ORDER

LEE H. ROSENTHAL, District Judge.

The attached Court's Instructions to the Jury at Conclusion of Trial was charged to the jury on even date and is to be entered in the record.

JURY INSTRUCTIONS

MEMBERS OF THE JURY:

You have heard the evidence in this case. I will now instruct you on the law that you must apply. It is your duty to follow the law as I give it to you. On the other hand, you the jury are the judges of the facts. Do not consider any statement that I have made in the course of trial or make in these instructions as an indication that I have any opinion about the facts of this case.

After I instruct you on the law, the attorneys will have an opportunity to make their closing arguments. Statements and arguments of the attorneys are not evidence and are not instructions on the law. They are intended only to assist the jury in understanding the evidence and the parties' contentions.

In the verdict form that I will explain in a moment, you will be asked to answer some questions about the factual issues in this case. Answer each question from the facts as you find them. Do not decide who you think should win and then answer the questions accordingly. Your answers and your verdict must be unanimous.

You must answer all questions from a preponderance of the evidence. By this is meant the greater weight and degree of credible evidence before you. In other words, a preponderance of the evidence means the amount of evidence that persuades you that a claim is more likely so than not so. In determining whether any fact has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.

In determining the weight to give to the testimony of a witness, you should ask yourself whether there was evidence tending to prove that the witness testified falsely concerning some important fact, or whether there was evidence that at some other time the witness said or did something, or failed to say or do something, that was different from the testimony the witness gave before you during the trial. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people may forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether that misstatement was an intentional falsehood or simply an innocent lapse of memory; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail. The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses may have testified to the contrary, if after considering all the other evidence you believe that single witness.

While you should consider only the evidence in this 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 that reason and common sense lead you to draw from the facts that have been established by the testimony and evidence in the case.

There are two types of evidence that you may consider in properly finding the truth as to the facts in the case. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence, the proof of a chain of circumstances that indicates the existence or nonexistence of certain other facts. As a general rule, the law makes no distinction between direct and circumstantial evidence but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial.

Any notes that you have taken during this trial are only aids to memory. If your memory should differ from your notes, then you should rely on your memory and not on the notes. The notes are not evidence. A juror who has not taken notes should rely on his or her independent recollection of the evidence and should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror about the testimony.

This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. A corporation and an individual are equal before the law and must be treated as equals in a court of justice. Do not let bias, prejudice, or sympathy play any part in your deliberations. Our system of law does not permit jurors to be governed by bias, prejudice, sympathy, or public opinion. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the court, and reach a just verdict regardless of the consequences.

NATURE OF THE CASE

Heather Robertson alleges that as an employee of National Smart Healthcare Services, Inc. (NSHC), she was discriminated against on the basis of her race and retaliated against for complaining about the discrimination. She alleges that her employment was terminated because of discrimination and retaliation. NSHC denies her claims. It contends that Ms. Robertson's employment was terminated because she performed her work poorly, refused to follow her supervisors' instructions, and had conflicts with the company's chief executive officer.

INSTRUCTIONS ON JURY QUESTION NO. 1

You are asked in Jury Question No. 1 whether you find by a preponderance of the evidence that Heather Robertson's race was a motivating factor in NSHC's decision to fire her. You are instructed that it is unlawful for an employer to discriminate against an employee because of the employee's race. To prove unlawful discrimination in her job termination, Ms. Robertson must prove by a preponderance of the evidence that a motivating factor in the decision by her former employer, NSHC, to fire her was her race. Ms. Robertson does not have to prove that unlawful racial discrimination was the only reason she was fired. If you disbelieve the reasons NSHC has given for its decision to fire Ms. Robertson, you may, but are not required to, infer that NSHC's decision to fire Ms. Robertson was motivated by her race.

INSTRUCTIONS ON JURY QUESTION NO. 2

If you have answered Jury Question No. 1 "Yes," you must answer Jury Question No. 2. This questions asks whether, if you find that Ms. Robertson has proven by a preponderance of the evidence that her race was a motivating factor in NSHC's decision to fire her, even if other considerations were factors in the decision, then you must determine whether NSHC has proven by a preponderance of the evidence that it would have made the same decision even if it had not considered Ms. Robertson's race.

INSTRUCTIONS ON JURY QUESTION NO. 3

You are asked in Jury Question No. 3 whether Ms. Robertson has proven by a preponderance of the evidence that NSHC's decision to fire her would not have been made but for her complaints about racial discrimination. You are instructed that federal law makes it unlawful for an employer to retaliate against an employee for complaining about or reporting discrimination in the workplace.

