IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
rn_r::oLI' .S:.., .n..t...i''T't'.I'\'.·,IIr
cL'Jil"t··:TOISTKii"l OF J<U>f(AS'(\
2Dfr; JUL 15 i'f II: 59
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