Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-WM-2073 (PAC) ROBERTA PULSE, TONYA HOUSE, Plaintiffs v. THE LARRY H. MILLER GROUP, Defendant

DEFENDANT'S PROPOSED JURY INSTRUCTIONS

Defendant, by and through its counsel, Holland & Hart, LLP, and Judith Holmes & Associates, LLC, hereby submits the following set of Proposed Jury Instructions. Unfortunately, Plaintiffs' counsel refused to assist in finalizing a single set of instructions for the Court to review. Hence, these instructions are a work in progress and contain some instructions to which Defendant objects and some to which Plaintiff objects or may object. Defendant respectfully reserves the right to modify, delete or add instructions to the set provided here. Plaintiff opted to submit a document that does not conform to the Court's trial procedures. Defendant respectfully requests that it be given the opportunity to review and object to Plaintiffs' submitted jury instructions and any others subsequently filed by Plaintiff. Defendant respectfully requests that it be given In addition, Defendant respectfully requests that the Court direct Plaintiffs' counsel to work with Defendant's 1

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counsel to finalize a single set of instructions with objections that conform to the Court's trial procedures. Defendant respectively reserves the right to omit, modify or offer additional instructions. Further, Defendant respectfully submits these instructions without waiving any factual or legal issues with respect to the fact that Defendant: was and is not a corporation or other entity that may be sued, was and is not an employer and never has employed anyone, was not Plaintiffs' employer, and was not responsible and should not be held liable for any wrongful conduct or damages asserted by Plaintiffs. In addition, Defendant submits these instructions without waiving its argument Plaintiffs lack standing and that the Court lacks jurisdiction.

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INDEX TO JURY INSTRUCTIONS

STOCK & GENERAL INSTRUCTIONS Instruction No. 1 NATURE OF CASE ........................................................ Instruction No. 2 ELEMENTS OF CLAIM ................................................... Instruction No. 3 STIPULATED FACTS...................................................... Instruction No. 4 JURY DUTIES ................................................................. Instruction No. 5 COURT'S QUESTIONING OF WITNESSES ................... Instruction No. 6 SUPPLEMENTAL DUTIES OF JURY ............................. Instruction No. 7 EQUAL STANDING ......................................................... Instruction No. 8 JURORS' COMMUNICATION ........................................ Instruction No. 9 CREDIBILITY OF WITNESSES....................................... Instruction No. 10 JURORS' FINDINGS BASED ON PROBABILITIES..... Instruction No. 11 RESOLUTION OF FACTUAL ISSUES ......................... Instruction No. 12 IMPEACHMENT............................................................. Instruction No. 13 DEPOSITION TESTIMONY ........................................... Instruction No. 14 COMPANY ACTS THROUGH AGENTS ....................... Instruction No. 15 TITLE VII ­ STATUTE INVOLVED ................................ Instruction No. 16 EMPLOYER ­ DEFINED ............................................... Instruction No. 17 TITLE VII ­ DISCRIMINATION BASED ON SEX .......... Instruction No. 18 MOTIVATING FACTOR ­ DEFINED ............................. Instruction No. 19 PRETEXT....................................................................... Instruction No. 20 STRAY REMARKS ........................................................ 3

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Instruction No. 21 CONSTRUCTIVE DISCHARGE..................................... Instruction No. 22 AT-WILL EMPLOYMENT ............................................. Instruction No. 23 BUSINESS JUDGMENT................................................ Instruction No. 24 HOSTILE WORK ENVIRONMENT ­ ELEMENTS......... Instruction No. 25 HOSTILE WORK ENVIRONMENT ­ DEFINED ............ Instruction No. 26 REASONABLE PERSON ­ DEFINED .......................... Instruction No. 27 UNWELCOME CONDUCT ­ DEFINED........................ Instruction No. 28 AFFIRMATIVE DEFENSE ­ SUPERVISOR HARASSMENT ................................................................. Instruction No. 29 SUPERVISOR ­ DEFINED ............................................ Instruction No. 30 TANGIBLE EMPLOYMENT ACTION ­ DEFINED ........ Instruction No. 31 RETALIATION ­ STATUTE INVOLVED ....................... Instruction No. 32 PROTECTED ACTIVITIES ­ PARTICIPATION ­ DEFINED...................................................................... Instruction No. 33 PROTECTED ACTIVITIES ­ OPPOSITION ­ DEFINED ........................................................................... Instruction No. 34 PROTECTED ACTIVITIES ­ OPPOSITION (Mistaken Good Faith Belief)..................................................................... Instruction No. 35 ADVERSE ACTION ­ DEFINED.................................... Instruction No. 36 CAUSATION .................................................................. Instruction No. 37 MEASURE OF DAMAGES ............................................ Instruction No. 38 MULTIPLE RECOVERY PROHIBITED ........................

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Instruction No. 39 BACK PAY .................................................................... Instruction No. 40 COMPENSATORY DAMAGES ..................................... Instruction No. 41 EXHAUSTION OF REMEDIES & STATUTE OF LIMITATIONS....................................................................... Instruction No. 42 EXHAUSTION OF REMEDIES & LIMITATIONS OF DAMAGES .................................................................... Instruction No. 43 MITIGATION OF DAMAGES ......................................... Instruction No. 44 AFFIRMATIVE DEFENSE - AFTER-ACQUIRED EVIDENCE Instruction No. 45 PUNITIVE DAMAGES ................................................... Instruction No. 46 UNANIMOUS VERDICT ............................................... Instruction No. 47 FOREPERSON & VERDICT ..........................................

