about policy. You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. You must accept them despite how you feel about their wisdom. This includes the

instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole. Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 3 [PLAINTIFF'S PROPOSED] THE PARTIES AND THEIR CONTENTIONS The parties in this case are the plaintiff, Linda J. Blozis, and the defendants, Mellon Trust of Delaware, National Association; Mellon Bank, National Association; and Mellon Financial Corporation. Plaintiff contends she was issued a "final@ written warning and subsequently discharged from her job as Portfolio Administrator at the age of 57, in retaliation for filing with human resources an age discrimination complaint against her team leader and because of her age. Additionally, Plaintiff claims that she was

discriminated against in the terms and conditions of her employment because of her age due to her team leader=s preferential treatment of Plaintiff=s 23 year old peer in granting her training, bonuses, and vacation requests. Finally, Plaintiff claims that she was discriminated against in the terms and conditions of her employment because of her sex due to her team leader=s preferential treatment of his one, lone male portfolio administrator who was not required to perform as much work as Plaintiff or other female peers, nor disciplined or discharged for his performance problems. The defendants deny all claims raised against them. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 4 [DEFENDANTS' PROPOSED] All Persons Equal Before the Law -- Organizations Consider and decide this case as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations of life. All persons, including corporations and companies, are equal before the law, and you must treat all parties as equals here. Weigh and consider this case without regard to sympathy, prejudice or passion for or against any party. In reaching your verdict, consider nothing other than the evidence presented to you at trial.2

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, Vol. 3 § 71.04. 5

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INSTRUCTION NO. 5 [DEFENDANTS' PROPOSED] Status of Defendant Does Not Imply Liability Simply suing a defendant does not mean that the defendant is liable. Anyone can file a lawsuit or a discrimination claim. The fact that Plaintiff filed this lawsuit does not mean that Mellon did anything to Plaintiff that is prohibited by law.3

Given Modified Refused

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Adapted from Federal Jury Practice and Instructions, Vol. 3 § 71.10. 6

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INSTRUCTION NO. 6 [PLAINTIFF'S PROPOSED] EVIDENCE The evidence in this case is the sworn testimony of the witnesses, the exhibits received in evidence, stipulations, and judicially noticed facts. By contrast, the question of a lawyer is not to be considered by you as evidence. It is the witnesses= answers that are evidence, not the questions. At times, a lawyer on cross-examination may have incorporated into a question a statement which assumed certain facts to be true, and asked the witness if the statement was true. If the witness denied the truth of a statement, and if there is no direct evidence in the record proving that assumed fact to be true, then you may not consider it to be true simply because it was contained in the lawyer=s question. Testimony that has been stricken or excluded is not evidence and may not be considered by you in rendering your verdict. Also, if certain testimony was received for a limited purpose - such as for the purpose of assessing a witness=s credibility - you must follow the limiting instructions I have given. Arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their

summations is intended to help you understand the evidence to reach your verdict. However, if your recollection of the facts differs from the lawyers= statements, it is your recollection which controls. Exhibits which have been marked for identification may not be considered by you as evidence until and unless they have been received in evidence by the court. To constitute evidence, exhibits must be received in evidence. Exhibits marked for identification but not admitted are not evidence, nor

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are materials brought forth only to refresh a witness=s recollection. Finally, statements which I may have made concerning the quality of the evidence do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.

Given Modified Refused

__________________________ __________________________ __________________________

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INSTRUCTION NO. 7 [DEFENDANTS' PROPOSED] Preponderance of the Evidence The burden is on Plaintiff in this case to prove every essential element of her claims by a preponderance of the evidence. If Plaintiff fails to establish, by a

preponderance of the evidence, any single element of any of her claims, you must find for Mellon as to that claim. To "establish by a preponderance of the evidence" means to prove that something is more likely than not. Put another way, a preponderance of the evidence means evidence which, when considered and compared to other evidence, is more convincing, causing you to conclude that what is sought to be proved is more likely true than not true. This means that if the evidence favors the Defendant or, if it is evenly balanced, you must return a verdict in favor of Defendant. To determine whether any fact in issue has been proven by a preponderance of the evidence, unless otherwise instructed, you may consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.4

