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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKAJENNIFER TRAYLOR,)) Plaintiff,))v.)) STATE OF NEBRASKA, DEPARTMENT ) OF CORRECTIONAL SERVICES, )) Defendant.)4:06CV3222FINALJURY INSTRUCTIONS )INSTRUCTION NO. 1DUTYIt will be your duty to decide from the evidence whether the plaintiff is entitled to a verdict against defendant. From the evidence, you will decide what the facts are. You are entitled to consider the evidence in the light of your own observations and experiences in life. You may use reason and common sense to draw deductions or conclusions from facts established by the evidence. You will then apply those facts to the law which I give you in these and other instructions. In that way, you will reach your verdict. You are the sole judges of the facts, but you must follow the law stated in my instructions whether you agree or disagree with the law stated in the instructions.In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of a witness’s testimony, or you may believe part of a witness’s testimony, or you may decide that you do not believe any of a witness’s testimony.In deciding what testimony to believe, you may consider a witness’s intelligence, thewitness’s opportunity to have seen or heard the things involved in the witness’s testimony, a witness’s memory, the motive a witness has for testifying a certain way, a witness’s manner while testifying, whether a witness has said something different at an earlier time, the general reasonableness of a witness’s testimony and the extent to which the witness’s testimony is consistent with other evidence that you believe.Do not allow sympathy or prejudice to influence you. The law requires that your verdict be just, that is, unaffected by anything except the evidence, your common sense, and the law stated in my instructions.Anything that I may say or do during the trial must not be taken by you as an indication of what I think of the evidence or what I think your verdict should be.EVIDENCEThe word “evidence” includes: the testimony of witnesses; documents and other things received as exhibits; any facts that have been stipulated, that is, formally agreed to by the parties; and any facts that have been judicially noticed, that is, facts which I say you must accept as true.The following things are not evidence:1. Statements, arguments, questions and comments by lawyers are not evidence.2.Objections are not evidence.Lawyers have a right to object when they believe something is improper under the rules of evidence. You should not be influenced by the lawyer’s objection or by my ruling on the objection. If I sustain an objection to a question, ignore the question. If I overrule the objection, treat the answer like any other answer. Do not attempt to draw any inference in favor of either side as the result of the objection.3. Testimony that I strike from the record or tell you to disregard is not evidence. You must not consider such information when reaching your verdict.4. Anything you see or hear about this case outside the courtroom is not evidence. You must disregard such information when reaching your verdict.5. A particular item of evidence is sometimes received for a limited purpose. I will tell you when that situation arises and will instruct you on the purpose for which the evidence can and cannot be used.6. Finally, you may have heard the phrases “direct evidence” and “circumstantial evidence.” You should not be concerned with those phrases, since the law makes nodistinction between the weight to be given to direct or to circumstantial evidence. You should give all the evidence the weight and value which you believe that the evidence is entitled to receive.PREPONDERANCE OF EVIDENCEIn these instructions you are told that your verdict depends on whether you find certain facts have been proven. The burden of proving a fact is upon the party whose claim or defense depends on that fact. The party who has the burden of proving a fact must prove it by the “preponderance of the evidence.”By a “preponderance of the evidence,” I mean the greater weight of credible evidence. This is not determined by the greater number of witnesses testifying about the facts and circumstances or by the number of exhibits. Preponderance of the evidence is determined by that amount of evidence which on the whole, when fully, fairly and impartially considered, makes the stronger impression on your mind and is more convincing as to its truth when weighed against the evidence the other party has presented. If the evidence is equally balanced, a preponderance is not established.To prove something by a preponderance of evidence is to prove that is more likely true than not. In determining whether a party to this action has sustained its burden of proof, you are not limited to the evidence introduced by that party. Each party is entitled to the benefit of any evidence tending to establish a claim, even though the other party introduced that evidence.You may have heard the term “proof beyond a reasonable doubt.” That is a stricter standard that applies in criminal cases. It does not apply in civil cases such as this one. You should, therefore, put the term out of your minds.REASONABLE INFERENCESWhile you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case.NOTE-TAKINGIf you wish, you may take notes to help you remember what witnesses said. Notes may be helpful to you because at the end of the trial, you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read back lengthy testimony. Therefore, pay close attention to the testimony that is given.If you do take notes, please keep your notes to yourself until you and the other jurors go to the jury room to decide the case. Do not let note-taking distract you to the point that you miss hearing other testimony from the witness.During the trial, documents and other physical items may be received in evidence. You will not be supplied