**FEDERAL CIVIL**

**JURY INSTRUCTIONS**

**OF THE**

**SEVENTH CIRCUIT**

**\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Prepared By**

**The Committee on Pattern Civil Jury Instructions**

**of the Seventh Circuit**

**TABLE OF CONTENTS**

**[Introduction 1]{.smallcaps}**

**[1. General Instructions]{.smallcaps} 4**

> *General Cautionary Instructions*
>
> 1.01 General: Functions of the Court and Jury 5
>
> 1.02 No Inference From Judge=s Questions 6
>
> 1.03 All Litigants Equal Before the Law 7
>
> *What Is and What Is Not Evidence*
>
> 1.04 Evidence 8
>
> 1.05 Deposition Testimony 9
>
> 1.06 What is Not Evidence 10
>
> 1.07 Note-Taking 12
>
> *Weighing and Considering the Evidence*
>
> 1.08 Consideration of All Evidence Regardless of Who Produced 13
>
> 1.09 Limited Purpose of Evidence 14
>
> 1.10 Evidence Limited to Certain Parties 15
>
> 1.11 Weighing the Evidence 16
>
> 1.12 Definition of ADirect@ and ACircumstantial@ Evidence 17
>
> *Witness Testimony*
>
> 1.13 Testimony of Witness: Deciding What to Believe 18
>
> 1.14 Prior Inconsistent Statements \[or Acts\] 19
>
> 1.15 Impeachment of Witness-Convictions 21
>
> 1.16 Lawyer Interviewing Witness 22
>
> 1.17 Number of Witnesses 23
>
> 1.18 Absence of Evidence 24
>
> 1.19 Adverse Inference from Missing Witness 25
>
> 1.20 Spoliation/Destruction of Evidence 27
>
> *Particular Types of Evidence*
>
> 1.21 Expert Witnesses 28
>
> 1.22 Translated Language 29
>
> 1.23 Summaries 30
>
> 1.24 Demonstrative Evidence 31
>
> *Separate Consideration of Multiple Parties*
>
> 1.25 Multiple Claims; Multiple Plaintiffs/Defendants 32
>
> 1.26 Dismissed/Withdrawn Defendant 33
>
> *Burden of Proof*
>
> 1.27 Burden of Proof 34
>
> 1.28 Clear and Convincing Evidence 35
>
> 1.29 Burden for Affirmative Defense/Burden-Shifting Theory 37
>
> *Definition of Elements*
>
> 1.30 Proximate Cause 38
>
> 1.31 No Need to Consider Damages Instruction 39
>
> *Conduct of Deliberations*
>
> 1.32 Selection of Presiding Juror; General Verdict 40
>
> 1.33 Communication with Court 41
>
> 1.34 Disagreement Among Jurors 42

**[2. In-trial Instructions; Limiting Instructions 43]{.smallcaps}**

> 2.01 Cautionary Instruction Before Recess 44
>
> 2.02 In-trial Instruction on News Coverage 45
>
> 2.03 Evidence Admitted Only Against One Party 46
>
> 2.04 Stipulated Testimony 47
>
> 2.05 Stipulations of Fact 48
>
> 2.06 Judicial Notice 49
>
> 2.07 Transcript of Tape Recording 50
>
> 2.08 Deposition as Substantive Evidence 51
>
> 2.09 Use of Interrogatories 52
>
> 2.10 Cross-Examination of Character Witness 53
>
> 2.11. Impeachment by Conviction of Crime 54
>
> 2.12. Summaries of Records as Evidence 55
>
> 2.13. Withdrawal of Claims 56
>
> 2.14. Judge=s Comments to Lawyer 57

**[3. Employment Discrimination: Title VII, Adea 58]{.smallcaps}**

> 3.01 General Employment Discrimination Instructions 59
>
> 3.02 Retaliation 63
>
> 3.03 Pattern or Practice 65
>
> 3.04 Harassment by Co-employee or Third Party 66
>
> 3.05A. Supervisor Harassment with Tangible Employment Action 69
>
> 3.05B Supervisor Harassment with No Tangible Employment Action 72
>
> 3.06 Willfulness: Where Age Discrimination is Alleged 75
>
> 3.07 Cautionary Instruction on Reasonableness of Defendant=s Action 76
>
> 3.08 Disparate Impact 77
>
> 3.09 Damages: General 78
>
> 3.10 Compensatory Damages 79
>
> 3.11 Back Pay 81
>
> 3.12 Mitigation 83
>
> 3.13 Punitive Damages 84

**[4. Employment Discrimination: Americans with Disabilities Act
86]{.smallcaps}**

4.01 Nature of ADA Claim and Defense 87

4.02 Elements of An ADA Claim B Disparate Treatment

> (Non-Accommodation) Cases 88

4.03. Elements of Plaintiff=s Claim B Reasonable Accommodation Cases 89

4.04. Definition of ADisability@ 94

4.05. Definition of AQualified@ 98

4.06. Reasonable Accommodation: General Instruction 100

> 4.07. Reasonable Accommodation: Supplemental Instructions for
>
> Specific Accommodation Issues 102
>
> 4.08. Interactive Process 104
>
> 4.09 Undue Hardship Defense 106
>
> 4.10 Direct Threat Defense 108
>
> 4.11 Damage: Back Pay 109
>
> 4.12 Damages: Mitigation 110
>
> 4.13 Compensatory Damages 111
>
> 4.14 Punitive Damages 112
>
> 4.15. Special Verdict Form 113

**[5. Equal Pay Act 116]{.smallcaps}**

> 5.01 Essential Elements of a Claim 117
>
> 5.02 Substantially Equal 118
>
> 5.03 Equal Skill 119
>
> 5.04 Equal Effort 120
>
> 5.05 Equal Responsibility 121
>
> 5.06 Job Titles 122
>
> 5.07 Rates of Pay 123
>
> 5.08 Comparable Time Periods 124
>
> 5.09 Intent 125
>
> 5.10 Affirmative Defenses 126
>
> 5.11 Damages 127
>
> 5.12 Willfulness 128

**[6. Public Employees and Prisoner Retaliation 129]{.smallcaps}**

> 6.01 Public Employee=s First Amendment Retaliation Claims 130
>
> 6.02 Prisoner=s Right of Access Retaliation Claim 132

6.03 Damages 133

**[7. Constitutional Torts: 42 U.S.C.]{.smallcaps} \'[1983
134]{.smallcaps}**

> 7.01 General: Police Department/Municipality Not a Party 135
>
> 7.02 General: Requirement of Personal Involvement 136
>
> 7.03 General: AColor of Law@ 137
>
> 7.04 Limiting Instruction Concerning Evidence of Statutes,
>
> Administrative Rules, Regulations, and Policies 138
>
> 7.05 Fourth Amendment: False Arrest - Elements 139
>
> 7.06 Fourth Amendment: False Arrest - Definition of AProbable Cause@
> 140
>
> 7.07 Fourth Amendment: False Arrest - Failure to Investigate 142
>
> 7.08 Fourth Amendment/Fourteenth Amendment: Excessive Force Against
>
> Arrestee or Pre-Trial Detainee - Elements 143
>
> 7.09 Fourth Amendment/Fourteenth Amendment: Excessive Force -
>
> Definition of AUnreasonable@ 145
>
> 7.10 Eighth and Fourteenth Amendments: Prison/Jail Conditions of
>
> Confinement - Elements 147
>
> 7.11 Eighth and Fourteenth Amendments: Failure to Protect - Elements
> 148
>
> 7.12 Eighth and Fourteenth Amendments: Failure to Provide Medical
>
> Attention - Elements 150
>
> 7.13 Eighth and Fourteenth Amendments: Failure to Provide Medical
>
> Attention - Definition of ASerious Medical Need@ 151
>
> 7.14 Eighth and Fourteenth Amendments: Conditions of
> Confinement/Failure
>
> to Protect/ Failure to Provide Medical Care - Definition of
>
> ADeliberately Indifferent@ 152
>
> 7.15 Eighth Amendment: Excessive Force Against Convicted Prisoner -
>
> Elements 153
>
> 7.16 Fourth, Eighth, and Fourteenth Amendments: Claim for Failure of
>
> ABystander@ Officer to Intervene - Elements 155
>
> 7.17 Liability of Supervisors: Elements 157
>
> 7.18 Qualified Immunity 158
>
> 7.19 Liability of Municipality 159
>
> 7.20 Liability of Municipality: Definition of AOfficial Policy@ 160
>
> 7.21 Liability of Municipality for Failure to Train: Elements 161
>
> 7.22 Damages: Prefatory Instruction 162
>
> 7.23 Damages: Compensation 163
>
> 7.24 Damages: Punitive 165

**8. [Prisoner]{.smallcaps}=[s Right of Access to Court
167]{.smallcaps}**

> 8.01 Description of Claim 168
>
> 8.02 Denial of Prisoner=s Access to Court 169
>
> 8.03 Damages 171

**[Appendix: Sample Preliminary Instructions 172]{.smallcaps}**

**[Introduction]{.smallcaps}**

The Committee on Federal Civil Jury Instructions for the Seventh Circuit
drafted these proposed pattern jury instructions. The Circuit Council
has approved the publication of these instructions, but has not approved
their content.

These are pattern instructions, no more, no less. No trial judge is
required to use them, and the Committee, while hopeful that they will
provide an effective template in most trials, strongly recommends that
each judge review the instructions to be sure each fits the case on
trial. The Committee hopes this work will ease the burden on trial
counsel in proposing jury instructions and the burden on trial judges in
preparing them. Briefer instruction conferences allow more efficient use
of jurors= time.

The Committee set about its task with two primary goals: 1) to state
accurately the law as understood in this circuit; 2) to help judges
communicate more effectively with juries through the use of simple
language in short declarative sentences in the active voice. We tried to
keep the instructions as brief as possible and avoid instructions on
permissive inferences. The Committee strongly endorses the practice of
providing the jurors with written copies of the instructions as given,
without notations identifying the source of any instruction.

The Committee=s intent was to address the areas of federal law most
frequently covered in jury trials in this circuit C broadly speaking,
employment discrimination and constitutional torts. The Committee
thought it inappropriate to venture instructions on substantive state
law, and urges the user faced with a diversity case to consult the
pattern instructions of the state whose law produces the rule of
decision. Even in diversity cases, though, the Committee recommends use
of the general and in-trial instructions in Chapters 1 and 2 of these
pattern instructions. The Committee chose not to attempt to include
instructions for the less common federal question cases (e.g., FELA,
intellectual property, antitrust) lest completion of the first edition
be delayed. The Committee anticipates including FELA instructions in
subsequent revisions.

The instructions were drafted with the expectation that certain
modifications will be made routinely. The instructions use the
capitalized terms APlaintiff@ and ADefendant@ to refer to the parties;
the Committee recommends that the parties= names be substituted in each
case. The same is true when other descriptive terms are used (i.e.,
Witness, Employer, Supervisor, etc.). The Committee generally has used
masculine pronouns rather than the clumsier his/her, he/she, or him/her
in these instructions to make it easier to scan the text; the user
should exercise special care to make each instruction gender-appropriate
for a particular case. Phrases and sentences that appear in brackets are
alternatives or additions to instructions, to be used when relevant to
the particular case on trial. The introductory instructions in Chapter 1
provide some definitions for terms used in the substantive instructions.

The committee consisted of Chief District Judge Robert L. Miller, Jr.
(N.D. Ind.) (Chair), Circuit Judge Terence T. Evans, District Judge
Jeanne E. Scott (C.D. Ill.), District Judge Matthew F. Kennelly (N.D.
Ill.), District Judge Philip G. Reinhard (N.D. Ill.), Joel Bertocchi
(Mayer, Brown, Rowe & Maw, Chicago), Lory Barsdate Easton (Sidley Austin
Brown & Wood, Chicago), Max W. Hittle (Krieg Devault Alexander &
Capehart, Indianapolis), Iain Johnston (Holland & Knight, Chicago),
Dennis R. McBride (U.S. Equal Employment Opportunity Commission,
Milwaukee), Howard A. Pollack (Godfrey & Kahn, Milwaukee), Richard H.
Schnadig and Michael Cleveland (Vedder Price Kaufman & Kammholz,
Chicago), Thomas Walsh (US Attorney=s Office, Chicago), and Don Zoufal
(City of Chicago). The reporter was Andrew R. Klein, Associate Dean for
Academic Affairs and Paul E. Beam Professor of Law at Indiana University
School of Law - Indianapolis.

Several subcommittees provided enormous assistance to the Committee
through work in discrete areas. Without the work of those attorneys, the
Committee=s work would have taken far longer. The Committee and all
users of these pattern instructions owe a large debt of gratitude to the
members of those subcommittees who did not also serve on the Committee:
Magistrate Judge Sidney Schenkier, Mr. James P. Baker, Ms. Sharon
Baldwin, Mr. James P. Chapman, Ms. Sally Elson, Mr. William Hooks, Ms.
Mary Lee Leahy, Mr. Patrick J. Londrigan, Ms. Karen McNaught, Ms.
Patricia Mendoza, Mr. Paul W. Mollica, Mr. John Ouska, Mr. Thomas
Peters, Mr. L. Steven Platt, Mr. Joseph Polick, and Mr. Ronald Stearney.

The Committee also thanks the law firms that hosted the Committee=s
working sessions C Mayer, Brown, Rowe & Maw; Sidley Austin Brown & Wood;
Vedder Price Kaufman & Kammholz; and Holland & Knight. Their hospitality
allowed the Committee to use its meeting time as efficiently as
possible.

The Committee also wishes to thank the judges, attorneys, and
organizations that offered comments on the draft the Committee caused to
be posted on the Internet. Those people and organizations include
attorneys Terrill Albright (Indianapolis, IN), Dmitry Feofanov (Dixon,
IL), Mara Georges (City of Chicago Corporation Counsel), William Goren
(Naperville, IL), Deborah Hamilton (Chicago, IL), John Hamilton (South
Bend, IN), Thomas Hurka (Chicago, IL), John Maley (Indianapolis, IN),
Gordon Waldron (Chicago, IL), Jeffrey Wrage (Valparaiso, IN); District
Judges Milton Shadur, John Grady, and Barbara Crabb, Magistrate Judge
Nan Nolan; the Chicago Lawyers= Committee for Civil Rights Under the
Law, the Illinois State Bar Association, NELA-Illinois (National
Employment Lawyers Association), Northwest Suburban NOW (National
Organization for Women), the pro se law clerks of the United States
District Court for the Northern District of Indiana, and Seyfarth Shaw
LLP. Every comment triggered discussion and re-evaluation; many comments
produced change. We deeply appreciate the time and thought those people
and organizations contributed to the Committee=s work.

Finally, the Committee offers its thanks to Chief Judge Joel M. Flaum,
who initiated this project and gave the Committee members the privilege
of making this contribution to the handling of civil trials in this
circuit. The Committee will continue its work, regularly modifying the
instructions and comments as made necessary by evolving case law, and
expanding the topics covered by this work. We are grateful to Chief
Judge Flaum for this continuing honor of serving.

**1. GENERAL INSTRUCTIONS**

**1.01 FUNCTIONS OF THE COURT AND THE JURY**

Members of the jury, you have seen and heard all the evidence and
arguments of the attorneys. Now I will instruct you on the law.

You have two duties as a jury. Your first duty is to decide the facts
from the evidence in the case. This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts. You
must follow these instructions, even if you disagree with them. Each of
the instructions is important, and you must follow all of them.

Perform these duties fairly and impartially. \[Do not allow
\[sympathy/prejudice /fear/public opinion\] to influence you.\] \[You
should not be influenced by any person=s race, color, religion, national
ancestry, or sex.\]

Nothing I say now, and nothing I said or did during the trial, is meant
to indicate any opinion on my part about what the facts are or about
what your verdict should be.

**Committee Comments**

The bracketed material in the fourth paragraph should not be given
unless a party has a legitimate concern about the possibility of
influence by one or more of these factors. The Committee does not
recommend that these issues be addressed routinely in every case. The
list of improper factors in the last sentence of the fourth paragraph is
not intended to be exclusive, and may be modified to reflect the
circumstances of a particular case.

**1.02 NO INFERENCE FROM JUDGE=S QUESTIONS**

During this trial, I have asked a witness a question myself. Do not
assume that because I asked questions I hold any opinion on the matters
I asked about, or on what the outcome of the case should be.

**Committee Comments**

A trial judge, of course, may interrogate witnesses. [Fed. R.
Evid.]{.smallcaps} 614(b); *see* *Ross v. Black & Decker, Inc.,* 977
F.2d 1178, 1187 (7th Cir. 1992) (AA trial judge may not advocate on
behalf of a plaintiff or a defendant, nor may he betray even a hint of
favoritism toward either side. This scrupulous impartiality is not
inconsistent with asking a question of a witness in an effort to make
the testimony crystal clear for the jury. The trial judge need not sit
on the bench like a mummy when his intervention would serve to clarify
an issue for the jurors. The brief, impartial questioning of the witness
by the judge, as the record reflects, to make the witness= testimony
clearer was entirely proper . . ..@); *Beetler v. Sales Affiliates,
Inc.,* 431 F.2d 651, 654 (7th Cir. 1970)(trial judge, in aid of truth
and in furtherance of justice, may question a witness in an impartial
manner) (*citing* *United States v. Miller,* 395 F.2d 116 (7th Cir.
1968)).

An instruction reminding the jury that the judge has not intended to
give any opinion or suggestion as to what the verdict should be may be
helpful. *See United States v. Siegel,* 587 F.2d 721, 726 (5th Cir.
1979) (no interference with right of fair trial where questions asked by
judge, for clarification, were coupled with cautionary instructions to
jury); *United States v. Davis,* 89 F.3d 836 (6th Cir. 1996) (per
curiam, unpublished) (no plain error where judge=s statements were
factually correct and jury was instructed not to consider the judge=s
comments, questions and rulings as evidence); [Eighth Circuit Manual of
Model Civil Jury Instructions]{.smallcaps} 3.02 (2001); *but see United
States v. Tilghman,* 134 F.3d 414, 421 (D.C. Cir. 1998) (AAlthough jury
instructions can cure certain irregularities . . . \[where\] the trial
judge asked questions, objected to by counsel, that could have
influenced the jury=s assessment of the defendant=s veracity, such
interference with jury factfinding cannot be cured by standard jury
instructions.@); *United States v. Hoker*, 483 F.2d 359, 368 (5th Cir.
1973) (ANo amount of boiler plate instructions to the jury B not to draw
any inference as to the judge=s feelings@ can be expected to remedy
extensive and prosecutorial questioning by judge.).

**1.03 ALL LITIGANTS EQUAL BEFORE THE LAW**

In this case \[one/some\] \[of\] the \[defendants/plaintiffs/parties\]
\[is a/are\] corporation\[s\]. All parties are equal before the law. A
corporation is entitled to the same fair consideration that you would
give any individual person.

**Committee Comments**

A court may choose to modify the first and third sentences of this
instruction for other types of litigants.

**1.04 EVIDENCE**

The evidence consists of the testimony of the witnesses \[,\] \[and\]
the exhibits admitted in evidence \[, and stipulation\[s\]\]

\[A stipulation is an agreement between both sides that \[certain facts
are true\] \[that a person would have given certain testimony\].\]

\[I have taken judicial notice of certain facts. You must accept those
facts as proved.\]

**Committee Comments**

Rule 201 of the Federal Rules of Evidence governs judicial notice of
adjudicative facts. Judicial notice may be taken at any stage of the
proceedings, but generally only after the parties have been afforded an
opportunity to be heard on the matter. Rule 201(g) requires the court in
civil cases to Ainstruct the jury to accept as conclusive any fact
judicially noticed.@ It may be advisable to explain the reasoning behind
the taking of judicial notice in a particular instance (such as Amatters
of common knowledge@) if it is thought necessary to reinforce the
command of the instruction. *See* *Shapleigh v. Mier,* 299 U.S. 468, 475
(1937) (ATo say that a court will take judicial notice of a fact,
whether it be an event or a custom or a law of some other government, is
merely another way of saying that the usual forms of evidence will be
dispensed with if knowledge of the fact can otherwise be acquired Y. But
the truth, of course, is that judicial notice and judicial knowledge are
far from being one.@). If the jury has not been informed of the facts
judicially noticed, those facts should be described when this
instruction is given.

**1.05 DEPOSITION TESTIMONY**

During the trial, certain testimony was presented to you by \[the
reading of a deposition/depositions\] \[and video\]. You should give
this testimony the same consideration you would give it had the
witness\[es\] appeared and testified here in court.

**Committee Comments**

*See generally Sandridge v. Salen Offshore Drilling Co.*, 764 F.2d 252,
259 (5th Cir. 1985) (noting that A\[a\] trial court may not properly
instruct a jury that a written deposition is entitled to less weight
than live testimony@ and, by analogy, improper to instruct a jury that a
written deposition is entitled to less weight than a videotaped
deposition); *In re Air Crash Disaster*, 635 F.2d 67, 73 (2d Cir. 1980)
(by implication, approving instruction that deposition testimony Ais
entitled to the same consideration and is to be judged as to credibility
and weighted and otherwise considered by you in the same way as if the
witness has been actually present in court@); *Wright Root Beer Co. v.
Dr. Pepper Co.*, 414 F.2d 887, 889-891 (5th Cir. 1969) (prejudicial and
erroneous to instruct jury that Adiscovery@ depositions are entitled to
less weight than testimony of live witness). The Committee recommends
that Instruction 2.08 also be given at the time the deposition testimony
is presented to the jury.

**1.06 WHAT IS NOT EVIDENCE**

Certain things are not to be considered as evidence. I will list them
for you:

First, if I told you to disregard any testimony or exhibits or struck
any testimony or exhibits from the record, such testimony or exhibits
are not evidence and must not be considered.

Second, anything that you may have seen or heard outside the courtroom
is not evidence and must be entirely disregarded. \[This includes any
press, radio, Internet or television reports you may have seen or heard.
Such reports are not evidence and your verdict must not be influenced in
any way by such publicity.\]

Third, questions and objections or comments by the lawyers are not
evidence. Lawyers have a duty to object when they believe a question is
improper. You should not be influenced by any objection, and you should
not infer from my rulings that I have any view as to how you should
decide the case.

Fourth, the lawyers= opening statements and closing arguments to you are
not evidence. Their purpose is to discuss the issues and the evidence.
If the evidence as you remember it differs from what the lawyers said,
your memory is what counts.

**Committee Comments**

An instruction that arguments, statements and remarks of counsel are not
evidence is helpful in curing potentially improper remarks. *See*
*Mayall v. Peabody Coal Company*, 7 F.3d 570, 573 (7th Cir. 1993);
*Valbut v. Pass*, 866 F.2d 237, 241-242 (7th Cir. 1989).

With regard to publicity, this instruction tracks [Seventh Circuit
Federal Criminal Jury Instructions]{.smallcaps} \' [1.06]{.smallcaps}
(1999), which is in accord with that approved in *United States v.
Coduto*, 284 F.2d 464, 468 (7th Cir. 1961). While the criminal
precedents relating to publicity have their origins in the Sixth
Amendment, *see* *Gentile v. State Bar of Nevada*, 501 U.S. 1030 (1991);
*U.S. v. Thomas*, 463 F.2d 1061, 1063-1064 (7th Cir. 1972), parallel
protection under the Seventh Amendment may be available to civil
litigants. *See* *Gutierrez-Rodrigues v. Cartagena et al.,* 882 F.2d
553, 570 (1st Cir. 1989) (implying that trial publicity can lead to a
mistrial if it interferes with Athe Seventh Amendment right to a civil
trial by an impartial jury.@); *see generally* *Haley v. Blue Ridge
Transfer Co.,* 802 F.2d 1532, 1535 n.4 (4th Cir. 1986), citing *McCoy v.
Goldston* 652 F.2d 654, 656 (6th Cir. 1981) (AThe right to an impartial
jury in civil cases is inherent in the Seventh Amendment=s preservation
of a \>right to trial by jury= and the Fifth Amendment=s guarantee that
\>no person shall be denied of life, liberty or property without due
process of law.=@); *but cf*. *Chicago Council of Lawyers v. Bauer et
al.,* 522 F.2d 242, 258 (7th Cir. 1975) (in context of restrictions on
attorney comments outside the courtroom in a civil trial, Sixth
Amendment Aimpartial jury@ guarantee requires greater insularity against
unfairness than Seventh Amendment Atrial by jury@ guarantee.).

**1.07 NOTE-TAKING**

Any notes you have taken during this trial are only aids to your memory.
The notes are not evidence. If you have not taken notes, you should rely
on your independent recollection of the evidence and not be unduly
influenced by the notes of other jurors. Notes are not entitled to any
greater weight than the recollections or impressions of each juror about
the testimony.

**Committee Comments**

To the extent note-taking is permitted, a cautionary instruction on
these issues at the commencement of trial would be advisable. *See*
*United States v. Rhodes*, 631 F.2d 43, 46 (5th Cir. 1980). *See also*
[Ninth Circuit Manual of Model Civil Jury Instructions]{.smallcaps} 4.2
(2001); [Fifth Circuit Pattern Jury Instructions (Civil)]{.smallcaps}
2.21 (2004). *Cf. Winters v. United States,* 582 F.2d 1152, 1154 (7th
Cir. 1978) (foreman reading another juror=s notes to jury did not
constitute impermissible extraneous influence on jury).

**1.08 CONSIDERATION OF ALL EVIDENCE**

**REGARDLESS OF WHO PRODUCED**

In determining whether any fact has been proved, you should consider all
of the evidence bearing on the question regardless of who introduced it.

**1.09 LIMITED PURPOSE OF EVIDENCE**

You will recall that during the course of this trial I instructed you
that I admitted certain evidence for a limited purpose. You must
consider this evidence only for the limited purpose for which it was
admitted.

**Committee Comments**

The court should instruct the jury on any limited purpose of evidence at
the time the evidence is presented. That instruction may be in the
following form: AThe \[following\] \[preceding\] evidence concerning
\[*describe evidence*\] is to be considered by you \[*describe
purpose*\] only and for no other purpose.@

*See Berry v. Deloney,* 28 F.3d 604, 608 (7th Cir. 1994) (in \'1983 suit
against truant officer with whom student plaintiff had sexual
relationship, limiting instruction on evidence, offered solely for
purpose of determining damages, of plaintiff=s other sexual activity
Adispelled any potential prejudice against the plaintiff@); *see also
Miller v. Chicago & N.W. Transport. Co.,* 925 F. Supp. 583, 588 (N.D.
Ill. 1996) (in FELA case, adopting limiting instruction regarding
evidence of regulatory standards suggesting noise level guidelines where
standards were not binding on the defendant).

If practicable, the court may wish to remind the jury of the specific
evidence so admitted and the specific purpose for which it was admitted.

**1.10 EVIDENCE LIMITED TO CERTAIN PARTIES**

Each party is entitled to have the case decided solely on the evidence
that applies to that party. You must consider the evidence concerning
\[*describe evidence if practicable*\] only in the case against
\[P*arty*\]. You must not consider it against any other party.

**Committee Comments**

*See* [Fed. R. Evid.]{.smallcaps} 105; [Ninth Circuit Manual of Model
Civil Jury Instructions]{.smallcaps} 3.11 (2001); [Eighth Circuit Manual
of Model Civil Jury Instructions]{.smallcaps} 2.08A (2001); *United
States v. Cochran*, 955 F.2d 1116, 1120-1121 (7th Cir. 1992) (district
court=s limiting instructions sufficient to Acounter any potential
\>spillover effect= of the evidence@ against co-defendants).

**1.11 WEIGHING THE EVIDENCE**

You should use common sense in weighing the evidence and consider the
evidence in light of your own observations in life.

In our lives, we often look at one fact and conclude from it that
another fact exists. In law we call this Ainference.@ A jury is allowed
to make reasonable inferences. Any inference you make must be reasonable
and must be based on the evidence in the case.

**Committee Comments**

While the term Ainference@ is not used in common parlance, it was
retained here, and defined, as a shorthand in order to avoid the need to
repeat the same point elsewhere in the instructions. This instruction
may not be needed in certain technical types of cases or cases that rely
heavily on expert testimony.

**1.12 DEFINITION OF ADIRECT@**

**AND ACIRCUMSTANTIAL@ EVIDENCE**

You may have heard the phrases Adirect evidence@ and Acircumstantial
evidence.@ Direct evidence is proof that does not require an inference,
such as the testimony of someone who claims to have personal knowledge
of a fact. Circumstantial evidence is proof of a fact, or a series of
facts, that tends to show that some other fact is true.

As an example, [direct evidence]{.underline} that it is raining is
testimony from a the witness who says, AI was outside a minute ago and I
saw it raining.@ [Circumstantial evidence]{.underline} that it is
raining is the observation of someone entering a room carrying a wet
umbrella.

The law makes no distinction between the weight to be given to either
direct or circumstantial evidence. You should decide how much weight to
give to any evidence. In reaching your verdict, you should consider all
the evidence in the case, including the circumstantial evidence.

**Committee Comments**

The phrase Acircumstantial evidence@ is addressed here because of its
use in common parlance and the likelihood that jurors may have heard the
term outside the courtroom.

**1.13 TESTIMONY OF WITNESSES**

**(DECIDING WHAT TO BELIEVE)**

You must decide whether the testimony of each of the witnesses is
truthful and accurate, in part, in whole, or not at all. You also must
decide what weight, if any, you give to the testimony of each witness.

In evaluating the testimony of any witness, \[including any party to the
case,\] you may consider, among other things:

\- the ability and opportunity the witness had to see, hear, or know the
things that the witness testified about;

\- the witness=s memory;

\- any interest, bias, or prejudice the witness may have;

\- the witness=s intelligence;

\- the manner of the witness while testifying;

> \- \[the witness=s age\];

\- and the reasonableness of the witness=s testimony in light of all the
evidence in the case.

**Committee Comments**

The portion of the instruction relating to age should be given only when
a very elderly or a very young witness has testified.

**1.14 PRIOR INCONSISTENT STATEMENTS \[OR ACTS\]**

You may consider statements given by \[*Party*\] \[*Witness under
oath*\] before trial as evidence of the truth of what he said in the
earlier statements, as well as in deciding what weight to give his
testimony.

