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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action, File Number: 2:05-cv-1661

Michael J. Liberati :

:

Plaintiff, :

v. :

: JURY INSTRUCTIONS,

BRT, INC. : JURY INTERROGATORIES,

: VERDICT FORMS

and :

:

Harold Mast, President :

BRT, INC. :

:

Defendants. :

PLAINTIFF’SPROPOSEDJURYINSTRUCTIONS,

JURY INTERROGATORIES AND VERDICT FORMS

Plaintiff requests that the following 46 Jury Instructions, 10 Jury

Interrogatories and 2 Verdict Forms be submitted to the jury during the trial of this

case which is schedule to commence on April 18, 2006.

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1. Summary of ADA Claim

It is unlawful for an employer to intentionally discriminate

against an individual who was disabled or regarded as disabled

by his employer in regard to job application procedures, hiring,

advancement, discharge, employee compensation, failure to

provide reasonable accommodation, job training, and other terms,

conditions, or privileges or employment. Plaintiff in this case,

Michael J. Liberati, alleges that Defendants, BRT, Inc. and

Harold Mast, intentionally discriminated against him when they

discharged him. Defendants deny the claim and maintain that he

was discharged due to a legitimate business reason. It is your

responsibility to determine whether Plaintiff has proven

[his/her] claim by a preponderance of the evidence.

Source of Instruction: 42 U.S.C. §12112(a); 29 C.F.R. §1630.4.

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2. Qualified Individual with a Disability

A qualified individual with a disability under the Americans’

with Disabilities Act is defined as a person “with a disability

who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires. A disability is defined as a

physical or mental impairment that substantially limits one or

more of the major life activities of an individual; has a record

of such impairment or is/was regarded by his employer as having

such an impairment.

Source of Instruction: 42 U.S.C. § 12111 (8); 42 U.S.C. §

12102(2)(A).

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3. “Disability”

The term “disability” means, with respect to an individual, one

who:

1. has a physical or mental impairment that substantially limits

one or more of the major life activities of that person, or

2. has a record of such an impairment, or

3. is regarded as having such an impairment.

Source of Instruction: 42 U.S.C. §12102(2); 29 C.F.R.

§1630.2(g).

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4. “Disability” — Short Form

The term “disability” means, with respect to an individual, a

physical impairment that substantially limits one or more of the

major life activities of the individual, or that an individual

is regarded as having such an impairment.

Source of Instruction: Riemer v. Illinois Dep’t of Transp., 148

F.3d 800, 804 (7th Cir. 1998).

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5. “Regarded As Disabled”

In the present case the plaintiff maintains that the defendants

unlawfully regarded him as disabled and discharged him and

failed to provide him with reasonable accommodation based on

illegal discrimination and retaliation. Under the Americans

with Disabilities Act an employee is regarded as disabled by his

employer when his employer perceives him to have (1) a physical

or mental impairment that does not substantially limit a major

life activity but was treated by the defendants as constituting

such limitation; (2) has a physical or mental impairment that

substantially limits a major life activity as a result of the

attitudes of the defendants and/or employees within the

defendant company toward such impairment; or (3) has no such

impairment but was treated by the defendants as having a

substantially limiting impairment. The illegal

discrimination/retaliation is based upon the plaintiff’s

disabilities as perceived by the defendants.

Source of Instruction: 42 U.S.C. § 12102(2); Taylor v. Pathmark

Stores, Inc., 177 F.3d 180, 188 (3rd Cir. 1999). Williams v.

Philadelphia Housing Authority Police Department, 380 F.3d 751

(3rd Cir. 2004).

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6. “Disability” - Perceived Limitation

An individual is "regarded as" having a disability if he:

1. has a physical or mental impairment that does not

substantially limit a major life activity, but is perceived by

Defendant as having such a limitation;

2. has a physical or mental impairment that is substantially

limiting only as a result of the attitudes of others towards the

impairment; or

3. does not have an impairment at all but is perceived by

Defendant as having such a substantially limiting impairment.

Source of Instruction: Federal Bar Ass'n Sub-Committee on

Pattern Jury Instructions, at 7 (July, 1997); 29 C.F.R.

§1630.2(1); 29 C.F.R. pt. 1630B, App. §1630.2(1); MacDonald v.

Delta Airlines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996).

Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd Cir.

1999). Williams v. Philadelphia Housing Authority Police

Department, 380 F.3d 751 (3rd Cir. 2004).

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7. McDonnell-Douglas Analysis

Under the ADA, an employee has the initial burden of

establishing a prima facie case of discrimination. This may be

done by showing, that:

1. the individual was regarded as a disabled person within the

meaning of the ADA by his employer;

2. he or she was able to perform the essential functions of the

job for which he held; and

3. the defendant discharged him and/or failed to provide him

with reasonable accommodation because they regarded him as

disabled.

If the employee succeeds in establishing a prima facie case, the

employer must then articulate a legitimate, nondiscriminatory

reason for its actions. In this case the employer must show

that the plaintiff was discharged for a legitimate reason and

the employer must independently show that that they had a

legitimate reason for failing to provide a reasonable

accommodation to the plaintiff ex. undue hardship or request for

accommodation was unreasonable.

Where the employer produces such evidence, the employee must

then prove by a preponderance of the evidence that the

legitimate reasons offered by the employer were not its true

reasons, but were, in fact, a pretext for discrimination.

The employee must also carry the ultimate burden of showing,

that the employer intentionally discriminated against him or her

in violation of the ADA.

Source of Instruction: Talk v. Delta Airlines, 165 F.3d 1021,

1024 (5th Cir. 1999). Taylor v. Pathmark Stores, Inc., 177 F.3d

180, 188 (3rd Cir. 1999). Williams v. Philadelphia Housing

Authority Police Department, 380 F.3d 751 (3rd Cir. 2004).

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8. Elements of Cause of Action - Essential Functions

In order for Plaintiff to establish a case of discrimination

under the Americans with Disabilities Act, Plaintiff must prove

all of the following by a preponderance of the evidence:

1. That he was regarded as a disabled person within the meaning

of the ADA by his employers;

2. That he was able to perform the essential functions of the

job which he held; and

3. Defendants discharged him and/or failed to provide reasonable

accommodation because of his disability as perceived by the

defendants.