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, Vol. 3 § 72.01. 9

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INSTRUCTION NO. 8 [PLAINTIFF'S PROPOSED] DIRECT AND CIRCUMSTANTIAL EVIDENCE Now, some of you may have heard the terms Adirect evidence@ and Acircumstantial evidence.@ Direct evidence is simply evidence like the testimony of an eyewitness who observed firsthand what occurred and which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, it would be direct evidence that it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. It is the inference of one fact from another fact that has been proved. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. You are instructed that circumstantial evidence, as I have just defined it, is no different in its effect from direct evidence. Both forms of evidence are equally valid and may form the basis for your determination. It is your job to decide how much weight to give the direct and circumstantial evidence. You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain

evidence reasonably leads to a conclusion, you are free to reach that conclusion.

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The law makes no distinction between the weight that you should give to either one. Nor does it say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

Given Modified Refused

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INSTRUCTION NO. 8 [DEFENDANTS' PROPOSED] Evidence - Direct - Indirect Or Circumstantial There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence -- such as the testimony of an eye witness. The other is indirect or circumstantial evidence -- the proof of a chain of circumstances pointing to the existence or non-existence of certain facts. As a general rule, the law makes no distinction between direct or circumstantial evidence, but simply requires that you find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial.5

Given

__________________________

Modified __________________________ Refused __________________________

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Adapted from Federal Jury Practice and Instructions, Vol. 3 § 72.03. 12

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INSTRUCTION NO. 9 [DEFENDANTS' PROPOSED] Speculation Is Not Circumstantial Evidence In her attempt to prove her claim, Plaintiff may use either direct or circumstantial evidence. It is important for you to remember that even circumstantial evidence must consist of evidence in this case. Speculation is not circumstantial evidence. A sincere belief is not circumstantial evidence. Speculation, opinions and beliefs do not constitute evidence in this case. Plaintiff must produce more than that. Whether direct or circumstantial, Plaintiff must produce specific, substantial evidence in support of her claim. Plaintiff cannot rely on mere speculation as to the motives behind Defendant's actions. If you find that, in trying to satisfy any of her burdens of proof as I am instructing you, Plaintiff relied on her speculation, on her opinion, or on her belief, instead of on factual evidence, than you must find that she failed to satisfy any such burden.6

Given Modified Refused

__________________________ __________________________ __________________________

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Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 91981); Tate v. Weyerhauser Co., 723 F.2d 598, 603, 605 (8th Cir. 1983); Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1984). 13

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INSTRUCTION NO. 10 [DEFENDANTS' PROPOSED] Questions Not Evidence A lawyer's questions, even when they contain a statement of fact are not evidence. Only if the assertion was supported by evidence in the case may you

consider it true.7

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, § 71.12. 14

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INSTRUCTION NO. 11 [DEFENDANTS' PROPOSED] Court's Comments Not Evidence As a judge, I am permitted to comment to you on the evidence in the case. My comments are only my opinion as to the facts and you may disregard them entirely, because you, as jurors, are the sole judges of the facts in this case. If my questions, rulings, statements or actions during this trial had a tendency, in your minds, to indicate any inclination for or against Plaintiff or the Defendant, you must disregard such questions, rulings, statements and actions, and you must reach a decision in the case only from the evidence presented in accordance with my instruction to you on the governing law.8

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, § 71.11. 15

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INSTRUCTION NO. 12 [DEFENDANTS' PROPOSED] Limited Admission of Evidence - Purpose In certain instances, evidence may be admitted only for a specific purpose, and not generally for all purposes. Whenever evidence was admitted for a limited purpose, consider it only for that purpose, and no other purpose.9

