IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________________________________:

EDWIN B. TAYLOR, ::

Plaintiff, ::

v. : CIVIL ACTION : NO. 03-CV-2216:

USF-RED STAR, INC., ::

Defendant :

PLAINTIFF’S PROPOSED JURY INSTRUCTIONS

1. DUTIES OF THE JURY *

Members of the jury, now that you have heard all the evidence and the

arguments of the attorneys, it is my duty to instruct you on the law which applies

to this case. A copy of these instructions will be available to you to consult if

necessary in the jury room.

It is your duty to find the facts from all the evidence in the case. To those

facts, you must apply 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.

*

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In your deliberations, you must follow all of my instructions. You may

not single out some and ignore others; they are all equally important. You must

not assume from these instructions or from anything the Court may have said or

done during the trial that the Court has an opinion as to what verdict you should

return -- that is a matter entirely up to you.

Source: Manual of Model Civil Jury Instructions for the District Courts of the

Ninth Circuit, Instruction No. 3.1 (2001).

* Connotes agreement by the Defendant to the Instruction.

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2. BURDEN OF PROOF

This is a civil case, involving claims of disability discrimination and

retaliation. Edwin Taylor, who is the plaintiff, is the party who asserting those

claims against the defendant, USF-Red Star. He has the burden of

proving the elements of his each of his claims by a preponderance of the

evidence. However, as I shall instruct you, there are times when the burden will

shift to the Defendant to prove its affirmative defenses. In that case, it is the

Defendant who must prove its defense by the preponderance of the evidence.

To prove 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

means such evidence as, when considered and compared to that opposed to it, has

more convincing force and produces in your mind a belief that what is sought to

be proved is more likely true than not true. A preponderance of the evidence is

established if the weight of the evidence is – however slight --more than the

weight of the evidence opposing it.

Imagine, if you will, a scale with Mr. Taylor's evidence as to each of his

claims on one side and the Defendant's evidence on the other side. If the scales

are exactly even, you should find for the Defendant. If, on the other hand, the

evidence on Mr. Taylor's side tips the scale in his favor, even to the slightest

degree, he has met his burden of proving the claim by a preponderance of the

evidence, and you should find in his favor. If he fails to establish any essential

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element of any of his claims, you should find in Red Star’s favor as to that claim.

Sources: US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002);Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001); 3CKevin F. O'Malley, et al., Federal Jury Practice and Instructions - Civil §§171.60, 171.61, 172.51 (5th ed. 2001).

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3. CONSIDERATION OF THE EVIDENCE

It is your duty to determine the facts based upon the evidence which has

been presented to you. The evidence includes, unless you are otherwise

instructed, the stipulations of the parties, the testimony of all the witnesses,

regardless of who called them, and all exhibits received into evidence, regardless

of who may have produced them. You may draw whatever inferences from that

evidence you feel are reasonable and justified in the light of your common

experience. You may make such deductions and reach conclusions that reason

and common sense lead you to make from the evidence.

Evidence may be direct or circumstantial. "Direct evidence" is direct

proof of a fact, such as testimony by a witness about what she personally saw or

heard. "Circumstantial evidence" is proof of one or more facts indicating the

existence or nonexistence of a 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 the

evidence.

Arguments, statements or other remarks by the lawyers are not evidence.

Therefore, you may not treat questions, objections, or other things the lawyers

may have said during the trial as such. Additionally, you may not consider as

evidence any testimony or document that has been excluded or that I have

instructed you to disregard.

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Sources: 3C Kevin F. O'Malley, et al., Federal Jury Practice and Instructions - Civil §§ 171.46, 172.51 (5th ed. 2001); Pattern Jury Instructions of the District Judges Ass'n of the Fifth Circuit, Civil Cases, Instruction No. 2.18 (1999); Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction Nos. 3.2, 3.3., 3.5 (2001).

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4. WITNESS CREDIBILITY

In your deliberations you may be confronted with conflicting evidence. If

so, you will have to decide which testimony to believe, which not to believe, and

how much weight to give each person’s testimony. You may believe everything a

witness says, part of the witnesses’s testimony, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the opportunity and ability of the witness to hear or know the things testified

to; (2) the witness's memory; (3) the witness's manner while testifying; (4) any

interest the witness may have in the outcome of the case, or any bias or prejudice

they may have; (5) whether other evidence contradicted the witness's testimony;

(6) the reasonableness of the witness's testimony in light of all the evidence; and

(7) any other facts that you believe bears on the witness’s believability. The

weight of the evidence as to a fact does not depend on the number of witnesses

who testify.

Source: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction No. 3.6 (2001).

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5. CONFLICTING TESTIMONY*

Contradictions in the testimony of witnesses, may mean, but not

necessarily, that a witness lied. A witness may forget or may remember

something incorrectly. It is also true that two persons witnessing the same event

may see, hear, or perceive it differently.

If different parts of the testimony of any witness or witnesses seem

inconsistent, you should try to reconcile the conflicting statements if you can do

so fairly and satisfactorily. If, however, you decide that there is a genuine and

irreconcilable conflict in the testimony, it is your duty to determine which, if any,

of the contradictory statements to believe.

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6. IMPEACHMENT OF WITNESSES

You should also ask yourself whether there was evidence

tending to prove that the witness testified falsely concerning

some important fact; or whether there was evidence that at

some other time the witness said or did something, or failed to

say or do something, which was different from the testimony he

or she gave during the trial.

You should keep in mind, of course, that a simple mistake

by a witness does not necessarily mean that the witness was not

telling the truth as he or she remembers it. If a witness has

made a misstatement, you need to consider whether that

misstatement was simply an innocent lapse of memory, a

mistake, or an intentional falsehood. Additionally, you must

decide how significant the misstatement was in relation to the

witness’s credibility. The significance may depend on whether

the misstatement has to do with an important fact or with only

an unimportant detail.

Source: Instruction 4.1 of Federal Pattern Jury Instructions.

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7. ANALYZE THE OVERALL SCENARIO

It is often difficult to determine the motivations which

underlie a person’s action, particularly where discrimination and

retaliation are concerned. Because of this, your analysis must

concentrate not on individual incidents, but on the overall

scenario. Just as a play cannot be understood on the basis of

some of its scenes, but only on its entire performance, you must

consider the meaning that emerges from the evidence as a

whole.