Source of Instruction: E.E.O.C. v. Wal-Mart Stores, Inc., 11 F.

Supp. 2d 1313, 1318 (D.N.M. 1998). 42 U.S.C. § 12102(2); Taylor

v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd Cir. 1999).

Williams v. Philadelphia Housing Authority Police Department,

380 F.3d 751 (3rd Cir. 2004).

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9. Preemption of Other Laws

Section 501(b) of the ADA states that:

Nothing in this Act shall be construed to invalidate or limit

the remedies, rights, and procedures of any Federal law or law

of any State or political subdivision of any State or

jurisdiction that provides greater or equal protection for the

rights of individuals with disabilities than are afforded by

this Act.

Source of Instruction: 29 C.F.R. pt. 1630, App. §1630.1(b)(c);

42 U.S.C. §1220 (b). Gagliardo v. Connaught Lab, Inc., 311 F.3d

565 (3rd Cir. 2002). Nero v. Indus. Molding Corp.,167 F.3d 921,

925 (5th Cir. 1999).

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10. “Essential Functions of Position”

The phrase “essential functions” of an employment position means

the basic, fundamental duties of the job the person with a

disability holds or desires. Essential functions do not include

the marginal functions of the position. A job function may be

considered essential for any of several reasons, including but

not limited to the following:

1. the position exists in order to perform that function;

2. the performance of that job function can only be distributed

among a limited number of available employees; and/or

3. the function may be so highly specialized that a person is

hired for [his/her] expertise or ability to perform that

particular function.

In determining whether a particular function is essential, you

may consider:

1. the employer’s judgment as to which functions are essential;

2. written job descriptions prepared before advertising or

interviewing applicants for the job;

3. the amount of time spent on the job performing the function;

4. the consequences of not requiring the employee to perform the

function;

5. the work experience of past incumbents in the job;

6. the current work experience of persons with similar jobs;

and/or

7. the terms of a collective bargaining agreement.

Source of Instruction: Barber v. Nabors Drilling U.S.A., Inc.,

130 F.3d 702, 708 (5th Cir. 1997); 29 C.F.R. §1630.2(n).

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11. “Essential Functions of Position” - Alternate

In determining whether a job function is essential, you should

consider the following factors: [(1) The employer's judgment as

to which functions of the job are essential; (2) written job

descriptions; (3) the amount of time spent on the job performing

the function in question; (4) consequences of not requiring the

person to perform the function; (5) the terms of a collective

bargaining agreement; (6) the work experience of persons who

have held the job; (7) the current work experience of persons in

similar jobs; (8) whether the reason the position exists is to

perform the function; (9) whether there are a limited number of

employees available among whom the performance of the function

can be distributed; (10) whether the function is highly

specialized and the individual in the position was hired for his

or her expertise or ability to perform the function; and (11)

any other relevant factors supported by the evidence.

No one factor is necessarily controlling. You should consider

all of the evidence in deciding whether a job function is

essential.

The term "essential functions" means the fundamental job duties

of the employment position the plaintiff holds or for which the

plaintiff has applied. The term "essential functions" does not

include the marginal functions of the position.

Comments

Source of Instruction: Draft Model Jury Instructions (Civil)

Eighth Circuit §5.52(B)(2004).

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12. Reasonable Accommodation

Federal law requires employers to provide reasonable

accommodation to employees who are disabled or regarded as

disabled unless the accommodation would impose an undue hardship

on the employer or pose a direct threat to the employee or

others. Failure to provide a reasonable accommodation

constitutes disability discrimination.

“Direct threat” means a significant risk of substantial harm to

the health or safety of the employee or others that cannot be

eliminated or reduced by reasonable accommodation.

A reasonable accommodation is a modification or adjustment to

the work environment or to the manner in which a job is

performed. A reasonable accommodation may include: modifying or

adjusting a job application process to enable a qualified

applicant with a disability to be considered for the position;

making existing facilities used by employees readily accessible

to and usable by individuals with disabilities; job

restructuring; part-time or modified work schedule; reassignment

to a vacant position; acquisition or modifications of

examinations, training materials or policies; provision of

qualified readers and interpreters; other similar accommodations

for individuals with Plaintiff's disabilities.

A reasonable accommodation does not include changing or

eliminating any essential function of a job, shifting any of the

essential functions of the job to others, or creating a new

position for the disabled employee. If Plaintiff rejects a

reasonable accommodation that is necessary to enable Plaintiff

to perform the essential functions of the position, and, as a

result, cannot perform the essential functions of the position,

Plaintiff cannot be considered a qualified individual.

An “undue hardship” is an action that would create significant

difficulty or expense for employer, considering the nature and

cost of the accommodation, the overall financial resources of

employer, the effect of the accommodation on expenses and

resources, and the impact of the accommodation on the operations

of employer, including the impact on the ability of other

employees to perform their duties and the impact on employer’s

ability to conduct business.

Plaintiff bears the burden of proposing an accommodation that

would enable him to perform the job effectively and is, at least

on the face of things, reasonable. If Plaintiff meets this

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burden, then Defendant bears the burden of proving that the

accommodation Plaintiff proposed would have been an undue

hardship.

Comments

Source of Instruction: Proposed Civil Pattern Jury Instructions

– Employment Discrimination (Disparate Treatment), Judge Hornby,

United States District Court, District of Maine, §3.2 (2004).

Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd Cir.

1999). Williams v. Philadelphia Housing Authority Police

Department, 380 F.3d 751 (3rd Cir. 2004).

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13. “Reasonable Accommodation”

A “reasonable accommodation” is defined by the ADA as the

modification or adjustments to the work environment, or to the

manner of circumstances under which the position held is

customarily performed, that enable a qualified individual with a

disability to perform the essential functions of that position.

Source of Instruction: Barber v. Nabors Drilling U.S.A., Inc.,

130 F.3d 702, 709 (5th Cir. 1997).

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14. “Reasonable Accommodation” — Benefits and Privileges

The term “reasonably accommodate” means any effective

modification or adjustment to the workplace that makes it

possible for a person with a disability to perform the essential

functions of their employment position or to enjoy the same

benefits and privileges of employment that are available to any

person without a disability.

Source of Instruction: Russel v. Plano Bank & Trust, 130 F.3d

715 (5th Cir. 1997).