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, § 11.09. 16

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INSTRUCTION NO. 12 [PLAINTIFF'S PROPOSED] OBJECTIONS - RULINGS ON EVIDENCE From time to time during the trial, I have been called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. You should not show prejudice against an attorney or his client because the attorney has made objections. You should not infer or conclude from any ruling or other comment I have made that I have any opinions on the merits of the case favoring one side or the other. And if I sustained an objection to a question that went unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

Given Modified Refused

__________________________ __________________________ __________________________

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INSTRUCTION NO. 12 [DEFENDANTS' PROPOSED] Objections It is the duty of the attorneys on each side of a case to object when the other side offers testimony of other evidence which may be inadmissible. During the trial, there were objections to questions or to the introduction of evidence, and motions concerning applicable law. Sometimes arguments on these

objections occurred in your presence, and sometimes they occurred out of your presence. I based all of my rulings upon such objections or motions solely upon the law as I interpreted and applied it. Allowing the introduction of testimony or other evidence over an attorney's objection has nothing to do with my opinion of the weight or effect of such evidence, unless I say otherwise. You are the sole judge of the credibility of all witnesses and the weight and effect of all evidence. When I sustain an objection to a question addressed to a witness, you must disregard the question and the answer given to it entirely, and if not answered, you must not guess at what the witness would have said if permitted to answer.10

Given Modified Refused

__________________________ __________________________ __________________________

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Adapted from Federal Jury Practice and Instructions, § 71.08. 18

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INSTRUCTION NO. 13 [PLAINTIFF'S PROPOSED] CREDIBILITY OF WITNESSES As jurors and the triers of fact, it is your sole and exclusive responsibility to pass upon the credibility of the witnesses and the weight of the evidence. By credibility, I mean the believability of every witness. In performing this function, you should

consider any bias or prejudice shown by the witness, their candor, that is, their straightforwardness, their degree of intelligence, their demeanor, what they may have to gain from this litigation, whether they were certain or uncertain about their testimony, whether the witness has on a prior occasion said something different from what the witness says now, the reason that witness gives, if the witness gives a reason, for the difference, any conscious, false statement made by the witness, the overall circumstances surrounding the testimony given by each witness in the context of this case as well as all other facts and circumstances that are in evidence which tend to affect the credibility of each witness. Simply, you should ask yourself whether there was evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at another time the witness said or did something, or failed to say or do something that was different from the testimony he gave at the trial. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness has made a

misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail.

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If you find that a person has knowingly and willfully given false testimony concerning a material fact in this case, about which the witness could not have been mistaken, then you may be justified in rejecting all the testimony of that person in any respect or give it such credibility as you may think it deserves. obviously incredible may be disregarded completely. This does not mean that if you find that a person has willfully given false testimony as to a material fact, you must reject all of that person's testimony, but rather that you may infer from that fact that the balance of the person's testimony, which is not corroborated by other evidence, may likewise be false, and therefore, is entitled to little or no weight. If you find the testimony in conflict, then it is your duty to reconcile it, if you reasonably can. If you cannot do this, then it becomes your duty to give regard to that portion of the testimony that, in your opinion, is most worth credit. In so doing, you should consider the appearance of the witnesses as they testified before you, their fairness in giving their testimony, and you should consider any bias or interest that they may have in the outcome of this proceeding, and their opportunities of knowing or learning the facts about which they have testified. Given Modified Refused __________________________ __________________________ __________________________ Testimony that is

20

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INSTRUCTION NO. 14 [DEFENDANT'S PROPOSED] Evidence in the Case -- Stipulations -Judicial Notice -- Inferences Permitted

Statements and arguments by the attorneys are not evidence.