Source: Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3rd Cir. 1990). Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3rd Cir. 1997).

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8. THE AMERICANS WITH DISABILITIES ACT AND THE PENNSYLVANIA HUMAN RELATIONS ACT*

The Americans with Disabilities Act, which I will refer to as

the

"ADA," is a federal law passed by the United States Congress

that prohibits employers, such as Defendant USF-Red Star, from

discriminating against employees on the basis of disability.

Similarly, the Pennsylvania Human Relations Act, which I will

refer to as the "PHRA," is a state law passed by the Pennsylvania

Legislature, that prohibits, among other things, disability-based

employment discrimination. The legal standards which govern

the Red Star’s conduct are the same under both the ADA and

the PHRA. For purposes of simplicity, I may refer in my

instructions only to the ADA, but the same legal definitions and

standards apply to the PHRA as well. You should assume,

therefore, that my instructions apply to both; those instructions

will govern your deliberations as to Mr. Taylor’s claims under

both the ADA and the PHRA.

Sources: 42 U.S.C. §§ 12102, 12111-12117 (ADA); 43 P.S. § 951 et seq. (PHRA); 16 Pa. Code § 44.2(b) (PHRA regulations noting consistency with federal law); Williams v. Philadelphia Housing Authority, 2004 U.S. App. LEXIS 18151, n.6; Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996) (PHRA generally interpreted in accord with federal anti-discrimination laws).

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9. PURPOSES OF THE ADA AND PHRA

The purpose of the

Americans with Disabilities Act of 1990 (“ADA”) is to eliminate

employment discrimination against individuals with disabilities.

In addition, the ADA makes it unlawful for an employer to

discriminate against an employee because the person is

perceived as having, or regarded as having, a disability, as well

as those who have been misclassified as having disabilities. This

is because Congress and the Pennsylvania Legislature were

concerned about protecting people from discrimination based on

"myths, fears and stereotypes" about disability, as this may

result in the denial of job opportunities to people who do not

have a disability, but who are treated by others as if they do. As

both Congress and the United States Court have stated, "myths

and fears about disability and disease are as handicapping as

are the physical limitations that flow from actual impairments."

Source: 42 U.S.C. §12112, EEOC Technical Assistance Manual on Title I of ADA; School Board of Nassau County v. Arline, 480 U.S. 273 (1987); Williams v. Philadelphia Housing Authority, 2004 U.S. App. LEXIS 18151, n.6; Van Zande v. State of Wisconsin, 44 F.3d 538 (7th Cir. 1995).

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10. SUMMARY OF PLAINTIFF'S CLAIMS

In this case, Mr. Taylor, claims that USF-Red Star violated

the ADA and the PHRA in three separate ways. You may find in

favor of Mr. Taylor on one, some, or none of his claims.

First, Mr. Taylor claims that USF-Red Star discriminated

against him by refusing to allow him to return to the job on the

dock between March 15, 2001 and October 21, 2002 because it

perceived or regarded him as having a disability, specifically, “a

serious seizure condition” and/or epilepsy. A claim, such as this

one, that an employer takes an adverse employment action

against an employee, is because of a person's disability is called

a "disparate treatment" claim.

As I will instruct you, persons who are perceived or

regarded as having disabilities, as well as persons who have

been erroneously or falsely misclassified as having a disability,

are considered to be “persons with disabilities” who are

protected by both the ADA and the PHRA. These laws provide

equal protection to those who are perceived and/or misclassified

as having disabilities and those who have actual disabilities.

With regard to this first claim, USF-Red Star denies that it

regarded Mr. Taylor as having a "disability" as defined by the

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ADA and the PHRA, and further denies that it misclassified him

as such. USF-Red Star also contends that it did not discriminate

against Mr. Taylor because of a disability when it refused to

allow him to return to work. Red Star contends that Mr. Taylor

was not qualified to perform his job.

Second, Mr. Taylor claims that USF-Red Star

discriminated against him by failing to provide him with a

reasonable accommodation. Failure to make a reasonable

accommodation to a qualified person with a disability, who, with

or without accommodation can perform the essential functions

of the job he holds or desires, constitutes discrimination, even if

that disability is only perceived by the employer and is not an

actual disability. This is true, as I will explain more fully, even if

the employer does not intend to discriminate against the

individual based on his disability.

Third and finally, Mr. Taylor claims that USF-Red Star

violated the ADA and the PHRA by retaliating against him as a

result of his request for an accommodation; and/or because he

reasonably asserted his rights under those statutes, either

formally or informally; and/or because he opposed a practice or

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policy which is illegal under those laws. Red Star denies that it

retaliated against Mr. Taylor.

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11. PLAINTIFF'S DISPARATE TREATMENT CLAIM:

ELEMENTS

The parties agree that USF-Red Star's decision to keep Mr.

Taylor off the job between March 5, 2001 and October 21, 2002

is because of his seizures. Therefore, you do not need to decide

whether Red Star prevented Mr. Taylor from returning to work

because of his medical condition. Red Star admits that there

was no other reason for its decision.

There are factual disputes between the parties, however,

as to whether Red Star’s adverse action Mr. Taylor violated the

ADA and the PHRA. First, there is a dispute about whether Mr.

Taylor had a "disability" as that word is defined by those laws.

Second, there is a dispute about whether he was qualified to

perform the essential functions of the position he desired during

the period at issue – dockworker at Red Star - either with or

without accommodation. You will have to decide both of these

questions.

Mr. Taylor has the burden of proving the following three

elements by a preponderance of the evidence, in order to

prevail on his disparate treatment claims:

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First, that he has a "disability" as defined by the ADA

and/or the PHRA. As I have explained, the term "disability" is

defined broadly to include persons who are perceived as having

a disability which would qualify for the law’s protection, as well

as those who have been misclassified as having such a

disability.

Second, that he is a "qualified individual." A "qualified

individual" is one who can, with or without reasonable

accommodation, perform the essential functions of the job he

holds or desires. He does not have to show that he could

perform the marginal functions of the job, even with

accommodation. Likewise, he does not have to prove that he

could perform a job that he did not desire, with or without

accommodation.