With respect to other witnesses, the law is different. If you decide
that, before the trial, one of these witnesses made a statement \[not
under oath\] \[or acted in a manner\] that is inconsistent with his
testimony here in court, you may consider the earlier statement \[or
conduct\] only in deciding whether his testimony here in court was true
and what weight to give to his testimony here in court.

\[In considering a prior inconsistent statement\[s\] \[or conduct\], you
should consider whether it was simply an innocent error or an
intentional falsehood and whether it concerns an important fact or an
unimportant detail.\]

**Committee Comments**

a\. **Statements Under Oath and Admissions by Party-Opponents:** Where
prior inconsistent statements have been admitted only for impeachment,
[Fed. R. Evid.]{.smallcaps} 105 gives a party the right to a limiting
instruction explaining that use of the prior inconsistent statement is
limited to credibility. *See* *United States v. Hall*, 109 F.3d 1227,
1237 (7th Cir. 1997) (instruction on impeachment need be given only if
impeachment was reasonably raised by the evidence). A court should not
give such a limiting instruction, however, if the prior inconsistent
statement was Agiven under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding or in a deposition,@ [Fed. R.
Evid.]{.smallcaps} 801(d)(1)(A), or if the prior statement is considered
an admission by a party-opponent under [Fed. R. Evid.]{.smallcaps}
801(d)(2). These statements are not hearsay and may be used to prove the
truth of the matters asserted. This instruction should be adapted to fit
the situation in which the prior inconsistent statements have been
admitted.

b\. **Prior Inconsistent Conduct:** Bracketed material in the second
paragraph regarding inconsistent conduct is used by state courts in
Indiana and Illinois and is consistent with Seventh Circuit standards.
*See* [Illinois Pattern Instructions (Civil)]{.smallcaps} \' 1.01(4)
(2000); [Indiana Pattern Jury Instructions]{.smallcaps}C[Civil
2d]{.smallcaps} 3.05 (2003); *see also* *Molnar v. Booth*, 229 F.3d 593,
604 (7th Cir. 2000) (evidence of prior inconsistent conduct of defendant
in sexual harassment case admissible for impeachment of defendant=s
testimony that he had never asked out a person under his supervision).

c\. **Weighing the Effect of a Discrepancy:** The third paragraph of
this instruction regarding how the jury should weigh the effect of a
discrepancy is based on the general principle that jurors are free to
credit or discredit evidence in light of what they observe at trial and
their own experience. *See* *U.S. v. Boykins*, 9 F.3d 1278, 1286 n.1
(7th Cir. 1993) (approving an instruction which included the following
language: AIn weighing the effect of discrepancy \[in evidence\], always
consider whether it pertains to a matter of importance or an unimportant
detail, and whether the discrepancy results from innocent error or
intentional falsehood.@); *United States v. Baron*, 602 F.2d 1248, 1254
(7th Cir. 1979) (finding no prejudicial error where court did not
instruct that jury may reject all testimony of a witness shown to
testify falsely regarding any material matter where court Atold the
jurors that they could find from inconsistencies in \[the\] testimony
and failures of recollection as well from other facts that \[the\]
testimony was totally unworthy of belief, but that they were not
required to find that he was lying solely on the basis of differences in
recollections over details@); *see also United States v. Monzon*, 869
F.2d 338, 346 (7th Cir. 1989) (disapproving of *falsus in uno, falsus in
omnibus* instruction and upholding 7th Cir. Crim. Instruction; defendant
has right only to instruction that jury should consider inconsistencies
in witness testimony in determining witness credibility).

**1.15 IMPEACHMENT OF WITNESS C CONVICTIONS**

You have heard evidence that \[*Name*\] has been convicted of a crime.
You may consider this evidence only in deciding whether \[*Name=s*\]
testimony is truthful in whole, in part, or not at all. You may not
consider this evidence for any other purpose.

**Committee Comments**

The admissibility of prior convictions to impeach a witness=s
credibility is governed by [Fed. R. Evid.]{.smallcaps} 609. *See*
Committee Comment accompanying [Seventh Circuit Federal Criminal Jury
Instructions]{.smallcaps} \' [3.05 (1999)]{.smallcaps} (AImpeachment -
Defendant - Convictions@); see also *Young v. James Green Management,
Inc.*, 327 F.3d 616, 625-626 (7th Cir. 2003) (suit for wrongful
termination based on race); *Wilson v. Williams*, 182 F.3d 562 (7th Cir.
1999) (en banc) (\'1983 claim against prison guard) ; *Campbell v.
Green*, 831 F.2d 700 (7th Cir. 1987) (\'1983 claim against prison
guards) for use of prior convictions in civil cases.

This instruction differs from the cautionary Instruction 2.11, which
avoids reference to truthfulness while the witness is on the stand.

**1.16 LAWYER INTERVIEWING WITNESS**

It is proper for a lawyer to meet with any witness in preparation for
trial.

**Committee Comments**

This instruction should be given where evidence regarding an attorney=s
meeting with a witness has been the subject of trial testimony.

**1.17 NUMBER OF WITNESSES**

You may find the testimony of one witness or a few witnesses more
persuasive than the testimony of a larger number. You need not accept
the testimony of the larger number of witnesses.

**1.18 ABSENCE OF EVIDENCE**

The law does not require any party to call as a witness every person who
might have knowledge of the facts related to this trial. Similarly, the
law does not require any party to present as exhibits all papers and
things mentioned during this trial.

**Committee Comments**

This language is generally consistent with second sentence of the
[Seventh Circuit Federal Criminal Jury Instructions]{.smallcaps} \'
[3.24 (1999).]{.smallcaps}

**1.19 ADVERSE INFERENCE FROM MISSING WITNESS**

\[*Witness*\] was mentioned at trial but did not testify. You may, but
are not required to, assume that \[*Witness=s*\] testimony would have
been unfavorable to \[Plaintiff\] \[Defendant\].

**Committee Comments**

This instruction should be given only if there is evidence from which
the jury could find (1) that the missing witness was physically
available only to the party against whom the inference would be drawn,
or (2) that the missing witness has a relationship with that party that
practically renders the testimony unavailable to that party=s adversary.
*Oxman v. WLS-TV*, 12 F.3d 652, 661 (7th Cir. 1993); *Chicago Coll. of
Osteopathic Med. v. George A. Fuller Co.*, 719 F.2d 1335, 1353 (7th Cir.
1983); *see also* *Fey v. Walston & Co.*, 493 F.2d 1036, 1053 (7th Cir.
1974) (where missing witness was beyond subpoena power of defendants and
there was evidence both that missing witness was available to adverse
party and that missing witness=s testimony could have thrown significant
light on crucial question in case, it was error to instruct that jury
may infer missing witness=s testimony would be merely Aof no aid@ rather
than Aadverse@ to non-producing party=s case). Note that the Seventh
Circuit appears to require more than mere Areasonable availability@ of
the witness to the party against whom the adverse inference is
permitted. *Compare* 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig &
Hon. William C. Lee, Federal Jury Practice and Instructions]{.smallcaps}
\' 104.25 (5th ed. 2000) (adverse inference may be applied to missing
witness Awho has knowledge about the facts in issue, and who is
reasonably available to the party, and who is not equally available to
the other party@), *with* *Oxman v. WLS-TV*, 12 F.3d at 661 (complaining
party must establish that missing witness Awas peculiarly in the power
of the other party to produce@).

The court has broad discretion in determining whether to give a missing
witness instruction and in supervising closing arguments to ensure that
counsel does not make reference to matters not in evidence. *Hoffman v.
Caterpillar, Inc.*, 368 F.3d 709, 716-717 (7th Cir. 2004); *cf.*
[Seventh Circuit Federal Criminal Jury Instructions]{.smallcaps} \'
[3.24 (1999)]{.smallcaps} Committee Comment (explaining that trial court
must make advance ruling before missing witness instruction may be given
or inference argued to jury, and noting particular issues with inference
in criminal context). The court may decline a missing witness
instruction, and may refuse argument on the adverse inference, if the
party against whom the inference would be drawn offers a sufficient
explanation for the decision not to call the witness and/or if the
testimony would be unnecessarily duplicative. *Hoffman v. Caterpillar*,
368 F.3d at 716-717. Some authorities (citing decisions from other
circuits) suggest that these questions may be submitted to the jury.
*See* [Leonard B. Sand, John S. Siffert, Walter P. Loughlin, Steven A.
Reiss, Nancy Batterman, Modern Federal Jury Instructions]{.smallcaps},
Form Instruction 75-3 (2004) (AIn deciding whether to draw this
inference, you should consider whether the witness= testimony would
merely have repeated other testimony and evidence already before you.
You may also consider whether the defendant had a reason for not calling
this witness which was explained to your satisfaction.@).

A curative instruction may be appropriate where the issue arises during
closing argument or at some other time in trial and the necessary
prerequisites for an adverse inference have not been established. *See*
[Fifth Circuit Pattern Jury Instructions (Civil)]{.smallcaps} \' 2.9
(2004) (A(Name of Witness) \_\_\_\_ was available to both sides. Thus
\[the plaintiff\] \[the defendant\] cannot complain that (Witness) was
not called to testify, because (Party) could have called (Witness).@).
*See also* Instruction 1.18 on absence of witness and/or evidence (not
all available evidence must be presented).

As to missing or destroyed evidence, see Instruction 1.20.

**1.20 SPOLIATION/DESTRUCTION OF EVIDENCE**

\[*Party*\] contends that \[*Other Party*\] at one time possessed
\[*describe evidence allegedly destroyed*\]. However, \[*Other Party*\]
contends that \[*evidence never existed, evidence was not in its
possession, evidence was not destroyed, loss of evidence was accidental,
etc.*\].

You may assume that such evidence would have been unfavorable to
\[*Other Party*\] only if you find by a preponderance of the evidence
that:

> \(1\) \[*Other Party*\] intentionally \[destroyed the evidence\]
> \[caused the evidence to be destroyed\]; and
>
> \(2\) \[*Other Party*\] \[destroyed the evidence\] \[caused the
> evidence to be destroyed\] in bad faith.

**Committee Comments**

*See Miksis v. Howard*, 106 F.3d 754, 762-763 (7th Cir. 1997) (party
seeking adverse inference must prove that other party intentionally
destroyed evidence in bad faith). The Seventh Circuit Arequires a
showing of an intentional act by the party in possession of the
allegedly lost or destroyed evidence@ to support a missing or destroyed
evidence instruction. *Spesco, Inc. v. General Elec. Co.,* 719 F.2d 233,
239 (7th Cir. 1983); *see also Adkins v. Mid-America Growers, Inc.*, 141
F.R.D. 466, 473 (N.D. Ill. 1992) (AIn cases where evidence has been
intentionally destroyed, it may be presumed that the materials were
relevant.@). If the facts are not in dispute, the court ordinarily will
decide the sanction for an intentional and bad faith spoliation, which
might include an instruction with an inference such as that set forth in
this instruction.

**1.21 EXPERT WITNESSES**

You have heard \[a witness\] \[witnesses\] give opinions about matters
requiring special knowledge or skill. You should judge this testimony in
the same way that you judge the testimony of any other witness. The fact
that such person has given an opinion does not mean that you are
required to accept it. Give the testimony whatever weight you think it
deserves, considering the reasons given for the opinion, the witness=s
qualifications, and all of the other evidence in the case.

**Committee Comments**

*See* [Fed. R. Evid.]{.smallcaps} 602, 701-705. *See generally United
States v. Mansoori*, 304 F.3d 635, 654 (7th Cir. 2002), *cert. denied*
538 U.S. 967, 123 S. Ct. 1761, 155 L.Ed.2d 522 (2003) (approving
instruction to jury that Athe fact an expert has given an opinion does
not mean that it is binding upon you@ and finding no prejudice where
witness testified as both expert and fact witness); *United States v.
Serafino*, 281 F.3d 327, 330-331 (1st Cir. 2002) (court mitigated
Awhatever special aura the jury might otherwise have attached to the
term \>expert=@ by instructing that expert testimony should be
considered just like other testimony); *United States v. Brown*, 7 F.3d
648, 655 (7th Cir. 1993) (recognizing that in close case danger of
unfair prejudice may be heightened by Aaura of special reliability@ of
expert testimony, but concluding that instruction to jury that expert
opinion was not binding and that jury should consider expert opinion in
light of all evidence mitigated any danger of unfair prejudice); *Coal
Resources, Inc. v. Gulf & Western Indus., Inc.*, 865 F.2d 761, 775 (6th
Cir. 1989) (no error in failing to give jury instruction regarding
speculative testimony by expert witness where jury was instructed that
it must decide how much weight and credibility to give to expert
opinion).

**1.22 TRANSLATED LANGUAGE**

You should consider only the evidence provided through the official
interpreter. Although some of you may know \[*language(s) used*\], it is
important that all jurors consider the same evidence. Therefore, you
must base your decision on the evidence presented in the English
translation.

**Committee Comments**

*See* [Ninth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \'\' 2.9, 3.4 (2001).

**1.23 SUMMARIES**

*Stipulated*

The parties agree that \[*describe summary in evidence*\] accurately
summarizes the contents of documents, records, or books. You should
consider these summaries just like all of the other evidence in the
case.

*Not Stipulated*

Certain \[*describe summary in evidence*\] is/are in evidence. \[The
original materials used to prepare those summaries also are in
evidence.\] It is up to you to decide if the summaries are accurate.

**Committee Comments**

*See* [Fed. R. Evid.]{.smallcaps} 1006. *See also United States v.
Stoecker*, 215 F.3d 788, 792 (7th Cir. 2000) (court properly instructed
jury to analyze underlying evidence on which charts were based); *United
States v. Swanquist*, 161 F.3d 1064, 1073 (7th Cir. 1998) (court
instructed jury that summary charts were not evidence and were admitted
simply to aid jurors in evaluating evidence and that it was for jurors
to decide whether evidence supported the summaries); *AMPAT/Midwest Inc.
v. Illinois Tool Works, Inc.*, 896 F.2d 1035, 1045 (7th Cir. 1990)
(where underlying data is admissible, summaries are admissible); *United
States v. Bishop*, 264 F.3d 535, 548 (5th Cir. 2001) (holding the
following instruction sufficient: AYou are to give no greater
consideration to these schedules and summaries than you would give to
the evidence upon which they are based. It is for you to decide the
accuracy of the summary charts.@); *United States v. Diez*, 515 F.2d
892, 905 (5th Cir. 1975) (AThe court should instruct the jury that
summaries do not, of themselves, constitute evidence in the case but
only purport to summarize the documented and detailed evidence already
submitted.@).

ACharts@ or Aschedules@ may be substituted for Asummaries@ in this
instruction. The bracketed language should be used only if there are
both stipulated and disputed summaries in the case.

**1.24 DEMONSTRATIVE EXHIBITS**

Certain \[*describe demonstrative exhibit, e.g., models, diagrams,
devices, sketches*\] have been shown to you. Those \[*short
description*\] are used for convenience and to help explain the facts of
the case. They are not themselves evidence or proof of any facts.

**Committee Comments**

*See* [Fed. R. Evid.]{.smallcaps} 1006; [Fed. R. Evid.]{.smallcaps}
611(a)(1); [Fed. R. Evid.]{.smallcaps} 403; *United States v. Salerno,*
108 F.3d 730, 744 (7th Cir. 1997) (ADemonstrative aids are regularly
used to clarify or illustrate testimony.@).

While there is no requirement that demonstrative evidence be completely
accurate, the jury must be alerted to perceived inaccuracies in the
demonstrative evidence. *See Roland v. Langlois,* 945 F.2d 956, 963 (7th
Cir. 1991) (benefits outweighed danger of unfair prejudice when
plaintiffs introduced inaccurate life-sized model of amusement park ride
in personal injury suit against carnival operator and jury was alerted
to perceived inaccuracies). *See also* [Fed. R. Evid.]{.smallcaps} 403.
Limiting instructions are strongly suggested, and in some cases it may
be better practice to exclude demonstrative evidence from the jury room
in order to reduce the potential for unfair prejudice. *United States v.
Salerno*, 108 F.3d at 745 (holding that prosecution=s scale model of
crime scene was properly allowed to go back to jury room). The court may
advise the jury that demonstrative evidence will not be sent back to the
jury room.

**1.25 MULTIPLE CLAIMS;**

**MULTIPLE PLAINTIFFS/DEFENDANTS**

You must give separate consideration to each claim and each party in
this case. \[Although there are \[*number*\] defendants, it does not
follow that if one is liable, any of the others is also liable.\]
\[Although there are \[*number*\] plaintiffs, it does not follow that if
one is successful, the others are, too.\][^1]

*\[If evidence was admitted only as to fewer than all defendants or all
claims:\]* In considering a claim against a defendant, you must not
consider evidence admitted only against other defendants \[or only as to
other claims\].

**Committee Comments**

The bracketed language in the third sentence should not be used in cases
in which no plaintiff can recover unless all plaintiffs recover. In
addition, the bracketed language in the second sentence of the first
paragraph should not be used or should be modified when principles of
vicarious liability make it inappropriate. *See Watts v. Laurent*, 774
F.2d 168, 175 (7th Cir. 1985) (in context of Civil Rights Act suit in
which each actor will be held jointly and severally liable for a single
indivisible injury, instruction to Adecide each defendant=s case
separately as if it were a separate lawsuit@ in conjunction with
separate verdict forms for each defendant led to ambiguous verdict on
damages award). Where evidence has been admitted as to one party only,
see Instruction No. 1.10.

**1.26 DISMISSED/WITHDRAWN DEFENDANT**

\[*Former Party*\] is no longer a defendant in this case. You should not
consider any claims against \[*Former Party*\]. Do not speculate on the
reasons. You should decide this case as to the remaining parties.

**1.27 BURDEN OF PROOF**

When I say a particular party must prove something by Aa preponderance
of the evidence,@ or when I use the expression Aif you find,@ or Aif you
decide,@ this is what I mean: When you have considered all the evidence
in the case, you must be persuaded that it is more probably true than
not true.

**Committee Comments**

*See In re Winship*, 397 U.S. 358, 371 (1970) (Harlan, J., concurring)
(Apreponderance of the evidence . . . simply requires the trier of fact
to believe that the existence of a fact is more probable than its
nonexistence@); *Crabtree v. Nat=l Steel Corp.*, 261 F.3d 715, 722 (7th
Cir. 2001) (finding explanation of burden of proof sufficient where
judge gave Amore probably true than not true@ definition of
preponderance but failed to state that he was defining Apreponderance of
the evidence,@ even where subsequent instruction referred to
Apreponderance@); *Odekirk v. Sears Roebuck & Co.*, 274 F.2d 441,
445-446 (7th Cir. 1960) (as a general rule, it is better to avoid such
words as Asatisfy,@ Aconvince,@ Aconvincing,@ and Aclear preponderance@
in instruction on general civil burden of proof; nonetheless accepting
instruction that Apreponderance of the evidence@ means Aevidence which
possesses greater weight or convincing power@).

**1.28 CLEAR AND CONVINCING EVIDENCE**

When I say that a particular party must prove something by Aclear and
convincing evidence,@ this is what I mean: When you have considered all
of the evidence, you \[are convinced that it is highly probable that it
is true\] \[have no reasonable doubt that it is true\].

\[This is a higher burden of proof than Amore probably true than not
true.@ Clear and convincing evidence must persuade you that it is
Ahighly probably true.@\]

**Committee Comments**

The meaning of the Aclear and convincing@ standard of proof depends on
the substantive law being applied. In some contexts, the Seventh Circuit
has held that Aclear and convincing evidence@ requires proof which
leaves Ano reasonable doubt@ in the mind of the trier of fact as to the
truth of the proposition. It appears that those cases turn on state law
standards and that, in other contexts, the quantum of proof for Aclear
and convincing evidence@ does not quite approach the degree of proof
necessary to convict a person of a criminal offense. *Compare Parker v.
Sullivan*, 891 F.2d 185, 188 (7th Cir. 1989) (per curiam) (in context of
Illinois law of intestate succession, Aclear and convincing@ evidence is
Athe quantum of proof which leaves no reasonable doubt in the mind of
the trier of fact as to the truth of the proposition in question@) *and
Davis v. Combes*, 294 F.3d 931, 936-937 (7th Cir. 2002) (in context of
Illinois constructive trust law, Aclear and convincing@ requires Ano
reasonable doubt in the mind of the trier of fact as to the truth of the
proposition,@ citing *Parker*) *with Binion v. Chater*, 108 F.3d 780,
783 (7th Cir. 1997) (citing Illinois paternity law and noting spectrum
of degrees of proof, with Aclear and convincing@ still lesser than
Abeyond a reasonable doubt@ and requiring that proposition be Ahighly
probably true@ as opposed to Aalmost certainly true@); *McNair v.
Coffey*, 234 F.3d 352, 355 (7th Cir. 2000), *vacated on other grounds
by* 533 U.S. 925 (2001) *remanded to McNair v. Coffey*, 279 F.3d 463
(7th Cir. 2002) (in dicta, distinguishing preponderance Awhere the
plaintiff can win a close case@ from clear and convincing Awhere all
close cases go to the defendant@) *and United States v. Dowell*, 257
F.3d 694, 699 (7th Cir. 2001) (differentiating between standards of
proof in contempt proceedings and concluding that Aunlike criminal
contempt, in civil contempt the proof need only be clear and
convincing.@); *see also Colorado v. New Mexico*, 467 U.S. 310, 316
(1984) (clear and convincing evidence standard requires that factfinder
have Aan abiding conviction that the truth of \[the party=s\] factual
contentions are \>highly probable=@); *Cruzan v. Director, Missouri
Department of Health*, 497 U.S. 261, 282 (1990) (describing Aclear and
convincing@ as intermediate standard of proof).

Where possible, the Aclear and convincing@ evidence standard should be
explained in conjunction with the instructions regarding the specific
element requiring proof by clear and convincing evidence. Where the
claim requiring clear and convincing evidence is the sole issue to be
decided by the jury, the instruction should be given in the form of
Instruction 1.11 with the appropriate standard of proof inserted. The
second paragraph of the instruction should be used where multiple claims
require instruction on both a Apreponderance of the evidence@ standard
and a Aclear and convincing@ standard.

**1.29 BURDEN FOR AFFIRMATIVE DEFENSE/**

**BURDEN-SHIFTING THEORY**

**Committee Comments**

The Committee included no general instruction regarding the burden of
proof for affirmative defenses under the view that a court should
explain such burdens in the elements instruction for each claim. *See
Stone v. City of Chicago*, 738 F.2d 896, 901 (7th Cir. 1984) (no error
where early instruction on burden of proof signaled to jury that on
particular defenses, explained in later instructions, burden of proof
shifted to defendants).

**1.30 PROXIMATE CAUSE**

**Committee Comments**

The Committee included no general instruction regarding Aproximate
cause@ or Alegal cause@ because these terms are not uniformly defined.
Therefore, a court must use only the correct definition for the issues
before it. *See Cooper v. Carl A. Nelson & Co.,* 211 F.3d 1008, 1015
(7th Cir. 2000) (en banc) (AAlthough the existence of a duty must be
determined as a matter of law, the question of whether there was a
breach of that duty and an injury proximately caused by that breach are
questions of fact for the jury. . . . An error in jury instructions
therefore can be reversible error if it misinforms the jury about the
applicable law.@) There is no consistent causation standard for either
federal or state claims. The state law standards on causation vary
widely and are subject to change. *See, e.g.,* [Ninth Circuit Manual of
Model Civil Jury Instructions]{.smallcaps} \' 3.8 (2001); *In re
Rhone-Poulenc Rorer, Inc.*, 51 F.3d 1293, 1303 (7th Cir. 1995) (noting
that some states make foreseeability, a concept that overlaps the
concept of proximate cause, an explicit ingredient of negligence); 57A
Am. Jur. 2d *Negligence* \' 424 (AIt has been said of the law of
Aproximate cause@ that there is perhaps nothing in the entire field of
law which has called forth more disagreement, or upon which the opinions
are in such a welter of confusionY@); *see also* *In re:
Bridgestone/Firestone Inc. Tires Products Liability Litig.,* 288 F.3d
1012, 1016-1018 (7th Cir. 2002) (although Ano injury, no tort@ is an
ingredient of every state=s law, differences in state laws preclude a
nationwide class). Accordingly, these Instructions do not include a
Amodel@ instruction on proximate cause.

**1.31 NO NEED TO CONSIDER DAMAGES INSTRUCTION**

If you decide for the defendant\[s\] on the question of liability, then
you should not consider the question of damages.

**1.32 SELECTION OF PRESIDING JUROR;**

**GENERAL VERDICT**

Upon retiring to the jury room, you must select a presiding juror. The
presiding juror will preside over your deliberations and will be your
representative here in court.

Forms of verdict have been prepared for you.

\[Forms of verdict read.\]

(Take these forms to the jury room, and when you have reached unanimous
agreement on the verdict, your presiding juror will fill in, date, and
sign the appropriate form.)

OR

(Take these forms to the jury room, and when you have reached unanimous
agreement on the verdict, your presiding juror will fill in and date the
appropriate form, and all of you will sign it.)

**1.33 COMMUNICATION WITH COURT**

I do not anticipate that you will need to communicate with me. If you do
need to communicate with me, the only proper way is in writing. The
writing must be signed by the presiding juror, or, if he or she is
unwilling to do so, by some other juror. The writing should be given to
the marshal, who will give it to me. I will respond either in writing or
by having you return to the courtroom so that I can respond orally.

\[If you do communicate with me, you should not indicate in your note
what your numerical division is, if any.\]

**1.34 DISAGREEMENT AMONG JURORS**

The verdict\[s\] must represent the considered judgment of each juror.
Your verdict\[s\], whether for or against the parties, must be
unanimous.

You should make every reasonable effort to reach a verdict. In doing so,
you should consult with one another, express your own views, and listen
to the opinions of your fellow jurors. Discuss your differences with an
open mind. Do not hesitate to reexamine your own views and change your
opinion if you come to believe it is wrong. But you should not surrender
your honest beliefs about the weight or effect of evidence solely
because of the opinions of other jurors or for the purpose of returning
a unanimous verdict.

All of you should give fair and equal consideration to all the evidence
and deliberate with the goal of reaching an agreement that is consistent
with the individual judgment of each juror. You are impartial judges of
the facts.

**Committee Comments**

This instruction is taken from the form that the court set out in
*United States v. Silvern*, 484 F.2d 879, 883 (7th Cir. 1973) (en banc).
The court in that criminal case instructed that this instruction should
be used in civil cases as well and directed that no other form of
supplemental instruction be used in dealing with deadlock issues. *Id*.
at 882. Since that time, its use has been discussed in a civil case in
only one published opinion of the Seventh Circuit: *General Leaseways,
Inc. v. National Truck Leasing Assoc.*, 830 F.2d 716, 730 (7th Cir.
1987).

**2. IN-TRIAL INSTRUCTIONS; CAUTIONARY INSTRUCTIONS**

**Committee Note**

While these instructions are written for use during trial, they may be
repeated as part of the final instructions when necessary and
appropriate.

**2.01. CAUTIONARY INSTRUCTION BEFORE RECESS**

We are about to take our first break during the trial, and I want to
remind you of the instruction I gave you earlier. Until the trial is
over, you are not to discuss this case with anyone, including your
fellow jurors, members of your family, people involved in the trial, or
anyone else. If anyone approaches you and tries to talk to you about the
case, do not tell your fellow jurors but advise me about it immediately.
Do not read or listen to any news reports of the trial. Finally,
remember to keep an open mind until all the evidence has been received
and you have heard the views of your fellow jurors.

I may not repeat these things to you before every break that we take,
but keep them in mind throughout the trial.

**Committee Comments**

This is [Fifth Circuit Pattern Jury Instructions (Civil)]{.smallcaps} \'
2.1 (1999), with the second paragraph omitted.

The Committee recommends that this instruction not be given if the first
recess comes immediately after the preliminary instructions, when it
would be repetitive C but the judge might wish to summarize the content
(*e.g.*, ARemember C don=t talk about the case, and keep an open
mind.@).

**2.02. IN-TRIAL INSTRUCTION ON NEWS COVERAGE**

I understand that reports about this trial \[or about this incident\]
are appearing in the newspapers and \[or\] on radio and television \[and
the internet\]. The reporters may not have heard all the testimony as
you have, may be getting information from people whom you will not see
here under oath and subject to cross examination, may emphasize an
unimportant point, or may simply be wrong.

You must not read anything or listen to anything or watch anything with
regard to this trial. It would be a violation of your oath as jurors to
decide this case on anything other than the evidence presented at trial
and your common sense. You must decide the case solely and exclusively
on the evidence that will be received here in court.

**Committee Comments**

This is 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William
C. Lee, Federal Jury Practice and Instructions]{.smallcaps} \' 102.12
(5th ed. 2000), with some style revision and greater emphasis. When
necessary, a similar instruction should be given as to demonstrations,
public gatherings, or public interest in the case.

**2.03. EVIDENCE ADMITTED ONLY AGAINST ONE PARTY**

Some of the evidence in this case is limited to one of the parties, and
cannot be considered against the others. Each party is entitled to have
the case decided solely on the evidence which applies to that party.

The evidence you \[are about to hear\] \[just heard\] can be considered
only in the case against \[*name party*\].

**Committee Comments**

This is drawn from [Eighth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \' 2.08 (2001). If evidence is admitted as to
only party, the court may wish to give Instruction No. 1.10 as part of
the final instructions.

**2.04. STIPULATED TESTIMONY**

The parties have stipulated or agreed what *\[name=s*\] testimony would
be if *\[name\]* were called as a witness. You should consider that
testimony in the same way as if *\[name\]* had given the testimony here
in court.

**Committee Comments**

This is 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William
C. Lee, Federal Jury Practice and Instructions]{.smallcaps} \' 102.10
(5th ed. 2000).

If this instruction is repeated as a final instruction, it should be
given in the witness testimony portion of the general instructions.

**2.05. STIPULATIONS OF FACT**

The parties have stipulated, or agreed, that \[*stipulated fact*\]. You
must now treat this fact as having been proved for the purpose of this
case.

**Committee Comments**

This is drawn from 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig &
Hon. William C. Lee, Federal Jury Practice and Instructions]{.smallcaps}
\' 102.11 (5th ed. 2000). There is a disagreement between other sets of
pattern instructions as to whether the jury is told it *must* treat the
fact as proven (Fifth Circuit and O=Malley, Grenig & Lee ) or *should*
treat the fact as proven (Eighth and Ninth Circuits). The Committee
suggests using the word Amust@ so the court can exclude evidence that
goes only to a fact that the jury must take as proven because of a
stipulation.