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INSTRUCTION NO. 1 NATURE OF 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 to better understand what will be presented to you and how you should conduct yourselves during the trial. The party who brings a lawsuit is called plaintiff. In this action there are two plaintiffs: Roberta Pulse and Tonya House. The party against whom the suit is brought is called defendant. In this action the defendant is The Larry H. Miller Group. Plaintiffs are females who claim that they were discriminated against and then retaliated against after they made reports of sexual harassment and sex discrimination. Plaintiffs assert that the retaliation consisted of a campaign of hostility and harassment, as well as disciplinary actions, culminating in the loss of their jobs. As relief, Plaintiffs request back pay, compensatory damages, punitive damages. Defendant The Larry H. Miller Group contends that Plaintiffs' actual employer is not a party to this lawsuit and that Defendant is a company or an employer, much less an employer of either of the Plaintiffs. Defendant denies it employed either of the

Plaintiffs, denies it unlawfully discriminated against either Plaintiff based on sex. Defendant also denies that it sexually harassed or retaliated against either Plaintiff. Further, Defendant claims that Ms. House voluntarily resigned from her position with her actual employer, denies that either Plaintiff suffered damages of any kind, that Defendant caused any damage to either Plaintiff, and denies that Plaintiffs mitigated any damages they claim to have suffered.

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INSTRUCTION NO. 2 ELEMENTS OF CLAIM

Hostile Work Environment/Harassment Based on Sex. In order for plaintiffs to establish their claims of hostile work environment/harassment based on sex, they have the burden of proving the following essential elements by a preponderance of the evidence: 1. 2. 3. The conduct complained of was unwelcome: The conduct complained of was offensive; The conduct complained of was sexual in nature or directed at the Plaintiffs because of their sex; The conduct complained of was sufficiently severe or pervasive to alter the terms and conditions of the Plaintiffs' employment by creating an abusive working environment; and, The Defendant knew or should have known about the conduct to which Plaintiffs claim they were subjected and failed to implement reasonably prompt and appropriate corrective action.

4.

5.

If you find that plaintiffs have failed to prove any of those 5 elements by a preponderance of the evidence, then your verdict must be for defendant, as to the claim of hostile work environment/harassment based on sex. If, on the other hand, you find that plaintiffs have proved the 5 elements by a preponderance of the evidence, then your verdict must be for plaintiffs on this claim.

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2.

Sex Discrimination. In order for plaintiffs to establish their claims of sex

discrimination, they have the burden of proving the following essential elements by a preponderance of the evidence: 1. The Defendant discriminated against Plaintiffs Roberta Pulse and Tonya House in the terms, conditions, and privileges of employment; and The Plaintiffs' sex was a motivating factor for the Defendant's action.

2.

If you find that plaintiff have failed to prove any of those 2 elements by a preponderance of the evidence, then your verdict must be for defendant, as to the claim of sex discrimination. If, on the other hand, you find that plaintiffs have proved the 2 elements by a preponderance of the evidence, then your verdict must be for plaintiffs on this claim, 3. Retaliation. In order for each plaintiff to establish her claims of retaliation,

she has the burden of proving the following essential elements by a preponderance of the evidence: 1. 2. That she engaged in a protected activity under Title VII; She suffered an adverse employment action at the same time as or after that protected activity; and There was a casual connection between the protected activity and the adverse action.

3.

If you find that a plaintiff has failed to prove any of those 3 elements by a preponderance of the evidence, then your verdict must be for defendant, as to the claim of retaliation brought by that Plaintiff against Defendant.

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If, on the other hand, you find that a plaintiff has proven the 3 elements by a preponderance of the evidence, then your verdict must be for that Plaintiff on the claim of retaliation brought by that Plaintiff against the Defendant. DEFENDANT'S OBJECTIONS: These instructions are incomplete and incorrect statements of the elements of the claims asserted by the Plaintiffs in this case. As a result, they are likely to cause jury confusion. Even if corrected, they are duplicative of the instructions given later in the case.

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INSTRUCTION NO. 3 STIPULATED FACTS The parties to this lawsuit have agreed to certain facts which you must treat as having been proved. Those facts are: 1. 2. Plaintiff Roberta Pulse and Plaintiff Tonya House are females. The Handbook also contains a policy prohibiting retaliation. "It is the

policy of this company not to retaliate against an employee regarding a charge of employment discrimination or harassment. Protection against employer retaliation applies not only to the complaining employee, but to all other employees who might participate in any investigation. This

protection applies regardless of the validity of the complaining employee's charge." 3. The Handbook provides that "[t]his company prohibits all forms of discrimination or harassment against any individual based on gender . . . in any employment condition. Violations of this policy will be treated as disciplinary matters. `Harassment' includes, but is not limited to,

inappropriate graphic, verbal, or physical conduct relating to the categories listed above." 4. It further provides that "it is the policy of this company to prohibit the sexual harassment of any employee or client, male or female, by another employee or client. Prohibited actions include . . . creating an intimidating, hostile, or offensive working environment by such conduct."

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5.

The Handbook also provides that "it is the policy of the company not to retaliate against any employee regarding a charge of employment discrimination or harassment. Protection against employer retaliation

applies not only to the complaining employee, but to all other employees who might participate in any investigation. This protection applies

regardless of the validity of the complaining employee's charge."

