Free Proposed Jury Instructions - District Court of Arizona - Arizona

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MARY JO O'NEILL, AZ Bar No. 005294 SALLY C. SHANLEY , AZ Bar No. 012251 KATHERINE J. KRUSE , AZ Bar No. 019167 MICHELLE G. MARSHALL , AZ Bar No. 017358 VALERIE L. MEYER , CA Bar No. 228586 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 e-mail: [email protected] [email protected] Attorneys for Plaintiff J. MARK OGDEN , AZ Bar No. 017018 J. GREG COULTER , AZ Bar No. 016890 KRISTIN R. CULBERTSON, AZ Bar No. 20801 LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 E. Camelback Rd., Suite 900 Phoenix, Arizona 85016-4242 Telephone: 602.474.3600 e-mail: [email protected] [email protected] [email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIV 04-0627-PHX-JAT

JOINT LIST OF PROPOSED JURY INSTRUCTIONS AND OBJECTIONS

Plaintiff, the Equal Employment Opportunity Commission and Defendant, Connecticut General Life Insurance Company, in accordance with Local Rule 2.16, Rule 51 of the Federal Rules of Civil Procedure, and this Court's Order setting the final pretrial conference, jointly submit the following proposed jury instructions.

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I.

MODEL CIVIL JURY INSTRUCTIONS

ST PL ST ST ST ST ST ST ST ST ST

§ 1.1 Duty of Jury § 1.2 Claims and Defenses (specifying the claims and defenses in this action) § 1.3 What Is Evidence § 1.4 What Is Not Evidence § 1.6 Direct And Circumstantial Evidence § 1.7 Ruling On Objections § 1.8 Credibility Of Witnesses § 1.9 Conduct Of The Jury § 1.10 No Transcript Available To Jury § 1.11 Taking Notes § 1.12 Outline Of Trial § 1.13 Burden Of Proof ­ Preponderance Of The Evidence § 1.15 Questions To Witnesses By Jurors § 2.1 Cautionary Instruction ­ First Recess § 2.2 Bench Conferences and Recesses § 2.4 Stipulations Of Fact § 2.6 Deposition Of Substantive Evidence § 2.13 Use of Interrogatories By a Party § 3.1 Duties Of Jury To Find Facts And Follow Law § 3.2 What Is Evidence § 3.3 What Is Not Evidence § 3.5 Direct And Circumstantial Evidence § 3.6 Credibility Of Witnesses § 3.9 Charts And Summaries Not Received In Evidence § 3.10 Charts and Summaries in Evidence § 4.1 Duty To Deliberate 2

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ST ST ST ST ST ST ST ST ST ST ST ST ST ST ST

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. II.

ST ST ST ST DF ST DF PL

§ 4.2 Use Of Notes § 4.3 Communication With Court § 4.4 Return Of Verdict § 5.1 Burden Of Proof ­ Preponderance Of The Evidence § 5.3 Complete Affirmative Defense § 6.1 Corporations ­ Fair Treatment § 7.3 Damages­Mitigation § 12.1(C) Disparate Treatment ­ Motivating Factor­ Elements

(Tailored to the current action) STIPULATED NON-MODEL INSTRUCTIONS PL's No. 1 EEOC and Title VII of the Civil Rights Act of 1964 NON-MODEL INSTRUCTIONS REQUESTED BY PLAINTIFFS III. PL'S No. 2 PL'S No. 3 PL'S No. 4 PL'S No. 5 PL'S No. 6 Damages­Proof Damages­Back pay Damages­Mitigation Compensatory Damages Punitive Damages

NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANT DF'S No. 1 DF'S No. 2 DF'S No. 3 Elements and Burden of Proof Withdrawal of An Offer Punitive Damages ­ Kolstad Standard

RESPECTFULLY SUBMITTED this 26th day of June, 2006. s/Katherine J. Kruse Mary Jo O'Neill Sally C. Shanley Katherine J. Kruse Michelle G. Marshall 3 s/Kristin R. Culbertson J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson LITTLER MENDELSON PC

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Valerie L. Meyer EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Attorneys for Plaintiff

2425 E. Camelback Rd., Suite 900 Phoenix, AZ 85016-4242 Attorneys for Defendants

4

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SECTION I: MODEL INSTRUCTIONS

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ST 1.1 DUTY OF JURY

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.1 (2006). Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

