JURY INSTRUCTIONS

INTRODUCTION TO THE FINAL CHARGE

MEMBERS OF THE JURY:

NOW THAT YOU HAVE HEARD ALL OF THE EVIDENCE TO BE RECEIVED IN THIS TRIAL AND EACH OF THE ARGUMENTS OF COUNSEL IT BECOMES MY DUTY TO GIVE YOU THE COURT'S FINAL INSTRUCTIONS AS TO THE LAW THAT IS APPLICABLE TO THIS CASE AND WHICH WILL GUIDE YOU IN YOUR DECISIONS.

ALL OF THE INSTRUCTIONS OF LAW GIVEN TO YOU BY THE COURT-THOSE GIVEN TO YOU AT THE BEGINNING OF THE TRIAL, THOSE GIVEN TO YOU DURING THE TRIAL, IF ANY, AND THESE FINAL INSTRUCTIONS-MUST GUIDE AND GOVERN YOUR DELIBERATIONS.

IT IS YOUR DUTY AS JURORS TO FOLLOW THE LAW AS STATED IN ALL OF THE INSTRUCTIONS OF THE COURT AND TO APPLY THESE RULES OF LAW TO THE FACTS AS YOU FIND THEM FROM THE EVIDENCE RECEIVED DURING THE TRIAL.

COUNSEL HAVE QUITE PROPERLY REFERRED TO SOME OF THE APPLICABLE RULES OF LAW IN THEIR CLOSING ARGUMENTS TO YOU. IF, HOWEVER, ANY DIFFERENCE APPEARS TO YOU BETWEEN THE LAW AS STATED BY COUNSEL AND THAT AS STATED BY THE COURT IN THESE INSTRUCTIONS, YOU, OF COURSE, ARE TO BE GOVERNED BY THE INSTRUCTIONS GIVEN TO YOU BY THE COURT.

YOU ARE NOT TO BE CONCERNED WITH THE WISDOM OF ANY RULE OF LAW STATED BY THE COURT. 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 ANY PART OF YOUR VERDICT UPON ANY OTHER VIEW OR OPINION OF THE LAW THAN THAT GIVEN IN THESE INSTRUCTIONS OF THE COURT JUST AS IT WOULD BE A VIOLATION OF YOUR SWORN DUTY, AS THE JUDGES OF THE FACTS, TO BASE YOUR VERDICT UPON ANYTHING BUT THE EVIDENCE RECEIVED IN THE CASE.

YOU WERE CHOSEN AS JUROR FOR THIS TRIAL IN ORDER TO EVALUATE ALL OF THE EVIDENCE RECEIVED AND TO DECIDE EACH OF THE FACTUAL QUESTIONS PRESENTED BY THE ALLEGATIONS BROUGHT BY THE PLAINTIFF, AND THE DENIAL OF THESE ALLEGATIONS BY THE DEFENDANT.

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, BUT RATHER YOURS.

YOU MUST PERFORM YOUR DUTIES AS JURORS WITHOUT BIAS OR PREJUDICE AS TO ANY PARTY. THE LAW DOES NOT PERMIT YOU TO BE GOVERNED BY SYMPATHY, PREJUDICE OR PUBLIC OPINION. ALL PARTIES EXPECT THAT YOU WILL CAREFULLY AND IMPARTIALLY CONSIDER ALL OF THE EVIDENCE, FOLLOW THE LAW AS IT IS NOW BEING GIVEN TO YOU, AND REACH A JUST VERDICT, REGARDLESS OF THE CONSEQUENCES.

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. A CORPORATION IS ENTITLED TO THE SAME FAIR TRIAL AT YOUR HANDS AS A PRIVATE INDIVIDUAL. ALL PERSONS, INCLUDING CORPORATIONS, STAND EQUAL BEFORE THE LAW, AND ARE TO BE DEALT WITH AS EQUALS IN A COURT OF JUSTICE.

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 HIS ACTS AND DECLARATIONS MADE WHILE ACTING WITHIN THE SCOPE OF HIS AUTHORITY DELEGATED TO HIM BY THE CORPORATION, OR WITHIN THE SCOPE OF HIS DUTIES AS AN EMPLOYEE OF THE CORPORATION.