Third, that he suffered an adverse employment action

because of his disability. In this case, as I have explained, both

sides agree that Red Star took the adverse action because of Mr.

Taylor’s medical condition. You must decide whether that

medical condition was perceived by Red Star to be a disability as

that term is defined by the ADA and PHRA, and/or whether Red

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Star erroneously or falsely classified Mr. Taylor as having such a

disability, and then based its action on that classification.

Sources: 42 U.S.C. § 12112; 43 P.S. § 955; Watson v. Southeastern Pennsylvania Transp. Auth., 207 F.3d 207, 213 n.4 (3d Cir. 2000); Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999); 3C Kevin F. O'Malley, et al., Federal Jury Practice and Instructions - Civil § 172.01 (5th ed. 2001).

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12. THE DEFINITION OF "DISABILITY"

Mr. Taylor had a "disability" as that term is used in the

ADA and

PHRA, and, therefore, was legally protected from employment

discrimination

under those laws, if, during the time period at issue: (1) he had

a physical or

mental impairment that substantially limited one or more major

life activities; or

(2) he was a person who had a record of such an impairment or

was

misclassified as such; or (3) he was regarded as having such an

impairment. A

person is considered to have a "disability" -- and thus be

protected under the

ADA -- if he meets any one of these three definitions.

Mr. Taylor does not rest his claims on the definition of

actual disability.

Rather, he contends that USF-Red Star regarded him as having

an impairment,

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that is, epilepsy or a seizure disorder, which it considered to

have a substantially

limiting impact on one or more of his major life activities and/or

that it

misclassified him as such.

You should not draw any negative inferences from the fact

that Mr.

Taylor's claim is not based on an actual disability. It is important

to understand

that the ADA protects persons who have records of disabilities or

who

are regarded or perceived as having disabilities -- even if they

do not and never

had actual disabilities -- to the same extent as it protects

persons with actual

disabilities. By prohibiting employment decisions based on

records of

disability, misclassifications as such, or perceptions of disability,

the ADA seeks

to prevent employment decisions based on stereotypes, fears,

or misconceptions

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based on such things as unsubstantiated concerns about

productivity, safety,

liability, attendance, and insurance costs.

A person is "regarded as" having a disability if: (1) the

person may

have had an impairment that is not substantially limiting but is

treated by

the employer as if it were substantially limiting; or (2) the

person may have an

impairment that is substantially limiting only because of the

attitudes of others

toward the impairment; or (3) the person may have no

impairment at all but

is regarded by the employer as having a substantially limiting

impairment. Even

an innocent misperception based on nothing more than a

mistake of fact as to the

severity, or even the existence, of an individual's impairment

can be sufficient to

satisfy the statutory definition of a perceived disability.

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The phrase "major life activity" means an activity that an

average person

can perform with little or no difficulty. Examples are caring for

oneself, walking,

breathing, seeing, hearing, and working. Mr. Taylor contends

that Red Star

perceived him as having a seizure disorder which substantially

limited his major

life activities of walking, breathing, caring for himself, remaining

conscious,

and/or working, and that it so classified him without a factual

foundation.

The phrase "substantially limits" means that Mr. Taylor

was misclassified

as, or was perceived to be unable to perform one or more major

life activities or

significantly restricted as to the condition, manner, or duration

under which he

could perform at least one major life activity. The following

factors are relevant

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in determining whether an individual is substantially limited in a

major life

activity: 1) the perception of the nature and severity of the

impairment; (2) the

perception of the duration or expected duration of the

impairment; and (3) the

perception that the impairment would have a permanent or

long-term impact. Where as here, Mr. Taylor alleges that

his employer perceived him as

having a disability due to a condition which is episodic and

unpredictable, he does

not have to show that the employer thought he was

substantially limited in any

major life activity on a constant basis, day after day. It is enough

if he proves that

Red Star thought he had a condition which was uncontrolled,

episodic, and

unpredictable, and that during a seizure he would be

substantially limited in one

or major life activities.

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In considering the major life activity of “work,” you are

required to

consider some additional factors. With regard to whether a

person has a

substantial limitation in the major life activity of “working”, you

must determine

whether Mr. Taylor was perceived by Red Star as 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 training,

skills, and

abilities. Proof of either is enough to establish that the person

has or is perceived

as having a substantial limitation in the major life activity of

working. The

following factors are relevant in considering whether USF-Red

Star's perception

of Mr. Taylor as having a seizure disorder which substantially

limited his major

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life activity of “working” or that he was misclassified as such,

including, for

example: (I) the number and type of jobs from which he would

be disqualified

because of the perception of the impairment; (2) the geographic

area to which Mr.

Taylor had reasonable access; and (3) the individual's job

training, experience,

and expectations. The question is not whether Red Star

perceived Mr. Taylor

as being incapable of performing any work. Moreover, Mr.

Taylor’s actual

capabilities at the time are not relevant. The only question

before you is whether

USF- Red Star's perception of Mr. Taylor's seizure disorder, or its

mis-

classification of his condition, would, if accurate, constitute a

significant barrier

to his employment.

Additionally, Mr. Taylor does not have to show that

employers other than

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USF Red-Star share the same misperception about his

impairment. You must

determine how Red Star perceived him and how it classified him.

Whether

Red- Star mispercieved or misclassified Mr. Taylor as having a

disability are the

only relevant questions for you to consider.

Sources: 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(l) & (k); 43 P.S. § 954(p.1);

16 Pa. Code § 44.4; Sutton v. United Airlines, Inc., 527 U.S. 471, 483 (1999);

School Bd. of Arline County v. Airline, 480 U.S. 273, 279 (1987); Williams v.

Philadelphia Housing Authority, 2004 U.S. App. LEXIS 18151, at 25, 43; Otto v.

J.C. Penny, 223 F.3d 704 (8th Cir. 2000); EEOC v. Kinney Shoe Co., 917 F. Supp.