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INSTRUCTION NO. 4 JURY DUTIES Now, I will give you some preliminary instructions to guide you in your participation in the trial. Duty of Jury It will be your duty to find from the evidence what the facts are. You, and you alone, are the judges of the facts. You will then have to apply to those facts the law as I, the court, will give it to you. You must follow that law whether you agree with it or not. Nothing I may say or do during the course of the trial is intended to indicate, or should be taken by you as indicating, what your verdict should be. Evidence The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits, and any facts the lawyers agree or stipulate to, or that I may instruct you to find. Generally, there are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. You may consider both kinds of evidence and determine how much weight to give it. It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness's testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case.

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Judge the evidence just like any reasonable and careful person would treat an important question that must be resolved by examining facts, opinions and other evidence. Use your good sense in considering and evaluating the evidence. Give it a reasonable and fair interpretation in light of your life experiences and knowledge of people and their tendencies. You are not limited solely to the admitted evidence itself as you may also make inferences and reach conclusions that reason and common sense lead you to draw from that evidence. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. Statements, arguments, and questions by lawyers are not evidence. 2. Objections to questions are not evidence. Lawyers have an obligation to their clients to make an objection when they believe evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction. 3. Testimony that I have excluded or told you to disregard is not evidence and must not be considered. 4. The lawyers have highlighted certain parts of some exhibits. However, it is for you to determine the significance of the highlighted parts. 5. Anything you may have seen or heard outside the courtroom is not evidence. You are to decide the case solely on the evidence presented here in the courtroom.

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. Burden of Proof This is a civil case. Each plaintiff has the burden of proving her case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what she claims is more likely true than not. To put it differently, as to each plaintiff, if you were to put that plaintiff's and defendant's evidence on opposite sides of the scales, that plaintiff would have to make the scales tip somewhat on her side. If either plaintiff fails to meet this burden, the verdict concerning that plaintiff must be for defendant. Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case, and you should therefore put it out of your mind. Conduct by the Jury Now, a few words about your conduct as jurors. First, I instruct you that during the trial you are not to discuss the case with anyone, including yourselves and your families, or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. Should anyone try to talk to you about it, bring it to my attention promptly. Second, do not read or listen to anything touching on this case in any way. Should anyone try to give you anything about this case, or if you inadvertently hear or see something about it, bring it to my attention promptly.

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Third, do not research or investigate the case on your own. Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberation at the end of the case. If you wish, you may take notes to help your recollection. If you do, leave them in the jury room when you leave at night. And remember that they are for your own personal use--they are not to be given or read to anyone else. Course of the Trial The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence. Next, plaintiffs will present their witnesses, and defendant may cross-examine them. Then defendant will present its witnesses, and plaintiffs may cross-examine

them. Plaintiffs then may have a final opportunity to present rebuttal evidence, again subject to the defendant's cross examination. After that, the attorneys will make their closing arguments to summarize and interpret the evidence for you. Those will be followed by further instructions on the law. You will then retire to deliberate on your verdict.

Authority: See C.J.I. ­ Civ. 3:17 (4th)

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INSTRUCTION NO. 5 COURT'S QUESTIONING OF WITNESSES During the course of a trial, I may occasionally ask questions of a witness, in order to bring out facts not then fully covered in the testimony. Please do not assume that I hold any opinion on the matters to which my questions may have related. Remember that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts.

Authority: Devitt, Blackmar & Wolff, 70.13 (4th Ed.)

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INSTRUCTION NO. 6 SUPPLEMENTAL DUTIES OF JURY MEMBERS OF THE JURY: Now that you have heard the evidence and the argument, it becomes my duty to supplement the introductory instructions on the law governing this case. It is your duty as jurors to follow the law as I state it. You will then apply the law to the facts as you find them from the evidence. You are not to single out one instruction alone as stating the law, but must consider the introductory and these instructions as a whole. You are not to be concerned with the wisdom of any rule of law stated by me. It would be a violation of your oath to base your verdict on anything other than the law as presented in these instructions and the facts as you find them. Counsel may properly refer to some of the governing rules of law in their arguments. If, however, there is any difference between the law as stated by counsel and that stated by me in these instructions, you are governed by my instructions. As members of the jury, you are the sole and exclusive judges of the facts. You judge the evidence. You determine what evidence to believe. You resolve conflicts in the testimony. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts; it is yours. If any reference to evidence by counsel or me is not consistent with your own recollection of that evidence it is your recollection that controls.

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You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice or public opinion. The court and the parties expect that you will carefully and impartially consider all the evidence, follow the law as it has been given to you, and reach a just verdict, regardless of the consequences.

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INSTRUCTION NO. 7 EQUAL STANDING This case should be considered and decided by you as an action between parties of equal standing in the community, of equal worth, and holding the same or similar stations of life. Defendant is entitled to the same fair trial at your hands as a private individual. All stand equal before the law, and are to be dealt with as equals in a court of justice.

Authority: See Devitt, Blackmar & Wolff, 71.04 (4th Ed.)

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INSTRUCTION NO. 8 JURORS' COMMUNICATION I do not invite communications from you, but if it becomes necessary during your deliberations to communicate with the court, you may send a note by the court security officer, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case other than in writing, or orally here in open court. Upon receipt of a note from you, I will need to convene a meeting with counsel to discuss your questions or request. It may well take considerable time and effort to respond. You will note from the oath about to be taken by the court security officer that he or she, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Let me know immediately if anyone attempts any such communication. Bear in mind also that you are never to reveal to any person--not even to the court-- how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous verdict.

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INSTRUCTION NO. 9 CREDIBILITY OF WITNESSES You are the sole judges of the credibility of the witnesses and the weight to be given their testimony. You should take into consideration their means of knowledge, strength of memory and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony; their motives, their intelligence; their ability to observe the matters about which they have testified; whether their testimony has been contradicted or supported by other evidence; their bias, prejudice or interests, if any; their manner or demeanor upon the witness stand; and all other facts and circumstances shown by the evidence which affect the credibility of the witnesses. Based on these considerations, you may believe all, part or none of the testimony of a witness and you may give the testimony such weight, if any, as you think it deserves.

