IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

TRACY DIEHM, ) CASE NO. 8:04CV130)

Plaintiff, ))

vs. ) FINAL JURY INSTRUCTIONS)

CITY OF OMAHA, ))

Defendant. )

INSTRUCTION NO. 1

DUTY

It will be your duty to decide from the evidence whether the plaintiff is entitled to a

verdict against the 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 from

facts established by the evidence. You will then apply those facts to the law which I give

you in these and the other instructions. In that way, you will reach your verdict. You are

the sole judges of the facts; but you must follow the law as stated in my instructions,

whether you agree or disagree with the law stated in the instructions.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be unaffected by anything except the evidence, your common sense, and the law

stated in these and other instructions. If in the course if the instructions I happen to

repeat a principle or rule, it is not because I place more emphasis on that instruction

than on any

other. Rather, each part of these instructions is equally important and should be evaluatedin equal degree with every other portion of these instructions.

INSTRUCTION NO. 2

EVIDENCE

The 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.

Some things are not evidence. Statements, arguments, questions and comments

by lawyers are not evidence.

Objections are not evidence. Lawyers have an obligation to their clients to object

when they believe that the evidence being offered is improper under the rules of

evidence. You should not be influenced by the lawyer’s objection or by my ruling on it. 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 any ruling I make. Finally, if I instruct you that some item of

evidence is received for a limited purpose only, you must follow that instruction. Pay

particularly close attention to this sort of limiting instruction, because it may not be

available to you in writing later in the jury room.

Testimony that I strike from the record or tell you to disregard is not evidence and

must not be considered.

Anything you see or hear about this case outside this courtroom is not evidence

and must be disregarded.

Finally, some of you may have heard the phrases or terms "direct evidence" and

"circumstantial evidence." Direct evidence is direct proof of a fact, such as testimony by

an eye witness. Circumstantial evidence is proof of facts from which you may infer or

conclude that other facts exist. The law makes no distinction between the weight to be

given to either direct or circumstantial evidence. You should give the evidence the

weight that you believe the evidence is entitled to receive.

INSTRUCTION NO. 5

PREPONDERANCE OF EVIDENCE

In 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.

INSTRUCTION NO. 4

REASONABLE INFERENCES

While 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.

INSTRUCTION NO. 5

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses, the judge,

or the lawyers 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, you should pay close attention to the testimony as it

is given.

If you do take notes, please keep them to yourself until you and the other jurors

go to the jury room to decide this case. However, do not let note-taking distract you to

the point that you miss hearing other testimony from the witness.

Remember that your notes are not evidence. Your notes should be used only as

aids to your memory. You should not give your notes precedence over your independent

recollection of the evidence. You should rely on your own independent recollection of the

proceedings, and you should not be influenced by the notes of other jurors.

During the trial, documents or other physical items may be received into

evidence. You may wish to make notes about the exhibits, especially their description

and number, so that you can refer to those 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. Your notes will be destroyed after the trial is over.

INSTRUCTION NO. 6

JURY QUESTIONS

While 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.

INSTRUCTION NO. 7

BENCH CONFERENCES AND RECESSES

During 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.

INSTRUCTION NO. 8

WITNESSES

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 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 -- not 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

considered

all of the evidence in the case, then you hold greater belief in the accuracy and reliability

of this single witness.

INSTRUCTION NO. 10

EXPERT WITNESS

A witness who has special knowledge, skill, experience, training, or education in a

particular area may testify as an expert in that area. An expert may state opinions in the

witness’s area of expertise and may also state the reasons for those opinions.

You determine what weight, if any, to give to an expert's testimony just as you do

with the testimony of any other witness. You should consider the expert's credibility as a

witness, the witness' qualifications as an expert, including the witness’s education and

experience, the sources of the expert's information, the soundness of the reasons given

for any opinions expressed by the expert, the acceptability of the methods used, and all

the other evidence in the case.

