Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 01-cv-2324-JLK-MEH CHARLES T. GREEN, PHILLIP R. WENTLAND and MARILYN BREITHAUPT, Plaintiffs, vs. SEARS, ROEBUCK & CO., a New York corporation, Defendant.

PARTIES' PROPOSED JURY INSTRUCTIONS

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PLAINTIFFS' PROPOSED INSTRUCTION NO. 1(A) (FORMERLY PLAINTIFFS' PROPOSED INSTRUCTION NO. 1) Description of the Case In order to help you understand this case, I will give you a brief summary of the claims and defenses. Plaintiffs Charles Green, Phillip Wentland and Marilyn Breithaupt are the parties who bring this lawsuit. They have brought this action against Sear Roebuck & Co. under the Age Discrimination in Employment Act. For convenience, in this case we will also call Mr. Green, Mr. Wentland and Ms. Breithaupt the "Plaintiffs" and Sears Roebuck & Co. either "Sears" or "Defendant." We will also refer to the the Age Discrimination in Employment Act as the "ADEA." Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." During April and May 2000, Sears terminated Plaintiffs as part of its alleged "reorganization" of its repair facilities. Plaintiffs were among the oldest and most experienced Service Technicians employed by Defendant in Colorado. At the time of their terminations, Plaintiffs' respective ages and years of working at Sears were as follows: (1) Plaintiff Green: 59 years old, 37 years of employment; (2) Plaintiff Wentland: 53 years old, 35 years of employment; (3) Plaintiff Breithaupt: 48 years old,

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26 years of employment. Plaintiffs were all employed by Sears as Shop Service Technicians at its Thornton, Colorado Service Center ("Thornton Facility"). As Shop Service Technicians, Plaintiffs diagnosed and repaired appliances in the "shop", i.e., at the Thornton Facility. Shop Technicians are one of two species of Service Technicians, the other being Field Technicians - those Service Technicians who repair appliances in customers' homes, as opposed to in the "shop." In 2000, Plaintiffs were told that all repair shops in the Denver metropolitan area would be consolidated into a centralized repair facility in Aurora, Colorado, as well as the lawn & garden shops in Littleton, Lakewood and Aurora. Plaintiffs were further informed that they would be required to apply for "their jobs." Finally, Plaintiffs were told by their managers that all current employees who were not selected for a position at the Aurora Repair Center (including their own or any other available position for which they were qualified) would have their employment terminated as part of Sears' redesign. Each Plaintiff thereafter applied and interviewed for one or more open Service Technician positions at the Aurora facility. Plaintiff Green also applied for the additional positions of Artisan and Installer/Helper. These positions were quite similar, if not outright the same, as the jobs they were performing satisfactorily in Thornton, but suddenly they were not qualified for these jobs after the positions were transferred to the new Aurora facility. In the Spring of 2000, Plaintiffs were advised by Brooks that, notwithstanding

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their decades of experience, skills and qualifications, they had not been selected for positions at the Aurora Repair Center. Further, the Plaintiffs allege that they were told by Brooks, the person who made the decision not to hire them into Service Technician positions at the new repair facility, that they were not getting a position at the Aurora Repair Center because they were "not a good fit." At the time of their terminations, Plaintiff Green was fifty-nine (59), Plaintiff Breithaupt was forty-eight (48) and Plaintiff Wentland was fifty-three (53) years old. All three plaintiffs received positive review after positive review, and all were ranked by their peers and managers as top technicians at the time of their termination from Sears. Plaintiffs Green, Breithaupt and Wentland had a combined ninety-three (93) years of service working for Sears as repair service technicians at the time there were told that they were not qualified to work as Service Technicians, or for Plaintiff Green, even as an Artisan or Installer/Helper, at the new repair facility. However, despite their excellent performance, top-rate training, Sears' certified skills and qualifications and decades of loyal and dedicated service, in the Spring of 2000, Plaintiffs were advised by Sears they had not been selected for positions at the new repair facility in Aurora. Sears used a brief and subjective interview process ­ despite the fact that the decision maker had worked with the Plaintiffs for years - to create a justification for firing Plaintiffs, a process manipulated to guarantee the desired outcome. Sears then hired younger, less qualified employees from both inside and outside of its organization to replace these invaluable employees.

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While the decision to fire Plaintiffs was made by a supervisor that had worked along side Plaintiffs for many years, Ms. Stephanie Brooks Sears, Plaintiffs claim that Sears is trying to hide behind a brief interview process to shield its discriminatory conduct even though Ms. Brooks, the manager over the new repair center in Aurora, was solely responsible for the decision of whom to hire and whom to let go. Plaintiff Charles Green: At the time of his termination, Plaintiff Green had worked for Sears for thirtyseven and a half (37 ½ ) years, he was fifty-nine (59) years old and was earning $18.80 per hour as a Level II Service Technician. Plaintiff Green applied for three distinct positions at the new Aurora Repair Center, including Mechanical Technician, Installer and Artisan. Green applied for these additional positions, including the demoted position of Installer/Helper, because he wanted to stay employed with Sears, to keep Sears' health coverage for his adult disabled child. Despite his years of service and qualifications, Green was not offered any position at the Aurora Repair Center and was, instead, told by Brooks "You don't fit in with how we want to do things in Aurora." Instead, Ms. Brooks hired Josie Padilla, who was 39 years old into the Mechanical Technician position Plaintiff Green applied for. Ms. Brooks has conceded that she hired Padilla for a Mechanic Technician position even though it appeared that Padilla had not even applied for a Mechanical Service Technician, but rather, that Padilla had applied only for the Lawn & Garden Service Technician position. Further, Ms. Brooks hired