AS STATED EARLIER, IT IS YOUR DUTY TO DETERMINE THE FACTS, AND IN SO DOING, YOU MUST CONSIDER ONLY THE EVIDENCE I HAVE ADMITTED IN THE CASE. THE TERM "EVIDENCE" INCLUDES THE SWORN TESTIMONY OF THE WITNESSES, SWORN TESTIMONY READ TO YOU FROM DEPOSITIONS, THE EXHIBITS ADMITTED IN THE RECORD, AND STIPULATED OR ADMITTED FACTS. A STIPULATION IS A STATEMENT OF FACT AGREED TO BETWEEN THE PARTIES, AND YOU MUST REGARD STIPULATED FACTS AS TRUE.

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, TO CALL 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. 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 YOUR OWN 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.

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.

YOU, AS JURORS, ARE THE SOLE JUDGES OF THE CREDIBILITY OF THE WITNESSES AND THE WEIGHT THEIR TESTIMONY DESERVES. YOU MAY BE GUIDED BY THE APPEARANCE AND CONDUCT OF THE WITNESS, OR BY THE MANNER IN WHICH THE WITNESS TESTIFIES, OR BY THE CHARACTER OF THE TESTIMONY GIVEN, OR BY THE EVIDENCE TO THE CONTRARY OF THE TESTIMONY GIVEN.

YOU SHOULD CAREFULLY SCRUTINIZE ALL THE TESTIMONY, GIVEN THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO SHOW WHETHER A WITNESS IS WORTHY OF BELIEF. CONSIDER EACH WITNESS' INTELLIGENCE, MOTIVE AND STATE OF MIND, AND DEMEANOR OR MANNER WHILE ON THE STAND. CONSIDER THE WITNESS' ABILITY TO OBSERVE THE MATTERS AS TO WHICH HE HAS TESTIFIED, AND WHETHER HE IMPRESSES YOU AS HAVING AN ACCURATE RECOLLECTION OF THESE MATTERS. CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO EITHER SIDE OF THE CASE; THE MANNER IN WHICH EACH WITNESS MIGHT BE AFFECTED BY THE VERDICT; AND THE EXTENT TO WHICH, IF AT ALL, EACH WITNESS IS EITHER SUPPORTED OR CONTRADICTED BY OTHER EVIDENCE IN THE CASE.

INCONSISTENCIES OR DISCREPANCIES IN THE TESTIMONY OF A WITNESS, OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES, MAY OR MAY NOT CAUSE THE JURY TO DISCREDIT SUCH TESTIMONY. TWO OR MORE PERSONS WITNESSING AN INCIDENT OR A TRANSACTION MAY SEE OR HEAR IT DIFFERENTLY; AN INNOCENT MISRECOLLECTION, LIKE FAILURE OF RECOLLECTION, IS NOT AN UNCOMMON EXPERIENCE. IN WEIGHING THE EFFECT OF A DISCREPANCY, ALWAYS CONSIDER WHETHER IT PERTAINS TO A MATTER OF IMPORTANCE OR AN UNIMPORTANT DETAIL, AND WHETHER THE DISCREPANCY RESULTS FROM INNOCENT ERROR OR INTENTIONAL FALSEHOOD.

AFTER MAKING YOUR OWN JUDGMENT, YOU WILL GIVE THE TESTIMONY OF EACH WITNESS SUCH WEIGHT, IF ANY, AS YOU MAY THINK IT DESERVES.

YOU MAY, IN SHORT, ACCEPT OR REJECT THE TESTIMONY OF ANY WITNESS IN WHOLE OR IN PART.

ALSO, THE WEIGHT OF THE EVIDENCE IS NOT NECESSARILY DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING TO THE EXISTENCE OR NON-EXISTENCE OF ANY FACT. YOU MAY FIND THAT THE TESTIMONY OF A SMALL NUMBER OF WITNESSES AS TO ANY FACT IS MORE CREDIBLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES TO THE CONTRARY.

THE LAW DOES NOT REQUIRE ANY PARTY TO CALL AS WITNESSES ALL PERSONS WHO MAY HAVE BEEN PRESENT AT ANY TIME OR PLACE INVOLVED IN THE CASE, OR WHO MAY APPEAR TO HAVE SOME KNOWLEDGE OF THE MATTERS IN ISSUE AT THIS TRIAL. NOR DOES THE LAW REQUIRE ANY PARTY TO PRODUCE AS EXHIBITS ALL PAPERS AND THINGS MENTIONED IN EVIDENCE IN THE CASE.

