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Judge Shira Scheindlin's Charge to the Jury...

Offered in its Entirety

Placing "process" above common sense and national safety
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For those using music capable Internet Explorer or AOL, text accompanied by Carly Simon's "You're So Vain"

"A good lawyer knows the law.  A great lawyer knows the Judge."

 "For Real Justice you need Real Money"  (By a very hip Yale lawyer with over 30 years experience and a great sense of irony)

 

"The courts are not here for justice.  They are here to interpret the law and protect federal interests.  And when you are going up against the US Attorney's Office, federal judges will protect them at the expense of people like Caryl.  (By a former US Attorney I affectionately call: "M" The Elder)

 

Don't trust a judge's impartiality in a suit like Caryls.  They are paid by the federal government just like the US Attorney.  All you can do is hope that the jury will be allowed to hear the evidence.  They are the wild card.  (By a libertarian Trial Lawyer relocated from Pennsylvania)

 

"The question is not whether the INS showed poor or erroneous judgment in terminating plaintiff. You are not to second-guess or judge the wisdom of the INS's actions. An employer is entitled to make an employment decision for a good reason, a bad reason, or for no reason at all, so long as the decision is not motivated by unlawful discrimination.  It is not enough for you to disbelieve the INS's explanations for its actions. The fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff." (judge Shira Scheindlin's charge to the jury Pages 23-24 below)

 

Note: For some inexplicable reason Judge Scheindlin refused to allow documented evidence of rampant terrorist friendly corruption that Caryl Leventhal was attempting to stop.  Ms. Leventhal was a whistleblower attempting to stop the corruption that was allowing thousands of criminals and potential terrorists into America. 

 

Many in INS Section 245 where she worked were subsequently arrested for this profitable trade in selling green cards, to say nothing of processing applications for residency without proper background checks.  Prior to her termination, Caryl Leventhal met with agents from the US Department of Justice who had come from Washington DC.  It was here that she explained what was going on.  In 1998, all of Ms. Leventhal's allegations were supported by newspaper articles in an expose where many were arrested.  Unwillingly, it was supported in the deposition of the US Attorney's main witness, Brenda Grant.

 

The basis of discrimination for Whistleblowing is not considered unlawful discrimination in this type of suit.  But this type of litigation is the only one allowable because the government sets the rules when filing against them.  On the other hand, work environment IS relevant, particularly one laced with the subsequently confirmed criminal and "terrorist friendly" activity Ms. Leventhal was attempting to stop.

 

Caryl always contended that she was harassed and brutalized in order to shut her up, force her out  and replace her. She was different ethnically and had a physical vulnerability that could be exploited.  She was a whistleblower and a threat.  But none of this very relevant testimony and substantiated documentation was allowed in testimony.

Sadly, the American people will probably pay for the actions and attitudes of the US Department of Justice, Immigration and Naturalization Service, US Attorney's Office and judge Scheindlin.  They will pay for it by increased domestic crime and possible terrorism against the American people. 

 

THE UNANSWERED QUESTIONS: Why did judge Shira Scheindlin keep from the jury and court record, evidence and testimony of the rampant terrorist friendly corruption Caryl Leventhal was attempting to stop (You can find it by going to the Sworn Deposition of Brenda Grant).

 

Why did Judge Shira Scheindlin refuse to allow Caryl Leventhal a short time to secure a new attorney when the one she had was issued a letter of admonition by the courts on September 26, 2000 (the day he was to represent Caryl Leventhal in court concerning her complaint against the US Department of Justice) "for conduct that adversely reflects on his fitness as a lawyer."  (On January 6, 2004, Caryl's former lawyer will be suspended from practicing law under charges of "conduct involving dishonesty, fraud, deceit or misrepresentation."

 

Why did Eric B. Fisher, Deputy US Attorney place winning a case over information from this whistleblower that could warn the American people of terrorism?  Why did Alan R. Kaufman, Chief of the US Attorney's (Southern District) Criminal Division threaten The Leventhal family with arrest and prosecution if they didn't censor this website to place the US Department of Justice in a better light?  Why are they working to place America at risk?

 

CHARGE TO THE JURY     

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------x
CARYL B. LEVENTHAL
Jury Charge
- against - 99 Civ. 10405 (SAS)

HON. JANET RENO, ATTORNEY
GENERAL FOR THE UNITED STATES,
Defendant.
--------------------------x


I. INTRODUCTORY REMARKS
Members of the jury, we now approach the critical time in this case -- the time when the case will be given to you for your judgment and verdict on the facts.
It is my responsibility to instruct you on the law. However, I first want to thank you for your patience, attentiveness and cooperation during this trial process.

  A. Function of Court and Jury
I begin by explaining to you my role and your role. The jury's role is by far the most important. It is to decide the questions of fact and, on that basis, to render the verdict. It is your duty to decide whether the plaintiff has proved her case by a preponderance of the evidence.
You are the sole judges of the facts. That is a great
responsibility that you are to exercise with complete fairness
and impartiality. Your decision is to be based solely on the
evidence or the lack of evidence. It may not be influenced by
bias, prejudice or sympathy. I remind you that this is the duty

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you have sworn you would perform faithfully.