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another younger employee, 24-year-old Kris Dean, over Plaintiff Green for the lowerlevel Installer/Helper position. Finally, pursuant to the terms of the reorganization plan, Plaintiff Green was supposed to have been offered a field service technician after Ms. Brooks' rejection of his inside repair applications, but Ms. Brooks never offered him that position. When Green asked about getting a Field Technician position, Fanning told him that he didn't need to worry about it, that Sears was going to retire him and give him the package. Having no option to remain employed by Sears, Plaintiff Green submitted his paperwork to receive early retirement. When Breithaupt was not offered any of the Electronics Technician positions, the only explanation given to Breithaupt by Brooks for not receiving her prior position or a comparable position was that she "would not fit in" at the Aurora Repair Center. Plaintiff Phillip Wentland: At the time of Plaintiff Wentland's termination from Sears, he had been employed by Sears for thirty-five (35) years, he was fifty-three (53) years old and was earning $18.26 per hour as a Level III Service Technician. Plaintiff Philip Wentland was a senior Lawn & Garden technician when the reorganization plan was implemented. Plaintiff Wentland applied for an Lawn and Garden Service Technician position at the new Aurora Repair Center but was not hired. Sears does not dispute Wentland was qualified for the position in terms of his technical skills and experience. Plaintiff Wentland was the last technician left at Thornton before it

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closed and was assigned by Sears to train the temporary workers working there and coordinating the clean-up at that facility and other facilities after Ms. Brooks had rejected him for any of the open Lawn & Garden Technician positions open at the Aurora facility. He as then terminated after he completed those wrap-up tasks. Plaintiff Marilyn Breithaupt: Ms. Brooks also rejected Plaintiff Marilyn Breithaupt's application for a Service Technician position at the Aurora facility. At the time of Plaintiff Breithaupt's termination from Sears, she had worked for Sears for twenty-six (26) years, she was forty-eight (48) years old and was earning $18.83 per hour as a Level III Technician. She was also working on both electronic and mechanical equipment at the time of her termination and also worked on lawn and garden equipment. Brooks had worked with Plaintiffs for years and had routed their daily work to them for the two years before the redesign, as she was the routing manager at Thornton. Plaintiff Breithaupt applied for an Electronics Technician position at the Aurora Repair Center. When Breithaupt was not offered any of the Electronics Technician

positions, the only explanation given to Breithaupt by Brooks for not receiving her prior position or a comparable position was that she "would not fit in" at the Aurora Repair Center. At the time of her application, Plaintiff Breithaupt was 48 years old. Two of the three individuals who were hired as Service Technicians instead of Ms. Breithaupt were Mr. Beckman and Mr. Weinzapfel ­ who were older that she (at 61 and 57, respectively). However, the third individual hired in place of Ms. Breithaupt, Mr. James Blankenship,

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was 38. Mr. Blankenship was not a employed by Sears at all when he was hired in place of Plaintiff Breithaupt for a Service Technician position at the Aurora facility. At the time of their applications, Plaintiff Breithaupt had been employed by Sears for 26 years, had been trained and certified by Sears to work on electrical appliances and had received awards and consistent positive performance reviews. Mr. Blankenship, by contrast, scored in the lowest possible ranking category on his technical exam when he applied for the same Electronic Service Technician position Plaintiff Breithaupt was applying for. Blankenship scored in the "POOR RISK" category for television repair, the function he would performing in Aurora, yet, he was offered the television repair position over Breithaupt. Despite Sears' attempt to characterize its actions as having been taken in good faith, the Plaintiffs contend that the degree to which the process was distorted belies the truth. Plaintiffs contend that: (1) a number of older workers were terminated, and younger employees were hired to replace them (though, admittedly, Sears did not have the gall to terminate all of the older workers at once); (2) the Sears policy of considering seniority as a positive factor - included in writing in the manual that was to guide the redesign team and Ms. Brooks through the redesign - was blatantly ignored; (3) applicants were quizzed about their retirement plans in the redesign interviews; (4) long term, competent employees/applicants were eliminated from consideration based upon extremely subjective criteria, i.e., employees who had been training and leading teams of employees for years were deemed to not have leadership abilities; (5) a ten percent rule

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was concocted to ensure that long-term employees were unable to obtain another job within Sears (a rule that an employee could not be given a job that resulted in him/her taking a ten percent or more cut in pay); (6) younger employees who did not perform well in the redesign interview process were given favorable treatment (Josie Padilla) and younger, clearly less-qualified individuals were hired from outside the company (James Blankenship); (7) employees were interviewed by a technical interviewer who did not know what job each was applying for (Bob Garcia); (8) older employees were deemed not qualified for positions with the "new" assembly line style process when, in fact, they had been working in an assembly line process for years; and (9) no "adverse impact analysis" - a document required by the redesign procedure to ferret out age discrimination - was performed. All of the Sears service technicians in the metro area had to reapply for repair service technician positions at the new Aurora facility. Employees who had applied for positions at the new facility and been rejected were then offered severance and/or early retirement under Sears' reorganization plan. Under a law called the Older Worker Benefits Protection Act of 1990 (OWBPA), when Sears terminates employees, Sears was required to provide the terminated employees with information about the age other employees, both those terminated and those employees not terminated, within the same "decisional unit." The reason for this law is to permit older workers to compare the ages of employees like themselves who are being terminated (and therefore eligible for the severance program) to the ages of

