jury instructions in state court: how to instruct the jury ... · 4.72 damages: punitive-civil...

Jury Instructions in State Court: How to Instruct the Jury and Avoid Error on Appeal

1:00 p.m.- 1:50 p.m.

Presented by

Friday, November 13, 2015

2015 Labor and Employment Seminar

Jill ZwagermanNewkirk Zwagerman, PLC 515 East Locust St. Ste. 300Des Moines, IA 50309Phone: 515-883-2000

Kevin VisserSimmons Perrine Moyer Bergman PLC 115 Third St. SE Suite 1200Cedar Rapids, IA 52401Phone: 319-366-7641

Lisa Stephenson Simmons Perrine Moyer Bergman PLC 115 3rd St. Ste. 1200Des Moines, IA 52401Phone: 319-366-7641

Stanley Munger Munger Reinschmidt & Denne, LLP 600 4th St. Ste. 303Sioux City, IA 51101Phone: 712-233-3635

Mikkie SchiltzLane & Waterman LLP 220 N. Main St. Ste. 600Davenport, IA 52801Phone: 563-324-3246

MANUAL OF

MODEL CIVIL

JURY INSTRUCTIONS

FOR THE

DISTRICT COURTS

OF THE EIGHTH CIRCUIT

2014 Edition

CITE THIS WORK

gm CIR. CIVIL JURY INSTR. § 4.70 (2014)

or

gm CIR. CIVIL JURY INSTR. § 4.70 comment (2014)

11

3.2 EXPLANATORY: WDGE'S OPINION ................................................................... 33 3.3 EXPLANATORY: CREDIBILITY OF WITNESSES ............................................. 34 3.4 EXPLANATORY: BURDEN OF PROOF

(Ordinary Civil Case) ............................................................................................ 37 3.5 EXPLANATORY: WITHDRAWAL OF CLAIM OR DEFENSE .......................... 38 3.6 EXPLANATORY: ELECTION OF FOREPERSON; DUTY TO DELIBERATE;

COMMUNICATIONS WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM ...................................................... 39

3.7 EXPLANATORY: "ALLEN" CHARGE TO BE GIVEN AFTER EXTENDED DELIBERATION ................................................................ .41

4. PRISONER/PRETRIAL DETAINEE CIVIL RIGHTS CASES 4.00 OVERVIEW ........................................................................................................... 44 4.20 DEFINITION: COLOR OF STATE LAW (42 U.S.C. § 1983) .............................. 45 4.21 DEFINITION: PERVASIVE RISK OF HARM- CONVICTED PRISONERS

(42 u.s.c. § 1983) ................................................................................................ 46 4.22 DEFINITION: SERIOUS MEDICAL NEED- CONVICTED PRISONERS

(42 u.s.c. § 1983) ................................................................................................ 47 4.23 DEFINITION: DELIBERATE INDIFFERENCE

CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 u.s.c. § 1983) ................................................................................................ 48

4.24 DEFINITION: MALICIOUSLY ................................................................................. 49 4.25 DEFINITION: SADISTICALL Y. ............................................................................... 50 4.40 ELEMENTS OF CLAIM: EXCESSIVE USE OF FORCE - ARREST

OR OTHER SEIZURE OF PERSON -BEFORE CONFINEMENT -FOURTH AMENDMENT .................................... n

4.41 ELEMENTS OF CLAIM: EXCESSIVE USE OF FORCE - PRETRIAL DETAINEES- FIFTH AND FOURTEENTH AMENDMENTS ......................... 55

4.42 ELEMENTS OF CLAIM: EXCESSIVE USE OF FORCE - CONVICTED PRISONERS -EIGHTH AMENDMENT ............................................................ 59

4.43 ELEMENTS OF CLAIM: DENIAL OF MEDICAL CARE -CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 u.s.c. § 1983) ................................................................................................ 62

4.44 ELEMENTS OF CLAIM: FAILURE TO PROTECT FROM ATTACKSPECIFIC ATTACK- CONVICTED PRISONERS- EIGHTH AMENDMENT (And Pretrial Detainees- Fourteenth Amendment) ............................................. .

4.70 DAMAGES: ACTUAL- PRISONER CIVIL RIGHTS ........................................... 67 4.71 DAMAGES: NOMINAL- PRISONER CIVIL RIGHTS ........................................ 69 4.72 DAMAGES: PUNITIVE- CIVIL RIGHTS ............................................................. 70 4.80 GENERAL VERDICT FORM: ONE PLAINTIFF, TWO DEFENDANTS,

ONE INmRY CASE ............................................................................................ 74

5. TITLE VII CASES 5.00 OVERVIEW (For All Employment Cases) ......................................................... 76 5.10 EXPLANATORY: "SAME DECISION" ................................................................... 7&

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5.11 EXPLANATORY: BUSINESS JUDGMENT ......................................................... 79 5.20 DEFINITION: PRETEXT ........................................................................................ 80 5.21 DEFINITION: MOTIVATING FACTOR. ............................................................... 82 5.22 DEFINITION: AFTER-ACQUIRED EVIDENCE ................................................... 83 5.23 DEFINITION: AGENCY ........................................................................................ 85 5.40 ELEMENTS OF CLAIM ............................................................................................. 86 5.41 ELEMENTS OF CLAIM: CONSTRUCTIVE DISCHARGE ................................. 88 5.70 DAMAGES: ACTUAL ........................................................................................... 90 5.71 DAMAGES: NOMINAL .......................................................................................... 94 5.72 DAMAGES: PUNITIVE ............................................................................................... 95 5.80 GENERAL VERDICT FORM .................................................................................. lOO 5.81 GENERAL VERDICT FORM .................................................................................. 102 5.90 SPECIAL VERDICT FORM: SPECIAL INTERROGATORIES

IN BORDERLINE PRETEXT/MIXED-MOTIVE CASES ................................ 105

6. AGE DISCRIMINATION IN EMPLOYMENT ACT CASES 6.00 OVERVIEW ......................................................................................................... 1 09 6.20 DEFINITION: WILLFULNESS .................................................................................. 11 0 6.40 ELEMENTS OF CLAIM ........................................................................................... ill 6.41 ELEMENTS OF CLAIM: CONSTRUCTIVE DISCHARGE. .............................. . 6.70 DAMAGES: ACTUAL ......................................................................................... 115 6.71 DAMAGES: NOMINAL ......................................................................................... 117 6.80 GENERAL VERDICT FORM ................................................................................. 118

7. EQUALPAY ACT CASES

7.00 OVERVIEW ......................................................................................................... 120 7.20 DEFINITION: "SUBSTANTIALLY EQUAL" ...................................................... 121 7.40 ELEMENTS OF CLAIM ........................................................................................... 122 7.60 ELEMENTS OF DEFENSES .................................................................................. 124 7.70 DAMAGES: ACTUAL ........................................................................................ 126 7.80 GENERAL VERDICT FORM ................................................................................. l28

8. HARASSMENT CASES UNDER TITLE VII, SECTIONS 1981 AND 1983, ADA, AND ADEA 8.00 OVERVIEW ......................................................................................................... 130 8.20 DEFINITION: SUPERVISORY LIABILITY ........................................................... 133 8.40 ELEMENTS OF CLAIM: HARASSMENT

(By Supervisor With Tangible Employment Action) .......................................... 134 8.41 ELEMENTS OF CLAIM: HARASSMENT

(By Supervisor With No Tangible Employment Action) .................................... 138 8.42 ELEMENTS OF CLAIM: HARASSMENT (By Nonsupervisor) ........................ 143 8.60 ELEMENTS OF DEFENSE: AFFIRMATIVE DEFENSE

(For Use in Supervisor Cases With No Tangible Employment Action) ............. 146 8.70 ACTUAL DAMAGES .......................................................................................... .

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8.71 NOMINAL DAMAGES ........................................................................................ 149 8. 72 PUNITIVE DAMAGES ......................................................................................... 150

9. AMERICANS WITH DISABILITIES ACT 9.00 OVERVIEW .......................................................................................................... 151 9.10 EXPLANATORY: DISPARATE TREATMENT "SAME DECISION" .............. 163 9.11 EXPLANATORY: BUSINESS JUDGMENT .................................................... .. 9.20 DEFINITION: DISABILITY. ..................................................................................... 165 9.21 DEFINITION: ESSENTIAL FUNCTIONS ............................................................ 166 9.22 DEFINITION: SUBSTANTIALLYLIMITS ............................................................. 167 9.40 ELEMENTS OF CLAIM: DISPARATE TREATMENT (Actual Disability) ...... 168 9.41 ELEMENTS OF CLAIM: DISPARATE TREATMENT (Perceived Disability)

............................................................... 171 9.42 ELEMENTS OF CLAIM: REASONABLE ACCOMMODATION

(Specific Accommodation Identified) ................................................................... 174 9.43 ELEMENTS OF CLAIM: CONSTRUCTIVE DISCHARGE ............................... 179 9.60 ELEMENTS OF DEFENSE: "UNDUE HARDSHIP"- STATUTORY DEFENSE

............................................................... 181 9.61 ELEMENTS OF DEFENSE: "DIRECT THREAT"- STATUTORY DEFENSE

............................................................... 183 9.62 ELEMENTS OF DEFENSE: "GOOD FAITH" DEFENSE

TO COMPENSATORY AND PUNITIVE DAMAGES ................................... . 9.70 DAMAGES: ACTUAL ........................................................................................ 186 9.71 DAMAGES: NOMINAL ........................................................................................ 190 9.72 DAMAGES: PUNITIVE ........................................................................................... l91

10. EMPLOYMENT- RETALIATION (ANTI-DISCRIMINATION STATUTES) 10.00 OVERVIEW ....................................................................................................... 196 10.40 ELEMENTS OF CLAIM: RETALIATION FOR PARTICIPATION IN

PROCEEDINGS UNDER EMPLOYMENT STATUTES ................................. 200 10.41 ELEMENTS OF CLAIM: RETALIATION FOR OPPOSITION

TO HARASSMENT OR DISCRIMINATION ...................................................... 201 10.42 ELEMENTS OF CLAIM: RETALIATION- THIRD PARTY REPRISAL FOR

PARTICIPATION IN PROCEEDINGS UNDER EMPLOYMENT STATUTES

10.43 ELEMENTS OF CLAIM: RETALIATION- THIRD PARTY REPRISAL FOR OPPOSITION TO HARASSMENT OR DISCRIMINATION ............................ 207

10.70 ACTUAL DAMAGES ........................................................................................ 210 10.71 NOMINAL DAMAGES ...................................................................................... 211 10.72 PUNITIVE DAMAGES ....................................................................................... 212

11. EMPLOYMENT- RACE DISCRIMINATION (42 U.S.C. § 1981) 11.00 OVERVIEW ...................................................................................................... . 11.40 ELEMENTS OF CLAIM: MOTIVATING FACTOR

(42 u.s.c. § 1981) ............................................................................................. .