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PL 1.2 CLAIMS AND DEFENSES

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action). Defendant's Objection: The parties were unable to agree on a joint statement of the case. Defendant objects to the version proposed by Plaintiff because it fails to adequately address Defendant's position. Moreover, it specifies that Plaintiff seeks back pay and punitive damages. As discussed in its M otion in Limine, back pay is not an issue for the jury's consideration and, therefore, should not be included in the brief statement of the case. Lutz v. Glendale Un. High Sch. Dist., No. 205, 403 F.3d 1061 (9th Cir. 2005). Moreover, currently pending before this Court is a Motion to Bifurcate liability and punitive 7 To help you follow the evidence, I will give you a brief summary of the positions of the parties: This is a case brought under Title VII of the Civil Rights Act of 1964 by the United States Equal Employment Opportunity Commission against Connecticut General Life Insurance Company on behalf of Carmen Santa Cruz. In November 2001, Ms. Santa Cruz applied and interviewed for a position as a customer service associate with Defendant Connecticut General Life Insurance Company, doing business as CIGNA. The EEOC claims that the Defendant unlawfully discriminated against Carmen Santa Cruz based on her sex when it failed to hire M s. Santa Cruz upon learning she was pregnant, in violation of Title VII. The EEOC also alleges that Ms. Santa Cruz is entitled to lost wages and compensation for emotional harm, as well as an award of punitive damages. Defendant claims that it did not fail to hire Ms. Santa Cruz because of her pregnancy. Thus, Defendant also alleges that it is not liable for any lost wages or compensatory or punitive damages. AUTHORITY Manual of Model Civ. Jury Instr. for the Ninth Cir., Instr. 1.2 (2006) (tailored to the current

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damages. To the extent the Court grants the Motion, the Plaintiff's reference to punitive damages in opening instructions is prejudicial.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 current action). AUTHORITY Manual of Model Civ. Jury Instr. For the Ninth Cir., Instr. 1.2 (2006) (tailored to the Instead, Defendant proposes the following instruction: To help you with the evidence, I will give you a brief summary of the positions of the parties: This case is brought under Title VII of the Civil Rights Act of 1964 by the United States Equal Employment Opportunity Commission against Connecticut General Life Insurance Company ("CGLIC") on behalf of Carmen Santa Cruz. In November 2001, Ms. Santa Cruz applied for, interviewed for, and was offered a position as a customer service associate with Defendant CGLIC. Ms. Santa Cruz contends that once CGLIC learned she was pregnant the offer of employment was withdrawn because of her pregnancy, in violation of Title VII of the Civil Rights Act of 1964. CGLIC contends that it never withdrew the offer; rather, Ms. Santa Cruz declined the offer of employment. Plaintiff seeks damages on behalf of Ms. Santa Cruz.

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ST 1.3 WHAT IS EVIDENCE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.3 (2006). The evidence you are to consider in deciding what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers stipulate.

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ST 1.4 WHAT IS NOT EVIDENCE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.4 (2006). The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) (2) (3) (4) statements and arguments of the attorneys; questions and objections of the attorneys; testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

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ST 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.6 (2006). AUTHORITY Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned-on garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

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ST 1.7 RULING ON OBJECTIONS

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.7 (2006). There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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ST 1.8 CREDIBILITY OF WITNESSES

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.8 (2006). In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) testified to; (2) (3) (4) (5) (6) (7) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability. the opportunity and ability of the witness to see or hear or know the things

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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ST 1.9 CONDUCT OF THE JURY

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.9 (2006). I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the courtroom deputy to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

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ST 1.10 NO TRANSCRIPT AVAILABLE TO JURY

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.10 (2006). At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

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ST 1.11 TAKING NOTES

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.11 (2006). If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the courtroom. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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ST 1.12 OUTLINE OF TRIAL

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.12 (2006). The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The Plaintiff will then present evidence, and counsel for the Defendant may crossexamine. Then the Defendant may present evidence, and counsel for the Plaintiff may crossexamine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict.

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ST 1.13 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.13 (2006). When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

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ST 1.15 QUESTIONS TO WITNESSES BY JURORS

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 1.15 (2006). While it is not customary for a juror to ask a question of a witness, if you wish to do so, put the question in writing and hand it to the courtroom deputy. The court and counsel will review your question. Do not be concerned if the question is not asked. Do not discuss your question with anyone, including the courtroom deputy. Remember that you are not to discuss the case with other jurors until it is submitted for your decision.