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employees who are not being terminated. This allows the terminated employees to make a more informed choice about whether he has an age discrimination claim and thus whether to release such claim. Here, Sears provided a disclosures of the ages of employees who would have to reapply for their positions during the reorganization in late January or early February of 9 of 2000, except Plaintiff Wentland, who did not receive any Disclosures, ever. Those disclosures, referred to as the first set of disclosures, set forth the names and ages of all the technicians being terminated and all of the technicians being retained in the entire Thornton Facility. The Disclosure revealed that a large number of older technicians were losing their jobs. However, Sears now claims that the first set of Disclosures were not intended to be the final Disclosures required by the OWBPA. Not only did the first set of Disclosures include the names and ages of all service technicians in the Thornton facility, despite what type of appliance each technician worked on, they also inaccurately included in the list of impacted employees an entire group of employees who were actually not impacted by the reorganization at all. The first set of Disclosure was also provided prior to the interviews and thus the list was ultimately not accurate, as Sears actually terminated more older workers than were listed in this document as employees that might be adversely impacted by the reorganization. Later, after the interviews, Sears provided a second set of OWBPA disclosure to Plaintiffs Green and Breithaupt, but, again, not to Plaintiff Wentland, that disclosed the

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names and ages of other impacted employees only from the alleged different appliance service departments within the Thornton Facility, and not the entire facility, let alone all of the impacted facilities. In other words, the second set of Disclosures furnished to Plaintiffs Green and Breithaupt in March 2000 listed only employees offered or not offered severance who worked at the Thornton Facility and who worked generally on the same types of appliances that each of them worked on. Sears claims now claims that the small group of service technicians working at the Thornton facility were actually divided into formal "department" by the type of work they performed (e.g., a lawn and garden department, an electronics department or mechanical department). However, prior to the reorganization, neither the Plaintiffs nor even on of their immediate supervisors were aware that the separate departments existed. For example, Sears administratively classified Plaintiff Green as a technician in the "mechanical" department, and therefore the Disclosure he received in March 2000 only included the job titles and ages of those few other Service Technicians and Installers who also worked on mechanical appliances at the Thornton facility. Relying upon Sears' second set of OWBPA Disclosure and the much more narrow information provided in them, the Plaintiffs Green and Breithaupt signed the releases. Plaintiff Wentland signed his release after receiving no Disclosures at all. Plaintiffs deny they are bound by the releases they signed because the information disclosed by Sears in eliciting those releases failed to comport with the minimum requirements of the OWBPA,

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because an older employee's release of claim is not valid unless the employer complies with strict disclosure requirements of the OWBPA. On December 23, 2003, this Court found, after reviewing the evidence submitted by the parties, that Sears's disclosures were inadequate as a matter of law with respect to Plaintiff Wentland, who received no information about any other employee lay-off or termination besides his own. Because Plaintiffs Green and Breithaupt did receive limited disclosures in Sears' second set of Disclosures, it will be for you, as a jury, to decide if Sears complied with the OWBPA's strict disclosure requirements. In other words, you the jury now need to decide whether the disclosures to Charles Green and Marilyn Breithaupt were adequate under the OWBPA. It is Sears's burden to demonstrate that the comparative job title and age information it provided Plaintiff Green and to Plaintiff Breithaupt pursuant to the OWBPA met the minimum statutory and regulatory standard. The OWBPA's requirements are not satisfied by substantial compliance - as nothing less than strict adherence to the Act's specific requirements will suffice to establish the validity of a waiver which purports to release claims under the ADEA. Therefore, you decide whether Sears provided to them all of the job titles and ages of other impacted employees in their "decisional unit" as defined by the OWBPA. The term "decisional unit" has been developed to reflect the process by which an employer chose certain employees for a severance/organization program and ruled out others from that program. Because the purpose of providing employees with information about fellow employees before they sign waivers of discrimination claims is

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to ensure a `knowing and voluntary' waiver, the employees must be provided with the age and job title information that would be relevant if the employees were to bring an age discrimination claim arising out of their termination." In determining the proper decisional unit for purposes of compliance with the OWBPA, an employer cannot so narrowly define the decisional unit such that the employees who receive OWBPA notices do not receive enough information to determine whether they are, in fact, being discriminated against. Plaintiffs Green and Breithaupt contend that the OWBPA releases they signed did not provide the required disclosures because the releases should have contained the name, age and job title of: (1) all Service Technicians and Installers impacted by the reorganization plan in the entire District 8181; or, (2) at the very least provided information on all Technicians and Installers in the Thornton Facility, not just those within the same small "departments," who were impacted by the reorganization. Finally, the parties to this lawsuit have agreed to certain facts. You must treat these agreed upon, or stipulated facts as having been proved. The facts on which both sides have agreed are as follows:

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Defendant's Objections to Plaintiffs' Proposed Instruction: Description of the Case Defendant objects to Plaintiffs' proposed 11-page description of the case as argumentative, non-neutral, and incorrect. They characterize facts, present selective facts in a misleading way, present disputed facts as stipulated, and make factual assertions that are simply wrong. The Tenth Circuit has directed that jury instructions be balanced and non-argumentative. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682 (10th Cir. 1981); Quigley v. Rosenthal, 327 F.3d 1044, 1064 (10th Cir. 2003) (rejecting instructions that were argumentative and unnecessary). See also, State Auto. Mut. Ins. Co. of Columbus Ohio v. York, 104 F.2d 730 (4th Cir. 1939) (instructions should be judicial and not one-sided or argumentative). Instructions should not only define and direct the jury's attention to the law applicable to a factual situation, they should exclude irrelevant matter. Baer Bros. Land & Cattle Co. v. Palmer, 158 F.2d 278 (10th Cir. 1946). Here, Plaintiffs present 11 pages of advocacy, rather than presenting the jury with a short, neutral description of the claims and the basic factual contentions. For example, when describing the positions that Plaintiff Green applied for, Plaintiffs' proposed instruction states, "these positions were quite similar, if not outright the same, . . . but suddenly they were not qualified for these jobs. . ." Id. at p. 2. Other examples abound, and Sears is prepared, if necessary, to go through paragraph by paragraph to show the inaccurate, misleading and argumentative statements. Defendant submits that its neutral,