XIV

11.41 ELEMENTS OF CLAIM: DETERMINING FACTOR (42 U.S.C. § 1981) ...... 216 11.70 DAMAGES: ACTUAL (42 U.S.C. § 1981) ...................................................... 217 11.71 DAMAGES: NOMINAL (42 U.S.C. § 1981) ................................................... 220 11.72 DAMAGES: PUNITIVE (42 U.S.C. § 1981) .................................................... 221 11.80 VERDICT FORM (42 U.S.C. § 1981) ................................................................. 225 11.90 SPECIAL VERDICT FORM:

Special Interrogatories If Causation Standard Is Unclear .................................. .

12. EMPLOYMENT- PUBLIC EMPLOYERS (42 U.S.C. § 1983) 12.00 OVERVIEW ...................................................................................................... . 12.20 DEFINITION: COLOR OF STATE LAW (42 U.S.C. § 1983) ......................... . 12.21 DEFINITION: MOTIVATING FACTOR. .......................................................... . 12.40 ELEMENTS OF CLAIM: (SEX) DISCRIMINATION- ELEMENTS

(Mixed Motive) (42 U.S.C. § 1983) ................................................................... 235 12.41 ELEMENTS OF CLAIM: (SEX) DISCRIMINATION

(Determining Factor) (42 U.S.C. § 1983) .......................................................... 237 12.70 DAMAGES: ACTUAL (42 U.S.C. § 1983) ....................................................... 238 12.71 DAMAGES: NOMINAL (42 U.S.C. § 1983) ................................................... . 12.72 DAMAGES: PUNITIVE (42 U.S.C. § 1983) .................................................... 242 12.80 GENERAL VERDICT FORM (42 U.S.C. § 1983) ............................................. 246

13. EMPLOYMENT- FIRST AMENDMENT RETALIATION (42 U.S.C. § 1983) 13.00 OVERVIEW ....................................................................................................... 248 13.40 ELEMENTS OF CLAIM: FIRST AMENDMENT RETALIATION

(42 u.s.c. § 1983) .............................................................................................. 249 13.70 DAMAGES: ACTUAL (42 U.S.C. § 1983) ....................................................... 255 13.71 DAMAGES: NOMINAL (42 U.S.C. § 1983) .................................................... 258 13.72 DAMAGES: PUNITIVE (42 U.S.C. § 1983) ..................................................... 259 13.80 GENERAL VERDICT FORM (42 U.S.C. § 1983) ........................................... 263 13.90 SPECIAL VERDICT FORM:

INTERROGATORIES ON "BALANCING" ISSUES (42 U.S.C. § 1983) ........ 13.91 SPECIAL VERDICT FORM: INTERROGATORIES

REGARDING "PROTECTED SPEECH" BALANCING ISSUES (42 u.s.c. § 1983) .............................................................................................. 267

14. EMPLOYMENT- FAMILY AND MEDICAL LEAVE ACT 14.00 OVERVIEW ..................................................................................................... .. 14.10 EXPLANATORY: "SAME DECISION" .............................................................. 277 14.20 DEFINITION: "NEEDED TO CARE FOR" ......................................................... 278 14.21 DEFINITION: "SERIOUS HEALTH CONDITION" ........................................... 279 14.22 DEFINITION: "SERIOUS HEALTH CONDITION" (alternate) ....................... 280 14.23 DEFINITION: "HEALTH CARE PROVIDER" .................................................. 283 14.24 DEFINITION: "TIMELY NOTICE"- LEAVE FORESEEABLE ..................... . 14.25 DEFINITION: "TIMELY NOTICE"- LEAVE UNFORESEEABLE .............. .. 14.26 DEFINITION: "EQUIVALENT POSITION" ....................................................... 286

XV

14.27 DEFINITION: "QUALIFYING EXIGENCY" .................................................... 287 14.28 DEFINITION: "NEXT OF KIN" FOR LEAVE TO CARE

FOR A COVERED SERVICEMEMBER WITH A SERIOUS INJURY OR ILLNESS ..................................................................................................................... 289

14.29 DEFINITION: "COVERED SERVICEMEMBER" FOR LEAVE TO CARE FOR A COVERED SERVICEMEMBER WITH A SERIOUS INJURY OR ILLNESS ........................................................... 290

14.30 DEFINITION: "SERIOUS INJURY OR ILLNESS" FOR LEAVE TO CARE FOR A COVERED SERVICEMEMBER WITH A SERIOUS INJURY OR ILLNESS ........................................................... 291

14.31 DEFINITION: "CONTINGENCY OPERATION" ............................................... 292 14.32 DEFINITION: "AS SOON AS PRACTICABLE" ............................................... 293 14.40 ELEMENTS OF CLAIM: WRONGFUL TERMINATION

(Employee with a Serious Health Condition) ..................................................... 294 14.41 ELEMENTS OF CLAIM: WRONGFUL TERMINATION

(Employee Needed to Care for Spouse, Parent, Son or Daughter with a Serious Health Condition ..................................................... 297

14.42 ELEMENTS OF CLAIM: WRONGFUL TERMINATION (Employee Leave for Birth, Adoption or Foster Care) ....................................... 301

14.43 ELEMENTS OF CLAIM: WRONGFUL TERMINATION (Qualifying Exigency Leave Related to Covered Military Member) .................. 305

14.44 ELEMENTS OF CLAIM: WRONGFUL TERMINATION (Employee Needed to Care for Covered Servicemember with a Serious Injury or Illness) .................................................................................................................... 309

14.45 ELEMENTS OF CLAIM: FAILURE TO REINSTATE (Employee with a Serious Health Condition) ..................................................... 313

14.46 ELEMENTS OF CLAIM: FAILURE TO REINSTATE (Employee Needed to Care for a Spouse, Son or Daughter with a Serious Health Condition) ............................................ 316

14.47 ELEMENTS OF CLAIM: FAILURE TO REINSTATE (Employee Leave for Birth, Adoption or Foster Care) ....................................... 319

14.48 ELEMENTS OF CLAIM: F AlLURE TO REINSTATE (Qualifying Exigency Leave Related to Covered Military Member) .................. 322

14.49 ELEMENTS OF CLAIM: FAILURE TO REINSTATE (Employee Needed to Care for Covered Servicemember with a Serious Injury or Illness) ............................................................................ 325

14.60 ELEMENTS OF DEFENSE: EXCEPTION TO JOB RESTORATION (Key Employee) .................................................................................................... 328

14.61 ELEMENTS OF DEFENSE: EXCEPTION TO JOB RESTORATION (Employee would not have been Employed at Time of Reinstatement) ............. 329

14.70 DAMAGES: ACTUAL ...................................................................................... 330 14.80 GENERAL VERDICT FORM ............................................................................... 332

15. EMPLOYMENT- FEDERAL EMPLOYERS' LIABILITY ACT 15.00 OVERVIEW (General) ........................................................................................ 333

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15.01 DEFENSE THEORY INSTRUCTIONS- THREE OPTIONS OVERVIEW .................................................................................................................. 338

15.20 DEFINITION: ''NEGLIGENT" OR "NEGLIGENCE" ......................................... 340 15.21 DEFINITION: "ORDINARY CARE" ................................................................ 341 15.22 DEFINITIONS: "NEGLIGENT"

OR "NEGLIGENCE" AND "ORDINARY CARE" COMBINED ..................... 342 15.40 ELEMENTS OF CLAIM: GENERAL F.E.L.A. NEGLIGENCE ........................ 343 15.41 ELEMENTS OF CLAIM: BOILER INSPECTION ACT VIOLATION ............. 348 15.42 ELEMENTS OF CLAIM: SAFETY APPLIANCE ACT VIOLATION .............. 352 15.60 ELEMENTS OF DEFENSE: FAILURE OF PROOF ON ANY ELEMENT OF

THE PLAINTIFF'S CASE LISTED IN THE ELEMENTS ................................ 356 15.61 ELEMENTS OF DEFENSE: FAILURE TO PROVE ANY FACT

ESSENTIAL TO THE PLAINTIFF'S RIGHT TO RECOVER. ........................ 358 15.62 ELEMENTS OF DEFENSE: AFFIRMATIVE DEFENSES ............................... 361 15.63 ELEMENTS OF DEFENSE: CONTRIBUTORY NEGLIGENCE. ..................... 362 15.70 DAMAGES: INJURYTOEMPLOYEE .............................................................. 364 15.71 DAMAGES: DEATH OF EMPLOYEE ............................................................... 367 15.72 DAMAGES: PRESENT VALUE OF FUTURE LOSS ......................................... 370 15.73 DAMAGES: INCOME TAX EFFECTS OF AWARD ...................................... 371 15.80 GENERAL VERDICT FORM: CONTRIBUTORY NEGLIGENCE SUBMITTED

............................................................... 372 15.81 GENERAL VERDICT FORM:

