Terry Head v. Costco Wholesale Corporation

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 TERRY HEAD, Case No. 24-cv-01203-EMC 8 Plaintiffs, COURT PROPOSED JURY ? v. INSTRUCTIONS 10 COSTCO WHOLESALE CORPORATION, 11 Defendants. a 12 v 14 Attached are the Court’s proposed jury instructions. The parties may file comments on the © 15 instructions by November 17, 2025. [16] = 17 IT IS SO ORDERED. Z 18 19 Dated: November 3, 2025 [21] EDWA . CHEN 22 United States District Judge [28] 1 I. PRELIMINARY INSTRUCTIONS [2] 3 JURY INSTRUCTION NO. [1.3] DUTY OF JURY 4 Members of the jury: You are now the jury in this case. It is my duty to instruct you on the 5 law. 6 It is your duty to find the facts from all the evidence in the case. To those facts you will 7 apply the law as I give it to you. You must follow the law as I give it to you whether you agree 8 with it or not. And you must not be influenced by any personal likes or dislikes, opinions, 9 prejudices or sympathy. That means that you must decide the case solely on the evidence before 10 you. You will recall that you took an oath to do so. 11 At the end of the trial, I will give you final instructions. It is the final instructions that will 12 govern your duties. 13 Please do not read into these instructions, or anything I may say or do, that I have an 14 opinion regarding the evidence or what your verdict should be. [15] 16 Court Notes: 9th Cir. Model Instruction No. 1.3. The parties have stipulated to this 17 instruction. [27] 1 JURY INSTRUCTION NO. [____] UNCONSCIOUS BIAS 2 We all have feelings, assumptions, perceptions, fears, and stereotypes about others. Some 3 biases we are aware of, and others we might not be fully aware of, which is why they are called 4 implicit or unconscious biases. No matter how unbiased we think we are, our brains are hard‐ 5 wired to make unconscious decisions. We look at others and filter what they say through our own 6 personal experience and background. Because we all do this, we often see life and evaluate 7 evidence in a way that tends to favor people who are like ourselves, or who have had life 8 experiences like our own. We can also have biases about people like ourselves. One common 9 example is the automatic association of male with career and female with family. Bias can affect 10 our thoughts, how we remember what we see and hear, whom we believe or disbelieve, and how 11 we make important decisions. 12 As jurors, you are being asked to make an important decision in the case. You must one, 13 take the time you need to reflect carefully and thoughtfully about the evidence. 14 Two, think about why you are making the decision you are making and examine it for bias. 15 Reconsider your first impressions of the people and the evidence in this case. If the people 16 involved in this case were from different backgrounds, for example, richer or poorer, more or less 17 educated, older or younger, or of a different gender, gender identity, race, religion or sexual 18 orientation, would you still view them, and the evidence, the same way? 19 Three, listen to one another. You must carefully evaluate the evidence and resist, and help 20 each other resist, any urge to reach a verdict influenced by bias for or against any party or witness. 21 Each of you have different backgrounds and will be viewing this case in light of your own 22 insights, assumptions and biases. Listening to different perspectives may help you to better 23 identify the possible effects these hidden biases may have on decision making. 24 And four, resist jumping to conclusions based on personal likes or dislikes, generalizations, 25 gut feelings, prejudices, sympathies, stereotypes, or unconscious biases. 26 The law demands that you make a fair decision based solely on the evidence, your 27 individual evaluations of that evidence, your reason and common sense, and these instructions. 1 Court Notes: It is the Court’s practice to give the instruction above on unconscious bias. [27] 1 JURY INSTRUCTION NO. [1.5] CLAIMS AND DEFENSES 2 To help you follow the evidence, I will give you a brief summary of the positions of the 3 parties: 4 The plaintiff is Terry Head. The defendant is Costco Wholesale Corporation. Mr. Head 5 was an employee of Costco. He claims that, while he was an employee, Costco violated state law 6 by: (1) failing to give him a reasonable accommodation based on the disability of his wife; (2) 7 failing to engage in a good faith, interactive process to determine effective reasonable 8 accommodation, if any; (3) retaliating against him because he asked for a reasonable 9 accommodation; and (4) wrongfully terminating him because he asked for a reasonable 10 accommodation. 11 Mr. Head has the burden of proving his claims. 12 Costco denies Mr. Head’s claims and further denies that Mr. Head suffered any injury 13 because of Costco’s alleged conduct. [14] 15 Court Notes: 9th Cir. Model Instruction No. 1.5 (modified). The parties have submitted 16 competing instructions. The Court has provided a temporary version. As discussed at the Final 17 Pretrial Conference, the parties should meet and confer to see if they can reach agreement on an 18 instruction that provides more factual context and basic legal principles for the jury at the outset. 19 A proposed instruction on this point shall be filed by November 17, 2025. 20 Although the Court refers to a wrongful termination, this does not preclude Mr. Head from 21 arguing that his resignation was a constructive discharge. See Turner v. Anheuser-Busch, Inc., 7 22 Cal. 4th 1238 , 1251 (1994) (stating that constructive discharge is “a doctrine that transforms what 23 is ostensibly a resignation into a firing”); Valdez v. City of Los Angeles, 231 Cal. App. 3d 1043 , 24 1055 (1991) (stating that, “[i]n order to establish a constructive discharge, the employee must 25 show: ‘(1) the actions and conditions that caused the employee to resign were violative of public 26 policy; (2) these actions and conditions were so intolerable or aggravated at the time of the 27 employee's resignation that a reasonable person in the employee's position would have resigned; 1 of the intolerable actions and conditions and of their impact on the employee and could have 2 remedied the situation’”). [27] 1 JURY INSTRUCTION NO. [1.6] BURDEN OF PROOF – 2 PREPONDERANCE OF THE EVIDENCE 3 When a party has the burden of proving any claim or affirmative defense by a 4 preponderance of the evidence, it means you must be persuaded by the evidence that the claim or 5 affirmative defense is more probably true than not true. 6 You should base your decision on all of the evidence, regardless of which party presented 7 it. [8] 9 Court Notes: 9th Cir. Model Instruction No. 1.6. The parties have stipulated to this 10 instruction. [27] 1 JURY INSTRUCTION NO. [1.9] WHAT IS EVIDENCE 2 The evidence you are to consider in deciding what the facts are consists of: 3 1. the sworn testimony of any witness; 4 2. the exhibits that are admitted into evidence; 5 3. any facts to which the lawyers have agreed; and 6 4. any facts that I [may instruct] [have instructed] you to accept as proved. [7] 8 Court Notes: 9th Cir. Model Instruction No. 1.9. The parties have stipulated to this 9 instruction. [27] 1 JURY INSTRUCTION NO. [1.10] WHAT IS NOT EVIDENCE 2 In reaching your verdict, you may consider only the testimony and exhibits received into 3 evidence. Certain things are not evidence, and you may not consider them in deciding what the 4 facts are. I will list them for you: 5 (1) Arguments and statements by lawyers are not evidence. The lawyers are not 6 witnesses. What they [may say] [have said] in their opening statements, closing 7 arguments and at other times is intended to help you interpret the evidence, but it is 8 not evidence. If the facts as you remember them differ from the way the lawyers 9 have stated them, your memory of them controls. 10 (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to 11 their clients to object when they believe a question is improper under the rules of 12 evidence. You should not be influenced by the objection or by the court’s ruling on 13 it. 14 (3) Testimony that is excluded or stricken, or that you [are] [have been] instructed to 15 disregard, is not evidence and must not be considered. In addition, some evidence 16 [may be] [was] received only for a limited purpose; when I [instruct] [have 17 instructed] you to consider certain evidence only for a limited purpose, you must do 18 so, and you may not consider that evidence for any other purpose. 19 (4) Anything you may [see or hear] [have seen or heard] when the court was not in 20 session is not evidence. You are to decide the case solely on the evidence received 21 at the trial. [22] 23 Court Notes: 9th Cir. Model Instruction No. 1.10. The parties have stipulated to this 24 instruction. [27] 1 JURY INSTRUCTION NO. [1.11] EVIDENCE FOR LIMITED PURPOSE 2 Some evidence may be admitted only for a limited purpose. 3 When I instruct you that an item of evidence has been admitted only for a limited purpose, 4 you must consider it only for that limited purpose and not for any other purpose. [5] 6 Court Notes: 9th Cir. Model Instruction No. 1.11. The parties have stipulated to this 7 instruction. [27] 1 JURY INSTRUCTION NO. [1.12] DIRECT AND CIRCUMSTANTIAL 2 EVIDENCE 3 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as 4 testimony by a witness about what that witness personally saw or heard or did. Circumstantial 5 evidence is proof of one or more facts from which you could find another fact. You should 6 consider both kinds of evidence. The law makes no distinction between the weight to be given to 7 either direct or circumstantial evidence. It is for you to decide how much weight to give to any 8 evidence. 