with a list of exhibits which are received in evidence. Therefore, you may wish to make notes about the exhibits, especially their description and number, so that you can locate and refer to exhibits while you are deliberating.When we take our recess each day for the lunch-time break and when we take our recess each night, please take your notes to the jury room and leave your notes there. The courtroom deputy will take custody of your notes and secure them.No one will read your notes but you. Your notes will be destroyed after the trial is over.JURY QUESTIONSWhile evidence is being presented, you are not allowed to raise your hands to ask questions about that evidence. However, if you do have questions about something you hear during the examination of a witness, you may write your questions down on a piece of paper. When attorneys have finished examining that witness, you may submit your written question or questions. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. The attorneys may choose to answer your questions by asking more questions of the witness. But even if the question is proper, you may not get an immediate answer to your question. For instance, a witness or an exhibit that you will see later in the trial may answer your question.BENCH CONFERENCES AND RECESSESDuring this trial it may become necessary for me to talk with the lawyers outside your hearing, either by having a bench conference while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, the court and counsel are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence or to decide a particular procedure to be followed in the case. We will, of course, do what we can to minimize the number and length of these conferences.CREDIBILITY OF WITNESSESIn deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.In deciding what testimony to believe, consider the witness’s intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’s memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.The fact that one side may have used a greater number of witnesses or presented a greater quantity of evidence should not affect your decision. Rather, determine which witness or witnesses and which evidence appears accurate and trustworthy. It is the weight of the evidence that counts rather than the number of witnesses.If the testimony of a single witness produces in your minds a belief in the likely truth of any fact, and would justify a verdict in accordance with the witness’s testimony, even though a number of witnesses may have testified to the contrary, and you have consideredof this single witness.CONDUCT OF THE JURYTo insure fairness, you, as jurors, must obey the following rules:1. Do not talk among yourselves about this case or about anyone involved with this case until the end of the case when you go to the jury room to decide on your verdict.2. Do not talk with anyone else about this case or about anyone involved with it until the trial has ended and you have been discharged as jurors.3. During the course of this trial and when you are outside the courtroom, do not listen to or allow anyone to tell you anything about this case. Do not allow anyone to talk to you about anyone involved with this case until the trial has ended and I have accepted your verdict. If anyone tries to talk to you about this case during the trial, please promptly report the matter to me.4. During the trial do not talk with or speak to any of the parties, lawyers, or witnesses involved in this case. Do not even pass the time of day with any of them. You must not only do justice in this case, but you must also give the appearance of doing justice. For instance, if a person from one side of the lawsuit sees you talking to a person from the other side, even if it is on a matter unconnected with this trial or simply to pass the time of day, such contact might arouse unwarranted suspicion about your fairness. If a lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or encounter each other elsewhere while this trial is taking place, remember that court rules prohibit those persons from talking or visiting with you as well.5. You must decide this case on the basis of evidence presented in the courtroom. Therefore, do not read any news stories or articles about the case or about anyoneabout anyone involved with it. Until the trial is over, avoid reading any newspapers and avoid listening to any TV or radio newscasts. There may be news reports of this case, and if there are, you might find yourself inadvertently reading or listening to something before you realize what you are doing.6. Do not do any research or make any investigation, on the Internet or otherwise, on your own concerning this case. Do not use or refer to any dictionary, reference, or law book, or to the Internet, concerning any aspect of this case, including any evidence introduced. Do not visit the scene of any incident mentioned in this case.7. Do not form any opinion regarding any fact or issue in the case until you have received the entire evidence, have heard arguments of counsel, have been instructed as to the law of the case, and have retired to the jury room. Do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and have discussed the evidence with the other jurors.8. Do not be influenced by sympathy or prejudice. Do not indulge in any speculation, guess, or conjecture. Do not make any inferences unless they are supported by the evidence.OUTLINE OF TRIALThe trial will proceed in the following manner:First, the plaintiff's attorney may make an opening statement. Next, the defendant’s attorney may make an opening statement. An opening statement is not evidence or argument. It is an outline of what the party intends to prove, a summary of what the attorney expects the evidence to be.The plaintiff will then present evidence through a direct examination of a witness. The defendant’s attorney may then cross-examine that witness. After the cross- examination, plaintiff’s