Free Amended Document (NOT Motion/Complaint) - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 William P. Allen #011161 ALLEN LAW FIRM, LLC 1650 North First Avenue Phoenix, Arizona 85003 Telephone (602) 495-6502 Fax (602) 277-9839 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Connie B. Pappas, Plaintiff, vs. J.S.B. Holdings, Inc., d.b.a. R&D Specialty/Manco, Defendant. Plaintiff hereby provides the attached amended Proposed Jury Instruction No.1. Plaintiff is amending the proposed instruction to include the following measure of damages for "front pay" from the Ninth Circuit Model Jury Instruction No. 7.2 which was not included in plaintiff's originally submitted instruction:
The reasonable value of wages which with reasonable probability will be lost in the future;

No. CV-03-1449-PHX-PGR PLAINTIFF'S AMENDED PROPOSED JURY INSTRUCTION NO. 1

The reason for the amendment adding the "front pay" damages instruction is that Ms. Pappas will testify that last Thursday, June 15, 2003, subsequent to plaintiff's submission of proposed jury instructions on June 12, 2006, she was informed by her current employer that her hours were cut to 40 hours per week. There is no prejudice to defendant from this amendment. Ms. Pappas requested front pay damages in her first amended complaint. In October 2003, she disclosed a front pay loss

Case 2:03-cv-01449-PGR

Document 96

Filed 06/19/2006

Page 1 of 3

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calculation in "Plaintiff's Initial Disclosures" based on the lower hourly wage she receives at her present employer and the forty hours per week that she was scheduled to work at that time. She did receive an increase in her hourly wage to $17.70 per hour which has been disclosed to defendant along with her mitigating income from prior year's W-2s and which is included in Plaintiff's Exhibit 11 to which defendant has no objection. During the years 2004 and 2005, Ms. Pappas worked significant and sufficient hours of overtime to mitigate most of her back pay wage loss for those years. At the time the jury instruction was proposed to the Court on June 12, 2006, plaintiff was not intending to testify about future wage loss because she was still working significant overtime hours and therefore did not include front pay as a measure of damages in the Proposed Jury Instruction No. 1. However, with the reduction in her hours last week, she will now suffer the significant compensable front pay loss that she disclosed in 2003. She is entitled to recover front pay pursuant to Title VII. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 121 S. Ct. 1946 (2001). Thus, she is entitled to testify and will testify at trial to the amount of expected front pay loss. Accordingly, the jury instruction on damages must be amended to include an assessment of the reasonable value of her lost future wages. Respectfully submitted this 19th day of June, 2006. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin and ALLEN LAW FIRM, LLC By: /s William P. Allen William P. Allen Attorneys for Plaintiff Electronic notice and service of documents provided to: Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Attorneys for Defendants /s David C. Larkin
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PLAINTIFF'S AMENDED REQUESTED JURY INSTRUCTION NO. 1 Modified Ninth Circuit Model Jury Instruction 7.1 and 7.2 (combined in accordance with Model Instruction 7.1) 7.1 Damages--Proof. 7.2 Measures of Types of Damages. 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. If you find for the plaintiff, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: In determining the measure of damages, you should consider: The nature and extent of the injuries; The mental and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; The reasonable value of wages and employment to the present time;
The reasonable value of wages which with reasonable probability will be lost in the future;

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 conjecture. You may not reduce damages for the reasonable value of wages and employment by an offset for any unemployment insurance benefits you believe plaintiff may have received. Authority for Modification: Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982) ("unemployment benefits received by a successful plaintiff in an [Title VII] employment discrimination action are not offsets against a backpay award").

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