To prove unlawful retaliation, Ms. Robertson must prove by a preponderance of the evidence that NSHC's decision to fire her would not have been made but for the complaints she made about racial discrimination at NSHC. Ms. Robertson does not have to prove that unlawful retaliation was the only reason that NSHC fired her. If you disbelieve the reasons NSHC has given for its decision to fire Ms. Robertson, you may, but are not required to, infer that NSHC's decision to fire Ms. Robertson would not have occurred but for the complaints she made about racial discrimination at NSHC.

If you answer Jury Question No. 1 "Yes" and Jury Question No. 2 "No," or you answer Jury Question No. 3 "Yes," you must answer the following questions, which ask about damages. You should not interpret the fact that I am giving instructions about damages as an indication in any way that I believe that Ms. Robertson should, or should not, win this case. It is your task first to decide whether NSHC is liable. I am instructing you on damages so that you will have guidance in the event you decide that NSHC is liable and that Ms. Robertson is entitled to recover money from NSHC.

INSTRUCTIONS ON JURY QUESTION NO. 4

If you find that NSHC is liable to Ms. Robertson, then you must determine an amount that is fair compensation for her damages. These damages are called compensatory damages. The purpose of compensatory damages is to make the plaintiff whole—that is, to compensate the plaintiffs for the damage they suffered because of the alleged discrimination or retaliation, if any. You may award compensatory damages only for injuries that Ms. Robertson proves by a preponderance of the evidence were proximately caused by NSHC's allegedly wrongful conduct. The damages that you award must be fair compensation for all of Ms. Robertson's damages, no more and no less. Compensatory damages are not allowed as a punishment and cannot be imposed or increased to penalize the defendant. You should not award compensatory damages for speculative injuries, but only for those injuries Ms. Robertson actually suffered.

If you decide to award compensatory damages, you should be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require that the plaintiff proves the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit. You must use sound discretion in fixing an award of damages, drawing reasonable inferences where you find them appropriate from the facts and circumstances in evidence.

You are asked in Jury Question No. 4 what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Ms. Robertson for her damages, if any, that were proximately caused by NSHC's discrimination or retaliation, if any you have found. Do not add any amount for interest. You should consider the following elements of damages, and no others:

INSTRUCTIONS ON JURY QUESTION NO. 5

If you find that NSHC is liable to Ms. Robertson, you must award the plaintiff the compensatory damages that she has proven. You also may award punitive damages if Ms. Robertson has proved that NSHC acted with malice or willfulness or with callous and reckless indifference to the rights of others. One acts willfully or with reckless indifference to the rights of others when he acts in disregard of a high and excessive degree of danger about which he knows or which would be apparent to a reasonable person in his condition.

You are asked in Jury Question No. 5 whether and in what amount to award punitive damages. If you determine that NSHC's conduct was so shocking and offensive as to justify an award of punitive damages, you may exercise your discretion to award those damages. In making an award of punitive damages, you should consider that the purpose of punitive damages is to punish a defendant for shocking conduct, and to deter the defendant and others from engaging in similar conduct in the future. The law does not require you to award punitive damages. If you do decide to award punitive damages, you must use sound reason in setting the amount of the damages. The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party. It is presumed a plaintiff has been made whole by compensatory damages, so punitive damages should be awarded only if the defendant's misconduct, after having paid compensatory damages, is so reprehensible as to warrant imposing further sanctions to achieve punishment or deterrence. You may consider the financial resources of NSHC in fixing the amount of punitive damages.

THE VERDICT

On retiring to the jury room, you should select one of your number as your foreperson, who will preside over your deliberations and will speak for you here in the courtroom. Your verdict must represent the considered judgment of each juror. To return a verdict, it is necessary that each juror agree. In other words, your verdict must be unanimous.

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of all the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Remember at all times 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.

A verdict form has been prepared for your convenience. You will take the verdict form to the jury room, and when you have reached an agreement as to your unanimous verdict, you will have your foreperson fill it in and date and sign it, and then return to the courtroom.

If during your deliberations you want to communicate with me, please reduce your message or question to writing signed by the foreperson and pass the note to the marshal who will bring it to my attention. I will respond as promptly as possible, either in writing or by having you return to the courtroom, so that I can address you orally. I caution you, however, that in any message or question you might send, you should never state or specify your numerical division at that time.