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ST 2.1 CAUTIONARY INSTRUCTION-- FIRST RECESS

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 2.1 (2006). AUTHORITY We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the courtroom deputy to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

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ST 2.2 BENCH CONFERENCES AND RECESSES

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 2.2 (2006). From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant

information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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ST 2.4 STIPULATIONS OF FACT

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 2.4 (2006). The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

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ST 2.6 DEPOSITION OF SUBSTANTIVE EVIDENCE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 2.6 (2006). the questions or answers. you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. Do not place any significance on the behavior or tone of voice of any person reading The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to When a person is unavailable to testify at trial, the deposition of that person may be used at the trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions.

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ST 2.13 USE OF INTERROGATORIES OF A PARTY Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same

consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand.

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 2.6 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 3.1 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 3.2 (2006).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (3) 20 21 22 23 24 25 26 27 28 AUTHORITY them, your memory of them controls. (2)

ST 3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not

witnesses. What they have said in their opening statements, will say in their 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

Questions and objections by lawyers are not evidence. Attorneys have a duty

to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. 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 have seen or heard when the court was not in session is not

evidence. You are to decide the case solely on the evidence received at the trial.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUTHORITY much weight to give to any evidence.

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 3.5 (2006).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 (3) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUTHORITY (7) (6) (5) (4) (2) the witness' memory; (1) testified to; it, or none of it.

ST 3.6 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of

In considering the testimony of any witness, you may take into account: the opportunity and ability of the witness to see or hear or know the things

the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 3.9 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 3.10 (2006).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUTHORITY the views of your fellow jurors. do so. Your verdict must be unanimous. court.

ST 4.1 DUTY TO DELIBERATE When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in

You will then discuss the case with your fellow jurors to reach agreement if you can

Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to

Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 4.1 (2006).

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ST 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 4.2 (2006).

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 4.3 (2006). you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 4.4 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 5.1 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 5.3 (2006).

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

Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 6.1 (2006).

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

AUTHORITY Manual of M odel Civ. Jury Instr. for the Ninth Cir., Instr. 7.3 (2006). Plaintiff's Objection: Plaintiff objects to this instruction on the basis that it does not fully address the facts of the instant case. Plaintiff has proposed a non-model instruction regarding mitigation that more fully addresses the facts of this case. See Plaintiff's proposed non-model instruction #4, Section III, below.

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PL 12.1(C) DISPARATE TREATMENT-- "MOTIVATING FACTOR"-- ELEM ENTS AND BURDEN OF PROOF As to the Plaintiff's claim that Ms. Santa Cruz's pregnancy was a motivating factor for the Defendant's decision not to hire her, the Plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 1. Ms. Santa Cruz was not hired by the Defendant; and 2. Ms. Santa Cruz's pregnancy was a motivating factor in the Defendant's decision not to hire her. If you find that the Plaintiff has proved both of these elements, your verdict should be for the Plaintiff. If, on the other hand, the Plaintiff has failed to prove either of these

elements, your verdict should be for the Defendant. AUTHORITY Manual of Model Civ. Jury Instr. for the Ninth Cir., Instr. 12.1(C) (2006) (tailored to the current action). Defendant's Objection: Defendant objects to this instruction as it is currently written and to the order in which it is proposed. The jury is to determine whether Defendant withdrew the offer of employment and, if it did so whether it was because of M s. Santa Cruz's pregnancy. Plaintiff suggests that the jury must determine whether Defendant failed to hire her because of her pregnancy. Defendant maintains that Ms. Santa Cruz was offered the customer service 40

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position and Ms. Santa Cruz declined the offer. To allow Plaintiff's instruction to stand as currently written will be unnecessarily confusing to the jury and is not narrowly tailored to the factual allegations at issue. Modifying the instruction to reference "withdraw" correctly encompasses both Plaintiff and Defendant's theory of the case. Moreover, Defendant objects to its current placement within the instructions. Any instructions stating Plaintiff's prima facie case, and any instruction defining its elements, should precede a modified version of 12.1(C). To place any version of 12.1(C) before instructions regarding the prima facie elements is confusing and does not logically follow the steps the jury must use to resolve the factual issues presented. Defendant proposes the following change to Plaintiff's instruction: As to the EEOC's claim that Ms. Santa Cruz's pregnancy was a motivating factor for the Defendant's decision to withdraw the offer of employment, the EEOC has the burden of proving both of the following elements by a preponderance of the evidence: (1) (2) CGLIC withdrew the offer of employment; and Ms. Santa Cruz's pregnancy was a motivating factor in Defendant's decision to

withdraw the offer of employment. If you find that the EEOC has proved both of these elements, your verdict should be for the EEOC. If on the other hand, the EEOC has failed to prove either of these elements, your verdict should be for Defendant.