When,

however, the attorneys on both sides stipulate or agree concerning the existence of a fact, unless I have otherwise instructed you, you must accept the stipulation, and regard that fact as true. In addition, to the extent that I took judicial notice of facts or events that were obvious or beyond reasonable dispute, you must take my declaration of fact as evidence, and regard as true that fact or event. Unless otherwise instructed, the evidence in the case always consists of the sworn testimony of the witnesses, regardless of which side called them; all exhibits received in evidence, regardless of which side produced them; all facts that may have been admitted or stipulated; and all facts and events that may have been judicially noticed.11

Given Modified Refused

__________________________ __________________________ __________________________

11

Adapted from Federal Jury Practice and Instructions, Vol. 3 § 71.08. 21

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INSTRUCTION NO. 15 [PLAINTIFF'S PROPOSED] Number of Witnesses and Evidence One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference. Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers. The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters at issue in this trial. Nor does the law require any party to produce as exhibits all paper, documents, or objects mentioned in the evidence of the case. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 16 [PLAINTIFF'S PROPOSED] Expert Witnesses There have been expert witnesses brought to testify before you. Expert testimony is the testimony of persons who are skilled in some art, science, profession or business, which skill or knowledge is not common and which has come to such expert by reason of special study or experience in such art, science, profession or business. The value of such testimony depends on the learning and skill of the expert and varies with the circumstances of each case. The jury should take into consideration the

expert=s means of knowledge and the reasons he or she has assigned for the opinions that he has given and give credence to his testimony as the jury may find the expert=s qualifications sufficient and his reasons satisfactory. If you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely. The testimony of an expert is to be considered like any other testimony and is to be tried by the same tests and should receive just as much weight and credit as the jury may deem it to be entitled in connection with all the evidence of the case.

Given Modified Refused

__________________________ __________________________ __________________________

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INSTRUCTION NO. 16 [DEFENDANTS' PROPOSED] Expert Testimony A witness who has special knowledge, skill, experience, training or education in a particular science, profession or occupation may give his opinion as an expert as to any matter in which he is skilled. In determining the weight to be given to his opinion, you should consider the qualifications and reliability of the expert and the reasons given for his opinion. You are not bound by an expert's opinion merely

because he is an expert; you may accept or reject it, as in the case of other witnesses. Give it the weight, if any, to which you deem it entitled.12

Given Modified Refused

__________________________ __________________________ __________________________

12

Adapted from Federal Jury Practice and Instructions, § 72.07. 24

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INSTRUCTION NO. 17 [DEFENDANTS' PROPOSED] Weighing Conflicting Expert Testimony In resolving any conflict that may exist in the testimony of expert witnesses, you are entitled to weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and reliability of the expert and other matters upon which his opinion was based.13

Given Modified Refused

__________________________ __________________________ __________________________

13

State v. Harris, 141 N.J. 525, 662 A.2d, 333, 354 (1995); Mort v. Besser Co., 287 N.J. Super. 423, 671 A.2d 189, 193 (A.D. 1996). 25

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INSTRUCTION NO. 18 [PLAINTIFF'S PROPOSED] Deposition of Prior Testimony During the trial of this case, certain testimony was presented to you by way of deposition or prior testimony consisting of sworn recorded statements or answers to questions asked of a witness in advance of trial by one or more of the lawyers for the parties to the case. The testimony of a witness may be presented in writing or on video when that witness cannot be present to testify in court or who is a party or was an employee or agent of a party when he or she testified under oath. Such testimony is entitled to the same consideration and is to be judged as to credibility and weight and otherwise as if the witness had been present and had testified from the witness stand. Given Modified Refused __________________________ __________________________ __________________________

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[INSTRUCTION NO. 19 [PLAINTIFF'S PROPOSED] EVIDENCE - CHARTS AND SUMMARIES Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the records in the case. These charts or summaries are used for convenience. They are not, in and of themselves, evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 19 [DEFENDANTS' PROPOSED] Charts and Summaries Voluminous writings, recordings or photographs which cannot

conveniently be examined in court may have been presented in the form of charts and summaries. These charts and summaries can be considered by you like any other form of evidence to the extent that you find them accurate as shown by the evidence.14

Given Modified Refused

__________________________ __________________________ __________________________

14

Adapted from Fed. R. Evid. 1006. 28

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INSTRUCTION NO. 20 [PLAINTIFF'S PROPOSED] Verdict Based on Evidence I instruct you that your verdict must be based entirely and exclusively on the evidence in this case, and that you cannot be governed by passion, prejudice, or any motive whatever except a fair and impartial consideration of the evidence. Further, you must not allow sympathy which you might have or entertain for any of the parties to influence you in arriving at your decision. The Court does not charge you not to

sympathize with the plaintiff or the defendant, because it is only natural and human to sympathize with persons involved in litigation. But the Court does charge you not to allow that sympathy to enter into the consideration of the case or to influence your verdict.