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15. Reasonable Accommodation for Regarded As Disabled Employees

An employee that is regarded as disabled by his employer is

entitled to request a reasonable accommodation in good faith.

Good faith would mean that he reasonable believed he needed the

accommodation. If an employer fails to provide a reasonable

accommodation when it regarded the employer as disabled that

constitutes disability discrimination.

Source of Instruction: Taylor v. Pathmark Stores, Inc., 177

F.3d 180, 188 (3rd Cir. 1999). Williams v. Philadelphia Housing

Authority Police Department, 380 F.3d 751 (3rd Cir. 2004).

Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183 (3rd Cir.

2003).

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16. Plaintiff’s Burden – Reasonable Accommodation

It is Plaintiff's burden to prove that the accommodation he

suggests would be effective, that is, that the accommodation

would enable him to do his job for which is qualified.

If you find that Plaintiff has met this part of his burden, then

Defendants may still prevail if they prove by a preponderance of

the evidence that the accommodation or accommodations which

Plaintiff proposes would be an undue hardship or unreasonable.

If the defendants cannot establish that the requested reasonable

accommodation was unreasonable or an undue hardship then you

must determine that since the defendants failed to accommodate

the plaintiff the defendants unlawfully discriminated against

him.

Source of Instruction: Geuss v. Pfizer, Inc., 971 F. Supp. 164,

172-73 (E.D. Pa. 1996). Taylor v. Pathmark Stores, Inc., 177

F.3d 180, 188 (3rd Cir. 1999). Williams v. Philadelphia Housing

Authority Police Department, 380 F.3d 751 (3rd Cir. 2004).

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17. Plaintiff’s Suggestions

The term "reasonable accommodation" means making modifications

in or to the workplace that allow an individual with a known or

perceived disability to perform the essential functions of the

job, or that allow an individual with a known or perceived

disability to enjoy the same or equivalent benefits and

privileges as other similarly situated employees without

disabilities.

In determining whether an accommodation was appropriate, and if

so, reasonable, you may consider the following:

1. The accommodation (if any) suggested by Plaintiff;

2. The accommodation (if any) offered by Defendant;

3. The accommodation (if any) that Defendant knew or should have

known was available;

4. The extent of the cooperation between Plaintiff and

Defendant, in identifying and evaluating potential

accommodations.

Source of Instruction: Federal Bar Ass’n Subcommittee on Pattern

Jury Instructions, at 13-14 (July 1997); 29 C.F.R. §1630.2(o);

Labor and Education Committee Report at 62-67; 29 C.F.R. pt.

1630, App. §1630.2(o); Hudson v. MCI Telecommunications Corp.,

87 F.3d 1167, 1168 (10th Cir. 1996); Lowe v. Angelo's Italian

Foods, Inc., 87 F.3d 1170, 1172 (10th Cir. 1996).

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18. Discussions About Reasonable Accommodation

After you determine that the plaintiff requested reasonable

accommodation it is required that the employer initiate a

discussion with the employee about appropriate accommodations.

Unlawful discrimination occurs when the employer fails to engage

in any discussion with the employee about the requested

reasonable accommodation.

Source of Instructions: Mengine v. Runyon, 114 F.3d 415 (3

rd Cir.

1997; Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 514 (1st

Cir. 1996).

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19. Good Faith Effort to Make Reasonable Accommodation

You must decide in favor of Plaintiff if he demonstrates by a

preponderance of the evidence that:

1. Plaintiff informed Defendant that reasonable accommodations

were needed because of his disability;

2. Defendants did not make a good faith effort and consult with

Plaintiff to identify and make a reasonable accommodation that

would provide Plaintiff with an equally effective opportunity to

perform his job; and

3. the reasonable accommodation would not cause an undue

hardship on the operation of Defendant’s business.

Source of Instruction: Haschmann v. Time Warner Entertainment

Co., 8 A.D. Cas. (B.N.A.) 692, 700 n.12 (7th Cir. 1998); See 42

U.S.C. §1981a(a)(3); Mengine v. Runyon, 114 F.3d 415 (3rd Cir.

1997; Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd

Cir. 1999). Williams v. Philadelphia Housing Authority Police

Department, 380 F.3d 751 (3rd Cir. 2004).

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20. Plaintiff’s Burden of Proof – Direct & Circumstantial

Evidence

To prevail on a claim of disability discrimination, Plaintiff

must prove by a preponderance of the evidence that Defendant had

a reason or motive to discriminate against him. Plaintiff must

prove, either directly or indirectly, that Defendant engaged in

intentional discrimination. Direct evidence of discrimination is

evidence of remarks or actions that, if believed, would directly

prove that Plaintiff’s disability was a motivating factor in

Defendant’s treatment of Plaintiff. Indirect or circumstantial

evidence would include proof of a set of circumstances that

would allow one to reasonably believe that disability was a

motivating factor in Defendant's treatment of Plaintiff.

Source of Instruction: 42 U.S.C. §12112(a); McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248 (1981).

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21. Reasonable Accommodation Cases (Specific Accommodation

Identified)

Your verdict must be for plaintiff and against defendant if all

of the following elements have been proved by a preponderance of

the evidence:

First, plaintiff was perceived by the defendants as having

ADD/ADHD; and

Second, defendant knew of plaintiff's cognitive impairments; and

Third, plaintiff could have performed the essential functions of

the position he held at BRT, Inc. at the time defendants

discharged him and failed to provide him with reasonable

accommodation; if he had been provided with the reasonable

accommodation of a quieter working space.

Fourth, providing a quieter working space to the plaintiff as he

requested would have been reasonable; and

Fifth, defendant failed to provide the plaintiff with a quieter

working space and failed to provide any other reasonable

accommodation.

If any of the above elements has not been proved by the

preponderance of the evidence, then your verdict must be for

defendant.

Comments

Source of Instruction: Draft Model Jury Instructions (Civil)

Eighth Circuit §5.51(C) (2004).

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22. Elements of Cause of Action – Failure to Provide Reasonable

Accommodation

To find for Plaintiff, you must find that Defendant unreasonably

failed to provide accommodations that were reasonable, available

and would have allowed Plaintiff to perform the essential

functions of his job.