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INSTRUCTION NO. 10 JURORS' FINDINGS BASED ON PROBABILITIES Any finding of fact you make must be based on probabilities, not possibilities. It may not be based on surmise, speculation, or conjecture.

Authority:

CJI-Civ. 3:4 (4th ed.)

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INSTRUCTION NO. 11 RESOLUTION OF FACTUAL ISSUES You should not resolve factual issues in the case solely by adding up the number of witnesses who testify on each side of a certain issue. If the jurors believe the

testimony of a single witness who testifies about a disputed event, such testimony is enough for you to resolve the factual dispute in accordance with this single witness's version of the event, even though a number of witnesses may have testified to the contrary. The test is not which side brings the greater number of witnesses, or presents the greater quantity of evidence; the test, rather, is which witness or witnesses, and which evidence, appeals to your minds as being the most accurate, believable, and otherwise trustworthy.

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INSTRUCTION NO. 12 IMPEACHMENT A witness may be discredited or impeached by contradictory evidence, or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars and you may reject part or all of the testimony of that witness or give it such weight as you may think it deserves.

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INSTRUCTION NO. 13 DEPOSITION TESTIMONY Certain testimony has been read into evidence from a deposition. A

deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given by the witness from the witness stand.

Authority:

See CJI ­ Civ. 3:9 (4th ed.)

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INSTRUCTION NO.14 COMPANY ACTS THROUGH AGENTS A company may act only through natural persons as its agents or employees. In general, any agents or employees of a company may bind the company by their acts and declarations made while acting within the scope of their authority delegated to them by the company or within the scope of their duties as employees of the company. The Larry H. Miller Group can be held legally responsible for the discriminatory and retaliatory actions occurring the Denver dealerships (Larry H. Miller Used Car Superstore and Larry Miller Toyota) if Plaintiffs prove by a preponderance of the evidence that these entities had (1) interrelation of operations; (2) centralized control over labor relations; (3) common management; and (4) common ownership or financial control. All four factors, however, are not necessary for single-employer status. Rather, the appropriate inquiry is "What entity made the final decisions regarding employment matters related to the person claiming discrimination? " The Larry H. Miller Group also can be held legally responsible for the discriminatory and retaliatory actions occurring the Denver dealerships (Larry H. Miller Used Car Superstore and Larry Miller Toyota) if Plaintiffs prove by a preponderance of the evidence that The Larry H. Miller Group exercised a significant degree of control over the acts giving rise to the claim of wrongdoing, Authority: Knowlton v. Teltrust, 189 F.3d 1177, 1185 (10th Cir. 1995); Frank v. U.S. West, Inc., 3 F.3d 1357, 1362-3 (10th Cir. 1993)

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DEFENDANT'S OBJECTIONS: The stated case law does not support the instruction. At The instruction is irrelevant and inapplicable to this case. Further, such an instruction requires the presence of a second defendant that is a corporation. It is undisputed that the facts of this case do not support this. In addition, Defendant objects to all instructions seeking to assert new theories of liability.

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INSTRUCTION NO. 15 TITLE VII ­ STATUTE INVOLVED Each Plaintiff's claims of discrimination based on sex, sexual harassment and retaliation are brought under a federal law known as Title VII of the Civil Rights Act of 1964, as amended, often called Title VII. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to the terms, conditions or privileges of employment because of such individual's sex. However, Title VII does not require employees to afford preferential treatment to employees because of their sex but only that they treat their employees without regarding to their sex.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005) (modified regarding the facts presented in this case), citing: 42 U.S.C. § 2000 e-2.

See also Art Hill v. McGraw-Hill, Inc., Civ. Action No. 94-WM-1697.

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INSTRUCTION NO. 16 EMPLOYER ­ DEFINED To establish her claims of discrimination based on sex, sexual harassment or retaliation against Defendant The Larry H. Miller Group, each Plaintiff first must prove by a preponderance of the evidence that Defendant The Larry H. Miller Group was an "employer" within the meaning of Title VII by proving (1) The Larry H. Miller Group had 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as when discrimination, sexual harassment and retaliation allegedly occurred, or (2) The Larry H. Miller Group had 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year prior to when discrimination, sexual harassment and retaliation allegedly occurred. In determining whether an employer meets the 20-week requirement, you should count only calendar weeks, if any, in which The Larry Miller Group actually employed 15 or more employees for each workday of that week. If you find that that Defendant was not an employer, you must find in favor of Defendant and against Plaintiffs. If you find that Defendant was an employer, each Plaintiff must prove by a preponderance of the evidence that Defendant The Larry Miller Group was her employer. If you find that Defendant was not Plaintiffs' employer, then you must find in favor of Defendant and against Plaintiffs. Authority: 42 U.S.C.A. § 2000e(b); EEOC Compliance Manual, §2-III(B)(1)(a)(i). 29

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INSTRUCTION NO. 17 TITLE VII ­ DISCRIMINATION BASED ON SEX In order for each Plaintiff to establish her claim for discrimination against the Defendant based on sex under Title VII, she must prove the following by a preponderance of the evidence:

1.

Employees of the Defendant took adverse employment actions against her; and The Plaintiff's sex was a motivating factor for the actions of those employees of the Defendant.

2.