CONTRIBUTORY NEGLIGENCE NOT SUBMITTED .................................... 375

16. EMPLOYMENT- FAIR LABOR STANDARDS ACT 16.00 OVERVIEW ....................................................................................................... 376 16.10 EXPLANATORY: DETERMINING HOURS WORKED ................................. 380 16.11 EXPLANATORY: MINIMUM WAGE ............................................................. 381 16.12 EXPLANATORY: MINIMUM WAGE CREDIT FOR

BOARD AND LODGING ...................................................................................... 382 16.13 EXPLANATORY: OVERTIME COMPENSATION .......................................... 383 16.14 EXPLANATORY: SALARY BASIS .................................................................... J84 16.20 DEFINITION: "HOURS WORKED" ................................................................ 386 16.21 DEFINITION: "WORKWEEK" ......................................................................... 387 16.40 ELEMENTS OF CLAIM ......................................................................................... 388 16.60 ELEMENTS OF DEFENSE: EXECUTIVE EMPLOYEE EXEMPTION ......... 389 16.61 ELEMENTS OF DEFENSE: ADMINISTRATIVE

EMPLOYEE EXEMPTION ................................................................................. 391 16.62 ELEMENTS OF DEFENSE: LEARNED PROFESSIONAL EXEMPTION ... 394 16.63 ELEMENTS OF DEFENSE: CREATIVE PROFESSIONAL EXEMPTION

............................................................... 396 16.64 ELEMENTS OF DEFENSE: COMPUTER EMPLOYEE EXEMPTION .......... 398 16.70 DAMAGES .......................................................................................................... 400 16.71 DAMAGES (ONLY HOURS WORKED SUBMITTED TO JURY) ................. 401 16.72 DAMAGES: WILLFUL VIOLATION ................................................................... 402

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16.80 GENERAL VERDICT FORM ............................................................................... 403 16.90 SPECIAL VERDICT FORM: INTERROGATORIES (DAMAGES) ............... 405 16.91 SPECIAL VERDICT FORM: INTERROGATORIES (HOURS WORKED)

............................................................... 408

17 .. ADMIRALTY AND MARITIME 17.00 OVERVIEW ....................................................................................................... 411 17.10 EXPLANATORY: NEGLIGENCE CLAIM UNDER THE JONES ACT ........ 421 17.11 EXPLANATORY: JONES ACT--CAUSATION .............................................. . 17.12 EXPLANATORY: UNSEAWORTHINESS CLAIM AGAINST EMPLOYER

17.13 EXPLANATORY: UNSEAWORTHINESS CLAIM-CAUSATION ................ .425 17.14 EXPLANATORY: LONGSHORE AND HARBOR WORKERS'

COMPENSATION ACT § 905(b )--TURN-OVER CLAIM--NEGLIGENCE STANDARD ...................................................................................................... .

17.15 EXPLANATORY: MAINTENANCE AND CURE--SUPPLEMENTAL. ......... 429 17.20 DEFINITION: JONES ACT--"COURSE OF EMPLOYMENT" ...................... .430 17.21 DEFINITION: JONES ACT--"NEGLIGENCE" .............................................. .. 17.22 DEFINITION: "SEAMAN" ................................................................................ 432 17.23 DEFINITION: JONES ACT--"VESSEL" ........................................................... . 17.24 DEFINITION: "MARITIME EMPLOYMENT" ............................................... . 17.25 DEFINITION: LONGSHORE AND HARBOR WORKERS'

COMPENSATION ACT "COVERED PLACE OF INJURY'' ......................... .. 17.26 DEFINITION: ''NAVIGABLE WATERS" ......................................................... .438 17.27 DEFINITION: "MAINTENANCE" AND "CURE" .......................................... 439 17.40 ELEMENTS OF CLAIM: NEGLIGENCE CLAIM UNDER THE JONES ACT

............................................................... 440 17.41 ELEMENTS OF CLAIM: UNSEAWORTHINESS CLAIM

AGAINST EMPLOYER ....................................................................................... 443 17.42 ELEMENTS OF CLAIM: LONGSHORE AND HARBOR WORKERS'

COMPENSATION ACT § 905(b)--TURN-OVER CLAIM--ELEMENTS OF CLAIM ............................. .444

17.43 ELEMENTS OF CLAIM: GENERAL MARITIME LAW--NONEMPLOYEE-INVITEE' S NEGLIGENCE CLAIM--ELEMENTS ............. 446

17.44 ELEMENTS OF CLAIM: GENERAL MARITIME LA W--NONEMPLOYEEINVITEE'S CLAIM- CONTRIBUTORY NEGLIGENCE (COMPARATIVE FAULT) .................................................................................................................... 447

17.60 ELEMENTS OF DEFENSE: JONES ACT--CONTRIBUTORY NEGLIGENCE (COMPARATIVE FAULT) .................................................................................... 448

17.70 DAMAGES: COMPENSATORY (GENERAL) ................................................. 451 17.71 DAMAGES: DEATHOFEMPLOYEE ............................................................... 452 17.72 DAMAGES: PUNITIVE ......................................................................................... 453 17.73 DAMAGES: PRESENT VALUE OF FUTURE DAMAGES ........................... . 17.74 DAMAGES: DUTY TO MINIMIZE DAMAGES ............................................. 457 17.75 DAMAGES: COMPENSATORY DAMAGES NOT TAXABLE ..................... .458

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5. TITLE VII CASES 5.00 OVERVIEW (For All Employment Cases)

Section 5 contains model instructions for employment discrimination cases arising under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. As discussed below, a

different set of model instructions should be used for Title VII retaliation cases. See Chapter 10.

Similarly, because there are differences in the language and interpretation of various federal

employment laws, separate chapters and instructions are provided for: age discrimination cases

arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et seq.

(Chapter 6); cases arising under the Equal Pay Act (Chapter 7); harassment I hostile-environment

cases (Chapter 8); disability discrimination cases arising under the Americans with Disabilities

Act (ADA), 42 U.S.C. §12101, et seq. (Chapter 9); race discrimination cases arising under 42

U.S.C. §1981 (Chapter 11); discrimination claims against public employers arising under 42

U.S.C. §1983 (Chapter 12); First Amendment retaliation cases arising under 42 U.S.C. §1983

(Chapter 13); and cases arising under the Family Medical Leave Act (FMLA), 29 U.S. C. §2601,

et seq. (Chapter 14). In all cases, it bears emphasis that these are model instructions and that the

instructions for a particular case must be tailored to the facts and issues presented. This caveat

applies to issues such as damages and affirmative defenses, and it applies most importantly to

the identification of the proper standard for liability under the specific statute in question.

Background

''when the Committee began drafting model civil instructions in 1987, jury trials were not

available in Title VII cases; the ADA and FMLA did not exist; and the standard for liability in

ADEA cases was whether the plaintiff's age was a "determining factor" in the challenged

employment decision. Over the years, a number of developments have changed the legal

landscape:

1. In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court ruled that the

standard for liability in Title VII discrimination cases under 42 U.S.C. §2000e-2(m) is whether

76 5.00

Title VII Cases

the plaintiffs protected status was a "motivating factor" in the challenged employment decision,

regardless of whether the plaintiff is relying on direct or circumstantial evidence.

2. The Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167

(2009), ruled that mixed-motive instructions are never proper in ADEA cases and that the

standard for liability in ADEA cases is whether the plaintiffs age was a "but-for" cause of the

challenged employment decision.

3. The Supreme Court's decision in University ofTexas Southwestern Med. Ctr. v. Nassar

_U.S.__, 133 S. Ct. 2517 (2013), held that the standard for liability in Title VII retaliation

cases is whether the plaintiffs protected activity was a but-for cause of the adverse employment

action in question.

In light of these Supreme Court cases, the standards for liability in Title VII and ADEA

discrimination cases are clear. However, in cases arising under other statutes -- such as the

Americans with Disabilities Act, the Family Medical Leave Act, 42 U.S.C. §1981, and 42 U.S.C.

§ 1983 -- the standard for liability is not as clear. See, e.g., Pedigo v. P.A.M Transport, Inc., 60

F.3d 1300, 1301 (8th Cir. 1995) (holding that the motivating factor/same decision format applies

to discrimination cases arising under the Americans with Disabilities Act); Lewis v. Humboldt

Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (discussing different opinions regarding the

standard for liability in ADA cases and deciding that the correct standard is but-for causation).

Accordingly, trial courts and lawyers should be careful to consider the correct approach

depending on the particular facts of the case and the statute at issue and, if the proper standard

for liability is "clearly unclear," the trial court can cover all bases by eliciting findings under the

"determining factor" and "motivating factor/same decision" standards with, for example, special

interrogatories set forth at Model Instruction 11.90. See, e.g., Hartley v. Dillard's, Inc., 310 F.3d

1054, 1059-60 (8th Cir. 2002) (approving use of 5.91 special interrogatories).

77 5.00

Title VII Cases

5.10 EXPLANATORY: "SAME DECISION"

If you find in favor of the plaintiff under Instruction __ , 1 then you must answer the

following question in the verdict form[s]: Has it been proved2 that the defendant [would have discharged]3 the plaintiff regardless of [(his) (her)] [sex]4?

Notes on Use

1. Fill in the number or title of the essential elements instruction here.

2. Model Instruction 3.04 (Burden of Proof) tells the jury that something is proved only if the jury finds it is more likely true than not true. The phrase "greater weight of the evidence" is not necessary here. It can be included in Instruction 3.04 if desired by the court.

3. This instruction is designed for use in a discharge case. In a "failure to hire," "failure to promote" or "demotion" case, the language within the brackets must be modified.

4. This instruction is designed for use in a gender discrimination case. The language within the brackets must be modified if other forms of discrimination are alleged. The practical effect of a decision in favor of the plaintiff under Model Instruction 5.40, but in favor of the defendant on this question under Title VII, is a judgment for the plaintiff and eligibility for an award of attorney fees but no actual damages. The Committee takes no position on whether the judge should advise the jury or allow the attorneys to argue to the jury the effect of a decision in favor of the defendant on the question set out in this instruction.