9 By way of example, if you wake up in the morning and see that the sidewalk is wet, you 10 may find from that fact that it rained during the night. However, other evidence, such as a turned 11 on garden hose, may provide a different explanation for the presence of water on the sidewalk. 12 Therefore, before you decide that a fact has been proved by circumstantial evidence, you must 13 consider all the evidence in the light of reason, experience and common sense. [14] 15 Court Notes: 9th Cir. Model Instruction No. 1.12. The parties stipulated to the first 16 paragraph above. The Court has included the second paragraph (highlighted above) which comes 17 from the Ninth Circuit comment: “It may be helpful to include an illustrative example in the 18 instruction.” [27] 1 JURY INSTRUCTION NO. [1.13] RULING ON OBJECTIONS 2 There are rules of evidence that control what can be received into evidence. When a 3 lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 4 it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 5 question may be answered or the exhibit received. If I sustain the objection, the question cannot 6 be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 7 you must ignore the question and must not guess what the answer might have been. 8 Sometimes I may order that evidence be stricken from the record and that you disregard or 9 ignore that evidence. That means when you are deciding the case, you must not consider the 10 stricken evidence for any purpose. [11] 12 Court Notes: 9th Cir. Model Instruction No. 1.13. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [1.14] CREDIBILITY OF WITNESSES 2 In deciding the facts in this case, you may have to decide which testimony to believe and 3 which testimony not to believe. You may believe everything a witness says, or part of it, or none 4 of it. 5 In considering the testimony of any witness, you may take into account: 6 (1) the opportunity and ability of the witness to see or hear or know the things testified 7 to; 8 (2) the witness’s memory; 9 (3) the witness’s manner while testifying; 10 (4) the witness’s interest in the outcome of the case, if any; 11 (5) the witness’s bias or prejudice, if any; 12 (6) whether other evidence corroborated or contradicted the witness’s testimony; 13 (7) the reasonableness of the witness’s testimony in light of all the evidence; and 14 (8) any other factors that bear on believability. 15 You must avoid allowing your determination of credibility to be influenced by your own 16 bias, conscious or unconscious, based on a witness’s race, color, religious beliefs, national 17 ancestry, sexual orientation, gender identity, gender, or economic circumstances in your 18 determination of credibility. 19 Sometimes a witness may say something that is not consistent with something else he or 20 she said. Sometimes different witnesses will give different versions of what happened. People 21 often forget things or make mistakes in what they remember. Also, two people may see the same 22 event but remember it differently. You may consider these differences, but do not decide that 23 testimony is untrue just because it differs from other testimony. 24 However, if you decide that a witness has deliberately testified untruthfully about 25 something important, you may choose not to believe anything that witness said. On the other 26 hand, if you think the witness testified untruthfully about some things but told the truth about 27 others, you may accept the part you think is true and ignore the rest. 1 witnesses who testify. What is important is how believable the witnesses were, and how much 2 weight you think their testimony deserves. [3] 4 Court Notes: 9th Cir. Model Instruction No. 1.14 (modified). The parties stipulated to the 5 model instruction. The Court has modified the instruction slightly (as indicated by the highlighted 6 text). [27] 1 JURY INSTRUCTION NO. [1.15] CONDUCT OF THE JURY 2 I will now say a few words about your conduct as jurors. 3 First, keep an open mind throughout the trial, and do not decide what the verdict should be 4 until you and your fellow jurors have completed your deliberations at the end of the case. 5 Second, because you must decide this case based only on the evidence received in the case 6 and on my instructions as to the law that applies, you must not be exposed to any other 7 information about the case or to the issues it involves during the course of your jury duty. Thus, 8 until the end of the case or unless I tell you otherwise: 9 Do not communicate with anyone in any way and do not let anyone else 10 communicate with you in any way about the merits of the case or anything to do 11 with it. This includes discussing the case in person, in writing, by phone, tablet, or 12 computer, or any other electronic means, via email, text messaging, or any internet 13 chat room, blog, website or application, including but not limited to Facebook, 14 YouTube, the platform “X” formerly known as Twitter, Instagram, LinkedIn, 15 Snapchat, TikTok, or any other forms of social media. This applies to 16 communicating with your fellow jurors until I give you the case for deliberation, 17 and it applies to communicating with everyone else including your family 18 members, your employer, the media or press, and the people involved in the trial, 19 although you may notify your family and your employer that you have been seated 20 as a juror in the case, and how long you expect the trial to last. But, if you are 21 asked or approached in any way about your jury service or anything about this case, 22 you must respond that you have been ordered not to discuss the matter and report 23 the contact to the court. 24 Because you will receive all the evidence and legal instruction you properly 25 may consider to return a verdict: do not read, watch or listen to any news or media 26 accounts or commentary about the case or anything to do with it[,although I have 27 no information that there will be news reports about this case]; do not do any 1 reference materials; and do not make any investigation or in any other way try to 2 learn about the case on your own. Do not visit or view any place discussed in this 3 case, and do not use the Internet or any other resource to search for or view any 4 place discussed during the trial. Also, do not do any research about this case, the 5 law, or the people involved – including the parties, the witnesses or the lawyers – 6 until you have been excused as jurors. If you happen to read or hear anything 7 touching on this case in the media, turn away and report it to me as soon as 8 possible. 9 These rules protect each party’s right to have this case decided only on evidence that has 10 been presented here in court. Witnesses here in court take an oath to tell the truth, and the 11 accuracy of their testimony is tested through the trial process. If you do any research or 12 investigation outside the courtroom, or gain any information through improper communications, 13 then your verdict may be influenced by inaccurate, incomplete or misleading information that has 14 not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 15 jury, and if you decide the case based on information not presented in court, you will have denied 16 the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 17 important that you follow these rules. 18 A juror who violates these restrictions jeopardizes the fairness of these proceedings [, and a 19 mistrial could result, requiring the entire trial process to start over]. If any juror is exposed to any 20 outside information, please notify the court immediately, by sending a note through the [clerk] 21 [bailiff] signed by any one or more of you. [22] 23 Court Notes: 9th Cir. Model Instruction No. 1.15. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [1.17] NO TRANSCRIPT AVAILABLE 2 I urge you to pay close attention to the trial testimony as it is given. During deliberations 3 you will not have a transcript of the trial testimony. [4] 5 Court Notes: 9th Cir. Model Instruction No. 1.17. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [1.18] TAKING NOTES 2 If you wish, you may take notes to help you remember the evidence. If you do take notes, 3 please keep them to yourself until you go to the jury room to decide the case. Do not let 4 notetaking distract you. When you leave, your notes should be left in the [courtroom] [jury room] 5 [envelope in the jury room]. No one will read your notes. 6 Although the jury will have all the admitted exhibits during deliberation, you may want to 7 note exhibit numbers in your notes if you think that will aid your memory. You will be given an 8 index of exhibits at the end of the case. 9 Whether or not you take notes, you should rely on your own memory of the evidence. 10 Notes are only to assist your memory. You should not be overly influenced by your notes or those 11 of other jurors. [12] 13 Court Notes: 9th Cir. Model Instruction No. 1.18. The parties stipulated to the model 14 instruction. The Court has modified the instruction slightly (as indicated by the highlighted text). [27] 1 JURY INSTRUCTION NO. [1.19] QUESTIONS TO WITNESSES BY 2 JURORS 3 When attorneys have finished their examination of a witness, you may ask questions of the 4 witness. [Describe procedure to be used.] If the rules of evidence do not permit a particular 5 question, I will advise you. After your questions, if any, the attorneys may ask additional 6 questions. [7] 8 Court Notes: 9th Cir. Model Instruction No. 1.19. The Court discussed the issue of 9 questions from the jury at the Final Pretrial Conference. Both parties were amenable to questions 10 from the jury; thus, the Court has now included this instruction. The parties shall meet and confer 11 to reach agreement on the specific procedure to be used (e.g., soliciting questions from the jury 12 before the witness is excused after direct, cross, and re-direct). The parties shall also meet and 13 confer on language to be used to describe the process. The proposed instruction shall be filed by 14 November 17, 2025. [27] 1 JURY INSTRUCTION NO. [1.20] BENCH CONFERENCES AND 2 RECESSES 3 From time to time during the trial, it [may become] [became] necessary for me to talk with 4 the attorneys out of the hearing of the jury, either by having a conference at the bench when the 5 jury [is] [was] present in the courtroom, or by calling a recess. Please understand that while you 6 [are] [were] waiting, we [are] [were] working. The purpose of these conferences is not to keep 7 relevant information from you, but to decide how certain evidence is to be treated under the rules 8 of evidence and to avoid confusion and error. 