If you find that a Plaintiff has failed to prove either or both of these propositions by a preponderance of the evidence, then you must find against that Plaintiff and in favor of the Defendant on her discrimination claim. If, on the other hand, you find that that Plaintiff has proven both propositions by a preponderance of the evidence, then you must find in that Plaintiff's favor and against Defendant. Each Plaintiff must prove each element to prove that Defendant unlawfully discriminated against her based on sex.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995). See also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973).

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INSTRUCTION NO. 18 MOTIVATING FACTOR ­ DEFINED Each Plaintiff is not required to prove that her sex was the sole or exclusive motivating factor for the decision of Defendant's employee(s). Each Plaintiff must

prove, however, that sex was a motivating factor. That is, the Plaintiffs' sex was the factor that made a difference in the Defendant's decision to take adverse employment actions against them, such as delaying Ms. House's pay, and terminating Ms. Pulse's employment. In determining whether sex was a "motivating factor" in the Defendant's decision to take any adverse employment action, you may consider any statements made or acts done or admitted by the Defendant, and all other facts and circumstances in evidence indicating state of mind. An improper motive, if it exists, is seldom directly admitted and may or may not be inferred from the existence of other facts.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004); James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir. 1994); Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). DEFENDANT'S OBJECTIONS: This instruction uses the term "decision" when the last instruction used the term "action," which may confuse the jury. In addition, the better test to use for motivating factor is the "but for" test. See, e.g., Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004); Hampton v. Dillard Dept. 31

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Stores, Inc., 248 F.3d 1091, 1111 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002); McKenzie v. Renberg's Inc., 94 F.3d 1478, 1483 (10th Cir. 1996); James v. Sears, Roebuck & Co., 21 F.3d 989, 992 (10th Cir. 1994); and Perrell v. Financeamerica Corp., 726 F.2nd 654, 656 (10th Cir. 1984) (Age must "make a difference" in the sense that "but for" the factor of age discrimination, the employee would not have been adversely affected).

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INSTRUCTION NO. 19 PRETEXT Defendant claims that Plaintiff's employer had legitimate, nondiscriminatory reasons for any alleged employment actions taken against Plaintiffs. Each Plaintiff, on the other hand, claims that her employer's asserted reasons were a mere pretext to cover up a discriminatory motive. Each Plaintiff may show that the stated reasons for her employer's decisions were pretextual in several ways:

1.

Evidence that the stated reasons for its decisions were false;

2. Evidence that the Plaintiff's employer acted contrary to a written policy prescribing the action to be taken by the Plaintiff's employer under the circumstances; or 3. Evidence that the Plaintiff's employer acted contrary to an unwritten policy or contrary to the established practice of Plaintiff's employer when it allegedly made [describe adverse employment decision] affecting the Plaintiff. In determining whether the stated reasons for any decision are genuine or pretextual, you must examine the facts as they appeared to the person making the employment decision at the time the decision was made.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Townsend v. Lumbermen Mut. Cas. Company, 294 F.3d 1232 (10th Cir. 2002); Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000); Selenke 33

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v. Medical Imaging of Colorado, Inc., 248 F.3d 1249, 1261 (10th Cir. 2001) (pretext must be resolved by reference to the person making the decision at the time the decision is made). DEFENDANT'S OBJECTION: Plaintiff agreed to provide but has not yet provided information for the bracketed portion of the instruction.

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INSTRUCTION NO. 20 STRAY REMARKS You have heard evidence during the course of the trial regarding certain allegedly discriminatory remarks. Sex-related comments referring directly to a Plaintiff may support an inference of discrimination. However, isolated or ambiguous comments may be too abstract or remote to support a finding of discrimination. In order to prove discrimination by reference to comments in the workplace, a Plaintiff must demonstrate that a connection exists between the comments made and her employer's decision to treat her differently.

Authority: Cone v. Longmont United Hospital Association, 14 F.3d 526, 531 (10th Cir. 1994); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994).

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INSTRUCTION NO. 21 CONSTRUCTIVE DISCHARGE To prove her claim of constructive discharge, Plaintiff Tonya House must show that the Defendant by its illegal discriminatory acts made working conditions so difficult that a reasonable person in the Plaintiff's position would feel compelled to resign.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 2350 (2004); Garrett v. Hewlett-Packard Company, 305 F.3d 1210, 1221 (10th Cir. 2002). DEFENDANT'S OBJECTIONS: Constructive discharge is an adverse employment action, not a claim. The instruction assumes Defendant is an employer and that it 36

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was Ms. House's employer, assumes that there were illegal discriminatory acts, and does not conform to Suders in the sexual harassment context.

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INSTRUCTION NO. 22 AT-WILL EMPLOYMENT Each Plaintiff was an employee at will, which means she or her employer could terminate the employment relationship with her employer at any time, with or without prior notice and without or without cause or reason, as long as her employer did not terminate her because of sex discrimination or retaliation.

Authority: See, e.g., Kevin McGuire V. Continental Airlines, Inc., 210 F.3d 1141, 1145 (10th Cir. 2001), citing Crawford Rehabilitation Servs. v. Weissman, 938 P.2d 540, 546 (Colo. 1997).