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. THE OTHER IS INDIRECT OR CIRCUMSTANTIAL EVIDENCE -- THE PROOF OF A CHAIN OF CIRCUMSTANCES POINTING TO THE EXISTENCE OR NON-EXISTENCE OF CERTAIN FACTS.

AS A GENERAL RULE, THE LAW MAKES NO DISTINCTION BETWEEN DIRECT OR 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.

THE BURDEN IS ON THE PLAINTIFF IN A CIVIL ACTION SUCH AS THIS TO PROVE EVERY ESSENTIAL ELEMENT OF HIS CLAIM BY A "PREPONDERANCE OF THE EVIDENCE." A PREPONDERANCE OF THE EVIDENCE MEANS SUCH EVIDENCE AS, WHEN CONSIDERED AND COMPARED WITH THAT OPPOSED TO IT, HAS MORE CONVINCING FORCE AND PRODUCES IN YOUR MINDS A BELIEF THAT WHAT IS SOUGHT TO BE PROVED IS MORE LIKELY TRUE THAN NOT TRUE. IN OTHER WORDS, TO ESTABLISH A CLAIM BY A "PREPONDERANCE OF THE EVIDENCE" MEANS TO PROVE THAT THE CLAIM IS MORE LIKELY SO THAN NOT SO. THIS RULE DOES NOT, OF COURSE, REQUIRE PROOF TO AN ABSOLUTE CERTAINTY, SINCE PROOF TO AN ABSOLUTE CERTAINTY IS SELDOM POSSIBLE IN ANY CASE.

IN DETERMINING WHETHER ANY FACT IN ISSUE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE, THE JURY MAY CONSIDER THE TESTIMONY OF ALL THE WITNESS, REGARDLESS OF WHO MAY HAVE CALLED THEM, AND ALL THE EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM.

IF THE PROOF SHOULD FAIL TO ESTABLISH ANY ESSENTIAL ELEMENT OF THE PLAINTIFF'S CLAIM BY A PREPONDERANCE OF THE EVIDENCE, THEN THE PLAINTIFF HAS FAILED TO CARRY HIS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE AND YOU MUST RETURN A VERDICT FOR THE DEFENDANT.

WHEN I SAY IN THESE INSTRUCTIONS THAT A PARTY HAS THE BURDEN OF PROOF ON ANY PROPOSITION, OR USE THE EXPRESSION "IF YOU FIND," OR "IF YOU DECIDE," I MEAN YOU MUST BE PERSUADED, CONSIDERING ALL THE EVIDENCE IN THE CASE, THAT THE PROPOSITION IS MORE PROBABLY TRUE THAN NOT TRUE.

THE NATURE OF THE CLAIM

THIS IS AN ACTION BROUGHT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED ("TITLE VII"). TITLE VII MAKES IT UNLAWFUL FOR AN EMPLOYER TO INTENTIONALLY DISCRIMINATE AGAINST A QUALIFIED PROSPECTIVE EMPLOYEE ON ACCOUNT OF THAT PERSON'S RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN. IN THIS CASE, THE PLAINTIFF GREGORY STRIBLING CLAIMS THAT DEFENDANT, NOVA CELLULAR, INC., INTENTIONALLY DISCRIMINATED AGAINST HIM BECAUSE OF HIS RACE. THE DEFENDANT DENIES THIS CLAIM. IT IS YOUR RESPONSIBILITY TO DECIDE WHETHER THE PLAINTIFF HAS PROVEN HIS CLAIM AGAINST THE DEFENDANT BY A PREPONDERANCE OF THE EVIDENCE, AS THAT TERM IS DEFINED IN THESE INSTRUCTIONS.

THE STATUTE DEFINING THE CLAIM

TITLE VII STATES IN RELEVANT PART THAT:

IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER:

(1) TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL, OR OTHERWISE TO DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO HIS COMPENSATION, TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT, BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN; OR

(2) TO LIMIT, SEGREGATE, OR CLASSIFY HIS EMPLOYEES OR APPLICANTS FOR EMPLOYMENT IN ANY WAY WHICH WOULD DEPRIVE OR TEND TO DEPRIVE ANY INDIVIDUAL OF EMPLOYMENT OPPORTUNITIES OR OTHERWISE ADVERSELY AFFECT HIS STATUS AS AN EMPLOYEE, BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN.