Comment

Source of Instruction: Moore v. Walker, 2001 U.S. App. LEXIS

26402 (10th Cir. 2001) (unpublished). Mengine v. Runyon, 114

F.3d 415 (3rd Cir. 1997; Taylor v. Pathmark Stores, Inc., 177

F.3d 180, 188 (3rd Cir. 1999). Williams v. Philadelphia Housing

Authority Police Department, 380 F.3d 751 (3rd Cir. 2004).

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23. Evidence Motivating Factor

Plaintiff need not show that disability discrimination was the

only or predominant factor that motivated Defendant. In fact,

you may decide that other factors were involved as well in

Defendant’s decision-making process. In that event, in order for

you to find for Plaintiff, you must find that he has proven

that, although there were other factors, he would not have been

discharged or not given reasonable accommodation without the

disability discrimination.

Plaintiff is not required to produce direct evidence of unlawful

motive. You may infer knowledge and/or motive as a matter of

reason and common sense from the existence of other facts, for

example, explanations that were given that you find were really

pretextual could establish discrimination and retaliation.

“Pretextual” means false or, though true, not the real reason

for the action taken.

Comments

Source of Instruction: Proposed Civil Pattern Jury Instructions

– Employment Discrimination (Disparate Treatment), Judge Hornby,

United States District Court, District of Maine, §3.1 (2).

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24. “Motivating Factor”

The term “motivating factor” means a consideration that moved

Defendant toward its decision or a factor that played a part in

an employment decision.

Source of Instruction: Adapted from Model Jury Instructions

(Civil) Eighth Circuit §5.01 n.4, 6 (2001); Model Jury

Instructions (Civil) Ninth Circuit §11.5.1 (1997); Price

Waterhouse v. Hopkins, 490 U.S. 228, 238 n.2 (1989) (“a Title

VII violation is made out as soon as the plaintiff shows that an

impermissible motivation played a part in an employment

decision.”).

“Motivating factor” also has been equated with “a significant

factor” and “substantial factor.” See Price Waterhouse, 490 U.S.

at 265; (O’Connor, J. concurring) (substantial factor); Fadhl v.

City & County of San Francisco, 741 F.2d 1163, 1166 (9th Cir.

1984) (significant factor).

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25. “Pretext”

Defendant may attempt to show that it had nondiscriminatory and

legitimate reasons for its actions. If Defendant has offered

such reasons for its discharge and/or failure to provide

reasonable accommodations to the Plaintiff, Plaintiff may show

that these were not the true reasons for Defendant's actions or

conduct and that Defendant's reasons are really a pretext or

cover up for discrimination. If Plaintiff makes such a showing,

you may infer an unlawful motive from Defendant's false or

pretextual reasons for its actions.

Source of Instruction: 3 Devitt, Blackmar & Wolf, Federal Jury

Practice and Instructions, §§81.03, 104.02 (4th ed. 1987); Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989); St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502 (1993).

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26. Essential Elements (Perceived Disability)

Your verdict must be for plaintiff and against defendant if all

of the following elements have been proved by the preponderance

of the evidence:

First, defendant regarded plaintiff's ADD/ADHD as substantially

limiting plaintiff's ability to think and concentrate;

Second, defendants discharged plaintiff or failed to provide him

with the reasonable accommodation of a quieter work space;

Third, plaintiff could have performed the essential functions of

his job at BRT, Inc. at the time defendants discharged him

and/or failed to provide him with reasonable accommodation;

Fourth, plaintiff's disabilities as perceived by the defendants

was a motivating factor in defendants’ decision to discharge the

plaintiff; or plaintiff disabilities as perceived by the

defendants was a motivating factor in defendants’ decision not

to provide the plaintiff with a reasonable accommodation.

If any of the above elements has not been proved by the

preponderance of the evidence then your verdict must be for

defendant.

Source of Instruction: Model Jury Instructions (Civil) Eighth

Circuit §5.51(B) (2001).

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27. Retaliation Prima Facie Case

To establish unlawful retaliation by using indirect evidence,

Plaintiff must prove what is called a prima facie case of

retaliation.

To establish a prima facie case, Plaintiff must prove each of

the following elements by a preponderance of the evidence:

1. He engaged in an activity protected by the ADA, in this case

requesting reasonable accommodation;

2. Defendant took an adverse employment action against him

either after or contemporaneous with the protected activity, in

this case the defendants discharged the plaintiff; and

3. there was a causal connection between Plaintiff's protected

activity and the adverse employment action.

Source of Instruction: Morgan v. Hilti, Inc., 108 F.3d 1319,

1324 (10th Cir. 1997); Krause v. American Sterilizer Co., 126

F.3d 494, 500 (3rd Cir. 1997). Fogleman v. Mercy Hosp. Inc., 283

F.3d 561 (3rd Cir. 2002)(quoting Krouse v. Am. Sterilizer Co.,

126 F.3d 494 (3rd Cir. 1997)).

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28. Plaintiff’s Burden of Proof - Retaliation

To prevail on a claim of retaliation, Plaintiff must prove by a

preponderance of the evidence that Defendant had a reason or

motive to improperly retaliate against him when it discharged

him. Plaintiff must prove, either directly or indirectly, that

Defendant harbored retaliatory animus. If you find that

plaintiff requested reasonable accommodation in good faith based

on his disabilities and then the defendant was motivated by this

request and discharged him, you must find in favor of the

plaintiff.

The plaintiff must prove a claim of illegal retaliation under

the anti-discrimination statutes by establishing that (1) he

engaged in a protected activity which includes requesting

reasonable accommodation; (2) that he was subjected to an

adverse employment action which includes discharge; (3) that

there is a causal link between the adverse employment action and

the protected activity; (4) that the employer discharged the

plaintiff either after or contemporaneous to the his request for

reasonable accommodation.

Direct evidence of retaliation is evidence of remarks or actions

that, if believed, would directly prove that Plaintiff’s

protected conduct was a motivating factor in Defendant’s

treatment of Plaintiff. Indirect or circumstantial evidence

would include proof of a set of circumstances that would allow

one to reasonably believe that Plaintiff's protected conduct was

a motivating factor in Defendant's treatment of Plaintiff.

Source of Instruction: Adapted from McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248 (1981). Taylor v. Pathmark Stores, Inc.,

177 F.3d 180, 188 (3rd Cir. 1999). Williams v. Philadelphia

Housing Authority Police Department, 380 F.3d 751 (3rd Cir.