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INSTRUCTION NO. 23 BUSINESS JUDGMENT

The law requires only that an employer not discriminate against an employee based on sex, or retaliate against her for making a complaint of sex discrimination or harassment to the employer. The law does not require Plaintiff's employer to use good judgment, to make correct decisions, or even to treat its employees fairly. Therefore, in deciding each Plaintiff's claims, it is not your function to second-guess the decisions that were made by Plaintiff's employer unless you find that the decisions were motivated by illegal discrimination, sex harassment or retaliation and you find that those decisions were made by Defendant's employees, if any.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1261 (10th Cir. 2001) (juries may not second-guess the business judgment of the employer or question whether the decision was wise, fair or even correct); Bullington v. United Airlines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999) ("The relevant inquiry is not whether United's proffered reasons were wise, fair or correct, but whether United honestly believed those reasons and acted in good faith upon those beliefs."); Sanchez v. Philip Morris, Inc., 992 F.2d 244, 247 (10th Cir. 1993) (Title VII is not violated by the exercise of erroneous or even illogical business judgment.) 39

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INSTRUCTION NO. 24 HOSTILE WORK ENVIRONMENT ­ ELEMENTS Each of the Plaintiffs has alleged that she was were subjected to a hostile work environment based upon sex in violation of the Title VII of the Civil Rights Act of 1964. In order to prove her claim of hostile work environment, each Plaintiff must prove each of the following:

1. 2. 3.

The conduct complained of was unwelcome; The conduct complained of was offensive; The conduct complained of was sexual in nature or directed at her because of her sex; The conduct complained of was sufficiently severe or pervasive to alter the terms and conditions of her employment by creating an abusive working environment; and Employees of the Defendant knew or should have known about the conduct to which Plaintiff claims she was subjected and failed to implement reasonably prompt and appropriate preventative and/or corrective action.

4.

5.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: 29 C.F.R. §1604.11; Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001). DEFENDANT'S OBJECTIONS: Counsel were preparing to modify all of the sexual harassment instructions when Plaintiff's counsel refused to assist in finalizing a single set of instructions for the Court to review. This instruction assumes that Defendant was an employer and that it was Plaintiffs' employer. It does not reflect that the plaintiff needs to prove that it was Defendant's employees who 40

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took such actions. As included here, this and all of the instructions concerning sexual harassment do not fairly reflect the law and are confusing.

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INSTRUCTION NO. 25 HOSTILE WORK ENVIRONMENT ­ DEFINED In determining whether a work environment is hostile, you may consider some or all of the following factors: · · · · · · · · ·

The nature and severity of the conduct; Whether the conduct complained of was humiliating; Whether the conduct complained of was repeated or a single incident; Whether the conduct complained of was by a co-worker or a supervisor; The effect of the conduct on the plaintiff's mental or emotional state; Whether others joined in the conduct; Whether the conduct was directed at more than one person; The context in which the conduct occurred; Whether the conduct was physically threatening or humiliating or a mere offensive utterance.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1988); Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); O'Shea v. Yellow Tech. Servs., 185 F.3d 1093, 1097-98 (10th Cir. 1999); Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).

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DEFENDANT'S OBJECTIONS: Counsel were preparing to modify all of the sexual harassment instructions when Plaintiff's counsel refused to assist in finalizing a single set of instructions for the Court to review. This instruction is incomplete because it does not include an instruction on the need to consider the totality of circumstances and the social context in which Plaintiff worked.

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INSTRUCTION NO. 26 REASONABLE PERSON ­ DEFINED In determining whether a hostile work environment existed, you must consider the evidence from the perspective of a reasonable person. This is an objective

standard, and you must look at the evidence from the perspective of a reasonable person's reaction to a similar environment under similar circumstances.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Harris v. Forklift Sys., 510 U.S. 17, 21-23 (1993); Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Andrews v. Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990) (An "objective standard protects the employer from the `hypersensitive' employee.")

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DEFENDANT'S OBJECTIONS: Counsel were preparing to modify all of the sexual harassment instructions when Plaintiff's counsel refused to assist in finalizing a single set of instructions for the Court to review.

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INSTRUCTION NO. 27 UNWELCOME CONDUCT ­ DEFINED "Unwelcome conduct" means conduct that was not solicited or encouraged by a plaintiff and that Plaintiff herself regarded as undesirable.

Authority: See Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). DEFENDANT'S OBJECTIONS: Counsel were preparing to modify all of the sexual harassment instructions when Plaintiff's counsel refused to assist in finalizing a single set of instructions for the Court to review. This instruction is incomplete.

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INSTRUCTION NO. 28 AFFIRMATIVE DEFENSE ­ SUPERVISOR HARASSMENT If you find that a Plaintiff has proven that she was exposed to a hostile work environment by a supervisor, then you must find in favor of that Plaintiff unless the Defendant proves each of the following:

1.

The hostile work environment did not result in a tangible employment action; The Defendant maintained an effective complaint procedure which provided employees with reasonable options for reporting unwanted workplace behavior; and The Plaintiff unreasonably failed to use the complaint procedure or otherwise avoid harm.

2.

3.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). See also Pennsylvania State Police v. Suders, 524 U.S. 129, 211 (2004). DEFENDANT'S OBJECTIONS: Counsel were preparing to modify all of the sexual harassment instructions when Plaintiff's counsel refused to assist in finalizing a

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single set of instructions for the Court to review. This instruction assumes that if Plaintiffs suffer harassment, Defendant is liable when Defendant was not an employer or Plaintiffs' employer.

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INSTRUCTION NO. 29 SUPERVISOR ­ DEFINED Regardless of an employee's title, a "supervisor" is an employee with authority to hire, fire, discipline, promote, transfer, or evaluate the performance of other employees, or to effectively recommend such actions.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (a supervisor is an individual who serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment); Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 1034 (7th Cir. 1998) (The essence of supervisory status is the "power to hire, fire, demote, promote, transfer, or discipline an employee").