9 Of course, we [will do] [have done] what we [can] [could] to keep the number and length 10 of these conferences to a minimum. I [may] [did] not always grant an attorney’s request for a 11 conference. Do not consider my granting or denying a request for a conference as any indication 12 of my opinion of the case or of what your verdict should be. [13] 14 Court Notes: 9th Cir. Model Instruction No. 1.20. The parties have stipulated to this 15 instruction. [27] 1 JURY INSTRUCTION NO. [1.21] OUTLINE OF TRIAL 2 Trials proceed in the following way: First, each side may make an opening statement. An 3 opening statement is not evidence. It is simply an outline to help you understand what that party 4 expects the evidence will show. A party is not required to make an opening statement. 5 The plaintiff will then present evidence, and counsel for the defendant may cross-examine. 6 Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. 7 After the evidence has been presented, I will instruct you on the law that applies to the case 8 and the attorneys will make closing arguments. 9 After that, you will go to the jury room to deliberate on your verdict. [10] 11 Court Notes: 9th Cir. Model Instruction No. 1.21. The parties have stipulated to this 12 instruction. [27] 1 II. INSTRUCTIONS DURING TRIAL [2] 3 JURY INSTRUCTION NO. [2.0] CAUTIONARY INSTRUCTION 4 At the End of Each Day of the Case: 5 As I indicated before this trial started, you as jurors will decide this case based solely on 6 the evidence presented in this courtroom. This means that, after you leave here for the night, you 7 must not conduct any independent research about this case, the matters in the case, the legal issues 8 in the case, or the individuals or other entities involved in the case. This is important for the same 9 reasons that jurors have long been instructed to limit their exposure to traditional forms of media 10 information such as television and newspapers. You also must not communicate with anyone, in 11 any way, about this case. And you must ignore any information about the case that you might see 12 while browsing the internet or your social media feeds. [13] 14 At the Beginning of Each Day of the Case: 15 As I reminded you yesterday and continue to emphasize to you today, it is important that 16 you decide this case based solely on the evidence and the law presented here. So you must not 17 learn any additional information about the case from sources outside the courtroom. To ensure 18 fairness to all parties in this trial, I will now ask each of you whether you have learned about or 19 shared any information about this case outside of this courtroom, even if it was accidental. 20 If you think that you might have done so, please let me know now by raising your hand. 21 [Wait for a show of hands]. I see no raised hands; however, if you would prefer to talk to the 22 court privately in response to this question, please notify a member of the court’s staff at the next 23 break. Thank you for your careful adherence to my instructions. [24] 25 Court Notes: 9th Cir. Model Instruction No. 2.0. The parties have stipulated to this 26 instruction. [27] 1 JURY INSTRUCTION NO. [2.2] STIPULATIONS OF FACT 2 The parties have agreed to certain facts that will be read to you. You must therefore treat 3 these facts as having been proved. [4] 5 Court Notes: 9th Cir. Model Instruction No. 2.2. The parties have stipulated to this 6 instruction. The Court notes that the parties have included undisputed facts in their joint pretrial 7 conference statement. See Docket No. 62 (Jt. St. at 4-5). The parties should meet and confer to 8 determine whether any or all, or some version of, the stipulated facts should be included in the 9 preliminary instructions to be given to the jury. The parties shall report back by November 17, 10 2025. [27] 1 JURY INSTRUCTION NO. [2.4] DEPOSITION IN LIEU OF LIVE 2 TESTIMONY 3 A deposition is the sworn testimony of a witness taken before trial. The witness is placed 4 under oath to tell the truth and lawyers for each party may ask questions. The questions and 5 answers are recorded. 6 Insofar as possible, you should consider deposition testimony, presented to you in court in 7 lieu of live testimony, in the same way as if the witness had been present to testify. [8] 9 Court Notes: 9th Cir. Model Instruction No. 2.4. This was a disputed instruction. It is not 10 clear whether Mr. Head still intends to rely on deposition testimony following the Court’s rulings 11 at the Final Pretrial Conference. [27] 1 JURY INSTRUCTION NO. [2.9] IMPEACHMENT EVIDENCE – WITNESS 2 The evidence that a witness has lied under oath on a prior occasion or has made prior 3 statements inconsistent with their testimony at trial may be considered, along with all other 4 evidence, in deciding whether or not to believe the witness and how much weight to give to the 5 testimony of the witness and for no other purpose. [6] 7 Court Notes: 9th Cir. Model Instruction No. 2.9 (modified). The parties have stipulated to 8 the modified instruction. [27] 1 JURY INSTRUCTION NO. [2.14] CHARTS AND SUMMARIES NOT 2 RECEIVED IN EVIDENCE 3 Certain charts and summaries not admitted into evidence [may be] [have been] shown to 4 you in order to help explain the contents of books, records, documents, or other evidence in the 5 case. Charts and summaries are only as good as the underlying evidence that supports them. You 6 should, therefore, give them only such weight as you think the underlying evidence deserves. [7] 8 Court Notes: 9th Cir. Model Instruction No. 2.14. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [2.15] CHARTS AND SUMMARIES RECEIVED 2 IN EVIDENCE 3 Certain charts and summaries [may be] [have been] admitted into evidence to illustrate 4 information brought out in the trial. Charts and summaries are only as good as the testimony or 5 other admitted evidence that supports them. You should, therefore, give them only such weight as 6 you think the underlying evidence deserves. [7] 8 Court Notes: 9th Cir. Model Instruction No. 2.15. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [____] WHETHER PLAINTIFF SOUGHT 2 REHIRE 3 ____. [4] 5 Court Notes: This is a placeholder. The parties shall meet and confer and file a proposed 6 limiting instruction, as discussed at the Final Pretrial Conference, by November 17, 2025. [27] 1 III. CLOSING INSTRUCTIONS [2] 3 JURY INSTRUCTION NO. [1.4] DUTY OF JURY 4 Members of the Jury: Now that you have heard all of the evidence [and the arguments of 5 the attorneys], it is my duty to instruct you on the law that applies to this case. 6 Each of you has received a copy of these instructions that you may take with you to the 7 jury room to consult during your deliberations. 8 It is your duty to find the facts from all the evidence in the case. To those facts you will 9 apply the law as I give it to you. You must follow the law as I give it to you whether you agree 10 with it or not. And you must not be influenced by any personal likes or dislikes, opinions, 11 prejudices, or sympathy, or irrelevant biases whether conscious or unconscious. That means that 12 you must decide the case solely on the evidence before you. You will recall that you took an oath 13 to do so. 14 Please do not read into these instructions or anything that I may say or do or have said or 15 done that I have an opinion regarding the evidence or what your verdict should be. [16] 17 Court Notes: 9th Cir. Model Instruction No. 1.4 (modified). The parties stipulated to the 18 model instruction. The Court has modified the instruction slightly (as indicated by the highlighted 19 text). [27] 1 JURY INSTRUCTION NO. [1.6] BURDEN OF PROOF – 2 PREPONDERANCE OF THE EVIDENCE 3 When a party has the burden of proving any claim or affirmative defense by a 4 preponderance of the evidence, it means you must be persuaded by the evidence that the claim or 5 affirmative defense is more probably true than not true. 6 You should base your decision on all of the evidence, regardless of which party presented 7 it. [8] 9 Court Notes: 9th Cir. Model Instruction No. 1.6. The parties have stipulated to this 10 instruction. [27] 1 JURY INSTRUCTION NO. [1.9] WHAT IS EVIDENCE 2 The evidence you are to consider in deciding what the facts are consists of: 3 1. the sworn testimony of any witness; 4 2. the exhibits that are admitted into evidence; 5 3. any facts to which the lawyers have agreed; and 6 4. any facts that I [may instruct] [have instructed] you to accept as proved. [7] 8 Court Notes: 9th Cir. Model Instruction No. 1.9. The parties have stipulated to this 9 instruction. [27] 1 JURY INSTRUCTION NO. [1.10] WHAT IS NOT EVIDENCE 2 In reaching your verdict, you may consider only the testimony and exhibits received into 3 evidence. Certain things are not evidence, and you may not consider them in deciding what the 4 facts are. I will list them for you: 5 (1) Arguments and statements by lawyers are not evidence. The lawyers are not 6 witnesses. What they [may say] [have said] in their opening statements, closing 7 arguments and at other times is intended to help you interpret the evidence, but it is 8 not evidence. If the facts as you remember them differ from the way the lawyers 9 have stated them, your memory of them controls. 