If you decide that the opinion of an expert is not based upon sufficient education

or experience, or if you conclude that the reasons given in support of the opinion are not

sound, or if you conclude that the opinion is outweighed by other evidence including that

of another expert witness, you may disregard the opinion in part or in its entirety.

INSTRUCTION NO. 10

JUDGE’S COMMENTS

In the trial of this case and in my instructions, I in no way attempt to express my

opinion about who should prevail upon the issues submitted to you. You must not

construe any statement, action, or ruling on my part during the trial as an indication of

my opinion about the proper outcome of your verdict. During the course of a trial, I might

occasionally ask questions of a witness to bring out facts not fully covered in the

testimony. Do not assume that I hold any opinion on the matters to which the questions

related.

So regardless of what I may say, I must admonish you that you are the sole

judges of the facts, and your verdict must respond to your own conclusions from the

evidence.

INSTRUCTION NO. 11

DEPOSITION TESTIMONY

During the trial of this case, certain testimony will be presented to you by way of

deposition, consisting of sworn recorded answers to questions asked of the witness in

advance of the trial by one or more of the attorneys for the parties to the case. The

testimony of a witness who, for some reason, cannot be present to testify from the

witness stand may be presented under oath in writing or by video. Such testimony is

entitled to the same consideration, and is to be judged as to credibility, and weighed,

and otherwise considered by the jury, insofar as possible, in the same way as if the

witness had been present, and had testified from the witness stand.

INSTRUCTION NO. 12

CONDUCT OF THE JURY

To insure fairness, jurors are asked to obey the following rules:

First, 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.

Second, 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.

Third, during this trial when you are outside this courtroom, do not listen to or let

anyone try to tell you anything about this case. Do not let anyone 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.

Fourth, during the trial you should not talk with or speak to any of the parties,

lawyers or witnesses involved in this case, which means that you should not even pass

the time of day with any of them. 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 an 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, do not think he or she is being rude. Those persons are not supposed to talk or

visit with you, either.

Fifth, 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

anyone involved with this case, or listen to any radio or television reports about the case

or about anyone involved with it. In fact, until the trial is over you should probably avoid

INSTRUCTION NO. 13reading any newspapers or news journals, and avoid listening to any TV or radio

newscasts. There might not be any news reports of this case, but, if there are, you might

find yourself inadvertently reading or listening to something before you realize what you

are doing.

Sixth, do not do any research or make any investigation on your own concerning

this case. Do not use or refer to a dictionary or any law books concerning any aspect of

this case, including any evidence introduced. Do not visit the scene of any incident that

may have been mentioned in this case.

Seventh, do not form an opinion about 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. Consequently, 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.

Finally, do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. And do not make any inferences which are not

supported by the evidence.

INSTRUCTION NO. 13

OUTLINE OF TRIAL

The 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.

INSTRUCTION NO. 14

STATEMENT OF THE CASE

In this case, the plaintiff has filed a lawsuit against the defendant claiming

employment discrimination. According to the plaintiff, the defendant hired her as a

probationary police recruit in one of defendant’s police recruiting classes. Plaintiff claims

that, during one of her training exercises, she dislocated her shoulder and ultimately

required surgery. As a result of this incident, plaintiff claims that the defendant refused

to allow her to continue to participate in the recruiting class and terminated her.

According to the plaintiff, after surgery and rehabilitation of her shoulder, her

orthopaedic surgeon released her to return to the Omaha Police recruiting class.

Plaintiff claims that she reapplied and ultimately the Omaha Police Chief determined

that she should not be allowed to return as a recruit because of her shoulder injury.

The plaintiff claims that injured male recruits are treated differently than injured

female recruits. Plaintiff alleges that defendant decided: (1) not to allow her to continue

to participate in the recruiting class after she injured her shoulder and (2) not to allow her

to return as a recruit after her surgeon released her to return to the recruiting class

because she is a female. Plaintiff claims that she has suffered damages as a result of

the defendant’s actions. Defendant denies these allegations.