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non-adversarial, and brief description of the case better serves the functions of a description of the case, which is to briefly describe to the jury what the case is about and the matters they will be asked to determine. Plaintiffs' advocacy has no place in the neutral case description. Facts to which the parties have stipulated to are as follows: 1. Plaintiffs are Colorado residents, and were "employees" within the

meaning of Section 11(f) of the ADEA, 29 U.S.C. § 630(f), at all relevant times. 2. At all relevant times hereto, Plaintiffs were age forty (40) years or older,

and as such, were members of the age group protected by the ADEA, pursuant to Section 12 of the ADEA, 29 U.S.C. §631(a). 3. At all relevant times, Sears has been a New York corporation doing

business in Colorado and had in excess of 20 employees in this State. 4. At all relevant times, Sears has been an "employer" within the meaning of

Section 11(b) of the ADEA, 29 U.S.C. § 630(b), and has been engaged in an industry affecting commerce within the meaning of Sections 11(b), (g), and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g), and (h). 5. Colorado. 6. In April 2000, Sears eliminated all of the shop technician positions in its Jurisdiction is proper in the United States District Court for the District of

Thornton Service Center. 7. Plaintiff Green had been employed by Sears for thirty-seven and a half (37

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½ ) years. 8. At the time of his termination on April 28, 2000, Plaintiff Green was fifty-

nine (59) years old and earning $18.80 per hour. 9. Plaintiff Green spent twenty two (22) years as an outside technician and

then moved into the shop in 1984. 10. Plaintiff Green interviewed with Nancy Satchell and Bob Garcia for

positions at the new unit in Aurora. 11. At the time of his termination, Plaintiff Wentland was a Level III

Technician earning $18.26 per hour. 12. Plaintiff Breithaupt worked at Sears for twenty-six (26) years when she was

terminated at the age of forty-eight (48). She was a Level III Electronics Technician earning $18.83 per hour. 13. Plaintiff Breithaupt applied for the position of Electronics Technician at the

Aurora Service Center. 14. Plaintiff Breithaupt was not offered the position of Electronics Technician

at the Aurora Service Center. 15. 16. Brooks received and reviewed the E&M Factory Communication Guide. Per Nash, seniority was an issue in the redesign. Nash stated that Sears

values length of service both in terms of loyalty to the company and expertise developed. 17. The four members of the redesign team only conducted interviews of

candidates. They did not look at prior performance evaluations or observe the applicants

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working. 18. Chuck Nash managed the redesign team at the time of the Denver

reorganization. 19. Ron Medford was the National Carry-in Operations Manager for Sears at

the time of the Denver redesign. 20. Ray Figueroa worked for Sears as a Technical Manager in Thornton from

1997 through the redesign. In 1997 and early 1998, Figueroa managed all the Lawn and Garden Shops in Thornton, Aurora, Littleton and Westland (all in the Denver metro area). In addition, Figueroa managed the Lawn and Garden Field Technicians. 21. Sometime toward the summer of 1998, Figueroa was also assigned to be

the technical manager for the Mechanical Repair Shop, and he continued to be the Technical Manager for the Lawn and Garden Shop. He managed the Mechanical and Lawn and Garden crews from 1998 until about August of `99, when Sears hired another technical manager, Craig Peterson. Peterson then supervised the Mechanical Repair Shop crew, and Figueroa went back to just supervising the Lawn and Garden Shop. 22. Stephanie Brooks began as an Installer with Sears in January 1986. She

then received promotions through Service Technician, Parts Supervisor, Support Supervisor, Technical Supervisor, Technical Manager, and Routing Manager positions for the next fourteen years until she was promoted to Unit Manager in February 2000. Brooks is currently the Unit Manager of the Aurora Repair Center, and she supervises the technical team and the support team.

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23.

Craig Peterson began working for Sears in August 1999 as Technical

Supervisor, managing in-home technicians, a position he held through the redesign. 24. Daniel Perry has worked for Sears for 33 years. During his first 20 years,

he was a technician. In approximately 1993, he was promoted to Tech Manager. In 1996, he was again promoted to Route Manager until he left that position to lead the Redesign Team from 1998 - 2001. In 2001, he left the Redesign Team, and is now Region Operating Manager for the Southeast Carry-in Region. 25. Plaintiffs' respective ages and years of working at Sears at the time they

ceased employment were as follows: (1) Plaintiff Green: 59 years old, 37 years of employment; (2) Plaintiff Wentland: 53 years old, 35 years of employment; (3) Plaintiff Breithaupt: 48 years old, 26 years of employment. 26. Plaintiffs were all employed by Sears as Shop Service Technicians at its

Thornton, Colorado Service Center ("Thornton Facility"). (Ex. 61.) As Shop Service Technicians, Plaintiffs diagnosed and repaired appliances in the "shop", i.e., at the Thornton Facility. Shop Technicians are one of two species of Service Technicians, the other being Field Technicians - those Service Technicians who repair appliances in customers' homes, as opposed to in the "shop." 27. Brooks had worked with Plaintiffs for years and had routed their daily

work to them for the two years before the redesign, as she was the routing manager at Thornton. 28. Sometime toward the summer of 1998, Figueroa was also assigned to be