Given Modified Refused

__________________________ __________________________ __________________________

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INSTRUCTION NO. 21 [DEFENDANTS' PROPOSED] Opening and Closing Statements You have heard the attorneys address you in both opening and closing statements. The attorneys pointed out to you what they believe the evidence has

shown, what inferences they urged you to draw from the evidence, and what conclusions they urged you to reach as your verdict. What the attorneys said in

summation, like what they said in their opening statements, or in their objections or motions during the trial, is not evidence. Closing statements are made to help you understand each side's arguments based on the evidence introduced. They are not facts by themselves. They become facts only if supported, in your view, by sufficient evidence in the case.15

Given

__________________________

Modified __________________________ Refused __________________________

15

Adapted from Federal Jury Practice and Instructions, Vol. 3 § 70.02. 30

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INSTRUCTION NO. 22 [DEFENDANTS' PROPOSED] Credibility of Witnesses -- Discrepancies in Testimony As jurors, you are the sole judges of the credibility of the witnesses and the weight that their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence which contradicts the testimony given. Carefully consider all of the testimony given, the circumstances under which each witness testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's intelligence, motive, state of mind, and demeanor or manner while on the stand. Consider the witness's ability to observe the matters covered by his or her testimony, and whether he or she impresses you as having an accurate recollection of these matters. As to each witness, consider whether and to what extent the witness has something to gain or lose by his or her testimony and the extent to which, if at all, the testimony of each witness is either supported or contradicted by other evidence in the case. After making your own judgment, give the testimony of each witness such weight, if any, as you think it deserves. Put simply, you may accept or reject the

testimony of any witness in whole or in part.16

Given

__________________________

Modified __________________________ Refused __________________________

INSTRUCTION NO. 23 [DEFENDANTS' PROPOSED] 16 Adapted from Federal Jury Practice and Instructions, Vol. 3 § 73.01. 31

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Plaintiff As Witness The Plaintiff in this action, Plaintiff, has testified before you. As the

Plaintiff, she has a vested interest in the outcome of this case because she is trying to recover for damages which she believes she has suffered. Keep this in mind, together with your observation of her as a witness in determining her credibility, the truthfulness of her testimony, and the weight, if any, you give to her testimony.17

Given

__________________________

Modified __________________________ Refused __________________________

17

Adapted from Federal Jury Practice and Instructions, § 73.04. 32

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INSTRUCTION NO. 24 [DEFENDANTS' PROPOSED] Plaintiff's Claim That Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation Are a Single Employer The Age Discrimination in Employment Act holds employers liable for violations of the Act. An entity is an "employer" under the ADEA if it is a "person engaged in industry affecting commerce who has twenty or more employees for each working day in the current or preceding calendar year." Similarly, Title VII holds employers liable for violations of the Act. An

entity is an "employer" under Title VII if it is "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar years." Therefore, in order to be liable under the ADEA, an employer must have at least 20 employees during the relevant time period and in order for an employer to be liable under Title VII, it must have 15 employees during the relevant time period. Mellon Trust of Delaware did not employ 15 employees during the relevant time period. It employed less. Plaintiff can only have ADEA claims and a Title VII claim, if Mellon Bank, N.A., Mellon Financial Corporation, and Mellon Trust of Delaware are single employers, such that all of their employees are added together to reach the 15 employee minimum. In order for Mellon Bank, N.A. and Mellon Financial Corporation to be liable in this case, Plaintiff must prove by a preponderance of the evidence that Mellon Bank, N.A. and Mellon Financial Corporation are her employers. If Mellon Bank, N.A. and Mellon Financial Corporation are not Plaintiff's employers, they cannot be held liable on any of Plaintiff's claims. Plaintiff must prove by a preponderance of the

evidence that Mellon Bank, N.A. and Mellon Financial Corporation should be considered 33

