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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
FILED .I,,_',;1. 0'1 -·-)--I,-·<. ICT OU R-- T
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NEIL LEWIS,
vs.
Plaintiff,
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) 4:02CV3122)))) FINAL JURY) INSTRUCTIONS
ROBERTS DAIRY COMPANY, INC., ))
Defendant. )
INSTRUCTION NO. 1
Members of the jury, the instructions I gave at the beginning of the trial and
during the trial remain in effect. I now give you some additional instructions.
You must, of course, continue to follow the instructions I gave you earlier, as
well as those I give you now. You must not single out some instructions and ignore
others, because all are important. This is true even though some of those I gave you
at the beginning of and during the trial are not repeated here.
INSTRUCTION NO. 2
Neither in these instructions nor in any ruling, action or remark that I have
made during the course of this trial have I intended to give any opinion or suggestion
as to what your verdict should be.
During this trial I may have occasionally asked questions of witnesses in order
to bring out facts not then fully covered in the testimony. Do not assume that I hold
any opinion on the matters to which my questions related.
INSTRUCTION NO. 3
You are reminded that you are not to engage in any independent investigation
of this case. For instance, you are not to consult a dictionary or any other like
reference.
INSTRUCTION NO. 4
This case should be considered and decided by you as an action between
parties of equal standing in the community, of equal worth, and holding the same or
similar stations in life. All parties stand equal before the law, and are to be dealt with
as equals in a court of justice.
A corporation acts only through natural persons as its agents or employees, and
a corporation is responsible for the acts, knowledge and the conduct of those agents
it places in positions of responsibility when such acts and conduct occur within the
scope of the duties of such employee or agent.
INSTRUCTION NO. 5
In these instructions you are told that your verdict depends on whether you find
certain facts have been proved. The burden of proving a fact is upon the party whose
claim depends upon that fact. The party who has the burden of proving a fact must
prove it by the greater weight of the evidence. To prove something by the greater
weight of the evidence is to prove that it is more likely true than not true. It is
determined by considering all of the evidence and deciding which evidence is more
believable. If, on any issue in the case, the evidence is equally balanced, you must
resolve that issue against the party who has the burden of proving it.
The greater weight of the evidence is not necessarily determined by the greater
number of witnesses or exhibits a party has presented.
INSTRUCTION NO. 6
The parties have agreed that the following may be accepted as established
facts for purposes of this case only:
1. Plaintiff began working for Defendant in April1968 and worked until
October 1973 when he resigned his position of route driver. Plaintiff returned towork in February 19__; he was made Wholesale Manager over the route drivers in
November 1995.
2. John Viale began as Omaha Division Manager in late March 2001.
3. Neil Lewis' employment was terminated by Roberts on August 1, 2001.
INSTRUCTION NO. 7
Plaintiff has two claims:
First, Plaintiff claims that Defendant violated the federal Age Discrimination
in Employment Act (ADEA) and the Nebraska Act Prohibiting Unjust
Discrimination in Employment Because of Age when it terminated his employment.
Both of these acts make it unlawful for an employer to make an employment
decision on the basis of an individual's age when that individual is 40 years of age
or older. I refer to this claim throughout these instructions as Plaintiffs "age
discrimination claim."
Second, Plaintiff claims that Defendant violated the federal Americans with
Disabilities Act (ADA) and the Nebraska Fair Employment Practice Act when it
terminated his employment. Both of these acts make it unlawful for an employer to
intentionally discriminate against a qualified individual because of an actual or a
perceived disability. I refer to this claim throughout these instructions as Plaintiffs
"disability discrimination claim."
You must consider each claim separately.
INSTRUCTION NO. 8
As used in these instructions, Plaintiff's age or disability was a "motivating
factor" if Plaintiff's age or disability played a part in Defendant's decision to
terminate Plaintiff's employment. However, Plaintiff's age or disability need not
have been the only reason for Defendant's decision to terminate Plaintiff's
employment.
INSTRUCTION NO. 9
You may find that Plaintiffs age or disability was a motivating factor in
Defendant's decision to terminate Plaintiffs employment if it has been proved by the
greater weight of the evidence that Defendant's stated reasons for the decision are not
the true reasons, but are a "pretext" to hide discrimination.