419, aff’d, 104 F.3d 683 (1st Cir. 997); Deane v. Pocono Medical Center, 142

F.3d 138, 143-45 (3d Cir. 1998); Mondelewski v. Pathmark Stores, 162 F.3d 778,

785 (3rd Cir. 1998); Kevin F. O'Malley, et al., Federal Jury Practice and

Instructions - Civil §§ 172.34, 172.35, 172.36 (5th ed. 2001); Manual of Model

Civil Jury Instructions for the District Courts of the Eighth Circuit, Instruction

No. 5.52C (2001).

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13. DEFINITION OF "QUALIFIED"

If you determine that Mr. Taylor is an individual with a

disability because he

was regarded as having a disability and/or was misclassified as

having a

disability, you must next determine whether he was "qualified"

for the job he

held or desired.

Mr. Taylor was "qualified" under the law if he (1) had the

requisite skill,

experience, education, and other job-related requirements

necessary for the job,

and (2) was able to perform the essential functions of his job

with or without

reasonable accommodation. To be qualified, an employee need

not demonstrate

that he was able to perform non-essential job functions even

with an

accommodation. He also does not have to prove that he was

qualified for a job he

did not desire.

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In this case, there is no dispute that Mr. Taylor had the

requisite skill,

experience, education and other job-related requirements for

the dock worker

job since he was hired for that position and performed those job

duties, among

other things, prior to his seizures. The only issue then is,

whether, after his

seizures, Mr. Taylor could have performed the essential

functions of the

dockworker job with or without reasonable accommodation.

Sources: 42 U.S.C. § 12111(8); 3C Kevin F. O'Malley, et al., Federal Jury

Practice and Instructions - Civil § 172.31 (5th ed. 2001).

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14. DEFINITION OF "ESSENTIAL FUNCTIONS"

What are the essential functions of the job? They are the

fundamental job

duties of the position Mr. Taylor held or desired. They do not

include marginal duties of the job. In determining whether a job

function is essential, you may consider:

1. Any written job description utilized by USF-Red Star when

advertising the position or interviewing applicants;

2. The amount of time spent on performing the function;

3. The consequences of not requiring the person to perform

the function;

4. The terms of any collective bargaining agreement; and

5. The work experience of similar persons who have held the

job.

No single factor is determinative. You should give consideration

to, but are not bound by, USF-Red Star's judgment as to what

functions of the job are essential.

One factor you may not consider is evidence presented by USF

Red-Star that regulations of the United States Department of

Transportation (DOT) prohibited Mr. Taylor from operating a

forklift due to his seizures. Those DOT regulations govern truck

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drivers, not dockworkers. During the time period at issue here

Mr. Taylor was not requesting to drive a truck. He requested

that he be allowed to return to work on the dock with, or without

using, a forklift. DOT's regulations have no relevance at all to

the operation of forklifts, nor do they concern Mr. Taylor's

qualifications for the job which he desired – dockworker.

Additionally, USF-Red Star claims that it relied on the

opinions of its physicians to determine that Mr. Taylor was

qualified to return to work. You must consider whether USF-Red

Star's reliance on a physician's opinion was reasonable under

the circumstances. An employer can reasonably rely on a

physician's opinion when it is based on an individualized

examination of the employee's condition and is supported by

current, well-informed, objective and scientific medical

evidence. A physician's opinion that is based on preconceived

notions of a person with a purported disability and made without

an individualized examination of the person is not a reasonable

basis for an employment decision. In other words, unreasonable

reliance on a physician's opinion demonstrates that

discrimination -- that is the perception of disability or a

30

misclassification of the person’s medical condition -- is the

determining factor for the adverse action.

Sources: 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n); 49 C.F.R. §§ 391.41-391.49; Verzeni v. Potter, at 21 ; Taylor v. Pathmark, 177 F.3d 180, 188 (3rd Cir. 1999); Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001); Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 31-32 (1st Cir. 2002); Holiday v. City of Chattanooga, 206 F.3d 637, 643-45 (6th Cir. 2000); Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998); 3C Kevin F. O'Malley, et al., Federal Jury Practice and Instructions - Civil §§ 172.31, 172.33 (5th ed. 2001).

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15. NO REQUIREMENT OF PROVING HATRED OR DISLIKE

In his discrimination claim, Mr. Taylor has the burden of

showing that because USF-Red Star perceived him as having a

disability or misclassified him as such, it treated him differently

than it treated other employees, and that such differential

treatment was intentional, not just accidental. Put more simply,

Mr. Taylor must show that Red-Star’s belief that he has a

disability made a difference in its decision to take adverse action

against him.

Mr. Taylor need not prove that the managers at Red Star

hated, or even

disliked him. He must prove only that 1) they treated him

adversely because they thought he had a disability, 2) they did

so through purposeful actions, and not accidental ones, and 3)

if USF-Red Star had not erroneously perceived him to have a

disability or misclassified him as such, he would not have been

denied the opportunity to return to work.

Source: Watson v. SEPTA, 207 F.3d 207 (3rd Cir. 2000);Pivorotto v. Innovative Systems, Inc., 191 F.3d 344 (3rd Cir. 1999) citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.14 (1977); Spain v. Gallegos, supra (jury need find only that if plaintiff had been a man she would have been treated differently, it need not also find that similarly situated men were

32

treated differently); Bray v. Marriott Hotels, Inc., 110 F.3d 986 (3rd Cir. 1997); Sheridan v. I.E. DuPont DeNemours and Company, 100 F.3d 1061, 1072 (3rd Cir. 1996); Burlew v. Easton, 869 F.2d 1063, 1066 (7th Cir 1988) (factfinder may consider that stereotypical beliefs motivated decision-maker, even if it does not find that others were treated differently).

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16. SUMMARY OF DISPARATE TREATMENT CLAIM

In sum, you must return a verdict in favor of Mr. Taylor on

his

disparate treatment claim if you find that he was regarded as

having a disability or was misclassified as such and he was

qualified to perform the job of a dockworker, either with or

without a reasonable accommodation.

You must return a verdict in favor of USF-Red Star on Mr.

Taylor's disparate treatment claim if you find that USF-Red Star

did not perceive Mr. Taylor as having a disability and did not

misclassify him as such, or if you find that Mr. Taylor was not

qualified to perform his job as a dockworker, with or without a

reasonable accommodation.