My job includes two basic function.  First, I make rulings on dis-puted issues of law.  What rulings I have made should not concern you.  My second function is very much your concern.  It is to instruct you on the law.  That is, I must explain to you the rules of law that govern your deliberations, and I must tell you the questions you must answer in reaching your verdict.

 

It is your duty to accept the law as I state it to you in these instructions and to apply the law to the facts as you decide them.  You must not substitute your concept of what the law should be for what I tell you the law is.  Just as you alone determine the facts, I alone determine the law, and you are duty bound to accept the law as I state it.

 

Similarly, if any attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions you must follow.

 

You should not single out any instruction as alone stating the law, but you should consider my instructions as a whole when you retire to deliberate in the jury room.  To that end, you will all be permitted to take your copy of these instructions with you into the jury room.

 

B. Statements of Court and Counsel Not in Evidence

 

In determining the facts, you must rely upon your own

 

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recollection of the evidence. What is evidence? Evidence consists primarily of the testimony of witnesses and the exhibits that have been received. It also includes facts or testimony that have been stipulated or which I have instructed you should be taken as true.
This case is not to be decided on the rhetoric of the attorneys. What the lawyers have said in their opening arguments, in their summations, in their objections or in their questions is not evidence. What I say is not evidence. Only the answer of a witness is evidence together with documents and other tangible things received in evidence during trial.
One exception to this is that you may not consider any answer that I directed you to disregard or that I ordered to be stricken from the record.
The statements and arguments made by the lawyers are intended to convince you what conclusions you should draw from the evidence or lack of evidence. Now, those arguments are important. You should weigh and evaluate them carefully. But you must not confuse them with the evidence. As to what the evidence was, it is your recollection that governs, not the statements of the lawyers.
You should draw no inference or conclusion for or against any party by reason of lawyers making objections or my rulings on such objections. Counsel have not only the right but
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the duty to make legal objections when they think that such objections are appropriate. Moreover, during the course of the trial, on several occasions, I sustained objections by one counsel to a question asked by the examining counsel. Where I sustained objections to counsel's question, you are to disregard the question and any alleged fact contained in the question, and you may not speculate as to what the answer would have been.

Also, do not draw any inference from any of my rulings. The rulings I have made during trial are not any indication of my views of what your decision should be with respect to whether the plaintiffs or the defendants have presented more convincing evidence.
At times, I questioned a witness myself. Any questions that I asked, or instructions that I gave, were intended only to clarify the presentation of evidence and to bring out something which I thought unclear. You should draw no inference or conclusion of any kind, favorable or unfavorable, with respect to any witness or any party in the case, by reason of any comment, question or instruction of mine. Nor should you infer that I have any views as to the credibility of any witness, as to the weight of the evidence or as to how you should decide any issue that is before you. That is entirely your role.
Similarly, do not concern yourself with what was said at side bar conferences or during my discussions with counsel.

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  Those discussions related to rulings of law and not to matters of fact.
C.  Burden of of Proof

Because this is a civil case, the plaintiff has the burden of proving her claims by a preponderance of the evidence. This means that plaintiff must prove by a preponderance of the evidence each and every disputed element of each of her claims and the damages resulting therefrom. If you find that plaintiff has failed to establish a claim by a preponderance of the evidence, you must decide against her on that claim.
To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true. A preponderance of the evidence means the greater weight of the evidence. It does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that in order for the plaintiffs to prevail on a claim, the evidence that supports the claim must appeal to you as more nearly representing what took place than the evidence opposed to the claim. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's
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 claim outweighs the evidence opposed to it that you can find in favor of the plaintiff.
Some of you have heard of proof "beyond a reasonable doubt," which is the proper standard of proof for a criminal trial. However, a plaintiff in a civil case does not have to satisfy that requirement, and therefore you should put it out of your minds.

 D. Direct and Circumstantial Evidence


There are two kinds of evidence: direct and
circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally experienced through his or her own senses -- something seen, felt, touched, heard or tasted. Direct evidence may also be in the form of an exhibit where the fact to be proven is its present existence or condition.
Circumstantial evidence is evidence which tends to prove a disputed fact by proof of other facts. There is a simple example of circumstantial evidence which is often used in this courthouse.
Assume that when you came into the courthouse this morning the sun was shining and it was a nice day. Assume further that the courtroom blinds were drawn and you could not look outside. As you were sitting here, someone walked in with an umbrella that was dripping wet. Then, a few minutes later,
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 another person also entered with a wet umbrella. Now, you cannot look outside of the courtroom and you cannot see whether or not it is raining. So you have no direct evidence of the fact that it is raining. But on the combination of facts which I have asked you to assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason and experience and common sense from one established fact the existence or non-existence of some other fact.
Circumstantial evidence is of no less value than direct evidence; the law makes no distinction between direct evidence and circumstantial evidence but simply requires that your verdict be based on a preponderance of all the evidence presented. E . Inference
During the trial you may have heard the attorneys use the term "inference," and in their arguments they may have asked you to infer, on the basis of your reason, experience and common sense, from one or more proven facts, the existence of some other facts.
An inference is not a suspicion or a guess. It is a logical conclusion that a disputed fact exists that we reach in light of another fact which has been shown to exist.