INSTRUCTION NO. 10
You may not return a verdict for Plaintiff just because you might disagree with
Defendant's decision to terminate Plaintiffs employment or believe it to be harsh or
unreasonable.
An employer is entitled to make its own subjective personnel decisions and can
discharge an employee for any reason that is not discriminatory.
INSTRUCTION NO. 11
Age Discrimination Claim - Essential Elements
Your verdict must be for Plaintiff and against Defendant on Plaintiffs age
discrimination claim if all the following elements have been proved by the greater
weight of the evidence:
First, Defendant discharged Plaintiff; and
Second, Plaintiff's age was a motivating factor in Defendant's decision.
However, your verdict must be for Defendant if any of the above elements has
not been proved by the greater weight of the evidence, or if it has been proved by the
greater weight of the evidence that Defendant would have discharged Plaintiff
regardless of his age.
INSTRUCTION NO. 12
If you find in favor of Plaintiff under Instruction No. 11 ("Age Discrimination
Claim-Essential Elements") then you must award Plaintiff such sum as you find by
the greater weight of the evidence will fairly and justly compensate Plaintiff for any
wages and fringe benefits you find Plaintiff would have earned in his employment
with Defendant if he had not been discharged on August 1, 2001, through the date of
your verdict, minus the amount of earnings and benefits from other employment
received by Plaintiff during that time.
You may not award wage and fringe benefit damages for damages, if any,
expected to be suffered after the date of your verdict. If Plaintiff is entitled to such
damages, the court will award them.
You are also instructed that 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 greater weight of the evidence,
that Plaintiff failed to seek out or take advantage of an opportunity that was
reasonably available to him, you must reduce his damages by the amount of the
wages and fringe benefits he reasonably would have earned if he 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 sympathy.
INSTRUCTION NO. 13
If you find in favor of Plaintiff under Instruction No. 11 ("Age
Discrimination Claim-Essential Elements") and award Plaintiff damages under
Instruction No. 12, then you must decide, by checking a box on the verdict form,
whether the conduct of Defendant was "willful."
You must find Defendant's conduct was willful if you find by the greater
weight of the evidence that, when Defendant discharged Plaintiff, Defendant knew
the discharge was in violation of the federal law prohibiting age discrimination, or
acted with reckless disregard of that law.
If you find that Defendant willfully violated the law, then Plaintiff will be
entitled to certain relief which must be awarded by the court.
INSTRUCTION NO. 14
Disability Discrimination Claim - Essential Elements
Plaintiff may prove his disability discrimination claim in one of two ways,
which are described below:
First Method (Actual Disability)
Your verdict must be for Plaintiff and against Defendant on Plaintiffs
disability discrimination claim if all of the following elements have been proved by
the greater weight of the evidence:
First, Plaintiff had throat cancer surgery which impaired his ability to produce
saliva and affected the quality of his voice; and
Second, such impairment substantially limited Plaintiffs ability to speak; and
Third, Defendant discharged Plaintiff; and
Fourth, Plaintiff could have performed the essential functions of Wholesale
Manager at the time Defendant discharged Plaintiff; and
Fifth, Defendant knew of Plaintiffs impairment and such impairment was a
motivating factor in Defendant's decision to discharge Plaintiff.
If any of the above elements has not been proved by the greater weight of the
evidence, then your verdict must be for Defendant unless you find for Plaintiff under
the Second Method as described below:
Second Method (Perceived Disability)
Your verdict must be for Plaintiff and against Defendant if all of the following
elements have been proved by the greater weight of the evidence:
First, Defendant regarded Plaintiff's voice as substantially limiting Plaintiff's
ability to speak; and
Second, Defendant discharged Plaintiff; and
Third, Plaintiff could have performed the essential functions of Wholesale
Manager at the time Defendant discharged Plaintiff; and
Fourth, Plaintiffs voice was a motivating factor in Defendant's decision to
discharge Plaintiff.
If any of the above elements has not been proved by the greater weight of the
evidence, then your verdict must be for Defendant.
