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Judge Thomt? ftll. 0urlrln

United Statae Dlctrict Court

No. LZ C 1789

Judge Thomas M. Durkin

Defendants.

FINAL JURY INSTRUCTIONS

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 1 of 37 PageID #:5164
Instruction No. 1

Members of the jury, you have seen and heard all of the evidence and

arguments of the attorneys. Now I will instruct you on the law.

You have two duties as a jury. Your frrst 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, or public opinion to inf'luence 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 2 of 37 PageID #:5165
Instrustion No.2

During this trial, I asked questions of witnesses myseU.

because I asked questions I hold any opinion on the matters I

what the outcome of the case should be.

Do not assume that

asked ahout, or on

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 3 of 37 PageID #:5166
Instruction No. I

In determining the facts of this case, you must consider only the evidence

that I have admitted in the case. The evidence consisted of the testimony of the

witnesses, exhibits admitted, stipulations, and answers to interrogatories and

requests to admit.

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

and a person would have given certain testimony.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 4 of 37 PageID #:5167
Instruction No. 4

During the trial, certain testimony was presented to you by the reading of a

deposition. You should give this testimony the same consideration you would give it

had the witness appeared and testifred here in court.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 5 of 37 PageID #:5168
Instruction No. 5

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 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 pulpose 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 6 of 37 PageID #:5169
Instruction No. 6

From time to time during the trial I was called upon to make rulings of law

on objections or motions made by the attorneys. You should not infer or conclude

from any ruling or other comment I made that I have any opinions about how you

should decide this case. And if I sustained an objection to a question that went

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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 7 of 37 PageID #:5170
Instruction No. 7

Any notes you took during this trial are only aids to your memory. The notes

are not evidence. If you did 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. You will be allowed to take your

notes which are not written on these instruction into the jury room when you

deliberate.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 8 of 37 PageID #:5171
Instruction No. 8

In determining whether any fact has been proved, you should consider all of

the evidence bearing on the question regardless of who introduced it.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 9 of 37 PageID #:5172
Instrustion No. 9

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 ofben look at one fact and conclude from it that another fact

exists. In law we call this an "inference." 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 10 of 37 PageID #:5173
trnstruction No. 10

You will recall that during the course of this trial I

admitted certain evidence for a limited purpose. You must

only for the limited purpose for which it was admitted.

instructed you that I

consider this evid.ence

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 11 of 37 PageID #:5174
Instruction No. 11

You may have heard the phrases "direct evidence" and "circumstantial

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 that it is raining is testimony from a witness

who says, "I was outside a minute ago and I saw i1 1aining." Circumstantial

evidence 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 12 of 37 PageID #:5175
Instruction No. 12

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, 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 testifyirg; and

the reasonableness of the witness's testimony in

light of all the evidence in the case.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 13 of 37 PageID #:5176
Instruction No. 18

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

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 14 of 37 PageID #:5177
Instruction No. L4

You may frnd 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 a larger number of witnesses.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 15 of 37 PageID #:5178
Instruction No. 16

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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 16 of 37 PageID #:5179
Instrustion No. 16

In this case, the Defendant is the Illinois Department of Transportation, and

was referred to at times as "IDOT." IDOT is an agency of the State of lllinois. All

parties are equal before the law. A state agency is entitled to the same fair

consideration that you would give any individual person.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 17 of 37 PageID #:5180
Instrustion No. 17

When I eay a particular party must prove something by "a preponderance of

the evidence," or when f use the eraression "if you frnd," or "if you decide," this is

what I mean:

When you have considered all the evid.ence in the case, you must be

persuaded that it more probably true than not true.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 18 of 37 PageID #:5181
Instruction No. 18

In this case, Plaintiff DeMarco Nichols makes a claim under a Federal Civil

Rights statute that prohibits employers from discriminating against an employee in

the terms and conditions of employment because of the employee's race, color,

religion, sex, or national origin. More specifically, Mr. Nichols, a Muslim, claims

that he was:

(1) denied a religious accommodation that would have

allowed him to pray at work (Religious

Accommodation Claim);

(2) terminated from his employment because of his

religion, which is Islam @isparate Theatment

Claim); and

(3) retaliated against for complaining about being

treated differently than other employees because of

his religion and/or for filing a complaint of

discrimination against IDOT with the federal

Equal Employment Opportunity Commission

(EEOC) @etaliation Claims (A)-@).