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the technical manager for the Mechanical Repair Shop, and he continued to be the Technical Manager for the Lawn and Garden Shop. He managed the Mechanical and Lawn and Garden crews from 1998 until about August of `99, when Sears hired another technical manager, Craig Peterson. Peterson then supervised the Mechanical Repair Shop crew, and Figueroa went back to just supervising the Lawn and Garden Shop. 29. 30. Green was not offered a position at the Aurora repair facility. After being offered Field Technician positions, Wentland and Breithaupt

both told Brooks that they had medical conditions prohibiting them from taking the positions offered to them, and both produced doctor's notes, substantiating their claim. 31. Breithaupt applied for an Electronics Technician position at the Aurora

Repair Center. 32. Figueroa was Wentland's supervisor on February 1, 1998. He gave him a

performance evaluation around February 1998. 33. Wentland applied for a Lawn & Garden Service Technician position within

the new Aurora Repair Center. 34. The employees hired for the Electronics Service Technician positions at the

Aurora Repair Facility were Gunther Beckman (age 61), Frank Weinzapfel (age 57), and James Blankenship (age 38). 35. The employees hired for the Lawn and Garden Technician position at the

Aurora Repair Facility were Walter Shetskie (age 59), George Lang (age 35), and Richard Schley (age 41).

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36.

Following the interview process, the redesign team held a telephone

conference with the Unit Manager of the new Aurora facility, Stephanie Brooks, to discuss all the candidates and make recommendations. 37. Plaintiff Phillip Wentland was a repair technician in the Thornton Lawn

and Garden shop in November 1999. He applied for Lawn and Garden technician position at the new Aurora facility when his position in Thornton was eliminated. 38. $18, 990. 39. Plaintiff Marilyn Breithaupt was a repair technician in the Thornton Mr. Wentland signed a release and received a severance package of

Electronics shop in November 1999. She applied for a position as an Electronics Technician in the new Aurora facility when her position in Thornton was eliminated. She was 48 years old at the time. 40. Sears offered Ms. Breithaupt a position as a field technician, but she

advised Sears that she was unable to perform the required duties due to a knee injury. 41. The employees hired for the Electronics Technician position at the

redesigned repair facility were Gunther Beckman (age 61), Frank Weingzpfel (age 57), and James Blankenship (age 38). 42. Plaintiff Charles Green was a repair technician in the Thornton Mechanical

Shop in November 1999. He applied for a Mechanical Technician position in the new Aurora facility. He was 59 years old at the time. 43. Mr. Green signed a release and received a severance package of $19, 831,

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and took early retirement benefits.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1(B) (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1.1) Description of the Case Members of the jury, we are about to begin the trial of this case. Before the trial begins, however, there are certain instructions you should have in order to better understand what will be presented to you and how you should conduct yourself during the trial. The party who brings a lawsuit is called Plaintiff. In this action, the Plaintiffs are Charles T. Green, Phillip R. Wentland and Marilyn Breithaupt. The party against whom the suit is brought is called Defendant. In this action, the Defendant is Sears, Roebuck & Co. Sears is a national retailer that also operates appliance repair centers. Plaintiffs were appliance repair technicians at Sears' Thornton, Colorado repair facility in November 1999. At that time, Sears closed the Thornton shop, eliminated Plaintiffs' positions, and opened a new, redesigned repair facility in Aurora, Colorado (the "Redesigned Repair Facility"). Plaintiffs allege that Sears' decision not to hire them for the Redesigned Repair Facility was motivated by age discrimination, in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 et seq. (the "ADEA"). At the time of their terminations, Green was fifty-nine (59), Breithaupt was forty-eight (48), and Wentland was fifty-three (53) years old.

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Sears denies that it discriminated against Plaintiffs on the basis of age. Rather, it claims that its elimination of Plaintiffs' positions was part of a business reorganization and that the company's decision not to hire them for the Redesigned Repair Facility was based on its assessment of who was most qualified for the new positions.

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INSTRUCTION NO. 2 - STIPULATED Status of a Corporation All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person. Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation.

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INSTRUCTION NO. 3 - STIPULATED Knowledge of a Corporation Knowledge of, or notice to, a corporation's director, officer, or employee received while he or she is acting within the scope of his or her authority, is the knowledge of, or notice to, the corporation.

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INSTRUCTION NO. 4 - STIPULATED Scope of Authority - Defined A director, officer or employee is acting within the scope of his or her authority when he or she is doing the work assigned by his or her employer, or is doing that which is proper, usual, and necessary to accomplish the assigned work, or is doing that which is customary in the particular trade or business to accomplish the assigned work.

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INSTRUCTION NO. 5 - STIPULATED Apparent Authority-Definition and Effect When a representative of a corporation, by words or conduct, has caused another person reasonably to believe that a director, officer, or employee has authority to take certain action on the corporation's behalf, although no such authority has in fact been given, the director, officer, or employee has apparent authority and may bind the corporation just as if the corporation had authorized such action.

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INSTRUCTION NO. 6 - STIPULATED Evidence­General It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not. At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true. The following things are not evidence and you must not consider them as evidence in deciding the facts of this case: 1. Statement are arguments by lawyers are not evidence. The lawyers are not witnesses. What they say 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 the facts controls.

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2.

Questions and objections by the lawyers are not evidence. Lawyers 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 my 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.

4.

Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses.

You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are inductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

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INSTRUCTION NO. 7 - STIPULATED Evidence-Direct and Circumstantial Evidence can be either direct or circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true. You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial. The rules of evidence control the facts you may consider. When one lawyer asks a question or offers an exhibit and an opposing lawyer things that it is not permitted by the rules of evidence, the opposing lawyer may object. If I overrule 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 such evidence. That means that when you are deciding the case, you must not consider that evidence that I told you to disregard.