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17. PLAINTIFF'S REASONABLE ACCOMMODATION CLAIM: ELEMENTS

Mr. Taylor’s second claim is that he could perform the

dockworker job with or without a reasonable accommodation,

and that USF-Red Star violated the ADA and the PHRA by

refusing to afford him a reasonable accommodation. Your

verdict must be for Mr. Taylor and against USF-Red Star if Mr.

Taylor proves all of the following elements by a preponderance

of the evidence.

First, that he has a "disability," as defined by the ADA and

PHRA;

Second, that he was a "qualified" individual because he

could have

performed the essential functions of the job he desired with or

without reasonable accommodation;

Third, that it would have been feasible for USF-Red Star to

have provided

him with a reasonable accommodation, and that it could have

done so without an undue burden.

Finally, Mr. Taylor must prove that USF-Red Star refused to

provide him

35

with a reasonable accommodation to allow him to return to

work.

As opposed to the disparate treatment claim, in which Mr.

Taylor had to

show purposeful action on Red Star’s part, he does not have to

prove that in failing to accommodate him USF-Red Star intended

to discriminate against him on the basis of a disability.

Additionally, Red Star cannot defeat Mr. Taylor’s accommodation

claim by showing that it treated Mr. Taylor the same as other

employees. The essence of reasonable accommodation is that

the employer sometimes must provide different treatment in

order to provide equal employment opportunity to a person with

a disability.

Consider this simple example: if a person with a disability

cannot reach

the drinking fountain without a stool, but the employer generally

does not provide a stool for its employees’ use, the employer

cannot defend the employee’s accommodation claim by stating

that it treated the person with a disability the same as the

employees without a disability. Because the employee with a

disability needed a stool in order to have equal access to the

36

drinking fountain, the employer’s failure to provide the stool, ie.,

to treat that person differently than its other employees,

discriminated against that employee.

Source: Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit, Instruction No. 5.51C (2001); Williams v. Philadelphia Housing Authority, supra, at 48; McWright v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992).

37

18. REASONABLE ACCOMMODATION/UNDUE

HARDSHIP

I have already instructed you about the meaning of the

terms "disability"

and "qualified" with respect to Mr. Taylor's first discrimination

claim. In determining whether Mr. Taylor has met his burden of

proof on his reasonable accommodation claim, you should follow

those same instructions. I want to expand now, though, on the

meaning of "reasonable accommodation."

The term "reasonable accommodation" means making

modifications or adjustments to the manner or circumstances

under which the position held is customarily performed,

including changes in ordinary work rules and policies, that

enable a person with a disability to perform the essential

functions of the job.

As I explained in the simple example of the stool and the

drinking

fountain, the ADA sometimes requires preferences in the form of

"reasonable

38

accommodations" that are needed for those with disabilities to

obtain the same workplace opportunities that those without

disabilities enjoy. Depending on the particular facts, all

employment rules and policies are subject to the ADA's

requirement of reasonable accommodation, which means that

an employer must modify its rules and policies for employees

with disabilities to maintain their jobs if it is reasonable for the

employers to do so. Thus, for example, if an employer requires

that an employee with a disability be able to do full duty (a so-

called "100 percent healed policy") and be fully able to complete

every work activity related to the job in order to work, that

employer violates the ADA because its policies do not allow for

the option of reasonable accommodation.

By definition, any "accommodation" requires an employer

to treat

an employee with a disability differently. The fact that an

accommodation would make an exception for an employer's

disability-neutral rule or policy does not mean that such an

accommodation is unreasonable. Therefore, you should

remember that the simple fact that an accommodation would

provide a "preference" -- in the sense that it would exempt a

39

worker with a disability from a rule that others must obey -- does

not automatically mean that it is not required by the ADA.

A reasonable accommodation does not include eliminating

any essential

function of a job or creating a new job. As I have instructed you,

however, reasonable accommodations under the ADA may

include, but are not limited to, restructuring of the essential

functions of the job the employee holds or desires; providing a

part-time or modified work schedule; and/or modifying

employment policies. Whether an accommodation is reasonable

in any particular case depends on the facts of the situation.

If Mr. Taylor has demonstrated that an accommodation

was reasonable,

then the burden shifts to USF-Red Star to prove by a

preponderance of the evidence that no accommodation was

possible or that any accommodation would have resulted in an

"undue hardship." The term "undue hardship" means an action

that requires significant difficulty or expense. An

accommodation that is unduly costly (when considered in light

of USF-Red Star's resources), extensive, substantial, disruptive,

40

or that would fundamentally alter the nature or operation of the

business would be an undue hardship.

Sources: 42 U.S.C. §§ 12111(9), 12111(10), 12112(b)(5); 29 C.F.R. §§ 1630.2(o), 1630.2(p), 1630.9; 16 Pa. Code §§ 44.4, 44.5, 44.14; US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002); Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001); Martinson v. Kinney Shoe Corp., 104 F.3d683 (4th Cir. 1997); EEOC v. Yellow Freight, 2002 U.S. Dist. LEXIS 16862 (E.D. Pa. 2002); EEOC, Title I Technical Assistance Manual at IX-4; 3C Kevin F. AMALIA, et al., Federal Jury Practice and Instructions - Civil § 172.39 (5th ed. 2001); Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction No. 15.7, 15.8 (2001).

41

19. INTERACTIVE PROCESS

In determining whether US-Red Star failed to provide

reasonable accommodations to Mr. Taylor, you should take into

consideration whether US-Red Star participated in good faith in

an "interactive process" to determine if a reasonable

accommodation of Mr. Taylor's disability was possible.

The ADA requires that when an employer knows of an

employee's disability and the employee or someone on his

behalf requests an accommodation, the employer must make a

good faith effort to assist the employee seeking a reasonable

accommodation. In the interactive process, the employer and

employee should work together to identify the precise

limitations resulting from the employee's disability and the

potential reasonable accommodations that could overcome

those disabilities. The employer must take some initiative in this

process; it cannot sit back passively, offer nothing, and simply

assert that no accommodation is reasonable. Both the employer

and the employee must work together in good faith to identify

accommodations.