IDOT denies that Mr. Nichols was entitled to a religious accommodation as

requested or that he was discriminated or retaliated against in any way.

I will now instruct you more fully on the issues you must address in this case.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 19 of 37 PageID #:5182
Instruction No. 19

Religious Accommodation Claim: Plaintiff claims that Defendant unlawfully

refused his request for a "reasonable accommodation" to practice his religion.

To succeed on this claim, Plaintiff must prove four things by a preponderance

ofthe evidence:

That Plaintiff had a sincerely held religious belief

requiring him to pray during work hours;

That Plaintiffs religious need to pray during work

hours conflicted with his job requirements;

3. That Defendant knew of the conflict between

Plaintiffs religious need to pray during work hours

and his job requirements;

4. That Defendant did not reasonably accommodate

Plaintiffs religious need to pr ay during work hours.

If you find that Plaintiff did not prove by a preponderance of the evidence

each of these things, then you must find for Defendant on this claim. If, on the other

hand, Plaintiff has proved each of these things, you must go on to consider whether

Defendant has proved by a preponderance of the evidence that accommodating

Plaintiffls request for a religious accommodation would have imposed an undue

burden on Defendant. I will instruct you further on what constitutes an "undue

burdenl' in a moment. If you fi.nd that Defendant has proven that accommodating

Plaintiffs request for a religious accommodation would have imposed an undue

burden on Defendant, your verdict on this claim should be for Defendant. If you frnd

that Defendant has not proved the existence of an undue burden, your verdict

should be for Plaintiffon this claim.

I will now instruct you further on Plaintiffs religious accommodation claim.

1.

2.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 20 of 37 PageID #:5183
Instruction No. 20

To "accommodate" a request for a religious accommodation is to make some

change that will let a person participate in his religious belieflpractice without

afflecting his job. An accommodation is "reasonable" 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 21 of 37 PageID #:5184
Instruction No. 21

Once an employer is aware of an employee's need for a religious

accommodation, and an accommodation has been requested, the employer must

discuss with the employee whether there is a reasonable accommodation that will

permit him to perform the job. Both the employer and the employee 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 22 of 37 PageID #:5185
Instruction No. 22

Defendant does not need to accommodate Plaintiff if it would cause an

"undue hardship" to its business. An "undue 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 bears the

burden of proof on this issue; that is, Defendant must prove to you by a

preponderance of the evidence that Plaintiffs proposed accommodation would be an

"undue hardship." In deciding this issue, you should consider the following factors:

The nature and cost of the accommodation;

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;

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

The way that Defendant conducts its operations.

This might include its workforce structure; the

Iocation of its facility where the accommodation

would be made compared to Defendant's other

facilities; and the relationship between these

facilities.

1.

2.

3.

4.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 23 of 37 PageID #:5186
Instruction No. 28

Disparate Treatment Claim: For his disparate treatment claim, Plaintiff

claims that he was suspended and/or terminated by Defendant because of his

religion. To succeed on this claim, Plaintiff must prove by a preponderance of the

evidence that his religion was a motivating factor in Defendant's decision to

suspend and/or terminate him.

As used in these instructions, an unlawful employment practice is

established when Plaintiff demonstrates that his religion was a motivating factor in

Defendant's decision to suspend and/or terminate him, even though other factors

also motivated his suspension and"/or termination.