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SECTION II: STIPULATED NON-MODEL INSTRUCTIONS

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STIPULATED PROPOSED JURY INSTRUCTION NO. 1 EEOC AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Plaintiff, the United States Equal Employment Opportunity Commission, abbreviated as "EEOC", has brought this lawsuit under a federal statute: Title VII of the Civil Rights Act of 1964, as amended, commonly referred to as "Title VII." The EEOC has brought this action on behalf of Ms. Santa Cruz. Title VII makes it unlawful for an employer to discriminate against an employee because of the employee's sex. Discrimination on the basis of pregnancy is a form of discrimination on the basis of sex which is unlawful under Title VII. AUTHORITY: Section 703(a) and (c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(k), § 20002(m); Raad v. Fairbanks N. Star Borough School Dist., 323 F.3d 1185, 1193-94 (9th Cir. 2003); Chuang v. University of Cal. Davis Bd. of Regents, 225 F.3d 1115, 1123-24 (9 th Cir. 2000).

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SECTION III: NON-MODEL INSTRUCTIONS REQUESTED BY PLAINTIFFS

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 2 DAMAGES­PROOF It is the duty of the Court to instruct you about the measure of damages. If you find that Defendant discriminated against Ms. Santa Cruz because of her pregnancy, you must determine Ms. Santa Cruz's damages. "Damages" means the amount of money which will reasonably and fairly compensate Ms. Santa Cruz for any injury you find was caused by the Defendant. There are three types of damages available in this case. They are: (1) back pay; (2) compensation for Ms. Santa Cruz's emotional pain and suffering (compensatory damages); and (3) punitive damages. The Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or

AUTHORITY: Model Civ. Jury Instr. for the Ninth Cir., Instr. 7.1 and 7.2 (2004); Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3). Defendant's Objection: Defendant objects to this instruction's inclusion of back pay and punitive damages. Defendant also objects because Plaintiff omits a pertinent portion of Model Instruction 7.1 in proposing this instruction. On June 22, 2006, Defendant filed a Motion in Limine addressing the Ninth Circuit's

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recent ruling that back pay is equitable relief to be determined by the Court. Lutz v. Glendale Union High Sch. Dist. No. 205, 403 F.3d 1061 (9th Cir. 2005). In Lutz, the Court allowed the jury to determine whether to award back pay and the amount of the award. Although the Court of Appeals found that the plaintiff had appropriately requested a jury trial on the issue of back pay, it agreed with the defendant's position that "back pay is a matter for resolution by the court, not an issue triable of right by a jury." Id. Thus, under Lutz, even if liability is found, "the district court must exercise its discretion to determine an appropriate amount of back pay, if any." Id. Because the issue of back pay is decided by the Court, not the jury, an instruction suggesting an award of back pay is unnecessary. In addition, Defendant filed a Motion to Bifurcate liability and punitive damages. Fed. R. Civ. P. 42(b). To the extent that this Court grants Defendant 's Motion, an instruction contemplating punitive damages during the liability phase of trial is unnecessary and prejudicial. Finally, Ninth Circuit Model Instruction 7.1, one of the authorities Plaintiff uses for support, contains the following statement, which is omitted by the Plaintiff: "By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered." Plaintiff also misstates the first sentence of the second paragraph of Ninth Circuit Model Instruction 7.1. Defendant proposes the following modifications to Plaintiff's proposed instruction: It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.

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If you find for the EEOC on its pregnancy discrimination claim, you must determine Ms. Santa Cruz's damages. The EEOC has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensation for any injury you find was caused by Defendant. You should consider the following type of damage: compensation for Ms. Santa Cruz's emotional pain and suffering. The EEOC has the burden of proving damages by a preponderance of the evidence, and it is for your to determine what damages, if any, have been proved. Your award must be based on evidence and not upon speculation, guesswork or conjecture.