There are times when different inferences may be drawn
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 from facts, whether proved by direct or circumstantial evidence. It is for you, and you alone, to decide what inferences you will draw.
The process of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a deduction or conclusion which you, the jury, are permitted to draw -- but not required to draw -- from the facts which have been established by either direct or circumstantial evidence. In drawing inferences you should exercise your common sense.
So, while you are considering the evidence presented to you, you are permitted to draw, from the facts which you find to be proven, such reasonable inferences as would be justified in light of your experience.
Keep in mind that the mere existence of an inference against the defendant does not relieve the plaintiff of the burden of establishing the case by a preponderance of the evidence. In order for the plaintiff to obtain a verdict in her favor, you must still believe from the credible evidence that the plaintiff has sustained her burden of proof. F. Credibility of Witnesses
You have had the opportunity to observe all the witnesses It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of
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the credibility of each witness and of the importance of that testimony.
How do ydu determine where the truth lies? You should use all the tests for truthfulness that you would use in determining matters of importance to you in your everyday life. You should consider any bias or hostility that a witness may have shown for or against any party as well as any interest the witness has in the outcome of the case. It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony.
You should consider the opportunity the witness had to see, hear, and know the things about which they testified; the accuracy of their memory; their candor or lack of candor; their intelligence; the reasonableness and probability of their testimony, its consistency or lack of consistency and its corroboration or lack of corroboration with other believable testimony. You watched the witnesses testify. Everything a witness said or did on the witness stand counts in your determination. How did the witness appear? What was the witness's demeanor while testifying? Often it is not what people say but how they say it that moves us.
In deciding whether to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether the witness's testimony reflects an innocent
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 lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or with only a small detail.
If you find that any witness has wilfully testified falsely as to any material fact (that is, as to an important matter) the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally unworthy of belief. You may accept so much of the witness's testimony as you deem true and disregard what you feel is false. As the sole judges of the facts, you must decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.
G. Interest in Outcome

In evaluating the credibility of the witnesses, you should take into account any evidence that a witness may benefit in some way from the outcome of the case. Such interest in the outcome creates a motive to testify falsely, and it may sway a witness to testify in a manner that advances the witness's own interest. Therefore, if you find that any witness whose testimony you are considering may have an interest in the outcome of this trial, then you should bear that factor in mind when
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 evaluating the credibility of his or her testimony, and accept it with great care.
Keep in mind, however, that it does not automatically follow that testimony given by an interested witness is to be disbelieved. There are many people who, no matter what their interest in the outcome of the case may be, would not testify falsely. It is for you to decide, based upon your own perceptions and common sense, to what extent, if at all, the witness's interest has affected his or her testimony.
H. Impeachment by Prior Inconsistent Statements

You have heard evidence that at some earlier time a witness has said or done something which counsel argues is inconsistent with the witness's trial testimony.
A prior inconsistent statement by a witness who is not a party to this action is not evidence you should consider in determining whether the plaintiff has proved her case. The prior inconsistent statement was placed before you solely for the purpose of attacking the credibility of the nonparty witness. If you find that the nonparty witness made an earlier statement that conflicts with his or her trial testimony, you may consider that fact in deciding how much of his or her trial testimony, if any, to believe.
on the other hand, evidence of a prior inconsistent statement by a party to this action may be considered by you both
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as affirmative evidence in determining liability and for purposes of helping you decide whether to believe the testimony of that party.
In making this determination, you may consider whether there was, in fact, any inconsistency; whether the witness purposely made a false statement or whether it was an innocent mistake; whether the inconsistency concerns an important fact, or whether it had to do with a small detail; whether the witness had an explanation for the inconsistency: and whether that explanation appeals to your common sense.
It is your duty, based upon all the evidence and your own good judgment, to decide how much weight to give to the inconsistency.
I. Note Taking by Jurors

I remind you that any notes you may have taken during trial are simply an aid to your memory. Because the notes may be inaccurate or incomplete, they may not be given any greater weight or influence than the recollections of other jurors about the facts, or the conclusions to be drawn from the facts, in determining the outcome of the case. Any difference between a juror's recollection and a juror's notes should always be settled by asking to have the court reporter's transcript on that point read back to you. You must base your determination of the facts, and ultimately, your verdict on the court record rather than on any juror's notes.
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II. NATURE OF PLAINTIFF'S ACTION