If you find that Plaintiff has proved this claim by a preponderance of the

evidence, then you must enter a verdict for Plaintiff. However, if you frnd that

Plaintiff did not prove this claim by a preponderance of the evidence, then you must

enter a verdict for Defendant.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 24 of 37 PageID #:5187
Instrustion No. 24

Although Plaintiff must prove that Defendant acted with the intent to

discriminate, Plaintiff is not required to prove that Defendant acted with the

particular intent to violate Plaintiffs federal civil rights. Moreover, Plaintiff is not

required to produce direct evidence of intent, such as statements admitting

discrimination. Intentional discrimination may be inferred from the existence of

other facts.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 25 of 37 PageID #:5188
Instruction No. 25

Defendant has given a non&scriminatory reason for its decision to terminate

Plaintiff. If you disbelieve Defendant's explanations for its conduct, then you may,

but need not, frnd that Plaintiff has proved intentional discrimination. In

determining whether Defendant's stated reason for its actions was a pretext, or

excuse, for discrimination, you may not question Defendant's business judgment.

You cannot frnd intentional discrimination simply because you disagree with the

business judgment of Defendant or believe it is harsh or unreasonable. You are not

to consider Defendant's wisdom. However, you may consider whether Defendant's

reason is merely a cover-up for discrimination.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 26 of 37 PageID #:5189
Instruction No. 26

Retaliation Claims (A-D): The law protects employees from retaliation who in

good faith oppose discrimination in the workplace. Opposition to discrimination can

take the form of both formal and informal protests of discriminatory employment

practices, including verbal complaints to supervisors or other management. For his

retaliation claim, Plaintiff does not have to prove that he was actually

discriminated against, but only that he complained about being discriminated

against.

Retaliation occurs when an employer takes a materially adverse action

against an employee because of the employee's good faith opposition to

discrimination in the workplace. A "materially adverse action" is any action that

might discourage a reasonable worker from making or supporting a charge of

discrimination or otherwise opposing discrimination as described above. Plaintiff

claims that he suffered the following materially adverse actions as a result of his

complaints about religious discrimination against him:

(A)

(B)

(c)

(D)

He was denied a religious accommodation as requested by Defendant;

He was suspended and/or terminated from his job by Defendant; and

He was not permitted by Defendant to grieve his termination.

He was treated differently than other similarly situated smployees as

to the March 26,2008 suspension relating to his second violation of the

snow caII policy.

I will now instruct you further on Plaintiffs retaliation claims.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 27 of 37 PageID #:5190
Instruction No. 27

Retaliation Claim (A): Plaintiff claims that he was denied a religious

accommodation by Defendant because of his complaints about discrimination

against him. To succeed in this claim, Plaintiff must prove by a preponderance of

the evidence that:

he exercised his right to complain about acts of

discrimination against him;

his complaints about discrimination against him

were based on a reasonable, good faith belief that

he had suffered discriminatory treatment. This

does not, however, require Plaintiff to show that

what he believed was correct; and

3. Defendant would not have denied PlaintifPs

request for a religious accommodation if Plaintiff

had not complained about discrimination against

him, but everything else had been the same.

If you frnd that Plaintiff did not prove by a preponderance of the evidence

each of these things required of him, then you must find for Defendant on Plaintiffs

Retaliation Claim (A). Ifl on the other hand, Plaintiff has proved each of these

things, your verdict should be for Plaintiffon this claim.

1.

2.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 28 of 37 PageID #:5191
Instruction No. 2E

Retaliation Claim (B): Plaintiff claims that he was suspended and/or

terminated from his job by Defendant because of his complaints about

discrimination against him. To succeed in this claim, Plaintiff must prove by a

preponderance of the evidence that:

1. he exercised his right to complain about acts of

discrimination against him;

2. his complaints about discrimination against him

were based on a reasonable, good faith belief that

he had suffered discriminatory treatment. This

does not, however, require Plaintiff to show that

what he believed was correct; and

3. Defendant would not have suspended and"/or

terminated Plaintiff if Plaintiff had not complained

about discrimination against him, but everything

else had been the same.