2004). Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183 (3rd

Cir. 2003). Fogleman v. Mercy Hosp. Inc., 283 F.3d 561 (3rd Cir.

2002)(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494 (3

rd

Cir. 1997)).

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29. Retaliation Disability

It is not necessary for a plaintiff to prove that he is actually

disabled in order to prevail on a retaliation claim. The right

to request reasonable accommodation in good faith is a guarantee

under the Americans’ with Disabilities Act. A plaintiff only

needs to have a good faith belief that he was entitled to

request the reasonable accommodation.

Source of Instruction: Taylor v. Pathmark Stores, Inc., 177

F.3d 180, 188 (3rd Cir. 1999). Williams v. Philadelphia Housing

Authority Police Department, 380 F.3d 751 (3rd Cir. 2004).

Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183 (3rd Cir.

2003).

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32

30. Retaliation "Pretext" Cases

It is not necessary for Plaintiff to prove that a retaliatory

motive was the sole motivation of, or even a primary motivation

for, Defendants’ decision to terminate him. Plaintiff need only

prove that it was a determinative factor in the decision even

though other factors may have motivated Defendant.

Once Plaintiff shows that a retaliatory motive was a

determinative factor in Defendants’ decision, it is Defendants’

burden to articulate a legitimate, nonretaliatory reason for its

decision to terminate Plaintiff.

If Defendant does so, Plaintiff must prove by a preponderance of

the evidence that the proffered legitimate reason is in fact a

pretext and that retaliation was a determinative factor in

Defendants’ decision. Plaintiff retains the ultimate burden of

persuading you by a preponderance of the evidence that he was

retaliated against as he claims.

Plaintiff claims that Defendants’ reasons for terminating him

are not the true reasons why he was terminated, that such

reasons are unworthy of belief, and that the true reason for his

termination was that he reasonably requested reasonable

accommodation.

When you consider Plaintiff's evidence that the reason advanced

by Defendants is a pretext, the relevant question is whether or

not Defendants’ reason was the real reason for its actions. You

may consider whether Defendants’ reason is merely a cover-up for

unlawful retaliation.

Pretext may be proven either directly, by proving that a

retaliatory reason more likely motivated the employer, or

indirectly, by showing that the employer's explanation is

unworthy of credence. In either case, the evidence must persuade

you that Plaintiff's request for reasonable accommodation was a

determining factor in the decision to discharge him. In other

words, Plaintiff must demonstrate, by a preponderance of the

evidence, that but for the fact that he requested reasonable

accommodation, he would not have been discharged.

If Plaintiff has persuaded you by a preponderance of the

evidence that the reason offered by Defendants for the

termination is only a pretext or cover-up for what was at least

partially a discriminatory or retaliatory purpose — then you may

infer that Plaintiff has satisfied his burden of proof that

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33

Defendants intentionally retaliated against him because of his

request for reasonable accommodation.

Source of Instruction: Provencher v. CVS Pharm., 145 F.3d 5, 9

(1st Cir. May 26, 1998).

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34

31. Retaliation — Pretext

Plaintiff accuses defendants of violating federal law by

retaliating against him for engaging in protected activities,

namely, for requesting reasonable accommodation. Requesting

reasonable accommodation is a “protected activity.” To succeed

on this claim, plaintiff must prove by a preponderance of the

evidence that:

First, Defendants took an adverse employment action against him,

discharge;

Second, were it not for his protected activity, requesting

reasonable accommodation, defendants would not have taken

adverse employment action against him, i.e. discharged him.

Plaintiff is not required to prove that his request for

reasonable accommodation, protected activity claim, had merit in

order to prove the retaliation claim.

An “adverse employment action” is one that, standing alone,

actually causes damage, tangible or intangible, to an employee.

The fact that an employee is unhappy with something his or her

employer did or failed to do is not enough to make that act or

omission an adverse employment action. An employer takes adverse

action against an employee only if it: (1) takes something of

consequence away from the employee, for example, by discharging

or demoting the employee, reducing his or her salary, or taking

away significant responsibilities; or (2) fails to give the

employee something that is a customary benefit of the employment

relationship, for example, by failing to follow a customary

practice of considering the employee for promotion after a

particular period of service. An adverse employment action by a

supervisor is an action of the employer.

Plaintiff need not show that retaliation was the only or

predominant factor that motivated Defendant. In fact, you may

decide that other factors were involved as well in Defendant’s

decision-making process. In that event, in order for you to find

for Plaintiff, you must find that he has proven that, although

there were other factors, he would not have been discharged

without the retaliation.

In order to succeed on the discrimination claim, plaintiff must

persuade you, by a preponderance of the evidence, that were it

not for disability discrimination, he would not have been

discharged.

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Plaintiff is not required to produce direct evidence of unlawful

motive. You may infer knowledge and/or motive as a matter of

reason and common sense from the existence of other facts, for

example, explanations that were given that you find were really

pretextual. “Pretextual” means false or, though true, not the

real reason for the action taken.

Comments

Source of Instruction: Proposed Civil Pattern Jury Instructions

– Employment Discrimination (Disparate Treatment), Judge Hornby,

United States District Court, District of Maine, §5.1 (2004).

Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd Cir.

1999). Williams v. Philadelphia Housing Authority Police

Department, 380 F.3d 751 (3rd Cir. 2004). Shellenberger v.

Summit Bancorp., Inc., 318 F.3d 183 (3rd Cir. 2003). Fogleman v.

Mercy Hosp. Inc., 283 F.3d 561 (3rd Cir. 2002)(quoting Krouse v.

Am. Sterilizer Co., 126 F.3d 494 (3rd Cir. 1997)).

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32. Adverse Employment Action by Supervisor

An adverse employment action by a supervisor is an action of the

employer.

Comments

Source of Instruction: Proposed Civil Pattern Jury Instructions

– Employment Discrimination (Disparate Treatment), Judge Hornby,

United States District Court, District of Maine, §1.1 (2004).

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33. Harold Mast – Aiding and Abetting

You must find in favor of the plaintiff and against defendant,

Harold Mast, if you determine that Harold Mast aided, abetted,

incited, compelled, coerced, forced, required, requested,

recommended, consented, assisted, acquiesced, and/or insisted

that BRT, Inc. discharge the plaintiff or failed to provide

reasonable accommodation to the plaintiff.