10 (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to 11 their clients to object when they believe a question is improper under the rules of 12 evidence. You should not be influenced by the objection or by the court’s ruling on 13 it. 14 (3) Testimony that is excluded or stricken, or that you [are] [have been] instructed to 15 disregard, is not evidence and must not be considered. In addition, some evidence 16 [may be] [was] received only for a limited purpose; when I [instruct] [have 17 instructed] you to consider certain evidence only for a limited purpose, you must do 18 so, and you may not consider that evidence for any other purpose. 19 (4) Anything you may [see or hear] [have seen or heard] when the court was not in 20 session is not evidence. You are to decide the case solely on the evidence received 21 at the trial. [22] 23 Court Notes: 9th Cir. Model Instruction No. 1.10. The parties have stipulated to this 24 instruction. [27] 1 JURY INSTRUCTION NO. [1.12] DIRECT AND CIRCUMSTANTIAL 2 EVIDENCE 3 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as 4 testimony by a witness about what that witness personally saw or heard or did. Circumstantial 5 evidence is proof of one or more facts from which you could find another fact. You should 6 consider both kinds of evidence. The law makes no distinction between the weight to be given to 7 either direct or circumstantial evidence. It is for you to decide how much weight to give to any 8 evidence. [9] 10 Court Notes: 9th Cir. Model Instruction No. 1.12. The parties stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [1.14] CREDIBILITY OF WITNESSES 2 In deciding the facts in this case, you may have to decide which testimony to believe and 3 which testimony not to believe. You may believe everything a witness says, or part of it, or none 4 of it. 5 In considering the testimony of any witness, you may take into account: 6 (1) the opportunity and ability of the witness to see or hear or know the things testified 7 to; 8 (2) the witness’s memory; 9 (3) the witness’s manner while testifying; 10 (4) the witness’s interest in the outcome of the case, if any; 11 (5) the witness’s bias or prejudice, if any; 12 (6) whether other evidence corroborated or contradicted the witness’s testimony; 13 (7) the reasonableness of the witness’s testimony in light of all the evidence; and 14 (8) any other factors that bear on believability. 15 You must avoid allowing your determination of credibility to be influenced by your own 16 bias, conscious or unconscious, based on a witness’s race, color, religious beliefs, national 17 ancestry, sexual orientation, gender identity, gender, or economic circumstances in your 18 determination of credibility. 19 Sometimes a witness may say something that is not consistent with something else he or 20 she said. Sometimes different witnesses will give different versions of what happened. People 21 often forget things or make mistakes in what they remember. Also, two people may see the same 22 event but remember it differently. You may consider these differences, but do not decide that 23 testimony is untrue just because it differs from other testimony. 24 However, if you decide that a witness has deliberately testified untruthfully about 25 something important, you may choose not to believe anything that witness said. On the other 26 hand, if you think the witness testified untruthfully about some things but told the truth about 27 others, you may accept the part you think is true and ignore the rest. 1 witnesses who testify. What is important is how believable the witnesses were, and how much 2 weight you think their testimony deserves. [3] 4 Court Notes: 9th Cir. Model Instruction No. 1.14 (modified). The parties stipulated to the 5 model instruction. The Court has modified the instruction slightly (as indicated by the highlighted 6 text). 7 Costco has suggested that an additional instruction be given – “Suspicions, Conjecture, and 8 Speculation Are Not Evidence.” See Docket No. 64 (Prop. Instr. at 111). The instruction is not 9 necessary given that this instruction will be given. [27] 1 JURY INSTRUCTION NO. [4.1] CORPORATIONS AND PARTNERSHIPS 2 – FAIR TREATMENT 3 All parties are equal before the law and a [corporation] [partnership] is entitled to the same 4 fair and conscientious consideration by you as any party. [5] 6 Court Notes: 9th Cir. Model Instruction No. 4.1. The parties have stipulated to this 7 instruction. [27] 1 JURY INSTRUCTION NO. [2.2] STIPULATIONS OF FACT 2 The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that will 3 be read to you]. You must therefore treat these facts as having been proved. [4] 5 Court Notes: 9th Cir. Model Instruction No. 2.2. The parties have stipulated to this 6 instruction. The Court notes that the parties have included undisputed facts in their joint pretrial 7 conference statement. See Docket No. 62 (Jt. St. at 4-5). The parties should meet and confer to 8 determine whether any or all, or some version of, the stipulated facts should be included in the 9 preliminary instructions to be given to the jury. They shall report back by November 17, 2025. [27] 1 JURY INSTRUCTION NO. [____] CLAIMS AND DEFENSES 2 Mr. Head asserts four claims against Costco: 3 (1) failure to provide reasonable accommodation; 4 (2) failure to engage in a good faith, interactive process to determine effective 5 reasonable accommodation, if any; 6 (3) retaliation; and 7 (4) wrongful termination in violation of public policy. 8 Mr. Head has the burden of proving his claims. 9 Costco denies Mr. Head’s claims and further denies that Mr. Head suffered any injury 10 because of Costco’s alleged conduct. [11] 12 Court Notes: The Court is including this instruction to give a “roadmap” to the jury. [27] 1 JURY INSTRUCTION NO. [2541] FAILURE TO PROVIDE REASONABLE 2 ACCOMMODATION – ESSENTIAL FACTUAL ELEMENTS 3 A claim for failure to accommodate can be based on a failure to accommodate a person 4 who is associated with another person who has a physical or mental disability. This is sometimes 5 called “associational disability.” Here, Mr. Head claims that Costco failed to reasonably 6 accommodate him by failing to give him additional leave to care for his disabled wife, who had 7 cancer. To establish this claim, Mr. Head must prove all of the following: 8 1. That Mr. Head asked for a reasonable accommodation for himself because of his 9 wife’s cancer; 10 2. That Costco failed to provide reasonable accommodation; 11 3. That Mr. Head was harmed; and 12 4. That Costco’s failure to provide reasonable accommodation was a substantial factor 13 in causing Mr. Head’s harm. [14] 15 Court Notes: CACI 2541 (modified). The parties have offered competing instructions; 16 both are modifications of CACI 2541 (which is the general instruction on reasonable 17 accommodation, and not tailored to associational disability discrimination). See Docket No. 64 18 (Prop. Instr. at 58-62). The Court proposes its own version of the instruction (which includes a 19 modification to the title of the instruction). 20 The main dispute between the parties is whether the instruction should include language 21 about whether a reasonable accommodation was “available.” Costco wants to include such 22 language (“That there was a reasonable accommodation available at the time Plaintiff requested an 23 accommodation for his spouse’s disability”); Mr. Head does not. The Court has not included such 24 language in its proposed version, but it has included language that should address Costco’s overall 25 concern – i.e., that Mr. Head is contending he should have been given additional leave as a 26 reasonable accommodation. Costco is free to argue that additional leave was not a reasonable 27 accommodation, and the jury will understand this argument particularly in light of the instruction 1 To the extent Mr. Head asks that an additional instruction be given on “Associational 2 Disability,” see Docket No. 64 (Prop. Instr. at 121), the request is denied. The instruction is 3 unnecessary because the Court has added language above explaining that this case is predicated on 4 a theory of associational disability. [27] 1 JURY INSTRUCTION NO. [2542] “REASONABLE ACCOMMODATION” 2 EXPLAINED 3 A reasonable accommodation is a reasonable change to the workplace that allows an 4 employee, who is associated with another person with a disability, to perform the essential duties 5 of the job. 6 Reasonable accommodation may include, for example, changing job responsibilities or 7 work schedules or providing a leave of absence. However, an employer is not required to provide 8 an accommodation which would constitute an undue hardship on the employer. An employer is 9 not required to provide an indefinite leave of absence. 10 If more than one accommodation is reasonable, an employer makes a reasonable 11 accommodation if it selects one of those accommodations in good faith. [12] 13 Court Notes: CACI 2542 (modified). The parties have submitted competing instructions. 14 See Docket No. 64 (Prop. Instr. at 63-67). The instructions are largely the same, except that each 15 party has modified CACI 2542 by providing an example of when leave can be a reasonable 16 accommodation. Mr. Head proposes: “Providing a leave of absence, including an extended leave 17 of absence.” Costco proposes: “[Providing] a finite leave of absence with a specific return date.” 18 The Court has proposed its own version of the instruction (including a modification to the title of 19 the instruction). The Court’s version renders Costco’s additional proposed instruction on 20 indefinite leave moot. See Docket No. 64 (Prop. Instr. at 103). The Court also declines to give 21 Costco’s supplemental proposed instruction defining what an indefinite leave of absence is. See 22 Docket No. 74 (Prop. Instr. at 3). The jury can use its common sense as to what constitutes an 23 indefinite leave. The Court further declines to give Costco’s additional proposed instruction that 24 “[e]mployers are not required to provide an unreasonable accommodation to an employee even if 25 providing that accommodation would not impose an undue hardship on the employer.” Docket 26 No. 74 (Prop. Instr. at 6). The instruction is unnecessary because the Court is instructing the jury 27 that an employer is not required to provide an indefinite leave. 