IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

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OFFICE OF THE CLERK

SANDRA NIEMEYER,

Plaintiff,

vs.

CITY OF LINCOLN,

Defendant.

) 4:02CV3359)))) FINAL JURY) INSTRUCTIONS)))

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, whether individuals or municipal corporations,

stand equal before the law, and are to be dealt with as equals in a court of justice.

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 ofthis case only:

1. Plaintiff, Sandra Niemeyer, was employed by Defendant, City of

Lincoln, as a bus cleaner for StarTran, earning $9.927 per hour, or

$20,648.16 per year, working generally 40 hours per week.

2. Plaintiff was hired by Defendant as a bus cleaner on or about June 19,

2000, and last worked for Defendant in January 2002.

INSTRUCTION NO. 7

Plaintiff alleges two claims against Defendant under Title VII of the Civil

Rights Act of 1964, which prohibits discrimination in employment on the basis of

sex.

First, Plaintiff claims that she was sexually harassed by co-workers and that

Defendant failed to take corrective action. I refer to this claim throughout these

instructions as Plaintiffs "sexual harassment claim."

Second, Plaintiff claims that Defendant retaliated against her for complaining

about the alleged sexual harassment. I refer to this claim throughout these

instructions as Plaintiffs "retaliation claim."

Defendant denies both of these claims.

You must consider each claim separately. You may find for Plaintiff on one

claim, both claims, or neither claim.

INSTRUCTION NO. 8

You may not return a verdict for Plaintiff just because you might disagree with

Defendant's decisions or believe them to be harsh or unreasonable.

INSTRUCTION NO. 9

Sexual Harassment Claim

Your verdict must be for Plaintiff and against Defendant on Plaintiffs claim of

sexual harassment if all ofthe following elements have been proved by the greater

weight of the evidence:

First, Plaintiff was subjected to sexual touching, sexual comments, and sexual

language or drawings; and

Second, such conduct was unwelcome; and

Third, such conduct was based on Plaintiffs gender; and

Fourth, such conduct was sufficiently severe or pervasive that a reasonable

person in Plaintiffs position would find Plaintiffs work environment to be hostile;

and

Fifth, at the time such conduct occurred and as a result of such conduct,

Plaintiff believed her work environment to be hostile; and

Sixth, Defendant knew or should have known of the sexual touching, sexual

comments, and sexual language or drawings; and

Seventh, Defendant failed to take prompt and appropriate corrective action to

end the harassment.

For purposes of this instruction, conduct is "unwelcome" if Plaintiff did not

solicit or invite the conduct and regarded the conduct as undesirable or offensive.

In determining whether a reasonable person in Plaintiffs circumstances would

find Plaintiffs work environment to be hostile, you must look at all the

circumstances. The circumstances may include the frequency of the conduct

complained of; its severity; whether it was physically threatening or humiliating, or

merely offensive; whether it unreasonably interfered with the Plaintiffs work

performance; and the effect on Plaintiff's psychological well-being. No single factor

is required in order to find a work environment hostile.

If any of the above elements has not been proved by the greater weight ofthe

evidence, your verdict must be for Defendant and you need not proceed further in

considering this claim.

INSTRUCTION NO. 10

If you find in favor of Plaintiff under Instruction No. 9 (Sexual Harassment

Claim), 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 failure to stop the sexual

harassment, such as emotional pain, suffering, inconvenience, mental anguish, loss

of enjoyment of life, and other nonpecuniary losses.

Do not include lost wages or fringe benefits in your award of damages for

Plaintiffs sexual harassment claim.

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).

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. 11

Retaliation Claim

Plaintiff may prove her retaliation claim in one of two ways, which are

described below:

First Method (Actual Discharge)

Your verdict must be for Plaintiff and against Defendant on Plaintiff's

retaliation claim if all the following elements have been proved by the greater weight

of the evidence:

First, Plaintiff complained to Defendant that she was being sexually harassed;

and

Second, Plaintiff reasonably believed that she was being sexually harassed; and

Third, Defendant discharged Plaintiff; and

Fourth, Plaintiff's complaint of sexual harassment played a part in Defendant's

decision to discharge Plaintiff.

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

evidence, your verdict must be for Defendant on the retaliation claim unless you find

for Plaintiff under the Second Method as described below.