THE ESSENTIAL ELEMENTS OF THE PLAINTIFF'S CLAIM

IN ORDER FOR PLAINTIFF GREGORY STRIBLING TO ESTABLISH HIS CLAIM OF INTENTIONAL DISCRIMINATION AGAINST DEFENDANT NOVA CELLULAR, INC., HE HAS THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THE FOLLOWING FIVE ESSENTIAL ELEMENTS:

1. HE IS AN AFRICAN AMERICAN;

2. HE APPLIED AND WAS QUALIFIED FOR A JOB AS A CELLULAR INSTALLER FOR WHICH NOVA CELLULAR WAS SEEKING APPLICANTS;

3. DESPITE HIS QUALIFICATIONS, HE WAS REJECTED;

4. AFTER HIS REJECTION, THE POSITION REMAINED OPEN AND THE EMPLOYER CONTINUED TO SEEK APPLICANTS FROM PERSONS WITH THE PLAINTIFF'S QUALIFICATIONS; AND

5. AS A DIRECT RESULT OF NOVA CELLULAR'S INTENTIONAL DISCRIMINATION, HE SUSTAINED DAMAGES.

DEFENSES

IN THIS CASE, GREGORY STRIBLING MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT NOVA CELLULAR WOULD HAVE ALLOWED HIM TO COMPLETE THE APPLICATION PROCESS IF HE WERE NOT AN AFRICAN-AMERICAN AND EVERYTHING ELSE HAD REMAINED THE SAME.

PLAINTIFF'S PERSONAL BELIEFS OR FEELINGS THAT HE WAS DISCRIMINATED AGAINST BECAUSE OF HIS RACE DO NOT, IN AND OF THEMSELVES FORM A BASIS FOR FINDING THAT HE WAS DISCRIMINATED AGAINST BECAUSE OF HIS RACE.

YOU MUST CONSIDER ANY LEGITIMATE, NONDISCRIMINATORY REASON OR EXPLANATION STATED BY THE DEFENDANT FOR ITS CONDUCT. A LEGITIMATE NONDISCRIMINATORY REASON IS ANY REASON OR EXPLANATION UNRELATED TO THE PLAINTIFF'S RACE. IN CONSIDERING THE LEGITIMATE NONDISCRIMINATORY REASON STATED BY THE DEFENDANT FOR ITS CONDUCT, YOU ARE NOT TO SECOND-GUESS THAT REASON.

IF YOU FIND THAT THE DEFENDANT HAS STATED A VALID REASON, THEN YOU MUST DECIDE IN FAVOR OF THE DEFENDANT UNLESS THE PLAINTIFF PROVES BY A PREPONDERANCE OF THE EVIDENCE THAT THE STATED REASON WAS NOT THE TRUE REASON BUT IS ONLY A PRETEXT OR EXCUSE FOR DISCRIMINATING AGAINST THE PLAINTIFF BECAUSE OF HIS RACE.

THE PLAINTIFF CAN ATTEMPT TO PROVE PRETEXT DIRECTLY BY PERSUADING YOU BY A PREPONDERANCE OF THE EVIDENCE THAT HIS RACE WAS MORE LIKELY THE REASON FOR THE DEFENDANT'S CONDUCT THAN THE REASON STATED BY THE DEFENDANT.

THE PLAINTIFF CAN ALSO ATTEMPT TO PROVE THAT THE DEFENDANT'S STATED REASON FOR NOT CONSIDERING HIM FOR THE POSITION OF CELLULAR INSTALLER IS A PRETEXT BY PERSUADING YOU THAT IT IS JUST NOT BELIEVABLE. HOWEVER, EVEN IF YOU DECIDE THAT THE DEFENDANT DID NOT TRULY RELY ON THE STATED REASON FOR NOT CONSIDERING HIM, YOU SHOULD NOT DECIDE IN FAVOR OF THE PLAINTIFF UNLESS YOU FIND THAT PLAINTIFF HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT NOVA CELLULAR WOULD HAVE ALLOWED HIM TO COMPLETE THE APPLICATION PROCESS IF HE WERE NOT AN AFRICAN-AMERICAN AND EVERYTHING ELSE HAD REMAINED THE SAME.