INSTRUCTION NO. 15
The phrase "substantially limits" as used in these instructions means an
individual is significantly restricted in the ability to speak.
In determining whether Plaintiffs impairment substantially limits Plaintiffs
ability to speak, you should compare Plaintiffs ability to speak with that of the
average person. In doing so, you should also consider: (1) the nature and severity
of the impairment; (2) how long the impairment will last or is expected to last; and
(3) the permanent or long-term impact, or expected impact, of the impairment.
It is not the name of an impairment or a condition that matters, but rather the
effect of an impairment or condition on the life of a particular person.
INSTRUCTION NO. 16
"Same Decision" Defense
If you find in favor of Plaintiff under Instruction No. 14 ("Disability
Discrimination Claim- Essential Elements"), then you must answer the following
question in the verdict form:
Has it been proved by the greater weight of the evidence that
Defendant would have discharged Plaintiff even if Defendant had not
considered Plaintiffs voice or age?
INSTRUCTION NO. 17
If you find in favor of Plaintiff under Instruction No. 14 ("Disability
Discrimination Claim- Essential Elements") and if you answer ''No" in response to
Instruction No. 16 ("'Same Decision' Defense"), then you must award Plaintiff such
sum as you find by the greater weight 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 terminate Plaintiffs employment. Plaintiffs claim
for damages includes two distinct types of damages and you must consider them
separately.
First , you must determine the amount of any wages and fringe benefits
Plaintiff would have earned in his employment with Defendant if he had not been
discharged on August 1, 2001, through the date of your verdict, minus the amount
of earnings and benefits that Plaintiff received from other employment during that
time. You may not award wage and fringe benefit damages for damages, if any,
expected to be suffered after the date of your verdict. If Plaintiff is entitled to
such damages, the court will award them.
Second, you must determine the amount of other damages sustained by
Plaintiff, such as 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.
If you find in favor of Plaintiff, but you find that Plaintiffs damages have no
monetary value, then you must return a verdict for Plaintiff in the nominal amount of
One Dollar ($1.00).
You are also instructed that 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 greater weight of the evidence
that Plaintiff failed to seek out or take advantage of an opportunity that was
reasonably available to him, 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.
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 sympathy.
INSTRUCTION NO. 18
In addition to actual and nominal damages mentioned in the other
instructions, the law permits the jury under limited circumstances to award an
injured person punitive damages.
If you find in favor of Plaintiff under Instruction No. 14 ("Disability
Discrimination Claim- Essential Elements") and if you answer ''No" in response to
Instruction No. 16 ("'Same Decision' Defense"), then you must decide whether
Defendant acted with malice or reckless indifference to Plaintiff's right not to be
discriminated against on the basis of his actual or perceived disability. Defendant
acted with malice or reckless indifference if it has been proved by the greater
weight of the evidence that John Viale, or Tom Fredrickson, or Jeff Powell knew
that the termination was in violation of the law prohibiting disability discrimination,
or acted with reckless disregard of that law.
However, you may not award punitive damages if it has been proved by the
greater weight of the evidence that Defendant made a good-faith effort to comply
with the law prohibiting disability discrimination.
If you find that Defendant acted with malice or reckless disregard and did not
make a good-faith effort to comply with the law, then, in addition to any actual or
nominal 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.
INSTRUCTION NO. 19
Your verdict must be agreed to by all eight of you, that is, it must be
unanimous.
INSTRUCTION NO. 20
In 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.
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 marshal or bailiff, signed by one or more jurors. You
may reach my chambers by pressing the "call" button on the intercom telephone in
the jury room. The caller should clearly identify himself or herself as a member of
the jury so that my staff will react accordingly. 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.
If you do not agree on a verdict by 5:00 o'clock p.m., you may separate and
return for deliberation at 9:00 o'clock a.m. on the next business day. You may
deliberate after 5:00 o'clock p.m. but if so, please advise the bailiff of your intention
to do so. You may also separate for meals during the course of your deliberations,
but if you do separate for meals please contact the bailiff to advise her of your
intention to separate and when you expect to return to the jury room to reconvene
your deliberations. If you do separate, then during that time, you are not allowed to
discuss this case with anyone, even another juror.