If this instruction is repeated as a final instruction, it should be
given in the Aparticular types of evidence@ portion of the general
instructions.

**2.06. JUDICIAL NOTICE**

I have decided to accept as proved the fact that \[*e.g., the city of
Milwaukee is north of the city of Chicago*\]. You must now treat this
fact as having been proved for the purpose of this case.

**Committee Comments**

This is [Ninth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \' 2.5 (2001), modified as to style.

If this instruction is repeated as a final instruction, it should be
given in the Aparticular types of evidence@ portion of the general
instructions.

**2.07. TRANSCRIPT OF RECORDING**

You are about to hear a recording that has been received in evidence.
This recording is proper evidence and you may consider it, just as any
other evidence.

You will be given a transcript to use as a guide to help you follow as
you listen to the recording. The transcript is not evidence of what was
actually said or who said it. It is up to you to decide whether the
transcript correctly reflects what was said and who said it. If you
notice any difference between what you heard on the recording and what
you read in the transcript, you must rely on what you heard, not what
you read. And if after careful listening, you cannot hear or understand
certain parts of the recording, you must ignore the transcript as far as
those parts are concerned.

\[You may consider the actions of a person, facial expressions and lip
movements that you can observe on videos to help you to determine what
was actually said and who said it.\]

**Committee Comments**

This is a modification of [Seventh Circuit Federal Criminal Jury
Instructions]{.smallcaps} \' [3.17 (1999).]{.smallcaps}

Some judges may prefer not to allow the jury to take all of the
transcripts along with the exhibits admitted in evidence. No particular
practice is prescribed in this regard.

If this instruction is repeated as a final instruction, it should be
given in the Aparticular types of evidence@ portion of the general
instructions.

**2.08. DEPOSITION AS SUBSTANTIVE EVIDENCE**

A deposition is the sworn testimony of a witness taken before trial. The
witness is placed under oath to tell the truth and lawyers for each
party may ask questions. The questions and answers are recorded.

The deposition of \[*Witness*\], which was taken on \[*date*\], is about
to be presented to you. Deposition testimony is entitled to the same
consideration and is to be judged, insofar as possible, in the same way
as if the witness had been present to testify.

\[Do not place any significance on the behavior or tone of voice of any
person reading the questions or answers.\]

**Committee Comments**

This is [Ninth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \' 2.6 (2001), deleting the opening sentence,
which began, AWhen a person is unavailable to testify at trial, the
deposition of that person may be used at the trial.@

**2.09. USE OF INTERROGATORIES** **(TO BE USED ONLY WHEN**

**INTERROGATORIES ARE READ WITHOUT ADMISSION INTO EVIDENCE)**

Evidence will now be presented to you in the form of written answers of
one of the parties to written interrogatories submitted by the other
side. These answers were given in writing and under oath before this
trial in response to written questions.

You must give the answers the same consideration as if the answers were
made from the witness stand.

**Committee Comments**

This is 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William
C. Lee, Federal Jury Practice and Instructions]{.smallcaps} \' 102.24
(5th ed. 2000).

**2.10. CROSS-EXAMINATION OF CHARACTER WITNESS**

The questions and answers you have just heard were permitted only to
help you decide what this witness really knew about the reputation of
*\[Name\]* for truthfulness. You may not use the questions and answers
you have just heard for any other purpose.

**Committee Comments**

This is drawn from 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig &
Hon. William C. Lee, Federal Jury Practice and Instructions]{.smallcaps}
\' 102.43 (5th ed. 2000). *See* [Fed. R. Evid.]{.smallcaps} 404(a)(3).

The Committee recommends that this instruction be given only upon a
party=s request. *See* [Fed.R.Evid.]{.smallcaps} 105.

**2.11. IMPEACHMENT BY CONVICTION OF CRIME**

You have heard evidence that witness \[*Name*\] has been convicted of
\[a crime\] \[crimes\]. You may use that evidence only to help you
decide whether to believe the witness and how much weight to give
\[his\] \[her\] testimony.

**Committee Comments**

This is [Eighth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \' 2.09 (2001), chosen in preference as a
limiting instruction over Instruction 1.15, which speaks in terms of
whether the witness=s testimony is truthful. The Committee disfavors
allusion to the truthfulness of a particular witness while that witness
is still on (or has just left) the witness stand. This instruction
should be given only if a party requests it, *see*
[Fed.R.Evid.]{.smallcaps} 105, unless the [Fed.R.Evid.]{.smallcaps} 403
balancing test would tip the other way without the instruction.

**2.12. SUMMARIES OF RECORDS AS EVIDENCE**

*Stipulated*

The parties agree that \[*Describe summary in evidence*\] accurately
summarize the contents of documents, records, or books. You should
consider these summaries just like all of the other evidence in the
case.

*Not Stipulated*

Certain \[*describe summary in evidence*\] is/are in evidence. \[The
original materials used to prepare those summaries also are in
evidence.\] It is up to you to decide if the summaries are accurate.

**Committee Comments**

This is Instruction 1.23.

**2.13. WITHDRAWAL OF CLAIMS**

\[*Former Party*\] is no longer a defendant in this case. You should not
consider any claims against \[*Former Party*\]. Do not speculate on the
reasons. Your focus must be on the remaining parties.

**Committee Comments**

This is Instruction 1.26, modified as to style to reflect that the jury
likely will hear more evidence after this limiting instruction is given.

**2.14. JUDGE=S COMMENTS TO LAWYER**

I have a duty to caution or warn an attorney who does something that I
believe is not in keeping with the rules of evidence or procedure. You
are not to draw any inference against the side whom I may caution or
warn during the trial.

**Committee Comments**

This is 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William
C. Lee, Federal Jury Practice and Instructions]{.smallcaps} \' 102.70
(5th ed. 2000), with modification as to style.

**3. EMPLOYMENT DISCRIMINATION: TITLE VII, \' 1981, ADEA**

**3.01 GENERAL EMPLOYMENT DISCRIMINATION INSTRUCTIONS**

Plaintiff claims that he was \[*adverse employment action*\] by
Defendant because of \[*protected class*\]. To succeed on this claim,
Plaintiff must prove by a preponderance of the evidence that he was
\[*adverse employment action*\] by Defendant because of his \[*protected
class*\]. To determine that Plaintiff was \[*adverse employment
action*\] because of his \[*protected class*\], you must decide that
Defendant would not have \[*adverse employment action*\] Plaintiff had
he been \[*outside protected class*\] but everything else had been the
same.

If you find that Plaintiff has proved this by a preponderance of the
evidence, then you must find for Plaintiff. However, if you find that
Plaintiff did not prove this by a preponderance of the evidence, then
you must find for Defendant.

**Committee Comments**

a\. **Scope:** This instruction is to be used in Title VII, \' 1981, and
ADEA cases.

b\. **Authority:** *See Gehring v. Case Corp.*, 43 F.3d 340, 344 (7th
Cir.1994); *see also Achor v. Riverside Golf Club*, 117 F.3d 339, 340
(7th Cir. 1997); *Hennessy v. Penril Datacomm Networks, Inc.*, 69 F.3d
1344, 1350 (7th Cir.1995); *Hahm v. Wisconsin Bell, Inc.*, 983 F. Supp.
807, 809 (E.D. Wis. 1997).

The Committee recognizes that other circuits= instructions employ the
Amotivating factor@ language of *Desert Palace, Inc. v. Costa*, 539 U.S.
90, 94 (2003) in all Title VII cases. *See* [Eighth Circuit Model Civil
Jury Instructions]{.smallcaps} \' 5.01 (2001) (essential element in all
disparate treatment cases is proof that protected trait was Aa
motivating factor in defendant=s decision@); [Ninth Circuit Model Civil
Jury Instructions]{.smallcaps} \' 12.1 & Comment (1991 Act clarified
that defendant is liable if plaintiff shows discrimination was Aa
motivating factor@ regardless of whether the case is one of Apretext@ or
Amixed motives@); [Eleventh Circuit Pattern Jury Instructions (Civil
Cases)]{.smallcaps} \' 1.2.1 (2000) (plaintiff=s burden under Title VII
is to prove protected trait Awas a substantial or motivating factor@);
[American Bar Association, Model Jury Instructions, Employment
Litigation]{.smallcaps} \' 1.02\[1\] (1994) (using Aa motivating factor@
standard in circumstantial/indirect evidence cases); 3C [Kevin F.
O]{.smallcaps}=[Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury
Practice & Instructions]{.smallcaps} \' 171.20 (5th ed. 2001) (essential
element of disparate treatment claim is that plaintiff prove protected
trait was Aa motivating factor,@ not Athe sole motivation or even the
primary motivation for the defendant=s decision@). Two circuits have
found that the Amotivating factor@ requirement applies only in mixed
motive cases. *Watson v. Southeastern Penn. Transp. Auth.*, 207 F.3d
207, 214-220 (3rd Cir. 2000); *Fields v. New York State Office of Mental
Retardation & Developmental Disabilities*, 115 F.3d 116, 121-124 (2d
Cir. 1997).

The Committee drafted these instructions with the understanding that the
Amotivating factor@ language is appropriate in mixed motive cases (see
comment c below). However, the Committee assumed the continuing
viability of the *Gehring* approach in non-mixed motive cases in the
Seventh Circuit. *Cf*. *Boyd v. Illinois State Police*, 384 F.3d 888,
894-895 (7th Cir. 2004). If a court deems it appropriate to instruct on
Amotivating factor@ as an element of a party=s burden of proof in a
particular case, the committee recommends the following language:

> Plaintiff must prove by a preponderance of the evidence that his
> \[*protected class*\] . . . contributed to Defendant=s decision.

c\. **Mixed Motive:** The Committee expects that the pattern
instruction, which has the advantage of streamlining the jury=s task
into a single and easily understood sentence, will be appropriate in
most cases. In some cases, however, the pattern instruction would amount
to a confusing oversimplification of the issues the jury must decide.
For example, Title VII recognizes that employers can have mixed motives
for employment decisions. *See* 42 U.S.C. \' 2000e-5(g)(2)(B); *Desert
Palace, Inc. v. Costa*, 539 U.S. 90 (2003); *see also Akrabawi v. Carnes
Co.*, 152 F.3d 688, 694 (7th Cir. 1998) (AThe thrust of \'
2000e-5(g)(2)(B) is that employers may make decisions out of mixed
motives. The statute addresses the complex nature of employment
decisions by recognizing that a discriminatory employer might make
exactly the same employment decisions absent improper bias because of
legitimate considerations.@) In such cases, the statute provides for
certain types of relief if discrimination constituted a motivating
factor in the employment decision. *Id.* For this reason, other circuits
have suggested a separate Amixed motive@ instruction in some employment
discrimination cases. *See, e.g.,* [Eighth Circuit Model Civil Jury
Instructions]{.smallcaps} \'\' 5.11, 5.21, 5.31 (2001). These
instructions permit defendants to limit liability if they can prove that
they would have made the adverse employment decision regardless of the
plaintiff=s protected class.

In such a case, the pattern instruction (drawn from *Gehring v. Case
Corp.*, 43 F.3d 340, 344 (7th Cir. 1994), which did not address a mixed
motive issue), would call upon the jury to decide whether the plaintiff
had disproved the mixed motive, after which the jury would decide
whether the defendant had proven it. Under such circumstances, the
Committee recommends the following language instead of the pattern
instruction:

> Plaintiff must prove by a preponderance of the evidence that his
> \[*protected class*\] was a motivating factor in Defendant=s decision
> to \[*adverse employment action*\] him. A motivating factor is
> something that contributed to Defendant=s decision.
>
> If you find that Plaintiff has proved that his \[*protected class*\]
> contributed to Defendant=s decision to \[*adverse employment action*\]
> him, you must then decide whether Defendant proved by a preponderance
> of the evidence that it would have \[*adverse employment action*\] him
> even if Plaintiff was not \[*protected class*\]. If so, you must enter
> a verdict for the Plaintiff but you may not award him damages.

The Committee recommends use of a verdict form that makes clear, if no
damages are awarded, whether the jury decided the plaintiff had not
proven her claim or decided that the defendant had met its burden on the
mixed motive issue. Without clear guidance in the circuit case law, the
Committee cannot offer assistance in determining when a Amixed motive@
instruction is appropriate.

d\. **Constructive Discharge:** If the adverse employment action alleged
by plaintiff is constructive discharge, the Committee suggests altering
the instruction as follows:

> Plaintiff claims that he quit his job because Defendant made his
> working conditions intolerable. This is called a \>constructive
> discharge=. To succeed on this claim, Plaintiff must prove two things
> by a preponderance of the evidence.
>
> 1\. Defendant made Plaintiff=s working conditions so intolerable that
> a reasonable person in Plaintiff=s position would have had to quit;
> and
>
> 2\. Defendant would not have made Plaintiff=s working conditions so
> intolerable had Plaintiff not been \[*protected class*\] but
> everything else had been the same.

*See* *Pennsylvania State Police v. Suders*, \_\_\_ U.S. \_\_\_, 124
S.Ct. 2342 (2004); *Hazen Paper Co. v. Biggins*, 507 U.S. 604, 616-617
(1993); *McLaughlin v. Richland Shoe Co.*, 486 U.S. 128, 134-135,
(1988); *McPherson v. City of Waukegan*, 379 F.3d 430, 440 (7th Cir.
2004).

The nature of the claimed constructive discharge may require some
modification of the pattern instruction. *See, e.g., EEOC v. University
of Chicago Hospitals*, 276 F.3d 326, 331 (7th Cir. 2002) (A\[w\]hen an
employer acts in a manner so as to have communicated to a reasonable
employee that she will be terminated, and the plaintiff employee
resigns, the employer=s conduct may amount to constructive discharge@).

e\. **Materially Adverse Employment Action:** In rare cases, a fact
issue might arise about whether the plaintiff actually suffered a
Amaterially adverse employment action.@ In such cases, a court should
modify the instructions to provide the jury with guidance as to what
this term means. The Committee suggests the following language:

> Plaintiff must prove that his \[*alleged consequence of Defendant=s
> conduct*\] was a Amaterially adverse employment action.@ Not
> everything that makes an employee unhappy is a materially adverse
> employment action. It must be something more than a minor or trivial
> inconvenience. For example, a materially adverse employment action
> exists when someone=s pay or benefits are decreased; when his job is
> changed in a way that significantly reduces his career prospects; or
> when job conditions are changed in a way that significantly changes
> his work environment in an unfavorable way.

*See Herrnreiter v. Chicago Housing Auth.*, 315 F.3d 742 (7th Cir.
2002); *see also Crady v. Liberty Nat=l Bank & Trust Co.*, 993 F.2d 132,
136 (7th Cir. 1993); *Smart v. Ball State Univ*., 89 F.3d 437, 441 (7th
Cir. 1996).

**3.02 RETALIATION**

Plaintiff claims that he was \[*adverse action*\] by Defendant because
of \[*protected activity*\]. To succeed on this claim, Plaintiff must
prove by a preponderance of the evidence that Defendant \[*adverse
action*\] him because of his \[*protected activity*\]. To determine that
Plaintiff was \[*adverse action*\] because of his \[*protected
activity*\], you must decide that Defendant would not have \[*taken
adverse action against*\] Plaintiff if he had \[*not engaged in
protected activity*\] but everything else had been the same.

If you find that Plaintiff has proved this by a preponderance of the
evidence, then you must find for Plaintiff. However, if you find that
Plaintiff did not prove this by a preponderance of the evidence, then
you must find for Defendant.

**Committee Comments**

a\. **Scope**: This instruction is to be used in Title VII, \' 1981, and
ADEA cases after the general instruction.

b\. **Authority**: *Schobert v. Illinois Dept. of Transportation*, 304
F.3d 725 (7th Cir. 2002) (AYet IDOT has not offered a reason why
McDonnell Douglas burden‑shifting should apply in cases of retaliation
during trial proceedings . . . but not in straightforward discrimination
trials.@); *Stone v. City of Indianapolis Public Utilities Div*., 281
F.3d 640 (7th Cir. 2002).

c\. **Good Faith Belief:** In many cases, the question of what
constitutes a protected activity will not be contested. Where it is,
however, the instruction should be revised as follows:

> Plaintiff claims that he was \[*adverse employment action*\] by
> Defendant because of \[*protected activity*\]. To succeed in this
> claim, Plaintiff must prove two things by a preponderance of the
> evidence:
>
> 1\. His \[*protected activity*\] was based on a reasonable, good faith
> belief that \[*describe Plaintiff=s belief regarding his protected
> activity, e.g., that he was fired because of his race*\]. This does
> not, however, require Plaintiff to show that what he believed was
> correct.
>
> 2\. Defendant would not have \[*adverse employment action*\] Plaintiff
> if he had \[*not engaged in protected activity*\] but everything else
> had been the same.

*See Fine v. Ryan Int=l Airlines,* 305 F.3d 746, 752 (7th Cir. 2002).
*See also Mattson v. Caterpillar, Inc.*, 359 F.3d 885, 891 (7th Cir.
2004) (underlying claim Amust not be utterly baseless@).

**d.** **Adverse Action:** What constitutes an Aadverse employment
action@ in the context of a retaliation claim is not entirely clear.
*See Herrnreiter v. Chicago Housing Auth.*, 315 F.3d 742, 746 (7th Cir.
2002). The Committee does not use Aadverse action@ in this instruction
as a term of art, but merely as a placeholder for the specific act
alleged.

**3.03 PATTERN OR PRACTICE**

Plaintiff claims that Defendant had a pattern or practice of
discriminating against \[*protected class*\]. To succeed on this claim,
Plaintiff must prove by a preponderance of the evidence that
\[*protected class*\] discrimination was Defendant=s regular practice,
rather than something unusual. If you find that Plaintiff has not proved
this, you must find for Defendant.

If you find that Plaintiff has proved that Defendant had a pattern or
practice of discriminating, then you must answer another question: Did
Defendant prove by a preponderance of the evidence that it would have
\[*adverse employment action*\] Plaintiff even if it had not made a
regular practice of \[*protected class*\] discrimination? If you find
that Defendant has proved this by a preponderance of the evidence, your
verdict should be for Defendant. If you find that Defendant has not
proved this, your verdict should be for Plaintiff.

**Committee Comments**

a\. **Authority:** *Adams v. Ameritech Services, Inc*., 231 F.3d 414,
422 (7th Cir. 2000) (quoting *International Brotherhood of Teamsters v.
United States*, 431 U.S. 324, 336 (1977)); *King v. General Elec. Co.*,
960 F.2d 617 (7th Cir. 1992).

b\. **Class Actions:** In a class action claim, a court should provide
only the first paragraph, as the second paragraph will be provided
during the damages phase of the trial. If this is an individual pattern
or practice claim, then the court should provide both paragraphs to the
jury.

**3.04 HARASSMENT BY CO-EMPLOYEE OR THIRD PARTY**

In this case, Plaintiff claims that he was \[*e.g., racially/sexually*\]
harassed at work. To succeed on this claim, Plaintiff must prove seven
things by a preponderance of the evidence:

1\. Plaintiff was subjected to \[*alleged conduct*\];

2\. The conduct was unwelcome;

3\. The conduct occurred because Plaintiff was \[*e.g., race/sex*\];

4\. The conduct was sufficiently severe or pervasive that a reasonable
person in plaintiff=s position would find plaintiff=s work environment
to be hostile or abusive;

5\. At the time the conduct occurred, Plaintiff believed that the
conduct made his work environment hostile or abusive;

6\. Defendant knew or should have known about the conduct; and

7\. Defendant did not take reasonable steps to \[correct the situation\]
/ \[prevent harassment from recurring\].

If you find that Plaintiff has proved by a preponderance of the evidence
each of the things required of him, then you must find for Plaintiff.
However, if Plaintiff did not prove by a preponderance of the evidence
each of the things required of him, then you must find for Defendant.

**Committee Comments**

a\. **Authority:** *See Kriescher v. Fox Hills Golf Resort and Conf.
Ctr. FHR, Inc.*, 384 F.3d 912, 915 (7th Cir. 2004); *Rizzo v. Sheahan*,
266 F.3d 705, 711-712 (7th Cir. 2001); *Hostetler v. Quality Dining,
Inc.*, 218 F.3d 798, 806-807 (7th Cir. 2000); *Pryor v. Seyfarth, Shaw,
Fairweather & Geraldson*, 212 F.3d 976 (7th Cir. 2000); *Parkins v.
Civil Contractors, Inc.*, 163 F.3d 1027, 1032 (7th Cir. 1998); *Tutman
v. CBS, Inc*., 209 F.3d 1044, 1048 (7th Cir.2000); *Berry v. Delta
Airlines, Inc*., 260 F.3d 803, 811 (7th Cir. 2001) (AAn employer=s
response to alleged instances of employee harassment must be reasonably
calculated to prevent further harassment under the particular facts and
circumstances of the case at the time the allegations are made.@).

b\. **No Dispute as to Alleged Conduct:** If no dispute exists that the
defendant=s alleged conduct took place, a court should simplify the
instruction by changing the beginning of the instruction as follows:

> In this case, Plaintiff claims that she was \[*e.g.,
> racially/sexually*\] harassed at work \[*describe conduct*\]. To
> succeed in her claim, Plaintiff must prove six things by a
> preponderance of the evidence:
>
> 1\. The conduct was unwelcome;
>
> 2\. Plaintiff was subjected to this conduct because she was \[*e.g.,
> race/sex*\];

The remainder of the instruction should remain the same.

c\. **Hostile or Abusive Work Environment:** In some cases, a court may
want to give the jury more guidance on what constitutes a hostile or
abusive work environment. If so, the Committee suggests the following
language:

> To decide whether a reasonable person would find Plaintiff=s work
> environment hostile or abusive, you must look at all the
> circumstances. These circumstances may include the frequency of the
> conduct; its severity; its duration; whether it was physically
> threatening or humiliating; and whether it unreasonably interfered
> with the plaintiff=s work performance. No single factor is required in
> order to find a work environment hostile or abusive.

See *Faragher v. City of Boca Raton*, 524 U.S. 775, 787-788 (1998);
*Harris v. Forklift Sys., Inc.*, 510 U.S. 17, 23 (1993); [Eighth Circuit
Model Civil Jury Instructions]{.smallcaps} \' 5.42 Committee Comments
(2001). *See also Mason v. Southern Illinois University at Carbondale,*
233 F.3d 1036, 1044-1045 (7th Cir. 2000) (AIf a plaintiff claims that he
is suffering a hostile work environment based on the conduct of
coworkers *and* supervisors, then under the Supreme Court=s totality of
circumstances approach . . . all instances of harassment by all parties
are relevant to proving that his environment is sufficiently severe or
pervasive . . . Courts should not carve up the incidents of harassment
and then separately analyze each incident, by itself, to see if each
rises to the level of being severe or pervasive.@).

d\. **Ameliorating Instruction:** As an optional addition to the
instruction, the Committee suggests that a court consider including the
following language:

> Conduct that amounts only to ordinary socializing in the workplace,
> such as occasional horseplay, sexual flirtation, sporadic or
> occasional use of abusive language, gender related jokes, and
> occasional teasing, does not constitute an abusive or hostile
> environment. You should consider all the circumstances and the social
> context in which the conduct occurred. Only conduct amounting to a
> material change in the terms and conditions of employment amounts to
> an abusive or hostile environment.

**3.05A. SUPERVISOR HARASSMENT WITH TANGIBLE EMPLOYMENT ACTION**

Plaintiff claims that he was \[*e.g., racially/sexually*\] harassed by
\[*Alleged Supervisor*\]. To succeed on this claim, Plaintiff must prove
seven things by a preponderance of the evidence.

1\. \[*Name*\] was Plaintiff=s supervisor. A supervisor is someone who
can affect the conditions of Plaintiff=s employment. By this I mean
someone who has the power to \[hire, fire, demote, promote, transfer or
discipline Plaintiff\] \[significantly change Plaintiff=s benefits\].

2\. Plaintiff was subjected to \[*alleged conduct*\];

> 3\. The conduct was unwelcome;
>
> 4\. The conduct occurred because Plaintiff was \[*e.g., race/sex*\];

5\. The conduct was sufficiently severe or pervasive that a reasonable
person in Plaintiff=s position would find Plaintiff=s work environment
to be hostile or abusive;

6\. At the time the conduct occurred, Plaintiff believed that the
conduct made his work environment hostile or abusive; and

7\. \[*Name=s*\] conduct caused Plaintiff \[*adverse employment
action*\].

If you find that Plaintiff has proved by a preponderance of the evidence
each of the things required of him, then you must find for Plaintiff.
However, if Plaintiff did not prove by a preponderance of the evidence
each of the things required of him, then you must find for Defendant.

**Committee Comments**

a\. **Scope:** This instruction should be used where the parties do not
dispute that the plaintiff experienced a tangible employment action,
such as a demotion, a discharge, or an undesirable reassignment. *See
Burlington Indus. v. Ellerth*, 524 U.S. 742, 753-754 (1998). In such
situations, affirmative defenses are unavailable to the defendant. *Id.
See also Faragher v. City of Boca Raton*, 524 U.S. 775, 808 (1998). For
cases where no tangible employment action took place, see Instruction
3.05B, below. For guidance on modifying the instruction in cases where
the parties dispute whether the supervisor=s conduct led to a tangible
employment action, see Committee comment d to Instruction 3.05B, below.

b\. **Supervisor Definition:** *See NLRB v. Kentucky River Cmty. Care*,
532 U.S. 706, 713 (2001); *Faragher v. City of Boca Raton*, 524 U.S.
775, 798 (1998); *NLRB v. Yeshiva Univ*., 444 U.S. 672, 682-691 (1980);
*American Diversified Foods, Inc. v. NLRB*, 640 F.2d 893, 894 (7th Cir.
1981).

c\. **Employer=s Vicarious Liability for Supervisor Conduct:** *See
Faragher v. City of Boca Raton*, 524 U.S. 775 (1998); *Burlington Indus.
v. Ellerth*, 524 U.S. 742 (1998); *Hostetler v. Quality Dining, Inc.*,
218 F.3d 798, 806 (7th Cir. 2000); *Parkins v. Civil Constructors of
Ill., Inc.*, 163 F.3d 1027, 1032 (7th Cir. 1998).

d\. **Hostile or Abusive Work Environment:** In some cases, a court may
want to give the jury more guidance on what constitutes a hostile or
abusive work environment. If so, the Committee suggests the following
language:

> To decide whether a reasonable person would find Plaintiff=s work
> environment hostile or abusive, you must look at all the
> circumstances. These circumstances may include the frequency of the
> conduct; its severity; its duration; whether it was physically
> threatening or humiliating, and whether it unreasonably interfered
> with the plaintiff=s work performance. No single factor is required in
> order to find a work environment hostile or abusive.

See *Faragher v. City of Boca Raton*, 524 U.S. 775, 787-788 (1998);
*Harris v. Forklift Sys., Inc.*, 510 U.S. 17, 23 (1993); [Eighth Circuit
Model Civil Jury Instructions]{.smallcaps} \' 5.42 Committee Comments
(2001).

e\. **Constructive Discharge:** If the adverse employment action alleged
by plaintiff is constructive discharge, the Committee suggests altering
the instruction as follows:

> 7\. Plaintiff quit his job because \[*Name*\]=s conduct made
> Plaintiff=s working conditions so intolerable that a reasonable person
> in Plaintiff=s position would have had to quit.

*See* *Pennsylvania State Police v. Suders*, \_\_\_ U.S. \_\_\_, 124
S.Ct. 2342 (2004); *Jordan v. City of Gary*, 396 F.3d 825, 836 (7th Cir.
2005).

f\. **Facts Not in Dispute:** A court should modify the instruction to
account for situations where facts are not in dispute. For example, if
the parties do not dispute that the alleged harasser is the plaintiff=s
supervisor, a court does not need to give the first element of the
instruction. Similarly, if the parties do not dispute that the
defendant=s alleged conduct took place, a court should describe the
conduct at the beginning of the instruction and then modify the
instruction by replacing the elements 2-4 with the following two
elements:

> 2\. The conduct was unwelcome;

3\. Plaintiff was subjected to this conduct because he was \[*e.g.,
race/sex*\];

The remainder of the instruction should remain the same.

**3.05B SUPERVISOR HARASSMENT WITH NO TANGIBLE EMPLOYMENT ACTION**

Plaintiff claims that he was \[*e.g., racially/sexually*\] harassed by
\[*Alleged Supervisor*\]. To succeed on this claim, Plaintiff must prove
six things by a preponderance of the evidence.

1\. \[*Name*\] was Plaintiff=s supervisor. A supervisor is someone who
can affect the conditions of Plaintiff=s employment. By this I mean
someone who has the power to hire, fire, demote, promote, transfer or
discipline Plaintiff \[significantly change Plaintiff=s benefits\].

2\. Plaintiff was subjected to \[*alleged conduct*\];

> 3\. The conduct was unwelcome;
>
> 4\. The conduct occurred because Plaintiff was \[*e.g., race/sex*\];

5\. The conduct was sufficiently severe or pervasive that a reasonable
person in plaintiff=s position would find plaintiff=s work environment
to be hostile or abusive.

6\. At the time the conduct occurred, Plaintiff believed that the
conduct made his work environment hostile or abusive.

If you find that Plaintiff did not prove by a preponderance of the
evidence each of the things required of him, then you must find for
Defendant. If, on the other hand, Plaintiff has proved each of these
things, you must go on to consider whether Defendant has proved two
things by a preponderance of the evidence:

1\. Defendant exercised reasonable care to prevent and correct any
harassing conduct in the workplace.

2\. Plaintiff unreasonably failed to take advantage of opportunities
provided by Defendant to prevent or correct harassment, or otherwise
avoid harm.

If you find that Defendant has proved these two things by a
preponderance of the evidence, your verdict should be for Defendant. If
you find that Defendant has not proved both of these things, your
verdict should be for Plaintiff.

**Committee Comments**

a\. **Scope:** This instruction should be used when a supervisor=s
alleged harassment has *not* led to a tangible employment action. In
such cases, the affirmative defense set out in the instruction becomes
available to the defendant. *See Loughman v. Malnati Organization Inc.*,
395 F.3d 404, 407 (7th Cir. 2005); *Hill v. American General Finance,
Inc.*, 218 F.3d 639, 643 (7th Cir. 2000) (citing *Faragher v. City of
Boca Raton*, 524 U.S. 775 (1998) and *Burlington Indus. v. Ellerth*, 524
U.S. 742 (1998)). In cases where the defendant does not raise the
affirmative defense, the beginning of the instruction should be modified
as follows:

> Plaintiff claims that he was \[*e.g., racially/sexually*\] harassed by
> \[*Name of Alleged Supervisor*\]. To succeed on his claim against
> Defendant, Plaintiff must prove six things by a preponderance of the
> evidence.