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Participation by an employer in a union grievance process

mandated by a

collective bargaining agreement is not equivalent to the

interactive process required by the ADA absent evidence that

the employer made a good faith effort in that process to work

with the employee to identify disability-based barriers to

performing the essential functions of the job and to identify

potential accommodations.

If you find that US-Red Star is responsible for a breakdown

in the

interactive process and that there were accommodations that

US-Red star reasonably could have provided to Mr. Taylor, you

must find in his favor. If you conclude that there was no

breakdown in the interactive process, you must find in favor of

Mr. Taylor if he demonstrated that a specific reasonable

accommodation or accommodations would have allowed him to

perform the essential functions of the job, unless US-Red Star

proved that providing such accommodation would result in an

undue hardship.

Sources: 29 C.F.R. § 1630.2(o)(3); 29 C.F.R. Pt. 1630, App., § 1630.9; Williams v. PHA, supra, at 59. Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 329-31 (3d Cir. 2003); Taylor v. Phoenixville School Dist., 184 F.3d 296, 312-20 (3d Cir. 1999);

43

Bultemeyer v. Fort-Wayne Comm. Schools, 100 F.3d 1281, 1285-87 (7th Cir. 1996); EEOC v. Dollar General Corp., 252 F. Supp.2d 277, 290-93 (M.D.N.C. 2003); EEOC v. Yellow Freight System, Inc., Civil Action No. 98 Civ. 2270, 2002 WL 31011859 at *24 (S.D.N.Y. Sept. 9, 2002); Coleman v. Keebler Co., 997 F. Supp. 1102, 1118 (N.D. Ind. 1998).

44

20. PLAINTIFF'S RETALIATION CLAIM: ELEMENTS

Mr. Taylor's third claim under the ADA and the PHRA is for

retaliation. Mr. Taylor claims that US-Red Star violated the ADA

and PHRA by refusing to allow him to return to work because he

asserted his rights under the ADA, requested reasonable

accommodations, and/or filed a charge of discrimination with the

Equal Employment Opportunity Commission or asserted his

ADA/PHRA rights during his union grievance.

The ADA and the PHRA make it unlawful for an employer

to discriminate

against any individual because the individual has opposed any

act or practice that is unlawful under the ADA or the PHRA or

because the individual made a charge that the employer

violated the ADA or PHRA. I want to emphasize that disability is

not an element of a retaliation claim. Any individual -- with or

without a disability -- is protected against retaliation for

reasonably asserting rights under the ADA and PHRA. Thus,

even if you find that Mr. Taylor did not have a disability as

defined by the ADA and PHRA, you may still find in favor of Mr.

45

Taylor on his retaliation claim if he proves all of the elements of

that claim.

You must find in favor of Mr. Taylor on his retaliation claim

if you determine that he has proved all of the following elements

by a preponderance of the evidence:

First, that he was engaged in conduct protected under the ADA

and

PHRA. Protected activity includes asserting his rights, formally

or informally, under the ADA/PHRA, such as telling his employer

that he believed he was protected and that its conduct was

contrary to the rights which those laws gave him; pursuing his

rights in a grievance, filing a charge of discrimination with the

EEOC/PHRC, or otherwise expressing his belief that Red Star was

violating the law or that he was opposing such conduct.

Second, that US-Red Star subjected him to an adverse

employment

action at the time of or after the protected conduct occurred.

Third, that there was a causal connection between his

protected activity

46

and the adverse employment action. In determining whether a

causal connection exists, you may look, for example, to the

amount of time between the protected activity and the adverse

employment action.

Sources: 42 U.S.C. § 12203(a); Williams v. PHA, supra, 2000 US App. LEXIS 18151; Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187, 189 (3d Cir. 2003).

47

21. PROTECTED ACTIVITY

A plaintiff is not required to prove that the practice he

complained of did actually violate the ADA and PHRA, or even

that he knew the names of the laws or what they do. He simply

had to reasonably believe, in good faith, that the employer's

actions violated rights which are, in fact, protected under those

laws. Therefore, if you find that Mr. Taylor reasonably believed

that he had rights which the ADA does protect, and that US-Red

Star was violating those rights, he has established the first

element of his retaliation claim

Source: Williams v. PHA, supra; Aman v. Cort Furniture Rental Corp., 85

F.3d 1074, 1085 (3d Cir. 1996).

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22. ADVERSE EMPLOYMENT ACTION

Unwarranted procedures that prevent a person from

returning to work can constitute an adverse employment action.

If you find that Mr. Taylor was the subject of unwarranted

procedures in order to return to work then he has proven the

second element of a case of retaliation.

Source: Griffin v. Michigan Department of Corrections, 654 F.Supp. 690 (ED Mich 1982); EEOC v. Kallir, Phillips, Ross, Inc., 401 F.Supp. 66 (S.D.N.Y. 1975, affd 559 F.2d 1203 (2nd Cir. 1977), cert den 434 U.S. 920 (1977); Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir 1986).

49

23. PROVING CAUSAL RELATION

To prove the causal relation element of his claim, a

plaintiff merely has to prove that the protected activity and the

adverse employment action are not wholly unrelated. A causal

connection may be found where there is proof that the adverse

employment action followed the protected activity so closely in

time as to justify an inference of retaliatory motive. Where the

timing is unusually suggestive of a causal link, it is sufficient,

standing alone, to support a finding that the adverse action was

causally connected to the protected activity.

Source: Williams v. PHA, supra, at 14; Krouse v. American Sterilizer Co., 126 F.3d 494 (3rd Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997), Jalil v. Avdel Corp, 873 F.2d 701, 708 (3d Cir. 1989).

50

24. DETERMINATIVE FACTOR*

The question for you, members of the jury, is whether Mr.

Taylor’s complaint of disability discrimination was a

determinative factor in his treatment by US-Red Star. The issue

is not whether he was treated fairly or whether there was a

personality conflict between Mr. Taylor and his superiors or

whether US-Red Star made sound management decisions. He

need not prove that his complaint of discrimination was the sole

factor motivating the Defendant. However, Mr. Taylor must

prove that he would have been returned to work earlier if the

fact that he had complained of disability discrimination not been

taken into account.

Therefore, you are not to decide whether you agree or

disagree with USF-Red Star’s actions. You are to decide whether

Mr. Taylor's complaint of discrimination was a determinative

factor in US-Red Star’s treatment of him.