    This lawsuit was brought by plaintiff Caryl Leventhal against defendant Janet Reno, Attorney General of the United
States, in her official capacity as head of the Department of
Justice. Mrs. Leventhal claims that defendant discriminated
against her on account of her religion and disability.
Specifically, Mrs. Leventhal claims that (1) she was denied
reasonable accommodation of her disability, as required pursuant
to the Rehabilitation Act; (2) she was subjected to a hostile
work environment because of her religion -- in violation of Title VII and (3) she was terminated by the INS because of her religion -- in violation of Title VII -- and because of her disability -- in violation of the Rehabilitation Act. The defendant denies each of these claims.
On each of these claims the plaintiff must show, either by direct or indirect evidence, that the INS and its employees intentionally discriminated against her. Discrimination is intentional if it is done voluntarily, deliberately and willfully, and not by accident, inadvertence, or other innocent reason. The issue is not whether you consider the actions of the INS or any of its employees to have been right or wrong, or fair or unfair. An employer is entitled to make an employment
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 decision for a good reason, a bad reason or for no reason at all so long as the decision is not motivated by unlawful discrimination.

 A. Claim I - Reasonable Accommodation


Plaintiff argues that the INS discriminated against her by failing to provide a reasonable accommodation for her disability, and that this violated the Rehabilitation Act. The Rehabilitation Act is a federal law that was enacted to deter discrimination by certain employers, including the INS, against any individual with a disability, solely on the basis of that disability.

 

1. Elements of Claim


In order to prevail on this claim, plaintiff must show (1) that she is an individual who has a disability within the meaning of the law, (2) that the INS had notice of her disability, (3) that plaintiff could perform the essential functions of her job position as a Supervisory Applications Clerk, either without any accommodation, or with a reasonable accommodation, and (4) that the INS refused to make reasonable accommodations.
In this case, the parties agree that plaintiff is an individual who has a disability under the law. Thus, you will have to decide whether the plaintiff has proven the second, third and fourth elements of her reasonable accommodation claim. I
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 will now explain those elements of the claim to you.
2. The Second Element - Notice

As to the second element, a defendant is not required to provide a reasonable accommodation for a plaintiff's disability unless the disability is known to the defendant. If you find by a preponderance of the evidence that plaintiff's multiple sclerosis was not known to the decision makers at the INS during the course of plaintiff's employment there, then you must find for the defendant on this claim.
3. The Third Element - Essential Job Functions


If you find that plaintiff's disability was known to the defendant, then the next step is to determine whether she has proven by a preponderance of the evidence that she was able to perform the essential functions of her position with or without reasonable accommodation.
The "essential functions of an employment position" are the basic, fundamental duties of a job that a person must be able to perform in order to hold a particular position. Essential functions do not include marginal job duties of the position.
A job function may be considered essential for any of several reasons, including but not limited to the following:
1. the reason the position exists is to perform that function;
2. there are a limited number of employees available
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among whom the performance of that job function can be distributed; or

3. the'job function is highly specialized and the person in that position is hired for her expertise or ability to perform that particular job function.

In this case, plaintiff's job position was Supervisory Applications Clerk in Section 245 of the INS in New York. It is for you to determine what the "essential functions" of that position are. In making that determination, you may, along with all of the evidence which has been presented to you, consider the following additional factors:
a. the employer's judgment as to which functions of the job are essential;

b. written job descriptions prepared by the employer for advertising or posting the position;

c. written job descriptions prepared by the employer for use in interviewing applicants for the position;


d. the amount of time spent performing the function;

e. the consequences of not requiring the person holding the position to perform the function;

f. the work experience of past employees who have held the position; and


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g. the work experience of current employees who hold similar positions.

It is plaintiff who must demonstrate by a preponderance of the evidence that she was able to perform the "essential functions" of her Supervisory Applications Clerk position, with or without reasonable accommodation, as I will define that term for you, at the time of her termination. An employer may not base an employment decision on speculation that the plaintiff's disability might worsen such that the plaintiff would not be a qualified individual at some time in the future. On the other hand, an employer is not required to speculate that an employee's condition will improve if that employee is not able to fulfill all the essential functions of the position at the time in question. If you find that plaintiff could not perform the essential functions of her job, with or without a reasonable accommodation, then you must find for the defendant on this claim.
4. The Fourth Element - "Reasonable Accommodation"

