IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





MARIA BERGDALE,
Plaintiff,

No. C 00-3069-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

UNI-SELECT USA, INC., f/k/a AUTOMOTIVE NORTHERN WAREHOUSE, INC.,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - BURDEN OF PROOF 3

NO. 4 - ELEMENTS OF PLAINTIFF'S CLAIMS 4

NO. 5 - ORDER OF TRIAL 8

NO. 6 - DEFINITION OF EVIDENCE 9

NO. 7 - CREDIBILITY OF WITNESSES 10

NO. 8 - STIPULATED FACTS 11

NO. 9 - DEPOSITIONS AND TESTIMONY BY VIDEO-

CONFERENCING 12

NO. 10 - INTERROGATORIES 13

NO. 11 - OBJECTIONS 14

NO. 12 - BENCH CONFERENCES 15

NO. 13 - NOTE-TAKING 16

NO. 14 - CONDUCT OF JURORS DURING TRIAL 17

FINAL INSTRUCTIONS 19

NO. 1 - INTRODUCTION 19

NO. 2 - IMPEACHMENT OF WITNESSES 20

NO. 3 - FAILURE TO PRODUCE EVIDENCE 21

NO. 4 - DEFINITION: DISABILITY 22

NO. 5 - DEFINITIONS: QUALIFICATION, REASONABLE

ACCOMMODATION, INTERACTIVE PROCESS,

AND UNDUE HARDSHIP 25

NO. 6 - DISABILITY DISCRIMINATION: FAILURE TO

ACCOMMODATE PLAINTIFF'S DISABILITY 29

NO. 7 - DEFINITIONS: ADVERSE EMPLOYMENT ACTION

AND CONSTRUCTIVE DISCHARGE 31

NO. 8 - DEFINITION: MOTIVATING FACTOR 33

NO. 9 - DISABILITY DISCRIMINATION: ADVERSE EMPLOYMENT

ACTION BECAUSE OF PLAINTIFF'S DISABILITY 34

NO. 10 - RETALIATION FOR FILING WORKERS COMPENSATION

CLAIMS 36

NO. 11 - DAMAGES--IN GENERAL 38

NO. 12 - COMPENSATORY DAMAGES 40

NO. 13 - PUNITIVE DAMAGES 42

NO. 14 - DELIBERATIONS 44



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, defendant Uni-Select is a corporation. The mere fact that a party is a corporation does not mean that it is entitled to any greater or lesser consideration by you. All persons, including the plaintiff and Uni-Select, stand equal before the law, and are entitled to the same fair consideration by you. When a corporation such as Uni-Select is involved, of course, it may act only through natural persons, such as its managers, as its agents.

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

PRELIMINARY INSTRUCTION NO. 3 - BURDEN OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. In this case, unless I tell you otherwise, that party is plaintiff Maria Bergdale.

The party with the burden of proof must prove facts by the "greater weight of the evidence." To prove something "by the greater weight of the evidence" means to prove that it is more likely true than not true. The "greater weight of the evidence" is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the issue has been proved.

The "greater weight of the evidence" is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard, which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 4 - ELEMENTS OF

PLAINTIFF'S CLAIMS





As I explained during jury selection, plaintiff Maria Bergdale asserts the following claims against Uni-Select: (1) discrimination on the basis of her disability, her record of having a disability, or Uni-Select's perception that she is disabled; (2) discrimination because of her age; (3) retaliation for filing a charge of discrimination; and (4) retaliation for filing workers compensation claims. Each of her claims consists of "elements," which she must prove by the greater weight of the evidence if she is to win on that claim. To help you follow the evidence, here is a brief summary of the elements of Ms. Bergdale's claims.



DISABILITY DISCRIMINATION

Ms. Bergdale asserts two separate disability discrimination claims: (1) failure to provide reasonable accommodation for her disability; and (2) adverse employment action because of her disability.

Failure to accommodate plaintiff's disability

To win on her claim of failure to provide reasonable accommodation for her disability, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Ms. Bergdale had injuries to her knee and foot causing permanent physical impairments, which Uni-Select does not dispute;

Two, the impairments to her knee and foot substantially limited her ability to perform one or more major life activities, including lifting, standing, walking or working;

Three, Uni-Select knew the nature and extent of Ms. Bergdale's impairments;

Four, Ms. Bergdale could have performed the essential functions of her past jobs or other positions that were available, either with or without accommodation;

Five, providing the required accommodation would have been reasonable; and

Six, Uni-Select failed to provide reasonable accommodation for Ms. Bergdale to perform her past jobs or failed to transfer her to any other available position in which her impairments could be reasonably accommodated.

Adverse employment action because of plaintiff's disability

To win on her claim of disability discrimination, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Ms. Bergdale had injuries to her knee and foot causing permanent physical impairments, which Uni-Select does not dispute;

Two, the impairments to her knee and foot substantially limited her ability to perform one or more major life activities, including lifting, standing, walking, or working, or Uni-Select regarded Ms. Bergdale as having such substantial limitations;

Three, Uni-Select took adverse employment action against Ms. Bergdale, either in terminating her or refusing to transfer her to a different position;

Four, at the time of Uni-Select's adverse employment action, Ms. Bergdale could have performed the essential functions of positions that were available; and

Five, Ms. Bergdale's disability or perceived disability was a motivating factor in Uni-Select's decision to terminate her or to refuse to transfer her.