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INSTRUCTION NO. 30 TANGIBLE EMPLOYMENT ACTION ­ DEFINED A "tangible employment action" means a significant change in employment status, such as hiring, firing, layoff, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in wages or benefits. A tangible employment action is not limited to monetary losses of benefits or wages, but it must be more than a mere inconvenience or alteration of job responsibility.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998) (conduct is a tangible employment action if it "constitutes a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits").

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INSTRUCTION NO. 31 RETALIATION ­ STATUTE INVOLVED Title VII makes it unlawful for an employer to retaliate against a person because that person has engaged in a protected activity under Title VII. To establish her claim of retaliation against Defendant, each Plaintiff must prove: 1. That she engaged in a protected activity under Title VII, of which Defendant's employees were aware; That she suffered an adverse employment action; and There was a causal connection between any protected activity and any adverse action taken by those employees of Defendant who were aware of any protected activity by Plaintiff.

2. 3.

If you find that a Plaintiff has proven each of these elements by a preponderance of the evidence, then you must find for her and against Defendant on this claim. If, on the other hand, you find that a Plaintiff has failed to prove any one or more of these elements by a preponderance of the evidence, then you must find against her on this claim and in favor of Defendant.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: 42 U.S.C. § 2000e-3 (Title VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a) (ADA). See also Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262-63 (10th Cir. 1998); Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1381 (10th Cir. 1994). The Tenth Circuit has held that the prima facie elements of a retaliation claim under 42 U.S.C. § 1981 are identical to those for a retaliation claim under Title VII. See Roberts v. Roadway Express, 149 F.3d 1098, 1103 & 1103 n.1 (10th Cir. 1998). 51

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INSTRUCTION NO. 32 PROTECTED ACTIVITIES ­ PARTICIPATION ­ DEFINED Protected activities include making a charge of discrimination, harassment or retaliation, or testifying, assisting or otherwise participating in any manner in her own or someone else's charge of discrimination, harassment or retaliation, investigation, proceeding or hearing under Title VII. In this case, each Plaintiff asserts that she engaged in the following protected activities: notifying management about the harassing conduct of Mark Dundun, Tony Schnurr, and Bob Cockerham, and filing Charges of Discrimination with the EEOC. Even informal complaints to management are sufficient to establish that Plaintiffs engaged in protected activities. Plaintiffs must prove that they actually participated in a protected activity, but Plaintiffs do not have to prove that the underlying charge, investigation, proceeding or hearing was successful.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a) (ADA). See also Robbins v. Jefferson County School District, 186 F.3d 1253 (10th Cir. 1999), abrogated on other grounds, National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993).

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DEFENDANTS OBJECTION: The only two charges as to which Plaintiffs can claim were protected activity were those filed before they separated from employment. In addition, protected activity typically has to be known by an employee of the Defendant. Here, Defendant was not an employer, did not employ Plaintiffs and could not have been aware of any protected activity.

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INSTRUCTION NO. 33 PROTECTED ACTIVITIES ­ OPPOSITION ­ DEFINED Protected activities include opposing a practice made unlawful by Title VII, such as expressing a reasonable good faith belief that the employer has engaged in a discriminatory practice. In this case, each Plaintiff asserts that she engaged in the following protected activities: [enumerate allegedly protected activities]. Plaintiffs must prove they engaged in these activities to oppose a practice made unlawful by the statute.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a) (ADA). See also, Shinwari v. Raytheon Aircraft Co., 215 F.3d 1337, 2000 U.S. App. LEXIS 12816, *15 (10th Cir. June 8, 2000), overruled on other grounds, Crumpacker v. Kan. Dept. of Human Resources, 338 F.3d 1163, 1171 (10th Cir. 2003) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001)); Archuleta v. Colorado Department of Institutions, 936 F.2d 483, 487 (10th Circ. 1991); Love v. Re/Max, 738 F.2d 383, 385 (10th Cir. 1984). DEFENDANT'S OBJECTIONS: Plaintiff agreed to enumerate protected activities but has not done so.

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INSTRUCTION NO. 34 PROTECTED ACTIVITIES ­ OPPOSITION (Mistaken But Reasonable Good Faith Belief) A Plaintiff's activities in opposing a practice she believed is unlawful under Title VII is protected activity even though it is based on a mistaken but reasonable good faith belief that Title VII has been violated.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Crumpacker v. Kan. Dept. of Human Resources, 338 F.3d 1163, 1171-72 (10th Cir. Feb. 1, 2003) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001)).

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INSTRUCTION NO. 35 ADVERSE ACTION ­ DEFINED An "adverse action" is one that alters the employee's terms, conditions, or privileges of employment, or otherwise adversely affects his or her status as an employee. An adverse action, however, does not include a mere inconvenience or personality conflict in the workplace. An employee does not suffer an adverse action when fellow co-workers or supervisors give her the "cold shoulder" or engage in rumors or gossip about her employment. A workplace that is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of Plaintiffs' employment constitutes an adverse employment action.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: 42 U.S.C. § 2000e-3(a) (adopting definitions in 42 U.S.C. § 2000e-2(a)); Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir. 2000); Heno v. Sprint/United Mgmt. Co., 208 F. 3d 847, 857 (10th Cir. 2000). See also Sanchez v. Denver Public Schools, 164 F.3d 527, 533 (10th Cir. 1998), quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 (3d Cir. 1997); Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1217 (10th Cir. 1998); Dunbar v. Bd. of Directors of the Leavenworth Public Library, 996 F. Supp. 1086, 1092-1093 (D. Kan. 1998); Arnold v. Yale New Haven Hospital, Civ. Action No. 3:99CV1853(CFD), 2002 WL 1608226 (D. Conn. July 12, 2002); West v. Maxon Corporation, No. IP 980339-C T/K, 2001 WL 1712511 (S.D. Ind. Dec. 10, 2001); Quinn v. Salvation Army, No. CV 99-3794-FMC, 2000 WL 888065 (C.D.Cal. Jan. 18, 2000); Rushing v. United Airlines, 919 F. Supp. 1101, 1111 (N.D.Ill. 1996).