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INSTRUCTION NO. 8(A) - STIPULATED Credibility of Witnesses In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it. In considering the testimony of any witness, you may consider: 1. The witness's opportunity and ability to see or hear or know the things to which the witness testified; 2. 3. 4. The quality of the witness's memory; The witness's manner while taking the oath and while testifying; Whether the witness had an interest in the outcome of the case or any

motive, bias or prejudice; 5. Whether the witness's testimony is contradicted by anything the witness

said or did at another time, by the testimony of other witnesses, or by other evidence; 6. and, 7. Any other facts that bear on believability. How reasonable the witness's testimony was in light of all the evidence,

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact. If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony.

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INSTRUCTION NO. 8(B) - STIPULATED (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2.3) Filing of Lawsuit and Pleadings The fact that a plaintiff files a lawsuit is not evidence that the other party did anything wrong. The fact that a plaintiff complains that she has been damaged is not evidence that she has been damaged or that the other party violated the law. Similarly, the fact that a defendant denies that a plaintiff has been damaged or that the law does not provide relief for her is not evidence that plaintiff has not been damaged or that the defendant did not violate the law. Both the complaint and the denial are merely the formal way in which the case is brought to court for you to decide. The traditional expression, "where there's smoke there's fire" is not always true and it cannot have any part in your reaching a decision in this case.

Source of Instruction: JLK's model instructions, Instruction No.1.5.

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INSTRUCTION NO. 9 - STIPULATED Single Witness The testimony of a single witness that produces in your minds belief in the likelihood of truth is sufficient for the proof of any fact, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of the one witness.

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PLAINTIFF'S PROPOSED INSTRUCTION NO. 10

Destruction of Documents - Spoliation If you find that has acted in bad faith in destroying documents that otherwise would be evidence in this case, you are permitted to draw the inference, the "spoliation inference," that the destroyed evidence would have been unfavorable to the position of the offending party.

Authority: Dooley v. Altus Medical Corp., 1995 U.S. App. LEXIS 13492, n.2 (10th Cir. 1995); Zolo Techs. v. Roadway Express, Inc., 2006 U.S. Dist. LEXIS 19369 (D. Colo. 2006).

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Defendant's Objections to Plaintiffs' Proposed Instruction:

Destruction of Documents-Spoliation Defendant objects to this proposed instruction on the ground that spoliation is simply not an issue in this case. There has been no allegation that either party has destroyed documents (in bad faith or otherwise) that would be relevant in this case. Accordingly, this instruction serves no purpose other than to confuse or mislead the jury. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682 (10th Cir. 1981) (jury instructions should be "comprehensive, balanced, and not likely to confuse or mislead the jury").

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INSTRUCTION NO. 11 - STIPULATED Juror Conduct Your conduct as jurors is of the utmost importance. First, do no talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go to the jury room to decide on your verdict. Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell them that you are a juror on a case and that I have ordered you not to tell them anything else about it until the case is over. Third, do no let anyone talk to you about the case or about anyone who has anything to do with it. If someone tried to talk to you, please report it to me immediately.

Fourth, do no 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 the case. Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own.

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Sixth, do no make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe the witnesses and listen to their testimony. Your note taking should merely assist you.

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INSTRUCTION NO. 12 - STIPULATED Consideration of Deposition Testimony A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he or she made the statement under oath.

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INSTRUCTION NO. 13(A) - STIPULATED Opinion Evidence and Expert Witnesses You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions. Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses. Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

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INSTRUCTION NO. 13(B) - STIPULATED DEFENDANT'S PROPOSED JURY INSTRUCTION N0. 4.4 Lay Witness Opinion You must reach your own opinion about whether Plaintiffs have proven by a preponderance of the evidence that they were unlawfully discriminated against because of their age. You may not consider anyone else's opinion on this matter. If any witness offers an opinion, you must disregard it.

Source of Instruction: Fed.R.Evid. 701; Gross v. Burggraf Construction Co., 53 F.3d 1531 (10th Cir. 1995); Hester v. Bic Corporation, 225 F.3d 178 (2nd Cir. 2000); Mitroff v. Xomox Corp., 797 F.2d 271 (6th Cir. 1986).

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INSTRUCTION NO. 14 (A) -- STIPULATED Charts, Summaries and Graphic Materials A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in this case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts. If such materials do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

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INSTRUCTION NO. 14(B) (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2.5) Burden of Proof This is a civil case. Therefore, Plaintiffs have the burden of proving their claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider each of Plaintiffs claims in light of all the facts, you believe those claims are more likely true than not true. To put it differently, if you were to put all of the evidence in favor of Plaintiffs and all of the evidence in favor of Sears on opposite sides of the scales, Plaintiffs would have to make the scale tip to their side. If Plaintiffs fail to meet this burden on any of their claims, your verdict on that claim must be for Sears. In defense to one or more of Plaintiffs' claims, Sears has asserted an affirmative defense(s), which will be described to you more fully later. An affirmative defense(s), which will be described to you more fully later. An affirmative defense is more than a denial of the claim. In terms of applying the burden of proof, you should treat Sears' affirmative defense(s) in the same way you treat Plaintiffs' claims. That is, Sears, as the asserting party, has the burden of proving that the affirmative defense is more likely true than not true. In evaluating whether Plaintiffs and Sears have met their respective burdens on their claims and defenses, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in

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the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case. Source of Instruction: JLK's model instructions, Instruction No.1.8.