If you find that US-Red Star prevented Mr. Taylor from

returning to work for reasons in which his complaint of

discrimination was not a determinative factor, then you must

51

return a verdict in favor of US-Red Star on the claim of

retaliation.

Source: Hook v. Ernst and Young, 28 F.3d 366, 369-70 (3rd Cir. 1994).

52

25. FULL, FAIR AND COMPLETE EXPLANATIONSEMPLOYER’S BUSINESS JUDGMENT

US-Red Star has offered an explanation for continuing to

refuse to allow Mr. Taylor to return to work. Mr. Taylor claims

that the reason given by USF-Red Star is not adequate to refute

his claim of unlawful retaliation.

You the jury are charged with the responsibility of

determining whether the reason offered by US-Red Star fully and

fairly explains in a non-retaliatory way its decision in Mr.

Taylor’s case. Mr. Taylor is not required to show that any or all

of the proffered reasons are based on untrue facts although he

is free to take that approach. It is his burden to prove that US-

Red Star’s reasons are not a true explanation, not a fair

explanation, or not a complete explanation for its adverse

decision to keep him out of work, and that his complaint of

discrimination was one of the factors that resulted in biased

treatment.

First, in considering whether the reason that US-Red Star

has offered is a full, fair and complete explanation for its

decision, you may consider whether such reasons, or any one of

them, would have been applied to Mr. Taylor if he had not

53

complained of discrimination. US-Red Star is entitled to

determine its own standards for making employment decisions,

but it is not permitted to have a double standard which is

applied more strictly because an employee has complained of

discrimination. It is your job to determine whether Red Star’s

usual standards were applied differently to Mr. Taylor because

he complained, formally or informally, that Red Star was

violating rights protected by the ADA or PHRA. If the reason that

US-Red Star has put forward would not have resulted in adverse

action had Mr. Taylor not complained of discrimination, then that

reason is not an adequate defense.

Second, you must also consider whether the reason is so

lacking in merit or credibility that it could not possibly have been

relied upon. If so, such reason is a pretext or cover-up for

something; Mr. Taylor must satisfy you that that “something” is

retaliation.

Finally, if you find that US-Red Star actually had a good

reason to take adverse action against Mr. Taylor, but that it did

not actually rely on that reason, you may find that the reason

was a pretext for retaliation; in other words, that the reason Red

Star gave is being used to cover up a retaliatory reason.

54

Similarly, if the evidence Red Star gave regarding its

reason for the adverse action is inconsistent or implausible, you

may infer that US-Red Star acted on a retaliatory basis. Such

evidence might include documents or testimony tending to show

that stated reasons were inconsistent with the facts surrounding

the decision.

If you find that US-Red Star’s reasons do honestly, fully

and fairly explain its actions, and that Mr. Taylor’s complaint of

discrimination was not one of the determining factors in its

decision to keep him out of work during the time period at issue,

you will find in favor of US-Red Star. If you find that US-Red

Star’ reasons do not honestly, fully or fairly explain its actions

and that Mr. Taylor's complaint of discrimination did make a

difference, then you must find in favor of Mr. Taylor.

Source: St. Mary’s Honor Center v. Hicks, 509 U.S. 522 (1993) (pretext may be established with evidence discrediting the employer’s proffered reason or evidence that bias more likely than not was a motivating factor in the employer’s adverse employment decision); Sheridan v. E.I. duPont DeNemours & Co., No. 93-CV-00046 Slip Op. at 821 (3d Cir. Nov. 14, 1996); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995); Barber v. CSX Distribution Services, Inc., 68 F.3d 694 (3d Cir. 1995); Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir. 1995); Sempier v. Johnson & Higgins, 45 F.3d 524 (3d Cir. 1995), cert. denied, 115 S.Ct. 2611 ( ); Armbruster v. UNISYS Corp., 32 F.3d 768, 782-83 (3d Cir. 1994); Fuentes v. Perskie, 32 F.3d at 764 (3d Cir. 1994) (all standing for the principle that a fact

55

finder may infer discrimination from the plaintiff’s prima facie case and from evidence either discrediting the defendant’s proffered reasons, or evidence that bias more likely than not motivated the defendant). See notes to Proposed Jury Instructions Nos. 6-9, supra. McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995) (meritorious reason not relied upon by the employer may not defeat liability).

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26. ACTUAL DAMAGES

If you find that Mr. Taylor has proved any one of his three

claims, then you must award Mr. Taylor such amount as you find

by the preponderance of the evidence will fairly and justly

compensate him for any wage loss and damages he suffered as

a direct result of US-Red Star's violation of the law. Mr. Taylor's

claim for relief has three distinct components -- back pay and

other wage-related benefits, compensatory damages, and

punitive damages. You must consider each separately.

Source: Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit, Instruction No. 5.02 (2001).

57

27. BACK PAY

First, you must determine the amount of "back pay" to

award Mr. Taylor. "Back pay" is the amount that reasonably

compensates Mr. Taylor for any lost wages and employment

benefits between he was initially directed to go home (March 15,

2001) through the date of his reinstatement (October 18, 2002),

taking into consideration any increases in salary and benefits,

that Mr. Taylor would have received had he not been

discharged. You must reduce any back pay award by the

amount of any earnings and related benefits he actually

received during that period. In determining back pay and

damages, all uncertainties are to be resolved in favor of the

injured party, Mr. Taylor.

Source: 3C Kevin F. AMALIA, et al., Federal Jury Practice and Instructions - Civil § 172.71 (5th ed. 2001).

58

28. BACK PAY NOT REDUCED BY TAXES

You must not deduct from Mr. Taylor's back pay the taxes

he would have had to pay on his salary if he had not been

terminated, since Mr. Taylor will be required to pay taxes on the

amount you award as back pay. Otherwise, he will have

effectively been taxed twice on that back pay.

Source: Equal Employment Opportunity Commission v. Kentucky State Police Department, 80 F.3d 1086, 1100 (6th Cir. 1996).