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INSTRUCTION NO. 36 CAUSATION A Plaintiff may establish a causal connection between the protected activity and the allegedly adverse action of her employer: 1. By demonstrating direct evidence that retaliation was a motivating factor in any decision by an employee of Defendant, if any, to take an adverse action, or By demonstrating circumstances raising an inference that retaliation was a motivating factor in the decision by an employee of Defendant, if any, to take an adverse action, such as (a) (b) protected conduct closely followed by an adverse action, or proof of any efforts by Plaintiff's employer to conceal alleged retaliatory conduct.

2.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003); O'Neal v. Ferguson Construction Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir. 2000); Burrus v. United Tele. Co., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).

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INSTRUCTION NO. 37 MEASURE OF DAMAGES I will now instruct you on the proper measure of damages, if any, to be recovered by each Plaintiff should you find in her favor on one or more of her claims. The fact that I will instruct you on the proper measure of damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict. These instructions are given only for your guidance, in the event that you should find in favor of one or both of the Plainitffs on the question of liability in accordance with the other instructions. If you should find for Defendant, these instructions on damages should be disregarded. In determining the amount of damages that you decide to award to each Plaintiff, if any, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy or speculation. On the other hand, the law does not require that each Plaintiff prove the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit. In calculating the damages, you may not consider any award for future wages and benefits, and the costs of this lawsuit, including attorneys' fees, as these awards, if appropriate, will be calculated and determined by the Court

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INSTRUCTION NO. 38 MULTIPLE RECOVERY PROHIBITED A plaintiff in a civil action may recover only once for the same injury, even though she seeks an award of damages under several theories of relief. For example, a plaintiff who lost $100 as a result of the conduct of Defendant's employee, may recover only a total of $100, even if she sought $100 in damages from Defendant on many claims. In this case, Plaintiff is seeking damages under three theories of relief: discrimination based on sex, sexual harassment, and retaliation. I am instructing you on the rule prohibiting multiple recoveries so that you will be aware of the law on this issue. It is I, rather than you, however, who will apply the rule. You are specifically instructed to consider each claim alleged by each Plaintiff's independently. That is, you are to consider each of these claims as though it were the only claim in this case. If you find in favor of either Plaintiff on any one of her claims and that she is entitled to damages on that claim, you are to write in an award of damages on that claim without regard to your finding for or against Plaintiff on any other claim. I will apply the rule when I issue my judgment on your verdict, whatever that may be. Perhaps it bears repeating that nothing in this or any other instruction is meant to suggest what your finding on any or all claims should be. My instructions on damages are only to be applied in the event you find liability on one or more claims. Authority: CJI ­ Civ. 6:14 (4th ed. 2000).

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INSTRUCTION NO. 39 BACK PAY

If you find that the Defendant unlawfully discriminated against a Plaintiff on the basis of sex, sexually harassed her, or retaliated against her for engaging in protected activities, then you must determine the amount of back pay that that Plaintiff proved was caused by the Defendant's wrongful conduct. In determining back pay, you must make several calculations. If you find that Defendant unlawfully discriminated against Plaintiff Pulse on the basis of sex, sexually harassed her, or retaliated against her for engaging in protected activities: First calculate the amount of pay and bonuses that she would have earned from the date of her termination until today's date had she not been terminated. Then calculate and add the value of the employee benefits (health, life and dental insurance, vacation leave, etc.) that Plaintiff Pulse would have received from the date of that termination until the date of trial had she not been terminated. Then, subtract from this sum the amount of pay and benefits that she actually earned from other employment during this time. If you find that Defendant unlawfully discriminated against Plaintiff House on the basis of sex, sexually harassed her, or retaliated against her for engaging in protected activities: First, calculate the amount of pay and bonuses that Plaintiff House would have earned from the date of her alleged constructive discharge until today's date had she not been constructively discharged. 60

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Then calculate and add the value of the employee benefits (health, life and dental insurance, vacation leave, etc.) that Ms. House would have received from the date of her alleged constructive discharge until the date of trial had she not been constructively discharged. Then, subtract from this sum the amount of pay and benefits that Plaintiff House actually earned from other employment during this time.

Authority: Model Employment Law Jury Instructions, Federal Faculty of Advocates, Ad Hoc Committee (Nov. 1, 2005), citing: Federal Employment Jury Instructions, § 1:1260; Model Jury Instructions (Civil) Eighth Circuit § 5.02 (1998).

DEFENDANT'S OBJECTION: Back pay is an equitable remedy to be awarded, if at all, by the Court.

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INSTRUCTION NO. 40 COMPENSATORY DAMAGES If you find that the Defendant unlawfully discriminated against a Plaintiff based on sex, sexually harassed her or retaliated against her on the basis of her protected activity, then you must determine an amount that is fair compensation for that Plaintiff's losses. You may award compensatory damages for injuries that she proved were

caused by the Defendant's wrongful conduct. The damages that you award must be fair compensation, no more and no less. You may award damages for any emotional distress, pain, suffering, inconvenience or mental anguish, embarrassment, and humiliation that that Plaintiff experienced as a consequence of the wrongful conduct. No evidence of monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for setting the compensation to be awarded for these elements of