IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



MUN PHAN,
Plaintiff, No. C 96-3152-MWB
vs.

PRELIMINARY AND FINAL INSTRUCTIONS TO THE JURY

TRINITY REGIONAL HOSPITAL,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - GENERAL

NO. 3 - ELEMENTS OF CLAIMS

NO. 4 - DUTY OF JURORS

NO. 5 - ORDER OF TRIAL

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY OF WITNESSES

NO. 8 - STIPULATED FACTS

NO. 9 - DEPOSITIONS

NO. 10 - INTERROGATORIES

NO. 11 - OBJECTIONS

NO. 12 - BENCH CONFERENCES

NO. 13 - NOTE-TAKING

NO. 14 - BURDEN OF PROOF

NO. 15 - ADMONITION

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - DECISION NOT TO PROMOTE

NO. 4 - RETALIATION

NO. 5 - CONSTRUCTIVE DISCHARGE

NO. 6 - DAMAGES--IN GENERAL

NO. 7 - DAMAGES--DECISION NOT TO PROMOTE

NO. 8 - DAMAGES--RETALIATION

NO. 9 - DELIBERATIONS

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 - GENERAL

The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case brought by plaintiff Mun Phan against her former employer, defendant Trinity Regional Hospital. Mun Phan alleges that in January of 1996, and again in March of 1998, Trinity Regional Hospital did not promote her from her position as a food service worker to a position as a full-time cook on the basis of her race. Trinity Regional Hospital denies these allegations of discrimination and asserts that Mun Phan was not promoted because she was not the most qualified applicant for the position on either occasion. Mun Phan also claims that Trinity Regional Hospital violated the laws of the United States by retaliating against her for having filed administrative charges or this lawsuit alleging discrimination. She also alleges that the Hospital's actions caused her constructive discharge from her position, that is, she alleges that the Hospital's actions were intended to force her to quit by making her working conditions intolerable. Trinity Regional Hospital denies these allegations as well. It contends further that Mun Phan's decision to quit her job on March 2, 1998, was unreasonable, and therefore she has failed to mitigate or reduce her damages as required by law.

You will be asked to resolve these disputes between the parties.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS

To help you follow the evidence, here is a brief summary of the elements of Mun Phan's claims. To win her claim of a discriminatory decision not to promote, Mun Phan must prove the following two essential elements by the greater weight of the evidence:

One, Trinity Regional Hospital did not promote Mun Phan to the position of full-time cook; and

Two, Mun Phan's race was a motivating factor in Trinity Regional Hospital's decision.

If Mun Phan has failed to prove either of the above elements by the greater weight of the evidence, your verdict must be for Trinity Regional Hospital on Mun Phan's claim of a discriminatory decision not to promote.

To win her claim of retaliation, Mun Phan must prove the following three essential elements by the greater weight of the evidence:

One, Mun Phan filed an administrative charge or a lawsuit in court alleging race discrimination;

Two, Trinity Regional Hospital subsequently took adverse employment action against Mun Phan; and

Three, Mun Phan's filing of an administrative charge or lawsuit alleging race discrimination was a motivating factor for the adverse employment action taken by Trinity Regional Hospital.

If Mun Phan has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Trinity Regional Hospital on Mun Phan's claim of retaliation.

If you find in Mun Phan's favor on either her discriminatory decision-not-to-promote claim or her retaliation claim, you will also consider her claim that the Hospital's actions caused her constructive discharge from her employment. To win her claim of constructive discharge, Mun Phan must prove the following three essential elements by the greater weight of the evidence:

One, Trinity Regional Hospital made Mun Phan's working conditions intolerable.

Two, Mun Phan's race or her complaints of race discrimination were a motivating factor in the Hospital's actions.

Three, Mun Phan's quitting her job was a reasonably foreseeable result of the Hospital's actions.

If Mun Phan has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Trinity Regional Hospital on Mun Phan's claim of constructive discharge.

This is only a preliminary outline of the elements of Mun Phan's claims. At the end of the trial, I will give you final written instructions that explain these claims in greater detail. Because they are more detailed, those final instructions govern on the elements of Mun Phan's claims.



PRELIMINARY INSTRUCTION NO. 4 - 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, the defendant 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 individuals and corporations, stand equal before the law, and are entitled to the same fair consideration by you.

When a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by the acts and declarations made while acting within the scope of the authority delegated to the employee by the corporation, or within the scope of the employee's or agent's duties as an employee or agent of the corporation.