AGE DISCRIMINATION

To win on her claim of age discrimination, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Uni-Select took adverse employment action against Ms. Bergdale, either in terminating her or refusing to transfer her to a different position;

Two, Ms. Bergdale's age was a motivating factor in Uni-Select's decision to terminate her or to refuse to transfer her to a different position.



RETALIATION FOR FILING DISCRIMINATION CHARGES

To win on her claim of retaliation for filing discrimination charges, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Ms. Bergdale filed charges of discrimination with the Mason City Human Rights Commission;

Two, Uni-Select subsequently took adverse employment action against Ms. Bergdale; and

Three, Ms. Bergdale's filing of charges of discrimination with the Mason City Human Rights Commission was a motivating factor for the adverse employment action taken by Uni-Select.



RETALIATION FOR FILING WORKERS COMPENSATION CLAIMS

To win on her claim of retaliation for filing workers compensation claims, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Uni-Select took adverse employment action against Ms. Bergdale, either in terminating her or refusing to transfer her to a different position; and

Two, Ms. Bergdale's pursuit of a workers compensation claim was the determining factor in Uni-Select's decision to terminate her or to refuse to transfer her to a different position.



This is only a preliminary outline of the elements of Ms. Bergdale's claims. At the end of the trial, I will give you further final written instructions that explain these claims. Because the final instructions are more detailed, those instructions govern on the elements of Ms. Bergdale's claims.

PRELIMINARY INSTRUCTION NO. 5 - ORDER OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the plaintiff's attorney may make an opening statement. Next, the lawyer for the defendant may make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to be.

After opening statements, the plaintiff will present evidence and call witnesses and the lawyer for the defendant may cross-examine them. Following the plaintiff's case, the defendant may present evidence and call witnesses and the lawyer for the plaintiff may cross-examine them.

After the evidence is concluded, I will give you most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 6 - DEFINITION OF EVIDENCE



Evidence is:

1. Testimony, including testimony presented by deposition or video-conferencing.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

Evidence may be "direct" or "circumstantial." The law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

A particular item of evidence is sometimes admitted only for a limited purpose, and not for any other purpose. I will tell you if that happens, and instruct you on the purposes for which the item can and cannot be used.

The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

The weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.

PRELIMINARY INSTRUCTION NO. 7 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness's drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS



The plaintiff and the defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Either counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.

PRELIMINARY INSTRUCTION NO. 9 - DEPOSITIONS AND

TESTIMONY BY VIDEO-CONFERENCING





Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider that testimony as if it had been given in court.

Similarly, testimony may be presented live by video-conferencing with the witness in a different location. Such testimony will also be under oath and should be considered as if the witness had been physically present in this courtroom.

PRELIMINARY INSTRUCTION NO. 10 - INTERROGATORIES



During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS



The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections.

PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

PRELIMINARY INSTRUCTION NO. 13 - NOTE-TAKING



If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember that it is your own individual responsibility to listen carefully to the evidence.

Notes you take during the trial are not necessarily more reliable than your memory or another juror's memory. Therefore, you should not be overly influenced by the notes.

If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

You will notice that we have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.

PRELIMINARY INSTRUCTION NO. 14 - CONDUCT OF JURORS

DURING TRIAL





You will not be required to remain together while court is in recess. However, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. It is important that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

DATED this 15th day of July, 2002.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

However, Ms. Bergdale's claims that Uni-Select discriminated against her because of her age and retaliated against her for filing discrimination claims are no longer before you and will not be decided by you. You should not guess about or concern yourselves with the reason that these claims are no longer before you.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 7, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and, therefore, whether they affect the credibility of that witness.

If you believe that a witness has been discredited or impeached, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.

FINAL INSTRUCTION NO. 3 - FAILURE TO

PRODUCE EVIDENCE





Ms. Bergdale contends that Uni-Select has intentionally failed to produce evidence consisting of typing tests used in the hiring decision for the receptionist position in October 1998. You may, but are not required to, conclude that such evidence would be unfavorable to Uni-Select. However, for you to reach the conclusion that the evidence would have been unfavorable to Uni-Select, more than the mere non-production of the evidence must be shown. Rather, before you can reach this conclusion, Ms. Bergdale must prove all of the following by the greater weight of the evidence: (1) the evidence of the typing tests exists or previously existed; (2) the evidence is or was within the possession or control of Uni-Select; (3) Uni-Select's interests would call for production of the evidence if it were favorable to Uni-Select; and (4) Uni-Select has intentionally failed to produce the evidence without satisfactory explanation.