Committee Comments

If a plaintiff prevails on the issue of liability by showing that discrimination was a "motivating factor," the defendant nevertheless may avoid an award of damages or reinstatement by showing that it would have taken the same action "in the absence of the impermissible motivating factor." See CRA of91, § 107 (codified at 42 U.S.C. § 2000e-5(g)(2)(B) (1994)). This instruction is designed to submit this "same decision" issue to the jury.

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Title VII Cases

5.11 EXPLANATORY: BUSINESS JUDGMENT

You may not return a verdict for the plaintiff just because you might disagree with the

defendant's (decision)1 or believe it to be harsh or unreasonable.

Notes on Use

1. This instruction makes reference to the defendant's "decision." It may be modified if another term--such as "actions" or "conduct" --is more appropriate.

Committee Comments

In Walker v. AT&T Technologies, 995 F.2d 846 (8th Cir. 1993), the Eighth Circuit ruled that it is reversible error to deny a defendant's request for an instruction which explains that an employer has the right to make subjective personnel decisions for any reason that is not discriminatory. This instruction is based on sample language cited in the Eighth Circuit's opinion. See Walker, 995 F.2d at 849; cf Blake v. J.C. Penney Co., 894 F.2d 274,281 (8th Cir. 1990) (upholding a different business judgment instruction as being sufficient).

79 5.11

5 DEFINITION: PRETEXT

You may find that the plaintiffs (age) (race) (sex)1 was a [motivating] [determining]2

factor in the defendant's (decision)3 if it has been proved4 that the defendant's stated reason(s)

for its (decision) [(is) (are)] not the real reason, but [(is) (are)] a pretext to hide [(age) (sex)

(race)] discrimination. 5

Notes on Use

1. Choose the appropriate word.

2. Choose the same word as used in the elements instruction.

3. This instruction makes references to the defendant's "decision." It may be modified if another term--such as "actions" or "conduct" - would be more appropriate.


5. See Moore v. Robertson Fire Protection Dist., 249 F.3d 786, 790 n.9 (8th Cir. 2001), which states "[w]e do not express any view as to whether it ever would be reversible error for a trial court to fail to give a pretext instruction, though we tend to doubt it."

Committee Comments

The plaintiffs can establish unlawful bias through "either direct evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive." Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1063 (8th Cir. 1988) (emphasis added). "[A ]n employer's submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred." MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1059 (8th Cir. 1988). This instruction, which is based on St. Mary's Honor Center v. Hicks, 509

U.S. 502 (1993), may be used in conjunction with the essential elements instruction when the plaintiff relies substantially or exclusively on "indirect evidence" of discrimination. In an attempt to clarify this standard, the Eighth Circuit, in Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997), stated:

In sum, when the employer produces a nondiscriminatory reason for its actions, the prima facie case no longer creates a legal presumption of unlawful discrimination. The elements of the prima facie case remain, however, and if they are accompanied by evidence of pretext and disbelief of the defendant's proffered explanation, they may permit the jury to find for the plaintiff. This is not to say that, for the plaintiff to succeed, simply proving pretext is necessarily enough. We emphasize that evidence of pretext will not by itself be enough to make a submissible case if it is, standing alone, inconsistent with a reasonable inference of age discrimination.

80 5.20

Id at 837 (footnote omitted).

The Committee believes pretext evidence can support a jury decision when either a motivating or determining factor is required. Ryther v. KARE II, 864 F. Supp. 1510, 1521 (D. Minn. 1994) and Ryther v. KARE, 108 F.3d 832 (8th Cir. 1997).

81 5.20

5.20 DEFINITION: MOTIVATING FACTOR

As used in these instructions, the plaintiff's (sex, gender, race, national origin, religion,

disabilityY was a "motivating factor," ifthe plaintiff's (sex, gender, race, national origin,

religion, disability) played a parf [or a role3]

4 in the defendant's decision to 5 the

plaintiff. However, the plaintiff's (sex, gender, race, national origin, religion, disability) need

not have been the only reason for the defendant's decision to _____ the plaintiff.

Notes on Use

1. Here state the alleged unlawful consideration.

2. See Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101-02 (8th Cir. 1988).

3. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) ("Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.")

4. Case law suggests that other language can be used properly to define "motivating factor." A judge may wish to consider the following alternatives:

The term "motivating factor," as used in these instructions, means a reason, alone or with other reasons, on which the defendant relied when it the plaintiffi, Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989);] or which moved the defendant toward its decision to the plaintiffi, id. at 241 ;] or because of which the defendant ____ _ the plaintiffi, 29 U.S.C. § 623(a)(1) (ADEA); 42 U.S.C. § 2000e-2 (Title VII); 42 U.S.C. § 12112(a) (ADA)].

5. Here state the alleged adverse employment action.

Committee Comments

The Committee recommends giving this definition. A court may decide that the term "motivating factor" need not be defined expressly because its common definition is also the applicable legal definition. "Motivating" is often used in a direct evidence, mixed-motive case brought under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to signify the multiple factors, at least one of which is assertedly unlawful, which caused the adverse employment decision. 42 U.S.C. § 2000e-2(m); Beshears v. Asbill, 930 F.2d 1348, 1353-54 (8th Cir. 1991) (ADEA case); Parton v. GTE North, Inc., 971 F.2d 150, 153 (8th Cir. 1992). "Determining factor" is appropriate in an indirect evidence, pretext case brought under the decisional format of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Ryther v. Kare II, 108 F.3d 832 (8th Cir. en bane 1997); Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101-02 (8th Cir. 1988).

82 5.21

82 5.22

5.40 ELEMENTS OF CLAIM: CONSTRUCTIVE DISCHARGE

First, the defendant made the plaintiff's working conditions intolerable, and

Second, the plaintiffs (age, race, gender, religionY was a motivating factor in the

defendant's actions, and

Third, [the defendant acted with the intent of forcing the plaintiff to quit] or [the

plaintiff's resignation was a reasonably foreseeable result of the defendant's actions]3•

Working conditions are intolerable if a reasonable person in the plaintiffs situation

would have deemed resignation the only reasonable alternative. 4

Notes on Use

1. Appropriate language should be chosen to reflect the alleged basis for the discrimination. Other prohibited conduct, such as retaliation against someone who has complained of discrimination, may be appropriate.

2. If the trial court decides to submit the case under a "determining factor" liability standard, this instruction should be modified and an appropriate definition of the term "determining factor" should be included.

3. Select the appropriate phrase or, in some cases both phrases separated by"or" depending on the evidence. Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 n.13 (8th Cir. 2000) ("To establish her constructive discharge, Ogden needed to show that a reasonable person would have found the conditions of her employ intolerable and that the employer either intended to force her to resign or could have reasonably foreseen she would do so as a result of its actions".) (Emphasis added.)

4. This paragraph aids the jury by providing a definition of what constitutes intolerable working conditions, and explains that the standard is an objective one. See Williams v. City of Kansas City, Missouri, 223 F3d 749, 753-54 (8th Cir. 2000) (Williams did not show that her resignation was objectively reasonable where she quit without giving her employer a chance to fix the problem); see also Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998) (an employee "has an obligation not to assume the worse and jump to conclusions too quickly.").

Committee Comments

This instruction is designed for use in connection with the essential elements instruction in cases where the plaintiff resigned but claims that the employer's discriminatory actions forced

88 5.41

him or her to do so. See Barrett v. Omaha National Bank, 726 F.2d 424, 428 (8th Cir. 1984) ("[ a]n employee is constructively discharged when he or she involuntarily resigns to escape intolerable and illegal employment requirements"); Hukkanen v, International Union of Operating Engineers, Hoisting & Portable Local No. I OJ, 3 F.3d 281,285 (8th Cir. 1993) ("[c]onstructive discharge plaintiffs thus satisfy Bunny Breads' intent requirement by showing their resignation was a reasonably foreseeable consequence of their employer's discriminatory actions," thus, adding an alternative method of meeting the standard announced in Johnson v. Bunny Bread Co., 646 F .2d 1250, 1256 (8th Cir. 1981) (employer's actions "must have been taken with the intention of forcing the employee to quit")). See also Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 n.13 (8th Cir. 2000) ("To establish her constructive discharge, Ogden needed to show that a reasonable person would have found the conditions of her employ intolerable and that the employer either intended to force her to resign or could have reasonably foreseen she would do so as a result of its actions.) (Emphasis added.) This instruction should be used in lieu of the first and second elements in the essential elements instructions. See Model Instructions 5.40 (Title VTI), 6.40 (ADEA), 11.40 and 11.41 (42 U.S.C. § 1981), 12.40 and 12.41 (42 U.S.C. § 1983).

89 5.41

5.70 DAMAGES: ACTUAL

If you find in favor of the plaintiff under Instruction __ 1 and if you answer "no" in

response to Instruction __ 2, then you must award the plaintiff such sum as you find will fairly

and justly compensate the plaintiff for any damages you find the plaintiff sustained as a direct

result of [describe the defendant's decision - e.g., "the defendant's decision to discharge the

plaintiff']. The plaintiff's claim for damages includes three distinct types of damages and you

must consider them separately:

First, you must determine the amount of any wages and fringe benefits3 the plaintiff

would have earned in [(his) (her)] employment with the defendant if [(he) (she)] had not been

discharged on [fill in date of discharge] through the date of your verdict, 4' s, 6 minus the amount of

earnings and benefits that the plaintiff received from other employment during that time.

Second, you must determine the amount of any other damages sustained by the plaintiff,

such as [list damages supported by the evidence]. 7 You must enter separate amounts for each

type of damages in the verdict form and must not include the same items in more than one

category.