If you find that Plaintiff did not prove by a preponderance of the evidence

each of these things, then you must frnd for Defendant on Retaliation Claim (B). Ifl

on the other hand, Plaintiff has proved each of these things, your verdict should be

for Plaintiffon this claim.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 29 of 37 PageID #:5192
Instruction No. 29

Retaliation Claim (C): Plaintiff claims that Defendant refused to allow him to

gneve his termination using Defendant's internal grievance process because of his

complaints about discrimination against him. Specifi.cally, Plaintiff claims that he

was retaliated against for filing and maintaining a charge of discrimination against

Defendant with the Equal Employment Opportunity Commission @EOC) when

Defendant required him to withdraw his EEOC complaint in order to proceed with

the grievance process. To succeed in this claim, Plaintiff must prove by a

preponderance of the evidence that:

1. he frled a discrimination complaint with the EEOC

2. he attempted to grieve his termination using

Defendant's internal grievance process; and

2. he was not allowed by Defendant to grieve his

termination using Defendant's internal grievance

process unless he agreed to withdraw his EEOC

complaint.

If you frnd that Plaintiff did not prove by a preponderance of the evidence

each of these things, then you must find for Defendant on Retaliation Claim (C). If,

on the other hand, Plaintiff has proved each of these things, your verdict should be

for Plaintiffon this claim.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 30 of 37 PageID #:5193
Instruction No. 30

Retaliation Claim @): Plaintiffclaims that Defendant treated him differently

than other similarly situated employees because of his complaints about

discrimination against him. To succeed in this claim, Plaintiff must prove by a

preponderance of the evidence that:

he exercised his right to complain about acts of

discrimination against him;

his complaints about discrimination against him

were based on a reasonable, good faith belief that

he had suffered discriminatory treatment. This

does not, however, require Plaintiff to show that

what he believed was correct; and

Defendant would not have treated Plaintiff

differently than other similarly situated employees

as to the March 26,2008 suspension relating to his

second violation of the snow call policy, if Plaintiff

had not complained about d.iscrimination against

him, but everything else had been the same.

If you frnd that Plaintiff did not prove by a preponderance of the evidence

each of these things, then you must find for Defendant on Retaliation Claim (D). If,

on the other hand, Plaintiff has proved each of these things, your verdict should be

for Plaintiffon this c1aim.

1.

2.

3.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 31 of 37 PageID #:5194
Instruction No. 81

There is no requirement that plaintifr file a grievance or pursue a grievance

to any particular step or level in order to otherurise pmve his allegation.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 32 of 37 PageID #:5195
Instruction No. 32

If you frnd that Plaintiffhas proved any of his claims against Defendant, then

you must determine what amount of damages, if any, Plaintiffis entitled to recover.

Plaintiffmust prove his damages by a preponderance of the evidence.

If you frnd that Plaintiff has failed to prove any of his claims, then you will

not consider the question of damages for the claims you frnd he has failed to prove.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 33 of 37 PageID #:5196
Instruction No. 33

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

benefi.ts. If you find for the Plaintiff on liability, the court will calculate and

determine any damages Plaintiff is entitled to for past or future lost wages and

benefi.ts. You should consider the following types of compensatory damages, and no

others:

The physical, mental and./or emotional pain and suffering that Plaintiff

has experienced and is reasonably certain to e>rperience in the future.

No evidence of the dollar value of physical, mental and/or emotional pain and

suffering 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 Plaintifffor the injury he has sustained.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 34 of 37 PageID #:5197
Instruction No. 34

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, which I will read to you now.

Take these forms to the jury room, and when you have reached unanimous

agreement on the verdict, your presiding juror will frll in and date the appropriate

form, and all of you will sign it.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 35 of 37 PageID #:5198
Instruction No. 86

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 slllyilling to do so, by some other

juror. The writing should be given to the eourt security officer, 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.

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 36 of 37 PageID #:5199
Instruction No. 86

The verdict must represent the considered judgment of each juror. Your

verdict, 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, er{press 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 so1ely 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

deliberate with the goal of reaching an agreement that is consistent with

individual judgment of each juror. You are impartial judges of the facts.

and

the

Case: 1:12-cv-01789 Document #: 233 Filed: 09/28/16 Page 37 of 37 PageID #:5200