INSTRUCTION NO. 15

UNCONTROVERTED FACTS

1. Plaintiff, Tracy Kuehn-Diehm, is a white female and a resident of Gretna,

Sarpy County, Nebraska. Defendant, City of Omaha, is a political subdivision within the

State of Nebraska.

2. On April 26, 2002, plaintiff was advised that she received an 81% on her

written examination while applying for the position of police officer for the City of Omaha

and was invited to take the physical agility test, which she ultimately passed.

3. That following plaintiff’s passing of the agility test, she completed the

examination which qualified her for placement on an eligibility list following a multiple

choice test, structured review, and writing skills test; wherein she obtained a final score

of 85.63, which ranked her 45th out of 287 on the eligibility list.

4. That on August 19, 2002, plaintiff was asked to undergo a pre-placement low-

back screen/risk analysis, performed by Excel Physical Therapy.

5. That the pre-placement low-back screen/risk analysis performed by Excel

Physical Therapy on plaintiff on August 19, 2002, was at the direction of the defendant

to determine a police candidate’s physical fitness for duty.

6. That the pre-placement low-back screen/risk analysis was performed on all

probationary police officers and plaintiff passed the test on August 19, 2002.

7. That at the time of plaintiff’s testing on August 19, 2002, Excel was provided

with a description of the physical demands of a police officer.

8. That Excel opined on August 19, 2002, that plaintiff appeared capable of

safely performing the essential physical demands of the position.

9. That Dr. James Mayer is a doctor employed with Comp Choice which in turn

performs medical assessments on behalf of the City of Omaha for prospective police

officers and following a medical examination of plaintiff on August 19, 2002, he opined:

“I feel the patient is fit for duty without restrictions.”

10. That on September 6, 2002, plaintiff was advised that she had been selected

for employment with the City of Omaha as a probationary police officer commencing

September 23, 2002.

11. That prior to commencing employment as a probationary police officer,

plaintiff provided Paul Murphy, the defendant’s Benefits and Compensation Manager,

with a response to his request for a letter outlining in more detail her past medical

history, which included the discussion of the dislocation of her left shoulder on two

occasions.

12. Plaintiff was employed with the City of Omaha, Nebraska, as Omaha Police

recruit from September 23, 2002 to October 8, 2002.

13. That plaintiff received $631.92 a week as a probationary police recruit and

the value of her fringe benefits totaled $350.96 per month.

14. On October 2, 2002, plaintiff was injured in a training exercise with another

recruit at the Omaha Police Training Academy. Plaintiff dislocated her shoulder while

boxing with another female recruit. Plaintiff was transported to a local hospital and

received treatment in the emergency room.

15. That on October 4, 2002, Dr. Hutton released plaintiff to return back to

sedentary work.

16. On October 8, 2002, Police Chief Donald Carey terminated plaintiff’s

employment with the City of Omaha.

17. That Henry McWilliams, a male police recruit also sustained injury during the

course of his participation in the boxing exercise on October 2, 2002.

18. Plaintiff’s doctor recommended surgery to repair plaintiff’s shoulder injury

which was performed on October 25, 2002.

19. That following the plaintiff’s surgery and post operative recovery, the

defendant received a medical questionnaire from plaintiff’s treating surgeon, releasing

plaintiff to return to her job duties as a police officer or train within the police academy

following her post-operative recovery from her most recent surgical intervention for her

work-related injuries.

20. That plaintiff underwent a pre-placement low-back screen/risk analysis on

October 23, 2003, at which time Excel was provided with a description of the physical

demands of a police officer and following the time of the testing, Excel opined that

plaintiff appeared capable of safely performing the essential physical demands of the

position and scored above average in strength, flexibility and lifting technique.

21. On December 26, 2003, plaintiff was advised by the defendant that her

conditional offer of employment was withdrawn.