[You are also instructed that the plaintiff has a duty under the law to "mitigate" [(his)

(her)] damages- that is, to exercise reasonable diligence under the circumstances to minimize

[(his) (her)] damages. Therefore, if you find that the plaintiff failed to seek out or take

advantage of an opportunity that was reasonably available to [(him) (her)], you must reduce

[(his) (her)] damages by the amount [(he) (she)] reasonably could have avoided if [(he) (she)]

had sought out or taken advantage of such an opportunity.]8

[Remember, throughout your deliberations, you must not engage in any speculation,

guess, or conjecture and you must not award damages under this Instruction by way of

punishment or through sympathy.]9

90 5.70

Notes on Use


2. Fill in the number or title of the "same decision" instruction here.

3. When certain benefits, such as employer-subsidized health insurance, are recoverable under the evidence, this instruction may be modified to explain to the jury the manner in which recovery for those benefits is to be calculated. Claims for lost benefits often present difficult issues as to the proper measure of recovery. See Tolan v. Levi Strauss & Co., 867 F .2d 467, 4 70 (8th Cir. 1989) (discussing different approaches). Some courts deny recovery for lost benefits unless the employee purchased substitute coverage, in which case the measure of damages is the employee's out-of-pocket expenses. Syvockv. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161-62 (7th Cir. 1981); Pearce v. Carrier Corp., 966 F.2d 958 (5th Cir. 1992). Other courts permit the recovery of the amount the employer would have paid as premiums on the employee's behalf. See Fariss v. Lynchburg Foundry, 769 F.2d 958,964-65 (4th Cir. 1985). The Committee expresses no view as to which approach is proper. This instruction also may be modified to exclude certain items which were mentioned during trial but are not recoverable because of an insufficiency of evidence or as a matter of law.

4. In some cases, the defendant will assert some independent post-discharge reason -such as a plant closing or sweeping reduction in force - as to why the plaintiff would have been terminated in any event before trial. See, e.g., Cleverly v. Western Elec. Co., 450 F. Supp. 507, 511 (W.D. Mo. 1978), aff'd, 594 F.2d 638 (8th Cir. 1979). In those cases, this instruction must be modified to submit this issue for the jury's determination.

5. The trial court may decide to set a time limit beyond which an award of future damages would be impermissibly speculative. See Hybert v. Hearst Corp., 900 F .2d 1050, 1056-57 (7th Cir. 1990); Snow v. Pillsbury Co., 650 F. Supp. 299,300-01 (D. Minn. 1986) (ADEA case in which front pay was limited to three years); see also Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1062 (8th Cir. 1988) (district court awarded front pay in lieu of reinstatement; the amount of front pay awarded was determined by the district court and was nearly identical to amount ofback pay). But cf Neufeld v. Searle Lab., 884 F.2d 335, 341 (8th Cir. 1989) (in age discrimination cases, if reinstatement is deemed by the court in its equitable powers to be inappropriate, the plaintiff is presumptively entitled to front pay through normal retirement age unless employer proves evidence to the contrary).

6. Front pay is essentially an equitable remedy "in lieu of' reinstatement and is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (81

h Cir. 1999). If the issue of front pay is submitted to the jury, the jury's determination may be binding. See Doyne v. Union Elec. Co., 953 F.2d 447,451 (8th Cir. 1992). If front pay is awarded, it should be excluded from the statutory limit on compensatory damages provided for in 42 U.S.C. § 1981a(b)(3). See Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620,625-26 (8th Cir. 1998).

7. Under the 1991 amendments to Title VII, a prevailing plaintiff may recover damages for mental anguish and other personal injuries. The types of damages mentioned in § 102 of the

91 5.70

Civil Rights Act of 1991 include "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment oflife, and other nonpecuniary losses." CRA of91, § 102 (codified at 42 U.S.C. § 1981a(b)(3) (1994)).

8. This paragraph is designed to submit the issue of "mitigation of damages" in appropriate cases. See Coleman v. City of Omaha, 714 F.2d 804, 808 (8th Cir. 1983); Fieldler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808-09 (8th Cir. 1982).

9. This paragraph may be given at the trial court's discretion.

Committee Comments

The Civil Rights Act of 1991 makes three significant changes in the law regarding the recovery of damages in Title VII cases. First, the plaintiff prevails on the issue of liability by showing that unlawful discrimination was a "motivating factor" in the relevant employment decision; however, the plaintiff cannot recover any actual damages if the employer shows that it would have made the same employment decision even in the absence of any discriminatory intent. See CRA of91, § 107 (codified at 42 U.S.C. § 2000e-2(g)(2)(B) (1994)). Second, the Civil Rights Act permits the plaintiff to recover general compensatory damages in addition to the traditional employment discrimination remedy of back pay and lost benefits. See CRA of91, § 102 (codified at 42 U.S.C. § 1981a(a) (1994)). Third, the Act expressly limits the recovery of general compensatory damages to certain dollar amounts, ranging from $50,000 to $300,000 depending upon the size of the employer. See CRA of91, § 102 (codified at 42 U.S.C. § 1981a(b) (1994)).

This instruction is designed to submit the standard back pay formula of lost wages and benefits reduced by interim earnings and benefits. See Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808-09 (8th Cir. 1982). This instruction may be modified to articulate the types of interim earnings which should be offset against the plaintiff's back pay. For example, severance pay and wages from other employment ordinarily are offset against a back pay award. See Krause v. Dresser Indus., 910 F.2d 674, 680 (lOth Cir. 1990); Cornetta v. United States, 851 F.2d 1372, 1381 (Fed. Cir. 1988); Fariss v. Lynchburg Foundry, 769 F.2d 958, 966 (4th Cir. 1985). Unemployment compensation, Social Security benefits, and pension benefits ordinarily are not offset against a back pay award. See Doyne v. Union Electric Co., 953 F.2d 447,451-52 (8th Cir. 1992) (holding that pension benefits are a "collateral source benefit"); Dreyer v. Area Chern. Co., 801 F.2d 651, 653 n.1 (3d Cir. 1986) (Social Security and pension benefits not deductible); Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 138-39 (3d Cir. 1986) (unemployment benefits not deductible), overruled on other grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604,615 (1993); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614,

626-27 (6th Cir. 1983) (same). But cf Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (lOth Cir. 1989) (deductibility of unemployment compensation is within trial court's discretion); EEOC V.

Enterprise Ass'n Steamfitters Local No. 638,542 F.2d 579,592 (2d Cir. 1976) (same).

92 5.70

However, because Title VII, as amended by the Civil Rights Act of 1991, no longer limits recovery of damages, the instruction permits the recovery of general damages for pain, suffering, humiliation, and the like.

Because the law imposes a limit on general compensatory damages but does not limit the recovery of back pay and lost benefits, the Committee believes that these types of damages must be considered and assessed separately by the jury. Otherwise, if the jury awarded a single dollar amount, it would be impossible to identify the portion of the award that was attributable to back pay and the portion that was attributable to "general damages." As a result, the trial court would not be able to determine whether the jury's award exceeded the statutory limit.

In some cases, a discrimination plaintiff may be eligible for front pay. Because front pay is essentially an equitable remedy "in lieu of' reinstatement, this remedy traditionally has been viewed as an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997). Ifthe trial court submits the issue of front pay to the jury, the jury's determination may be binding. See Doyne v. Union Elec. Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).

In Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620 (8th Cir. 1998), the court ruled that "front pay is an equitable remedy excluded from the statutory limit on compensatory damages provided for in [42 U.S.C.] § 1981a(b)(3)." !d. at 626.

Although the Civil Rights Act of 1991 expressly limits the amount of compensatory and punitive damages depending upon the size of the employer, section 102 of the Act expressly states that the jury must not be advised on any such limitation. Instead, the trial court will simply reduce the verdict by the amount of any excess.

93 5.70

5.70 DAMAGES: NOMINAL

If you find in favor of the plaintiff under Instruction __ 1 and if you answer "no" in

response to Instruction __ 2, but you find that the plaintiffs damages have no monetary value,

then you must return a verdict for the plaintiff in the nominal amount of One Dollar ($1.00).3

Notes on Use

1. Fill in the number or title ofthe essential elements instruction (5.40) here.

2. Fill in the number or title of the "same decision" instruction (5.10) here.

3. One Dollar ($1.00) arguably is the required amount in cases in which nominal damages are appropriate. Nominal damages are appropriate when the jury is unable to place a monetary value on the harm that the plaintiff suffered from the violation of his rights. See Dean

v. Civiletti, 670 F.2d 99, 101 (8th Cir. 1982) (Title VII); cf Cowans v. Wyrick, 862 F.2d 697-99 (8th Cir. 1988) (in prisoner civil rights action, nominal damages are appropriate where the jury cannot place a monetary value on the harm suffered by the plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).

Committee Comments

Most employment discrimination cases involve lost wages and benefits. In some cases, however, the jury may be permitted to return a verdict for only nominal damages. For example, if the plaintiff was given severance pay and was able to secure a better paying job, the evidence may not support an award of back pay, but may support an award of compensatory damages. Similarly, in a sexual harassment case in which the plaintiff does not suffer any lost wages or benefits, the jury may find for the plaintiff but award no actual damages. This instruction is designed to submit the issue of nominal damages in appropriate cases.

94 5.71

Title VII Cases

5.71 DAMAGES: PUNITIVE

In addition to the damages mentioned in other instructions, the law permits the jury under

certain circumstances to award punitive damages.