Fourth, your verdict must be based solely on the evidence and law which I have
given to you in my instructions. Nothing I have said or 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, complete it pursuant to
the instructions on the form, and advise the marshal or bailiff when you are ready to
deliver your verdict.
Submitted at o'clock a.m.
DATED this ____ day of 2003.
BY THE COURT:
United States District Judge
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
NEIL LEWIS,
vs.
Plaintiff,
) 4:02CV3122)))) VERDICT FORM)
ROBERTS DAIRY COMPANY, INC., ))
Defendant. )
Please answer the following questions in accordance with the jury instructions
and the instructions contained in this form. It is possible that you will answer some
but not all questions.
VERDICT
I. AGE DISCRIMINATION CLAIM
A. LIABILITY
Note: Complete this form by writing in the name required by your verdict.
On the age discrimination claim of Plaintiff Neil Lewis against DefendantRoberts Dairy Company, Inc., we find in favor of:
[Plaintiff Neil Lewis] or [Defendant Roberts Dairy Company, Inc.]
Note: Complete the following section B ("Damages") only if the above finding is in favor Plaintiff. If your finding is in favor of Defendant, proceed to Part II ("Disability Discrimination Claim") and leave sections Band C of this Part I ("Age Discrimination Claim") blank.
Neil Lewis v. Roberts Dairy Company, Inc. Case No. 4:02CV3122Page 2 of Verdict Form
B. DAMAGES
We find Plaintiffs damages for lost wages and benefits through the date of the verdict to be:
$ (stating the amount or, if none, write the word "none.")
Note: Complete the following section C ("Willfulness") only if you have awarded an amount of damages above.
C. WILLFULNESS
Was Defendant's conduct "willful" as that term is defined in InstructionNo. 13?
--- Yes _______________ No(Mark an "X" in the appropriate space)
II. DISABILITY DISCRIMINATION CLAIM
A. LIABILITY
Note: Complete this form by writing in the name required by your verdict.
On the disability discrimination claim of Plaintiff Neil Lewis against DefendantRoberts Dairy Company, Inc., we find in favor of:
[Plaintiff Neil Lewis] or [Defendant Roberts Dairy Company, Inc.]
Neil Lewis v. Roberts Dairy Company, Inc. Case No. 4:02CV3122Page 3 of Verdict Form
Note: Answer the next question only if the above finding is in favor of Plaintiff. If your finding is in favor of Defendant, proceed to "Execution of Verdict Form" and leave sections Band C of this Part II ("Disability Discrimination Claim") blank because your deliberations on this claim are completed.
B. "SAME DECISION" DEFENSE
Has it been proved by the greater weight of the evidence that Defendant would have discharged Plaintiff even if Defendant had not considered Plaintiffs voice orage?
--- Yes
--- No
(Mark an "X" in the appropriate space)
Note: Complete the following three paragraphs, regarding damages, only if your answer to the preceding question is "No." If you answered "Yes" to the preceding question, proceed to "Execution of Verdict Form" and leave section C of this Part II ("Disability Discrimination Claim") blank because your deliberations on this claim are completed.
C. DAMAGES
1. Lost Wages and Benefits
We find Plaintiffs damages for lost wages and benefits through the date of the verdict to be:
$ (stating the amount or, if none, write the word "none.")
Neil Lewis v. Roberts Dairy Company, Inc. Case No. 4:02CV3122Page 4 of Verdict Form
2. Other Damages
We find Plaintiffs other damages, excluding lost wages and benefits and punitive damages, to be:
$ (stating the amount or, if you find that Plaintiffs damages do not have a monetary value, write in the nominal amount of One Dollar ($1.00)).
3. Punitive Damages
We assess punitive damages against Defendant, as follows:
$ (stating the amount or, if none, write the word "none.")
EXECUTION OF VERDICT FORM
Note: The Foreperson shall sign and date the verdict form, and such signature shall mean that the verdict of the jury was unanimous.
DATED this day of , 2003.
FOREPERSON