FINAL INSTRUCTION NO. 4 - DEFINITION: DISABILITY





Ms. Bergdale's first two claims are based on disability discrimination in violation of the Americans with Disabilities Act of 1990 (the ADA). Under the ADA, a "disability" is defined as (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) having a record of such an impairment; or (C) being regarded as having such an impairment. These three definitions of disability are ordinarily referred to as "actual disability," "record of disability," and "perceived disability," respectively. Ms. Bergdale contends that she either is, has a record of, or was regarded by Uni-Select to be, substantially limited in major life activities including lifting, standing, walking, or working.

Actual disability. To prove that a person is actually disabled, within the meaning of definition (A) of disability under the ADA, the person must be substantially limited in one or more major life activities.

Record of disability. To prove that a person has a "record of disability," definition (B) of disability under the ADA, the person must have a history of, or have been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

Perceived disability. To prove that a person has a "perceived disability," definition (C) of disability under the ADA, the person must be perceived or regarded as being substantially limited in one or more major life activities. A perceived disability is one based on speculation, stereotype, or myth about the limiting effects of the plaintiff's impairment, and involves the treatment of the plaintiff as being substantially limited in a major life activity. Therefore, being perceived or regarded as having a disability means any one or more of the following: (1) the individual has some impairment that does not substantially limit her in a major life activity, but is treated by the defendant as having such a limitation; (2) the individual has an impairment that substantially limits a major life activity, but only as a result of the attitudes of others toward such impairment; or (3) the individual does not have an impairment, but is treated by the defendant as having a substantially limiting impairment. Common attitudinal barriers include, but are not limited to, concerns about productivity, safety, insurance, liability, attendance, costs of accommodation and accessibility, and acceptance by co-workers and customers. However, an employer does not perceive an employee to be disabled if the employer's conclusion that the employee is unable to perform a particular job is a reasonable one based upon an individualized inquiry that takes into account medical or other evidence concerning the employee's actual ability to perform the job or an entire class of jobs to which that particular job belongs.

Each of these definitions of "disability" depends upon whether the plaintiff actually is, has a record of being, or is perceived to be "substantially limited in a major life activity." The phrase "substantially limited in a major life activity," as used in these instructions, means an individual is unable to perform or is significantly restricted in the ability to perform a "major life activity," such as lifting, standing, walking, or working. In determining whether the plaintiff's impairment substantially limits the plaintiff's ability to perform a major life activity, you should compare the plaintiff's ability to perform that activity with that of the average person. In doing so, you should also consider the following: (1) the nature and severity of the impairment; (2) how long the impairment will last or is expected to last; and (3) the permanent or long-term impact, or expected impact, of the impairment. Temporary impairments with little or no long-term impact are not sufficient.

If you find that the plaintiff is not substantially limited in any other major life activity, you should consider whether she is substantially limited in the major life activity of working. Generally, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Rather, the plaintiff must show that the impairment significantly restricts her ability to perform either an entire class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. In addition to the factors applicable to any other major life activity, the following factors are relevant in determining whether a person is substantially limited in the major life activity of working: (1) the number and type of jobs from which the individual has been disqualified because of the impairment; (2) the geographical area to which the individual has reasonable access; and (3) the individual's job training, experience, and expectations.

Finally, to be substantially limited in performing a major life activity, the plaintiff must have an impairment that prevents or severely restricts the plaintiff from doing activities that are of central importance to most people's daily lives. Therefore, it is not the name of an impairment or a condition that matters, but rather the effect of an impairment or condition on the life of a particular person.

FINAL INSTRUCTION NO. 5 - DEFINITIONS: QUALIFICATION,

REASONABLE ACCOMMODATION, INTERACTIVE

PROCESS, AND UNDUE HARDSHIP





Ms. Bergdale's first two claims, which are based on disability discrimination, depend upon Ms. Bergdale's qualification to perform her past jobs or other available jobs. To be "qualified" for a job, Ms. Bergdale must be able to perform the "essential functions" of that job, either with or without "reasonable accommodation."

The term "essential functions" means the fundamental job duties of the employment position that the plaintiff holds or to which the plaintiff sought a transfer. The term "essential functions" does not include the marginal functions of the position. In determining whether a job function is essential, you should consider the following factors: (1) the employer's judgment as to which functions of the job are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the work experience of persons who have held the job; (6) the current work experience of persons in similar jobs; (7) whether the reason the position exists is to perform the function; and (8) whether there are a limited number of employees available among whom the performance of the function can be distributed. No one factor is necessarily controlling. You should consider all of the evidence in deciding whether a job function is essential.

The plaintiff must be able to perform the essential functions of a job, either with or without "reasonable accommodation." The term "accommodation" means making modifications to the work place that allow a person with a disability to perform the essential functions of the job or allow a person with a disability to enjoy the same benefits and privileges as an employee without a disability.

An employer is required to make "reasonable" accommodations to allow disabled individuals to perform the essential functions of their positions. A "reasonable" accommodation is one that could reasonably be made under the circumstances and may include but is not limited to: making existing facilities used by employees readily accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

Although part-time work and job restructuring may be considered reasonable accommodations, this does not mean an employer is required to offer those accommodations in every case. Moreover, although job restructuring is a possible accommodation, an employer need not reallocate the essential functions of a job, or hire additional employees, or reassign existing workers to assist a disabled employee.