The remainder of the instruction should remain the same, with the
instruction concluding after the jury receives the sixth element of the
claim.

b\. **Supervisor Definition:** *See NLRB v. Kentucky River Cmty. Care*,
532 U.S. 706, 713 (2001); *Faragher v. City of Boca Raton*, 524 U.S.
775, 798 (1998); *NLRB v. Yeshiva Univ*., 444 U.S. 672, 682-691 (1980);
*American Diversified Foods, Inc. v. NLRB*, 640 F.2d 893, 894 (7th Cir.
1981).

c\. **Employer=s Vicarious Liability for Supervisor Conduct:** *See
Faragher v. City of Boca Raton*, 524 U.S. 775 (1998); *Burlington Indus.
v. Ellerth*, 524 U.S. 742 (1998); *Hostetler v. Quality Dining, Inc.*,
218 F.3d 798, 806 (7th Cir. 2000); *Parkins v. Civil Constructors of
Ill., Inc.*, 163 F.3d 1027, 1032 (7th Cir. 1998).

d\. **Hostile or Abusive Work Environment**: In some cases, a court may
want to give the jury more guidance on what constitutes a hostile or
abusive work environment. If so, the Committee suggests the following
language:

> To decide whether a reasonable person would find Plaintiff=s work
> environment hostile or abusive, you must look at all the
> circumstances. These circumstances may include the frequency of the
> conduct; its severity; its duration; whether it was physically
> threatening or humiliating, and whether it unreasonably interfered
> with the plaintiff=s work performance. No single factor is required in
> order to find a work environment hostile or abusive.

See *Faragher v. City of Boca Raton*, 524 U.S. 775, 787-788 (1998);
*Harris v. Forklift System, Inc.*, 510 U.S. 17, 23 (1993); *Dandy v.
United Parcel Svc., Inc.*, 388 F.3d 263, 270 (7th Cir. 2004); [Eighth
Circuit Model Civil Jury Instructions]{.smallcaps} \' 5.42 Committee
Comments (2001).

e\. **Tangible Employment Action Disputed:** In some cases, the parties
might dispute whether the supervisor=s alleged harassment led to a
tangible employment action. In such situations, a court should modify
the instruction by including the following language after listing the
elements:

> If Plaintiff did not prove each of these things by a preponderance of
> the evidence, you must find for Defendant. If you find that Plaintiff
> has proved all of these things by a preponderance of the evidence, you
> must consider whether Plaintiff can prove one additional fact: That
> \[*Name*\]=s conduct caused Plaintiff \[*adverse employment action*\].
>
> If so, your verdict must be for Plaintiff. If not, you must go on to
> consider whether Defendant has proved two things to you by a
> preponderance of the evidence.

The remainder of the instruction should remain the same.

f\. **Facts Not in Dispute:** A court should modify the instruction to
account for situations where facts are not in dispute. For example, if
the parties do not dispute that the alleged harasser is the plaintiff=s
supervisor, a court does not need to give the first element of the
instruction. Similarly, if the parties do not dispute that the
defendant=s alleged conduct took place, a court should describe the
conduct at the beginning of the instruction and then modify the
instruction by replacing the elements 2-4 with the following two
elements:

> 2\. the conduct was unwelcome;
>
> 3\. Plaintiff was subjected to this conduct because he was \[*e.g.,
> race/sex*\];

The remainder of the instruction should remain the same.

g\. **Plaintiff Complaint and Defendant Response:** At the time of the
Committee=s work, the Seventh Circuit had not addressed the issue of
whether a defendant can exculpate itself by taking immediate remedial
measures after a plaintiff has complained about harassment. Other
circuits are split. *Compare Indest v. Freeman Decorating, Inc.*, 164
F.3d 258, 265 (5th Cir. 1999) (defense available because Aplaintiff has
received the benefit Title VII was meant to confer@) *with* *Harrison v.
Eddy Potash, Inc.*, 248 F.3d 1014, 1025-1026 (10th Cir. 2001)
(employer=s Aprompt corrective action@ is not alone sufficient to avoid
employer liability for supervisor harassment under Title VII).

**3.06 WILLFULNESS: WHERE AGE DISCRIMINATION IS ALLEGED**

If you find for Plaintiff, you must then decide whether Defendant
willfully violated the Age Discrimination in Employment Act. To show
this, Plaintiff must prove by a preponderance of the evidence that
Defendant knew that it was violating the Age Discrimination in
Employment Act, or was indifferent to whether its actions violated the
Age Discrimination in Employment Act, and not simply that Defendant was
aware that it was engaging in age discrimination.

**Committee Comments**

*See* *Hazen Paper Co. v. Biggins*, 507 U.S. 604, 616-617 (1993);
*McLaughlin v. Richland Shoe Co.*, 486 U.S. 128, 134-135 (1988);
*Appelbaum v. Milwaukee Metro. Sewerage Dist.*, 340 F.3d 573, 582 (7th
Cir. 2003); *Mathis v. Phillips Chevrolet, Inc.,* 269 F.3d 771, 777 (7th
Cir. 2001) (AA defendant=s negligent mistake concerning the lawfulness
of her conduct does not suffice to make that conduct \>willful,= but a
reckless mistake, in the criminal law sense of indifference to whether
the conduct violates the law, does.@).

**3.07 CAUTIONARY INSTRUCTION ON**

**REASONABLENESS OF DEFENDANT=S ACTION**

In deciding Plaintiff=s claim, you should not concern yourselves with
whether Defendant=s actions were wise, reasonable, or fair. Rather, your
concern is only whether Plaintiff has proved that Defendant \[*adverse
employment action*\] him \[because of race/sex\] \[in retaliation for
complaining about discrimination\].

**Committee Comments**

The Committee suggests that a court give this cautionary instruction at
its discretion in Title VII, \' 1981, and ADEA cases.

**3.08 DISPARATE IMPACT**

**Committee Comments**

The Committee did not include a disparate impact instruction because
there are no jury trials under Title VII for disparate impact, 42 U.S.C.
\' 1981a(a)(1) & (c), and when the Committee submitted its work for
promulgation, there was no viable ADEA disparate impact theory in this
circuit. In [Smith v. City of Jackson, Miss.]{.underline}, 125 S. Ct.
1536 (2005), the Court held that the ADEA authorizes recovery in
disparate impact cases. At the time the Circuit Council authorized
publication of these instructions, too little case law existed for the
Committee to draft a pattern instruction on this topic with any
confidence.

**3.09 DAMAGES: GENERAL**

If you find that Plaintiff has proved \[any of\] his claim\[s\] against
\[any of\] Defendant\[s\], then you must determine what amount of
damages, if any, Plaintiff is entitled to recover. Plaintiff must prove
his damages by a preponderance of the evidence.

If you find that Plaintiff has failed to prove \[any of\] his
claim\[s\], then you will not consider the question of damages.

**Committee Comments**

These pattern damage instructions are applicable, with certain
limitations, to single plaintiff discrimination and retaliation claims
under Title VII of the 1964 Civil Rights Act, 42 U.S.C. \'2000e et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. \'621 et seq., the
Americans with Disabilities Act, 42 U.S.C. \'12101 et seq., and the
Civil Rights Act of 1866, 42 U.S.C. \'1981. Damages instructions
relating to claims under the Equal Pay Act, 29 U.S.C. \'206(d), are
contained in the pattern instructions under that Act. *See* Instruction
No. 5.11. An instruction relating to the recovery of liquidated damages
under the Age Discrimination in Employment Act is contained in the
pattern employment discrimination instructions. *See* Instruction No.
3.06.

**3.10 COMPENSATORY DAMAGES**

You may award compensatory damages only for injuries that Plaintiff has
proved by a preponderance of the evidence were caused by Defendant=s
wrongful conduct.

Your award must be based on evidence and not speculation or guesswork.
This does not mean, however, that compensatory damages are restricted to
the actual loss of money; they include both the physical and mental
aspects of injury, even if they are not easy to measure.

In calculating damages, you should not consider the issue of lost wages
and benefits. The court will calculate and determine any damages for
past or future lost wages and benefits. You should consider the
following types of compensatory damages, and no others:

\[1. The physical \[and mental/emotional\] pain and suffering \[and
disability/loss of a normal life\] that Plaintiff has experienced \[and
is reasonably certain to experience in the future\]. No evidence of the
dollar value of physical \[or mental/emotional\] pain and suffering \[or
disability/loss of a normal life\] has been or needs to be introduced.
There is no exact standard for setting the damages to be awarded on
account of pain and suffering. You are to determine an amount that will
fairly compensate Plaintiff for the injury he has sustained.\]

\[2. The reasonable value of medical care that Plaintiff reasonably
needed and actually received \[as well as the present value of the care
that he is reasonably certain to need and receive in the future.\]\]

\[3. *Describe any expenses, other than lost pay, that Plaintiff
reasonably incurred or will incur in the future as a direct result of
the Defendant=s discrimination/retaliation.*\]

\[4. *Describe any loss (other than lost pay) caused by Defendant in
Plaintiff=s future earning capacity*.\]

**Committee Comments**

a\. **ADEA:** Compensatory damages are not available under the ADEA,
except for a retaliation claim. *Pfeifer v. Essex Wire Corp.*, 682 F.2d
684, 68-688 (7th Cir. 1982); *Moskowitz v. Trustees of Purdue Univ.*, 5
F.3d 279, 283-284 (7th Cir. 1993).

b\. **ADA Retaliation Claims:** Compensatory damages are not available
on ADA retaliation claims. *Kramer v. Banc of Am. Sec.,* 355 F.3d 961,
965 (7th Cir. 2004).

c\. **Back Pay and Front Pay:** Under Title VII and the ADA, back pay
and front pay are equitable remedies to be decided by the court.
However, the court may empanel the jury as an advisory jury on the
issue; or the parties may, with the court=s consent, agree that the jury
will decide the issue. *Pals v. Schepel Buick & GMC Truck, Inc.,* 220
F.3d 495, 499-501 (7th Cir. 2000). Front pay is typically awarded in
cases where the equitable remedy of reinstatement is unavailable.
*Hildebrandt v. Illinois Dep=t of Natural Resources*, 347 F.3d 1014,
1031 (7th Cir. 2003); *Williams v. Pharmacia Inc.*, 137 F.3d 944,
951-952 (7th Cir. 1998).

d\. **Lost Future Earnings:** Compensatory damages may include Alost
future earnings,@ *i.e.,* the diminution in expected earnings in all
future jobs due to reputational or other injuries, over and above any
front pay award. Where there is such evidence, the language should be
drafted for use in the bracketed fourth paragraph. Care must be taken to
distinguish front pay and lost future earnings, which serve different
functions. *Williams v. Pharmacia, Inc.*, 137 F.3d 944, 953-954 (7th
Cir. 1998):

> \[T\]he calculation of front pay differs significantly from the
> calculation of lost future earnings. Whereas front pay compensates the
> plaintiff for the lost earnings from her old job for as long as she
> may have been expected to hold it, a lost future earnings award
> compensates the plaintiff for the diminution in expected earnings in
> all of her future jobs for as long as the reputational or other injury
> may be expected to affect her prospects. \* \* \* \[W\]e caution lower
> courts to take care to separate the equitable remedy of front pay from
> the compensatory remedy of lost future earnings. \* \* \* Properly
> understood, the two types of damages compensate for different injuries
> and require the court to make different kinds of calculations and
> factual findings. District courts should be vigilant to ensure that
> their damage inquiries are appropriately cabined to protect against
> confusion and potential overcompensation of plaintiffs.

A special interrogatory may be necessary for the court to prevent a
double recovery.

**3.11 BACK PAY**

If you find that Plaintiff has proven his claim of
\[discrimination/retaliation\] by a preponderance of the evidence, you
may award him as damages any lost wages and benefits he would have
received from the Defendant if he had not been \[*adverse employment
action*\] \[minus the earnings and benefits that plaintiff received from
other employment during that time \[that he would not otherwise have
received\]\]. \[It is Plaintiff=s burden to prove that he lost wages and
benefits and their amount. If he fails to do so for any periods of time
for which he seeks damages, then you may not award damages for that time
period.\]

**Committee Comments**

a\. **Usage:** Ordinarily, this instruction will not be given, because
back pay is an equitable remedy to be decided by the court. *See, e.g.,
David v. Caterpillar, Inc.*, 324 F.3d 851, 866 (7th Cir. 2003). However,
the court may empanel the jury as an advisory jury on the issue; or the
parties may, with the court=s consent, agree that the jury will decide
the issue. *Pals v. Schepel Buick & GMC Truck, Inc.,* 220 F.3d 495,
499-501 (7th Cir. 2000).

b\. **Limiting Subsequent Events:** Where the plaintiff=s back pay
damages are limited by subsequent events, the court should instruct the
jury that it may not award back pay damages beyond that event. For
example, such a limiting instruction may be appropriate where a
plaintiff alleging unlawful discharge subsequently obtains a higher
paying job or is offered reinstatement by the employer, *Ford Motor Co.
v. EEOC*, 458 U.S. 219, 232-234 (1982); where a plaintiff challenging a
denial of a promotion subsequently voluntarily resigns in circumstances
not amounting to a constructive discharge, *Hertzberg v. SRAM Corp.*,
261 F.3d 651, 660 n.8 (7th Cir. 2001); where a plaintiff has voluntarily
removed himself from the labor market, *Hunter v. Allis-Chalmers Corp.*,
797 F.2d 1417, 1428 (7th Cir. 1986); where a plaintiff becomes medically
unable to work, *Flowers v. Komatsu Mining Sys., Inc.*, 165 F.3d 554,
557-558 (7th Cir. 1999); where periodic plant shutdowns limit the amount
of time the plaintiff could have worked had he not been terminated,
*Gaddy v. Abex Corp.*, 884 F.2d 312, 320 (7th Cir. 1989); or where
plaintiff inexcusably delayed in prosecuting his case, *Kamberos v. GTE
Automatic Elec. Inc.*, 603 F.2d 598, 603 (7th Cir. 1979).

c\. **Burden of Proof:** The plaintiff bears the burden of presenting
evidence that he had lost wages and benefits and their amount. *Horn v.
Duke Homes, Div. of Windsor Mobile Homes*, 755 F.2d 599, 606-608 (7th
Cir. 1985). In many cases, whether the plaintiff has presented evidence
to satisfy this burden will not be in dispute. In the event it is, the
instruction regarding Plaintiff=s burden should be given.

d\. **Mitigation:** If failure to mitigate is an issue, a separate
instruction is provided. *See* Instruction 3.12.

e\. **Multiple Claims:** Where a plaintiff has multiple claims that
might result in separate damage determinations, for example a claim of
unlawful failure to promote paired with a claim of unlawful termination,
the court should instruct separately on the back pay damages
determination as to each claim.

**3.12 MITIGATION**

Defendant argues that Plaintiff=s claim for lost wages and benefits
should be reduced by \[*describe the reduction*\].

If you find that

> 1\. Plaintiff did not take reasonable actions to reduce his damages,
> and
>
> 2\. that Plaintiff reasonably might have found comparable employment
> if he had taken such action,

you should reduce any amount you might award Plaintiff for \[lost
wages\] \[benefits\] \[other damages\] by the amount Plaintiff
reasonably would have earned during the period for which you are
awarding \[lost wages\] \[benefits\] \[other damages\].

Defendant must prove both that the reduction should be made and its
amount.

**Committee Comments**

a\. **General:** This instruction reflects the Aobvious policy imported
from the general theory of damages, that a victim has a duty \>to use
such means as are reasonable under the circumstances to avoid or
minimize the damages= that result from violations of \[Title VII\] . . .
.@ *Gawley v. Indiana University*, 276 F.3d 301, 312 (7th Cir. 2001)
(internal citations omitted). The defendant bears the burden of showing
that the plaintiff did or could have mitigated his damages and the
amount. *Sheehan v. Donlen Corp.*, 173 F.3d 1039, 1048-1049 (7th Cir.
1999); *Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc.*, 755
F.2d 599, 606-608 (7th Cir. 1985).

b\. **Interim Wages and Benefits:** Interim wages and benefits earned by
the plaintiff or earnable with reasonable diligence will reduce the
amount of lost wages and benefits awardable. 42 U.S.C. \'2000e-5(g)(1);
*Orzel v. City of Wauwatosa*, 697 F.2d 743, 756 (7th Cir. 1983) (ADEA).
Additionally, the court may determine that lost wages and benefits
should be reduced by other amounts as well. *Wilson v. Chrysler Corp.*,
172 F.3d 500, 511 (7th Cir. 1999) (disability benefits provided by the
employer); *Flowers v. Komatsu Mining Sys., Inc.*, 165 F.3d 554, 558
(7th Cir. 1999) (Social Security disability benefits); *Chesser v. State
of Illinois*, 895 F.2d 330, 337-338 (7th Cir. 1990) (wages from
moonlighting jobs plaintiff could not have held had he continued to be
employed); *Syvock v. Milwaukee Boiler Mfg. Co.,*, 665 F.2d 149, 161-162
(7th Cir. 1981) (unemployment benefits). In such situations, the court
should instruct appropriately.

c\. **Usage:** This instruction is not intended to be sufficient if the
plaintiff claims non-employment-related compensatory damages.

**3.13 PUNITIVE DAMAGES**

If you find for Plaintiff, you may, but are not required to, assess
punitive damages against Defendant. The purposes of punitive damages are
to punish a defendant for his conduct and to serve as an example or
warning to Defendant and others not to engage in similar conduct in the
future.

Plaintiff must prove by a preponderance of the evidence that punitive
damages should be assessed against Defendant. You may assess punitive
damages only if you find that \[his conduct\] \[the conduct of
Defendant=s \[managerial employees, officers\],\] was in reckless
disregard of Plaintiff=s rights. An action is in reckless disregard of
Plaintiff=s rights if taken with knowledge that it may violate the law.

\[Plaintiff must prove by a preponderance of the evidence that
Defendant=s \[managerial employees, officers\] acted within the scope of
their employment and in reckless disregard of Plaintiff=s right not to
be \[discriminated and/or retaliated\] against. \[In determining whether
\[*Name*\] was a managerial employee of Defendant, you should consider
the kind of authority Defendant gave him, the amount of discretion he
had in carrying out his job duties and the manner in which he carried
them out.\] You should not, however, award Plaintiff punitive damages if
Defendant proves that it made a good faith effort to implement an
anti-discrimination policy.\]

If you find that punitive damages are appropriate, then you must use
sound reason in setting the amount of those damages. Punitive damages,
if any, should be in an amount sufficient to fulfill the purposes that I
have described to you, but should not reflect bias, prejudice, or
sympathy toward either/any party. In determining the amount of any
punitive damages, you should consider the following factors:

\- the reprehensibility of Defendant=s conduct;

\- the impact of Defendant=s conduct on Plaintiff;

> \- the relationship between Plaintiff and Defendant;
>
> \- the likelihood that Defendant would repeat the conduct if an award
> of punitive damages is not made;

\[- Defendant=s financial condition;\]

> \- the relationship of any award of punitive damages to the amount of
> actual harm the Plaintiff suffered.

**Committee Comments**

a\. **Authority:** Title 42 U.S.C. \'1981a(b)(1) states that punitive
damages may be awarded where the Defendant Aengaged in a discriminatory
practiceY with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.@ *Kolstad v. American
Dental Ass=n*, 527 U.S. 526, 535 (1999), interprets Amalice@ or
Areckless disregard@ to refer to the employer=s knowledge that it may be
violating federal law. For cases applying this standard, *see*, *e.g.*,
*Hertzberg v. SRAM Corp.*, 261 F.3d 651, 661-662 (7th Cir. 2001); *Cooke
v. Stefani Mgmt. Services, Inc.*, 250 F.3d 564, 568-570 (7th Cir. 2001);
*Gile v. United Airlines, Inc.*, 213 F.3d 365, 375-376 (7th Cir. 2000).
The same standard applicable to punitive damages claims under 42 U.S.C.
\'1981a(b)(1) applies under 42 U.S.C. \'1981. *Lowery v. Circuit City
Stores, Inc.*, 206 F.3d 431, 440-441 (4th Cir. 2000). Because including
the term malice is potentially confusing in light of his interpretation,
it is not used in the instruction.

b\. **Governmental Entities:** Punitive damages are not available
against a government, government agency, or political subdivision. 42
U.S.C. \' 1981a(b)(1).

c\. **ADEA:** Punitive damages are not available under the ADEA, except
for a retaliation claim. *Pfeifer v. Essex Wire Corp.*, 682 F.2d 684,
687-688 (7th Cir. 1982); *Moskowitz v. Trustees of Purdue Univ.*, 5 F.3d
279, 283-284 (7th Cir. 1993).

d\. **ADA Retaliation Claims:** Punitive damages are not available on
ADA retaliation claims. *Kramer v. Banc of America Sec., LLC,* 355 F.3d
961, 965 (7th Cir. 2004).

e\. **Managerial Capacity:** Where there is an issue as to whether an
employee was acting in a managerial capacity justifying the imposition
of punitive damages, the relevant bracketed portion of the instruction
should be included. *Hertzberg v. SRAM Corp.*, 261 F.3d 651, 663 (7th
Cir. 2001).

f\. **Defendant=s Financial Condition as Punitive Damages
Consideration.** This element should not be included if there was no
evidence of the defendant=s financial condition. The Committee takes no
position on whether emerging law makes this element inappropriate. *See*
*State Farm Mut. Ins. Co. v. Campbell*, 538 U.S. 408, 427-428 (2003)
(AThe remaining premises for the Utah Supreme court=s decision bear no
relation to the award=s reasonableness or proportionality to the harm. .
. The wealth of a defendant cannot justify an otherwise unconstitutional
punitive damages award.@); *BMW of North Am., Inc. v. Gore*, 517 U.S.
559, 573-583 (1996) (Court did not include the defendant=s wealth as a
relevant factor when considering punitive damages); *Zazu Designs v.
L=Oreal, S.A.*, 979 F.2d 499, 508-509 (7th Cir. 1992) (noting that a
corporate defendant=s net worth is irrelevant to the assessment of
punitive damages against it); *Pivot Point Int=l, Inc. v. Charlene
Products, Inc.*, 932 F. Supp. 220, 223 (N.D. Ill. 1996)(evidence
concerning financial information Ahas . . . \[the\] potential to
distract the jury from the essential issues of the case.@).

**4. EMPLOYMENT DISCRIMINATION: AMERICANS WITH DISABILITIES ACT**

**4.01 NATURE OF ADA CLAIM AND DEFENSE**

Plaintiff has brought this lawsuit under a federal law called the
Americans with Disabilities Act, which is often referred to by its
initials, AADA.@ Under the ADA, it is illegal for an employer to
discriminate against a person with a disability if that person is
qualified to do the essential functions of his job and the employer is
aware of his limitations.

In this case, Plaintiff claims that Defendant discriminated against him
by \[not accommodating his disability\] / \[not hiring/not promoting/
firing him because he had a disability\]. Defendant denies that it
discriminated against Plaintiff and says that \[*describe Defendant=s
theory of defense, if applicable*\].

As you listen to these instructions, please keep in mind that many of
the terms I will use have a special meaning under the law. So please
remember to consider the specific definitions I give you, rather than
using your own opinion as to what these terms mean.

**Committee Comments**

This instruction is based upon [Eleventh Circuit Pattern Jury
Instruction]{.smallcaps}C[Civil]{.smallcaps} \'\' 1.5.1 (ADisparate
Treatment Claim@) and 1.5.2 (AReasonable Accommodation Claim@) (2000).
The instruction also conforms with *Weigel v. Target Stores*, 122 F.3d
461, 463-465 (7th Cir. 1997).

**[4.02 Elements of An ADA Claim]{.smallcaps} B [Disparate Treatment
]{.smallcaps}**

**[(Non-Accommodation) Cases]{.smallcaps}**

To succeed in this case, Plaintiff must prove four things by a
preponderance of the evidence:

1\. \[Plaintiff had/ Defendant regarded Plaintiff as having/ Plaintiff
had a record of\] a disability. I will define Adisability@ and several
other important terms for you in a few minutes;

2\. Plaintiff was Aqualified@ to perform the job;

3\. Defendant \[*describe adverse employment action*\] Plaintiff;

4\. Defendant would not have \[*taken action*\] if Plaintiff had not had
a disability, but everything else had been the same.

\[If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, you should turn to the issue of
Plaintiff=s damages. If you find that Plaintiff has failed to prove any
of these things by a preponderance of the evidence, your verdict should
be for Defendant.\][^2]

**Committee Comments**

a\. **General Authority:** Parts of this instruction are drawn from 42
U.S.C. \' 12111(8) (definition of Aqualified individual@). The
instruction conforms with Seventh Circuit authority. *See Hoffman v.
Caterpillar, Inc.*, 256 F.3d 568, 572-576 (7th Cir. 2001); *Lawson v.
CSX Transp., Inc.*, 245 F.3d 916, 922-923 (7th Cir. 2001); *Foster v.
Arthur Andersen LLP*, 168 F.3d 1029, 1032-1033 (7th Cir. 1999); *Duda v.
Board of Educ. of Franklin Park*, 133 F.3d 1054, 1058-1059 (7th Cir.
1998). *See also* [Eighth Circuit Manual of Model Jury
Instructions]{.smallcaps}C[Civil]{.smallcaps} \' 5.51A (AADA B Disparate
Treatment B Essential Elements (Actual Disability)@) and \' 5.51B (AADA
B Disparate Treatment B Essential Elements (Perceived Disability)@)
(2001); [Ninth Circuit Manual of Model Jury Instructions]{.smallcaps}
C[Civil]{.smallcaps} \' 15.2 (AElements of ADA Employment Action@)
(2001); [Eleventh Circuit Pattern Jury
Instructions]{.smallcaps}C[Civil]{.smallcaps} \' 1.5.1 (ADisparate
Treatment Claim@) (2000).

b\. **Disparate Treatment:** This instruction for disparate treatment
cases is separate from a similar instruction for reasonable
accommodation cases because in *Bultemeyer v. Fort Wayne Cmty. Schools*,
100 F.3d 1281, 1283-1284 (7th Cir. 1996), the Seventh Circuit explained
that disparate treatment and reasonable accommodation claims must be
Aanalyzed differently@:

> Bultemeyer is not complaining that FWCS treated him differently and
> less favorably than other, non-disabled employees. He is not comparing
> his treatment to that of any other FWCS employee. His complaint
> relates solely to FWCS= failure to reasonably accommodate his
> disability. Because this is not a disparate treatment case, the
> *McDonnell-Douglas* burden-shifting method of proof is unnecessary and
> inappropriate here.

*Accord,* *Foster v. Arthur Andersen LLP*, 168 F.3d 1029, 1032 (7th Cir.
1999) (*citing Sieberns v. Wal-Mart Stores, Inc.*, 125 F.3d 1019,
1021-1022 (7th Cir. 1997)); *Weigel v. Target Stores*, 122 F.3d 461, 464
(7th Cir. 1997) (*citing Bultemeyer v. Fort Wayne Schs.*, 100 F.3d at
1284). *See Hoffman v. Caterpillar, Inc.*, 256 F.3d 568, 574 (7th Cir.
2001) (AIt would be redundant to require a plaintiff to utilize the
\[*McDonnell-Douglas*\] burden shifting method to raise a presumption of
discrimination if he or she possesses direct evidence of
discrimination@).

c\. **Causation:** The causation requirement in the fourth element is
based on *Foster v. Arthur Andersen LLP*, 168 F.3d 1029, 1032-1033 (7th
Cir. 1999), and *Weigel v. Target Stores*, 122 F.3d 461, 465 (7th Cir.
1997), both citing 42 U.S.C. \' 12112(a) (ANo covered entity shall
discriminate against a qualified individual with a disability *because
of* the disability. . . .@) (italics added).

d\. **Mixed Motive:** As in other types of employment discrimination
cases, the Committee recognizes that an employer=s decision might be
based on mixed motives. If a court believes that it is appropriate to
instruct the jury on mixed motive, the Committee recommends replacing
the fourth element with the following language:

> Plaintiff must prove by a preponderance of the evidence that his
> disability was a motivating factor in Defendant=s decision to
> \[*adverse action*\] him. A motivating factor is something that
> contributed to Defendant=s decision.
>
> If you find that Plaintiff has proved that his disability contributed
> to Defendant=s decision to \[*adverse action*\] him, you must then
> decide whether Defendant proved by a preponderance of the evidence
> that it would have \[*adverse action*\] him even if Plaintiff did not
> have a disability. If so, Plaintiff is not entitled to an award of
> damages.

*See* Instruction No. 3.01, comment c, for further discussion on mixed
motive in employment discrimination cases.

e\. **Constructive Discharge:** If the plaintiff alleges that the
defendant constructively discharged him because of his disability, the
court should replace the third and fourth elements of the instruction
with the following language:

> 3\. He was forced to quit his job because Defendant purposely made his
> working conditions so intolerable that a reasonable person in his
> position would have had to quit.
>
> 4\. Defendant would not have forced him to quit if he had not had a
> disability, but everything else was the same.

*See* *EEOC v. Sears, Roebuck & Co.*, 233 F.3d 432, 440-441 (7th Cir.
2000), and *Miranda v. Wisconsin Power & Light Co.*, 91 F.3d 1011, 1017
(7th Cir. 1996); *see also* Instruction 3.01, comment d.