Source of Instruction: 43 P.S. § 954, § 955, § 955(e).

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34. Actual Damages

If you find in favor of Plaintiff under Instruction _____ and if

you answer "no" in response to Instruction _____, then you must

award Plaintiff such sum as you find by the preponderance of the

evidence will fairly and justly compensate Plaintiff for any

damages you find Plaintiff sustained as a direct result of

Defendant’s decision to discharge him and decision not to

reasonably accommodate him. Plaintiff's claim for damages

includes three distinct types of damages and you must consider

them separately:

1. any wages and fringe benefits Plaintiff would have earned in

his employment with Defendants if he had not been discharged on

December 16, 2002 through the date of your verdict, minus the

amount of earnings and benefits that Plaintiff received from

other employment during that time.

2. any future wages and fringe benefits Plaintiff would

reasonably have earned in his employment with Defendant from the

date of your verdict through [specify cutoff date for any "front

pay" award], minus the amount of earnings and benefits Plaintiff

will receive from other employment during that time.

3. any other damages sustained by Plaintiff, such as future

pecuniary losses, emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other

nonpecuniary losses.

You must enter separate amounts for each type of damages in the

verdict form and must not include the same items in more than

one category.

Plaintiff has a duty under the law to "mitigate" his damages —

that is, to exercise reasonable diligence under the

circumstances to minimize his damages. Therefore, if you find by

the preponderance of the evidence that Plaintiff failed

reasonable seek out and obtain other employment you must reduce

his damages by the amount he reasonably could have avoided if he

had sought out or taken advantage of such an opportunity.

Source of Instruction: Adapted from Model Jury Instructions

(Civil) Eighth Circuit §5.02 (1998).

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35. Compensatory Damages

If you find Defendant is liable to Plaintiff under the ADA,

Plaintiff is also entitled to recover damages in an amount which

will reasonably compensate him for the loss and injury suffered

as a result of Defendant’s unlawful conduct. You may award

Plaintiff reasonable compensation for the following:

1. pain, suffering, and physical or emotional distress;

2. embarrassment and humiliation;

3. loss of enjoyment of life; that is, Plaintiff’s loss of the

ability to enjoy certain aspects of his life as a result of

Defendant’s discriminatory actions; and

4. any out-of-pocket expenses or losses incurred as a result of

the unlawful discrimination.

You may consider the testimony and the demeanor of Plaintiff in

considering and determining a fair allowance for any damages for

emotional distress, humiliation, and loss of enjoyment of life.

Emotional harm may manifest itself, for example, as

sleeplessness, anxiety, stress, depression, marital strain,

embarrassment, humiliation, loss of respect, emotional distress,

loss of self-esteem, or excessive fatigue. Physical

manifestations of emotional harm may also occur, such as ulcers,

headaches, skin rashes, gastrointestinal disorders, or hair

loss.

In the determination of the amount of the award, it will often

by impossible for you to arrive at a precise award. These

damages are intangible, and it is difficult to arrive at a

precise evaluation of actual damage for emotional harm from race

and/or national origin discrimination. No opinion of any witness

is required as to the amount of such reasonable compensation.

Nonetheless, it is necessary to arrive at a reasonable award

that is supported by the evidence.

Source of Instruction: 3 Devitt, Blackmar & Wolf, Federal Jury

Practice and Instructions, § 104.06 (4th ed. 1987); Block v.

R.H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983); E.E.O.C.

Policy Guide on Compensatory and Punitive Damages Under 1991

Civil Rights Act (B.N.A., 1992) at II(A)(2), as modified;

Stallworth v. Shuler, 777 F.2d 1431 (11th Cir. 1985).

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36. Value of Lost Medical and Life Insurance Benefits

You may include in the calculation of lost wages and benefits

any amount that Plaintiff actually sustained for lost medicaldental insurance payments and lost group life insurance

payments.

Source of Instruction: Tolan v. Levi Strauss & Co., 867 F.2d

467, 470 (8th Cir. 1989).

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37. Future Out of Pocket Expenses

If you find for Plaintiff, you should also consider future out

of pocket expenses. These include future costs which Plaintiff

has shown by a preponderance of the evidence are reasonably

likely to occur as a result of Defendant’s discriminatory

conduct.

Source of Instruction: Kohnke v. Delta Airlines, Inc., 5 A.D.

Cas. (B.N.A.) 334, 342 (E.D. Ill. 1995).

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38. Nonpecuniary Damages

With respect to nonpecuniary damages, you are to consider the

emotional pain, suffering, inconvenience and mental anguish

suffered by Plaintiff, if any.

Source of Instruction: Riemer v. Illinois Dep’t of Transp., 148

F.3d 800, 808 (7th Cir. 1998).

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39. Backpay

If you find that Defendant unlawfully discriminated against

Plaintiff on the basis of his disability, you must determine the

amount of backpay that Plaintiff should receive.

In determining backpay, you are to award Plaintiff an amount

equal to the wages and benefits that he would have received from

Defendant had he not been discharged from the time of the

discharge, December 16, 2002 until the date of the trial. You

must deduct from this sum whatever wages Plaintiff has earned

from other employment during this period [and whatever wages and

benefits you find that Defendant has proven Plaintiff failed to

earn from substantially comparable employment].

Source of Instruction: Federal Bar Ass’n Subcommittee on Pattern

Jury Instructions, at 32 (July 1997).

The defendants and the plaintiff have agreed that if you award

back pay damages for the years 2002, 2003, 2004 until April,

2005 when the plaintiff obtained employment with Sunoco then you

should award the amount $41,904.88.

You must determine the amount of back pay damages for April,

2005 until the trial. The plaintiff has been employed at Sunoco

during that time and he claims that although he earns more money

at Sunoco he has lost earnings due to increased travel time and

costs associated with increased travel time and losses due to

lack of benefits.

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40. Negligent Infliction of Emotional Distress

You may award damages for negligent infliction of emotional

distress if you find that due to the defendants actions which

only need to arise to level of negligence, the plaintiff

sustained some sort of bodily injury which may manifest itself

as mental and/or emotional distress.

Source of Instruction: Simmons v. Pacor, Inc., 674 A.2d 232

(Pa. 1986).