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. 5 - ORDER OF TRIAL

The trial will proceed in the following order:

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

The plaintiff will then present evidence and witnesses and the defendant may cross-examine. Following the plaintiff's case, the defendant may present evidence and witnesses and the plaintiff may cross-examine. Following the defendant's case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. 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 some final instructions on deliberations, and you will retire to deliberate on your verdict.



PRELIMINARY INSTRUCTION NO. 6 - DEFINITION OF EVIDENCE

You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since 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.

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.

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



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, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.



PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS

The plaintiff and defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any 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

Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing.



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

From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.



PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES

During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that 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, and to avoid confusion and error. 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. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do 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 - BURDEN OF PROOF

In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. Plaintiff Mun Phan has the burden of proving her claims of a discriminatory decision not to promote and retaliation by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that 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. 15 - ADMONITION

You will not be required to remain together while court is in recess. However, to ensure 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 not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit 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, remember it is because they are not supposed to talk or visit with you either.

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.

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.

DATED this 27th day of April, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE





FINAL INSTRUCTION NO. 1 - INTRODUCTION

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

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, 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. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, 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.

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, or by evidence that at some 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 you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.



FINAL INSTRUCTION NO. 3 - DECISION NOT TO PROMOTE

Mun Phan's first claim alleges a discriminatory decision not to promote. To prevail on this claim, Mun Phan must prove the following two essential elements by the greater weight of the evidence:

One, Trinity Regional Hospital did not promote Mun Phan to the position of full-time cook.

Mun Phan alleges that the Hospital did not promote her on two separate occasions: (1) on January 23, 1996; and (2) on March 2, 1998.



Two, Mun Phan's race was a motivating factor in Trinity Regional Hospital's decision not to promote her.

There may be more than one factor in the decision of the Hospital not to promote Mun Phan, and Mun Phan is not required to show that her race was the sole or primary motivation for that decision. The term "motivating factor" means a consideration that moved the defendant toward its decision or a factor that played a part in that decision.

You may find that Mun Phan's race was a motivating factor if you find that the Hospital's stated reason or reasons for its decisions not to promote Mun Phan are not the true reasons, but are instead a "pretext" to hide discriminatory motivation. However, you may not return a verdict for Mun Phan just because you might disagree with the Hospital's decisions not to promote her or believe that those decisions were harsh or unreasonable.

Mun Phan alleges that race was a motivating factor on two occasions when the Hospital did not promote her to a cook's position. In order to prevail on her claim, Mun Phan only needs to prove that race was a motivating factor in one of the Hospital's decisions not to promote her, not in both. However, if you find that race was a motivating factor in only one of the Hospital's decisions not to promote Mun Phan, then you must unanimously agree on which one.



If Mun Phan has failed to prove either of the above elements by the greater weight of the evidence, then your verdict must be for Trinity Regional Hospital on Mun Phan's claim of a discriminatory decision not to promote. However, if you find that Mun Phan has proved both of these elements by the greater weight of the evidence, then you will consider whether the Hospital has proved by the greater weight of the evidence that it would not have promoted Mun Phan regardless of her race. You need not be concerned with the effect of your determination of whether the Hospital would have made the same decision not to promote Mun Phan regardless of her race; the effect of your determination on this question is for me to decide.



FINAL INSTRUCTION NO. 4 - RETALIATION

Mun Phan's second claim is that the Hospital retaliated against her for filing an administrative charge or a lawsuit alleging race discrimination. To win her claim of retaliation, Mun Phan must prove the following three essential elements by the greater weight of the evidence:

One, Mun Phan filed an administrative charge or a lawsuit in court alleging race discrimination.

Two, Trinity Regional Hospital subsequently took adverse employment action against Mun Phan.

Not everything that makes an employee unhappy is an actionable adverse action, but an adverse action does not have to be a discharge. Rather, the allegedly retaliatory conduct must be more disruptive than a mere inconvenience or an alteration of job responsibilities or changes in duties or working conditions that cause no materially significant disadvantage. Adverse employment action consists of the kind of serious employment consequences that adversely affected or undermined the employee's position, even if the employee was not discharged, demoted, or suspended. Furthermore, you may consider the cumulative effect of the employer's allegedly retaliatory actions, rather than determining whether any individual action upon which the claim relies was sufficiently adverse.

Mun Phan contends that the following actions by the Hospital, either individually or altogether, were adverse employment actions taken in retaliation for her complaints of race discrimination:

a. Assignment to dishwashing duties.

b. Lack of assignments to cooking duties.

c. Intimidation and harassment at a meeting with Hospital administrators on April 10, 1996.

d. Denial of a promotion to a cook's position a second time on March 2, 1998.

e. Accusations of theft.