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 3 DAMAGES­BACK PAY Back pay damages are determined by measuring the difference between actual earnings for the period and those which Ms. Santa Cruz would have earned absent the discrimination by Defendant. In determining the measure of back pay damages, you should consider the reasonable value of wages and earnings lost, plus pre-judgment interest. Back pay should include anticipated raises. AUTHORITY: Model Civ. Jury Instr. for the Ninth Cir., Instr. 7.2 (2004); 42 U.S.C. §2000e-5(g)(1); Gotthardt v. National Railroad Passenger Corp., 191 F.3d 1148, 1158 (9th Cir.1999) (citations omitted); EEOC v. Joint Apprenticeship Committee, 186 F.3d 110, 123-124 (2 nd Cir. 1999). Defendant's Objection: Defendant objects to Plaintiff's proposed definition of back pay since such an instruction is contrary to Lutz v. Glendale Union High Sch. Dist. No. 205. 403 F.3d 1061 (9th Cir. 2005).

20 21 22 23 Union High Sch. Dist. No. 205, 403 F.3d 1061 (9th Cir. 2005). In Lutz , the Court allowed the 24 25 26 27 28 49 jury to determine whether to award back pay and the amount of the award. Although the Court of Appeals found that the plaintiff had appropriately requested a jury trial on the issue of back pay, it agreed with the defendant's position that "back pay is a matter for resolution by the court, On June 22, 2006, Defendant filed a Motion in Limine addressing the Ninth Circuit' s recent ruling that back pay is equitable relief to be determined by the Court. Lutz v. Glendale

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not an issue triable of right by a jury." Id. Thus, under Lutz, even if liability is found, "the district court must exercise its discretion to determine an appropriate amount of back pay, if any." Id. Because the issue of back pay is decided by the Court, not the jury, an instruction defining back pay is unnecessary.

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 4 DAMAGES--MITIGATION Ms. Santa Cruz has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The Defendant has the burden of proving by a preponderance of the evidence: that Ms. Santa Cruz failed to use reasonable efforts to mitigate damages;

the amount by which damages would have been mitigated.

If the Defendant proves by a preponderance of the evidence that Ms. Santa Cruz unjustifiably failed to take a new job of like kind, status, and pay which was available to her, or failed to make reasonable efforts to find a new job, you should subtract from these damages any amount she could have earned in a new job after the defendant declined to

17 18 19 20 21 22 23 24 25 26 27 28 AUTHORITY: Manual of Model Civ. Jury Instr. for the Ninth Cir., Instr. 7.3 and 14.8 (2004); Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.16, 102 S. Ct. 3057, 3065 n.16 (1982); EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9 th Cir. 1997); Finical v. Collections Unlimited, 65 F. Supp. 2d 1032, 1051 n.8 (D. Ariz. 1999); Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980); NLRB v. Ryder System, Inc., 983 F. 2d 705, 714 51 to mitigate damages if the resignation is motivated by unreasonable working conditions at the subsequent employment. hire her. Voluntarily resigning from subsequent employment is not an unreasonable failure

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(6 th Cir. 1993); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998);. NLRB v. Pepsi Cola Bottling Co. of Fayetteville, Inc., 258 F.3d 305, 310-11 (4th Cir. 2001); Oil, Chem. & Atomic Workers Int'l Union, v. NLRB, 547 F.2d 598, 603 (D.C. Cir. 1976). Defendant's Objection: Defendant objects to Plaintiff's proposed instruction. Ninth Circuit Model Instruction 7.3, proposed by Defendant without modification, adequately covers the issues presented by mitigation. Accordingly, Defendant proposes Ninth Circuit Model Instruction 7.3: Ms. Santa Cruz has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. Defendant has the burden of proving by a preponderance of the evidence: 1. that Ms. Santa Cruz failed to use reasonable efforts to mitigate damages; and 2. the amount by which damages would have been mitigated.

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 5 NON-PECUNIARY COMPENSATORY DAMAGES If you determine that Carmen Santa Cruz has experienced emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, you may award damages for those injuries. No exact standard exists for fixing the compensation to be awarded for these elements of damages. Compensatory damages can be inferred from the circumstances presented to you by the evidence, or they can be proven by testimony on this issue of damages. No evidence of monetary value of such intangible things as pain and suffering has been, or needs to be, introduced into evidence. No medical testimony is necessary to prove compensatory damages. The testimony of Ms. Santa Cruz and other witnesses is enough. It may be difficult for you to arrive at a precise valuation of actual damages for this type of emotional harm and suffering. Nonetheless, it is necessary to arrive at a reasonable award that is supported by the evidence. The damages that you award must be fair compensation. When considering the amount of monetary damages to which Ms. Santa Cruz may be entitled, you should consider the nature, character, and seriousness of any emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that she felt. You must also consider its extent or duration, as any award you make must cover the damages endured by Ms. Santa Cruz since the time of the wrongdoing to the present time, or that can reasonably be expected to continue in the future. AUTHORITY: Model Civ. Jury Instr. for the Ninth Cir., Instr. 7.1 (2001); Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1); Employment Litig. Model Jury Instr. 1.07.