Second Method (Constructive Discharge)

Your verdict must be for Plaintiff and against Defendant on Plaintiff's

retaliation claim if all the following elements have been proved by the greater weight

ofthe evidence:

First, Plaintiff complained to Defendant that she was being sexually harassed;

and

Second, Plaintiff reasonably believed that she was being sexually harassed; and

Third, Defendant made Plaintiff's working conditions intolerable, and Fourth ,

Plaintiff's complaint of sexual harassment played a part in Defendant's

actions; and

Fifth, Defendant acted with the intent of forcing Plaintiff to quit or Plaintiff's

resignation was a reasonably foreseeable result of Defendant's actions.

For purposes of this instruction, working conditions are "intolerable" if a

reasonable person in Plaintiff's situation would have deemed resignation the only

reasonable alternative.

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

evidence, your verdict must be for Defendant on the retaliation claim unless you find

for Plaintiff under the First Method as described above.

INSTRUCTION NO. 12

If you find in favor of Plaintiff under Instruction No. 11 (Retaliation Claim),

then you must award Plaintiff such sum as you find by the greater weight of the

evidence will fairly and justly compensate Plaintifffor any damages you find Plaintiff

sustained as a direct result of Defendant's retaliatory actions. Plaintiff's 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 her employment with defendant if she had not been actually

discharged or constructively discharged in January 2002 through the date of your

verdict, minus the amount of earnings and benefits that Plaintiff received from other

employment during that time.

Second, you must determine the amount of any 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.

You are also instructed that 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 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.

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).

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

You may not award damages for loss of wages and fringe benefits, if any,

expected to be suffered after the date of your verdict. If Plaintiff is entitled to such

damages, the court will award them.

If you award Plaintiff an amount of damages for other than lost wages and

benefits on both the sexual harassment claim and the retaliation claim, Plaintiff will

receive the total of those two amounts.

Evidence came in regarding Plaintiffs back injury. Plaintiff does not claim,

and you should not award, any damages associated with Plaintiffs back injury,

including, but not limited to, damages for pain and suffering or medical bills.

INSTRUCTION NO. 14

Your verdict must be agreed to by all eight of you, that is, it must be

unanimous.

INSTRUCTION NO. 15

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 ______________p.m.

DATED this _____ day of 2005.

United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SANDRA NIEMEYER,

Plaintiff,

vs.

CITY OF LINCOLN,

Defendant.

) 4:02CV3359)))) VERDICT FORM))))

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. Sexual Harassment Claim

A. Liability

Note: Complete this Part I.A of the Verdict Form by writing in the name required by your verdict.

On the sexual harassment claim of Plaintiff Sandra Niemeyer againstDefendant City of Lincoln, we find in favor of:

[Plaintiff Sandra Niemeyer] or [Defendant City of Lincoln]

Sandra Niemeyer v. City of Lincoln, Case No. 4:02CV3359Page 2 of Verdict Form

B. Damages

Note: Complete this Part I.B of the Verdict Form only if you have found in favor of Plaintiff on her sexual harassment claim. If your finding was in favor of Defendant on this claim, leave the space below blank and proceed to Part II of the Verdict Form.

On the sexual harassment claim, we find Plaintiffs damages, excluding lost wages and benefits, to be:

$ (stating the amount or, if you find that Plaintiffs damages have no monetary value, set forth the nominal amount of $1.00).

II. Retaliation Claim

A. Liability

Note: Complete this Part II.A of the Verdict Form by writing in the name required by your verdict.

On the retaliation claim of Plaintiff Sandra Niemeyer against Defendant City of Lincoln, we find in favor of:

[Plaintiff Sandra Niemeyer] or [Defendant City of Lincoln]

B. Damages

Note: Complete both sections of this Part Il.B of the Verdict Form only if you have found in favor of Plaintiff on her retaliation claim. If your finding

Sandra Niemeyer v. City of Lincoln, Case No. 4:02CV3359Page 3 of Verdict Form

was in favor of Defendant on this claim, leave the spaces below blank and proceed to Execution of Verdict Form.

1. Lost Wages and Benefits

We find Plaintiff's damages for lost wages and benefits through the date of the verdict to be:

$ (stating the amount or, if none, write the word "none").

2. Other Damages

On the retaliation claim, we find Plaintiff's damages, excluding lost wages and benefits, to be:

$ (stating the amount or, if you find that Plaintiffs damages have no monetary value, set forth the nominal amount of$1.00).

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 , 2005.

FOREPERSON