JURY INSTRUCTIONS

Instruction #1

Members of the jury:

Now that you have heard all of the evidence and the argument of counsel, it becomes my duty to give you the instructions of the court concerning the law applicable to this case.

It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence in the case.

You are not to single out any one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base a verdict upon any other view of the law than given in the instructions of the court, just as it would be a violation of your sworn duty as judges of the facts to base a verdict upon anything but the evidence in the case. Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts; rather, it is yours.

Justice through trial by jury must always depend upon the willingness of each individual juror to seek the truth as to the facts from the same evidence presented to all the jurors, and to arrive at a verdict by applying the same rules of law, as given in the instruction of the court.

Instruction #2

In deciding the facts of this case, you must not be swayed by bias or prejudice or favor as to any party. Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the court, and reach a just verdict regardless of the consequences.

Instruction #3

As stated earlier, it is your duty to determine the facts, and in so doing, you must consider only the evidence that was admitted in the case. The term 'evidence' includes the sworn testimony of the witnesses and the exhibits admitted in the record.

Remember that any statements, objections or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing, draw your attention to certain facts or inferences that might otherwise escape your notice.

In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.

So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case.

Instruction #4

When a government agency is involved, of course, it may act only through natural persons as its agents or employees. Even if an act is illegal or forbidden, it may be within the scope of the employment of the agents or employees of the government agency so as to make the government agency liable for those acts.

Instruction #5

When the attorneys on both sides stipulate or agree as to the existence of a fact, the jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved.

Unless you are otherwise instructed, the evidence in the case always consists of the sworn testimony of the witnesses, regardless of who may have called them; all exhibits received as evidence, regardless of who may have produced them; and all facts which may have been judicially noticed.

Any evidence as to which an objection was sustained by the court, and any evidence ordered stricken by the court, must be entirely disregarded.

Unless you are otherwise instructed, anything you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded.

Instruction #6

The burden is on the party who asserts the affirmative to prove his or her claim by a preponderance of the evidence. A preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. In a civil action such as this, it is proper to find that a party has succeeded in carrying the burden of proof on an issue when the jurors believe that what is sought to be proved on that issue is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.

Instruction #7

There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence -- such as the testimony of an eyewitness or the admission of a document. The other is indirect or circumstantial evidence -- the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts.

As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial.

Instruction #8

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, which is inconsistent with the witness=s present testimony. If you believe that any witness has been so impeached, then it is your exclusive province to give the testimony of that witness such credibility or weight, if any, as you may think it deserves.

Instruction #9

Now, I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or 'believability' of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness, you should consider the following: the witness's relationship to the plaintiff or to the defendant; the witness's interest, if any, in the outcome of the case; the witness's manner of testifying; the witness's opportunity to observe or acquire knowledge concerning the facts about which the witness testified; the witness's candor, fairness and intelligence; and the extent to which the witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.

Instruction #10

Each party has introduced into evidence certain interrogatories -- that is, questions, together with answers signed and sworn to by the other party. A party is bound by their sworn answers.

By introducing an opposing party=s answers to interrogatories, however, the party introducing them does not bind itself to these answers, and may challenge them in whole or in part or may offer contrary evidence.

Instruction #11

During the trial of this case, certain testimony has been presented to you by way of deposition, consisting of sworn recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand may be presented in writing under oath. Such testimony is entitled to the same consideration, and is to be judged as to credibility, and weighed, and otherwise considered by the jury, in so far as possible, in the same way as if the witness had been present, and had testified from the witness stand.

Instruction #12

In this case plaintiff Sonia Senk claims damages alleged to have been sustained by her as the result of a defendant's alleged violations of the Americans with Disabilities Act.

Specifically, the plaintiff claims that the defendant violated the Americans with Disabilities Act by failing to reasonably accommodate her request for a transfer to a new supervisor or a new position.

The defendant denies this claim.

Instruction #13

Under the Americans with Disabilities Act ("ADA"), plaintiff had the right to have her disability reasonably accommodated by defendant so long as that reasonable accommodation did not cause defendant an undue hardship.

The Americans with Disabilities Act defines 'reasonable accommodation' as job restructuring, part-time or modified work schedules, reassignment to a vacant position and other similar accommodations for individuals with disabilities. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms and conditions in order to enable a disabled individual to work. An accommodation is some specific action required of the employer. There is no all inclusive list of reasonable accommodations.

A mental disability, such as the depression plaintiff claims she suffered from, qualifies as a "disability" under the Americans with Disabilities Act.

Instruction #14

Under the Americans with Disabilities Act, if an employee is no longer able to perform the essential functions of her current job and is qualified for a vacant position that the employer has, then reassignment to that vacant position can be a reasonable accommodation. In such cases, the employer and the employee must engage in an interactive process to determine whether the employee could be reassigned to a vacant position that the employee was qualified to fill.