Reassignment to a vacant position is another possible accommodation. The term "vacant position" includes not only positions that are presently vacant, but also those that the employer reasonably anticipates will become vacant in a short period of time. In certain circumstances, reassignment to a vacant position may be necessary as a reasonable accommodation. The scope of the reassignment duty is limited, however. For example, reassignment should not be considered unless accommodation within the individual's current position would pose an "undue hardship." Moreover, an employer is not required to create a new position as an accommodation, nor is an employer required to "bump" another employee in order to reassign a disabled employee to that position. Also, promotion is not required. Finally, the employee must be "otherwise qualified" for the reassignment position, that is, otherwise able to perform the essential functions of the job and able to meet the employer's other legitimate, non-discriminatory prerequisites for the job.

An employer is not obligated to provide an employee with the accommodation that she requests or prefers. The employer need only provide some "reasonable" accommodation. Also, the employer is not required to provide preferential treatment of individuals with disabilities in terms of job qualifications as a reasonable accommodation.

"Interactive process." The employer must have knowledge that reasonable accommodation is required. Therefore, it is generally the responsibility of the plaintiff to request the provision of a reasonable accommodation. Once the plaintiff has made such a request, the parties must engage in an "interactive process" in which the employer and the employee must work together in good faith to determine what precise accommodations are necessary. An employer cannot require an employee to be 100% healed or have all restrictions removed before the employer attempts to find a reasonable accommodation for the employee. Consequently, once an employee shows that an accommodation is possible, the burden shifts to the employer to show that the accommodation would create an undue burden. If an employer knows that an employee's disability prevents her from performing the essential functions of her job, it must (1) identify the full range of alternative positions for which the employee satisfies the employer's legitimate, non-discriminatory prerequisites; and then (2) determine whether the employee's own knowledge, skills, and abilities would enable her to perform the essential functions of any of those alternative positions, with or without reasonable accommodation.

"Undue hardship." You cannot find that Uni-Select has unreasonably failed to accommodate Ms. Bergdale's disability if Uni-Select has proved by the greater weight of the evidence that providing each of the specific accommodations sought by Ms. Bergdale would cause an "undue hardship" on the operation of Uni-Select's business. The term "undue hardship," as used in these instructions, means an action requiring Uni-Select to incur significant difficulty or expense when considered in light of the following: (1) the nature and cost of the specific accommodation; (2) the overall financial resources of the facility involved in the provision of that accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (3) the overall financial resources of the defendant; (4) the overall size of the business of the defendant with respect to the number of its employees and the number, type, and location of its facilities; (5) the type of operation of the defendant, including the composition, structure, and functions of the workforce; (6) the impact of a specific accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business; and any other factors appropriate to the defendant's decision and proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 6 - DISABILITY DISCRIMINATION:

FAILURE TO ACCOMMODATE PLAINTIFF'S DISABILITY





In her first claim, Ms. Bergdale alleges that Uni-Select failed to provide reasonable accommodation for her disability. To win on her claim of failure to provide reasonable accommodation for her disability, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Ms. Bergdale had injuries to her knee and foot causing permanent physical impairments.

Uni-Select does not dispute this element of Ms. Bergdale's disability discrimination claim.



Two, the impairments to her knee and foot substantially limited her ability to perform one or more major life activities.

The plaintiff must have an "actual disability," as explained in Final Jury Instruction No. 4, to win a claim of failure to provide reasonable accommodation for her disability. Therefore, Ms. Bergdale must prove that her impairments actually or in fact do substantially limit her ability to perform one or more major life activities. Ms. Bergdale contends that she is substantially limited in major life activities including lifting, standing, walking, or working.



Three, Uni-Select knew the nature and extent of Ms. Bergdale's impairments.

The defendant must have adequate knowledge of the plaintiff's impairments. Therefore, you must consider whether the defendant actually knew of the nature and extent of Ms. Bergdale's impairments, either from her or from some other source, or should have known of the nature and extent of her impairments from information reasonably available to the defendant. It is not enough that the employer has some awareness of the plaintiff's health problems, if the plaintiff either conceals the severity of her disabling condition, or the employer does not know or under the circumstances could not reasonably have known of her diagnosis and the extent of her symptoms or limitations, or her impairments were not so obvious that it would be reasonable to infer that the defendant actually knew of the nature and extent of her impairments.



Four, Ms. Bergdale could have performed the essential functions of her past jobs or other positions that were available, either with or without accommodation.

"Essential functions" and "accommodation" were defined for you in Final Jury Instruction No. 5.



Five, providing satisfactory accommodation would have been reasonable.

"Reasonable" accommodation was defined for you in Final Jury Instruction No. 5.



Six, Uni-Select failed to provide reasonable accommodation for Ms. Bergdale to perform her past jobs or failed to transfer her to any other available position in which her impairments could be reasonably accommodated.