1 accommodation under state law. See, e.g., Zamora v. Security Industry Specialists, Inc., 71 Cal. 2 App. 5th 1, 42 (2021) (“[A] finite leave can be a reasonable accommodation under FEHA, 3 provided it is likely that at the end of the leave, the employee would be able to perform his or her 4 duties. . . . An employer, however, is not required to provide an indefinite leave of absence as a 5 reasonable accommodation.”) (internal quotation marks omitted); Nealy v. City of Santa Monica, [6] 234 Cal. App. 4th 359, 377-78 (2015) (“A finite leave of absence may be a reasonable 7 accommodation to allow an employee time to recover, but FEHA does not require the employer to 8 provide an indefinite leave of absence . . . .”); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215 , 9 226-27 (1999) (“‘Reasonable accommodation does not require the employer to wait indefinitely 10 for an employee’s medical condition to be corrected.”) (emphasis added). California regulations 11 are explicit on this point. See 2 Cal. Code Reg. § 11068(c) (“When the employee cannot presently 12 perform the essential functions of the job, or otherwise needs time away from the job for treatment 13 and recovery, holding a job open for an employee on a leave of absence or extending a leave 14 provided by the CFRA, the FMLA, other leave laws, or an employer's leave plan may be a 15 reasonable accommodation provided that the leave is likely to be effective in allowing the 16 employee to return to work at the end of the leave, with or without further reasonable 17 accommodation, and does not create an undue hardship for the employer. . . . An employer, 18 however, is not required to provide an indefinite leave of absence as a reasonable 19 accommodation.”) (emphasis added). See, e.g., Gargano v. Plus One Holdings, Inc., No. 22-cv20 00735-DMS-MMP, 2024 U.S. Dist. LEXIS 74968 , at *15 (S.D. Cal. Apr. 24, 2024) (giving the 21 following instruction: “When the employee cannot presently perform the essential functions of the 22 job, or otherwise needs time away from the job for treatment and recovery, holding a job open for 23 an employee on a leave of absence may be a reasonable accommodation provided that the leave is 24 likely to be effective in allowing the employee to return to work at the end of the leave, with or 25 without further reasonable accommodation, and does not create an undue hardship for the 26 employer. An employer, however, is not required to provide an indefinite leave of absence as a 27 reasonable accommodation.”). 1 Inc., 213 Cal. App. 4th 1331, 1338 (2013) (“[A] disabled employee is entitled to a reasonable 2 accommodation – which may include leave of no statutorily fixed duration – provided that such 3 accommodation does not impose an undue hardship on the employer.”) (emphasis added). The 4 two First Circuit cases he cites do not stand for the proposition that indefinite leave may be a 5 reasonable accommodation so long as it does not impose an undue hardship, and big companies 6 are less likely to have this be an issue. See Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 7 1998) (“Criado offered evidence tending to show that her leave would be temporary and would 8 allow her physician to design an effective treatment program. Furthermore, IBM provides all 9 employees with 52 weeks of paid disability leave. In explaining this policy an IBM management 10 representative testified that disability leaves did not financially burden IBM because it recognized 11 that it was always more profitable to allow an employee time to recover than to hire and train a 12 new employee. This testimony prevents IBM from asserting that Criado's leave produced an 13 undue burden on its operations. Also, Criado was not asking for more leave than would be 14 granted to a non-disabled, sick employee. Because Criado's physician was optimistic that the 15 leave would ameliorate her disability, the jury could find her request a reasonable 16 accommodation.”); Ralph v. Lucent Techs, 135 F.3d 166, 171-72 (1st Cir. 1998) (“The defendant 17 argues that it has already made a reasonable accommodation to the plaintiff's disability by giving 18 him 52 weeks of leave with pay, plus changing his work assignment and supervisor. The duty to 19 provide reasonable accommodation is a continuing one, however, and not exhausted by one effort. 20 [¶] The very limited four-week accommodation ordered by the district court strikes us as 21 eminently reasonable; so reasonable, in fact, that we are puzzled that Lucent has drawn a line in 22 the sand at this point. In colloquy with counsel, the district judge made it clear that if the plaintiff 23 failed this four-week test, that was the end of the matter. [¶] We hold that the accommodation 24 ordered by the court was reasonable and in accord with the Americans With Disabilities Act.”). [27] 1 JURY INSTRUCTION NO. [____] ACCOMMODATION LEAVE 2 OBLIGATION FOR ASSOCIATIONAL DISABILITY UNCLEAR 3 During the relevant time period in this matter, the law was unclear regarding whether an 4 employer was required to provide a leave as an accommodation based on someone’s association 5 with a person with a disability. [6] 7 Court Notes: Costco has proposed this instruction. See Docket No. 74 (Prop. Instr. at 9). 8 The Court shall not give the instruction. It serves no purpose. The Court has already ruled (at 9 summary judgment) that Plaintiff is not entitled to punitive damages. The Court’s evidentiary 10 rulings do not allow Plaintiff to argue intentional discrimination by Costco. [27] 1 JURY INSTRUCTION NO. [430] “SUBSTANTIAL FACTOR” 2 (CAUSATION) EXPLAINED 3 A substantial factor in causing harm is a factor that a reasonable person would consider to 4 have contributed to the harm. It must be more than a remote or trivial factor. It does not have to 5 be the only cause of the harm. 6 Conduct is not a substantial factor in causing harm if the same harm would have occurred 7 without that conduct. [8] 9 Court Notes: CACI 430. The parties have stipulated to this instruction. The Court has 10 modified the title of the instruction so that the jury has more clarity. [27] 1 JURY INSTRUCTION NO. [2546] FAILURE TO ENGAGE IN 2 INTERACTIVE PROCESS – ESSENTIAL FACTUAL ELEMENTS 3 Mr. Head contends that Costco failed to engage in a good-faith interactive process with 4 him to determine whether it would be possible to implement effective reasonable accommodations 5 for him because of his wife’s disability. In order to establish this claim, Mr. Head must prove the 6 following: 7 1. That Mr. Head asked for a reasonable accommodation for himself because of his 8 wife’s disability; 9 2. That Mr. Head was willing to participate in an interactive process to determine 10 whether reasonable accommodation could be made; 11 3. That Costco failed to participate in a timely good-faith interactive process with Mr. 12 Head to determine whether reasonable accommodation could be made; 13 4. That Costco could have made a reasonable accommodation when the interactive 14 process should have taken place; 15 5. That Mr. Head was harmed; and 16 6. That Costco’s failure to engage in a good-faith interactive process was a substantial 17 factor in causing Mr. Head’s harm. [18] 19 Court Notes: CACI 2546. The parties have offered competing instructions. See Docket 20 No. 64 (Prop. Instr. at 68-72). The Court generally finds Costco’s version more reasonable but the 21 Court has made some modifications (including a modification to the title of the instruction). The 22 Court has not included all elements from CACI 2546 (e.g., that the wife’s disability was known to 23 Costco and that Mr. Head asked Costco for a reasonable accommodation for his wife’s condition) 24 because they are not in dispute. 25 The Court, however, shall not give Costco’s additional proposed instruction that “The 26 Employee Must Identify a Reasonable Accommodation Available at the Time of the Interactive 27 Process.” Docket No. 64 (Prop. Instr. at 115). It is unnecessary in light of this instruction. 1 JURY INSTRUCTION NO. [2505] RETALIATION – ESSENTIAL 2 FACTUAL ELEMENTS 3 Mr. Head claims that Costco retaliated against him for requesting a reasonable 4 accommodation. Specifically, he claims that Costco retaliated by constructively firing him 5 through its refusal to accommodate his request for leave to care for his wife. To establish this 6 claim, Mr. Head must prove all of the following: 7 1. That Mr. Head asked for a reasonable accommodation for himself because of his 8 wife’s disability; 9 2. That Costco constructively discharged him; 10 3. That the constructive discharge was retaliatory in that it was substantially 11 motivated by the fact that Mr. Head had on a number of occasions asked for leave to care for his 12 disabled wife; 13 4. That Mr. Head was harmed; and 14 5. That the constructive discharge was a substantial factor in causing Mr. Head harm. 15 Mr. Head does not have to prove a failure to reasonably accommodate in order to be 16 protected from retaliation. If Mr. Head proves the elements of a retaliation claim, he may prevail 17 on that claim even if he does not prevail on his separate claim for failure to accommodate. 18 On the other hand, the mere fact that Costco did not give Mr. Head an accommodation 19 does not mean that it retaliated against Mr. Head. If Costco denied the request for an 20 accommodation to care for his wife because it believed the request was not reasonable, and not 21 because he had made multiple requests for accommodation, that is not retaliation. [22] 23 Court Notes: CACI 2505 (modified). The parties have submitted competing instructions. 