THE ULTIMATE BURDEN OF PERSUADING THE JURY THAT THE DEFENDANT INTENTIONALLY DISCRIMINATED AGAINST THE PLAINTIFF BECAUSE OF HIS RACE REMAINS AT ALL TIMES WITH THE PLAINTIFF.

ELEMENT FIVE: DAMAGES

IF YOU FIND THAT THE DEFENDANT DID NOT DISCRIMINATE AGAINST THE PLAINTIFF, YOU NEED NOT CONSIDER THE QUESTION OF DAMAGES.

IF YOU HAVE FOUND FOR THE PLAINTIFF ON HIS CLAIM, THEN YOU MUST CONSIDER WHETHER TO AWARD HIM DAMAGES. THE LAW PLACES A BURDEN UPON THE PLAINTIFF TO PROVE SUCH FACTS AS WILL ENABLE YOU TO ARRIVE AT THE AMOUNT OF DAMAGES WITH REASONABLE CERTAINTY AND WITHOUT SPECULATION. WHILE IT IS NOT NECESSARY THAT THE PLAINTIFF PROVE THE AMOUNT OF THOSE DAMAGES WITH MATHEMATICAL PRECISION, THE PLAINTIFF IS REQUIRED TO PRESENT SUCH EVIDENCE AS MIGHT REASONABLY BE EXPECTED TO BE AVAILABLE UNDER THE CIRCUMSTANCES.

YOU SHOULD NOT INTERPRET THE FACT THAT I HAVE GIVEN INSTRUCTIONS ABOUT THE PLAINTIFF'S DAMAGES AS AN INDICATION IN ANY WAY THAT I BELIEVE THAT THE PLAINTIFF SHOULD, OR SHOULD NOT, WIN THIS CASE.

LOST WAGES AND BENEFITS DAMAGES

IF YOU DETERMINE THAT THE DEFENDANT DISCRIMINATED AGAINST THE PLAINTIFF FOR FAILURE TO HIRE HIM, THEN YOU MUST DETERMINE THE AMOUNT OF DAMAGES THAT THE DEFENDANT HAS CAUSED THE PLAINTIFF.

YOU MAY AWARD AS ACTUAL DAMAGES AN AMOUNT THAT REASONABLY COMPENSATES THE PLAINTIFF FOR ANY LOST WAGES AND BENEFITS, TAKING INTO CONSIDERATION ANY INCREASES IN SALARY AND BENEFITS, INCLUDING PENSION, THAT THE PLAINTIFF WOULD HAVE RECEIVED HAD HE NOT BEEN DISCRIMINATED AGAINST. BASICALLY, YOU HAVE THE ABILITY TO MAKE THE PLAINTIFF WHOLE FOR ANY WAGES OR OTHER BENEFITS THAT HE HAS LOST AS A RESULT OF HIS DENIAL OF EMPLOYMENT.

YOU SHALL ALSO CALCULATE SEPARATELY, AS FUTURE DAMAGES, A MONETARY AMOUNT EQUAL TO THE PRESENT VALUE OF THE WAGES AND BENEFITS THAT THE PLAINTIFF WOULD HAVE EARNED HAD HE NOT BEEN DISCRIMINATED AGAINST FOR THAT PERIOD FROM THE DATE OF YOUR VERDICT UNTIL THE DATE WHEN THE PLAINTIFF WOULD HAVE VOLUNTARILY RESIGNED OR OBTAINED OTHER EMPLOYMENT.

COMPENSATORY DAMAGES

THE PLAINTIFF HAS ALLEGED THAT, AS A RESULT OF THE DEFENDANT'S INTENTIONAL DISCRIMINATION, HE HAS SUFFERED LOSS OF ENJOYMENT OF LIFE. THE PLAINTIFF HAS THE BURDEN OF PROVING ANY COMPENSATORY DAMAGES BY A PREPONDERANCE OF THE EVIDENCE. IF THE PLAINTIFF DOES NOT ESTABLISH THAT HE HAS EXPERIENCED LOSS OF ENJOYMENT OF LIFE BECAUSE OF THE DEFENDANT'S CONDUCT, THEN HE CANNOT RECOVER COMPENSATORY DAMAGES.