If you find in favor of the plaintiff under Instruction(s) ___ ,, 1 and if you answer "no"

in response to Instruction , 2 then you must decide whether the defendant acted with malice

or reckless indifference to the plaintiffs right not to be discriminated against3 on the basis of

[(his) (her)] (sex).4 The defendant acted with malice or reckless indifference if:

it has been proved5 that [insert the name(s) of the defendant or manager6 who terminated6

the plaintiff] knew that the (terminationf was in violation of the law prohibiting (sex)

discrimination, or acted with reckless disregard of that law.8

[However, you may not award punitive damages if it has been proved that the defendant made a

good-faith effort to comply with the law prohibiting (sex)4 discriminationt

If you find that the defendant acted with malice or reckless indifference to the plaintiff's

rights [and did not make a good-faith effort to comply with the law], then, in addition to any

other damages to which you find the plaintiff entitled, you may, but are not required to, award

the plaintiff an additional amount as punitive damages for the purposes of punishing the

defendant for engaging in such misconduct and deterring the defendant and others from

engaging in such misconduct in the future. You should presume that a plaintiff has been made

whole for [his, her, its] injuries by the damages awarded under Instruction __ .10

If you decide to award punitive damages, you should consider the following in deciding

the amount of punitive damages to award:

1. How reprehensible the defendant's conduct was.11 In this regard, you may consider

[whether the harm suffered by the plaintiff was physical or economic or both; whether there was

violence, deceit, intentional malice, reckless disregard for human health or safety; whether the

defendant's conduct that harmed the plaintiff also posed a risk of harm to others; whether there

was any repetition of the wrongful conduct and past conduct of the sort that harmed the

plaintiff]. 12

95 5.72

Title VII Cases

2. How much harm the defendant's wrongful conduct caused the plaintiff [and could

cause the plaintiff in the future]. 13 [You may not consider harm to others in deciding the amount

of punitive damages to award.r4

3. What amount of punitive damages, in addition to the other damages already awarded,

is needed, considering the defendant's financial condition, to punish the defendant for [his, her,

its] wrongful conduct toward the plaintiff and to deter the defendant and others from similar

wrongful conduct in the future.

4. [The amount of fines and civil penalties applicable to similar conduct].15

The amount of any punitive damages award should bear a reasonable relationship to the

harm caused to the plaintiff.16

[You may assess punitive damages against any or all defendants or you may refuse to

impose punitive damages. If punitive damages are assessed against more than one defendant,

the amounts assessed against such defendants may be the same or they may be different.] 17

[You may not award punitive damages against the defendant[ s] for conduct in other

states.f8

Notes on Use


2. Fill in the number or title of the "same decision" instruction if applicable.

3. Although a finding of discrimination ordinarily subsumes a finding of intentional misconduct, this language is included to emphasize the threshold for recovery of punitive damages. Under the Civil Rights Act of 1991, the standard for punitive damages is whether the defendant acted "with malice or with reckless indifference to the [plaintiff's] federally protected rights." CRA of91, § 102 (codified at 42 U.S.C. § 1981a(b)(l)).

4. This instruction is designed for use in a gender discrimination case. It must be modified if other forms of discrimination are alleged.


6. Use the name of the defendant, the manager who took the action, or other descriptive phrase such as "the manager who fired the plaintiff."

7. This language is designed for use in a discharge case. In a "failure to hire," "failure to promote," "demotion," or "constructive discharge" case, the language must be modified.

96 5.72

Title VII Cases

8. See Kolstad v. American Dental Ass 'n, 527 U.S. 526, 535, 536 (1999) (holding that '"malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination" and that "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages"); Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 903 (citing Kolstad and observing that an award of punitive damages may be inappropriate when the underlying theory of discrimination is novel or poorly recognized or "when the employer (1) is unaware federal law prohibits the relevant conduct, (2) believes the discriminatory conduct is lawful, or (3) reasonably believes there is a bona fide occupational qualification defense for the discriminatory conduct").

9. Use this phrase only if the good faith of the defendant is to be presented to the jury. This two-part test was articulated by the United States Supreme Court in Kolstad v. American Dental Ass 'n, 527 U.S. 526 (1999). For a discussion of the case, see the Committee Comments. It is not clear from the case who bears the risk of nonpersuasion on the good-faith issue. The Committee predicts that case law will place the burden on the defendant to raise the issue and prove it.

10. Fill in the number or title of the actual damages or nominal damages instruction here.

11. The word "reprehensible" is used in the same sense as it is used in common parlance. The Supreme Court, in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003), stated: "It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." In Philip Morris USA v. Williams, 549 U.S. 346, 355, 127 S. Ct. 1057, 1064-65 (2007), the Supreme Court held that, while harm to persons other than the plaintiff may be considered in determining reprehensibility, a jury may not punish for the harm caused to persons other than the plaintiff. The Court stated that procedures were necessary to assure "that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers." Id. at 355.

12. Any item not supported by the evidence, of course, should be excluded.

13. This sentence may be used if there is evidence of future harm to the plaintiff.

14. A paragraph instructing the jury that any punitive damages award should not include an amount for harm suffered by persons who are not parties to the case may be necessary if evidence concerning harm suffered by nonparties has been introduced. See Philip Morris USA v. Williams, 549 U.S. at 355; State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-24 (2003); Williams v. ConAgra Poultry Co., 378 F.3d 790, 797-98 (8th Cir. 2004).

15. Insert this phrase only if evidence has been introduced, or the court has taken judicial notice, of fines and penalties for similar conduct. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996), noting "civil penalties authorized in comparable cases" as a guidepost to be considered. See also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,428 (2003).

97 5.72

Title VII Cases

16. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (stating that "in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process" and observing that: "Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1 [citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 582 (1996)] or, in this case, of 145 to 1.").

17. The bracketed language is available for use if punitive damages claims are submitted against more than one defendant.

18. If evidence has been introduced concerning conduct by the defendant that was legal in the state where it was committed, the jury must be told that they cannot award punitive damages against the defendant for such conduct. See State Farm Mut. Auto. Inc. Co. v. Campbell, 538 U.S. 408, 422 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 559, 572-73 (1996); Williams v. ConAgra Poultry Co., 378 F.3d 790, 797-98 (8th Cir. 2004). This issue normally will not come up in cases under federal law. In any case in which evidence is admitted for some purposes but may not be considered by the jury in awarding punitive damages, the court should give an appropriate limiting instruction.

Committee Comments

Under the Civil Rights Act of 1991, a Title VII the plaintiff may recover damages by showing that the defendant engaged in discrimination "with malice or with reckless indifference to [his or her] federally protected rights." See 42 U.S.C. § 1981a(b)(l). See also Model Instruction 4. 72, supra, on punitive damages and Pacific Mut. Life Ins. Co. v. Has lip, 499 U.S. 1 (1991). In 1999, the United States Supreme Court explained that the terms "malice" and "reckless" ultimately focus on the actor's state of mind. Kolstad v. American Dental Ass 'n, 527 U.S. 526, 535 (1999). The Court added that the terms pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination. Id. To be liable for punitive damages, the employer must at least discriminate in the face of a perceived risk that its actions will violate federal law. Id. at 536. Rejecting the conclusion of the lower court that punitive damages were limited to cases involving intentional discrimination of an "egregious" nature, the Court held that a plaintiff is not required to show egregious or outrageous discrimination independent of the employer's state of mind. Id at 546.

The Kolstad case also established a good-faith defense to place limits on an employer's vicarious liability for punitive damages. Recognizing that Title VII and the ADA are both efforts to promote prevention of discrimination as well as remediation, the Court held that an employer may not be vicariously liable for the discriminatory decisions of managerial agents where those decisions are contrary to the employer's good-faith efforts to comply with Title VII or the ADA. I d. at 545. The Court does not clarify which party has the burden of proof on the issue of good faith.

This instruction attempts to incorporate the constitutionally relevant principles set forth by the Supreme Court in Philip Morris USA v. Williams, 549 U.S. 346 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003),BMWofNorthAmerica, Inc. v. Gore, 517U.S.

98 5.72

Title VII Cases

559 (1996), Honda Motor Co. v. Oberg, 512 U.S. 415 (1994), and TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 459-62 (1993). In State Farm, 538 U.S. at 417, the Court observed: "We have admonished that '[p]unitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences."' (quoting Honda Motor, 512 U.S. at 432). See Baker v. John Morrell & Co., 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), aff'd, 382 F.3d 816 (8th Cir. 2004), and In Re Exxon Valdez, 296 F. Supp. 2d 1071, 1080 (D. Alaska 2004), for examples of punitive damages instructions in which the court attempted to incorporate constitutional standards.

The last paragraph is based on State Farm, 538 U.S. at 421, in which the Court held that: "A state cannot punish a defendant for conduct that may have been lawful where it occurred .... Nor, as a general rule, does a State have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction." The Court specifically mandated that: "A jury must be instructed, furthermore, that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred." State Farm, 538 U.S. at 422.

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Title VII Cases

5.80 GENERAL VERDICT FORM

VERDICT

Note: Complete the following paragraph by writing in the name required by your verdict.

On the [(sex)1 discriminationf claim of plaintiff [Jane Doe], [as submitted in Instruction

__ ]3

, we find in favor of:

(Plaintiff Jane Doe) or (Defendant XYZ, Inc.)

Note: Answer the next question only if the above finding is in favor of the plaintiff. If the above finding is in favor of the defendant, have your foreperson sign and date this form because you have completed your deliberations on this claim.

Has it been proved4 that the defendant would have discharged the plaintiff regardless of

[(his) (her)] (sex)?5

___ Yes No (Mark an "X" in the appropriate space)

Note: Complete the following paragraphs only if your answer to the preceding question is "no." If you answered "yes" to the preceding question, have your foreperson sign and date this form because you have completed your deliberations on this claim.

We find the plaintiffs lost wages and benefits through the date of this verdict to be:

$ ____ (stating the amount or, if none, write the word "none").

We find the plaintiffs other damages, excluding lost wages and benefits, to be:

$ (stating the amount [or, if you fmd that the plaintiffs damages do

not have a monetary value, write in the nominal amount of One Dollar ($1.00)]).

100 5.80

Title VII Cases

[We assess punitive damages against the defendant, as submitted in Instruction __ , as

follows:

$ ____ (stating the amount or, if none, write the word "none").]6

Foreperson

Dated: -----------

Notes on Use

1. This verdict form is designed for use in a gender discrimination case. It must be modified if the plaintiff is claiming discrimination based on race, religion, or some other

prohibited factor.