24 See Docket No. 64 (Prop. Instr. at 36-40). The Court generally finds Costco’s version more 25 appropriate, but it has included the final paragraph (as suggested by Mr. Head, though the Court 26 has made modifications) to make clear to the jury that he could prevail on the interactive claim but 27 lose on the accommodation claim. It has also added language to clarify that the mere failure to 1 While Mr. Head’s retaliation claim is based on his numerous requests for accommodation 2 to care for his wife, see Compl. ¶ 94 (in retaliation claim, alleging that “Plaintiff’s requests for 3 accommodations to care for [his] ill and disabled wife were substantial motivating reasons for 4 Defendant[’s] decision to terminate Plaintiff’s employment”), this does not preclude introduction 5 of evidence of his requests for accommodation for his own medical condition as background. 6 The Court acknowledges Mr. Head’s contention that Costco retaliated in more than one 7 way – i.e., not just by forcing him to resign but also by failing to accommodate him and by failing 8 to rehire him. But in his complaint, Mr. Head alleged that the retaliation consisted of the 9 termination only. See Compl. ¶ 94 (alleging that “Plaintiff’s requests for accommodations to care 10 for [his] ill and disabled wife were substantial motivating reasons for Defendants’ decision to 11 terminate Plaintiff’s employment.”). The Court’s summary judgment order also stated that the 12 factual predicate for the claims going to trial would be limited to the termination only. Mr. Head 13 never sought reconsideration of that ruling. 14 Furthermore, as indicated above, the Court rejects Mr. Head’s suggestion that a denial of 15 an accommodation, by itself, can be per se retaliation. This cannot be so or, otherwise, a 16 retaliation claim would always be brought with a claim of failure to accommodate. What must be 17 proven is a motive to retaliate for engaging in protected conduct. 18 As for the alleged failure to rehire, the Court notes that Mr. Head is not arguing retaliation 19 because he made a request for an accommodation at or about the time he sought rehire. (He no 20 longer needed an accommodation at the time he sought rehire because his wife had passed.) 21 Rather, Mr. Head is arguing retaliation (no rehiring) because he previously made requests for 22 accommodation (i.e., while he was still an employee and before he was constructively discharged). 23 But this Court has already held in its summary judgment order that there is no longer a claim 24 based on failure to rehire. In any event, there is no evidence that Costco declined to rehire 25 because of the prior requests for accommodation. Mr. Maldanado was the main decisionmaker on 26 the rehire and he did not know anything about Mr. Head’s wife other than that she had died 27 recently. Indeed, for the intentional discrimination and related claims, the Court found no 1 judgment in favor of Costco. 2 Accordingly, the Court limits the adverse employment action for the retaliation claim to 3 the alleged termination. Furthermore, it does not include Mr. Head’s additional instruction on 4 adverse employment action, see Docket No. 64 (Prop. Instr. at 52), because only the alleged 5 termination is at issue. [27] 1 JURY INSTRUCTION NO. [2510] “CONSTRUCTIVE DISCHARGE” 2 EXPLAINED 3 A constructive discharge occurs when an employee resigns because of working conditions 4 – intentionally created or knowingly permitted by their employer – that are so intolerable that a 5 reasonable person in the plaintiff’s position would have had no reasonable alternative except to 6 resign. 7 In order to be sufficiently intolerable, adverse working conditions must be unusually 8 aggravated or amount to a continuous pattern. In general, single, trivial, or isolated acts of 9 misconduct are insufficient to support a constructive discharge. But in some circumstances, a 10 single intolerable incident may constitute a constructive discharge. [11] 12 Court Notes: CACI 2510 (modified). Mr. Head proposes that an instruction on 13 constructive discharge be given; Costco opposes on the basis that this is not a constructive 14 discharge case. The Court agrees with Mr. Head that an instruction should be given but has 15 modified the language of the instruction (including the title). [27] 1 JURY INSTRUCTION NO. [2507] “SUBSTANTIAL MOTIVATING 2 REASON” EXPLAINED 3 A “substantial motivating reason” is a reason that actually contributed to the constructive 4 discharge from employment. It must be more than a remote or trivial reason. It does not have to 5 be the only reason motivating the discharge. [6] 7 Court Notes: CACI 2407 (modified). The parties have submitted competing instructions. 8 See Docket No. 64 (Prop. Instr. at 41-44). The Court agrees that the adverse employment action 9 should be specified; however, it has modified Costco’s proposed language. [27] 1 JURY INSTRUCTION NO. [2512] LIMITATION ON REMEDIES – SAME 2 DECISION 3 In his retaliation claim, Mr. Head claims that he was constructively discharged in 4 retaliation for his multiple requests for an accommodation, which is an unlawful retaliatory reason. 5 Costco disputes that there was a constructive discharge and contends that Mr. Head 6 voluntarily resigned instead. Costco also claims that, even if there was a constructive discharge, it 7 was because Mr. Head had sought an indefinite leave of absence, which is a lawful reason to deny 8 the accommodation request. 9 If you find that there was a constructive discharge and that retaliation was a substantial 10 motivating reason for the discharge, you must then consider Costco’s stated reason for the 11 discharge. 12 If you find that Mr. Head asked for an indefinite leave and that his request for an indefinite 13 leave was also a substantial motivating reason for the discharge, then you must determine whether 14 Costco has proven that it would have discharged Mr. Head anyway at that time based on the 15 request for indefinite leave even if it had not also been substantially motivated by retaliation. 16 In determining motivating factors, you must determine what actually motivated Costco, not 17 what it might have been justified in doing. 18 If you find that Costco constructively discharged Mr. Head for a retaliatory reason, you 19 will be asked to determine the amount of damages that he is entitled to recover. If, however, you 20 find that Costco would have discharged Mr. Head anyway at that time because of a request for 21 indefinite leave, then Mr. Head will not be entitled to reinstatement, back pay, or damages. [22] 23 Court Notes: CACI 2512 (modified). Costco has requested an instruction on “same 24 decision”; Mr. Head opposes. See Docket No. 64 (Prop. Instr. at 45-48). The Court agrees with 25 Costco that it is appropriate to give the instruction. However, Costco’s proposed instruction as 26 phrased is inappropriate – it is too lengthy, it is too skewed in Costco’s favor, and it is predicated 27 on there being no constructive discharge instead of assuming that there was a discharge but that 1 (characterizing Costco’s contention as follows: “Plaintiff was not discharged – he voluntarily 2 resigned in June 2022 when he decided to remain on an indefinite leave of absence despite having 3 no available leave benefits and failed to provide valid documentation to support an extended leave 4 for his own medical condition”). The Court therefore has proposed its own version of the 5 instruction. 6 The Court also notes that Costco has offered an instruction on pretext. See Docket No. 64 7 (Prop. Instr. at 109-10). The Court does not see the need for such an instruction. There is no 8 model instruction on pretext in CACI or in the Ninth Circuit Model Instructions. Cf. 9th Cir. 9 Model Instruction No. 10, Introductory Comment (“[A] McDonnell Douglas burden-shifting 10 instruction should not be given in a Title VII case. Cases discussing pretext and burden shifting 11 arise only in the context of summary judgment and motions for judgment as a matter of law.”). 12 There is no factual or legal basis for a pretext instruction here. 13 Costco has also offered an instruction on “Legitimate, Non-Retaliatory Reason Is a 14 Defense.” See Docket No. 64 (Prop. Instr. at 113). The instruction is unnecessary given that this 15 instruction will be given, along with the instructions above and below. [27] 1 JURY INSTRUCTION NO. [2513] BUSINESS JUDGMENT FOR “AT 2 WILL” EMPLOYMENT 3 In California, employment is presumed to be “at will.” This means that an employer may 4 terminate an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair reason, 5 as long as its action is not for a retaliatory reason. [6] 7 Court Notes: CACI 2513. Costco has asked that the instruction be given; Mr. Head 8 opposes. The Court finds that the instruction is not necessary given the instruction on the 9 retaliation claim. Similarly, Costco’s additional proposed instruction that “‘Unfair’ Decisions Are 10 Not Illegal” is not necessary. See Docket No. 64 (Prop. Instr. at 106). [27] 1 JURY INSTRUCTION NO. [2430, 2432] WRONGFUL TERMINATION IN 2 VIOLATION OF PUBLIC POLICY – ESSENTIAL FACTUAL ELEMENTS 3 Mr. Head claims he was constructively discharged from employment for reasons that 4 violate a public policy. It is a violation of public policy to retaliate against a person because he 5 has asked for a reasonable accommodation for himself due to an association with another person 6 who has a physical or mental disability. To establish this claim, Mr. Head must prove all of the 7 following: 8 1. That Costco constructively discharged Mr. Head. 9 2. That a substantial motivating reason for the constructive discharge was because Mr. 10 Head asked for a reasonable accommodation for himself because of his wife’s 11 disability 12 4. That Mr. Head was harmed; and 13 5. That the constructive discharge was a substantial factor in causing Mr. Head harm. 14 “Constructive discharge” is defined in Instruction No. [2510]. [15] 16 Court Notes: CACI 2430, 2432. The parties have submitted competing instructions. See 17 Docket No. 64 (Prop. Instr. at 32-35, 55-57). The Court has proposed its own version. 