**4.03. ELEMENTS OF PLAINTIFF=S CLAIM B**

**REASONABLE ACCOMMODATION CASES**

In this case, Plaintiff claims that Defendant unlawfully refused to give
him a Areasonable accommodation.@ To succeed, Plaintiff must prove five
things by a preponderance of the evidence:

1\. Plaintiff had a disability. I will define Adisability@ and several
other important terms for you in a few minutes;

2\. Plaintiff was qualified to perform the job;

> 3\. Plaintiff requested an accommodation;

4\. Defendant was aware of Plaintiff=s disability at the time of
Plaintiff=s request;

> 5\. Defendant failed to provide Plaintiff with a reasonable
> accommodation.

\[If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, you should turn to the issue of
Plaintiff=s damages. If you find that Plaintiff has failed to prove any
of these things by a preponderance of the evidence, your verdict should
be for Defendant.\][^3]

**Committee Comments**

a\. **General Authority:** This instruction is drawn from 42 U.S.C. \'\'
12111(9) and 12112(a), and from [Ninth Circuit Manual of Model Civil
Jury Instructions]{.smallcaps} \' 15.2 (2001) (AElements of ADA
Employment Action@); [Eleventh Circuit Pattern Jury Instructions (Civil
Cases)]{.smallcaps} \' 1.5.2 (2000) (AReasonable Accommodation Claim@);
and [Eighth Circuit Manual of Model Civil Jury Instructions]{.smallcaps}
\' 5.51C (2001) (AADA - Reasonable Accommodation Cases@).

Whether a person Aregarded as@ having a disability is entitled to an
accommodation is an open question in this circuit. *Cigan v. Chippewa
Falls Sch. Dist.*, 388 F.3d 331, 335 (7th Cir. 2004) (ABecause the
record would not permit a reasonable trier of fact to conclude that the
school district regarded Cigan as \"disabled,\" we need not decide
whether the ADA requires an employer to accommodate the demands of a
person who is regarded as disabled but lacks an actual disability.@).
*Compare Williams v. Philadelphia Housing Auth.*, 380 F.3d 751 (3rd Cir.
2004) (requiring accommodation), *with Weber v. Strippit, Inc.*, 186
F.3d 907 (8th Cir. 1999) (holding Aredarded as@ disabled plaintiffs not
entitled to reasonable accommodation).

b\. **Employer=s Awareness of Disability.** If the applicant or employee
does not ask for an accommodation, the employer does not have to provide
one unless it knows of the disability. *Hedberg v. Indiana Bell Tel.
Co., Inc.*, 47 F.3d 928, 934 (7th Cir. 1995). If a disability and the
need to accommodate it are obvious, however, the law does not always
require an applicant or employee to expressly ask for a reasonable
accommodation. *See Hedberg v. Indiana Bell Tel.*, 47 F.3d at 934
(A\[I\]t may be that some symptoms are so obviously manifestations of an
underlying disability that it would be reasonable to infer that an
employer actually knew of the disability. . . . \[D\]eliberate ignorance
\[should not\] insulate an employer from liability.@); *see also*
*Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co.*, 201 F.3d 894,
899 (7th Cir. 2000) (A\[T\]here will be exceptions to the general rule
that an employee must request an accommodation.@) (*citing* *Bultemeyer
v. Fort Wayne Cmty. Schs.*, 100 F.3d 1281, 1285 (7th Cir. 1996), and 29
C.F.R. \' 1630.2(o)(3)).

Similarly, if the disability makes it difficult for the applicant or
employee to communicate his needs, an employer must make a reasonable
effort to understand those needs, even if they are not clearly
communicated. For example, an employer cannot always expect a
mentally-disabled employee to know that he should ask for an
accommodation. Instead, the employer should start communicating with an
employee if it knows that he might be mentally disabled. *See*
*Bultemeyer v. Fort Wayne Schs.*, 100 F.3d at 1285-1286; *Jovanovic v.
In-Sink-Erator Div.*, 201 F.3d at 899; *Hedberg v. Indiana Bell. Tel.*,
47 F.3d at 934 & n.7; 29 C.F.R. \' 1630.2(o)(3). *See also* *Taylor v.
Phoenixville Sch. Dist.*,184 F.3d 296, 315 (3rd Cir. 1999) (AAnother
reason for placing some burden on the employer is that, as the Seventh
Circuit recognized in *Bultemeyer*, an employee with a mental illness
may have difficulty effectively relaying medical information about his
or her condition, particularly when the symptoms are flaring and
reasonable accommodations are needed.@).

Once the employer is aware of the possible need for an accommodation, it
must discuss that possibility with the applicant or employee as part of
an interactive process. *Hansen v. Henderson*, 233 F.3d 521, 523 (7th
Cir. 2000); *Rehling v. City of Chicago*, 207 F.3d 1009, 1015 (7th Cir.
2000); *Beck v. University of Wisconsin Bd. of Regents*, 75 F.3d 1130,
1135 (7th Cir. 1996). *See also* Instruction 4.08, comment b. An
applicant or employee, however, need not discuss a disability with an
employer until he needs a reasonable accommodation.

In all of the circumstances described in this comment, a court may need
to tailor the language of the elements instruction to take account of a
case=s particular facts.

**4.04. DEFINITION OF ADISABILITY@**

Under the ADA, the term Adisability@ means a \[physical/mental\]
impairment[^4] that Asubstantially limits@ \[*describe major life
activity or activities involved in the case*\].[^5] I will now define
some of these terms in more detail. Again, I remind you to consider the
specific definitions I give you, and not to use your own opinion as to
what these terms mean.

*(a) Substantially Limiting*[^6]

Under the ADA, an impairment Asubstantially limits@ a person=s ability
to \[*describe relevant activity*\] if it prevents or severely restricts
him from \[*relevant activity*\], compared to the average person in the
general population.

To decide if Plaintiff=s \[alleged\] impairment substantially limits
Plaintiff=s ability to \[*relevant activity*\], you should consider the
nature and severity of the impairment, how long it is expected to last,
and its expected long-term impact.

Only impairments with a permanent or long-term impact are disabilities
under the ADA. Temporary injuries and short-term impairments are not
disabilities. \[Even so, some disabilities are permanent, but only
appear from time to time. For example, if a person has a mental or
physical disease that usually is not a problem, but flares up from time
to time, that can be a disability if it substantially limits a major
life activity.\]

*(b) Definition of ARegarded As@*[^7]

Under the ADA, a person is Aregarded as@ having a disability if:

> 1\. The employer believes that the person has a physical or mental
> impairment that substantially limits his ability to \[*describe
> relevant activity*\]; or
>
> 2\. The employer believes that an actual impairment substantially
> limits his ability to \[*relevant activity*\] when it does not,
> because of the attitude that others have about the impairment; or
>
> 3\. The person does not have any impairment, but the employer treats
> him as having an impairment that substantially limits his ability to
> \[*relevant activity*\].

*(c) Definition of ARecord Of@*[^8]

Under the ADA, a person has Aa record of a disability@ if he has a
record of a physical or mental impairment that substantially limits a
person=s ability to perform one or more major life activities. This
includes someone who has had a substantially limiting impairment but is
now recovered. It also includes someone whose substantially limiting
impairment is currently in remission or is controlled by medication.

**Committee Comments**

a\. **Format:** The basic format for this instruction is taken from the
[Eleventh Circuit Pattern Jury Instructions (Civil Cases)]{.smallcaps}
\' 1.5.1 (2000) (ADisparate Treatment Claim@), but with modifications
based on the Supreme Court=s decision in *Toyota Motor Mfg., Kentucky,
Inc. v. Williams*, 534 U.S. 184 (2002), and on the Seventh Circuit cases
cited below.

b\. **Physical or Mental Impairments:** Regulations to the ADA define
Aphysical impairment@ as including any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological, neuromuscular, special
sense organs, cardiovascular, reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine. The term Amental impairment@
includes any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. *See* 29 C.F.R. \' 1630.2(h); *see also
Sutton v. United Air Lines, Inc.*, 527 U.S. 471, 479-480 (1999);
*DePaoli v. Abbott Labs.*, 140 F.3d 668, 671 (7th Cir. 1998). The
Committee suggests that courts can borrow language from these
definitions when it would be helpful to a jury in resolving a dispute
regarding whether a physical or mental impairment exists.

c\. **Major Life Activities:** In rare cases, the question of whether a
Amajor life activity@ is implicated may arise. In such cases, the
Committee suggests that a court include the following language in the
first paragraph of the instruction:

> Under the ADA, the term Adisability@ includes a \[physical/mental\]
> impairment[^9] that Asubstantially limits@ a Amajor life activity.@
> Major life activities are activities that are of central importance to
> everyday life. They are activities that an average person can do
> without much difficulty. Examples include: caring for yourself, doing
> manual tasks (such as household chores), bathing, brushing teeth,
> walking, talking, seeing, hearing, breathing, learning, and working.

This definition of Amajor life activity@ conforms to *Toyota Motor v.
Williams*, 534 U.S. at 195; *Sutton v. United Air Lines*, 527 U.S. at
479-480, *citing* 29 C.F.R. \'\' 1630.2(h)-(j); *Lawson v. CSX Transp.,
Inc.*, 245 F.3d 916, 923-924 (7th Cir. 2001); and *Sinkler v. Midwest
Property Mgmt. Ltd. Partnership*, 209 F.3d 678, 683-684 (7th Cir. 2000).
*See also Furnish v. SVI Sys., Inc.*, 270 F.3d 445 (7th Cir. 2001)
(liver function is not a major life activity).

d\. **Substantially Limiting:** The Asubstantial limitation@ definition
conforms to 42 U.S.C. \' 12101(2) (definition of Adisability@); *Toyota
Motor v. Williams*, 534 U.S. at 195-197; *Sutton v. United Air Lines*,
527 U.S. at 488-492; *Murphy v. United Parcel Serv., Inc.*, 527 U.S. 516
(1999); *Albertson=s, Inc. v. Kirkingburg*, 527 U.S. 555 (1999); *EEOC
v. Sears, Roebuck & Co.*, 233 F.3d 432, 438-439 (7th Cir. 2000);
*Haschmann v. Time Warner Entertainment Co.*, 151 F.3d 591, 599-600 (7th
Cir. 1998) (*citing Vande Zande v. Wisconsin Dep=t of Admin.*, 44 F.3d
538, 544 (7th Cir.1995)); *Dalton v. Subaru-Isuzu Automotive, Inc.*, 141
F.3d 667, 675-676 (7th Cir. 1998); *DePaoli v. Abbott Labs.*, 140 F.3d
at 671-672.

e\. **Devices or Medication:** If a plaintiff uses a device or
medication that arguably prevents him from being substantially limited
in a major life activity, a court might add the following language to
the end of the section on the definition of Asubstantially limiting@:

> You also should consider any devices or medication used by Plaintiff
> for his impairment. Under the ADA, a person is not disabled if he uses
> a device or medication that prevents him from being substantially
> limited in a major life activity. For example, a person with high
> blood pressure is not disabled if, when he is medicated, his high
> blood pressure does not substantially limit him in a major life
> activity. However, a person who uses a device or takes medication is
> disabled if he is still substantially limited in a major life activity
> despite using a device or taking medication, or if the device or
> medication itself substantially limits him in that activity.

f\. **Work as a Major Life Activity:** The footnote on working as a
major life activity conforms to *Toyota Motor v. Williams*, 534 U.S. at
197-201; *Sutton v. United Air Lines*, 527 U.S. at 491-494; *Patterson
v. Chicago Ass=n for Retarded Citizens*, 150 F.3d 719, 725-726 (7th Cir.
1998); and *DePaoli v. Abbott Labs.*, 140 F.3d at 671.

g\. **Regarded As:** This instruction is taken from [Eleventh Circuit
Pattern Jury Instructions (Civil Cases)]{.smallcaps} \' 1.5.1 (2000)
(ADisparate Treatment Claim@) and [Ninth Circuit Manual of Model Civil
Jury Instructions]{.smallcaps} \' 15.2 (2001) (ACorrected or Mitigated
Disability@), and conforms with 42 U.S.C. \' 12102(2)(c)); *Sutton v.
United Air Lines*, 527 U.S. at 489, *citing* 29 C.F.R. \'\' 1630.2(l);
*Murphy v. United Parcel Serv.*, 527 U.S. at 521-525; *Albertson=s v.
Kirkingburg*, 527 U.S. at 563; *Bragdon v. Abbott*, 524 U.S. 624,
637-638 (1998); *Kupstas v. City of Greenwood*, 398 F.3d 609, 613 (7th
Cir. 2005) (Aeven if the city had viewed this as an impairment that
prevented Kupstas from performing his duties, we have held that more
serious restrictions do not substantially limit one=s general ability to
work.@); *Mattice v. Memorial Hosp. of South Bend, Inc.*, 249 F.3d 682,
684-685 (7th Cir. 2001) (allegation that hospital perceived
anesthesiologist as having suffered impairment in major life activity of
cognitive thinking stated ADA claim); *Amadio v. Ford Motor Co.*, 238
F.3d 919, 925 (7th Cir. 2001); *Bay v. Cassens Transport Co.*, 212 F.3d
969, 973 (7th Cir. 2000); *Sinkler v. Midwest Property Mgmt. Ltd.
Partnership*, 209 F.3d at 686; *Dalton v. Subaru-Isuzu Automotive,* 141
F.3d at 675; *DePaoli v. Abbott Labs.*, 140 F.3d at 671; *see also* 29
C.F.R. \' 1630.2(l). The purpose of the Aregarded as@ definition of a
disability is to Acover individuals \>rejected from a job because of
myths, fears and stereotypes= associated with disabilities.@ *Amadio v.
Ford Motor Co.*, 238 F.3d 919, 925 (7th Cir. 2001) (*citing Sutton v.
United Air Lines, Inc.*, 527 U.S. at 489-490 (*quoting* 29 C.F.R. pt.
1630, app. \' 1630.2(1)).

h\. **Record Of:** This instruction conforms to 42 U.S.C. \'
12101(2)(B); 29 C.F.R. \' 1630.2(k); and *Mattice v. Memorial Hosp.*,
249 F.3d at 686 (anesthesiologist=s alleged record of impairment in the
major life activities of sleeping, eating, thinking, and caring for
himself stated ADA claim); *Duda v. Board of Educ. of Franklin Park*,
133 F.3d 1054, 1058 n.6 (7th Cir. 1998) (*quoting* 29 C.F.R. \'
1630.2(I)); *EEOC Compliance Manual* \' 902.7(b)). *See School Bd. of
Nassau County v. Arline*, 480 U.S. 273, 281 (1987) (plaintiff=s
hospitalization for acute form of tuberculosis established record of
substantially limiting impairment for Rehabilitation Act purposes).

**4.05. DEFINITION OF AQUALIFIED@**

Under the ADA, Plaintiff was Aqualified@ if he had the skill,
experience, education, and other requirements for the job and could do
the job=s essential functions, either with or without \[*describe
requested accommodation*\]. You should only consider Plaintiff=s
abilities at the time when \[*describe challenged employment
decision*\].

Not all job functions are Aessential.@ Essential functions are a job=s
fundamental duties. In deciding whether a function is essential, you may
consider the reasons the job exists, the number of employees Defendant
has to do that kind of work, the degree of specialization the job
requires, Defendant=s judgment about what is required, the consequences
of not requiring an employee to satisfy that function, and the work
experience of others who held position.

\[In addition to specific job requirements, an employer may have general
requirements for all employees. For example, the employer may expect
employees to refrain from abusive or threatening conduct toward others,
or may require a regular level of attendance.\]

**Committee Comments**

a\. **General Authority:** *See* 42 U.S.C. \'\' 12111(8) (definition of
Aqualified individual with a disability@) and 12111 (employment-related
definitions); 29 C.F.R. pt. 1630, App. \' 1630.2(m) (qualified
individual). *See also* [Ninth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \'\' 15.6, 15.7 (2001) (AQualified Individual@
and AAbility to Perform Essential Functions B Factors@); [Eleventh
Circuit Pattern Jury Instructions (Civil Cases)]{.smallcaps} \'\' 1.5.1,
1.5.2 (2000) (ADisparate Treatment Claim@ and AReasonable Accommodation
Claim@).

b\. **Skill, Experience, Education:** *See* *Ozlowski v. Henderson*, 237
F.3d 837, 841 (7th Cir. 2001); *citing* 29 C.F.R. pt. 1630, app.; *Bay
v. Cassens Transport Co.*, 212 F.3d 969, 973-974 (7th Cir. 2000);
*Haschmann v. Time Warner Entertainment Co.*, 151 F.3d 591, 599 (7th
Cir. 1998); *Dalton v. Subaru-Isuzu Automotive, Inc.*, 141 F.3d 667, 675
(7th Cir. 1998) (*citing Bombard v. Fort Wayne Newspapers, Inc.*, 92
F.3d 560, 563 (7th Cir. 1996), and 29 C.F.R. pt. 1630 App. \'
1630.2(m)); *Duda v. Board of Educ. of Franklin Park*, 133 F.3d 1054,
1058-1059 (7th Cir. 1998); and *Bultemeyer v. Fort Wayne Cmty. Schs.*,
100 F.3d 1281, 1284-1285 (7th Cir. 1996).

c\. **Time of Relevant Employment Decision:** *See* *Bay v. Cassens
Transport Co.*, 212 F.3d 969, 974 (7th Cir. 2000) (AWhether or not an
individual meets the definition of a qualified individual with a
disability is to be determined as of the time the employment decision
was made.@) (*citing Weiler v. Household Fin. Corp.*, 101 F.3d 519, 524
(7th Cir. 1996).

d\. **Determining Essential Job Functions:** *See Winfrey v. City of
Chicago*, 259 F.3d 610, 615-617 (7th Cir. 2001); *Ozlowski v.
Henderson*, 237 F.3d 837, 841 (7th Cir. 2001); *Hansen v. Henderson*,
233 F.3d 521, 523-524 (7th Cir. 2000); *Malabarba v. Chicago Tribune
Co.*, 149 F.3d 690, 700 (7th Cir. 1998); *Duda v. Board of Educ. of
Franklin Park*, 133 F.3d 1054, 1058-1059 (7th Cir. 1998); *Miller v.
Illinois Dep=t of Corrections*, 107 F.3d 483, 485 (7th Cir. 1997);
*Cochrum v. Old Ben Coal Co.*, 102 F.3d 908, 912 (7th Cir. 1996). Under
29 C.F.R. \' 1630.2(n), evidence of whether a particular function is
essential can include B but is not limited to B the employer=s own
judgment about which functions are essential; a job description written
before the employer advertised or interviewed applicants for the job;
how much time was spent on the job performing the function; the
consequences of not requiring the person in the job to perform the
function; the terms of a union contract, if there was one; the work
experience of employees who held the job in the past; and the current
work experience of persons holding similar jobs. *See Winfrey v. City of
Chicago*, 259 F.3d at 615-617 (showing that not all employees perform at
a particular time all the essential job functions does not make those
functions non-essential); *Malabarba v. Chicago Tribune Co.*, 149 F.3d
at 700 (same); *Miller*, 107 F.3d at 485 (Aif an employer has a
legitimate reason for specifying multiple duties for a particular job
classification, duties the occupant of the position is expected to
rotate through, a disabled employee will not be qualified for the
position unless he can perform enough of these duties to enable a
judgment that he can perform its essential duties@).

e\. **General Job Requirements:** The optional language in brackets
about general job requirements conforms with *Waggoner v. Olin Corp.*,
169 F.3d 481, 484-485 (7th Cir. 1999), and *Nowak v. St. Rita High
School*, 142 F.2d 999, 1003 (7th Cir. 1998).

**4.06. REASONABLE ACCOMMODATION: GENERAL INSTRUCTION**

Under the ADA, to Aaccommodate@ a disability is to make some change that
will let a person with a disability \[perform/apply for/be eligible
for\] the job. An accommodation is Areasonable@ if it is effective and
its costs are not clearly disproportionate to the benefits that it will
produce.

A reasonable accommodation may include a change in such things as
ordinary work rules, facilities, conditions, or schedules, but does not
include elimination or change of essential job functions, assignment of
essential job functions to other employees, or lower productivity
standards.

**Committee Comments**

a\. **General Authority:** *See Gile v. United Airlines, Inc*., 213 F.3d
365, 373-374 (7th Cir. 2000); *Haschmann v. Time Warner Entertainment
Co.*, 151 F.3d 591, 601-602 (7th Cir. 1998); *Malabarba v. Chicago
Tribune Co.*, 149 F.3d 690, 697, 699 (7th Cir. 1998); *Steffes v. Stepan
Co.*, 144 F.3d 1070, 1072-1073 (7th Cir. 1998); *Dalton v. Subaru-Isuzu
Automotive, Inc.*, 141 F.3d 667, 677-680 (7th Cir. 1998); *DePaoli v.
Abbott Labs.*, 140 F.3d 668, 674-675 (7th Cir. 1998); *Duda v. Board of
Ed. of Franklin Park Public School Dist.*, 133 F.3d 1054, 1058 (7th Cir.
1998); *Miller v. Illinois Dep=t of Corrections*, 107 F.3d 483, 486 (7th
Cir. 1997); *Weiler v. Household Fin. Corp.*, 101 F.3d 519, 525-526 (7th
Cir. 1996); *Bultemeyer v. Fort Wayne Cmty. Schs.*, 100 F.3d 1281,
1283-1286 (7th Cir. 1996); *Eckles v. Consolidated Rail Corp.*, 94 F.3d
1041, 1045-1051 (7th Cir. 1996), *cert. den.* 117 S. Ct. 1318 (1997);
*Miranda v. Wisconsin Power & Light Co.*, 91 F.3d 1011, 1017 (7th Cir.
1996); *Schmidt v. Methodist Hosp. of Indiana, Inc.*, 89 F.3d 342, 344
(7th Cir. 1996); *Beck v. University of Wis. Bd. of Regents*, 75 F.3d
1130, 1134 (7th Cir. 1996); *Vande Zande v. Wisconsin Dep=t of Admin*.,
44 F.3d 538, 543, 545 (7th Cir. 1995). *See also* [Eleventh Circuit
Pattern Jury Instructions (Civil Cases)]{.smallcaps} \' 1.5.2 (2000)
(AReasonable Accommodation Claim@); 5 [Leonard B. Sand, John S. Siffert,
Walter P. Loughlin, Steven A. Reiss, Nancy Batterman, Modern Federal
Jury Instructions]{.smallcaps}, Form Instruction 88A-16 (2001).

b\. **Cost of Accommodation and Relationship to Undue Hardship
Defense**: An accommodation=s costs are relevant to reasonableness. The
relation of these costs to a defendant=s particular financial
circumstances, however, is more appropriate to the jury=s consideration
of whether the accommodation is an Aundue hardship@. *See* Instruction
4.08, *infra*. Because undue hardship is an affirmative defense on which
the defendant bears the burden of proof, the Committee did not include
reference to the defendant=s individual economic condition in this
instruction. The Committee based its view on the Seventh Circuit=s
decision in *Vande Zande v. Wisconsin Dep=t Of Admin.,* 44 F.3d 538 at
543:

> \[I\]t seems that costs enter at two points in the analysis of claims
> to an accommodation to a disability. The employee must show that the
> accommodation is reasonable in the sense both of efficacious and of
> proportional to costs. Even if the prima facie case is made, the
> employer has an opportunity to prove that upon more careful
> consideration the costs are excessive in relation either to the
> benefits of the accommodation or to the employer=s financial survival
> or health. . . . One interpretation of \>undue hardship= is that it
> permits an employer to escape liability if he can carry the burden of
> proving that a disability accommodation reasonable for a normal
> employer would break him.

The Committee, however, could not reach agreement on how to incorporate
the above language into a definition of when an accommodation is
Areasonable.@ A majority of the Committee preferred the language set
forth in the instruction=s first paragraph: AAn accommodation is
\>reasonable= if it is effective and its costs are not clearly
disproportionate to the benefits that it will produce.@ Other Committee
members preferred the following alternative language: AAn accommodation
is \>reasonable= if it is feasible and would be effective.@ *See* *US
Airways, Inc. v. Barnett*, 535 U.S. 391, 401-402 (2002).

c\. **Impact of Accommodation on Other Employees:** In cases where the
court believes that the impact of a proposed accommodation on a
defendant=s other employees is relevant to the prima facie case (as
opposed to the undue hardship defense), the Committee recommends adding
the following language to the instruction: AIn making this
determination, you may consider, among other things, the impact of the
accommodation on Defendant=s other employees.@

**4.0[7. REASONABLE ACCOMMODATION: SUPPLEMENTAL INSTRUCTIONS
]{.smallcaps}**

**[FOR SPECIFIC ACCOMMODATION ISSUES]{.smallcaps}**

*(a) Choice between Alternate Accommodations*

\[Plaintiff may not insist on a particular accommodation if another
reasonable accommodation was offered.\]

*(b) Effect of Continuing Duty; Past Attempts to Accommodate*

\[Defendant=s duty to provide a reasonable accommodation is a continuing
one. You must evaluate the reasonableness of an accommodation as of the
time \[it was requested\] \[the need became apparent to Defendant\].\]

*(c) Reassignment As A Reasonable Accommodation*

\[If no reasonable accommodation was available in Plaintiff=s present
job, the ADA requires Defendant to try to assign him to a vacant
position for which he is qualified. If the reassignment was practical
and did not require Defendant to turn away a more qualified applicant,
Defendant must have made the reassignment. Defendant was not required to
create a new job or give a promotion to Plaintiff.\]

*(d) Reassignment Where There Is a Union Contract or Seniority System*

\[An accommodation is not reasonable if it conflicts with an established
seniority system, unless Plaintiff proves by a preponderance of the
evidence that Aspecial circumstances@ make an exception reasonable. For
example, an exception might be reasonable if exceptions were often made
to the seniority policy. Another example might be where the seniority
system already contains its own exceptions so that, under the
circumstances, one more exception is not significant.\]

*(e) Reallocating Job Duties*

\[A reasonable accommodation may include transferring non-essential job
duties to another employee. However, Defendant does not have to transfer
essential job duties.\]

**Committee Comments**

a\. **Choice Between Alternate Accommodations:** These instructions
conform with *Hoffman v. Caterpillar, Inc.*, 256 F.3d 568, 577 (7th Cir.
2001); *Emerson v. Northern States Power Co.*, 256 F.3d 506, 515 (7th
Cir. 2001) (*citing Gile v. United Airlines, Inc.*, 95 F.3d 492, 499
(7th Cir. 1996)); *Miller v. Illinois Dep=t of Corrections*, 107 F.3d
483, 486 (7th Cir. 1997); and *Vande Zande v. Wisconsin Dep=t of
Admin*., 44 F.3d 538, 542, 546 (7th Cir. 1995).

b\. **Effect of Continuing Duty: Past Attempts to Accommodate:** This
instruction conforms with *Winfrey v. City of Chicago*, 259 F.3d 610,
616 (7th Cir. 2001) (*citing Amadio v. Ford Motor Co.*, 238 F.3d 919,
929 (7th Cir. 2001)); *Haschmann v. Time Warner Entertainment Co.*, 151
F.3d 591, 600-602 (7th Cir. 1998); *Bultemeyer v. Fort Wayne Community
Schools*, 100 F.3d 1281, 1284-1286 (7th Cir. 1996); *Vande Zande v.
Wisconsin Dep=t of Admin.*, 44 F.3d at 545.

c\. **Reassignment as a Reasonable Accommodation:** This instruction
conforms with 42 U.S.C. \'\' 12111(9)(B), 12112(b)(5)(A); *US Airways,
Inc. v. Barnett*, 535 U.S. 391, 403-404 (2002); *Winfrey v. City of
Chicago*, 259 F.3d at 618; *EEOC v. Humiston-Keeling, Inc.*, 227 F.3d
1024, 1026-1027 (7th Cir. 2000) (*citing* 42 U.S.C.A. \' 12111(9)(B));
*Malabarba v. Chicago Tribune Co.*, 149 F.3d 690, 697-700 (7th Cir.
1998); *Baert v. Euclid Beverage Co.*, 149 F.3d 626, 633 (7th Cir. 1998)
(*citing Gile v. United Airlines*, 95 F.3d at 499; 42 U.S.C. \'
12112(b)(5)(A); 29 C.F.R. pt. 1630, App.

d\. **Reassignment Where There Is a Union Contract or Seniority
System:** This instruction conforms with *US Airways v. Barnett*, 535
U.S. at 405 (*citing Borkowski v. Valley Central School Dist.*, 63 F.3d
131, 137 (2nd Cir. 1995) (Aan accommodation that imposed burdens that
would be unreasonable for most members of an industry might nevertheless
be required of an individual defendant in light of that employer=s
particular circumstances@)); *Eckles v. Consolidated Rail Corp.*, 94
F.3d 1041 (7th Cir. 1996). *See Ozlowski v. Henderson*, 237 F.3d 837,
841 n.2 (7th Cir. 2001) (employer not required to bump current employee
to provide reasonable accommodation) (*citing Gile v. United Airlines*,
95 F.3d at 499); *Baert v. Euclid Beverage*, 149 F.3d at 633.

e\. **Reallocating Job Duties:** This instruction conforms with *US
Airways v. Barnett*, 535 U.S. at 403, and *Ozlowski v. Henderson*, 237
F.3d at 841. In *Ozlowski*, the Seventh Circuit held that A\[w\]hile it
is true that an employer may redistribute marginal functions of a job to
other employees, an employer is not required to reallocate essential
functions \>that the individual who holds the job would have to perform,
with or without reasonable accommodation, in order to be considered
qualified for the position.=@ 237 F.3d at 841 (*citing* 29 C.F.R. pt.
1630, App.).

**4.08. INTERACTIVE PROCESS**

Once an employer is aware of an \[employee=s/applicant=s\] disability
and an accommodation has been requested, the employer must discuss with
the \[employee/applicant\] \[or, if necessary, with his doctor\] whether
there is a reasonable accommodation that will permit him to
\[perform/apply for\] the job. Both the employer and the
\[employee/applicant\] must cooperate in this interactive process in
good faith.

Neither party can win this case simply because the other did not
cooperate in this process, but you may consider whether a party
cooperated in this process when deciding whether \[a reasonable
accommodation existed\] \[to award punitive damages\].