IF YOU DETERMINE THAT THE PLAINTIFF HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT HE HAS EXPERIENCED LOSS OF ENJOYMENT OF LIFE, YOU MAY AWARD HIM DAMAGES FOR THOSE INJURIES. NO EVIDENCE OF THE MONETARY VALUE OF SUCH INTANGIBLE THINGS AS PAIN AND SUFFERING HAS BEEN, OR NEEDS TO BE, INTRODUCED INTO EVIDENCE. NO EXACT STANDARD EXISTS FOR FIXING THE COMPENSATION TO BE AWARDED FOR THESE ELEMENTS OF DAMAGES. THE DAMAGES THAT YOU AWARD MUST BE FAIR COMPENSATION -- NO MORE AND NO LESS.

WHEN CONSIDERING THE AMOUNT OF MONETARY DAMAGES TO WHICH THE PLAINTIFF MAY BE ENTITLED, YOU SHOULD CONSIDER THE NATURE, CHARACTER, AND SERIOUSNESS OF ANY LOSS OF ENJOYMENT OF LIFE THE PLAINTIFF FELT. YOU MUST ALSO CONSIDER ITS EXTENT OR DURATION, AS ANY AWARD YOU MAKE MUST COVER THE DAMAGES ENDURED BY THE PLAINTIFF SINCE THE WRONGDOING, TO THE PRESENT TIME, AND EVEN INTO THE FUTURE IF YOU FIND AS FACT THAT THE PROOFS PRESENTED JUSTIFY THE CONCLUSION THAT THE PLAINTIFF'S EMOTIONAL STRESS AND ITS CONSEQUENCES HAVE CONTINUED TO THE PRESENT TIME OR CAN REASONABLY BE EXPECTED TO CONTINUE IN THE FUTURE.

PUNITIVE DAMAGES

IN ADDITION TO THE CLAIMS FOR DAMAGES ALREADY MENTIONED, YOU SHOULD CONSIDER WHETHER THE PLAINTIFF IS ENTITLED TO PUNITIVE DAMAGES. THESE ARE AWARDED IN EXCEPTIONAL CASES AS PUNISHMENT OF THE DEFENDANT AND AS A WARNING TO OTHERS TO KEEP THEM FROM FOLLOWING THE DEFENDANT'S EXAMPLE.

YOU MAY AWARD THESE DAMAGES IF YOU DETERMINE BY A PREPONDERANCE OF THE EVIDENCE THAT ONE OR MORE OF THE DEFENDANT'S ACTS WERE DONE WITH EITHER:

(1) ACTUAL MALICE, WHICH IS NOTHING MORE OR LESS THAN INTENTIONAL WRONGDOING -- AN EVIL-MINDED ACT, OR

(2) A WANTON AND WILLFUL DISREGARD FOR THE RIGHTS OF ANOTHER -- IN OTHER WORDS, A DELIBERATE ACT WITH KNOWLEDGE OF A HIGH DEGREE OF PROBABILITY OF HARM TO ANOTHER AND RECKLESS INDIFFERENCE TO THE CONSEQUENCES OF THE ACT.

THE PLAINTIFF HAS PRODUCED WHAT HE CONSIDERS EVIDENCE OF THE DEFENDANT'S EVIL-MINDED INTENT OR WANTON AND WILLFUL DISREGARD FOR PLAINTIFF'S RIGHTS BECAUSE OF RACE.

YOU MAY FIND THAT ONE, ALL, OR NONE OF THESE EXAMPLES INDICATE THE DEFENDANT'S EVIL-MINDED INTENT TOWARD THE PLAINTIFF. AGAIN, IT IS FOR YOU TO DETERMINE THE CREDIBILITY, RELEVANCE, AND SIGNIFICANCE OF EACH PIECE OF EVIDENCE AND WHETHER IT SUPPORTS THE PLAINTIFF'S CONTENTION THAT PUNITIVE DAMAGES SHOULD BE AWARDED.

IF YOU DETERMINE THAT THE FACTS JUSTIFY AN AWARD OF PUNITIVE DAMAGES, YOU SHOULD TRY TO DETERMINE A FAIR, JUST, AND REASONABLE AMOUNT FOR THE PLAINTIFF UNDER ALL THE CIRCUMSTANCES. PUNITIVE DAMAGES ARE NOT INTENDED TO COMPENSATE A PLAINTIFF FOR INJURIES BUT RATHER TO PUNISH THE DEFENDANT AND TO PREVENT SIMILAR CONDUCT IN THE FUTURE. THUS, IF YOU AWARD THESE DAMAGES, YOU SHOULD CONSIDER THE DEFENDANT'S NET WORTH AND THE IMPACT OF ITS PAYING THAT AWARD.