You must unanimously agree on which of these actions constituted adverse employment actions by the Hospital.



Three, Mun Phan's filing of an administrative charge or lawsuit alleging race discrimination was a motivating factor for the adverse employment action by Trinity Regional Hospital.

There may be more than one factor in the Hospital's decision to take the actions Mun Phan alleges were retaliatory, and Mun Phan is not required to show that her complaints about race discrimination were the Hospital's sole or primary motivation for that decision. The term "motivating factor" means a consideration that moved the defendant toward its decision or a factor that played a part in that decision.



If Mun Phan has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Trinity Regional Hospital on Mun Phan's claim of retaliation. However, if you find that Mun Phan has proved each of these elements by the greater weight of the evidence, then you will consider whether the Hospital has proved by the greater weight of the evidence that it would have taken the same actions concerning Mun Phan regardless of her complaints of race discrimination. You need not be concerned with the effect of your determination of whether the Hospital would have taken the same actions concerning Mun Phan regardless of her complaints of race discrimination; the effect of your determination on this question is for me to decide.

FINAL INSTRUCTION NO. 5 - CONSTRUCTIVE DISCHARGE

Finally, Mun Phan asserts that the Hospital's actions caused her "constructive discharge" from her employment, that is, forced her to quit her job. A constructive discharge is not a separate claim under the anti-discrimination laws; however, if proved, a constructive discharge may entitle Mun Phan to additional damages that are available only if the wrongful conduct of the Hospital resulted in loss of Mun Phan's employment. Therefore, you will consider this claim only if you find in Mun Phan's favor on either her discriminatory decision-not-to-promote claim or her retaliation claim.

To win her claim of constructive discharge, Mun Phan must prove the following three essential elements by the greater weight of the evidence:

One, Trinity Regional Hospital made Mun Phan's working conditions intolerable.

The conditions created by the employer must be such that a reasonable person would find them intolerable, not simply that the plaintiff found them intolerable. Dissatisfaction with a work assignment is not normally so intolerable as to be a basis for constructive discharge.



Two, Mun Phan's race or her complaints of race discrimination were a motivating factor in the Hospital's actions.

There may be more than one factor in the Hospital's decision to take the actions Mun Phan alleges made her workplace intolerable, and Mun Phan is not required to show that the Hospital's sole or primary motivation for those actions was to make her workplace intolerable. The term "motivating factor" means a consideration that moved the defendant toward its decision or a factor that played a part in that decision.



Three, Mun Phan's quitting her job was a reasonably foreseeable result of the Hospital's actions.

If Mun Phan has failed to prove any one of these elements by the greater weight of the evidence, she was not constructively discharged from her employment with Trinity Regional Hospital and she will not be entitled to additional damages available only if she lost her job as the result of the wrongful conduct of the Hospital.



FINAL INSTRUCTION NO. 6 - DAMAGES--IN GENERAL

If you find in favor of Mun Phan on her claim of a discriminatory decision not to promote or on her claim of retaliation, as these claims are explained in Final Instruction No. 3 and Final Instruction No. 4, respectively, 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 you find she sustained as a direct result of Trinity Regional Hospital's wrongful conduct. Mun Phan seeks an award for various items of damages, each of which will be explained in subsequent instructions. However, I must explain to you now some matters applicable to all of your determinations of damages.

A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage. However, you must award full damages for any item of damages. Also, Mun Phan has asserted two separate claims: discriminatory decision not to promote and retaliation. You must award full damages for each claim you find Mun Phan has proved by the greater weight of the evidence. I will prevent any overlap of damages should Mun Phan prevail on both of her claims.

In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates shall be your award of damage for that item. The amount, if any, that you assess for some items of non-economic damages, such as emotional distress, cannot be measured by an exact or mathematical standard. 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 and you must not award damages under any of 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. The amount you assess for any item of damage must not exceed the amount caused by Trinity Regional Hospital as proved by the evidence.

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 Mun Phan is entitled to damages in accord with the other instructions.



FINAL INSTRUCTION NO. 7 - DAMAGES--DECISION NOT TO PROMOTE

If you find in favor of Mun Phan on her claim of a discriminatory decision not to promote under Final Instruction No. 3, then you must award Mun Phan such sum as you find by the greater weight of the evidence will fairly and justly compensate Mun Phan for any damages you find she sustained as a direct result of the decision not to promote her.