Under the law, an employer must be willing to consider making certain changes, or accommodations, in its ordinary work rules, facilities, or the terms and conditions of employment in order to enable a disabled employee to perform the essential functions of the job. There are any number of specific accommodations that may be appropriate for particular situations.
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 For instance, a reasonable accommodation may include job restructuring, part-time or modified work schedules, or reassignment to a Vacant position.
A reasonable accommodation must be reasonable both in terms of costs and efficiency. Thus, you may consider the financial and administrative burdens which would be placed on the employer if required to make a particular accommodation. You may also consider the impact of an accommodation on other employees in determining whether a particular accommodation was reasonable. However, an accommodation may not be considered unreasonable merely because it requires the employer to assume more than a minimal cost, or because it will cost the employer more overall to obtain the same level of performance from the disabled employee.
An employer is not required to eliminate or alter essential functions of the position as a reasonable accommodation. Nor is an employer required to reallocate essential job duties to other employees, or to reduce productivity standards to accommodate the plaintiff. An employer also has no duty to transfer a disabled employee unable to perform one job to another available position.
It is the disabled employee's obligation to propose reasonable accommodations to the employer. An employer is not expected to guess what a particular disabled employee might need.
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 Moreover, when the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation.
Whether or not something constitutes reasonable accommodation is fact-specific and must be made on a case-by-case basis. It is for you to decide whether the accommodations requested by plaintiff (if any) were reasonable, and whether the accommodations offered plaintiff by the INS (if any) were reasonable.
The obligation to provide reasonable accommodation does not require the employer to provide the specific accommodation requested or preferred by the employee. An employer is not required to grant every request by an employee; it is required to make only those reasonable accommodations which allow the employee to function in the position. An employee may not require an employer to accept a particular accommodation if another one will accomplish the necessary result.
The obligation to provide reasonable accommodation also does not require the employer to give the employee her preference of jobs to perform, or priority with respect to assignment over other employees who are not disabled. Thus, an employer is not required to promote an employee, or create a new position, or bump an existing employee from an existing position as 
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a reasonable accommodation to the disabled employee. Indeed, the accommodation chosen by the employer need not be the best accommodation possible, so long as it is sufficient to meet the job-related needs of the employee being accommodated. Any reasonable accommodation is sufficient to satisfy the employer's legal obligation.
An employee may not reject a reasonable accommodation which would have allowed the employee to fulfill all of the essential functions of the position. If you find that the plaintiff rejected such a reasonable accommodation, then she is not a qualified individual as I have defined that term for you.
In this case, plaintiff must show that a reasonable accommodation existed that would have permitted her to perform her essential job functions at the same level as a non-disabled employee. If plaintiff makes this showing, then the INS must establish (1) that the requested accommodation was offered or provided, (2) that the requested accommodation was not in fact reasonable, or (3) that the requested accommodation would have imposed an "undue hardship" on the INS. If the INS proves any of these three things, then plaintiff has not established her accommodation claim.
As I have just indicated, one way in which the INS can defeat plaintiff's reasonable accommodation claim is by demonstrating that making the requested accommodation would have
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 constituted an "undue hardship." An "undue hardship" is any accommodation which would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.
The defendant has the burden of proving, by a preponderance of the evidence, that an accommodation would constitute an undue hardship. In making this determination, you may consider the following factors:
a. the nature and cost of the accommodation needed;
b. the overall size and nature of the employer's
operation, including consideration of the number
of employees, the number and type of facilities,
and composition and structure of the workforce,
and the financial resources available to the
employer; and
c. the impact of the accommodation on the operation
of the employer's facility.
B. Claim II: Hostile Work Environment


Plaintiff also claims that she was subjected to a hostile work environment because of her religion in violation of Title VII. Title VII of the Civil Rights Act is another of the federal employment discrimination statutes. It provides a remedy for individuals who have been discriminated against in their workplace based upon race, color, religion, or national origin.
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 In order to prove a claim of hostile work environment, plaintiff must prove the following by a preponderance of the evidence: First, that she was subject to harassment; second, that the harassment was based on her religion; and third, that the harassment adversely affected a term, condition or privilege of her employment.
An environment is hostile or abusive if the Plaintiff actually believed that the environment was hostile or abusive and a reasonable person would believe that the environment was hostile or abusive. Thus, in determining whether the Plaintiff has proved by a preponderance of the evidence that she was subject to a hostile work environment, you must consider whether Plaintiff actually believed that her working environment at INS was hostile or abusive and if a reasonable person in Plaintiff's position would have believed that Plaintiff's working environment at INS was hostile or abusive.
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment does not qualify. The hostile episodes must be more than occasional; they must be sufficiently continuous and concerted in order to be deemed pervasive. Furthermore, plaintiff must prove that the harassment was based on her religion and did not result from personality conflicts or other tensions between her and her supervisors or co-workers that were unrelated to her religion.
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Whether an environment is hostile or abusive should be determined by looking at the totality of the circumstances.
In determining whether an employment environment is hostile or abusive, you may consider the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interfered with plaintiff's work performance.
C. Claim III: Wrongful Termination


Plaintiff claims that the INS terminated Plaintiff because of her disability and religion. Because these claims arise under two different statutes -- the Rehabilitation Act and Title VII -- the claims must be analyzed separately under each statute.
1. The Rehabilitation Act