18 The Court, however, questions whether Mr. Head really needs separate claims for 19 retaliation and wrongful termination (now that the Court has limited the adverse employment 20 action for the retaliation claim to a wrongful termination). The parties shall meet and confer on 21 this instruction and report back on the results of their meet and confer on November 17, 2025. [27] 1 JURY INSTRUCTION NO. [5.1] DAMAGES – PROOF 2 It is the duty of the Court to instruct you about the measure of damages. By instructing 3 you on damages, the Court does not mean to suggest for which party your verdict should be 4 rendered. 5 If you find for Mr. Head, you must determine his damages. Mr. Head has the burden of 6 proving damages by a preponderance of the evidence. Damages means the amount of money that 7 will reasonably and fairly compensate Mr. Head for any injury you find was caused by Costco. 8 It is for you to determine what damages, if any, have been proved. 9 Your award must be based upon evidence and not upon speculation, guesswork or 10 conjecture. [11] 12 Court Notes: 9th Cir. Model Instruction No. 5.1. The parties have offered competing 13 instructions (for this instruction and the one that follows). Costco proposes use of the Ninth 14 Circuit model; Mr. Head proposes use of the CACI 3900 (the state model) instead. There is no 15 material difference between the two; thus, neither party will be prejudiced by use of one 16 instruction over the other. The Court defaults to use of the Ninth Circuit model but, in the 17 instructions that follow, the Court includes language from CACI. [27] 1 JURY INSTRUCTION NO. [3902] ECONOMIC AND NONECONOMIC 2 DAMAGES 3 The damages claimed by Mr. Head for the harm caused by Costco fall into two categories 4 called economic damages and noneconomic damages. You will be asked on the verdict form to 5 state the two categories of damages separately. 6 The following are the specific items of economic damages claimed by Mr. Head: 7 • the reasonable value of earnings and benefits lost up to the present time; and 8 • the reasonable value of earnings and benefits that with reasonable certainty will be 9 lost in the future as a result of the injury. 10 The following are the specific items of noneconomic damages claimed by Mr. Head: 11 • Past and future physical pain, mental suffering, loss of enjoyment of life, 12 inconvenience, anxiety, humiliation, and emotional distress. 13 No fixed standard exists for deciding the amount of noneconomic damages. You must use 14 your judgment to decide a reasonable amount based on the evidence and your common sense. 15 To recover for future noneconomic damages, Mr. Head must prove that he is reasonably 16 certain to suffer that harm. 17 For future noneconomic damages, determine the amount in current dollars paid at the time 18 of judgment that will compensate Mr. Head for future noneconomic damages. [19] 20 Court Notes: CACI 3902, 3903, 3903C, 3905, 3905A; 9th Cir. Model Instruction No. 5.2. 21 The Court has used language from both the CACI models and the Ninth Circuit model. 22 The Court acknowledges that Mr. Head has also asked that CACI 3903P be given. See 23 Docket No. 64 (Prop. Instr. at 86). The Court declines to give the instruction as it may complicate 24 matters for the jury. However, Mr. Head is free to argue to the jury that past and future lost 25 earnings should be calculated along the lines provided by the instruction. 26 Costco’s request for an additional instruction that “Litigation Stress [is] Not Recoverable” 27 is denied. See Docket No. 64 (Prop. Instr. at 117). The instruction is not necessary as there is no 1 The Court also denies Costco’s request that an instruction be given on “Emotional Distress 2 Damages – Causation.” See Docket No. 64 (Prop. Instr. at 119). The instruction is unnecessary in 3 light of the previous instruction. [27] 1 JURY INSTRUCTION NO. [5.3] DAMAGES – MITIGATION 2 Mr. Head has a duty to use reasonable efforts to mitigate damages. To mitigate means to 3 avoid or reduce damages. 4 Costco has the burden of proving by a preponderance of the evidence: 5 First, that Mr. Head failed to use reasonable efforts to mitigate damages; and 6 Second, the amount by which damages would have been mitigated. [7] 8 Court Notes: 9th Cir. Model Instruction No. 5.3. Costco proposes the Ninth Circuit 9 Model; Mr. Head the CACI model instead. Mr. Head cites to CACI 6963, but that appears to be 10 an error. He likely meant to refer to CACI 3962 (Duty to Mitigate Damages for Future Lost 11 Earnings”). The Court uses the Ninth Circuit model as it is more direct and concise. Costco will 12 not argue that Mr. Head should have mitigated damages through being rehired by Costco. [27] 1 JURY INSTRUCTION NO. [3925] ARGUMENTS OF COUNSEL NOT 2 EVIDENCE OF DAMAGES 3 The arguments of the attorneys are not evidence of damages. Your award must be based 4 on your reasoned judgment applied to the testimony of the witnesses and the other evidence that 5 has been admitted during trial. [6] 7 Court Notes: CACI 3925. The parties have stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [3964] JURORS NOT TO CONSIDER 2 ATTORNEY FEES AND COURT COSTS 3 You must not consider, or include as part of any award, attorney fees or expenses that the 4 parties incurred in bringing or defending this lawsuit. [5] 6 Court Notes: CACI 3964. The parties have stipulated to this instruction. [27] 1 JURY INSTRUCTION NO. [3924] NO PUNITIVE DAMAGES 2 You must not include in your award any damages to punish or make an example of Costco. 3 Such damages would be punitive damages, and they cannot be a part of your verdict. You must 4 award only the damages that fairly compensate Mr. Head for his loss, if any, caused by Costco. [5] 6 Court Notes: CACI 3924. The parties stipulated to this instruction. [1] JURY INSTRUCTION NO. [3.1] DUTY TO DELIBERATE [2] Before you begin your deliberations, elect one member of the jury as your presiding juror. [3] The presiding juror will preside over the deliberations and serve as the spokesperson for the jury [4] in court. [5] You shall diligently strive to reach agreement with all of the other jurors if you can do so. [6] Your verdict must be unanimous. [7] Each of you must decide the case for yourself, but you should do so only after you have [8] considered all of the evidence, discussed it fully with the other jurors, and listened to their views. [9] It is important that you attempt to reach a unanimous verdict but, of course, only if each of [10] you can do so after having made your own conscientious decision. Do not be unwilling to change [11] your opinion if the discussion persuades you that you should. But do not come to a decision [12] simply because other jurors think it is right, or change an honest belief about the weight and effect [13] of the evidence simply to reach a verdict. [14] Perform these duties fairly and impartially. Do not allow personal likes or dislikes, [15] sympathy, prejudice, fear, public opinion, or biases, including unconscious biases, to influence [16] you. You should also not be influenced by any person’s race, color, religion, national ancestry, or [17] gender, sexual orientation, profession, occupation, celebrity, economic circumstances, or position [18] in life or in the community. [19] Do not be afraid to examine any assumptions you or other jurors have made which are not [20] based on the evidence presented at trial. Please do not take anything I may say or do during the [21] trial as indicating what I think of the evidence or what your verdict should be – that is entirely up [22] to you. [23] It is your duty as jurors to consult with one another and to deliberate with one another with [24] a view towards reaching an agreement if you can do so. During your deliberations, you should not [25] hesitate to reexamine your own views and change your opinion if you become persuaded that it is [26] wrong. [27] 1 Court Notes: 9th Cir. Model Instruction No. 3.1. The parties have stipulated to the model 2 instruction. The Court has modified the instruction slightly (as indicated by the highlighted text). [27] 1 JURY INSTRUCTION NO. [3.2] CONSIDERATION OF EVIDENCE – 2 CONDUDCT OF THE JURY 3 Because you must base your verdict only on the evidence received in the case and on these 4 instructions, I remind you that you must not be exposed to any other information about the case or 5 to the issues it involves. Except for discussing the case with your fellow jurors during your 6 deliberations. 7 Do not communicate with anyone in any way and do not let anyone else communicate with 8 you in any way about the merits of the case or anything to do with it. This includes discussing the 9 case in person, in writing, by phone, tablet, computer, or any other means, via email, via text 10 messaging, or any internet chat room, blog, website or application, including but not limited to 11 Facebook, YouTube, the platform “X” formerly known as Twitter, Instagram, LinkedIn, Snapchat, 12 TikTok, or any other forms of social media. This applies to communicating with your family 13 members, your employer, the media or press, and the people involved in the trial. If you are asked 14 or approached in any way about your jury service or anything about this case, you must respond 15 that you have been ordered not to discuss the matter and to report the contact to the court. 