Free Proposed Jury Instructions - District Court of Arizona - Arizona

Public Employee Speech ­ must address a legitimate public concern
An employee's speech is protected under the First Amendment of the United States Constitution if it addresses a matter of legitimate public concern. Speech that addresses a matter of legitimate public concern is something that is the subject of legitimate news interest. In other words, the speech addresses a subject of general interest and of value and concern to the public at the time of publication. The determination of whether an employee's speech deals with an issue of public concern is to be made with reference to the content, form, and context of the speech. City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004)

Case 2:03-cv-01425-DGC

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15.4 Work as a Major Life Activity
When the major life activity under consideration is that of working, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was precluded from employment in a broad class of jobs. The inability to perform a single, particular job does not itself constitute a substantial limitation in the major life activity of working. Other factors that you should consider when determining whether the plaintiff is substantially limited in the major life activity of working include: (1) the geographical area to which the plaintiff has reasonable access, and (2) the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the plaintiff is also disqualified.

Case 2:03-cv-01425-DGC

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Filed 12/02/2005

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The ADA Interactive Process for a Reasonable Accommodation
The interactive process is triggered either by (1) a request for an accommodation by a disabled employee or (2) by the employer's recognition of the need for such an accommodation. An employer should initiate the reasonable accommodation interactive process without being asked, if the employer: (1) knows that the employee has a disability as defined by the ADA, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of a disability as defined by the ADA, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. The interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations, (2) consideration of the employee's request; and (3) offering an accommodation that is reasonable and effective. If an employee proves that the employer failed to engage in the interactive process in good faith, the employer is liable to the employee under the ADA if a reasonable accommodation would have been possible. See Barnett v. U.S. Air Inc., 228 F.3d 1105 (9th Cir. 2000), (en banc), vacated on other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002)

Case 2:03-cv-01425-DGC

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Filed 12/02/2005

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No Accommodation Owed for "Regarded As" Disability
An employee who is "regarded as" disabled, rather than actually disabled, is not entitled to a reasonable accommodation under the ADA. Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1233 (9th Cir. 2003).

Case 2:03-cv-01425-DGC

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Due Process
A terminated employee has a constitutionally based liberty interest in clearing his name when stigmatizing information regarding the reasons for his terminating is publicly disclosed. The City of Tempe could not lawfully terminate Plaintiff of his employment with the City without permitting him to have a timely evidentiary hearing in which Plaintiff could present evidence on his behalf and confront any evidence that the City of Tempe used to support it actions regarding Plaintiff.

Case 2:03-cv-01425-DGC

Document 43-2

Filed 12/02/2005

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