INSTRUCTION NO. 16

PLAINTIFF’S DISCRIMINATION CLAIM

The plaintiff claims that the defendant violated Title VII of the Civil Rights Act of

1964 which makes it unlawful for an employer to discriminate against an employee on

the basis of sex. The plaintiff’s Title VII claim is based on a disparate treatment

theory of discrimination.

The discrimination theory known as “disparate treatment” is the most easily

understood type of discrimination. The employer simply treats some employees less

favorably than others on the basis of some unlawful criterion. An employer’s

discriminatory motive or intention is required to be proved.

The plaintiff claims that she was terminated and never rehired because of her sex

in violation of Title VII. The defendant denies that it purposely discriminated against the

plaintiff and that its employment decisions were based on the plaintiff’s sex.

INSTRUCTION NO. 17

ELEMENTS - TERMINATION

Plaintiff makes two claims of sex discrimination. One, that, after she injured her

shoulder, defendant decided to terminate her because she is a female. Two, that, after

plaintiff’s recovery from her injury, defendant decided not to rehire her because she is a

female.

With respect to plaintiff’s claim that defendant decided to terminate her because

she is a female, your verdict must be for plaintiff if all the following elements have been

proved by a preponderance of the evidence:

First, defendant terminated plaintiff; and

Second, plaintiff’s sex played a part or role in defendant’s decision.

If either of the above elements has not been proved by a preponderance of the

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

considering this claim. You may find that plaintiff’s sex played a part or role in

defendant’s decision to terminate her if it has been proved by a preponderance of the

evidence that defendant’s stated reason for its decision to terminate the plaintiff is a

pretext to hide sex discrimination.

INSTRUCTION NO. 18

ELEMENTS - FAILURE TO REHIRE

With respect to plaintiff’s claim that defendant decided not to rehire her because

she is a female, your verdict must be for plaintiff if all the following elements have been

proved by a preponderance of the evidence:

First, defendant did not rehire plaintiff; and

Second, plaintiff’s sex played a part or role in defendant’s decision.

If either of the above elements has not been proved by a preponderance of the

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

considering this claim. You may find that plaintiff’s sex played a part or role in

defendant’s decision not to rehire her if it has been proved by a preponderance of the

evidence that defendant’s stated reason for its decision not to rehire the plaintiff is a

pretext to hide sex discrimination.

INSTRUCTION No. 19

AGENCY

The City of Omaha acts only through its agents or employees and any agent or

employee of the City may bind the City by acts and statements made while acting within

the scope of authority delegated to the agent by the City or within the scope of the

agent’s duties as an employee of the City.

INSTRUCTION NO. 20

DEFINITION OF “MOTIVATING FACTOR”

As used in these instructions, the plaintiff’s sex was a "motivating factor" if the

plaintiff’s sex played a part in the defendant’s decisions to terminate her or not rehire her.

However, the plaintiff’s sex need not have been the only reason(s) for the defendant’s

decisions to terminate her and not rehire her.

INSTRUCTION NO. 21

PRETEXT

You may find that the plaintiff's sex was a motivating factor in the defendant's

decision to terminate and not rehire the plaintiff if it has been proved by the greater

weight of the evidence that the defendant's stated reasons for its decisions are not the

true reasons, but are a "pretext" to hide sex discrimination.

INSTRUCTION NO. 22

BUSINESS JUDGMENT

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

the defendant’s personnel actions or believe them to be harsh or unreasonable. An

employer is entitled to make its own subjective personnel decisions and can terminate an

employee and refuse to rehire an employee for any reason that is not discriminatory. It is

not unlawful for an employer to terminate an employee or refuse to rehire an employee

where the decision is based on lawful factors other than sex.

INSTRUCTION NO. 23

SAME DECISION - TERMINATION

If you find in favor of the plaintiff under Instruction No. 17, then you must answer

the following question in the verdict form: Has the defendant proved by the

preponderance of the evidence that it would have terminated the plaintiff regardless of

her sex?