Plaintiff claims that the INS terminated plaintiff because of her disability, in violation of the Rehabilitation Act. In order to prevail on her discrimination claim, plaintiff must prove by a preponderance of the evidence that her termination was due solely to her disability. To do so, plaintiff must show (a) that there was a causal connection between her disability status and her termination, and (b) that the decision to terminate her was made solely because of her disability.
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 If the INS can show that its decision to terminate plaintiff was motivated at least in part by a factor other than plaintiff's disability, then plaintiff has not proven her claim. However, the causal relationship between the disability and the decision need not be direct, in that causation may be established if the disability caused conduct that, in turn, motivated the employer to discharge the employee. a. Pretext

 You have heard evidence that the INS had reasons other than plaintiff's disability for its termination of plaintiff in 1996. In order to prevail on her claim that her termination was discriminatory, plaintiff must prove that the reasons stated for these employment decisions are a pretext and that the true reason for her termination was discrimination. In other words, plaintiff must prove to you that the decision-makers' stated reasons were false and that disability discrimination was the real and only reason for the decision-makers' actions. It is not enough for plaintiff to show a mere possibility or speculation that the INS's stated reasons are untrue.  The question is not whether the INS showed poor or erroneous judgment in terminating plaintiff. You are not to second-guess or judge the wisdom of the INS's actions. An employer is entitled to make an employment decision for a good reason, a bad reason, or for no reason at all, so long as the
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decision is not motivated by unlawful discrimination.
It is not enough for you to disbelieve the INS's explanations for its actions.

Note: For some inexplicable reason Judge Scheindlin refused to allow documented evidence of rampant terrorist friendly corruption that Caryl Leventhal was attempting to stop.  Ms. Leventhal was a whistleblower attempting to stop the corruption that was allowing thousands of criminals and potential terrorists into America. 

Many in INS Section 245 where she worked were subsequently arrested for this profitable trade in selling green cards, to say nothing of processing applications for residency without proper background checks.  Prior to her termination, Caryl Leventhal met with agents from the US Department of Justice who had come from Washington DC.  It was here that she explained what was going on.  In 1998, all of Ms. Leventhal's allegations were supported by newspaper articles in an expose where many were arrested.  Unwillingly, it was supported in the deposition of the US Attorney's main witness, Brenda Grant.

Discriminating for Whistleblowing is not considered unlawful discrimination in this type of suit.  And the fact that Caryl always contended that she was brutalized in order to shut her up by forcing her out was not allowed in testimony.

Sadly, the American people will probably pay for the actions of the US Department of Justice, Immigration and Naturalization Service, US Attorney's Office and judge Scheindlin.  They will pay for it by increased domestic crime and terrorism against the American people.      

 The fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff. Proof that the defendant's explanation is false is simply one form of circumstantial evidence which you, the jury, may find probative of intentional discrimination. The ultimate burden of proving that the INS intentionally discriminated against plaintiff on the basis of her disability remains at all times with the plaintiff, and it is up to her to prove, by a preponderance of the evidence, that her disability was the sole reason for the INS's decision to terminate her.
In other words, plaintiff may prevail only if she has proved both that the reasons stated for the termination were false and that the real and only reason for the termination was that plaintiff has multiple sclerosis. To do this, plaintiff must show by a preponderance of the evidence that the INS's proffered reasons for its decision to terminate her are not worthy of belief and that INS officials acted with a discriminatory motive based on plaintiff's disability. If plaintiff fails to meet this burden, you must find for the defendant.