PUNITIVE DAMAGES MUST BEAR A REASONABLE RELATIONSHIP TO THE PLAINTIFF'S ACTUAL INJURY. HOWEVER, NO SINGLE NUMERICAL EQUATION HAS BEEN MADE TO EASILY LINK PUNITIVE TO COMPENSATORY DAMAGES. IN DETERMINING A REASONABLE RELATIONSHIP TO THAT ACTUAL INJURY, YOU MUST CONSIDER ALL RELEVANT FACTORS. THESE INCLUDE:

(1) THE IMPACT OR SEVERITY OF THE DEFENDANT'S CONDUCT,

(2) THE AMOUNT OF TIME THE DEFENDANT CONDUCTED ITSELF IN THIS MANNER,

(3) THE AMOUNT OF COMPENSATORY DAMAGES,

(4) THE POTENTIAL PROFITS THE DEFENDANT MAY HAVE MADE FROM THIS CONDUCT,

(5) THE ATTITUDE AND ACTIONS OF THE DEFENDANT'S TOP MANAGEMENT AFTER THE MISCONDUCT WAS DISCOVERED,

(6) THE EFFECT OF THE DAMAGES AWARD ON THE DEFENDANT'S FINANCIAL CONDITION, AND

(7) ANY PUNISHMENT THE DEFENDANT MAY RECEIVE FROM OTHER SOURCES.

MITIGATION OF DAMAGES

THE PLAINTIFF MUST MAKE EVERY REASONABLE EFFORT TO MINIMIZE OR REDUCE HIS DAMAGES FOR LOSS OF COMPENSATION BY SEEKING EMPLOYMENT. THIS IS CALLED MITIGATION OF DAMAGES.

IF YOU DETERMINE THAT THE PLAINTIFF IS ENTITLED TO DAMAGES, YOU MUST REDUCE THESE DAMAGES BY (1) WHAT THE PLAINTIFF EARNED AND (2) WHAT THE PLAINTIFF COULD HAVE EARNED BY REASONABLE EFFORT DURING THE PERIOD FROM HIS NOT BEING CONSIDERED FOR A POSITION AS CELLULAR INSTALLER UNTIL THE DATE OF TRIAL.

YOU MUST DECIDE WHETHER PLAINTIFF WAS REASONABLE IN NOT SEEKING OR ACCEPTING A PARTICULAR JOB. HOWEVER, THE PLAINTIFF MUST ACCEPT EMPLOYMENT THAT IS "OF A LIKE NATURE." IN DETERMINING WHETHER EMPLOYMENT IS "OF A LIKE NATURE," YOU MAY CONSIDER:

(1) THE TYPE OF WORK,

(2) THE HOURS WORKED,

(3) THE COMPENSATION,

(4) THE JOB SECURITY

(5) THE WORKING CONDITIONS, AND

(6) OTHER CONDITIONS OF EMPLOYMENT.

THE DEFENDANT MUST PROVE THAT THE PLAINTIFF FAILED TO MITIGATE HIS DAMAGES FOR LOSS OF COMPENSATION.

IF YOU DETERMINE THAT THE PLAINTIFF DID NOT MAKE REASONABLE EFFORTS TO OBTAIN ANOTHER SIMILAR JOB, YOU MUST DECIDE WHETHER ANY DAMAGES RESULTED FROM HIS FAILURE TO DO SO. YOU MUST NOT COMPENSATE THE PLAINTIFF FOR ANY PORTION OF HIS DAMAGES THAT RESULTED FROM HIS FAILURE TO MAKE REASONABLE EFFORTS TO REDUCE HIS DAMAGES.

VERDICT - UNANIMOUS - DUTY TO DELIBERATE

THE VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT 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 JUDGMENT. 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 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 OF THE FACTS. YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE IN THE CASE.

EFFECT OF INSTRUCTION AS TO DAMAGES

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.

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.

VERDICT FORMS HAVE BEEN PREPARED FOR YOUR CONVENIENCE.