INSTRUCTION NO. 24

SAME DECISION - FAILURE TO REHIRE

If you find in favor of the plaintiff under Instruction No. 18, then you must answer

the following question in the verdict form: Has the defendant proved by the

preponderance of the evidence that it would have not rehired the plaintiff regardless of

her sex?

INSTRUCTION NO. 25

ACTUAL DAMAGES - TERMINATION

If you find in favor of the plaintiff under Instruction No. 17 and if you answer "no" in

response to Instruction No. 23, then you must award the plaintiff such sum as you find by

the preponderance of the evidence will fairly and justly compensate plaintiff for any

damages you find the plaintiff sustained as a direct result of the defendant's decision to

terminate the plaintiff. 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 the plaintiff would have earned

in her employment with defendant if she had not been terminated on October 8, 2002,

through the day 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, such as emotional distress, inconvenience or mental anguish. 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 preponderance of the evidence that plaintiff

failed to seek out or take advantage of an opportunity demonstrated by the defendant

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 sympathy.

INSTRUCTION NO. 26

NOMINAL DAMAGES - TERMINATION

If you find in favor of the plaintiff under Instruction No. 17 and if you answer "no" in

response to Instruction No. 23, 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).

INSTRUCTION NO. 27INSTRUCTION NO. 27

ACTUAL DAMAGES - FAILURE TO REHIRE

If you find in favor of the plaintiff under Instruction No. 18 and if you answer "no" in

response to Instruction No. 24, then you must award the plaintiff such sum as you find by

the preponderance of the evidence will fairly and justly compensate plaintiff for any

damages you find the plaintiff sustained as a direct result of the defendant's decision not

to rehire the plaintiff. 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 the plaintiff would have earned

if she had been rehired on December 26, 2003, through the date of your verdict.

Second, you must determine the amount of any other damages sustained by the

plaintiff, such as emotional distress, inconvenience or mental anguish. 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 preponderance of the evidence that plaintiff

failed to seek out or take advantage of an opportunity demonstrated by the defendant

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 sympathy.

INSTRUCTION NO. 28

NOMINAL DAMAGES - FAILURE TO REHIRE

If you find in favor of the plaintiff under Instruction No. 18 and if you answer "no" in

response to Instruction No. 24, 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).

INSTRUCTION NO. 29INSTRUCTION NO. 29

DELIBERATIONS AND VERDICT

In conducting your deliberations and returning your verdict, there are certain rules

you must follow. I shall list those rules for you now.

First, when you retire to the jury room, first select one of your number to be

foreperson to preside over your discussions and to 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 because a verdict -- whether liable or not liable

-- should 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.

Third, you will take with you when you retire for your deliberations an official

verdict form on which you will indicate a verdict. Please follow the directions carefully

when filling it out.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the courtroom deputy, signed by one or more jurors. I will

respond as soon as possible either in writing or orally in open court. Your answer may not

come immediately because I may need to assemble the attorneys and confer with them

before I respond. Remember that you should not tell anyone -- including me -- how your

votes stand numerically.

Fifth, do not be concerned with the wisdom of any rule of law that the Court states.

Regardless of any opinion you may have about what the law ought to be, it would violate

your sworn duty to base a verdict upon a view of the law different from the one given in

these instructions, just as it would violate your sworn duty as judges of the facts to base a

verdict upon anything but the evidence in the case and the reasonable inferences arising

from such evidence.

Finally, when you arrive at your verdict and the form of verdict has been completed,

you will have concluded your task. Notify my chambers and I will receive your verdict

promptly. If you do not agree on a verdict by 5:00 this evening, you may separate and

return for further deliberations at 9:00 Monday morning. You may separate for meals

whenever you choose. If you decide to separate, please contact the courtroom deputy 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, remember that you are not allowed to discuss this case with

anyone, even another juror.