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her employers under a legal theory called, "single employer." That is, Plaintiff must prove that Mellon Bank, N.A. and Mellon Financial Corporation should be considered a single employer with Mellon Trust of Delaware. The relief sought by the Plaintiff is considered "extraordinary" relief by the law. A single employer relationship will exist only if Plaintiff proves that the three separate entities ­ Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation - are actually part of a single integrated enterprise. The mere existence of some relationship between the three companies will not necessarily make them a single employer for legal purposes. Having the term "Mellon" in their names will not make them a single

employer. For example, a parent-subsidiary relationship, without anything more, would not mean that a single employer relationship existed. In fact, there is a strong

presumption that a parent company is not the employer of its subsidiary's employees. In order to prove that Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation are actually a single employer, Plaintiff must prove by a preponderance of the evidence the existence of the following four factors: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership and financial controls. I will explain each of these factors in a minute. Significantly, the mere fact that Plaintiff can prove the existence of one or more of these factors does not satisfy her burden of proof. Rather, it is Plaintiff's burden to prove that, when viewing the totality of the circumstances, Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation must be considered a single employer. When examining each of the four factors, please be mindful that such relief can only be found in extraordinary circumstances.

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I will now provide you guidance in how to approach and make your determination as to each one of the four factors. 1. "Functional Integration of Operations" - First, there is no exclusive

list or single definition which applies in determining whether a functional integration of operations existed between Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation. Some examples to consider are whether Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation were in the same line of business; sold products to the same customers; had common bank accounts; filed joint tax returns; had common officers; and exercised oversight over the production, marketing, pricing, advertising of the other's business. 2. "Centrally Controlled Labor Relations" - Second, in order for Plaintiff

to meet her burden by a preponderance of the evidence, Plaintiff must prove that Mellon Bank, N.A. and Mellon Financial Corporation controlled the day to day employment decisions of Mellon Trust of Delaware and had the ability to hire and fire Plaintiff. 3. "Common Management" - Third, Plaintiff must prove by a

preponderance of the evidence there was common management between Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial Corporation. Indeed one common manager does not satisfy this prong; rather Plaintiff must prove by the preponderance of the evidence that Mellon Trust of Delaware's and Mellon Bank, N.A.'s and Mellon Financial Corporation's management was so entwined that Mellon Trust of Delaware's management lacked autonomy over its own business decisions and day-to-day operations. Without such proof, Plaintiff has failed to prove by a

preponderance of the evidence that there was common management between Mellon Trust of Delaware, National Association, Mellon Bank, N.A. and Mellon Financial

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"Common Ownerships or Financial Control" - Fourth, Plaintiff must

prove by a preponderance of the evidence that common ownership or financial control existed between Mellon Bank, N.A., Mellon Financial Corporation and Mellon Trust of Delaware. In order to establish that common ownership existed, Plaintiff must prove by a preponderance of the evidence that Mellon Bank, N.A., Mellon Financial Corporation and Mellon Trust of Delaware, N.A. shared the same owners. Now that you have been provided guidance on the single employer issue, you must weigh all of the evidence that has been presented and utilize the four factor test that has been provided to you in rendering a decision as to whether a single employer relationship existed between Mellon Trust of Delaware, Mellon Bank, N.A. and Mellon Financial Corporation. Plaintiff must have proven her case by a preponderance of the evidence in light of the extraordinary relief which she has sought in making a determination that a single employer relationship existed between Mellon Trust of Delaware, Mellon Bank, N.A. and Mellon Financial Corporation.18 Given Modified Refused __________________________ __________________________ __________________________ INSTRUCTION NO. 25 [DEFENDANTS' PROPOSED] Plaintiff's Specific Federal Causes Of Action