**Committee Comments**

a\. **Usage:** Courts should use this instruction only in cases where
the Ainteractive process@ is at issue. The instruction conforms with
*Hansen v. Henderson*, 233 F.3d 521, 523 (7th Cir. 2000); *Gile v.
United Airlines, Inc*., 213 F.3d 365, 373 (7th Cir. 2000) (*quoting*
*Hendricks-Robinson v. Excel Corp*., 154 F.3d 685, 693 (7th Cir. 1998),
and *citing* *Miller v. Illinois Dept. of Corrections*, 107 F.3d 483,
486-487 (7th Cir. 1997); *Rehling v. City of Chicago*, 207 F.3d 1009,
1015 (7th Cir. 2000); *Haschmann v. Time Warner Entertainment, L.P.*,
151 F.3d 591, 601 (7th Cir. 1998) (*quoting* *Bombard v. Fort Wayne
Newspapers*, 92 F.3d 560, 563 (7th Cir. 1996)); *Bultemeyer v. Fort
Wayne Cmty. Schs.*, 100 F.3d 1281, 1285-1286 (7th Cir. 1996); *Beck v.
University of Wis. Bd. of Regents*, 75 F.3d 1130, 1135 (7th Cir. 1996);
29 C.F.R. \' 1630.2(o)(3); 29 C.F.R. pt. 1630.2, App. \' 1630.9. By
itself, the interactive process requirement is not an element of an ADA
claim, and Aa plaintiff cannot base a reasonable accommodation claim
solely on the allegation that the employer failed to engage in an
interactive process.@ *Rehling v. City of Chicago*, 207 F.3d at 1016.
A\[T\]he interactive process is a means and not an end in itself.@
*Rehling v. City of Chicago*, 207 F.3d at 1016 (quoting *Sieberns v.
Wal-Mart Stores, Inc.*, 125 F.3d 1019, 1023 (7th Cir. 1997)).
Nonetheless, the Seventh Circuit has made it clear that A\[t\]he
appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the
\[employee\] with a disability.@ *Bultemeyer v. Fort Wayne Schs.*, 100
F.3d at 1285-1286 (*citing* 29 C.F.R. pt.1630, app.; *Beck v. University
of Wis. Bd. of Regents*, 75 F.3d at 1135). *Accord,* *Gile v. United
Airlines*, 213 F.3d at 373 (once employer is aware of individual=s
disability, employer must seek out the individual and engage in an
interactive process to determine a reasonable accommodation).

b\. **Employer=s Awareness of Disability:** In the unusual case where an
employer contends that it was not aware of a disability, and the
plaintiff alleges that the employer knew or should have known, the court
should consider adding the following language to the instruction:

> If the employer has reason to know that the \[applicant/employee\] has
> a disability and the \[applicant\] \[employee\] is having problems
> \[at work/applying for the job\] because of the disability, it must
> engage in discussions with him and, if necessary, with his doctor, to
> decide if he is actually disabled.

For further elaboration on the importance of a defendant=s awareness a
plaintiff=s disability, see Instruction 4.03, comment b.

**4.09 UNDUE HARDSHIP DEFENSE**

Under the ADA, Defendant does not need to accommodate Plaintiff if it
would cause an Aundue hardship@ to its business. An Aundue hardship@ is
something too costly or something that is so disruptive that it would
fundamentally change the nature of Defendant=s business or how Defendant
runs its business.

Defendant must prove to you by a preponderance of the evidence that
Plaintiff=s proposed accommodation would be an Aundue hardship.@ In
deciding this issue, you should consider the following factors:

> 1\. The nature and cost of the accommodation;

2\. Defendant=s overall financial resources. This might include the size
of its business, the number of people it employs, and the types of
facilities it runs;

3\. The financial resources of the facility where the accommodation
would be made. This might include the number of people who work there
and the impact that the accommodation would have on its operations and
costs; and

4\. The way that Defendant conducts its operations. This might include
its workforce structure; the location of its facility where the
accommodation would be made compared to Defendant=s other facilities;
and the relationship between these facilities.

**Committee Comments**

a\. **General Authority:** This instruction is derived from [Eighth
Circuit Manual of Model Civil Jury Instructions]{.smallcaps} \' 5.53A
(2001) (A\>Undue Hardship= B Statutory Defense@) and [Ninth Circuit
Manual of Model Civil Jury Instructions]{.smallcaps} \' 15.9 (2001)
(AUndue Hardship@), which, in turn, conform to 42 U.S.C. \'\' 12111(9)
and (10), 29 C.F.R. \' 1630.2(p), and 29 C.F.R. pt. 1630, App. \'
1630.2(p); *US Airways, Inc. v. Barnett*, 535 U.S. 391, 403-404 (2002).
The instruction also conforms to 42 U.S.C. \' 12112(b)(5)(A); *Hoffman
v. Caterpillar, Inc.*, 256 F.3d 568, 577 (7th Cir. 2001); *Malabarba v.
Chicago Tribune Co.*, 149 F.3d 690, 699 (7th Cir. 1998); *Baert v.
Euclid Beverage Co.*, 149 F.3d 626, 633 (7th Cir. 1998); *Gile v. United
Airlines, Inc.*, 95 F.3d 492, 499 (7th Cir. 1996); *Miranda v. Wisconsin
Power & Light Co.*, 91 F.3d 1011, 1016-1017 (7th Cir. 1996); *Vande
Zande v. Wisconsin Dept. of Admin.*, 44 F.3d 538, 542-543 (7th Cir.
1995); 29 C.F.R. \' 1630.9(a).

b\. **Relationship to Determination of Accommodation=s Reasonableness:**
See Instruction 4.06, comment b, concerning the relationship between the
undue hardship defense and a determination of whether an accommodation
is reasonable.

**4.10 DIRECT THREAT DEFENSE**

In this case, Defendant says that it \[did not accommodate/did not
hire/fired\] Plaintiff because \[accommodating/hiring/retaining\] him
would have created a significant risk of substantial harm to \[Plaintiff
and/or others in the workplace\]. \[Defendant must have based this
decision on a reasonable medical judgment that relied on \[the most
current medical knowledge\] \[the best available objective evidence\]
about whether Plaintiff could safely perform the essential functions of
the job at the time.\] If Defendant proves this to you by a
preponderance of the evidence, you must find for Defendant.

In deciding if this is true, you should consider the following factors:
(1) how long the risk will last; (2) the nature and severity of the
potential harm; (3) how likely it is that the harm will occur; and (4)
whether the potential harm is likely to occur in the near future.

\[Defendant must prove that there was no reasonable accommodation that
it could make which would eliminate the risk or reduce it so that it was
no longer a significant risk of substantial harm.\]

**Committee Comments**

The format of the instruction is taken from [Eighth Circuit Manual of
Model Civil Jury Instructions]{.smallcaps} \' 5.53B (2001) (A\>Direct
Threat= B Statutory Defense@) and [Ninth Circuit Manual of Model Civil
Jury Instructions]{.smallcaps} \' 15.12 (2001) (ADefenses B Direct
Threat@). The instruction conforms with 42 U.S.C. \' 12111(3)
(definition of direct threat), 42 U.S.C. \' 12113(b) (a qualification
standard can include a condition that a person not pose a direct
threat), and *Chevron U.S.A. Inc. v. Echazabal*, 536 U.S. 73 (2002)
(Adirect threat@ includes a threat to the employee himself); *School Bd.
of Nassau County v. Arline*, 480 U.S. 273 (1987) (criteria for direct
threat under analogous Rehabilitation Act of 1973); *Emerson v. Northern
States Power Co.*, 256 F.3d 506, 513-514 (7th Cir. 2001); *Bekker v.
Humana Health Plan, Inc.*, 229 F.3d 662, 671-672 (7th Cir. 2000); and
*EEOC v. AIC Security Investigations, Ltd.*, 55 F.3d 1276, 1283-1284
(7th Cir. 1995).

As to the burden of proof, see *Branham v. Snow*, 392 F.3d 896, 905-907
(7th Cir. 2004).

**4.11 DAMAGES: BACK PAY**

See Instruction No. 3.11.

**4.12 DAMAGES: MITIGATION**

See Instruction No. 3.12.

**4.13 COMPENSATORY DAMAGES**

See Instruction No. 3.10.

**4.14 PUNITIVE DAMAGES**

See Instruction No. 3.13.

**4.15. SPECIAL VERDICT FORM**

1\) Did Plaintiff have a disability?

> Answer Yes or No:

*(If you answered AYes,@ answer Question 2; otherwise, sign, and return
this verdict form)*

2\) Was Plaintiff qualified to perform \[his job\] \[the job he
sought\]?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 3; otherwise, sign and
return this verdict form.)*

3\) Did Plaintiff request an accommodation?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 4; otherwise, sign and
return this verdict form.)*

4\) Was Defendant aware of Plaintiff=s disability at the time of
Plaintiff=s request?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 5; otherwise, sign and
return this verdict form.)*

5\) Did Defendant fail to provide Plaintiff with a reasonable
accommodation?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 6; otherwise, sign and
return this verdict form.)*

6\) Would giving Plaintiff a reasonable accommodation have been an undue
hardship on Defendant=s business?

> Answer Yes or No:

*(If you answered AYes,@ sign and return this verdict form; otherwise,
answer Question 7.)*

7\) Has Plaintiff suffered a net loss of wages and benefits as a result
of \[*describe adverse action*\]?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 8; otherwise sign, and
return this verdict form.)*

8\) What was the amount of net wages and benefits that Plaintiff lost up
to the time of trial?

> Answer: \$

*(Answer Question 9.)*

9\) Has Plaintiff suffered emotional pain and mental anguish as a result
of \[*describe adverse action*\]?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 10; if you answered ANo,@
to this question, then answer Question 11.)*

10\) What amount will fairly compensate Plaintiff for his emotional pain
and mental anguish as a result of \[*describe adverse action*\]?

Answer: \$

*(Answer Question 11.)*

11\) Did \[*Name*\] act with reckless disregard of Plaintiff=s rights
under ADA?

> Answer Yes or No:

*(If you answered AYes,@ then answer Question 10; otherwise, sign and
return this verdict form.)*

12\) Did Defendant itself act in good faith to attempt to comply with
ADA by implementing policies and procedures to prohibit discrimination
in violation of ADA?

> Answer Yes or No:

*(If you answered AYes,@ sign and return this verdict form; otherwise,
answer Question 13.)*

13\) What amount of punitive damages, if any, should be assessed against
Defendant?

> Answer: \$

Dated this \_\_\_\_\_ day of \_\_\_\_\_\_, 20\_\_.

Presiding Juror

**Committee Comments**

a\. **General Authority:** This special verdict form is designed to
track the elements of a reasonable accommodations claim, to which an
undue hardship affirmative defense has been asserted. *See*
Instructions 4.03 and 4.08, above. The court should modify this form to
track the issues in each particular case.

b\. **Disparate Treatment Cases:** In a disparate treatment case
involving a perceived disability or a record of disability, Question 1
must be modified to reflect Instruction 2. In a disparate treatment case
not involving a mixed motive, Questions 3-5 should be replaced with the
following two questions:

> 3\. Did Defendant \[*describe adverse employment action*\] Plaintiff?
>
> 4\. Would Defendant would have \[*describe adverse employment action
> taken*\] if Plaintiff had not had a disability, but everything else
> remained the same.
>
> c\. **Mixed Motive Cases:** For mixed motive cases, see Instruction
> 4.02, comment d.

d\. **Request for Accommodation.** Where appropriate, Question 3 may be
modified to read, AWas Defendant aware that Plaintiff required an
accommodation?@ *See* Instruction 4.08, comment b.

e\. **Punitive Damages.** This form assumes punitive damages are
available in ADA cases in the absence of compensatory damages, an issue
the Seventh Circuit has not directly addressed. *See generally* *Timm v.
Progressive Steel Treating, Inc.*, 137 F.3d 1008, 1010 (7th Cir. 1998)
(ANo reason comes to mind for reading a compensatory-punitive link into
\' 1981a or Title VII but not \' 1983.@); *Paciorek v. Michigan
Consolidated Gas Co.*, 179 F.R.D. 216, 220-222 (E.D. Mich. 1998)
(concluding Athe plain language of \' 1981a(b)(1) of the 1991 Civil
Rights Act@ controls an ADA plaintiff=s access to punitive damages).

If the parties dispute whether the person was a managerial employee
within the meaning of Instruction 3.13, the following question should be
inserted between interrogatories 10 and 11: AWas \[*Name*\] a managerial
employee of Defendant?@

**5. EQUAL PAY ACT**

**5.01 ESSENTIAL ELEMENTS OF A CLAIM**

Plaintiff claims that Defendant violated a law called the AEqual Pay
Act.@ This law is designed to prevent wage discrimination by employers
based on sex. To succeed on this claim, Plaintiff must prove three
things by a preponderance of the evidence:

1\. Plaintiff did work that was Asubstantially equal@ to male employees
at \[*Defendant=s workplace*\];

2\. Plaintiff and a male employee did their jobs under similar working
conditions;

3\. Defendant paid Plaintiff less money than a male employee doing
substantially equal work.

**Committee Comments**

*See* 29 U.S.C. \' 206(d); *Corning Glass Works v. Brennan*, 417 U.S.
188, 195 (1973); *Fallon v. State of Illinois,* 882 F.2d 1206, 1208 (7th
Cir. 1989); *EEOC v. Madison Cmty. Unit Sch. Dist. No. 12*, 818 F.2d
577, 580-583 (7th Cir.1987).

**5.02 SUBSTANTIALLY EQUAL**

In deciding whether jobs are Asubstantially equal,@ you should compare
the skill, effort, and responsibility needed to do the work. The jobs do
not need to be identical in these areas, so you should ignore minor
differences between them.

**Committee Comments**

*See* 29 C.F.R. \' 1620.14(a); *Cullen v. Indiana Univ. Bd. of* Tr., 338
F.3d 693, 698-700 (7th Cir. 2003); *Stopka v. Alliance of Am. Insurers*,
141 F.3d 681, 685-686 (7th Cir. 1998); *see also EEOC v. Sears, Roebuck
& Co.,* 839 F.2d 302, 306 (7th Cir. 1988); *Hunt v. Nebraska Public
Power Dist*., 282 F.3d 1021 (8th Cir. 2002); *Brennan v. South Davis
Cmty. Hosp.,* 538 F.2d 859 (10th Cir. 1976); *Klimiuk v. ESI Lederle,
Inc.*, 2000 WL 1599251, 84 Fair Empl.Prac.Cas. (BNA) 971 (E.D.Pa., Oct
25, 2000); *Brennan v. Prince William Hosp. Corp.*, 503 F.2d 282 (4th
Cir. 1974).

**5.03 EQUAL SKILL**

In deciding whether jobs require Aequal skill,@ you should consider
whether people need essentially the same
\[experience/training/education/ability to do the work\]. Jobs may
require Aequal skill@ even if one job does not require workers to use
these skills as often as another job.

**Committee Comments**

*See* 29 C.F.R. \' 1620.15(a); *Stopka v. Alliance of Am. Insurers*, 141
F.3d 681, 685-686 (7th Cir.1998).

**5.04 EQUAL EFFORT**

In deciding whether jobs require Aequal effort,@ you should consider the
physical or mental energy that a person must use at work. AEqual effort@
does not require people to use effort in exactly the same way. If there
is no substantial difference in the amount or degree of effort needed to
do the jobs, they require Aequal effort.@

**Committee Comments**

*See* 29 C.F.R. \' 1620.16; *Jenkins v. U.S.*, 46 Fed. Cl. 561 (Fed. Cl.
2000); *Cullen v. Indiana Univ. Bd. of Tr.*, 338 F.3d 693, 699 (7th Cir.
2003); *Boriss v. Addison Farmers Ins. Co.*, No. 91-C-3144, 1993 WL
284331 (N.D. Ill., Jul 26, 1993).

**5.05 EQUAL RESPONSIBILITY**

In deciding whether jobs involve Aequal responsibility,@ you should
consider how accountable someone is in doing his or her job, including
how much authority an employee has and the importance of his or her job.

**Committee Comments**

*See* 29 C.F.R. \' 1620.17; *Jenkins v. U.S.*, 46 Fed.Cl. 561 (Fed. Cl.
2000); *Krenik v. County of Le Sueur*, 47 F.3d 953 (8th Cir. 1995);
*Dean v. United Food Stores, Inc.*, 767 F. Supp. 236 (D.N.M..1991).

**5.06 JOB TITLES**

In deciding whether two jobs are Asubstantially equal,@ you should
consider the actual job requirements. Job classifications, descriptions,
and titles are not controlling.

**Committee Comments**

*See 29* C.F.R. \' 1620.13(e); *EEOC v. Sears, Roebuck & Co.*, 839 F.2d
302, 345-348 (7th Cir. 1988); *Epstein v. Secretary, United States Dep=t
of the Treasury*, 739 F.2d 274, 277 (7th Cir. 1984).

**5.07 RATES OF PAY**

In deciding whether Plaintiff was paid less than her male co-worker\[s\]
for equal work, you can consider evidence about how much Plaintiff=s
co-workers earned, even if the co-workers worked in different
departments.

**Committee Comments**

*See* 29 C.F.R. \' 1620.19; *Mulhall v. Advance Sec., Inc.*, 19 F.3d 586
(11th Cir. 1994); *see also Power v. Barry County*, 539 F. Supp. 721,
722 (W.D. Mich.1982) (defining comparable worth theory).

**5.08 COMPARABLE TIME PERIODS**

Plaintiff must prove that at least one male employee received more pay
than Plaintiff for substantially equal work. In comparing Plaintiff=s
work and pay with other employees, you can look at the work and pay of
employees who did substantially equal work before or after the
Plaintiff.

**Committee Comments**

*See* 29 C.F.R.\' 1620.13(b)(4); *Patkus v. Sangamon-Cass Consortium*,
769 F.2d 1251 (7th Cir. 1985); *Taylor v. Philips Indus., Inc.*, 593
F.2d 783 (7th Cir.1979).

**5.09 INTENT**

Plaintiff does not have to prove that Defendant meant to discriminate
against Plaintiff because she was female.

**Committee Comments**

A plaintiff need not prove an intent to discriminate in an Equal Pay Act
case. *See Varner v. Illinois State Univ.*, 226 F.3d 927, 932 (7th Cir.
2000) (AUnder the Equal Pay Act, an employer is potentially subject to
liability without a showing of discriminatory intent.@); *Patkus v.
Sangamon‑Cass Consortium*, 769 F.2d 1251, 1260 n. 5 (1985) (Athe Equal
Pay Act creates a type of strict liability in that no intent to
discriminate need be shown@). The Committee, therefore, views this
instruction as helping to avoid confusion, particularly in cases that
contain both an Equal Pay Act claim and a Title VII claim, where a
plaintiff normally must prove intent. *See* *Fallon v. State of
Illinois*, 882 F.2d 1206, 1213 (7th Cir. 1989).

**5.10 AFFIRMATIVE DEFENSES**

Even if Defendant paid Plaintiff less than male employees for
substantially equal work, you should find in favor of Defendant if it
proves by a preponderance of the evidence that the difference was
because of:

1\. A seniority system, or a merit-based system, that is not based on an
employee=s sex; or

2\. A system based on the quality or quantity of each employee=s
production; or

3\. \[*describe any factor other than sex on which Defendant claims its
pay differential was based*\].

**Committee Comments**

*See* 29 U.S.C. \' 206(d)(1); 29 C.F.R. \' 1620.20. The Committee does
not anticipate that a court would charge the jury on each of the three
factors. Instead, the court should instruct the jury on only those
factors that are relevant to the case. *See Fallon v. State of
Illinois*, 882 F.2d 1206, 1211 (7th Cir. 1989).

**5.11 DAMAGES**

If you find in favor of Plaintiff, then you should award Plaintiff
damages consisting of the difference between Plaintiff=s pay and the pay
of the male employee(s) who did substantially equal work during
comparable time periods.

If you award damages, they are limited to the following time period:
\[*Relevant dates*\]

**Committee Comments**

*See* 29 U.S.C. \' 206(d)(3).

**5.12 WILLFULNESS**

If you find for Plaintiff, you must then decide whether Defendant
willfully violated the Equal Pay Act. To show this, Plaintiff must prove
by a preponderance of the evidence that Defendant knew that it was
violating the Equal Pay Act, or was indifferent to whether its actions
violated the Equal Pay Act, and not simply that Defendant was aware that
it was discriminating in pay.

**Committee Comments**

*See* [Eighth Circuit Manual of Model Jury
Instructions]{.smallcaps}C[Civil]{.smallcaps} \' 5.14 (2000); *Mathis v.
Phillips Chevrolet, Inc.,* 269 F.3d 771, 777 (7th Cir. 2001) (AA
defendant=s negligent mistake concerning the lawfulness of her conduct
does not suffice to make that conduct \>willful=, but a reckless
mistake, in the criminal law sense of indifference to whether the
conduct violates the law, does.@).

**6. PUBLIC EMPLOYEE AND PRISONER RETALIATION**

**6.01 PUBLIC EMPLOYEE=S FIRST AMENDMENT**

**RETALIATION CLAIM**

In this case, Plaintiff claims that Defendant violated his
constitutional right to free speech by \[*alleged retaliatory conduct*\]
because he \[*describe protected speech or conduct*\].

To succeed on this claim, Plaintiff must prove several things by a
preponderance of the evidence:

1\. Plaintiff \[*describe protected speech or conduct*\];

2\. Defendant intentionally \[*alleged retaliatory conduct*\] (while
acting Aunder color of law.@ By this I mean that a person performs, or
claims to perform, official duties under any state, county, or municipal
law, ordinance, or regulation);

3\. Plaintiff=s \[*protected speech or conduct*\] was a reason, alone or
with other reasons, that Defendant relied on when it \[*alleged
retaliatory conduct*\], or that moved Defendant toward its decision to
\[*alleged retaliatory conduct*\];

4\. Plaintiff was harmed \[*describe harm*\].

If Plaintiff has proved each of these things by a preponderance of the
evidence, then you must consider Defendant=s claim that it would have
\[*alleged retaliatory conduct*\] anyway. To succeed on this claim,
Defendant must prove by a preponderance of the evidence that even though
Plaintiff=s \[*protected speech or conduct*\] was a reason for its
decision to \[*alleged retaliatory conduct*\], there were other reasons
which would have led Defendant to \[*alleged retaliatory conduct*\] even
if Plaintiff had not \[*protected speech or conduct*\].

If you find that Plaintiff has proved by a preponderance of the evidence
each of the things required of him, and that Defendant has not proved
its claim by a preponderance of the evidence, then you must find for
Plaintiff. However, if you find that Plaintiff did not prove by a
preponderance of the evidence each of the things required of him, or if
you find that Defendant proved its claim, then you must find for
Defendant.

**Committee Comments**

a\. **Under Color of Law:** The bracketed portion of the second
paragraph should be eliminated if the Acolor of law@ issue is not in
dispute.

b\. ***Pickering* Balancing Test:** The Committee contemplates that the
*Pickering* balancing test will be done by the Court. *Pickering v.
Board of Educ.*, 391 U.S. 563 (1968); *see Connick v. Myers*, 461 U.S.
138, 147-148 & n.7 (1983) (indicating that the question of whether
speech is protected is an issue of law). *Carreon v. Illinois Dept. of
Human Services*, 395 F.3d 786, 791 (1/21/05) (AWhether speech is
constitutionally protected under this two‑part test is a question of law
for the court.@) (*citing Sullivan v. Ramirez*, 360 F.3d 692, 698, 701
(7th Cir. 2004). In cases in which a factual issue bears on the Court=s
determination, the Committee recommends that a special interrogatory be
submitted to the jury on the issue.

c\. **ASubstantial or Motivating Factor@**: A plaintiff must prove that
his protected speech or conduct was a Asubstantial@ or Amotivating@
factor in the defendant=s decision to retaliate against him. *See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle*, 429 U.S. 274, 287
(1977); *Carreon v. Illinois Dept. of Human Services*, 395 F.3d 786, 791
(7th Cir. 2005); *Spiegla v. Hull*, 371 F.3d 928, 942 (7th Cir. 2004);
*Vukadinovich v. Board of Sch. Tr. of North Newton Sch. Corp.*, 278 F.3d
693, 699 (7th Cir. 2002). To simplify the instruction, the Committee
chose not to use the technical words Asubstantial or motivating@.
Instead, the Committee recommends that the instruction simply ask jurors
to consider whether the plaintiff=s protected speech or conduct Awas a
reason, alone or with other reasons@ upon which the defendant relied
when it decided to take action against the plaintiff.

**6.02 PRISONER=S RIGHT OF ACCESS RETALIATION CLAIM**

In this case, Plaintiff claims that Defendant retaliated against him for
seeking access to the legal system by \[*filing a lawsuit, seeking
materials from the library, seeking counsel, etc.\]*

To succeed on this claim, Plaintiff must prove several things by a
preponderance of the evidence:

1\. Plaintiff \[*attempt to access legal system*\];

2\. Defendant intentionally \[*alleged retaliatory conduct*\] \[while
acting Aunder color of law.@ By this I mean that a person uses or
misuses authority that he has because of his official position.\];

3\. Plaintiff=s \[*attempt to access legal system*\] was a reason, alone
or with other reasons, that Defendant relied on when it \[*alleged
retaliatory conduct*\], or that moved Defendant toward its decision to
\[*alleged retaliatory conduct*\];

4\. Plaintiff \[*describe loss of claim or actionable harm*\].

If Plaintiff has proved each of these things by a preponderance of the
evidence, then you must consider Defendant=s claim that it would have
\[*alleged retaliatory conduct*\] anyway. To succeed on this claim,
Defendant must prove by a preponderance of the evidence that even though
Plaintiff=s \[*protected speech or conduct*\] was a reason in its
decision to \[*alleged retaliatory conduct*\], there were other reasons
which would have led Defendant to \[*alleged retaliatory conduct*\] even
if Plaintiff had not \[*attempt to access legal system*\].

If you find that Plaintiff has proved by a preponderance of the evidence
each of the things required of him, and that Defendant has not proved
its claim by a preponderance of the evidence, then you must find for
Plaintiff. However, if you find that Plaintiff did not prove by a
preponderance of the evidence each of the things required of him, or if
you find that Defendant proved its claim, then you must find for
Defendant.

**Committee Comments**

The Committee drafted this instruction to be consistent with Instruction
6.01 regarding public employees= First Amendment retaliation claims.

**6.03 DAMAGES**

Use Instructions 7.22, 7.23 and 7.24, as appropriate, listing those
elements of damages relevant to the case.

**7. CONSTITUTIONAL TORTS: 42 U.S.C. \'1983**

**7.01 GENERAL: POLICE DEPARTMENT/MUNICIPALITY**

**NOT A PARTY**

Defendant(s) \[is/are\] being sued as \[an\] individual\[s\]. Neither
the \[*State or county police department or correctional agency*\] nor
\[*State, county, or city*\] is a party to this lawsuit.

**Committee Comments**

*Monell v. City of New York Dep=t of Soc. Svcs.*, 436 U.S. 658, 691, 694
(1970); *Duckworth v. Franzen*, 780 F.2d 645, 650-651 (7th Cir. 1985).
This instruction may not be needed when both the governmental entity and
the individual are defendants.

**7.02 GENERAL: REQUIREMENT OF PERSONAL INVOLVEMENT**

Plaintiff must prove by a preponderance of the evidence that \[*Name of
Individual Defendant*\] was personally involved in the conduct that
Plaintiff complains about. You may not hold \[*Name*\] liable for what
other employees did or did not do.

**Committee Comments**

*Walker v. Rowe*, 791 F.2d 507, 508 (7th Cir. 1986); *Duckworth v.
Franzen*, 780 F.2d 645, 650 (7th Cir. 1985).

If the jury will be considering a Afailure to intervene@ claim under
Instruction No. 7.16, the court may wish to preface Instruction No. 7.16
with AHowever,@ and give it immediately after this instruction, or take
other steps to avoid jury confusion.

If the case involves a supplemental state law claim involving
*respondeat superior* liability, this instruction should be modified to
limit it to the federal law claim.

**7.03 GENERAL: AUNDER COLOR OF LAW@**

When I say that a person acts Aunder color of law,@ I mean that a person
uses or misuses authority that he has because of his official position.

**Committee Comments**

*Honaker v. Smith*, 256 F.3d 477, 484-485 (7th Cir. 2001).

If the Aunder color of law@ issue is undisputed, this instruction should
be eliminated. If a private party is alleged to have acted under color
of law, an appropriate instruction will be needed.

**7.04 LIMITING INSTRUCTION CONCERNING**

**EVIDENCE OF STATUTES, ADMINISTRATIVE RULES,**

**REGULATIONS, AND POLICIES**

You have heard evidence about whether Defendant=s conduct \[complied
with/violated\] \[a state statute/administrative rule/locally-imposed
procedure or regulation\]. You may consider this evidence in your
deliberations. But remember that the issue is whether Defendant
\[*describe constitutional violation claimed, e.g., Afalsely arrested
Plaintiff,@ Aused excessive force on Plaintiff@*\], not whether a
\[statute/rule/procedure/regulation\] might have been \[complied with /
violated\].

**Committee Comments**

This instruction should be given only if evidence was admitted at trial
about compliance with a statute, rule, or regulation. The Committee
takes no position on whether or when such evidence should be admitted or
excluded. For general authority, see *Shango v. Jurich*, 681 F.2d 1091,
1101 (7th Cir. 1982); *Doe v. Milwaukee County*, 903 F.2d 499, 502 (7th
Cir. 1990).

**7.05 FOURTH AMENDMENT: FALSE ARREST - ELEMENTS**

In this case, Plaintiff claims that Defendant falsely arrested him. To
succeed on this claim, Plaintiff must prove each of the following things
by a preponderance of the evidence:

1\. Defendant arrested Plaintiff;

2\. Defendant did not have probable cause to arrest Plaintiff; and

3\. Defendant was acting under color of law.

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Undisputed Elements:** The first and third elements should be
eliminated if undisputed. If both of these elements are undisputed, only
one element will remain, and the instruction=s second sentence should
read: ATo succeed on this claim, Plaintiff must prove by a preponderance
of the evidence that Defendant did not have probable cause to arrest
him.@

b\. **Disputed Arrest:** If the parties dispute whether the defendant
was arrested, it may be necessary for the court to define Aarrest.@ If
the seizure at issue was not an arrest, the instruction should be
modified appropriately.