Mun Phan's claim for damages includes three distinct types of damages and you must consider them separately:

Backpay. To determine an award for "backpay" damages, you must determine the amount of any wages and fringe benefits Mun Phan would have earned in her employment with the Hospital if she had been promoted to a cook position from the date you find that she was first denied such a promotion because of her race through March 2, 1998, the date on which Mun Phan's employment with the Hospital ended, minus the wages and fringe benefits she actually did earn during that time from her employment with the Hospital. (You cannot award damages for backpay under this paragraph if you find that Mun Phan was first denied a promotion because of her race on March 2, 1998.)

If you find that Mun Phan was constructively discharged by a discriminatory decision of the Hospital not to promote her, then, in addition to any backpay from the date of the discriminatory decision until March 2, 1998, you may also award backpay from March 2, 1998, until the date of your verdict. To arrive at the amount of this additional backpay award for constructive discharge, you must determine the amount of any wages and fringe benefits Mun Phan would have earned in her employment with the Hospital if she had been promoted to a cook position from March 2, 1998, to the date of your verdict.

Compensatory damages. You must determine the amount of any other damages sustained by Mun Phan, such as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. If you find that Mun Phan was constructively discharged as a result of the Hospital's discriminatory decision not to promote her, then you may award compensatory damages that are a direct result of that constructive discharge. However, if you find that Mun Phan was not constructively discharged by a discriminatory decision not to promote her, then you may only award compensatory damages that are a direct result of the discriminatory decision not to promote, but not any other damages that are a direct result only of Mun Phan's decision to quit her job.

Punitive damages. The law permits the jury under certain circumstances to award an injured person 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. If you find that the Hospital acted with malice or with reckless indifference to Mun Phan's right not to be denied a promotion because of her race, then in addition to any other damages to which you find she is entitled, you may, but are not required to, award Mun Phan an additional amount as punitive damages if you find it is appropriate to punish the Hospital or to deter the Hospital and others from like conduct in the future. Whether to award Mun Phan punitive damages for a discriminatory decision not to promote, and the amount of those damages, are within your discretion.

You must enter separate amounts for each type of damages in the verdict form and must not include the same items in more than one category.



FINAL INSTRUCTION NO. 8 - DAMAGES--RETALIATION

If you find in favor of Mun Phan on her claim of retaliation under Final Instruction No. 4, then you must award Mun Phan such sum as you find by the greater weight of the evidence will fairly and justly compensate Mun Phan for any damages you find she sustained as a direct result of retaliation.

Mun Phan's claim for damages for retaliation includes three distinct types of damages and you must consider them separately:

Compensatory damages. Mun Phan seeks compensatory damages for retaliation by the Hospital, including damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. If you find that Mun Phan was constructively discharged as the result of the Hospital's retaliatory actions, then you may award compensatory damages that are a direct result of that constructive discharge. However, if you find that Mun Phan was not constructively discharged by retaliatory actions, then you may only award compensatory damages that are a direct result of the retaliation, but not any other damages that are a direct result only of Mun Phan's decision to quit her job.

Backpay. If you find that retaliation by the Hospital resulted in Mun Phan's constructive discharge, as constructive discharge is explained in Final Instruction No. 5, then you may also award Mun Phan backpay on her retaliation claim from March 2, 1998, the date on which she quit, until the date of your verdict, minus the wages and fringe benefits, if any, she actually did earn during that time from other employment after quitting her job at the Hospital.

Punitive damages. If you find that the Hospital acted with malice or with reckless indifference to Mun Phan's right not to be retaliated against because she complained of race discrimination, then in addition to any other damages to which you find she is entitled, you may, but are not required to, award Mun Phan an additional amount as punitive damages if you find it is appropriate to punish the Hospital or to deter the Hospital and others from like conduct in the future. Whether to award Mun Phan punitive damages for retaliation, and the amount of those damages, are within your discretion.

You must enter separate amounts for each type of damages in the verdict form and must not include the same items in more than one category.



FINAL INSTRUCTION NO. 9 - 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, because a verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. 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. The verdict must be unanimous. 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 forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, all jurors will sign it, and the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 30th day of April, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE





IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



MUN PHAN,
Plaintiff, No. C 96-3152-MWB
vs.

VERDICT FORM
TRINITY REGIONAL HOSPITAL,
Defendant.

____________________



I. DISCRIMINATORY DECISION NOT TO PROMOTE



Question No. 1: On Mun Phan's claim of a discriminatory decision not to promote, as that claim is submitted to you in Final Instruction No. 3, in whose favor do you find?

_____ Mun Phan _____ Trinity Regional Hospital

Note: If you found in favor of Trinity Regional Hospital in answer to Question No. 1, do not answer any more questions in section I. Instead, go on to section II. on page 3 of this verdict form to answer questions regarding Mun Phan's retaliation claim. However, if you found in favor of Mun Phan in answer to Question No. 1, please go on to Question No. 2.