2. Title VII


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 Plaintiff also claims that she was terminated because of her religion. In order to establish a prima facie case under Title VII for wrongful termination, the plaintiff must demonstrate by a preponderance of the evidence that: i. she belongs to a protected class; ii. she was qualified and satisfactorily performing her job; and iii. she was terminated under circumstances giving rise to an inference of discrimination.
If you find that plaintiff has not proved all three of these elements by a preponderance of the evidence, then you must find in favor of the defendant.
If you find that the plaintiff has met her initial burden of stating a prima facie case of religious discrimination, the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for the termination.
In this case, the defendant has offered a legitimate non-discriminatory reason for terminating plaintiff. According to the defendant, plaintiff's job performance was unsatisfactory. The defendant has therefore met its burden of producing some explanation for its actions other than discrimination. It is not necessary that the reason be a good one, or even that you believe it to be true. All the defendant need do is state a reason other
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than religion for its action. It is the plaintiff's obligation to prove that the reason supplied by the defendant was not the real reason for plaintiff's termination. It is not the defendant's burden to prove that the reason it supplied was the real reason for the termination.
By meeting this intermediary burden, defendant has shifted the burden of persuasion back to the plaintiff. I will now instruct you on what the plaintiff's burden is, and how you must evaluate whether it has been met. a. Pretext
The plaintiff has introduced evidence that the defendant's articulated reason for its action is nothing more than a pretext for discrimination. In other words, the plaintiff has introduced evidence to show that the defendant's reasons are not the true reasons for plaintiff's termination, that such reasons are unworthy of belief and that the true reason for the termination was religious discrimination.
When you consider the plaintiff's evidence that the reason advanced by the defendant is a pretext, keep in mind that the relevant question is whether the defendant's reason was not the real reason for plaintiff's termination. As I instructed you earlier in connection with plaintiff's claim for disability discrimination, the question is not whether the defendant's reason showed poor or erroneous judgment. You are not to
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evaluate the defendant's business judgment. An employer is entitled to make an employment decision for a good reason, a bad reason or for no rdason at all, so long as the decision is not motivated by unlawful discrimination. However, you may consider whether the defendant's reason is merely a cover-up for discrimination. In doing this, you may consider whether the asserted reason comports with the defendant's own policies and rules and whether such policies and rules have been applied uniformly. You also should carefully evaluate any subjective reasons that the defendant has asserted for terminating plaintiff in deciding whether plaintiff has met her burden of proof.
It is the plaintiff's burden to persuade you by a preponderance of the evidence that the defendant terminated the plaintiff because of her religion. If you do not believe the defendant's explanations for plaintiff's termination, then you may infer, but need not infer, that the plaintiff has satisfied her burden of proof that the defendant intentionally discriminated against her because of her religion. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. III. Damages
Now that I have completed the instructions on the law underlying Plaintiff's claims, I will give you instructions on
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awarding damages. The fact that I am giving you instructions on the subject of damages should not be construed by you as any indication that I believe you should find for the Plaintiff. I instruct you on damages only so that if in your deliberations you find that the Plaintiff is entitled to recover, you will have been instructed on the law of damages.
Before defining the types of damages which you may award, I have a cautionary instruction: You should not award compensatory damages more than once for the same injury. For example, if a plaintiff were to prevail on two claims and establish a one dollar injury, you could not award her one dollar compensatory damages on each claim. The plaintiff is only entitled to be made whole once, not to recover more than she lost. Of course, if different injuries are attributed to the separate claims, then you must compensate her fully for all of the injuries.

 A. Compensatory Damages

If you should find in favor of Plaintiff, you must determine an amount that is fair compensation for Plaintiff's damages. These damages are known as "compensatory damages." You may award compensatory damages only for injuries that the Plaintiff proves were caused by the Defendant's allegedly wrongful conduct. You may not award damages based on speculation. The damages that you award must be fair
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compensation, no more and no less. The purpose of the law is to make the plaintiff whole -- to put her in the same position she would have been in'had there been no discrimination.
In computing damages, should you award damages, you may not engage in speculation or guess-work. On the other hand, the law does not require a plaintiff to prove the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit.
1. Mental and Emotional Distress


Plaintiff claims compensatory damages for mental and emotional distress. In order to recover damages for mental and emotional distress, plaintiff must present credible testimony with respect to claimed mental distress and, in addition, some corroboration of that testimony, either by competent medical proof or sufficiently serious circumstances that you reasonably believe would give rise to mental distress, thereby affording some assurance that the claim is genuine.
You should award actual damages only for those injuries that you find the plaintiff has proven by a preponderance of the evidence. Moreover, you should award actual damages only for those injuries that you find plaintiff has proven by a preponderance of the evidence to have been the direct result of intentional discrimination by the INS against the plaintiff. That is, you may not simply award actual damages for any injury
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suffered by plaintiff; you must award actual damages only for those injuries that are a direct result of actions and conduct by the INS that violated the plaintiff's rights under federal antidiscrimination law.
You may award compensatory damages for any mental and emotional distress that Plaintiff experienced as a result of Defendant's discriminatory conduct. No evidence of the monetary value of such intangible things as mental and emotional distress has been, or need be, introduced into evidence. The law does not permit that. There is no exact standard for fixing the compensation to be awarded for those elements of damages. Any award you make should be fair in light of the evidence presented at trial.
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.
2. Duty to Mitigate


Any person who claims damages as a result of an alleged


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 wrongful act of another has a duty under the law to use reasonable diligence under the circumstances to "mitigate," or minimize, those darftages. The law imposes the same duty to mitigate damages on a person who claims she is damaged due to employment discrimination as on any other person claiming damages. The duty the law imposes is to take advantage of reasonable opportunities plaintiff may have to prevent the aggravation of her injuries, so as to reduce or minimize the loss or damage.
If you find the INS is liable and that plaintiff has suffered damages, the plaintiff may not recover for any damage she could have avoided through reasonable effort. Here, plaintiff is seeking damages only for emotional and mental distress. If you find that the plaintiff unreasonably failed to take advantage of an opportunity to lessen those damages, by seeking counseling or other medical assistance, you may deny recovery for those damages which you conclude could have been reduced or avoided had she taken advantage of such an opportunity, if one was reasonably available to her.
The question whether the plaintiff acted "reasonably" with respect to the mitigation of damages is one for you, the jury, to decide, as sole judges of the facts. Although the law will not allow an injured plaintiff to sit idly by when she could have done something to mitigate her damages, this does not imply
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 that the law requires an injured plaintiff to exert herself unreasonably or incur unreasonable expense in an effort to mitigate, and it is the defendant's burden to prove, by a preponderance of the evidence, that the plaintiff failed to take reasonable steps to diminish the extent of the injuries suffered.
3. Nominal Damages