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INSTRUCTION NO. 15(A) (FORMERLY PLAINTIFFS' PROPOSED JURY INSTRUCTION NO. 15) Age Discrimination in Employment Act ("ADEA") ­ Statute Involved The Plaintiffs have brought this lawsuit under the Age Discrimination in Employment Act, also called the ADEA. The ADEA makes it unlawful for an employer to discriminate against an individual who is 40 years of age or older because of his or her age. That is, an employer cannot use age as a factor in determining who it will hire and who it fire.

Authority: 29 U.S.C. § 623(a)(1)-(2); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993).

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Defendant's Objections to Plaintiffs' Proposed Instruction:

Age Discrimination in Employment Act ("ADEA")--Statute Involved

Sears objects to this instruction on the grounds that it unnecessarily repeats the "determining factor" test contained in subsequent instructions and that it does so without (1) an instruction that explains that test, or (2) a balancing instruction concerning "but for" causation. The last sentence of this proposed instruction should be deleted and addressed in the next group of instructions.

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INSTRUCTION NO. 15(B) DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4.1 Introduction to Plaintiffs' Claims Plaintiffs have each asserted one claim against Sears. Each Plaintiff claims that they were not chosen for a position as a repair technician in Sears' Redesigned Repair Facility because of their age. The Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 626, 623(a), prohibits discrimination against employees who are at least forty years old.

Source of Instruction: ADEA

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INSTRUCTION NO. 16 (A) (FORMERLY PLAINTIFFS' PROPOSED EXHIBIT 16) ADEA ­ Elements Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. In order for each Plaintiff to establish a claim of age discrimination, he or she must prove by a preponderance of the evidence that his/her age was a "determining factor" in Sears' decision to not hire him or her at the new Sears Repair Facility resulting in his or her termination from employment with Sears. Age is a "determining factor" if Sears' decision to not hire and/or terminate each Plaintiff was motivated by the Plaintiffs' age. Each Plaintiff is not required to prove that his or her age was the sole or primary motivation for Sears' decision. Rather, the Plaintiff need only prove that age was a factor, and the factor that "made the difference" in Sears' decision to hire them at for positions at the new facility.

Authority: Jones v. Unisys Corp., 54 F.3d 624, 630-31 (10th Cir. 1995); Hazen Paper Co. v. Biggins,

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507 U.S. 604, 610 (1993); Smith v. Consol. Mut. Water Co., 787 F.2d 1441, 1442 (10th Cir. 1986); 26 U.S.C. § 623(a)(1); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993); EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106 (1985); Memorandum Opinion and Order, p. 3 (June 5, 2006) (Honorable Judge Kane).

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Defendant's Objections to Plaintiffs' Proposed Instruction: ADEA--Elements Defendant objects to Plaintiffs' proposed instruction for several reasons. First, the instruction fails to identify all of the elements Plaintiffs must prove to establish a violation of the ADEA, including that they were not hired (i.e., suffered an adverse employment action), and that they were over 40 and thus qualified for protection under the ADEA. See United States v. Platte, 401 F.3d 1176, 1183 (10th Cir. 2005) (jury instructions must accurately set forth the law). Second, Defendant objects to this instruction as argumentative. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682 (10th Cir. 1981); Quigley v. Rosenthal, 327 F.3d 1044, 1064 (10th Cir. 2003) (rejecting instructions that were argumentative and unnecessary). See also, State Auto. Mut. Ins. Co. of Columbus Ohio v. York, 104 F.2d 730 (4th Cir. 1939) (instructions should be judicial and not one-sided or argumentative). Overemphasizing certain legal theories to the exclusion of others is improper. See Carpenter v. Connecticut General Life Ins. Co., 68 F.2d 69 (10th Cir. 1933) (instruction is erroneous where it singles out and gives undue prominence to single fact to exclusion of other important facts); Wetherbee v. Elgin, J. & E. Ry. Co., 191 F.2d 302 (7th Cir. 1951) (instructions should not give undue prominence to particular issues or theories). Here, Plaintiffs emphasize the "determining factor" standard by repeating several times that they need not prove that age was not the only factor in Defendant's decision. Unlike Defendant's instruction 4.5, Plaintiffs' instruction fails to direct the jury that it is not

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enough that Sears' conduct simply had a negative effect on older workers. Because Plaintiffs' instruction is improperly one-sided, Defendant submits that its instruction 4.5, should be given instead.

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INSTRUCTION NO. 16(B) (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4.3) Standard of Proof for Plaintiffs' Age Discrimination Claims Plaintiffs bear the burden to prove their age discrimination claims by a preponderance of the evidence. To establish by a preponderance of the evidence means to prove that something is more likely so than it is not so. In other words, a preponderance of the evidence means such evidence as, when considered and compared to that opposed to it, has more convincing force, and produces in your mind a belief that what is sought to be proved is more likely true than not true. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, 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.

Source of Instruction: O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996) (citing with approval an application of the analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to an ADEA claim.); James v. Sears, Roebuck &

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Co., 21 F.2d 989, 992 (10th Cir. 1994). O'Malley, et al., Federal Jury Practice and Instructions, §170.41.

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PLAINTIFFS' OBJECTION TO SEARS' INSTRUCTION 4.3: This instruction is redundant. The definition of "preponderance of evidence" has already been given in Plaintiffs' stipulation to Sears' proposed jury instruction 2.5. If this instruction is given, Plaintiffs propose that the Court modify the instruction to include the following final sentence: "An improper motive, if it exists, is seldom directly admitted and may or may not be inferred from the existence of other facts."