Question No. 2: On which occasion or occasions do you find that Mun Phan's race was a motivating factor in Trinity Regional Hospital's decision not to promote Mun Phan to a cook's position?

_____ January 23, 1996

_____ March 2, 1998

_____ Both



Question No. 3: If you found that race was a motivating factor in Trinity Regional Hospital's decision not to promote Mun Phan on January 23, 1996, has Trinity Regional Hospital proved by the greater weight of the evidence that it would not have promoted Mun Phan on that occasion regardless of her race?

_____ Yes _____ No



Question No. 4: If you found that race was a motivating factor in Trinity Regional Hospital's decision not to promote Mun Phan on March 2, 1998, has Trinity Regional Hospital proved by the greater weight of the evidence that it would not have promoted Mun Phan on that occasion regardless of her race?

_____ Yes _____ No



Question No. 5: Do you find that Mun Phan was constructively discharged from her job at the Hospital on March 2, 1998, by a discriminatory decision not to promote her, as constructive discharge was explained to you in Final Instruction No. 5?

_____ Yes _____ No



Question No. 6: What damages do you award for a discriminatory decision not to promote, as those damages are submitted to you in Final Instruction No. 6 and Final Instruction No. 7?

A. Backpay: (Mark one selection in subsection i., and one selection in subsection ii.)

i.

_____ For a discriminatory decision not to promote on January 23, 1996, or on both January 23, 1996, and March 2, 1998, backpay from January 23, 1996, until March 2, 1998, in the amount of $ ________;

or

_____ For a discriminatory decision not to promote only on March 2, 1998, no backpay, unless you find a constructive discharge.



AND



ii.

_____ For a constructive discharge, backpay from March 2, 1998, to the date of this verdict in the amount of $ __________;

or

_____ For no constructive discharge, no backpay from March 2, 1998, to the date of this verdict.



B. Compensatory damages: (Mark only those options that apply.)

_____ For a discriminatory decision not to promote, compensatory damages in the amount of $ ____________.

_____ For a constructive discharge, additional compensatory damages in the amount of $ __________.



C. Punitive damages: (Mark only the option that applies.)

_____ Punitive damages for a discriminatory decision not to promote in the amount of $ ____________.

_____ No punitive damages for a discriminatory decision not to promote.



II. RETALIATION

Question No. 7: On Mun Phan's claim of retaliation, as that claim is submitted to you in Final Instruction No. 4, in whose favor do you find?

_____ Mun Phan _____ Trinity Regional Hospital

Note: If you found in favor of Trinity Regional Hospital in answer to Question No. 7, do not answer any more questions. Instead, notify the Court Security Officer that you have reached a verdict. However, if you found in favor of Mun Phan in answer to Question No. 7, please go on to Question No. 8.



Question No. 8: Which actions of Trinity Regional Hospital do you unanimously agree have been proved by the greater weight of the evidence to be adverse employment actions against Mun Phan for which her complaints of race discrimination were a motivating factor?

_____ Assignment to dishwashing duties.

_____ Lack of assignments to cooking duties.

_____ Intimidation and harassment at a meeting with Hospital administrators on April 10, 1996.

_____ Denial of a promotion to a cook's position a second time on March 2, 1998.

_____ Accusations of theft.

_____ The actions checked above taken altogether.



Question No. 9: Has Trinity Regional Hospital proved by the greater weight of the evidence that it would have taken the same actions concerning Mun Phan regardless of her complaints of race discrimination?

_____ Yes _____ No



Question No. 10: Do you find that Mun Phan was constructively discharged from her job at the Hospital on March 2, 1998, by retaliation, as constructive discharge was explained to you in Final Instruction No. 5?

_____ Yes _____ No



Question No. 11: What damages do you award for retaliation, as those damages are submitted to you in Final Instruction No. 6 and Final Instruction No. 8?

A. Compensatory damages: (Mark only those options that apply.)

_____ For retaliation, compensatory damages in the amount of $ ____________.

_____ For a constructive discharge, additional compensatory damages in the amount of $ __________.



B. Backpay: (Mark only if you found a constructive discharge as the result of retaliation).

_____ For a constructive discharge, backpay from March 2, 1998, to the date of this verdict in the amount of $ __________.



C. Punitive damages: (Mark only the option that applies.)

_____ Punitive damages for retaliation in the amount of $ ____________.

_____ No punitive damages for retaliation.





Date: ________________



____________________________

FOREPERSON



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



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JUROR