If you find, after considering all the evidence presented, that Defendant is liable under any of the claims brought by Plaintiff, but that Plaintiff suffered no injury as a result of the Defendant's discrimination, you may award the Plaintiff nominal damages. Nominal damages are awarded as recognition that the Plaintiff's rights have been violated. You would award nominal damages if you conclude that the only injury that a plaintiff suffered was that she was discriminated or retaliated against, without any resulting emotional or financial damage.
You may also award nominal damages if, upon finding that some injury resulted from a given unlawful act, you find that you are unable to compute monetary damages except by engaging in undue speculation and guessing.
You may not award both nominal and compensatory damages to a plaintiff; either she has measurable injury, in which case you must award compensatory damages, or else the plaintiff was not injured, in which case you may award nominal damages.
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Nominal damages may not be awarded for more than one dollar.

IV. Closing Instructions

A. Right To See Exhibits and Hear Testimony


Now, Ladies and Gentlemen, you are about to go into the jury room and begin your deliberation. All of the exhibits will be given to you at the start of deliberations. If you want any of the testimony read, you may also request that. If you do ask for testimony, the reporter must search through the record and the lawyers must agree on what portions of testimony may be called for, and if they disagree I must resolve those disagreements. That can be a time-consuming process. So please try to be as specific as you possibly can in requesting portions of the testimony.
Your requests for testimony -- in fact any communication with the Court -- should be made to me in writing, signed by your foreperson, and given to one of the Marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a verdict is reached.
B. Duty To Deliberate/Verdict


The most important part of this case, members of the jury, is the part that you as jurors are now about to play as you deliberate on the issues of fact. It is for you, and you alone, to decide whether Plaintiff has sustained her burden of proof as
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 I have explained it to you with respect to each element of her claim. If you find that Plaintiff has succeeded, you should return a verdict in her favor. If you find that the Plaintiff failed to sustain her burden on any element of any of her claims, you should return a verdict in favor of the Defendant on that claim.
I know you will try the issues that have been presented to you according to the oath that you have taken as jurors. In that oath you promised that you would well and truly try the issues joined in this case and a true verdict render.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for yourself but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Every juror should be heard. No one juror should hold the center stage in the jury room and no one juror should control or monopolize the deliberations. Your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that
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 conclusion which in your good conscience appears to be in accordance with the truth.
Again eadh of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his or her conscientious beliefs solely for the purpose of returning a unanimous verdict.

  C. Selection of Foreperson


When you retire, you should elect one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in open court. The foreperson has no greater voice or authority than any other juror.
The foreperson will send out any notes and, when the jury has reached a verdict, he or she will notify the Marshal that the jury has reached a verdict.

  D. Return of Verdict

I will give you a verdict form to be filled in by the jury. The purpose of the questions on the form is to help us -the Court, the attorneys, the plaintiff and the defendant -- to understand what your findings are. I will hand this form, which contains a set of questions to the clerk, who will give it to you so that you may record the decision of the jury with respect to each question.

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No inference is to be drawn from the way the questions are worded as to what the answer should be. The questions are not to be taken as'any indication that I have any opinion as to how they should be answered. I have no such opinion and, even if I did, it would not be binding on you.
Before the jury attempts to answer any question, you should read the entire set and make sure that everybody understands each question. Before you answer the questions, you should deliberate in the jury room and discuss the evidence that relates to the questions you must answer. When you have considered the questions thoroughly, and the evidence that relates to those questions, record the answers to the questions on the form I am giving you. Before you can record an answer, all jurors must agree to it. Again, your answers must be unanimous.
If at any time you are not in agreement, you are instructed that you are not to reveal the standing of the jurors, that is, the split of the vote, with respect to any questions, to anyone, including the Court, at any time during your deliberation.
E. Closing Comment


Finally, I say this, not because I think it is necessary, but because it is the custom in this courthouse, you should treat each other with courtesy and respect during your
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 deliberation.
After you have reached a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the Marshal outside your door that you are ready to return to the courtroom.
I will stress that you should be in agreement with the verdict which is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
All litigants stand equal in this room. All litigants stand equal before the bar of justice. All litigants stand equal before you. Your duty is to decide between these parties fairly and impartially, to see that justice is done, all in accordance with your oath as jurors.
Members of the jury, I ask your patience for a few moments longer. It is necessary for me to spend a few moments with counsel and the reporter at the side bar. I will ask you to remain patiently in the box, without speaking to each other, and we will return in just a moment to submit the case to you.
Thank you for your time and attentiveness.


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Commentary and Editor's Notes written and Copyright © by:  LTC Michael G. Leventhal

Copyright 2000  Reproduction with written permission.  Contact: Michael @Justice-Denied.net