Defendant's requested jury instructions and written interrogatories

Defendant requests the Court to submit the following instructions and written interrogatories to the jury should the evidence and the applicable law warrant:

DEFENDANT’S PROPOSED INSTRUCTION NO.1

CORPORATE PARTY

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth and holding the same or similar stations in life. Do not let bias, prejudice, or sympathy play any part in your deliberations. A corporation and all other persons are equal before the law, and are to be dealt with as equals in a court of justice.¹

DEFENDANT’S PROPOSED INSTRUCTION NO. 2

EVALUATION OF THE EVIDENCE

The burden is on PLAINTIFF [THROUGHOUT THE FORM, REPLACE PLAINTIFF WITH THE PLAINTIFF'S NAME] as the plaintiff to prove every essential element of his claim by a “preponderance of the evidence.” If the proof should fail to establish any essential element of any of PLAINTIFF's claim by a preponderance of the evidence, you should find for ABC COMPANY.

To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.

In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, all exhibits received in evidence, regardless of who may have produced them, and all stipulations of the parties.²

DEFENDANT’S PROPOSED INSTRUCTION NO. 3

EMPLOYER’S DISCRETION REGARDING PERSONNEL DECISIONS

Under the law, employers are entitled to make employment decisions for whatever reason they find appropriate, for a bad reason, or for no reason at all, provided that, for purposes of this case, the employer does not make the decision because of an employee’s disability.³ In other words, employers are permitted to make their own subjective business judgments, however misguided, mistaken, harsh, or unfair they may appear to some persons so long as they do not discriminate because of, for purposes of this case, an employee’s disability.⁴ The law does not empower courts or juries to second guess the wisdom or correctness of ABC COMPANY’s employment decisions.⁵

DEFENDANT’S PROPOSED INSTRUCTION NO. 4

DISABILITY DISCRIMINATION

The Americans with Disabilities Act of 1990 (“ADA”) prohibits an employer from discriminating against a “qualified individual with a disability.” To discriminate means, in the circumstances of this case, to terminate the employment relationship because of a disability. Therefore, PLAINTIFF must prove the following to prevail: (1) he has a “disability” under the ADA; (2) he was “qualified,” with or without a reasonable accommodation; and (3) ABC COMPANY terminated his employment because of his disability.

Disability

A “disability” under the ADA means one of the following:

“Actual disability” — the plaintiff has a physical or mental impairment that substantially limits one or more of his or her major life activities.⁶

“Regarded-as disability” — the employer mistakenly treated the plaintiff as though he had a physical or mental impairment that substantially limits one or more of his or her major life activities.⁷

“Record-of disability” — the employee has a history of a physical or mental impairment that substantially limits one or more of his or her major life activities.⁸

“Major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.⁹ “Substantially limits” means (1) unable to perform a major life activity that the average person in the general population can perform; or (2) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life

activity.¹⁰ The following factors should be considered in determining whether an individual is substantially limited in a major life activity:

(i) the nature and severity of the impairment;

(ii) the duration or expected duration of the impairment; and

(iii) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.¹¹

With respect to the major life activity of working, “substantially limits” means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and abilities. The inability to perform a narrow range of jobs or a single job does not constitute a substantial limitation in the major life activity of working.¹² Likewise, the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to a substantial limitation in the major life activity of working.¹³

Qualified/Reasonable Accommodation

The ADA protects only qualified individuals with disabilities.¹⁴ If you find that PLAINTIFF has a “disability” under the ADA, you must decide whether he is a “qualified” individual with a disability. The term “qualified individual with a disability” means an individual with a disability who can perform the essential functions of the job, with or without reasonable accommodation.¹⁵ Thus, PLAINTIFF must show that (1) he could perform the essential functions of the job in spite of any disability you have found or (2) that a reasonable accommodation of any disability would have enabled him to perform the essential functions of the job.¹⁶

The term “essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires.¹⁷ The term does not include the marginal functions of the position.¹⁸ The essential-functions inquiry focuses on the key requirements the employer actually imposes on its employees to accomplish the purposes of the job at issue.¹⁹ The inquiry is not intended to second guess an employer’s business judgment with regard to production standards or to require employers to lower such standards.²⁰ Consequently, with regard to ABC COMPANY’s productivity standards for its employees, the only question for you to answer is whether ABC COMPANY actually requires its employees to meet those productivity standards. If ABC COMPANY does, then the productivity standards are deemed essential functions as a matter of law, and neither you nor the Court may question them.²¹

The term “reasonable accommodation” means for purposes of this case reasonable modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.²² To be a reasonable accommodation, however, the modification must work — that is, it must enable the disabled employee to perform the essential functions of the job in question.²³ Moreover, an employer must provide a reasonable accommodation only to an employee with an “actual disability” as defined above.²⁴ If you do not find that PLAINTIFF has an “actual disability,” then ABC COMPANY was under no obligation to provide him with any reasonable accommodation and you therefore should not consider the issue of reasonable accommodation.

Some things are not required reasonable accommodations under the ADA. First, the ADA does not require an employer to eliminate, modify, or have another employee perform an essential function of a disabled employee’s job.²⁵ Thus, for example, if you have found that ABC COMPANY’s productivity standards are essential functions, ABC COMPANY would not have been obligated to relieve PLAINTIFF from meeting those standards even if he had made such a request.²⁶ Second, a request that an employer excuse an employee’s misconduct, or provide the employee with a “second chance” is not a reasonable accommodation as a matter of law.²⁷ Employers are allowed to discipline and discharge employees for misconduct, regardless of whether that misconduct is associated with an alleged disability.²⁸

There can be more than one reasonable accommodation for a particular employee. But the law requires only a reasonable accommodation, not a particular accommodation requested or demanded by an employee.²⁹ When there is more than one reasonable accommodation, an employer has the ultimate discretion to choose which one to provide.³⁰ So if an employer has provided a reasonable accommodation, that employer cannot be liable for failing to provide a

different accommodation.³¹ Finally, an employer cannot be held liable for failing to provide an employee with an accommodation the employee never requested at the time in question.³²

Discharge “Because of” Disability

To find that ABC COMPANY violated the ADA by terminating PLAINTIFF’s employment because of his alleged disability, you must find that the disability actually played a role in and had a determinative influence on the outcome of ABC COMPANY’s decision³³ or that ABC COMPANY discharged PLAINTIFF in order to avoid providing...