**7.06 FOURTH AMENDMENT: FALSE ARREST -**

**DEFINITION OF APROBABLE CAUSE@**

Let me explain what Aprobable cause@ means. There is probable cause for
an arrest if at the moment the arrest was made, a prudent person would
have believed that Plaintiff \[had committed/was committing\] a crime.
In making this decision, you should consider what Defendant knew and
what reasonably trustworthy information Defendant had received.

\[It is not necessary that Defendant had probable cause to arrest
Plaintiff for \[*offense in case*\], so long as Defendant had probable
cause to arrest him for some criminal offense.\] \[It is not necessary
that Defendant had probable cause to arrest Plaintiff for all of the
crimes he was charged with, so long as Defendant had probable cause to
arrest him for one of those crimes.\]

Probable cause requires more than just a suspicion. But it does not need
to be based on evidence that would be sufficient to support a
conviction, or even a showing that Defendant=s belief was probably
right. \[The fact that Plaintiff was later acquitted of \[*offense in
case*\] does not by itself mean that there was no probable cause at the
time of his arrest.\]

**Committee Comments**

a\. **Authority:** For general authority, see *Brinegar v. United
States*, 338 U.S. 160, 175-176 (1949); *Anderer v. Jones*, 385 F.3d
1043, 1049 (7th Cir. 2004); *Kelley v. Myler*, 149 F.3d 641,646 (7th
Cir. 1998); *Hughes v. Meyer*, 880 F.2d 967, 969-970 (7th Cir. 1989).
*See also* *Smith v. Lamz*, 321 F.3d 680, 684 (7th Cir. 2003) (AThe
determination of probable cause is normally a mixed question of law and
fact . . . but when \>what happened= questions are not at issue, the
ultimate resolution of whether probable cause existed is a question of
law . . ..@).

b\. **Probable Cause for Other Crimes:** The bracketed language in the
instruction=s second paragraph should only be used in appropriate
situations. *See* *Devenpeck v. Alford*, 125 S.Ct. 588 (2004);
*Calusinski v. Kruger,* 24 F.3d 931, 935 (7th Cir. 1994) (probable cause
for one of multiple charges); *Biddle v. Martin,* 992 F.2d 673, 676 (7th
Cir. 1993) (probable cause for closely-related charge).

c\. **Subsequent Acquittal:** The bracketed language in the
instruction=s third paragraph should only be used in appropriate
situations. For authority, *Michigan v. DeFillippo,* 443 U.S. 31, 36
(1979); *Humphrey v. Staszak,* 148 F.3d 719, 728 (7th Cir. 1998).

d\. **Prudent Person:** Some cases use the term Aobjectively reasonable
police officer@ in discussing how probable cause is defined. *See
Ornelas v. United States*, 517 U.S. 690, 696 (1996). The prevailing
standard, however, appears to be that of the Aprudent person,@ and this
appears to be the standard most often used in the Seventh Circuit. *See,
e.g., Hunter v. Bryant,* 502 U.S. 224, 228 (1991)*; United States v.
Schafssma*, 318 F.3d 718, 721 (7th Cir. 2003); *United States v.
Mounts,* 248 F.3d 712, 714-15 (7th Cir. 2001). The Committee viewed any
possible distinction between the two terms as insignificant because a
jury can consider a defendant=s position as an officer in all cases when
determining what the defendant Aknew and what reasonably trustworthy
information \[he\] had received@ at the time of an arrest.

**7.07 FOURTH AMENDMENT: FALSE ARREST -**

**FAILURE TO INVESTIGATE**

If there was probable cause, \[*Officer*\] did not need to do more
investigation to uncover evidence that Plaintiff was innocent.

**Committee Comments**

The Committee views this instruction as optional in light of Seventh
Circuit precedent suggesting that the instruction=s principle is not
without limits. *See, e.g., Beauchamp v. City of Noblesville, Ind.*, 320
F.3d 733, 743 (7th Cir. 2003) (if complaint would lead reasonable
officer to be suspicious, officer has duty to investigate further);
*BeVier v. Hucal,* 806 F.2d 123, 128 (7th Cir. 1986) (AA police officer
may not close her or his eyes to facts that would help clarify the
circumstances of an arrest. Reasonable avenues of investigation must be
pursued especially when . . . it is unclear whether a crime had even
taken place.@). For general authority, see *Arizona v. Youngblood*, 488
U.S. 51, 58-59 (1988) (no obligation to pursue scientific tests or
similar investigative leads); *Spiegel v. Cortese*, 196 F.3d 717, 723
(7th Cir. 1999), *as amended* (Jan. 7, 2000); *Garcia v. City of
Chicago*, 24 F.3d 966, 970 (7th Cir. 1994).

**7.08 FOURTH AMENDMENT/FOURTEENTH AMENDMENT:**

**EXCESSIVE FORCE AGAINST ARRESTEE OR**

**PRETRIAL DETAINEE - ELEMENTS**

In this case, Plaintiff claims that Defendant used excessive force
against him. To succeed on this claim, Plaintiff must prove each of the
following things by a preponderance of the evidence:

1\. Defendant used unreasonable force against Plaintiff;

\[2. Because of Defendant=s unreasonable force, Plaintiff was harmed;\]

\[3. Defendant acted under color of law.\]

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff did not prove any one of
these things by a preponderance of the evidence, then you should find
for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Unreasonable Force:** For authority regarding the Aunreasonable
force@ element of the claim, see *Graham v. Connor*, 490 U.S. 386
(1989); *Tennessee v. Garner*, 471 U.S. 1 (1985); *Deering v. Reich*,
183 F.3d 645 (7th Cir. 1999). Although *Graham* and *Garner* are Fourth
Amendment cases involving arrestees, *Wilson v. Williams,* 83 F.3d 870,
876 (7th Cir. 1996), states that the same standard applies to pretrial
detainees. A separate instruction applies to cases involving convicted
prisoners.

If the defendant contends that the application of force was accidental,
the court may wish to break the first element into two:

1\. Defendant intentionally used force against Plaintiff;

> 2\. The force Defendant used was unreasonable;

b\. **Harm to Plaintiff:** Although some other circuits include an
element of Adamage@ in their pattern instruction, *see, e.g.,* [Eighth
Circuit Manual of Model Civil Jury Instructions]{.smallcaps} \' 4.30
(1999), the Committee believes that there is significant doubt as to
whether damage, or Aharm@ as that term is commonly understood, is
actually required for a finding of liability under \'1983. Though Aharm@
in the commonly-understood sense is likely to exist in most excessive
force cases, some cases will arise in which it does not, *e.g*., a
situation in which an officer strikes the plaintiff with his hand but
leaves no mark and causes no lingering injury or pain. In such cases,
the court will need to determine whether the jury should be instructed
on this point.

In *Gumz v. Morrissette*, 772 F.2d 1395, 1400 (7th Cir. 1985), the court
held that an officer=s use of force was unconstitutional if it (1)
caused severe injuries; (2) was grossly disproportionate to the need for
action under the circumstances; and (3) was inspired by malice or
shocked the conscience. *Gumz,* however, was overruled by *Lester v.
City of Chicago*, 830 F.2d 706 (7th Cir. 1987), which used the same
Atotality of the circumstances test@ that was later adopted by the
Supreme Court in *Graham v. Connor*, 490 U.S. 386 (1989). In *Lanigan v.
Village of East Hazel Crest, Illinois*, 110 F.3d 467 (7th Cir. 1997),
the court upheld a claim based on force consisting of Aone violent push
and poke,@ noting that the plaintiff Aneed not have been injured to have
an excessive force claim.@ *Id.* at 470 n.3. In *McNair v. Coffey*, 279
F.3d 463 (7th Cir. 2002), the court addressed a claim arising from an
incident in which no physical force was used, but officers pointed their
weapons at the plaintiffs. Though it determined that the officers were
entitled to qualified immunity, and indicated that the Fourth Amendment
appeared to require *some* use of force, *id.* at 467, the majority
ended its opinion with the statement Awe do not foreclose the
possibility that the circumstances of an arrest could become
\>unreasonable= without the application of physical force.@ *Id.* at
468. *See also Herzog v. Village of Winnetka, Ill.*, 309 F.3d 1041, 1043
(7th Cir. 2002) (refusal to loosen chafing handcuffs or shoving an
arrestee would constitute actionable excessive force)

Even if, as *McNair* indicates, an application of force is required in
order to implicate the Fourth Amendment, it is not at all clear that the
plaintiff must suffer Aharm@ in order to obtain a finding of liability;
the availability of nominal damages in excessive force cases suggests
that Aharm@ is not a requirement. *See, e.g., Briggs v. Marshall,* 93
F.3d 355, 360 (7th Cir. 1996) (indicating that nominal damages may be
awarded in a Fourth Amendment excessive force case where no injury
resulted from the use of excessive force, where the evidence of actual
injury is not credible, or where the injury has no monetary value).
Because the issue of whether a plaintiff must prove Aharm@ is not
definitively resolved, the Committee placed the second element in
brackets, indicating that a court should give this part of the
instruction to the jury at its discretion.

c\. **Third element:** The third element should be eliminated if the
Acolor of law@ issue is not in dispute.

d\. **Single Element Instruction:** If the second and third elements are
eliminated, only one element will remain, and the instruction=s second
sentence should read as follows: ATo succeed on this claim, Plaintiff
must prove by a preponderance of the evidence that Defendant used
unreasonable force against him.@

**7.09 FOURTH AMENDMENT/FOURTEENTH AMENDMENT:**

**EXCESSIVE FORCE - DEFINITION OF AUNREASONABLE@**

You must decide whether Defendant=s use of force was unreasonable from
the perspective of a reasonable officer facing the same circumstances
that Defendant faced. You must make this decision based on what the
officer knew at the time of the arrest, not based on what you know now.
In deciding whether Defendant=s use of force was unreasonable, you must
not consider whether Defendant=s intentions were good or bad.

In performing his job, an officer can use force that is reasonably
necessary under the circumstances.

\[An officer may use deadly force when a reasonable officer, under the
same circumstances, would believe that the suspect=s actions placed him
or others in the immediate vicinity in imminent danger of death or
serious bodily harm. \[It is not necessary that this danger actually
existed.\] \[An officer is not required to use all practical
alternatives to avoid a situation where deadly force is justified.\]\]

**Committee Comments**

a\. **Authority:** *Graham v. Connor*, 490 U.S. 386, 396 (1989);
*Tennessee v. Garner*, 471 U.S. 1, 8-9 (1985); *Deering v. Reich*, 183
F.3d 645 (7th Cir. 1999).

b\. **Factors:** Case law establishes a number of factors that may be
relevant to the jury=s determination of whether a particular use of
force was unreasonable. The Committee did not list these factors in the
instruction because the jury is to consider *all* circumstances, and the
listing of some might suggest that others are irrelevant. However, a
court may wish to consider giving a list of factors for the jury=s
consideration, and if it elects to do so the following is proposed:

> \- the need for the use of force;
>
> \- the relationship between the need for the use of force and the
> amount of force used;
>
> \- the extent of the plaintiff=s injury;
>
> \- any efforts made by the defendant to temper or limit the amount of
> force;
>
> \- the severity of the crime at issue;
>
> \- the threat reasonably perceived by the officer(s);
>
> \- whether the plaintiff was actively resisting arrest or was
> attempting to evade arrest by fleeing.

*See Graham v. Connor*, 490 U.S. at 396 (fifth, sixth, and seventh
factors). In *Wilson v. Williams,* 83 F.3d 870 (7th Cir. 1996), a
Fourteenth Amendment excessive force case involving a pretrial detainee,
the Seventh Circuit listed factors one, two, three, four, and six from
the above list, and stated that they are Agenerally relied on in the
Fourth Amendment excessive force context.@ *Id.* at 876. For this
proposition, however, the court cited *Hudson v. McMillian,* 503 U.S. 1,
7 (1992), which was an Eighth Amendment case, not a Fourth Amendment
case. *See generally* Eighth Circuit Manual of Model Jury Instructions
(Civil) 4.10 (1999) (using factors one, two, and three).

c\. **Deadly Force:** The final (bracketed) paragraph applies only in
cases involving an officer=s use of deadly force. *Tennessee v. Garner*,
471 U.S. 1, 11-12 (1985); *Sherrod v. Berry*, 856 F.2d 802, 805 (7th
Cir. 1988). With regard to the final (bracketed) sentence of this
paragraph, *see Deering v. Reich*, 183 F.3d 645, 652-653 (7th Cir.
1999); *Plakas v. Drinski*, 19 F.3d 1143, 1148 (7th Cir. 1994). The fact
that a particularized instruction is proposed for deadly force cases
does not preclude the consideration or giving of a particularized
instruction in other types of cases, for example, those involving a
fleeing felon or an officer=s claim of self-defense.

**7.10 EIGHTH AND FOURTEENTH AMENDMENTS:**

**PRISON/JAIL CONDITIONS OF CONFINEMENT - ELEMENTS**

To succeed in his claim about the conditions of his confinement,
Plaintiff must prove each of the following things by a preponderance of
the evidence:

1\. Plaintiff was incarcerated under conditions that posed a substantial
risk of serious harm to his health or safety;

2\. Defendant was deliberately indifferent to Plaintiff=s health or
safety;

\[3. Defendant=s conduct caused harm to Plaintiff\];

\[4. Defendant acted under color of law\].

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority:** *Farmer v. Brennan*, 511 U.S. 825 (1994). Though
*Farmer* is an Eighth Amendment case involving a convicted prisoner, the
Seventh Circuit has held that the same standard applies in Fourteenth
Amendment cases involving pretrial detainees. *See, e.g., Tesch v.
County of Green Lake,* 157 F.3d 465, 473 (7th Cir. 1998).

As to the bracketed third element, see comment b to Instruction 7.08.

b\. **Plaintiff Not AIncarcerated@**: In a case where the plaintiff is
not yet in jail or prison, the Committee recommends that the court
replace the word Aincarcerated@ with Ain custody@.

c\. **Under Color of Law:** The fourth element should be eliminated if
the Acolor of law@ issue is not in dispute.

d\. **Deliberate Indifference:** This instruction should be used in
conjunction with the definition of Adeliberately indifferent@ in
Instruction No. 7.14.

**7.11 EIGHTH AND FOURTEENTH AMENDMENTS:**

**FAILURE TO PROTECT - ELEMENTS**

To succeed on his claim of failure to protect, Plaintiff must prove each
of the following things by a preponderance of the evidence:

1\. \[*Describe who the attackers were and what they did, e.g., hit,
kicked or struck the Plaintiff*\];

2\. Defendant was deliberately indifferent to the substantial risk of
\[that\] \[such an\] attack;

3\. As a result of Defendant=s conduct, Plaintiff was harmed;

\[4. Defendant acted under color of law\].

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority:** *Farmer v. Brennan*, 511 U.S. 825 (1994); *Whiting v.
Marathon County Sheriff=s Dep=t*, 382 F.3d 700, 703 (7th Cir. 2004)
(Asubjective recklessness test@). Though *Farmer* is an Eighth Amendment
case involving a convicted prisoner, *Zarnes v. Rhodes,* 64 F.3d 285,
289-290 (7th Cir. 1995), applied the same standard to a Fourteenth
Amendment case involving a pretrial detainee. *Accord, Velez v.
Johnson*, 395 F.3d 732, 735 (7th Cir. 2005) (AVelez, as we said, was a
pretrial detainee at the time of the assault; therefore, his claim
arises under the Fourteenth Amendment\'s Due Process Clause, not the
Eighth Amendment. But as we have noted time and again, there is \>little
practical difference between the two standards.=@).

b\. **Defendant Awareness:** As a general rule, in order for the
defendant to be liable on this type of claim, a plaintiff must be the
victim of a specific attack and there must be notice of the
particularized attack. *See also Brown v. Budz*, 398 F.3d 904, 913-915
(7th Cir. 2005) (knowledge that inmate was risk to certain types of
fellow inmates sufficient); *Velez v. Johnson*, 395 F.3d 732, 736 (7th
Cir. 2005) (AJohnson did not have to know the specifics of the danger to
be culpable. \... What matters is that Johnson was aware of a serious
risk of harm in some form, be it assault or the more serious
transgression that actually occurred.@). Although a plaintiff cannot
predicate a failure to protect claim on the defendant=s knowledge of the
general risk of violence in a prison, there may be cases in which a
plaintiff can predicate a claim on the defendant=s awareness of
characteristics of the plaintiff that put him at serious risk of being
targeted by other inmates. *Weiss v. Cooley,* 230 F.3d 1027, 1032 (7th
Cir. 2000), (citing *Langston v. Peters,* 100 F.3d 1235, 1238-1239 (7th
Cir. 1996) and *Swofford v. Mandrell,* 969 F.2d 547, 549-550 (7th Cir.
1992)). This accounts for the Committee=s bracketed choices (Athat
attack@/@such an attack@) in the second element of the instruction.

c\. **Under Color of Law:** The fourth element should be eliminated if
the Acolor of law@ issue is not in dispute.

d\. **Deliberate Indifference:** This instruction should be used in
conjunction with the definition of Adeliberately indifferent@ in
Instruction No. 7.14.

**7.12 EIGHTH AND FOURTEENTH AMENDMENTS:**

**FAILURE TO PROVIDE MEDICAL ATTENTION - ELEMENTS**

To succeed on his claim of failure to provide medical attention,
Plaintiff must prove each of the following things by a preponderance of
the evidence:

> 1\. Plaintiff had a serious medical need;
>
> 2\. Defendant was deliberately indifferent to Plaintiff=s serious
> medical need;
>
> 3\. Defendant=s conduct caused harm to Plaintiff;
>
> \[4. Defendant acted under color of law\].

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority:** *Farmer v. Brennan,* 511 U.S. 825 (1994). Though
*Farmer* is an Eighth Amendment case involving a convicted prisoner, the
Seventh Circuit has held that the same standard applies in Fourteenth
Amendment cases involving pretrial detainees. *See, e.g., Board v.
Farnham*, 394 F.3d 469, 477-478 (7th Cir. 2005); *Jackson v. Illinois
Medi-Car, Inc.,* 300 F.3d 760, 764 (7th Cir. 2002); *Higgins v.
Correctional Medical Services of Illinois, Inc.,* 178 F.3d 508, 511 (7th
Cir. 1999); *Payne for Hicks v. Churchich,* 161 F.3d 1030, 1040 (7th
Cir. 1998).

b\. **Under Color of Law:** The fourth element should be eliminated if
the Acolor of law@ issue is not in dispute.

c\. **Deliberate Indifference:** This instruction must be used in
conjunction with the definition of Adeliberately indifferent@ in
Instruction No. 7.14.

d\. **Serious Medical Need:** This instruction must be used in
conjunction with the definition of Aserious medical need@ in Instruction
No. 7.13, unless this element is not in issue.

**7.13 EIGHTH AND FOURTEENTH AMENDMENTS:**

**FAILURE TO PROVIDE MEDICAL ATTENTION -**

**DEFINITION OF ASERIOUS MEDICAL NEED@**

When I use the term Aserious medical need,@ I mean a condition that a
doctor says requires treatment, or something so obvious that even
someone who is not a doctor would recognize it as requiring treatment.
In deciding whether a medical need is serious, you should consider the
following factors:

\- the severity of the condition;

\- the harm \[including pain and suffering\] that could result from a
lack of medical care;

\- whether providing treatment was feasible; and

\- the actual harm caused by the lack of medical care.

**Committee Comments**

*Foelker v. Outagamie County*, 394 F.3d 510, 512 (7th Cir. 2005);
*Gutierrez v. Peters,* 111 F.3d 1364, 1373 (7th Cir. 1997); *Thomas v.
Pate*, 493 F.2d 151, 158 (7th Cir. 1974). A court should use the
bracketed language in the second factor only where applicable.

**7.14 EIGHTH AND FOURTEENTH AMENDMENTS:**

**CONDITIONS OF CONFINEMENT/FAILURE TO PROTECT/**

**FAILURE TO PROVIDE MEDICAL CARE -**

**DEFINITION OF ADELIBERATELY INDIFFERENT@**

When I use the term Adeliberately indifferent,@ I mean that Defendant
actually knew of a substantial risk of \[\[serious harm\] or \[*describe
specific harm to Plaintiff=s health or safety*\]\], and that Defendant
consciously disregarded this risk by failing to take reasonable measures
to deal with it. \[In deciding whether Defendant failed to take
reasonable measures, you may consider whether it was practical for him
to take corrective action.\]

\[If Defendant took reasonable measures to respond to a risk, then he
was not deliberately indifferent, even if Plaintiff was ultimately
harmed.\]

**Committee Comments**

a\. **Authority:** *See* [Eighth Circuit Model Jury Instructions
(Civil)]{.smallcaps}, \'4.44. *See also* *Farmer v. Brennan*, 511 U.S.
825, 837 (1994); *Davidson v. Cannon*, 474 U.S. 344, 347 (1986);
*Pierson v. Hartley*, 391 F.3d 898, 902-903 (7th Cir. 2004); *Zarnes v.
Rhodes*, 64 F.3d 285 (7th Cir. 1995)*; Billman v. Indiana Department of
Corrections*, 56 F.3d 785 (7th Cir. 1995); *Miller v. Neathery*, 52 F.3d
634 (7th Cir. 1995); *Duane v. Lane*, 959 F.2d 673, 676-677 (7th Cir.
1992); *McGill v. Duckworth*, 944 F.2d 344, 348 (7th Cir. 1991).

b\. **Bracketed Language:** The bracketed sentence at the end of the
first paragraph represents optional language that may apply depending on
the particulars of the case. The remaining bracketed language also is
optional and its use or non-use should be determined by a court with
regard to the particular case.

c\. **AOstrich@ Instruction:** The following language, which is commonly
known as an Aostrich@ instruction, may be useful in certain
circumstances: AIf you find that Defendant strongly suspected that
things were not as they seemed, yet shut his eyes for fear of what he
would learn, you may conclude that he was deliberately indifferent. You
may not conclude that Defendant was deliberately indifferent if he was
merely careless in failing to discover the truth.@ *See* [Seventh
Circuit Federal Criminal Jury Instructions]{.smallcaps} \' [4.06
(1999);]{.smallcaps} *McGill v. Duckworth*, 944 F.2d at 351 (conscious
avoidance can amount to deliberate indifference).

**7.15 EIGHTH AMENDMENT: EXCESSIVE FORCE**

**AGAINST CONVICTED PRISONER - ELEMENTS**

To succeed on his claim of excessive use of force, Plaintiff must prove
each of the following things by a preponderance of the evidence:

1\. Defendant used force on Plaintiff;

2\. Defendant intentionally used extreme or excessive cruelty toward
Plaintiff for the purpose of harming him, and not in a good faith effort
to maintain or restore security or discipline;

3\. Defendant=s conduct caused harm to Plaintiff;

\[4. Defendant acted under color of law\].

In deciding whether Plaintiff has proved that Defendant intentionally
used extreme or excessive cruelty toward Plaintiff, you may consider
such factors as:

\- the need to use force;

\- the relationship between the need to use force and the amount of
force used;

\- the extent of Plaintiff=s injury;

\- whether Defendant reasonably believed there was a threat to the
safety of staff or prisoners;

\- any efforts made by Defendant to limit the amount of force used.

\[In using force against a prisoner, officers cannot realistically be
expected to consider every contingency or minimize every possible
risk.\]

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Usage and Authority:** *See Whitley v. Albers*, 475 U.S. 312,
320-321 (1986); *Williams v. Boles*, 841 F.2d 181 (7th Cir. 1988). This
instruction applies only to cases involving convicted prisoners.
Instruction 7.08 covers arrestees and pretrial detainees.

b\. **Color of Law:** The fourth element should be eliminated if the
Aunder color of law@ issue is undisputed.

c\. **Deference to Prison Official Policies:** If the defendant claims
to have acted pursuant to a policy of the correctional facility, the
instruction should be modified to include the following language in the
paragraph that follows the listing of factors:

> You must give prison officials leeway to adopt and carry out policies
> and practices that in their reasonable judgment are needed to preserve
> order and discipline and to maintain security in the prison.

**7.16 FOURTH, EIGHTH, AND FOURTEENTH AMENDMENTS:**

**CLAIM FOR FAILURE OF ABYSTANDER@ OFFICER**

**TO INTERVENE - ELEMENTS**

To succeed on his failure to intervene claim, Plaintiff must prove each
of the following things by a preponderance of the evidence:

1\. \[*Name of Officer alleged to have committed primary violation*\]
\[*describe constitutional violation claimed, e.g., Afalsely arrested
Plaintiff,@ Aused excessive force on Plaintiff@*\];

2\. Defendant knew that \[*Officer*\] was/was about to \[*describe
constitutional violation claimed, e.g., Afalsely arrest Plaintiff@ Ause
excessive force on Plaintiff@*\];

3\. Defendant had a realistic opportunity to do something to prevent
harm from occurring;

4\. Defendant failed to take reasonable steps to prevent harm from
occurring;

5\. Defendant=s failure to act caused Plaintiff to suffer harm;

\[6. Defendant acted under color of law\].

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority and Usage:** *See Lanigan v. Village of East Hazel
Crest, Ill*., 110 F.3d 467, 477-478 (7th Cir. 1997); *Yang v. Hardin*,
37 F.3d 282, 285 (7th Cir. 1994). This instruction applies in the case
of a Astandby officer.@

b\. **Color of Law:** The sixth element should be eliminated if the
Acolor of law@ issue is not in dispute.

c\. **Principal Actor Out of Case:** If the officer who engaged in the
alleged constitutional violation has settled, or is otherwise not
involved in the case, a court will need to adjust the instructions to
ensure that the jury has a sufficient understanding of the underlying
constitutional issue.

**7.17 LIABILITY OF SUPERVISORS: ELEMENTS**

To succeed on his claim against \[*Supervisor*\], Plaintiff must prove
each of the following things by a preponderance of the evidence:

1\. \[*Name of Officer alleged to have committed primary violation*\]
\[*describe constitutional violation claimed, e.g., Afalsely arrested
Plaintiff,@ Aused excessive force on Plaintiff@*\];

2\. \[*Supervisor*\] knew that \[*Officer*\] was about to \[*describe
constitutional violation claimed*\];

*or*

\[*Supervisor*\] knew that \[*Officer/Officers he supervised*\] had a
practice of \[*describe constitutional violation claimed*\] in similar
situations;

3\. \[*Supervisor*\] \[approved/assisted/condoned/purposely ignored\]
\[*Officer=s*\] \[*describe constitutional violation claimed*\];

> 4\. As a result, Plaintiff was injured.

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority**: *See Kernats v. O=Sullivan,* 35 F.3d 1171, 1182 (7th
Cir. 1994); *Rascon v. Hardiman,* 803 F.2d 269, 273-274 (7th Cir. 1986).

b\. **Principal Actor Out of Case:** If the officer who engaged in the
alleged constitutional violation has settled, or is otherwise not
involved in the case, a court will need to adjust the instructions to
ensure that the jury has a sufficient understanding of the underlying
constitutional issue.

**7.18 QUALIFIED IMMUNITY**

**Committee Comments**

Qualified immunity is an issue for resolution by the court, not the
jury. *Hughes v. Meyer*, 880 F.2d 967, 969 (7th Cir. 1989) (Aeven though
pertinent facts may be in dispute, the question whether immunity
attaches is always one for the judge to decide.@), *citing* *Jones v.
City of Chicago*, 856 F.2d 985, 994 (7th Cir.1988); *Rakovich v. Wade*,
850 F.2d 1180, 1201-1202 (7th Cir.1988) (en banc). Accordingly, no jury
instruction on this topic is appropriate, though a special interrogatory
may be appropriate when application of qualified immunity turns on an
issue of fact.

**7.19 LIABILITY OF MUNICIPALITY**

If you find that Plaintiff has proved \[these things\] \[any of his
claims\] by a preponderance of the evidence, you must consider whether
\[*Municipality*\] is also liable to Plaintiff. \[*Municipality*\] is
not responsible simply because it employed \[*Officer*\].
\[*Municipality*\] is liable if Plaintiff proves by a preponderance of
the evidence that Defendant=s conduct was a result of its official
policy.

**Committee Comments**

a\. **Authority:** *See Monell v. City of New York Dep=t of Soc. Svcs.,*
436 U.S. 658, 690-691 (1978).

b\. **Usage:** In a case involving a single constitutional claim, the
Committee suggests that courts use this instruction in conjunction with
the relevant elements instruction. In a case involving multiple
constitutional claims, the Committee suggests that courts use this
instruction separately after the jury has been instructed on the
elements of each individual claim.

**7.20 LIABILITY OF MUNICIPALITY:**

**DEFINITION OF AOFFICIAL POLICY@**

When I use the term Aofficial policy,@ I mean:

\[- A rule or regulation passed by \[*Municipality*\]=s legislative
body.[^10]\]

\[- A decision or policy statement made by \[*Name*\], who is a
policy-making official of \[*Municipality*\]. \[This includes
\[*Name*\]=s approval of a decision or policy made by someone else, even
if that person is not a policy-making official.\]

\[- A custom of \[*describe acts or omissions alleged to constitute
constitutional violation*\] that is persistent and widespread, so that
it is \[*Municipality*\]=s standard operating procedure. A persistent
and widespread pattern may be a custom even if \[*Municipality*\] has
not formally approved it, so long as Plaintiff proves that a
policy-making official knew of the pattern and allowed it to continue.
\[This includes a situation where a policy-making official must have
known about a subordinate=s actions/failures to act by virtue of the
policy-making official=s position.\]

**Committee Comments**

*See City of St. Louis v. Praprotnik*, 485 U.S. 112 (1988); *Monell v.
City of New York Dep=t of Soc. Svcs.*, 436 U.S. 658, 690-691 (1978);
*Estate of Moreland v. Dieter*, 395 F.3d 747, 759-760 (7th Cir. 2005);
*Monfils v. Taylor*, 165 F.3d 511, 517-518 (7th Cir. 1998); *McNabola v.
Chicago Trans. Auth.*, 10 F.3d 501, 511 (7th Cir. 1993).

**7.21 LIABILITY OF MUNICIPALITY**

**FOR FAILURE TO TRAIN: ELEMENTS**

To succeed on his claim against \[*Municipality*\] for failure to train,
Plaintiff must prove each of the following things by a preponderance of
the evidence:

1\. \[*Municipality=s*\] training program was not adequate to train its
\[officers/employees\] to properly handle recurring situations;

2\. \[*Official/Policymaker/Policymaking Body*\] knew that more \[and/or
different\] training was needed to avoid likely \[*describe alleged
constitutional violation(s)*\], or that this was obvious to
\[*Official/Policymaker/Policymaking Body*\]; and

3\. \[*Municipality=s*\] failure to provide adequate training caused
\[*describe alleged violation(s) of Plaintiff=s constitutional
rights*\].