59

29. MITIGATION OF DAMAGES*

A plaintiff has a duty to minimize or mitigate his damages

by using reasonable diligence in seeking other suitable

alternative employment. A "suitable position" is one that is

substantially similar to the position Mr. Taylor had at US-RED

STAR. A plaintiff need not go into another line of work, accept a

demotion or take a demeaning position, but must take

reasonable care and diligence in seeking a job substantially

equivalent to the one that was lost.

US-RED STAR has the burden of proving that Mr. Taylor did

not minimize, or mitigate, his damages. In order to prove that

Mr. Taylor failed to mitigate his damages, US-RED STAR must

establish: (1) that there were suitable positions which Mr. Taylor

could have discovered and for which he was qualified; and (2)

Mr. Taylor failed to use reasonable diligence in seeking such

positions. US-RED STAR's burden is not satisfied merely by

showing that there were further actions Mr. Taylor could have

taken in pursuit of employment. Rather, US-RED STAR must

show that the course of conduct Mr. Taylor actually followed was

60

so deficient as to constitute an unreasonable failure to seek

employment.

Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 864-866 (3d Cir. 1995); Dailey v. Societe Generale, 108F.3d. 451, 455-56 (2d Cir. 1997). Id.; Campbell v. Pennsylvania College, 1995 U.S. Dist. LEXIS 11708, *20 (E.D. Pa. 1995) and cases cited therein. Dailey v. Societe Generale, 915 F. Supp. 1315, 1321 (S.D.N.Y. 1996), aff'd in pertinent part, 108 F.3d 451 (2d Cir. 1997).

61

30. COMPENSATORY DAMAGES

You also may award compensatory damages to Mr. Taylor

if you find that US-Red Star violated the ADA and PHRA. You

may award compensatory damages only for injuries that Mr.

Taylor proves were caused by US-Red Star's allegedly wrongful

conduct. You may award damages for any pain, suffering, or

mental anguish that Mr. Taylor experienced as a consequence of

US-Red Star's allegedly wrongful conduct

The damages you award must be fair compensation -- no

more and no less. No evidence of the monetary value of such

intangible things as pain, suffering, humiliation, or emotional

distress has been, or need be, introduced into evidence. There

is no exact standard for fixing the compensation to be awarded

for these elements of damage. Any award you make should be

fair in light of the evidence presented at trial.

In determining the amount of damages to award, you

should be guided by dispassionate common sense. You must

use sound judgment in fixing an award of damages, drawing

reasonable inferences from the facts in evidence. You may not

award damages based on sympathy, speculation, or guess work.

62

On the other hand, the law does not require Mr. Taylor to prove

the amount of his losses with mathematical precision, but only

with such definiteness and accuracy as circumstances permit.

Sources: 42 U.S.C. § 1981a(2); 3C Kevin F. AMALIA, et al., Federal Jury Practice and Instructions - Civil § 172.70 (5th ed. 2001).

31. PUNITIVE DAMAGES

If you find that US-Red Star intentionally discriminated

against Mr. Taylor in violation of the ADA, the law allows you,

but does not require you, to award punitive damages.

The purpose of an award of punitive damages is, first, to

punish a wrongdoer for misconduct and, second, to warn others

against doing the same.

In this case you may award punitive damages if you find

that US-Red Star engaged in a discriminatory practice or

practices with malice or reckless indifference to the right of Mr.

Taylor to be free from such intentional discrimination.

You may find that punitive damages are proper only where

the employer acted with knowledge that its actions may have

violated federal law. A plaintiff may satisfy this element by

demonstrating that the relevant individuals knew of, or were

familiar with, the anti-discrimination laws and the employer's

63

policies for implementing those laws. A plaintiff may also satisfy

this element by showing that the defendant's employees lied

either to the plaintiff, or in their testimony at trial, in order to

cover up their discriminatory actions.

In order to receive an award of punitive damages the

plaintiff must also prove a basis for imputing liability to the

company for the acts of its employees. Mr. Taylor must show

that the managers who discriminated and/or retaliated against

him were acting within the scope of their employment and with

the authority given to them by Red Star. If you find that the

employees were managerial agents of Red Star and that they

were acting within the scope of their authority, and that they

acted with the requisite intent you may award punitive damages

to Mr. Taylor.

The defendant may avoid liability for punitive damages if

it can prove that it engaged in good faith efforts to comply with

the requirements of the ADA by implementing and enforcing an

anti-discrimination policy. While implementation of an anti-

discrimination policy is relevant to evaluating an employer's

good faith efforts at compliance with anti-discrimination law, it is

not sufficient, standing alone, to insulate the employer from an

64

award of punitive damages. An employer must show a good

faith effort to enforce that policy. For instance, if you find that

the person or persons who made the decision to keep Mr. Taylor

from returning to work were high enough in the chain of

command at US-Red Star such that they were policy makers you

may find that the company did not make a good faith effort to

enforce its anti-discrimination policy. If you find that those

decision- makers did not have sufficient authority to act as

policy makers for US-Red Star, you may still find the company

failed to make a good faith effort to enforce its anti-

discrimination policy if you find that US-Red Star ratified, or

subsequently approved of, the conduct of the person or persons

who made the decision to refuse to allow Mr. Taylor to return to

work, with a reasonable belief that discrimination occurred. The

persons who ratified the conduct are not required to know with a

certainty that discrimination occurred but must have such

knowledge or information that would lead a reasonable person

to believe that it did.

If you determine from the evidence received in this case

that the defendant’s conduct justifies an award of punitive

damages, you may award an amount of punitive damages which

65

all jurors agree is proper. In fixing the amount, you should

consider the following questions: How offensive was the

conduct? What amount of punitive damages is needed,

considering the defendant’s financial condition, to prevent a

repetition? Does the amount have a reasonable relationship to

the actual damages awarded?

If you award punitive damages, you should fix the amount

using calm discretion and sound reason. You must not be

influenced by sympathy or dislike of any party in the case.

DATE: September 16, 2004

Respectfully submitted:

lm1125 LORRIE McKINLEY1520 Locust Street, 10th FloorPhiladelphia, PA 19102(215) 731-0231

ROBERT W. MEEK, ESQUIREDisabilities Law Project1315 Walnut Street, 4th FloorPhiladelphia, PA 19102(215) 238-8070

66