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Defendant's Objection: Defendant objects to Plaintiff's proposed instruction. The imposition of compensatory damages and what constitutes such damages is adequately covered Ninth Circuit Model Jury Instruction 7.1 and 7.2, and Plaintiff's proposed instruction No. 2, with the suggested modifications proposed by Defendant. Moreover, Plaintiff's proposed instruction is drafted in a manner that presumes compensatory damages must be awarded. Although an instruction defining compensatory damages is unnecessary, to the extent that the Court disagrees, Defendant proposes the following modifications to Plaintiff's proposed instruction: If you determine that Ms. Santa Cruz experienced emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, as a proximate cause of Defendant's discriminatory acts, you may award damages for those injuries. By instructing you on the nature of compensatory damages, the Court does not mean to suggest that an award of compensatory damages is required. No exact standard exists for fixing the compensation to be awarded for these elements of damages. Compensatory damages can be inferred from the circumstances presented to you by the evidence, or they can be proven by testimony on this issue of damages. No evidence of monetary values of such intangible things as pain and suffering has been, or needs to be introduced into evidence. The evidence of Ms. Santa Cruz and other witnesses is enough. It may be difficult for you to arrive at a precise valuation of actual damages for this type of emotional harm. Nonetheless, to the extent you award compensatory damages the amount must be reasonable and supported by the evidence. When considering the amount of monetary damages to which Ms. Santa Cruz may be entitled, you may consider the nature, character, and seriousness of any emotional pain, suffering, convenience, mental anguish, and loss of enjoyment of life she felt and may feel in the future.

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 6 Punitive Damages If you find for the Plaintiff, you may, but are not required to, award punitive damages to Ms. Santa Cruz. The purposes of punitive damages are to punish Defendant and to deter Defendant and others from committing similar acts in the future. The Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. In determining whether to award punitive damages, you must decide whether Defendant acted with malice or with reckless disregard to Ms. Santa Cruz `s right not to be discriminated against on the basis of her pregnancy. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of Ms. Santa Cruz's rights if Defendant acted in the face of a perceived risk that its actions would violate her rights under federal law. Intentional discrimination is enough to support an award of punitive damages. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. AUTHORITY: Model Civ. Jury Instr. for the Ninth Cir., Instr. 7.5; Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000). Defendant's Objection: Defendant objects to this instruction. As a threshold matter, a Motion

25 26 27 28 to Bifurcate liability and punitive damages is currently pending before the Court. To the extent this, or a similar instruction is given, it should be after the liability phase of the trial. Moreover, the proposed instruction does not properly address the punitive damages analysis, and in 55

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particular, the affirmative defenses set forth in Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). Defendant asserts its proposed punitive damages instruction, also set forth below as Defendant's non-model instruction number 3: Punitive Damages ­ Kolstad Standard If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate the plaintiff, but to punish Defendant and to deter Defendant and others from committing similar acts in the future. The Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. In determining whether to award punitive damages you must decide whether Defendant acted with malice or reckless disregard to Ms. Santa Cruz's right not to be discriminated against on the basis of her pregnancy. Defendant acted with malice or reckless indifference if it is demonstrated by a preponderance of the evidence that Defendant knew its conduct was in violation of the law prohibiting pregnancy discrimination, or acted in reckless disregard of that law. However, you may not award punitive damages if Defendant proved by a preponderance of the evidence that it made good faith efforts to comply with the laws prohibiting discrimination. Good faith efforts to comply with the laws prohibiting discrimination include: (1) adopting antidiscrimination policies; (2) making good faith efforts to educate its employees about these policies; and (3) making good faith efforts to enforce the policy. AUTHORITY: Model Civ. Jury Instr. For the Ninth Cir. Instr. 7.5; Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 545 (1999), Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000); Swinton v. Potomac Corp., 270 F.3d 794, 810-11 (9th Cir. 2001).