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INSTRUCTION NO. 16(C) (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4.5) Plaintiffs' Burden to Prove Age Discrimination To prove their claim for unlawful age discrimination, Plaintiffs bear the burden of proving each of the following by a preponderance of the evidence: 1. They were not hired as appliance repair technicians at the Redesigned Repair

Facility; 2. 3. Each Plaintiff was 40 years of age or older at the time of the hiring decisions; and Plaintiffs' age was a motivating factor in Sears' decision not to hire them. If you find that any of the above elements has not been proven by a preponderance of the evidence, then your verdict must be for Sears. It is not enough for Plaintiffs to show that Sears' conduct had a negative effect on older workers. Plaintiffs must prove that Sears was substantially motivated by Plaintiffs' age. In other words, you must decide whether the Plaintiffs would have been hired for the Redesigned Repair Facility but for their age.

Source of Instruction: Model Jury Instructions (Civil) Ninth Circuit §12.1.1 (1997); Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994); O'Malley, et al., Federal Jury Practice and Instructions, '170.21; Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994); O'Malley, et al., Federal Jury Practice and Instructions, '170.21.

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PLAINTIFFS' OBJECTION TO PROPOSED INSTRUCTION 4.5: Plaintiffs object to this instruction on two grounds: First, it not disputed that Plaintiffs were all not selected for a position at the new facility and all three were over 40. Sears is inappropriately injecting elements from Plaintiffs' prima facie case into this instruction. None of the authorities cited by Sears in support of this instruction are from this Circuit. As noted by the Tenth Circuit in Whittington v. Nordam Group, Inc., 429 F.3d 986, (10th Cir. 2005), "We have repeatedly stated that juries are not to apply the McDonnell Douglas framework and we are not concerned with plaintiffs' proof of a prima facie case when we review a jury verdict. ( . . . ) Because the employer will present evidence of a proper motive in almost every case, the ultimate question for the jury simply becomes `which party's explanation of the employer's motivation it believes'." Id. citing U.S. Postal Service v. Aikens, 460 U.S. 711, 716 (1983). See also Abuan v. Level 3 Communs, Inc., 353 F.3d 1158 (10th Cir. 2003) ("The jury, of course, does not apply the McDonnell Douglas framework in arriving at its verdict. Rather, the issue before the jury is `discrimination vel non'."). Second, Sears misstates the level of proof required. All Plaintiffs must prove at trial is whether age was a motivating factor in their non-selection, not that Sears was "substantially motivated by Plaintiffs' age. Jones v. Unisys Corp., 54 F.3d 624, 630-31

(10th Cir. 1995); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993); Memorandum Opinion and Order, p. 3 (June 5, 2006) (Honorable Judge Kane).

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INSTRUCTION NO. 16(D) (FORMERLY DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4.6)
Legitimate Non-Discriminatory Reason and Pretext Plaintiffs may attempt to show that the reasons offered by Sears for the decision not to hire Plaintiffs for the Redesigned Repair Facility are a mere pretext or cover-up for intentional age discrimination. If Sears succeeds in offering a legitimate, nondiscriminatory reason that, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action, then Plaintiffs may present evidence to show that the reason offered by Sears is a cover-up for age discrimination. In deciding whether Sears' legitimate, non-discriminatory reasons for its actions are a mere pretext to hide age discrimination, you are not to consider whether Sears' reason showed poor or erroneous judgment. You are not to consider Sears' wisdom in making its selections for appliance repair technicians. Rather, you may only consider whether Sears' reason a fabricated reason asserted merely as a cover-up for discrimination.

Source of Instruction: Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469 (2nd Cir.), cert denied, 534 U.S. 993 (2001); Steger v. General Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 473 (7th Cir. 2002); Heno v. Sprint/United Management Company, 208 F.3d 847 (10th Cir. 2000); O'Malley, et al., Federal Jury Practice and Instructions, §170.22.

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PLAINTIFFS' OBJECTION TO SEARS' PROPOSED INSTRUCTION 4.6: Plaintiffs object to the second paragraph on the basis that it is contrary to established law. Specifically, "evidence indicating that an employer misjudged an employee's performance or qualifications is, of course, relevant to the question whether its stated reason is a pretext masking prohibited discrimination." Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir.2000); Minshall v. McGraw Hill Broad., Co., Inc., 323 F.3d 1273, 1280 (10th Cir. 2003) (holding that "evidence indicating that an employer misjudged an employee's performance . . . is, of course, relevant to the question of whether [the employer's] stated reason [for its actions] is . . . masking prohibited discrimination") (quoting Tyler, 232 F.3d at 813-14 (alterations in original); Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002)(evidence of pretext may include, but is not limited to, "the following: `prior treatment of plaintiff; the employer's policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating . . . criteria); and the use of subjective criteria.'"). Plaintiffs further object to this instruction because it is redundant in that it contains "business judgment" language similar in content to Sears' Proposed Instruction 4.8. Plaintiffs' have objected to Instruction 4.8, however, should it be admitted, Plaintiffs' object to Sears' attempt to place undue emphasis on the principle of its "business judgment" instruction, Sears' Proposed Instruction 4.8, by parroting that language over

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and over again in various instructions. See also Sears' Proposed Instructions 4.9 and 4.11.

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INSTRUCTION NO. 17 (FORMERLY PLAINTIFFS' PROPOSED EXHIBIT 16) ADEA ­ Pretext Sears claims that it had legitimate reasons for not selecting each Plaintiff for employment at the new Sears Repair Facility. Each Plaintiff, on the other hand, claims that the reasons asserted by Sears are a mere pretext to cover up a discriminatory motive. A plaintiff has proven pretext if a plaintiff proves weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action, such, that a reasonable juror could rationally find them unworthy of credence and, thus, infer that the employer did not act for the asserted non-discriminatory reason, the plaintiff has proven pretext. More specifically, the Plaintiffs may show that S