attorney may ask additional questions on redirect. The defendant’s attorney may also ask questions on recross. After the plaintiff has presented all his witnesses, the plaintiff will rest. The defendant then presents its case. The defendant may present evidence, testify, or call other witnesses. If the defendant calls witnesses, plaintiff’s attorney may cross-examine those witnesses. Redirect and recross examinations may also take place.After the evidence is completely presented, the attorneys will make their closing arguments to summarize and interpret the evidence for you. Just as with opening statements, these closing arguments are not evidence. I will then instruct you further on the law. After that you will retire to the jury room to deliberate on your verdict.STATEMENT OF THE CASEThis is a civil case brought by Jennifer Traylor against the State of Nebraska Department of Correctional Services, Case No. 4:06CV3222. The parties to this civil lawsuit are the plaintiff, Jennifer Traylor, represented by James D. McFarland, and the defendant, Nebraska Department of Correctional Services, represented by Stephanie A. Caldwell of the Nebraska Attorney General’s Office.Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin. In this case, plaintiff filed a complaint under Title VII, 42 U.S.C. § 2000e, asserting claims of discrimination and retaliation. The plaintiff alleges that defendant violated the law by discriminating against her based on her pregnancy and gender; that defendant denied her transfer to a light duty position during her pregnancy; that defendant constructively discharged her by placing her under the supervision of a former supervisor whom she had complained against; and that plaintiff’s filing of an Equal Employment Opportunity Commission (“EEOC”) charge was a motivating factor in defendant’s actions toward plaintiff.The defendant denies these allegations and claims that it had legitimate, nondiscriminatory reasons for not placing plaintiff in a light duty position, and that extreme restrictions imposed by plaintiff’s physician precluded her from any available jobs. Further, defendant maintains that plaintiff’s complaint against her former supervisor was investigated in accordance with defendant’s procedural protocols, and that a reasonableperson in the plaintiff’s situation would not have decided that resignation was the person’s only recourse. It will be your duty to decide from the evidence whether the plaintiff is entitled to a verdict against the defendant.THIS INSTRUCTION IS INTENTIONALLY LEFT BLANKRETALIATION ELEMENTSYour verdict must be for the plaintiff and against the defendant on the plaintiff’s retaliation claim if all the following elements have been proved by the preponderance of the evidence:1.The plaintiff engaged in, or was engaged in, protected activity under federal law; to wit, the plaintiff complained of or opposed an employment practice which she reasonably and in good faith believed to be unlawful gender discrimination;2.The defendant constructively discharged the plaintiff’s employment; and3.The plaintiff’s protected activity was a motivating factor in the defendant’s constructive discharge of the plaintiff.If any of the above elements has not been proved by the greater weight of the evidence, your verdict must be for the defendant and you need not proceed further in considering this claim. In addition, your verdict must be for the defendant if it has been proved by the greater weight of the evidence that defendant would have constructively discharged the plaintiff even if the plaintiff had not made complaints of gender discrimination. You may find that the plaintiff's complaints of gender discrimination were motivating factors in the defendant’s actions if it has been proved by the preponderance of the evidence that the defendant's stated reason for its actions is a pretext to hide retaliation.For the purpose of this claim, to prove constructive discharge, the plaintiff must prove:2.The defendant acted with the intent of forcing the plaintiff to quit or the plaintiff’s resignation was a reasonably foreseeable result of the defendant’s actions.PRETEXTYou may find that the plaintiff’s complaints of gender discrimination were motivating factors in the defendant’s actions if it has been proved by the greater weight of the evidence that the defendant’s stated reason for its actions is not the real reason, but is a pretext to hide discrimination.DEFINITION OF MOTIVATING FACTORAs used in these instructions, the plaintiff’s complaints of gender discrimination were “motivating factors,” if the plaintiff’s complaints of gender discrimination played a part in the defendant’s actions toward the plaintiff. However, the plaintiff’s complaints of gender discrimination need not have been the only reason for the defendant's actions.TITLE VII ELEMENTS CONSTRUCTIVE DISCHARGEPlaintiff claims that she resigned from her job because defendant made her working conditions intolerable. There is a question in this case as to whether the plaintiff was constructively discharged (as the plaintiff alleges) or whether the plaintiff voluntarily resigned or quit (as contended by the defendant).To prove a constructive discharge the plaintiff must demonstrate that:1.The defendant made the plaintiff's working conditions intolerable;2.The plaintiff's gender was a motivating factor in the defendant’s actions; and3.The defendant acted with the intent of forcing the plaintiff to quit or the plaintiff’s resignation was a reasonably foreseeable result of the defendant’s actions.Working conditions are intolerable if a reasonable person in the plaintiff’s situation would have deemed resignation the only reasonable alternative.BUSINESS JUDGMENTYou may not return a verdict for the plaintiff just because you might disagree with the defendant's actions or believe it to be harsh or ERNMENT DEFENDANTThe State of Nebraska, Department of Correctional