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SECTION IV NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 AUTHORITY (3) (4) (2) evidence: (1)

DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 1 Elements and Burden of Proof Plaintiff has the burden of proving the following elements by a preponderance of the

that Ms. Santa Cruz was pregnant; that Ms. Santa Cruz applied and was qualified for a job for which Defendant

was seeking applicants; Ms. Santa Cruz was offered the position; and that, despite Ms. Santa Cruz's qualifications, the offer was withdrawn because

of her pregnancy.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). 20 21 22 23 24 25 26 27 28 58 Plaintiff's Objection: This cited case does not support this proposed instruction. Plaintiff has requested Model Instruction 12.1.C, above, regarding the elements of proof on the pregnancy discrimination claim.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Santa Cruz;

DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 2 Withdrawal of An Offer To find that the offer of employment was withdrawn, the Plaintiff must prove by a preponderance of the evidence: (1) that Defendant acted in a manner that clearly implied an unwillingness to hire Ms.

(2) the action occurred before Ms. Santa Cruz could accept the offer; and (3) Ms. Santa Cruz knew the offer was withdrawn. AUTHORITY: Restatement (Second) of Contracts §§ 42 and 43; Collins v. Thompson, 679 F. 2d 168 (9 th Cir. 1982); Butler v. Weherly, 425 P.2d 130, 134 (Ariz. App. 1967). Plaintiff's Objection: This instruction is an incorrect statement of the law as reflected in the cited cases and other legal authority. Plaintiff's Proposed Instruction #7 Withdrawal of the Offer The offer of employment to Ms. Santa Cruz was withdrawn if Defendant took any action

23 24 25 26 27 28 in good faith, believed that the offer was withdrawn based on Defendant's actions, that is sufficient. 59 inconsistent with its intention to hire Ms. Santa Cruz. Formal notice that Defendant was withdrawing the offer was not necessary. If Ms. Santa Cruz, as a reasonable person acting

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AUTHORITY: Restatement (Second) of Contracts §§ 42 and 43; Collins v. Thompson, 679 F. 2d 168 (9 th Cir. 1982); Butler v. Weherly, 425 P.2d 130, 134 (Ariz. App. 1967).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3 Punitive Damages ­ Kolstad Standard If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate the plaintiff, but to punish Defendant and to deter Defendant and others from committing similar acts in the future. The Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. In determining whether to award punitive damages you

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUTHORITY: Model Civ. Jury Instr. For the Ninth Cir. Instr. 7.5; Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 545 (1999), Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000); Swinton v. Potomac Corp., 270 F.3d 794, 810-11 (9th Cir. 2001). 61 (2) making good faith efforts to educate its employees about these policies; and (3) making good faith efforts to enforce the policy. the evidence that it made good faith efforts to comply with the laws prohibiting discrimination. Good faith efforts to comply with the laws prohibiting discrimination include: (1) adopting antidiscrimination policies; conduct was in violation of the law prohibiting pregnancy discrimination, or acted in reckless disregard of that law. However, you may not award punitive damages if Defendant proved by a preponderance of must decide whether Defendant acted with malice or reckless disregard to Ms. Santa Cruz's right not to be discriminated against on the basis of her pregnancy. Defendant acted with malice or reckless indifference if it is demonstrated by a preponderance of the evidence that Defendant knew its

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Circuit City Stores, 206 F.3d 431, 446 (4th Cir.2000); Passantino, 212 F. 3d 493, 517 (9 th Cir. 2000). 62 AUTHORITY: Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 545, 199 S.Ct. 2118, 2129 (1999); Swinton v. Potomac Corp., 270 F.3d 794, 810-11 (9 th Cir. 2001); Lowery v. 2. Defendant also effectively implemented the policy. The mere existence of a policy is not sufficient for Defendant to establish this affirmative defense. 1. Defendant had a bona fide policy against discrimination; and good faith efforts to comply with Title VII. To prove that it undertook sufficient good faith efforts to comply with Title VII, Defendant must prove, by a preponderance of the evidence, that: Defendant's Burden to Prove an Affirmative Defense to Punitive Damages To avoid punitive damages, Defendant must prove that it undertook sufficient the affirmative defense to punitive damages. Plaintiff's Proposed Instruction #8 instruction regarding punitive damages (Plaintiff's proposed instruction #6 above). In addition, Plaintiff proposes the following instruction regarding Defendant's assertion of Plaintiff's Objection: This instruction contains an incomplete statement of the affirmative defense to a claim for punitive damages. Plaintiff has requested a non-model

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