An employer must make a reasonable effort to determine an appropriate accommodation. An appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the employee. Neither the employer nor the employee should be able to cause a breakdown in the interactive process. Parties are required to participate in good faith and make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. In some instances, neither the employee requesting the accommodation nor the employer can readily identify the appropriate accommodation. Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process.

Instruction #15

For plaintiff to prove her claim that defendant failed to reasonably accommodate her, plaintiff first must establish by a preponderance of the evidence that there were vacant positions that she was qualified to fill and second must establish by a preponderance of the evidence either that the defendant caused a breakdown of the interactive process or that the defendant did not engage in this interactive process in good faith.

Instruction #15a

The Americans with Disabilities Act does not require an employer to promote a disabled employee as an accommodation.

Instruction #15b

The Americans with Disabilities Act does not require an employer to allow an employee to establish the conditions of her employment, such as who will supervise her.

Instruction #16

If you should find that defendant failed to reasonably accommodate plaintiff, then you must determine an amount that is fair compensation for plaintiff's damages. You may award compensatory damages only for injuries that the plaintiff proves were caused by defendant's alleged failure to reasonably accommodate plaintiff.

When I say the plaintiff must prove that her injuries were "caused" by defendant's alleged failure to reasonably accommodate plaintiff, I do not mean that the plaintiff must prove that this was the only cause of her injuries. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to cause injury or damage; and in such a case, each may be a "cause". The plaintiff need only show that defendant's alleged failure to reasonably accommodate her played a substantial part in bringing about or actually causing the injury or damage, even if there were other causes.

The damages that you award must be fair compensation, no more and no less. In calculating damages, you should not consider any back pay that the plaintiff lost. The award of back pay, should you find defendant liable, will be calculated and determined by the court.

You may award compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of capacity for the enjoyment of life experienced in the past and which you find from the evidence that she is reasonably certain to suffer in the future if you find these were caused by defendant=s failure to reasonably accommodate plaintiff.

No evidence of monetary value of such intangible things as mental or physical pain and suffering need be introduced. There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any such award should be fair and just in the light of the evidence.

In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guess work. On the other hand, the law does not require that the plaintiff prove the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.

Instruction #17

The fact that I have instructed you as to the proper measure of damages should not be considered as intimating any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given for your guidance, in the event you should find in favor of the plaintiff from a preponderance of the evidence in the case in accordance with the other instructions.

Instruction #18

It is proper to add the caution that nothing said in these instructions and nothing in any form of verdict prepared for your convenience is meant to suggest or convey in any way or manner any intimation as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility.

Instruction #19

If it becomes necessary during your deliberations to communicate with the court, you may send a note by the court security officer, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court.

You will note from the oath about to be taken by the court security officer that he too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case.

Bear in mind that you are never to reveal to any person-- not even to the court-- how the jury stands, numerically or otherwise, on the question before you, until after you have reached a unanimous verdict.

Instruction #20

The verdict must represent the considered judgement of each juror. In order to return a verdict, it is necessary that each juror agree. Your verdict must be unanimous.

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

Remember at all times that you are not partisans. You are judges-- judges from the facts. Your sole interest is to seek the truth from the evidence in the case.

Instruction #21

Upon retiring to the jury room, you will select one of your number to act as foreperson. The foreperson will preside over your deliberations, and will be your spokesperson here in court.

I am giving you, together with these instructions, two verdict forms -- one for plaintiff and one for defendant. Each of the verdict forms states whether the verdict is for plaintiff or for defendant:

Verdict form 1: verdict for plaintiff

Verdict form 2: verdict for defendant

You are to sign only one of the two verdict forms.

If your verdict is for plaintiff, you also need to fill in the line that contains a dollar sign with the dollar amount of compensatory damages that you decide plaintiff is entitled to.

If your verdict is for defendant, you do not need to consider damages.

You will take the verdict forms to the jury room and, when you have reached unanimous agreement as to your verdict, you will all sign and date the form that sets forth the verdict upon which you unanimously agree. Then you should call for the court-security officer and return to the courtroom with the signed and dated verdict form.

You should not write or mark upon the unused verdict form or the instructions given to you by the court.

Verdict form #1

[verdict for plaintiff]

We, the jury, find in favor of the plaintiff, Sonia Senk, and against the defendant, Illinois Department of Human Services, for violation of the Americans with Disabilities Act. Having found in favor of the plaintiff, Sonia Senk, and against the defendant, Illinois Department of Human Services, we award compensatory damages in the following amount: $__________________.

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Date foreperson

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Verdict form #2

[verdict for defendant]

We, the jury, find that the plaintiff, Sonia Senk, has not proven that the defendant, Illinois Department of Human Services, violated the Americans with Disabilities Act, and therefore, we find in favor of the defendant Illinois Department of Human Services, and against the plaintiff, Sonia Senk.

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Date foreperson

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