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41. Intentional Infliction of Emotional Distress

If you find that the actions of the defendants in causing

emotional distress to the plaintiff were more than negligent and

that the defendants’ conduct was extreme and outrageous then you

may award damages for intentional infliction of emotional

distress.

Source of Instruction: Cox v. Keystone Carbon Co., 861 F.2d 390

(3rd Cir. 1988).

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42. Punitive Damages

In addition to the damages mentioned in the other instructions,

the law permits the jury under certain circumstances to award an

injured person punitive damages in order to punish Defendant for

some extraordinary misconduct and to serve as an example or

warning to others not to engage in such conduct.

If you find in favor of Plaintiff under Instruction _____ and if

you answer "no" in response to Instruction _____, [same decision

instruction] and if you find that Defendant acted with malice or

with reckless indifference to Plaintiff's right not to be

discriminated against on the basis of [his/her] disability, then

in addition to any damages to which you find Plaintiff entitled,

you may, but are not required to, award Plaintiff an additional

amount as punitive damages if you find it is appropriate to

punish Defendant or to deter Defendant and others from like

conduct in the future. Whether to award Plaintiff punitive

damages, and the amount of those damages, are within your

discretion.

You may assess punitive damages against any or all Defendants or

you may refuse to impose punitive damages. If punitive damages

are assessed against more than one Defendant, the amounts

assessed against such Defendants may be the same or they may be

different.

Source of Instruction: Adapted from Model Jury Instructions

(Civil) Eighth Circuit §5.04 (2001); Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1 (1991).

If you decide to award punitive damages, the amount to be

awarded is also within your sound discretion. The purpose of a

punitive damage award is to punish Defendant or deter Defendant

and others from similar conduct in the future. Factors you may

consider include, but are not limited to, the nature of

Defendant’s conduct (how reprehensible or blameworthy was it),

the impact of that conduct on Plaintiff, the ratio between the

actual compensatory damages and the punitive damages, the

relationship between Plaintiff and Defendant, the likelihood

that Defendant or others would repeat the conduct if the

punitive award is not made, and any other circumstances shown by

the evidence, including any mitigating or extenuating

circumstances that bear on the size of such an award. You may

determine reprehensibility by considering whether the harm was

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physical as opposed to economic; whether the conduct showed

indifference to or disregard for the health or safety of others;

whether the target of the conduct has financial vulnerability;

whether the conduct involved repeated actions or was an isolated

instance; and whether the harm was the result of intentional

malice, trickery, deceit, or mere accident.

Comments

Source of Instruction: Proposed Civil Pattern Jury Instructions

– Employment Discrimination (Disparate Treatment), Judge Hornby,

United States District Court, District of Maine, §8.1 (2005).

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43. Punitive Damages – No Egregious or Outrageous Behavior

Required

If an employer has engaged in intentional discrimination and

acted with malice or reckless indifference to the employee's

federally protected rights under Title VII, then Plaintiff is

entitled to recover punitive damages.

An award of punitive damages does not require showing egregious

or outrageous discrimination or retaliation. The relevant

inquiry is whether the employer knew or showed reckless

disregard for whether its conduct was prohibited by Americans’

with Disabilities Act. That is the federal law under which the

lawsuit is brought. They have to either know what they were

doing was wrong or not care. That is what is meant by reckless

disregard.

If you find by a preponderance of the evidence that Defendant

acted with malice or reckless indifference to Plaintiff's

rights, then you may make an award of punitive damages.

Comments

Source of Instruction: Le v. University of Pennsylvania, 2001

U.S. Dist. LEXIS 10539 (E.D. Pa. 2001). Kolstad v. American

Dental Association, 1999 WL 407481 (U.S.).

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44. Liability of Employer

Punitive damages can properly be awarded against an employer

because of an act by an employee if, but only if:

1. the company-employer, itself, or a managerial employee of the

company authorized the doing and manner of the act;

or

2. the employee who did the act was employed in a managerial

capacity and was acting in the scope of employment;

or

3. the company-employer, itself, or a managerial employee of the

company ratified or approved the act.

Source of Instruction: E.E.O.C. v. Wal-Mart Stores, Inc., 11 F.

Supp.2d 1313, 1322 n.2 (D.N.M. 1998).

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45. “Managerial Employee”

A person is a managerial employee if [he/she] has the stature

and authority to exercise control, discretion, and independent

judgment over a certain area of a business, including personnel,

or has some power to set policies for the company.

Source of Instruction: E.E.O.C. v. Wal-Mart Stores, Inc., 11 F.

Supp.2d 1313, 1322 n.2 (D.N.M. 1998).

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46. Liability of a Corporation

A corporation can act only through its officers and employees.

Any act or omission of an officer or an employee of a

corporation, within the scope or course of [his/her] employment,

is the act or omission of the company.

Source of Instruction: E.E.O.C. v. Wal-Mart Stores, Inc., 11 F.

Supp.2d 1313, 1321 (D.N.M. 1998).

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INTERROGATORY #1 - Impairment

Was Plaintiff, at the time of [his/her] termination, an

individual that was regarded by Defendant as having a physical

or mental impairment that substantially limited a major life

activity?

Yes_____________ No_____________

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INTERROGATORY #2 - Elements of Cause of Action – Disability,

Essential Functions, and Reasonable Accommodation

1. Was Plaintiff regarded as disabled by the defendants as

defined by the Americans with Disabilities Act?

2. Was Plaintiff otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodation?

3. Did Plaintiff suffer an adverse employment (discharge or

failure to reasonably accommodate) action solely by reason of

his disability of ADD/ADHD as perceived by the defendants?

4. Did Plaintiff inform Defendant that reasonable accommodations

were needed because of Plaintiff's disability?

5. Did Defendant make good faith efforts, in consultation with

Plaintiff, to identify and make a reasonable accommodation that

would provide Plaintiff with an equally effective opportunity at

the workplace and that would not cause an undue hardship on the

operation of Defendant's business?

Comment

Source of Instruction: Kiphart v. Saturn Corp., 251 F.3d 573,

580 (6th Cir. 2001).

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INTERROGATORY #3- Disability Was Motivating Factor

Do you find that Plaintiff’s disability as perceived by the

defendants was a motivating factor in Defendants’ decision to

not provide the plaintiff with reasonable accommodation?

Yes __________ No __________

Source of Instruction: 42 U.S.C. §12112(a).