In determining whether or not this element has been proved, you should consider the definitions of "reasonable accommodation," "interactive process," and the defense of "undue hardship" in Final Jury Instruction No. 5, in relation to the evidence presented in this case.



If Ms. Bergdale has not proved all of the above elements by the greater weight of the evidence, your verdict must be for Uni-Select on Ms. Bergdale's claim of failure to provide reasonable accommodation for her disability. However, if you find that Ms. Bergdale has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on her claim of failure to provide reasonable accommodation.

FINAL INSTRUCTION NO. 7 - DEFINITIONS: ADVERSE EMPLOYMENT

ACTION AND CONSTRUCTIVE DISCHARGE





Ms. Bergdale's other claims of disability discrimination and retaliation involve the question of whether Uni-Select took "adverse employment action" against her, either in terminating her or refusing to transfer her to a different position. Not everything that makes an employee unhappy is "adverse employment action" sufficient to prove a discrimination or retaliation claim. Rather, "adverse employment action" must be more disruptive than a mere inconvenience, alteration of job responsibilities, or change in duties and working conditions that causes no materially significant disadvantage. Thus, adverse employment action consists of the kind of serious employment consequences that adversely affect or undermine the employee's position, even if the employee is not discharged, demoted, or suspended. You may also consider the cumulative effect of the employer's actions to determine whether the employer's allegedly discriminatory or retaliatory actions amounted to sufficiently adverse employment action, rather than determining whether any individual action upon which a claim relies was sufficiently adverse. "Adverse employment actions" include termination and refusal to transfer to a different, available position that the plaintiff is able to perform.

However, an adverse employment action does not have to be an express termination. Adverse employment action can also include "constructive discharge," which results from making the plaintiff's working conditions so intolerable that a reasonable person in the plaintiff's situation would have concluded that resigning was the only reasonable alternative. To establish a "constructive discharge," the plaintiff must prove the following by the greater weight of the evidence: (1) the defendant made the plaintiff's working conditions intolerable; (2) the plaintiff's disability, record of disability, perceived disability, or filing of workers compensation claims was a motivating factor--that is, it played a part or played a role--in the defendant's actions; and (3) the defendant acted with the intent to force the plaintiff to quit or the plaintiff's resignation was a reasonably foreseeable result of the defendant's actions.

FINAL INSTRUCTION NO. 8 - DEFINITION: MOTIVATING FACTOR



Ms. Bergdale's second disability discrimination claim, her claim of adverse employment action because of her disability, requires proof that her disability (actual, recorded, or perceived) was a "motivating factor" in Uni-Select's adverse employment action. The plaintiff's disability was a "motivating factor" if that characteristic played a part or played a role in the defendant's decisions to terminate her or to refuse to transfer her. However, the plaintiff's disability, as alleged in this claim, need not have been the only reason for those employment decisions.

You may find that Ms. Bergdale's disability was a motivating factor in Uni-Select's adverse employment decisions if Ms. Bergdale has proved by the greater weight of the evidence that Uni-Select's stated reasons for its decisions are not the true reasons, but are instead a pretext to hide a discriminatory decision.

However, you cannot find that the "motivating factor" element of this disability discrimination claim has been proved simply because you disagree with Uni-Select's decision to terminate Ms. Bergdale or to refuse to transfer her to a different position, or think that those decisions were harsh and unreasonable, unless the unreasonableness was unreasonable failure to accommodate her disability. Instead, the "motivating factor" element is only proved if you find by the greater weight of the evidence that Ms. Bergdale's disability was a motivating factor for Uni-Select's adverse employment action.

FINAL INSTRUCTION NO. 9 - DISABILITY DISCRIMINATION:

ADVERSE EMPLOYMENT ACTION BECAUSE OF

PLAINTIFF'S DISABILITY







In her second claim, Ms. Bergdale alleges that Uni-Select discriminated against her because of her disability, record of disability, or perceived disability. To win on her claim of adverse employment action because of her disability, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Ms. Bergdale had injuries to her knee and foot causing permanent physical impairments.

Uni-Select does not dispute this element of Ms. Bergdale's disability discrimination claim.



Two, the impairments to her knee and foot substantially limited her ability to perform one or more major life activities, Ms. Bergdale had a record of such substantial limitations, or Uni-Select regarded Ms. Bergdale as having such substantial limitations.

Ms. Bergdale contends that she is, has a record of being, or was regarded by Uni-Select as being, substantially limited in major life activities including lifting, standing, walking, or working. These types of "disability" and the meaning of "substantially limited in a major life activity" were defined for you in Final Jury Instruction No. 4.



Three, Uni-Select took adverse employment action against Ms. Bergdale, either in terminating her or refusing to transfer her to a different position.

"Adverse employment actions" were defined for you in Final Jury Instruction No. 7.



Four, at the time of Uni-Select's adverse employment action, Ms. Bergdale could have performed the essential functions of positions that were available.

Ms. Bergdale's qualification to perform the essential functions of a job was defined for you in Final Jury Instruction No. 5.