18

NLRB v. Browning Ferris Indus. of Pa., Inc., 691 F. 2d 1117, 1122 (3d Cir. 1982); Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 513 (3d Cir. 1996); Johnson v. Cook Composites & Polymers, Inc., No. 99-4916, 2000 WL 249251 (D.N.J. Mar. 3, 2000); New Jersey Dep't of Env. Prot. v. Ventron Corp., 94 N.J. 473 (1983); Frank v. U.S. West, Inc., 3 F. 3d 1357 (10th Cir. 1993); Martin v. Safeguard Scientifics, Inc., 17 F. Supp. 2d 357, 362 (E.D. Pa. 1998); Keenan v. Matchmaker Int'l, Inc., No. 98-0515, 1999 U.S. Dist. LEXIS 795 (S.D. Ala. Jan. 20, 1999); Federal Employment Jury Instructions, §§2:210 and 2:220; 42 U.S.C. §2000e(b).

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In this case, Plaintiff has alleged three causes of action under federal law. First, Plaintiff contends that Mellon discriminated against her on the basis of age. Second, Plaintiff contends that Mellon discriminated against her on the basis of her sex. Third, Plaintiff has alleged that, because she complained about alleged age discrimination, Mellon retaliated against her.

Given

__________________________

Modified __________________________ Refused __________________________

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INSTRUCTION NO. 26 [DEFENDANTS' PROPOSED] Employee Can Only Sue For Unlawful Conduct You must understand that generally the law in Delaware is that, absent a contract, an employer may terminate an employee for good reason, bad reason, or no reason at all.19 The discrimination laws are not in place to assure good employeremployee relationships or even merit-based or logical employment decisions. Rather, the law only protect an employee from discriminatory decisions that are in violation of the law.

Given Modified Refused

__________________________ __________________________ __________________________

19

Murray v. Gencorp, Inc., 979 F. Supp. 1045, 1047 (E.D. Pa. 1997); Haynes v. Alumax Recycling Group, Inc., 51 FEP Cases 997 (D.C. N. Ill., July 24, 1989); Merrell v. Crothall American, Inc., 606 A.2d 96, 103 (Del. 1992) ("Nothing said here is to be construed as limiting an employer's freedom to terminate an at-will employment contract for its own legitimate business reasons, or even highly subjective, reasons"). 38

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INSTRUCTION NO. 27 [PLAINTIFF'S PROPOSED] Burden of Proof This is a civil case. Plaintiff has the burden of proving every essential element of her claims and damages by what is called a preponderance of the evidence. To establish something by a preponderance of the evidence means to prove that something is more likely true than not. To find that a party has proven something by a preponderance of the evidence, you must conclude that that evidence, when considered and compared with the evidence opposed to it has more convincing force and produces in your minds a belief that what is sought to be proved is more likely true than not true. It is not necessary for any party to prove any assertion beyond a reasonable doubt. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case, and you should therefore put it out of your mind in considering whether or not plaintiff has met her burden of proof on various issues. The preponderance of the evidence does not depend on the number of witnesses, but upon the weight of the testimony. If the evidence as to a particular element or issue is evenly balanced, the party has not proved the element by a preponderance of the evidence and you must find against that party. In determining whether any facts in issue has been proven by plaintiff, you may consider the testimony of all witnesses, regardless of who may have called them and all the exhibits received in evidence regardless of who may have produced them. Since the plaintiff, in order to recover, must prove her case by a preponderance of the evidence, I instruct you that if you find the evidence in this case to be equally balanced so that the resolution of the liability issue is as reasonable or as

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likely to be right under the defendants= version as under the plaintiff=s version, then you must conclude that the plaintiff has failed to sustain her burden of proof and your decision must be resolved in favor of the defendants. Given Modified Refused __________________________ __________________________ __________________________