2. The bracketed phrase should be submitted when the plaintiff submits multiple claims to the jury.

3. The number or title of the "essential elements" instruction may be inserted here. See Model Instruction 5.40.


5. This question submits the "same decision" issue to the jury. See Model Instruction 5.10.

6. This paragraph should be included ifthe evidence is sufficient to support an award of punitive damages. See Model Instruction 5. 72.

101 5.80

Title VII Cases

5.81 GENERAL VERDICT FORM

Note: Complete the following paragraph by writing in the name required by your verdict.

On the [(sexY discrimination]2 claim of plaintiff [Jane Doe], [as submitted in

Instruction_]3, we find in favor of:

(Plaintiff Jane Doe) or (Defendant XYZ, Inc.)

Note: Answer the next question only ifthe above finding is in favor of the plaintiff. If the above finding is in favor of the defendant, have your foreperson sign and date this form because you have completed your deliberations on this claim.

Question No. 1: Has it been proved4 that the defendant would have discharged5 the

plaintiff on [date on which the plaintiff was discharged] regardless of [(his) (her)] (sex)?6

Yes No ----(Mark an "X" in the appropriate space)

Note: Complete the following paragraphs only if your answer to the preceding question is "no." If you answered "yes" to the preceding question, have your foreperson sign and date this form because you have completed your deliberations on this claim.

Question No.2: Has it been proved that, even if the plaintiff had not been terminated on

[insert appropriate datef, the defendant would have terminated the plaintiffs employment by

[insert appropriate date] because [insert brief explanation of the defendant's after-acquired

reason for termination.]8?

__ Yes __ No (Mark an "X" in the appropriate space)

102 5.81

Title VII Cases

Note: Continue on to the following paragraphs regardless of how you answered Question No. 2.

We assess the plaintiff's damages as follows:

A. Lost wages and benefits from [date of actual termination] through [date

used in after-acquired evidence instruction]:

$ (stating the amount [or, if none, write the word "none"])

B. Lost wages and benefits from [date used in after-acquired evidence

instruction] through the date of your verdict9:

$ (stating the amount [or, if none, write the word "none"])

C. The plaintiff's other damages, excluding past and future lost wages and benefits:

$ ____ (stating the amount [or, if you find that the plaintiff's damages do

not have a monetary value, write in the nominal amount of One

Dollar ($1.00)]).10

[We assess punitive damages against the defendant, as submitted in Instruction __ , as

follows:

$ (stating the amount or, if none, write the word "none").] 11

Foreperson

Dated: ________ _

103 5.81

Title VII Cases

Notes on Use

1. This verdict form is designed for use in a gender discrimination case. It must be modified if the plaintiff is claiming discrimination based on race, religion, age, or some other theory factor.

2. The bracketed phrase should be submitted when the plaintiff submits multiple claims to the jury.

3. The number or title of the "essential elements" instruction may be inserted here.


5. See Model Instruction 5.81 n.5.

6. This question submits the "same decision" issue to the jury. See Model Instruction 5.10.



9. Although the after-acquired evidence defense would bar recovery of economic damages accruing after the date of discovery of the after-acquired basis for termination, Subparagraph B nevertheless is designed to elicit this finding in the event the after-acquired evidence defense is overruled as a matter oflaw via post-trial motions or appeal. Front pay is an equitable issue for the judge to decide. Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir. 1999) (Title VII case).

10. The Committee takes no position on whether (or to what degree) the after-acquired evidence defense might impact the recovery of compensatory damages. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) was an ADEA case in which the plaintiff's remedy was limited to economic damages.

11. This paragraph should be included ifthe evidence is sufficient to support an award of punitive damages. See Model Instruction 5. 72.

Committee Comments

This model instruction illustrates the modifications to the verdict form in cases where the after-acquired evidence defense is submitted. See Model Instruction 5.22; see also Model Instructions 5.80 (Title VII Verdict Form); 6.80 (ADEA Verdict Form); 11.80 (§ 1981 Verdict Form); 12.80 (§ 1983 Verdict Form); 13.80 (First Amendment Verdict Form).

104 5.81

Title VII Cases

5.90 SPECIAL VERDICT FORM: SPECIAL INTERROGATORIES

IN BORDERLINE PRETEXT/MIXED-MOTIVE CASES

Your verdict in this case will be determined by your answers to the following questions.

Read the questions and notes carefully because they explain the order in which the questions

should be answered and which questions may be skipped.

Question No. 1: Has it been proved1 that the plaintiff's (race)2 was a determining factor

in the defendant's decision to (discharge)3 [(him) (her)]? "(Race) was a determining factor" only

if the defendant would not have (discharged) the plaintiff but for the plaintiff's (race). It does

not require that (race) was the only reason for the decision made by the defendant.4 [You may

find that (race) was a determining factor if it has been proved that the defendant's stated

reason( s) for its decision are not the real reason( s ), but are a pretext to hide (race)

discrimination. )5

__ Yes __ N.o(Mark

an "X" in the appropriate space.)

Note: If you answered "yes" to Question No. 1, skip Questions 2 and 3, and continue on to Questions 4 and 5. If you answered "no" to Question No. 1, proceed to Question No.2.

Question No.2: Has it been proved that the plaintiffs (race) was a motivating factor5 in

the defendant's decision to (discharge) [(him) (her)]? (Race) was a "motivating factor" if the

plaintiff's (race) played a part [or a role] in the defendant's decision to (discharge) the plaintiff.

However, the plaintiffs (race) need not have been the only reason for the defendant's decision to

(discharge) the plaintiff. [You may find that (race) was a motivating factor if it has been proved

that the defendant's stated reason(s) for its decision are not the real reason(s), but are a pretext to

hide (race) discrimination.f

__ Yes __ N.o

105 5.90

Title VII Cases

(Mark an "X" in the appropriate space.)

Note: If you answered "yes" to Question No.2, continue on to Question No.3. If you answered "no" to Question No. 1 and "no" to Question No.2, you should have your foreperson sign and date this form because you have completed your deliberations on this (race) discrimination claim.

Question No.3: Has it been proved that the defendant would have (discharged) the

plaintiff regardless of [(his) (her)] race)?

___ Yes ___ No

(Mark an "X" in the appropriate space.)

Note: Answer Questions 4 and 5 only if you answered "yes" to Question No. 1 or if you answered '"yes" to Question No.2 and "no" to Question No.3. If you answered "yes" to Question No.3, have your foreperson sign and date this form because you have completed your deliberations on this (race )-discrimination claim.

Question No.4: State the amount of the plaintiffs actual damages as that term is defined

in Instruction :8 $ (stating the amount [or, ifyou find that the

plaintiffs damages have no monetary value, write in the nominal amount of One Dollar

($1.00) ]).9

Question No. 5: What amount, if any, do you assess for punitive damages as that term is

defined in Instruction ? 9 $ _________ (stating the amount or, if none, write

the word "none").

Foreperson

Date:

106 5.90

Title VII Cases

Notes on Use


2. This set of interrogatories is designed for use in race discrimination cases under 42 U.S.C. § 1981, in which it is unclear whether the correct standard for liability is "determining factor" or "motivating factor." It also may be appropriate in cases filed under 42 U.S.C. § 1983, the anti-retaliation provision of Title VII, or the Family Medical Leave Act. See Introduction to Section 5.

3. These interrogatories are designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the interrogatories must be modified. Where the plaintiff resigned but claims that he or she was "constructively discharged," an additional interrogatory should be given as a threshold to the interrogatories shown above and the subsequent interrogatories will have to be renumbered. See Model Instruction 5 .41.

4. The explanation of the phrase "(race) was a determining factor" is based on Grebin v. Sioux Falls lndep. School Dist. No. 49-5,779 F.2d 18,20 n.1 (8th Cir. 1985).

5. The bracketed phrase may be added at the court's option.

6. The Committee believes that the term "motivating factor" should be defined. See Model Instruction 5.21.

7. The bracketed phrase may be added at the court's option.

8. Fill in the number of the "actual damages" instruction here. See Model Instruction 11.70 (§ 1981 cases), 12.70 (§ 1983 cases), 5.70 (Title VII retaliation cases).

9. Fill in the number of the "punitive damages" instruction here. See, e.g., Model Instruction 11. 72.

Committee Comments

In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court ruled that "motivating factor/same decision" instructions should be given in Title VII discrimination cases, regardless of whether the plaintiff relies on "direct evidence" or circumstantial/pretext evidence. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009), the Supreme Court ruled that "motivating factor/same decision" burden-shifting instructions should not be given in ADEA cases.

The Costa and Gross decisions did not address whether the direct evidence/pretext distinction (and the corresponding use of a "motivating factor/same decision" or "determining factor" standard) remains viable in cases filed under§ 1981, § 1983, the anti-retaliation provision of Title VII, or the FMLA.

107 5.90

Title VII Cases

These special interrogatories are designed for use when the trial court believes that the mixed motive/pretext distinction may still exist. For example, if the plaintiff files suit under section 1981 and offers "direct evidence" of race discrimination, these interrogatories will permit the court to create a complete record to permit analysis under either theory.

Question No. 1 is designed to test the ultimate issue in a "pretext" case of whether the plaintiffs race or other protected characteristics was a "determining factor" in the employment decision being challenged. As reflected in the note following Question No. 1, the plaintiff prevails under either a pretext or mixed motive theory if the jury finds that unlawful discrimination was a "determining factor." Thus, analysis on the issue ofliability should end if the jury answers "yes" to Question No. 1. The jury must go on to Question No. 2 only if it has not been proved that discrimination was a "determining factor."

Question No. 2 is designed to test the proof on the "motivating factor" issue. The note following Question No. 2 directs the jury to continue in its analysis only if it answers "yes" to this question. If the jury does not find that unlawful discrimination was a motivating factor, judgment should be entered for the defendant on this claim.