Services, acts only through natural persons as it agents or employees. The State of Nebraska, Department of Correctional Services, is charged with the knowledge possessed by its employees, and is responsible for the acts and conduct of those agents in places or positions of responsibility when such acts and conduct occur within the scope of the duties of such employee or agent.DUTYMembers of the jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions. You must continue to follow the instructions I gave you earlier as well as those I give you now. Do not single out some instructions and ignore others. I urge you to review the instructions I gave you at the beginning of the trial before you begin to deliberate. You should take your notebooks to the jury room with you.GENDER DISCRIMINATIONYou have heard the terms sex discrimination and gender discrimination. Legally, these terms are the same.It is unlawful for an employer to intentionally discriminate against an individual because of that person’s gender. The terms “because of gender,” or “on the basis of gender” include, but are not limited to “because of” or “on the basis of pregnancy, childbirth, or related medical conditions.” Women affected by pregnancy, childbirth, or related medical conditions are to be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.SAME DECISIONIf you find in favor of the plaintiff under Instructions 16 or 13, then you must answer the following question in the verdict form: Has defendant proved by the preponderance of the evidence that the defendant would have constructively discharged the plaintiff regardless of her complaints of gender discrimination (Instruction No. 16), or retaliation (Instruction No. 13)?ACTUAL DAMAGESIf you find in favor of the plaintiff under Instructions 16 or 13 and if you answer “no” in response to Instruction 21, then you must award the plaintiff such sum as you find by the preponderance of the evidence will fairly and justly compensate the plaintiff for any damages you find the plaintiff sustained as a direct result of the defendant’s constructive discharge of the plaintiff. The plaintiff's claim for damages includes three distinct types of damages and you must consider them separately:First, you must determine the amount of any wages and fringe benefits the plaintiff would have earned in her employment with the defendant if she had not been constructively discharged on February 23, 2004, through the date of your verdict, minus the amount of earnings and benefits that the plaintiff received from other employment during that time.Second, you must determine the amount of any other damages sustained by the plaintiff. 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.You are also instructed that the plaintiff has a duty under the law to “mitigate” her damages - that is, to exercise reasonable diligence under the circumstances to minimize her damages. Therefore, if you find by the greater weight of the evidence that the plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to her, you must reduce her damages by the amount she reasonably could have avoided if she had sought out or taken advantage of such an opportunity.Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award damages under this Instruction by way of punishment or through PENSATORY DAMAGESIf you find in favor of the plaintiff, you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe she sustained as a direct result of the occurrence mentioned in the evidence.You should consider the following elements of damages, to the extent you find that such was established by the preponderance of the evidence: mental anguish; income loss in the past; and the impairment of earning capacity or ability in the future. Such damages cannot be based on speculation.NOMINAL DAMAGESIf you find in favor of the plaintiff under Instructions 16 or 13 and if you answer “no” in response to Instruction 21, but you find that the plaintiff’s damages have no monetary value, then you must return a verdict for the plaintiff in the nominal amount of One Dollar ($1.00).AFFIRMATIVE DEFENSEYour verdict must be for the defendant on the plaintiff’s claim of gender discrimination (Instruction No. 16) if it has been proved by the greater weight of the evidence that (a) defendant exercised reasonable care to prevent and correct promptly any discriminatory behavior; and (b) that the plaintiff unreasonably failed to take advantage of defendant’s procedural protocols to remedy the situation.NOTESSome of you may have taken notes during the trial; others of you may have chosen not to take notes. If you did take notes, remember that those notes are not themselves evidence, but are instead merely memory aids. You must reach a verdict based upon your independent recollection of the evidence presented during the trial, not upon your notes or another juror's notes. Notes are not entitled to any greater weight than the recollection or impression of each juror as to what the testimony may have been.ELECTION OF FOREPERSON; DUTY TO DELIBERATEIn conducting your deliberations and returning your verdict, there are certain rules you must follow.First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case.Third, if you need to communicate with me during your deliberations, you may send a note to me through the U.S. Marshal or the courtroom deputy, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.Fourth, your verdict must be based solely on the evidence and on the law which Ihave given to you in my instructions. The verdict must be unanimous. Nothing I have saidor done is intended to suggest what your verdict should be - that is entirely for you to decide.Finally, the verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdict, your foreperson will fill in the form, sign and date it, and advise the marshal or the courtroom deputy that you are ready to return to the courtroom. ................
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