Five, Ms. Bergdale's disability, record of disability, or perceived disability was a motivating factor in Uni-Select's decision to terminate her or to refuse to transfer her.

"Motivating factor" was defined for you in Final Jury Instruction No. 8.



If Ms. Bergdale has not proved all of the above elements by the greater weight of the evidence, your verdict must be for Uni-Select on Ms. Bergdale's claim of adverse employment action because of her disability. However, if you find that Ms. Bergdale has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on her claim of adverse employment action because of her disability.

FINAL INSTRUCTION NO. 10 - RETALIATION FOR FILING

WORKERS COMPENSATION CLAIMS







In her third claim, Ms. Bergdale alleges that Uni-Select retaliated against her for filing workers compensation claims in violation of Iowa law. To win on her claim of retaliation for filing workers compensation claims, Ms. Bergdale must prove the following elements by the greater weight of the evidence:

One, Uni-Select took adverse employment action against Ms. Bergdale, either in terminating her or refusing to transfer her to a different position.

"Adverse employment action" was defined for you in Final Jury Instruction No. 7.



Two, Ms. Bergdale's pursuit of a workers compensation claim was the determining factor in Uni-Select's decision to terminate her or to refuse to transfer her to a different position.

There is evidence that plaintiff was an employee at will. An employee at will may be terminated at any time for any reason, except if it is contrary to the public policy of this state. It is against the public policy of the state to discharge an employee for filing or pursuing a workers compensation claim.

The plaintiff must prove that filing or pursuing a workers compensation claim was the "determining factor" in the defendant's adverse employment actions. The plaintiff's protected conduct is the "determining factor" only if it is the reason that tips the scales decisively one way or the other, even if it is not the predominant reason behind the defendant's decision.

Moreover, you cannot find that this element has been proved simply because you disagree with the defendant's decision to terminate Ms. Bergdale or to refuse to transfer her to a different position, or because you believe those decisions were harsh or unreasonable. Instead, this element is only proved if you find by the greater weight of the evidence that Ms. Bergdale's filing or pursuit of a workers compensation claim was the determining factor in the defendant's adverse employment action.



If Ms. Bergdale has not proved all of the above elements by the greater weight of the evidence, your verdict must be for Uni-Select on Ms. Bergdale's claim of retaliation for filing workers compensation claims. However, if you find that Ms. Bergdale has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on her claim of retaliation for filing workers compensation claims.

FINAL INSTRUCTION NO. 11 - DAMAGES--IN GENERAL





The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance in the event that you should find that the plaintiff is entitled to damages in accord with the other instructions.

If you find that the plaintiff is entitled to damages on a particular claim, then you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages that you find were proximately caused to her by the wrongful conduct of the defendant at issue in that claim. An act is a "proximate cause" of damage if the act was a substantial factor in producing the damage and the damage would not have happened except for the act. "Substantial" means that the act had such an effect in producing damage as to lead a reasonable person to regard it as a cause of the damage.

In arriving at an amount of damages, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages. Rather, you must use your sound judgment based upon an impartial consideration of the evidence.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. You must not award damages under these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties.

You must award the full amount of damages that the plaintiff has proved by the greater weight of the evidence. However, the amount you assess for damages must not exceed the amount proximately caused by the wrongful conduct of the defendant as proved by the evidence.

Attached to these Instructions is a verdict form, which you must fill out. In the "Damages" section of the verdict form, you should only award those damages, if any, that the plaintiff has proved by the greater weight of the evidence were proximately caused by the wrongful conduct of the defendant.

FINAL INSTRUCTION NO. 12 - COMPENSATORY DAMAGES



If you find in favor of Ms. Bergdale on a particular claim, then you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for damages, if any, that you find were proximately caused by the wrongful conduct of the defendant at issue in that claim. Ms. Bergdale seeks two distinct kinds of compensatory damages on each claim: emotional distress damages and backpay. You must consider each of these kinds of damages separately for each claim.

Emotional distress damages. Ms. Bergdale seeks damages for "emotional distress." Damages for emotional distress are the amount of damages that will reasonably compensate Ms. Bergdale for the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that was proximately caused by the wrongful conduct of the defendant at issue in a particular claim. Damages for emotional distress must compensate Ms. Bergdale for any emotional distress that she suffered from the time of the wrongful conduct until the time you give your verdict. The amount, if any, that you assess for damages for emotional distress cannot be measured by an exact or mathematical standard, and the plaintiff is not required to introduce evidence of the monetary value of such damages. However, you must use your sound judgment based upon an impartial consideration of the evidence to determine the amount of such damages.

Ms. Bergdale seeks two separate items of emotional distress damages, each proximately caused by different actions resulting from discriminatory or retaliatory conduct: (1) emotional distress damages for failure to provide reasonable accommodation; and (2) emotional distress damages for terminating her. Do not allow any amount awarded for one item of emotional distress damages to be included in any amount awarded for any other item of such damages. This is so, because the plaintiff is not entitled to recover duplicate damages.