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority:** *See Board of County Commissioners of Bryan County v.
Brown,* 520 U.S. 397, 404 (1997); *City of Canton v. Harris,* 489 U.S.
378, 388-391 (1989); *Robles v. City of Fort Wayne,* 113 F.3d 732, 735
(7th Cir. 1997).

b\. **Deliberate Indifference:** The second element of the instruction
encompasses the definition of Adeliberate indifference@ for purposes of
a failure to train claim. *See Board of County Commissioners of Bryan
County*, 520 U.S. at 407-408; *City of Canton v. Harris*, 489 U.S. at
388-391; *Robles v. City of Fort Wayne,* 113 F.3d 732, 735 (7th Cir.
1997).

c\. **Whose Knowledge Required:** The Committee did not resolve the
issue of *whose* knowledge is required in order to render a municipality
liable. Some members were of the view that knowledge by the Afinal
policymaking body@ or Afinal policymaker@ is required. Others were of
the view that this issue is not yet settled in this circuit and should
be left open for argument in individual cases until there is definitive
precedent on the issue.

**7.22 DAMAGES: PREFATORY INSTRUCTION**

If you find that Plaintiff has proved \[any of\] his claim\[s\] against
\[any of\] Defendant(s), then you must determine what amount of damages,
if any, Plaintiff is entitled to recover.

If you find that Plaintiff has failed to prove \[all of\] his
claim\[s\], then you will not consider the question of damages.

**7.23 DAMAGES: COMPENSATORY**

If you find in favor of Plaintiff, then you must determine the amount of
money that will fairly compensate Plaintiff for any injury that you find
he sustained \[and is reasonably certain to sustain in the future\] as a
direct result of \[*insert appropriate language, such as Athe failure to
provide plaintiff with medical care,@ etc.*\] \[These are called
Acompensatory damages@.\][^11]

Plaintiff must prove his damages by a preponderance of the evidence.
Your award must be based on evidence and not speculation or guesswork.
This does not mean, however, that compensatory damages are restricted to
the actual loss of money; they include both the physical and mental
aspects of injury, even if they are not easy to measure.

You should consider the following types of compensatory damages, and no
others:

\[1. The reasonable value of medical care and supplies that Plaintiff
reasonably needed and actually received \[as well as the present value
of the care and supplies that he is reasonably certain to need and
receive in the future.\]\]

\[2. The \[wages, salary, profits, earning capacity\] that Plaintiff has
lost \[and the present value of the \[wages, salary, profits, earning
capacity\] that Plaintiff is reasonably certain to lose in the future\]
because of his \[inability/diminished ability\] to work.\]

\[When I say Apresent value,@ I mean the sum of money needed now which,
together with what that sum may reasonably be expected to earn in the
future, will equal the amounts of those monetary losses at the times in
the future when they will be sustained.\]

\[3. The physical \[and mental/emotional\] pain and suffering \[and
disability/loss of a normal life\] that Plaintiff has experienced \[and
is reasonably certain to experience in the future\]. No evidence of the
dollar value of physical \[or mental/emotional\] pain and suffering \[or
disability/loss of a normal life\] has been or needs to be introduced.
There is no exact standard for setting the damages to be awarded on
account of pain and suffering. You are to determine an amount that will
fairly compensate the Plaintiff for the injury he has sustained.\]

\[If you find in favor of Plaintiff but find that the plaintiff has
failed to prove compensatory damages, you must return a verdict for
Plaintiff in the amount of one dollar (\$1.00).\]

**Committee Comments**

a\. **Usage:** This instruction lists the more common elements of
damages in cases under 42 U.S.C. \'1983, but is not intended to be
exhaustive.

b\. **Present Value:** Regarding the definition of Apresent value,@ see
[Illinois Pattern Instructions (Civil)]{.smallcaps} \' 31.12 (2000).

c\. **Disability and Loss of Normal Life:** The terms Adisability@ and
Aloss of a normal life@ are in brackets. These terms describe roughly
interchangeable concepts. Before instructing the jury on either element,
the law relevant to the particular type of \'1983 claim must be
consulted to determine whether such damages are recoverable and to
determine the appropriate terminology.

**7.24 DAMAGES: PUNITIVE**

If you find for Plaintiff, you may, but are not required to, assess
punitive damages against Defendant. The purposes of punitive damages are
to punish a defendant for his conduct and to serve as an example or
warning to Defendant and others not to engage in similar conduct in the
future.

Plaintiff must prove by a preponderance of the evidence that punitive
damages should be assessed against Defendant. You may assess punitive
damages only if you find that his conduct was malicious or in reckless
disregard of Plaintiff=s rights. Conduct is malicious if it is
accompanied by ill will or spite, or is done for the purpose of injuring
Plaintiff. Conduct is in reckless disregard of Plaintiff=s rights if,
under the circumstances, it reflects complete indifference to
Plaintiff=s safety or rights.

If you find that punitive damages are appropriate, then you must use
sound reason in setting the amount of those damages. Punitive damages,
if any, should be in an amount sufficient to fulfill the purposes that I
have described to you, but should not reflect bias, prejudice, or
sympathy toward either/any party. In determining the amount of any
punitive damages, you should consider the following factors:

\- the reprehensibility of Defendant=s conduct;

\- the impact of Defendant=s conduct on Plaintiff;

> \- the relationship between Plaintiff and Defendant;
>
> \- the likelihood that Defendant would repeat the conduct if an award
> of punitive damages is not made;

\[- Defendant=s financial condition;\]

> \- the relationship of any award of punitive damages to the amount of
> actual harm the Plaintiff suffered.

**Committee Comments**

a\. **Authority:** *See Smith v. Wade,* 461 U.S. 30, 56 (1983). With
regard to the applicable factors, *see generally Pacific Mutual Life
Ins. Co. v. Haslip,* 499 U.S. 1 (1991); [Eighth Circuit Manual of Model
Civil Jury Instructions]{.smallcaps} \' 4.53 (2001) (including
commentary); [Ninth Circuit Manual of Model Civil Jury
Instructions]{.smallcaps} \' 7.5 (2001). The Committee notes that the
Seventh Circuit has not yet addressed whether Apreponderance of the
evidence@ is the appropriate standard for an award of punitive damages
in a \'1983 case.

b\. **Defendant=s Financial Condition:** The bracketed factor concerning
the defendant=s financial condition should be given only if evidence was
admitted on that topic.

**8. PRISONER=S RIGHT OF ACCESS TO COURTS**

**8.01 DESCRIPTION OF CLAIM**

In this case, Plaintiff claims that Defendant intentionally denied him
meaningful access to the courts. Plaintiff says that Defendant did this
by \[*describe conduct.*\]

Let me explain the concept of Aaccess to courts@ in a bit more detail.
The Constitution gives us the right to go to court when we have disputes
with others. People who are in prison also have a right of Aaccess to
courts.@ By this I mean that a prisoner is entitled to get meaningful
help in \[preparing and/or filing\] his lawsuit. \[This might include
talking to people with legal training, such as lawyers, law students, or
paralegals. Or it might simply mean access to a law library or legal
reference materials.\]

A prison official can consider security risks in deciding what kind of
access to give the prisoner. \[For example, a prison official does not
need to give a prisoner personal access to a library if that would be
dangerous. Instead, the official can find other ways of giving the
prisoner materials that he needs to file his lawsuit and make legal
arguments.\] Inconvenient or highly restrictive regulations may be
appropriate if they do not completely deny meaningful access to courts.

In the end, there is no one way for a prison official to provide access
to courts. Instead, you must consider the prison official=s program as a
whole to see if it provides meaningful access.

**Committee Comments**

a\. **Authority:** *See* *Lewis v. Casey*, 518 U.S. 343 (1996); *Bounds
v. Smith*, 430 U.S. 817 (1977); *Lehn v. Holmes*, 364 F.3d 862 (7th Cir.
2004); *Brooks v. Buscher*, 62 F.3d 176 (7th Cir. 1995); *Vasquez v.
Hernandez*, 60 F.3d 325 (7th Cir. 1995); *Hossman v. Spradlin*, 812 F.2d
1019 (7th Cir. 1987); *Corgain v. Miller*, 708 F.2d 1241 (7th Cir.
1983).

**b. Type of Underlying Suit:** Prisons must provide meaningful help for
a prisoner=s appeal of his conviction, habeas corpus action, or civil
rights action challenging his condition of confinements. For all other
types of civil lawsuits, the prison officials may not create barriers
that impede the prisoner=s right of access to the courts, *Snyder v.
Nolen*, 380 F.3d 279 (7th Cir. 2004), and the instruction should be
modified accordingly.

**8.02 DENIAL OF PRISONER=S ACCESS TO COURT**

To succeed in his claim of denial of access to court, Plaintiff must
prove each of the following things by a preponderance of the evidence.

1\. Defendant intentionally did at least one of the following things:
\[*Describe conduct*\];

\[2. Defendant acted Aunder color of law.@ By this I mean that a person
performs, or claims to perform, official duties under any state, county,
or municipal law, ordinance, or regulation;\]

3\. Defendant=s conduct hindered his efforts to pursue a legal claim;

\[4. The case which Plaintiff wanted to bring to court was not
frivolous. A claim is frivolous if it is so trivial that there is no
chance it would succeed in court or be settled out of court after it was
filed;\]

> 5\. Plaintiff was harmed by Defendant=s conduct.

If you find that Plaintiff has proved each of these things by a
preponderance of the evidence, then you should find for Plaintiff, and
go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any
one of these things by a preponderance of the evidence, then you should
find for Defendant, and you will not consider the question of damages.

**Committee Comments**

a\. **Authority:** *See* *Snyder v. Nolen*, 380 F.3d 279 (7th Cir.
2004); *Lehn v. Holmes*, 364 F.3d 862 (7th Cir. 2004); *Brooks v.
Buscher*, 62 F.3d 176 (7th Cir. 1995); *Jenkins v. Lane*, 977 F.2d 266
(7th Cir. 1992); *Kincaid v. Vail*, 969 F.2d 594 (7th Cir. 1992).

b\. **Under Color of Law:** The second element should be eliminated if
the Aunder color of law@ issue is not in dispute.

c\. **Frivolous Underlying Claim:** Similarly, judges should include the
parenthetical material concerning whether Plaintiff=s claim was
frivolous only if this presents a factual issue in the case. *See Lewis
v. Casey*, 518 U.S. 343, 353 & n.3 (1996) (ADepriving someone of a
frivolous claim . . . deprives him of nothing at all . . . .@); *Thomson
v. Washington*, 362 F.3d 969, 970 (7th Cir. 2004) (AIf your legal papers
are confiscated in a doomed proceeding, there is no harm and no basis
for a constitutional suit . . . even though there is always a chance
that the court would have ruled erroneously in your favor.@). *Cf.*
*Walters v. Edgar*, 163 F.3d 430, 433 (7th Cir. 1988) (Aprobabilistic@
harm, which is nontrivial, will support standing for prospective
injunctive relief).

d\. **Harm:** *See Lehn v. Holmes*, 364 F.3d 862 (7th Cir. 2004).

**8.03 DAMAGES**

Use Instructions 7.22, 7.23 and 7.24, as appropriate, listing those
elements of damages relevant to the case, as well as:

\- the reasonable value of any judgment or settlement Plaintiff would
have received if Defendant had not hindered his efforts to pursue his
legal claim.

**SAMPLE PRELIMINARY INSTRUCTIONS**

> **NOTE:** The Committee chose not to produce pattern preliminary
> instructions in light of the concern that such a set might increase
> disputes over the way in which preliminary instructions should be
> worded. Still, the Committee thought it might be helpful to include a
> sample set of preliminary instructions for judges who have no
> established set of their own, or for counsel who might seek a
> preliminary instruction on a topic not customarily covered. In that
> spirit, the following sample set is included, with the understanding
> that the sample instructions did not receive the same scrutiny from
> the Committee as the pattern instructions have received.

**SAMPLE PRELIMINARY INSTRUCTIONS**

*Introductory paragraphs*[^12]

Ladies and gentlemen: You are now the jury in this case, and I want to
take a few minutes to tell you something about your duties as jurors and
to give you some instructions. At the end of the trial, I will give you
more detailed instructions. Those instructions will control your
deliberations.

One of my duties is to decide all questions of law and procedure. From
time to time during the trial and at the end of the trial, I will
instruct you on the rules of law that you must follow in making your
decision.

You should not take anything I may say or do during the trial as
indicating what I think of the evidence or what your verdict should be.

*Order of Trial*[^13]

The trial will proceed in the following manner:

First, Plaintiff\[s\]=s attorney may make an opening statement. Next,
Defendant\[s\]=s attorney may make an opening statement. An opening
statement is not evidence but is simply a summary of what the attorney
expects the evidence to be.

After the opening statements, Plaintiff will call witnesses and present
evidence. Then, Defendant will have an opportunity to call witnesses and
present evidence. After the parties= main cases are completed, Plaintiff
may be permitted to present rebuttal evidence \[and Defendant may be
permitted to present sur-rebuttal evidence\].

After the evidence has been presented, \[I will instruct you on the law
that applies to the case and the attorneys will make closing arguments\]
\[the attorneys will make closing arguments and I will instruct you on
the law that applies to the case\].

After that, you will go to the jury room to deliberate on your verdict.

*Claims and Defenses*[^14]

The positions of the parties can be summarized as follows:

Plaintiff \_\_\_\_\_\_\_\_ claims that *\[describe\].*

Defendant \_\_\_\_\_\_\_ denies those claims *\[and also contends that
\[describe\].*

\[To prove his claim, Plaintiff will have to prove, by a preponderance
of the evidence \[*here insert elements of claim*\]. \[To prove his
defense(s), Defendant will have to prove, by a preponderance of the
evidence \[here insert elements of affirmative defense(s)\]. What I have
just given you is only a preliminary outline. At the end of the trial I
will give you a final instruction on these matters. If there is any
difference between what I just told you, and what I tell you in the
instructions I give you at the end of the trial, the instructions given
at the end of the trial govern.\]

\[*Burden of Proof B Preponderance*[^15]

When I say a particular party must prove something by Aa preponderance
of the evidence,@ this is what I mean: When you have considered all the
evidence in the case, you must be persuaded that it is more probably
true than not true.\]

\[*Burden of Proof B Clear and Convincing*[^16]

When I say that a particular party must prove something by Aclear and
convincing evidence,@ this is what I mean: When you have considered all
of the evidence, you \[are convinced that it is highly probable that it
is true\] \[have no reasonable doubt that it is true\].

\[This is a higher burden of proof than Amore probably true than not
true.@ Clear and convincing evidence must persuade you that it is
Ahighly probably true.@\]\]

*Province of Judge and Jury*[^17]

Do not allow sympathy, prejudice, fear, or public opinion to influence
you. You should not be influenced by any person=s race, color, religion,
national ancestry, or sex.

*Evidence in the Case*[^18]

The evidence consists of the testimony of the witnesses, the exhibits
admitted in evidence, and any facts that I may instruct you to find or
the parties may agree or stipulate to.

A stipulation is an agreement between both sides that certain facts are
true.

*Credibility of Witnesses*[^19]

You will have to decide whether the testimony of each of the witnesses
is truthful and accurate, in part, in whole, or not at all. You also
have to decide what weight, if any, you give to the testimony of each
witness.

\[*Direct and Circumstantial Evidence (If Appropriate to Case)*[^20]

You may have heard the phrases Adirect evidence@ and Acircumstantial
evidence.@ Direct evidence is proof that does not require an inference,
such as the testimony of someone who claims to have personal knowledge
of a fact. Circumstantial evidence is proof of a fact, or a series of
facts, that tends to show that some other fact is true.

As an example, [direct evidence]{.underline} that it is raining is
testimony from a the witness who says, AI was outside a minute ago and I
saw it raining.@ [Circumstantial evidence]{.underline} that it is
raining is the observation of someone entering a room carrying a wet
umbrella.

The law makes no distinction between the weight to be given to either
direct or circumstantial evidence. When the time comes to deliberate on
your verdict, you should consider all the evidence in the case,
including the circumstantial evidence.\]

*Inferences^1^*[^21]

You should use common sense in weighing the evidence and consider the
evidence in light of your own observations in life.

In our lives, we often look at one fact and conclude from it that
another fact exists. In law we call this Ainference.@ A jury is allowed
to make reasonable inferences. Any inference you make must be reasonable
and must be based on the evidence in the case.

*What is Not Evidence; Evidence for Limited Purpose^1^*[^22]

The following things are not evidence, and you must not consider them as
evidence in deciding the facts of this case: the attorneys= statements,
arguments, questions, and objections of the attorneys; any testimony
that I instruct you to disregard; and anything you may see or hear when
the court is not in session even if what you see or hear is done or said
by one of the parties or by one of the witnesses.

\[Furthermore, a particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you only for one
particular purpose, and not for any other purpose. I will tell you when
that occurs, and instruct you on the purposes for which the item can and
cannot be used.\] \[You should also pay particularly close attention to
such an instruction, because it may not be available to you in writing
later in the jury room.\]

*Official Translations^1^*[^23]

*\[Language other than English\]* may be used during this trial. You
should consider only the evidence provided through the official
interpreter. Although some of you may know \[*language(s) used*\], it is
important that all jurors consider the same evidence. Therefore, you
must base your decision on the evidence presented in the English
translation.

*Rulings on Objections^1^*[^24]

From time to time during the trial I may be called upon to make rulings
of law on objections or motions made by the lawyers. You should not
infer or conclude from any ruling or other comment I may make that I
have any opinions about how you should decide this case. And if I should
sustain an objection to a question that goes unanswered by a witness,
you should not guess or speculate what the answer might have been, and
you should not draw any inferences or conclusions from the question
itself.

*Bench Conferences^1^*[^25]

At times during the trial it may be necessary for me to talk with the
lawyers here at the bench out of your hearing, or by calling a recess.
We meet because often during a trial something comes up that doesn=t
involve the jury.

We will, of course, do what we can to keep the number and length of
these conferences to a minimum, but you should remember the importance
of the matter you are here to determine and should be patient even
though the case may seem to go slowly.

\[*Note-Taking B Allowed^1^*[^26]

Any notes you take during this trial are only aids to your memory. The
notes are not evidence. If you do not take notes, you should rely on
your independent recollection of the evidence and not be unduly
influenced by the notes of other jurors. Notes are not entitled to any
greater weight than the recollections or impressions of each juror about
the testimony.

When you leave the courthouse during the trial, your notes should be
left in the \[courtroom\] \[jury room\] \[envelope in the jury room\].
When you leave at night, your notes will be secured and not read by
anyone. At the end of the trial, your notes will be destroyed, and no
one will be allowed to read the notes before they are destroyed.\]

\[*Note-Taking B Disallowed^1^*[^27]

Jurors often wonder if they are allowed to take notes during the trial.

The desire to take notes is perfectly natural, especially for those of
you who are accustomed to making notes because of your schooling or the
nature of your work or the like. It is requested, however, that jurors
[not]{.underline} take notes during the trial. One of the reasons for
having a number of persons on the jury is to gain the advantage of your
several, individual memories concerning the testimony presented before
you; and, while some of you might feel comfortable taking notes, other
members of the jury may [not]{.underline} have skill or experience in
notetaking and may not wish to do so.\]

*No Transcript Available to Jury^1^*[^28]

Pay close attention to the testimony as it is given. 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.

\[*Questions by Jurors Forbidden^1^*[^29]

I do not permit jurors to ask questions of witnesses or of the lawyers.
Please do not interrupt the lawyers during their examination of
witnesses.

If you are unable to hear a witness or a lawyer, please raise your hand
immediately and I will see that this is corrected.\]

\[*Questions by Jurors B Permitted^1^*[^30]

You may submit questions to witnesses to clarify their testimony during
trial under certain conditions.

If you feel the answer to your question would be helpful in
understanding this case, you should raise your hand after the lawyers
have completed their examinations but before the witness is excused. I
will have you write your question and hand it to the clerk. I will then
privately confer with the lawyers about the question and make a ruling
on whether the law allows the question to be asked of that witness. If
the question is of the type that is allowed, I will address the question
to the witness. Please do not directly speak to me, the lawyers, or the
witnesses, but carefully follow this procedure if you wish to have a
specific question addressed to a witness.\]

*Judge=s Questions^2^*[^31]

During the trial, I may sometimes ask a witness questions. Do not assume
that because I ask questions I hold any opinion on the matters I ask
about, or on how the case should be decided.

*Jury Conduct^2^*[^32]

All jurors must follow certain rules of conduct, and you must follow
them, too.

First, you must not discuss this case with anyone, including your fellow
jurors, members of your family, people involved in the trial, or anyone
else. You must not let others to discuss the case with you. If anyone
tries to talk to you about the case please let me know about it
immediately;

Second, you must not read any news stories or articles or listen to any
radio or television reports about the case or about anyone who has
anything to do with it;

Third, you must not do any research, such as consulting dictionaries,
searching the Internet or using other reference materials, and do not
make any investigation about the case on your own;

Fourth, if you need to communicate with me, you must give a signed note
to the \[bailiff\] \[clerk\] \[law clerk\] \[matron\] to give to me; and

Fifth, you must not make up your mind about what the verdict should be
until after you have gone to the jury room to decide that case and you
and your fellow jurors have discussed the evidence. Keep an open mind
until then.

[^1]: The Committee suggests identifying each party by name in this
    paragraph when feasible.

[^2]: \]^1^ If the defendant has raised an affirmative defense, a court
    may replace this paragraph with the following language:

    > If you find that Plaintiff has failed to prove any of these things
    > by a preponderance of the evidence, your verdict should be for
    > Defendant. If you find that Plaintiff has proved each of these
    > things by a preponderance of the evidence, you must then consider
    > Defendant=s argument that \[*describe affirmative defense*\]. If
    > Defendant has proved this by a preponderance of the evidence, your
    > verdict should be for Defendant. If Defendant has not proved this
    > by a preponderance of the evidence, you should turn to the issue
    > of Plaintiff=s damages.

    A court may also wish to address these issues through the use of a
    special verdict form.

[^3]: \]^2^ If the defendant has raised an affirmative defense, a court
    may replace this paragraph with the following language:

    > If you find that Plaintiff has failed to prove any of these things
    > by a preponderance of the evidence, your verdict should be for
    > Defendant. If you find that Plaintiff has proved each of these
    > things by a preponderance of the evidence, you must then consider
    > Defendant=s argument that \[*describe affirmative defense*\]. If
    > Defendant has proved this by a preponderance of the evidence, your
    > verdict should be for Defendant. If Defendant has not proved this
    > by a preponderance of the evidence, you should turn to the issue
    > of Plaintiff=s damages.

    A court also may wish to address these issues through the use of a
    special verdict form.

[^4]: t^3^ If the case involves a factual dispute about whether a
    physical or mental impairment exists, the Committee suggests that a
    court include the following language after the instruction=s first
    paragraph: AThe term \>physical impairment= means any condition that
    prevents the body from functioning normally. The term \>mental
    impairment= means any condition that prevents the mind from
    functioning normally.@ If more detail is necessary to capture the
    particular dispute, the Committee suggests that the court borrow
    language from the actual regulation on this point. *See* Committee
    comment b (discussing 29 C.F.R. \' 1630.2(h)).

[^5]: .^4^ If the question of whether the activity at issue is a Amajor
    life activity@ is contested, the Committee suggests replacing this
    sentence with the language in Committee comment c.

[^6]: g^5^ If the plaintiff alleges work as the relevant major life
    activity, replace this paragraph of the instruction with the
    following:

    *(a) Substantially Limiting: Work as Major Life Activity*

    Let me start by telling you what I mean by Asubstantially limiting.@
    An impairment substantially limits a person=s ability to work if it
    significantly restricts him from performing a class of jobs, or a
    broad range of jobs in various classes, compared to someone with
    similar knowledge, skills, and training. Being unable to do a
    particular job, however, is not by itself a substantial limitation
    on the ability to work.

[^7]: @^6^ Use this instruction only if Aregarded as@ is an issue.

[^8]: @^7^ Use this instruction only if Arecord of@ is an issue.

[^9]: t^8^ If the case involves a factual dispute about whether a
    physical or mental impairment exists, the Committee suggests that a
    court include the following language after the instruction=s first
    paragraph: AThe term \>physical impairment= means any condition that
    prevents the body from functioning normally. The term \>mental
    impairment= means any condition that prevents the mind from
    functioning normally.@ If more detail is necessary to capture the
    particular dispute, the Committee suggests that the court borrow
    language from the actual regulation on this point. *See* Committee
    comment b (discussing 29 C.F.R. \' 1630.2(h)).

[^10]: .^1^ The Committee suggests that, when possible, the court refer
    to the particular legislative body, *e.g.*, Athe Smallville City
    Council@.

[^11]: \]^2^ The Committee suggests that a court use the phrase
    Acompensatory damages@ only if the case also involves a claim for
    punitive damages.

[^12]: s^1^ The first and third paragraphs are [Ninth Circuit Manual of
    Model Civil Jury Instructions]{.smallcaps} \' 1.1 (2001). The second
    paragraph is a stylistic revision of the preliminary instruction in
    [Fifth Circuit Pattern Jury Instructions (Civil)]{.smallcaps}
    (2004).

[^13]: l^2^ The first and second paragraphs come [Eighth Circuit Manual
    of Model Civil Jury Instructions]{.smallcaps} \' 1.06 (2001). The
    third paragraph is taken from the preliminary instruction in [Fifth
    Circuit Pattern Jury Instructions (Civil)]{.smallcaps} (2004). The
    fourth and fifth paragraphs come from [Ninth Circuit Manual of Model
    Civil Jury Instructions]{.smallcaps} \' 1.2 (2001)

[^14]: s^3^ The first three paragraphs are 3 [Kevin F.
    O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William C. Lee, Federal
    Jury Practice and Instructions]{.smallcaps} \' 101.03 (5th ed.
    2000). The bracketed last paragraph incorporates [First Circuit
    Pattern Jury Instructions (Criminal Cases)]{.smallcaps} \' 1.04
    (1998), which is virtually identical to [Eighth Circuit Manual of
    Model Civil Jury Instructions]{.smallcaps} \' 1.02 (2003).

[^15]: e^4^ Instruction 1.27.

[^16]: g^5^ Instruction 1.28. The definition of Aclear and convincing
    evidence@ varies among, and even within, jurisdictions. If state law
    provides the rule of decision and imposes a burden of proof by clear
    and convincing evidence, the state=s definition should be used.

[^17]: y^6^ Taken from Instruction 1.01.

[^18]: e^7^ Instruction 1.04, with revisions.

[^19]: s^8^ First paragraph of Instruction 1.13.

[^20]: )^9^ Instruction 1.12, with minor style change in the last
    sentence to make the instruction look forward toward the trial. The
    Committee does not expect this instruction will be needed in every
    case.

[^21]: 1^0^ Instruction 1.11.

[^22]: 1^1^ The first paragraph is [Ninth Circuit Manual of Model Civil
    Jury Instructions]{.smallcaps} \' 1.4 (2001), The second paragraph
    is [Eighth Circuit Manual of Model Civil Jury
    Instructions]{.smallcaps} \' 1.02 (2001).

[^23]: 1^2^ The first sentence is 3 [Kevin F. O]{.smallcaps}=[Malley,
    Jay E. Grenig & Hon. William C. Lee, Federal Jury Practice and
    Instructions]{.smallcaps} \' 102.25 (5th ed. 2000); the remainder of
    the instruction is Instruction 1.22.

[^24]: 1^3^ Preliminary instruction in [Eleventh Circuit Pattern Jury
    Instructions (Civil Cases)]{.smallcaps} (2000), modified as to
    style.

[^25]: 1^4^ First paragraph is [Fifth Circuit Pattern Jury
    Instructions]{.smallcaps} \' [2.7 (Civil)]{.smallcaps} (2004). The
    first clause of the second paragraph is from [Eighth Circuit Manual
    of Model Civil Jury Instructions]{.smallcaps} \' 1.03 (2001), and
    last clause of second paragraph is from the preliminary instruction
    in [Eleventh Circuit Pattern Jury Instructions (Civil
    Cases)]{.smallcaps} (2000).

[^26]: 1^5^ The first paragraph is based on Instruction 1.07. The first
    sentence of the second paragraph is taken from [Ninth Circuit Manual
    of Model Civil Jury Instructions]{.smallcaps} \' 1.11 (2001). The
    second sentence of the second paragraph is taken from [Eighth
    Circuit Manual of Model Civil Jury Instructions]{.smallcaps} \' 1.04
    (2001).

    The Committee takes no position on whether jurors should be allowed
    to take notes.

[^27]: 1^6^ Preliminary instruction from [Eleventh Circuit Pattern Jury
    Instructions (Civil Cases)]{.smallcaps} \' (2000), slightly revised.

[^28]: 1^7^ [Eighth Circuit Manual of Model Civil Jury
    Instructions]{.smallcaps} \' 1.04 (2001).

[^29]: 1^8^ 3 [Kevin F. O]{.smallcaps}=[Malley, Jay E. Grenig & Hon.
    William C. Lee, Federal Jury Practice and Instructions]{.smallcaps}
    \' 101.16 (5th ed. 2000).

    If the judge might allow a juror to ask a question under unforeseen
    circumstances, the topic should not be addressed in the preliminary
    instructions; this instruction would foreclose the possibility.

[^30]: 1^9^ [Indiana Pattern Jury Instructions]{.smallcaps}C[Civil
    2d]{.smallcaps} 1.12 (2003), modified as to style.

    The practice of allowing jurors= questions Ais acceptable in some
    cases, but \[we\] do not condone it,@ and the court condemned
    procedures Awhere jurors are permitted to blurt out their
    questions,@ but ultimately decided the practice is within the trial
    court=s discretion. *United States v. Feinberg*, 89 F.3d 333,
    336-337 (7th Cir. 1996):

    The Committee takes no position on whether trial judges should allow
    jurors to ask questions, or on how trial judges should go about
    allowing juror questions, if they decide to allow them (other than
    offering this up as a suggestion). Judges who intend to allow jurors
    to ask questions might defer giving this instruction or any like it
    until a juror actually raises the issue.

[^31]: 2^0^ The first sentence is from 3 [Kevin F.
    O]{.smallcaps}=[Malley, Jay E. Grenig & Hon. William C. Lee, Federal
    Jury Practice and Instructions]{.smallcaps} \' 101.30 (5th ed.
    2000). The rest is from Instruction 1.02, revised as to style in the
    last phrase.

    The Committee takes no position on whether or when judges should
    question witnesses in the jury=s presence.

[^32]: 2^1^ [Ninth Circuit Manual of Model Civil Jury
    Instructions]{.smallcaps} \' 1.9 (2001), revised as to style by
    inserting Ayou must@ to be consistent with idea that these are rules
    they *must* follow.