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INTERROGATORY #4- Disability Was Motivating Factor

Do you find that Plaintiff’s disability as perceived by the

defendants was a motivating factor in Defendants’ decision to

discharge the plaintiff Plaintiff?

Yes __________ No __________

Source of Instruction: 42 U.S.C. §12112(a).

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INTERROGATORY #5- Because of Disability

Do you find, by a preponderance of the evidence, that Plaintiff

has proved that he was terminated because of his alleged

disability as perceived by the defendants?

Yes __________ No __________

Source of Instruction: McNelly v. Ocala Star-Banner Corp., 99

F.3d 1068, 1071 (11th Cir. 1996).

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INTERROGATORY #6— Retaliation

Do you find, by a preponderance of the evidence, that Plaintiff

has proved that he was discharged because he requested

reasonable accommodation?

Yes ________ No ________

Source of Instruction: McNelly v. Ocala Star-Banner Corp., 99

F.3d 1068, 1071 (11th Cir. 1996).

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INTERROGATORY #7– Harold Mast

Do you find that Harold Mast aided, abetted, incited, compelled,

coerced, forced required, requested, recommended, consented,

assisted, acquiesced, and/or insisted that BRT, Inc. discharge

the plaintiff or failed to provide reasonable accommodation to

the plaintiff.

Yes ________ No ________

Source of Instruction: 43 P.S. § 954, § 955, § 955(e).

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INTERROGATORY #8– NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

1. Were the acts of the defendants in discharging plaintiff and

failing to provide him with reasonable accommodation negligent?

Yes____________ NO______________

If the answer to number one is yes then answer number 2.

2. Did the plaintiff sustained some sort of bodily injury which

may manifest itself as mental and/or emotional distress.

Yes____________ NO______________

Source of Instruction: Simmons v. Pacor, Inc., 674 A.2d 232

(Pa. 1986).

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INTERROGATORY #9- Intentional Infliction of Emotional Distress

Were the actions of the defendants in causing emotional distress

to the plaintiff were more than negligent?

Was 0the defendants’ conduct was extreme and outrageous?

Source of Instruction: Cox v. Keystone Carbon Co., 861 F.2d 390

(3rd Cir. 1988).

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INTERROGATORY #10— Punitive Damages

Did Defendant act with malice or reckless indifference to

Plaintiff’s disability so as to justify an award of punitive

damages?

Source of Instruction: Americans’ with Disabilities Act

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VERDICT FORM #1— All Damages – Regarded As Disabled

1. Has Plaintiff proved by a preponderance of the evidence that

he was regarded as disabled by his employer BRT, Inc.?

If your answer is “NO,” do not answer further questions. If your

answer is “YES,” proceed to answer question 2.

2. Has Plaintiff proved by a preponderance of the evidence that

Defendants discriminated against him as an employee when they

regarded him as disabled and discharged him or failed to provide

him with reasonable accommodation?

If your answer is “NO,” do not answer further questions. If your

answer is “YES,” proceed to answer question 3.

3. If you answered yes to #2, then you must enter an award of

backpay damages for 2002, 2003, 2004 until April, 2005 in an

amount totaling $41,904.88. And, you must proceed to enter

damage amounts as listed in #4.

4. State in dollars the amount of damages Plaintiff has proved

for:

(a) Back pay 2002-April, 2005 $41,904.88

(b) Back pay for April, 2005 to time of trial ____________

(c) Front pay ____________

(d) Compensatory damages ____________

(e) Emotional distress damages ____________

TOTAL : ____________

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5. State in dollars the amount of damages Plaintiff has proved

against Harold Mast for aiding, abetting, inciting, compelling,

coercing, forcing, requiring, requesting, recommending,

consenting, assisting, acquiescing, and/or insisting that BRT,

Inc. discharge the plaintiff and/or not provide reasonable

accommodation to the plaintiff.

ANSWER:__________________

6. State in dollars the amount of punitive damages, if any, you

award for intentional, malicious and/or reckless disregard of

Plaintiff’s rights as an employee who was regarded as disabled

by Defendants.

ANSWER:__________________

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VERDICT FORM #2— All Damages – Retaliation

1. Has Plaintiff proved by a preponderance of the evidence that

the defendants retaliated against him because he requested

reasonable accommodation?

If your answer is “NO,” do not answer further questions. If your

answer is “YES,” proceed to answer question 2.

2. If you answered yes, then you must enter an award of backpay

damages for 2002, 2003, 2004 until April, 2005 in an amount

totaling $41,904.88.

3. State in dollars the amount of damages Plaintiff has proved

for:

(a) Back pay 2002-April, 2005 $41,904.88

(b) Back pay for April, 2005 to time of trial ____________

(c) Front pay ____________

(d) Compensatory damages ____________

(e) Emotional distress damages ____________

TOTAL : ____________

5. State in dollars the amount of damages Plaintiff has proved

against Harold Mast for aiding, abetting, inciting, compelling,

coercing, forcing, requiring, requesting, recommending,

consenting, assisting, acquiescing, and/or insisting that BRT,

Inc. discharge the plaintiff and/or not provide reasonable

accommodation to the plaintiff.

ANSWER:__________________

4. State in dollars the amount of punitive damages, if any, you

award for malicious and/or reckless disregard of Plaintiff’s

rights as a disabled employee.

ANSWER:___________________

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Respectfully Submitted,

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

SHARON ANN ZIEGLER, ESQ.

5118 Foxfire Trail

Kingsport, TN 37664

JOHN NEUMANN HICKEY, ESQ.

20 West Front Street

Media, PA 19063

Attorneys for Plaintiff

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66

CERTIFICATE OF SERVICE

I, Sharon Ann Ziegler, Esq., the undersigned and attorney of record for the plaintiff in the

case Liberati v. BRT, Inc. et al., Civil Action File No.: 2:05-cv-1661 hereby certifies that a true

and correct copy of Plaintif’sRequested Jury Instructions, Jury Interrogatories and Verdict

Forms, was served on April 14, 2006 via e-mail transmission as agreed by the parties, to the

following counsel of record:

Michael J. Crocenzi, Esq.

Goldberg Katzman

320 Market Street

Strawberry Square

P.O. Box 1268

Harrisburg, PA 17108-1268

Attorney for Defendants

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

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