16 Do not read, watch, or listen to any news or media accounts or commentary about the case 17 or anything to do with it[, although I have no information that there will be news reports about this 18 case]; do not do any research, such as consulting dictionaries, searching the Internet, or using other 19 reference materials; and do not make any investigation or in any other way try to learn about the 20 case on your own. Do not visit or view any place discussed in this case, and do not use Internet 21 programs or other devices to search for or view any place discussed during the trial. Also, do not 22 do any research about this case, the law, or the people involved – including the parties, the 23 witnesses or the lawyers – until you have been excused as jurors. If you happen to read or hear 24 anything touching on this case in the media, turn away and report it to me as soon as possible. 25 These rules protect each party’s right to have this case decided only on evidence that has 26 been presented here in court. Witnesses here in court take an oath to tell the truth, and the 27 accuracy of their testimony is tested through the trial process. If you do any research or 1 then your verdict may be influenced by inaccurate, incomplete or misleading information that has 2 not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 3 jury, and if you decide the case based on information not presented in court, you will have denied 4 the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 5 important that you follow these rules. 6 A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a 7 mistrial could result that would require the entire trial process to start over]. If any juror is exposed 8 to any outside information, please notify the court immediately. [9] 10 Court Notes: 9th Cir. Model Instruction No. 3.2. The parties have stipulated to the model 11 instruction. The Court has modified the instruction slightly (as indicated by the highlighted text). [27] 1 JURY INSTRUCTION NO. [2.16] EVIDENCE IN ELECTRONIC FORMAT 2 Those exhibits received in evidence that are capable of being displayed electronically will 3 be provided to you in that form, and you will be able to view them in the jury room. A computer, 4 projector, printer and accessory equipment will be available to you in the jury room. 5 A court technician will show you how to operate the computer and other equipment; how 6 to locate and view the exhibits on the computer; and how to print the exhibits. You will also be 7 provided with a paper list of all exhibits received in evidence. You may request a paper copy of 8 any exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need 9 additional equipment or supplies or if you have questions about how to operate the computer or 10 other equipment, you may send a note to the [clerk] [bailiff], signed by your foreperson or by one 11 or more members of the jury. Do not refer to or discuss any exhibit you were attempting to view. 12 If a technical problem or question requires hands-on maintenance or instruction, a court 13 technician may enter the jury room with [the clerk] [the bailiff] present for the sole purpose of 14 assuring that the only matter that is discussed is the technical problem. When the court technician 15 or any nonjuror is in the jury room, the jury shall not deliberate. No juror may say anything to the 16 court technician or any nonjuror other than to describe the technical problem or to seek 17 information about operation of the equipment. Do not discuss any exhibit or any aspect of the 18 case. 19 The sole purpose of providing the computer in the jury room is to enable jurors to view the 20 exhibits received in evidence in this case. You may not use the computer for any other purpose. 21 At my direction, technicians have taken steps to ensure that the computer does not permit access to 22 the Internet or to any “outside” website, database, directory, game, or other material. Do not 23 attempt to alter the computer to obtain access to such materials. If you discover that the computer 24 provides or allows access to such materials, you must inform the court immediately and refrain 25 from viewing such materials. Do not remove the computer or any electronic data [disk] from the 26 jury room, and do not copy any such data. [27] 1 instruction, but it is not clear to the Court whether any evidence will be offered in electronic 2 format. [27] 1 JURY INSTRUCTION NO. [3.3] COMMUNICATION WITH COURT 2 If it becomes necessary during your deliberations to communicate with me, you may send 3 a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members 4 of the jury. No member of the jury should ever attempt to communicate with me except by a 5 signed writing; I will communicate with any member of the jury on anything concerning the case 6 only in writing, or here in open court. If you send out a question, I will consult with the parties 7 before answering it, which may take some time. You may continue your deliberations while 8 waiting for the answer to any question. Remember that you are not to tell anyone – including me 9 – how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict 10 or have been discharged. Do not disclose any vote count in any note to the court. [11] 12 Court Notes: 9th Cir. Model Instruction No. 3.3. The parties have stipulated to this 13 instruction. [27] 1 JURY INSTRUCTION NO. [3.5] RETURN OF VERDICT 2 A verdict form has been prepared for you. [Explain verdict form as needed.] After you 3 have reached unanimous agreement on a verdict, your [presiding juror] [foreperson] should 4 complete the verdict form according to your deliberations, sign and date it, and advise the [clerk] 5 [bailiff] that you are ready to return to the courtroom. [6] 7 Court Notes: 9th Cir. Model Instruction No. 3.5. The parties have stipulated to this 8 instruction. [27] 1 JURY INSTRUCTION NO. [3.9] POST-DISCHARGE INSTRUCTION 2 Now that the case has been concluded, some of you may have questions about the 3 confidentiality of the proceedings. Now that the case is over, you are free to discuss it with any 4 person you choose. By the same token, however, I would advise you that you are under no 5 obligation whatsoever to discuss this case with any person. 6 [If you do decide to discuss the case with anyone, I would suggest you treat it with a 7 degree of solemnity in that whatever you do decide to say, you would be willing to say in the 8 presence of the other jurors or under oath here in open court in the presence of all the parties.] 9 [Finally, always bear in mind that if you do decide to discuss this case, the other jurors 10 fully and freely stated their opinions with the understanding they were being expressed in 11 confidence. Please respect the privacy of the views of the other jurors.] 12 [Finally, if you would prefer not to discuss the case with anyone, but are feeling undue 13 pressure to do so, please feel free to contact the courtroom deputy, who will notify me and I will 14 assist.] [15] 16 Court Notes: 9th Cir. Model Instruction No. 3.9. The parties have stipulated to this 17 instruction. [27] 1 IV. CONDITIONAL INSTRUCTIONS [2] 3 JURY INSTRUCTION NO. [3.4] READBACK OR PLAYBACK 4 Because a request has been made for a [readback] [playback] of the testimony of [witness’s 5 name] it is being provided to you, but you are cautioned that all [readbacks] [playbacks] run the 6 risk of distorting the trial because of overemphasis of one portion of the testimony. [Therefore, 7 you will be required to hear all the witness’s testimony on direct and cross-examination, to avoid 8 the risk that you might miss a portion bearing on your judgment of what testimony to accept as 9 credible.] [Because of the length of the testimony of this witness, excerpts will be [read] 10 [played].] The [readback] [playback] could contain errors. The [readback] [playback] cannot 11 reflect matters of demeanor [, tone of voice,] and other aspects of the live testimony. Your 12 recollection and understanding of the testimony controls. Finally, in your exercise of judgment, 13 the testimony [read] [played] cannot be considered in isolation, but must be considered in the 14 context of all the evidence presented. [15] 16 Court Notes: 9th Cir. Model Instruction No. 3.4. The instruction will not be given as part 17 of the closing instructions; it will be given only if needed during jury deliberations. [27] 1 JURY INSTRUCTION NO. [3.6] ADDITIONAL INSTRUCTIONS OF LAW 2 At this point I will give you an additional instruction. By giving an additional instruction 3 at this time, I do not mean to emphasize this instruction over any other instruction. 4 You are not to attach undue importance to the fact that this instruction was read separately 5 to you. You must consider this instruction together with all of the other instructions that were 6 given to you. 7 [Insert text of new instruction.] 8 You will now retire to the jury room and continue your deliberations. [9] 10 Court Notes: 9th Cir. Model Instruction No. 3.6. The instruction will not be given as part 11 of the closing instructions; it will be given only if needed during jury deliberations. [27] 1 JURY INSTRUCTION NO. [3.8] CONTINUING DELIBERATIONS AFTER 2 JUROR IS DISCHARGED 3 [One] [Some] of your fellow jurors [has] [have] been excused from service and will not 4 participate further in your deliberations. You should not speculate about the reason the [juror is] 5 [jurors are] no longer present. 6 You should continue your deliberations with the remaining jurors. Do not consider the 7 opinions of the excused [juror] [jurors] as you continue deliberating. All the previous instructions 8 given to you still apply, including the requirement that all the remaining jurors unanimously agree 9 on a verdict. [10] 11 Court Notes: 9th Cir. Model Instruction No. 3.8. The instruction will not be given as part 12 of the closing instructions; it will be given only if needed during jury deliberations.