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INSTRUCTION NO. 28 [PLAINTIFF'S PROPOSED] Protected Activity and Retaliation under the ADEA Plaintiff contends that defendants terminated her employment in retaliation for making an age discrimination complaint to defendants= human resources department. Under the ADEA, it is unlawful for an employer to discharge or discriminate against any individual because such individual has engaged in any one of the following four protected activities: 1) Made a charge in any investigation, proceeding, or litigation under the ADEA; Testified in any investigation, proceeding, or litigation under the ADEA; Assisted in any investigation, proceeding, or litigation under the ADEA; or Participated in any manner in any investigation, proceeding, or litigation under the ADEA.20

2) 3)

4)

Given Modified Refused

__________________________ __________________________ __________________________

20

29 U.S.C. ' 623(d). 41

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INSTRUCTION NO. 29 [PLAINTIFF'S PROPOSED] ESSENTIAL ELEMENTS OF PLAINTIFF'S RETALIATION CLAIM -INDIRECT EVIDENCE A plaintiff may prove ADEA retaliation by indirect evidence. In order for plaintiff to prevail on her claims against defendants for retaliation based on indirect evidence, she must prove the following elements (called a "prima facie case") by a preponderance of the evidence: First: Second: That she engaged in a protected activity under the ADEA; That defendants took an adverse employment action after or contemporaneous with the employee=s protected activity; and That there is a causal link between the employee=s protected activity and the employer's adverse employment action.21 A plaintiff is not required to produce direct evidence that her protected activity motivated defendants to discharge her. Intentional retaliation, if it exists, is seldom admitted, but is a fact which may be inferred from other acts. A plaintiff also need not prove that retaliation was the sole or exclusive motivation for defendants= discharge decision. However, a plaintiff must prove by a preponderance of the

Third:

evidence that her protected activity played a role in the defendants= decision making process and that it was a motivating or determinative factor in the outcome of the process. Your verdict must be for defendants if any of the above elements has not been proven by a preponderance of the evidence.

21

Glanzman v. Metropolitan Mgt. Corp., 391 F.3d 506, 508-09 (3d Cir. 2004).

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If plaintiff has proven facts that establish each of the essential elements of her prima facie case, then you must consider whether defendants have presented any legitimate nondiscriminatory reasons for its decision to discharge her. Defendants=

burden is simply to produce some evidence of a legitimate nondiscriminatory reason. A legitimate nondiscriminatory reason is any reason unrelated to the plaintiff's activity. It is not against the law to terminate an employee who engaged in protected activity if the reason for termination is unrelated to the employee=s protected activity. Therefore, the fact that the plaintiff engaged in protected activity is not, in and of itself, evidence of retaliation. If you find plaintiff has proven her prima facie case, and you disbelieve defendants= explanation for its decision, you are entitled to infer, but need not infer, that plaintiff's protected activity was a determinative or motivating factor in defendants= decision to discharge plaintiff. Some factors you can consider in judging the evidence in this regard include the following: 1. Unusually suggestive closeness in time between plaintiff=s protected activity and defendants= adverse employment actions. Any demonstrated antagonism toward plaintiff by management. The specific sequence of events leading up to the challenged decision. Treatment of other employees who are similarly or comparably situated. Departures from the normal procedural sequence. Any violation of policies and procedures regarding the ADEA. Any retaliatory motive by management.

2. 3. 4. 5. 6. 7.

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8.

Whether the factors usually considered important by the decision makers strongly favor a decision contrary to the one reached.

9.

Whether there are weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer=s proffered legitimate reasons such that you find the reasons unworthy of credence. You should not, however, find that the defendants' action was unlawful just

because you disagree with its stated reasons or because the challenged employment action seems harsh or unreasonable.

Given Modified Refused

__________________________ __________________________ __________________________

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INSTRUCTION NO. 30 [DEFENDANT'S PROPOSED] ADEA Retaliation - Elements Plaintiff has also brought a claim for retaliation under the ADEA. To

prevail on her claim of retaliation, Plaintiff must prove by a