Emotional distress damages proximately caused by failure to provide reasonable accommodation are damages for emotional distress proximately caused by the defendant's failure to engage in a reasonable "interactive process" to determine whether accommodation is necessary and what accommodation would be reasonable, and damages for emotional distress proximately caused by failure to transfer Ms. Bergdale to a different position.

You may also award emotional distress damages, if any, proximately caused by Ms. Bergdale's termination, if you find in her favor on either or both of her claims of adverse employment action because of disability or retaliation for filing workers compensation claims, as explained in Final Jury Instruction Nos. 9 and 10, respectively, but only if you find that her termination was proximately caused by the wrongful conduct at issue in that claim. You cannot award this item of emotional distress damages on Ms. Bergdale's claim of failure to provide reasonable accommodation for her disability, as that claim is explained in Final Jury Instruction No. 6.

Backpay. Ms. Bergdale also seeks an award of backpay, which is the amount of any wages and fringe benefits that she would have earned from the date that you find she was terminated, laid off, or not transferred to a different position, until the date of your verdict, minus the wages and fringe benefits, if any, that she actually did earn during that time from other employment. However, do not deduct from any award of backpay any workers compensation or unemployment benefits paid to Ms. Bergdale during the backpay period. You may award backpay if Ms. Bergdale prevails on any of her claims, but only if you find that Ms. Bergdale's termination, layoff, or failure to be transferred to a different position was proximately caused by the wrongful conduct at issue in that claim. Remember that Ms. Bergdale can recover only one award of backpay, even if she prevails on more than one of her claims.

FINAL INSTRUCTION NO. 13 - PUNITIVE DAMAGES



In addition to compensatory damages described in Final Jury Instruction No. 12, the law permits the jury, under certain circumstances, to award punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct. Punitive damages can be awarded on any of Ms. Bergdale's claims, but the way in which you will determine whether or not to award punitive damages depends upon which claim you are considering. On any of these claims, whether or not to award punitive damages, and the amount of such punitive damages, are for you to decide.

Punitive damages for disability discrimination. You may, but are not required to, award punitive damages on Ms. Bergdale's claims of failure to provide reasonable accommodation for her disability, as that claim is explained in Final Jury Instruction No. 6, and adverse employment action because of her disability, as that claim is explained in Final Jury Instruction No. 9, if you find that, as to the wrongful conduct at issue on a particular claim, (1) the defendant acted with malice or reckless disregard for, and did not make a good faith effort to comply with, the law, and (2) it is appropriate to punish the defendant or to deter the defendant and others from like conduct in the future. A defendant acted with "malice or reckless disregard for the law" if the plaintiff has proved by the greater weight of the evidence that the defendant knew that the failure to accommodate the plaintiff's disability, or taking adverse employment action because of the plaintiff's disability, as such conduct is at issue in a particular claim, was in violation of the law prohibiting disability discrimination, or acted with reckless disregard for that law.

In determining the amount of punitive damages, if any, to award on these claims, you should consider how offensive the defendant's conduct at issue in that claim was; what amount is needed, considering the defendant's financial condition, to punish the defendant for its wrongful conduct toward the plaintiff and to prevent a repetition of that wrongful conduct in the future; whether the amount of punitive damages bears a reasonable relationship to the actual damages awarded on that particular claim; and what sum is sufficient to deter other similar employers from similar wrongful conduct in the future.

Punitive damages for retaliation for filing a workers compensation claim. Punitive damages may be awarded on Ms. Bergdale's claim of retaliation for filing workers compensation claims, as that claim is explained in Final Jury Instruction No. 10, if the plaintiff has proved by a preponderance of clear, convincing and satisfactory evidence that the defendant's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to the plaintiff. Conduct is "willful and wanton" when a person intentionally does an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow. Punitive damages are not intended to compensate for injury but are allowed to punish and discourage the defendant and others from like conduct in the future.

There is no exact rule to determine the amount of punitive damages, if any, that you should award on this claim. However, in determining the amount of punitive damages on this claim, you may consider all the evidence including the following: the nature of defendant's conduct; the amount of punitive damages that will punish and discourage like conduct by the defendant in view of its financial condition; and the plaintiff's actual damages.

In addition, if you award punitive damages on this claim, you will be asked to indicate whether the conduct of the defendant was directed specifically at Ms. Bergdale. You need not be concerned with the effect of your determination on this question; the effect of your determination on this question is for me to decide.

FINAL INSTRUCTION NO. 14 - DELIBERATIONS



In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and all of you must sign that copy to record your individual agreement with the verdict and to show that it is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 19th day of July, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





MARIA BERGDALE,
Plaintiff,

No. C 00-3069-MWB

vs.





VERDICT FORM

UNI-SELECT USA, INC., f/k/a AUTOMOTIVE NORTHERN WAREHOUSE, INC.,
Defendant.