IF YOU FIND IN FAVOR OF PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC. YOU SHOULD CALCULATE DAMAGES USING JURY VERDICT FORM NUMBER 1, WHICH READS AS FOLLOWS:

"WE THE JURY FIND IN FAVOR OF PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC. FOR RACE DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT, AS AMENDED. HAVING FOUND IN FAVOR OF PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC., WE ASSESS:

(1) LOST WAGES AND BENEFITS DAMAGES IN THE FOLLOWING AMOUNT: $____________;

(2) COMPENSATORY DAMAGES IN THE FOLLOWING AMOUNT: $_____________."

IF YOU FIND THAT NOVA CELLULAR, INC. ENGAGED IN RACE DISCRIMINATION IN VIOLATION OF TITLE VII, AND YOU FURTHER FIND THAT PUNITIVE DAMAGES ARE APPROPRIATE, YOU MAY AWARD PUNITIVE DAMAGES IN ADDITION TO COMPENSATORY DAMAGES, USING JURY VERDICT FORM NUMBER 2 WHICH READS AS FOLLOWS:

"WE THE JURY FIND, AS TO PUNITIVE DAMAGES FOR THE PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC. IN THE FOLLOWING AMOUNT $______________."

IF YOU FIND THAT THE DEFENDANT ENGAGED IN RACE DISCRIMINATION IN VIOLATION OF TITLE VII, BUT THAT PUNITIVE DAMAGES ARE NOT APPROPRIATE, YOU SHOULD PLACE A ZERO IN JURY VERDICT FORM NUMBER 2.

IF YOU FIND IN FAVOR OF THE DEFENDANT NOVA CELLULAR, INC. AND AGAINST PLAINTIFF GREGORY STRIBLING, YOU SHOULD USE THE JURY VERDICT FORM NUMBER 3 WHICH READS AS FOLLOWS:

"WE THE JURY FIND THAT THE PLAINTIFF GREGORY STRIBLING HAS NOT PROVEN THAT THE DEFENDANT NOVA CELLULAR, INC. ENGAGED IN RACE DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT, AS AMENDED, AND THEREFORE, WE FIND FOR THE DEFENDANT NOVA CELLULAR, INC. AND AGAINST THE PLAINTIFF GREGORY STRIBLING."

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 WHICH SETS FORTH THE VERDICT UPON WHICH YOU UNANIMOUSLY AGREE; AND THEN RETURN WITH YOUR VERDICT TO THE COURTROOM.

VERDICT FORMS -- JURY'S RESPONSIBILITY

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.

COMMUNICATIONS BETWEEN COURT AND JURY DURING DELIBERATIONS

IF IT BECOMES NECESSARY DURING YOUR DELIBERATIONS TO COMMUNICATE WITH THE COURT, YOU MAY SEND A NOTE BY A BAILIFF, 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 BAILIFF THAT [S]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 QUESTIONS BEFORE YOU, UNTIL AFTER YOU HAVE REACHED A UNANIMOUS VERDICT.

JURY VERDICT FORM 1

WE, THE JURY, FIND IN FAVOR OF PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC. FOR RACE DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT, AS AMENDED. HAVING FOUND IN FAVOR OF PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC., WE ASSESS:

(1) LOST WAGES AND BENEFITS DAMAGES IN THE FOLLOWING AMOUNT: $____________________;

(2) COMPENSATORY DAMAGES IN THE FOLLOWING AMOUNT: $_____________________.

_______________________________________
FOREPERSON

DATE

JURY VERDICT FORM 2

WE, THE JURY, FIND AS TO PUNITIVE DAMAGES, FOR THE PLAINTIFF GREGORY STRIBLING AND AGAINST DEFENDANT NOVA CELLULAR, INC. IN THE FOLLOWING AMOUNT: $____________________.

_______________________________________
FOREPERSON

DATE

JURY VERDICT FORM 3

WE, THE JURY, FIND THAT THE PLAINTIFF, GREGORY STRIBLING, HAS NOT PROVEN THAT THE DEFENDANT NOVA CELLULAR, INC. ENGAGED IN RACE DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT, AS AMENDED, AND THEREFORE, WE FIND FOR THE DEFENDANT NOVA CELLULAR, INC. AND AGAINST THE PLAINTIFF, GREGORY STRIBLING.

_______________________________________
FOREPERSON

DATE