____________________



PART I: LIABILITY

On the claims of plaintiff Maria Bergdale, we, the Jury, find as follows:

FAILURE TO PROVIDE REASONABLE ACCOMMODATION VERDICT
Step 1:

Verdict

On the claim of failure to provide reasonable accommodation for Ms. Bergdale's disability, as explained in Final Jury Instruction No. 6, in whose favor do you find? _____ Ms. Bergdale

_____ Uni-Select

Step 2:

Major life activity

If you found in favor of Ms. Bergdale on this claim, in what one or more "major life activities" do you find that she was "substantially limited," as explained in Final Jury Instruction No. 4? (Remember, you should only consider the "major life activity" of "working," if you find that Ms. Bergdale is not substantially limited in any other major life activity.) _____ lifting

_____ standing

_____ walking

OR
_____ working
Step 3:

Failure to accommo-date

If you found in favor of Ms. Bergdale on this claim, what one or more "reasonable accommodations" do you find that the defendant failed to provide, as "reasonable accommodation" is explained in Final Jury Instruction No. 5? _____ A transfer to another available position

_____ A combination of jobs to make a full-time position

ADVERSE EMPLOYMENT ACTION BECAUSE OF DISABILITY VERDICT
Step 1:

Verdict

On the claim of adverse employment action because of disability, as explained in Final Jury Instruction No. 9, in whose favor do you find? _____ Ms. Bergdale

_____ Uni-Select

Step 2:

Disability

If you found in favor of Ms. Bergdale on this claim, what type of disability do you find that she had, as types of "disability" are defined for you in Final Jury Instruction No. 4? ___ Actual disability

___ Record of disability

___ Perceived disability

Step 3:

Major life activity

If you found in favor of Ms. Bergdale on this claim, in what one or more "major life activities" do you find that she was actually, had a record of being, or was perceived to be "substantially limited," as explained in Final Jury Instruction No. 4? (Remember, you should only consider the "major life activity" of "working," if you find that Ms. Bergdale is not, had no record of, and was not perceived to be, substantially limited in any other major life activity.) ___ lifting

___ standing

___ walking

OR
___ working
Step 4:

Adverse employment action

If you found in favor of Ms. Bergdale on this claim, what "adverse employment action" or actions of Uni-Select do you find were motivated by her disability, as "adverse employment actions" are explained in Final Jury Instruction No. 7, and "motivating factor" is explained in Final Jury Instruction No. 8? ___ Constructive dis-charge

___ Failure to transfer to a different position

RETALIATION FOR FILING

WORKERS COMPENSATION CLAIMS

VERDICT
Step 1:

Verdict

On the claim of retaliation for filing workers compensation claims, as explained in Final Jury Instruction No. 10, in whose favor do you find? _____ Ms. Bergdale

_____ Uni-Select

Step 2:

Adverse employment action

If you found in favor of Ms. Bergdale on this claim, for what "adverse employment action" or actions of Uni-Select was Ms. Bergdale's filing of workers compensation claims the "determining factor," as "adverse employment actions" are explained in Final Jury Instruction No. 7, and "determining factor" is explained in reference to element three in Final Jury Instruction No. 10? ___ Constructive dis-charge

___ Failure to transfer to a different position



If you have found in favor of plaintiff Maria Bergdale on one or more of her claims, then continue with Part II of this Verdict Form to award damages on the claim or claims on which she has prevailed. However, if you found in favor of defendant Uni-Select on all of Ms. Bergdale's claims, do not complete Part II of this Verdict Form. Instead, sign the Verdict Form and notify the Court Security Officer that you have reached a verdict.

PART II: DAMAGES

On the claim or claims on which plaintiff Maria Bergdale has prevailed, we, the Jury, award damages as follows:

COMPENSATORY DAMAGES AMOUNT
Step 1:

Emotional distress damages

(a) What emotional distress damages, if any, do you award for failure to provide reasonable accommodation, as such damages are explained in Final Jury Instruction No. 12? (Remember, to avoid duplication of damages, you must not award emotional distress damages for termination under this item of damages.) $__________________
(b) What emotional distress damages, if any, do you award for termination, as such damages are explained in Final Jury Instruction No. 12 (Remember, to avoid duplication of damages, you must not award emotional distress damages for failure to provide reasonable accommodation under this item of damages.) $__________________
Step 2:

Backpay

What amount of backpay damages, if any, do you award, as backpay is explained in Final Jury Instruction No. 12? $__________________
PUNITIVE DAMAGES AMOUNT
Claim 1 What amount of punitive damages, if any, do you award on Ms. Bergdale's claim of failure to provide reasonable accommodation for her disability, as punitive damages are explained in Final Jury Instruction No. 13? $__________________
Claim 2 What amount of punitive damages, if any, do you award on Ms. Bergdale's claim of adverse employment action because of her disability, as punitive damages are explained in Final Jury Instruction No. 13? $__________________
Claim 3 What amount of punitive damages, if any, do you award on Ms. Bergdale's claim of retaliation for filing workers compensation claims, as punitive damages are explained in Final Jury Instruction No. 13? $__________________
If you awarded punitive damages on this claim, was the conduct at issue in this claim directed specifically at the plaintiff? ___ Yes

___ No







Date: ________________ Time: ________________





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