Question No.3 is designed to reach the fmal issue in a "mixed motive" case. As noted above, the plaintiff clearly prevails if the jury answers "yes" to Question No. 1 and the defendant clearly prevails if the jury reaches and answers "no" to Question No.2. It also is clear that the defendant prevails if the jury reaches and answers ''yes" to Question No.3. Thus, the court will need to revisit the issue of whether a case should be classified as "mixed motive" or "pretext" only if the jury reaches Question No. 3 and only if the jury answers "no" to that question. Based on this set of jury fmdings, the plaintiff prevails if the case is classified under a "mixed motive" theory, while the defendant prevails if the case is classified under a "pretext" case theory.

Questions 1, 2 and 3 are to be submitted in lieu of an elements instruction. However, actual damages and, if appropriate, a punitive damages instruction (or a "good faith" instruction in FMLA cases) must also be submitted. The Committee makes no recommendation regarding whether all issues should be submitted to the jury simultaneously or whether jury deliberations should be bifurcated, with the issues of actual damages and punitive damages (or "good faith") being submitted separately from Questions 1, 2 and 3.

108 5.90

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF lOW A

WESTERN DIVISION

EDWARD P. HAGEN,

Plaintiff, No. C 11-4047-MWB

vs.

SIOUXLAND OBSTETRICS & GYNECOLOGY, P.C., an Iowa corporation; PAUL J. EASTMAN; TAUHNI T. HUNT; and ANGELA J. ALDRICH,

INSTRUCTIONS TO THE JURY

Defendants.

TABLE OF CONTENTS

INSTRUCTIONS No. 1 o- INTRODUCTION ...................................................... 1 o No. 2o- BURDEN OF PROOF ................................................. 3o No. 3o- DEFINITION OF EVIDENCE ....................................... 4o No. 4o- TESTIMONY OF WITNESSES ..................................... 7o No. 5o- WRONGFUL DISCHARGE .......................................... 9o No. 6o- DAMAGES IN GENERAL ......................................... 13o No. 7o- COMPENSATORY DAMAGES .................................. 15o No. 8o- NOMINAL DAMAGES ............................................. 18o No. 9o- PUNITIVE DAMAGES ............................................. 19o No. lOs- OUTLINE OF THE TRIAL ........................................ 23o No. lls- OBJECTIONS ......................................................... 25o No. 12s- BENCH CONFERENCES .......................................... 26o No. 13s- NOTE-TAKING ...................................................... 27o No. 14s- QUESTIONS BY JURORS ......................................... 28o No. 15s- CONDUCT OF JURORS DURING TRIAL ..................... 29o No. 16s- DELIBERATIONS ................................................... 32o

VERDICT FORM

No. 1 - INTRODUCTION

Congratulations on your selection as a juror!

These Instructions are to help you better understand the trial and your role

in it.

As I explained during jury selection, this is an action by plaintiff

Dr. Edward P. Hagen against his former medical practice, defendant Siouxland

Obstetrics & Gynecology, P.C., (Siouxland), and the other shareholders in the

practice at the time of his discharge, defendant doctors Paul J. Eastman, Tauhni

T. Hunt, and Angela J. Aldrich. Dr. Hagen asserts that the defendants

wrongfully discharged him in violation of public policy on or about November

16, 2009. The defendants deny Dr. Hagen's claims.

You have been chosen and sworn as jurors to try the issues of fact related

to Dr. Hagen's claim. In making your decisions, you are the sole judges of the

facts. You must not decide this case based on personal likes or dislikes,

generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The

law demands that you return a just verdict, based solely on the evidence, your

individual evaluation of that evidence, your reason and common sense, and these

Instructions. Do not take anything that I have said or done or that I may say or

do as indicating what I think of the evidence or what I think your verdict should

be.

You should consider and decide this case as an action between persons of

equal standing in the community, of equal worth, and holding the same or similar

stations in life. Individuals, like Dr. Hagen, Dr. Eastman, Dr. Hunt, and

1

Dr. Aldrich, and business entities, like Siouxland, stand equal before the law,

and each is entitled to the same fair consideration.

However, a business entity, like Siouxland, can act only through its

employees, officers, and directors. Any employee, officer, or director of

Siouxland may bind Siouxland by acts and statements made while acting within

the scope of the authority delegated to that person by Siouxland.

Also, please remember that this case is important to the parties and to the

fair administration of justice. Therefore, please be patient, consider all of the

evidence, and do not be in a hurry to reach a verdict just to be,fmished with the

case.

In these Instructions, I will explain how you are to determine whether or

not Dr. Hagen has proved his claim. A claim consists of "elements," which are

the factual parts of the claim. Therefore, to prove his claim, Dr. Hagen must

prove all of its elements.

Before explaining the elements of Dr. Hagen's "wrongful discharge"

claim, I will explain some preliminary matters, including the burden of proof,

what is evidence, and how you are to treat the testimony of witnesses.

2

No. 2 - BURDEN OF PROOF

Your verdict depends on what facts have been proved. Unless I tell you

otherwise, facts must be proved "by the greater weight of the evidence." This

burden of proof is sometimes called "the preponderance of the evidence."

"Proof by the greater weight of the evidence" is proof that a fact is more

likely true than not true.

D It does not depend on which side presented the greater number of

witnesses or exhibits

D It requires you to consider all of the evidence and decide which

evidence is more convincing or believable

0 For example, you may choose to believe the testimony of one

witness, if you find that witness to be convincing, even if a

number of other witnesses contradict that witness's testimony

0 You are free to disbelieve any testimony or other evidence that

you do not fmd convincing or believable

D If, on any issue in the case, you find that the evidence is equally

balanced, then you cannot fmd that the issue has been proved

You may have heard that criminal charges require "proof beyond a

reasonable doubt." That is a stricter standard that does not apply in a civil case,

such as this one.

3

No. 3 - DEFINITION OF EVIDENCE

Evidence is

D Testimony

0 Testimony may be either "live" or "by deposition"

0 A "deposition" is testimony taken under oath before the trial

and preserved in writing or on video

0 Consider "deposition" testimony as if it had been given m

court

D Answers to interrogatories

0 An interrogatory is a written question asked before trial by

one party of another, who must answer it under oath in

writing

0 Consider interrogatories and the answers to them as if the

questions had been asked and answered here in court

D Exhibits admitted into evidence

0 Just because an exhibit may be shown to you does not mean

that it is more important than any other evidence

D Stipulations

0 Stipulations are agreements between the parties

0 If the parties stipulate that certain facts are true, then you must

treat those facts as having been proved

4

Evidence is not

D Testimony that I tell you to disregard

D Exhibits that are not admitted into evidence

D Statements, arguments, questions, and comments by the lawyers

D Objections and rulings on objections

D Anything that you see or hear about this case outside the courtroom

You may have heard of" direct" or "circumstantial" evidence.

D "Direct" evidence is direct proof of a fact

0 An example is testimony by a witness about what that witness

personally saw or heard or did

D "Circumstantial" evidence is proof of one or more facts from which

you could fmd another fact

0 An example is testimony that a witness personally saw a

broken window and a brick on the floor from which you could

find that the brick broke the window

D You should consider both kinds of evidence, because the law makes

no distinction between their weight

Some evidence may be admitted only for a limited purpose.

D I will tell you if that happens

D I will instruct you on the purposes for which the evidence can and

cannot be used

5

The weight to be given any evidence-whether that evidence is "direct" or

"circumstantial," or in the form of testimony, an exhibit, or a stipulation-is for

you to decide.

6

No. 4 - TESTIMONY OF WITNESSES

You may believe all of what any witness says, only part of it, or none of it.

In evaluating a witness's testimony, consider the following:

0 the witness's

D intelligence

D memory

0 opportunity to have seen and heard what happened

D motives for testifying

0 interest in the outcome of the case

D manner while testifying

0 drug or alcohol use or addiction, if any

0 the reasonableness of the witness's testimony

0 any differences between what the witness says now and said earlier

0 any inconsistencies between the witness's testimony and any other

evidence that you believe

0 whether any inconsistencies are the result of seeing or hearing things

differently, actually forgetting things, or innocent mistakes, or are,

instead, the result of lies or phony memory lapses, and

0 any other factors that you find bear on believability or credibility

You should not give any more or less weight to a witness's testimony just

because the witness is an expert.

7

You may g1ve any witness's opm10n whatever weight you think it

deserves, but you should consider

D the reasons and perceptions on which the opinion is based

D any reason that the witness may be biased, and

D all of the other evidence in the case

It is your exclusive right to give any witness's testimony whatever weight

you think it deserves.

8

No. 5 - WRONGFUL DISCHARGE

Dr. Hagen claims that he was wrongfully discharged from his employment

with Siouxland on November 16, 2009, in violation of public policy. The

defendants deny that Dr. Hagen was discharged for any reason that violated

public policy.

To win on his "wrongful discharge" claim, Dr. Hagen must prove all of

the following elements by the greater weight of the evidence:

One, Dr. Hagen was employed by Siouxland.

The parties agree that Dr. Hagen was employed by Siouxland.

Two, Dr. Hagen engaged in conduct protected by public policy.

The following conduct, if engaged in by Dr. Hagen, is protected by Iowa public policy:

D Dr. Hagen reporting, stating an intention to report, or stating that he might report to the Iowa Board of Medicine conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, negligence, or malpractice

D Dr. Hagen reporting, stating an intention to report, or stating that he might report to a hospital conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, negligence, or malpractice

D Dr. Hagen reporting, stating an intention to report, or stating that he might report to a

9

hospital conduct of nurses that Dr. Hagen believed may have involved wrongful acts or OmiSSIOnS

0 Dr. Hagen disclosing to a patient or a patient's family that the patient may have been the victim of negligent care or malpractice

0 Dr. Hagen consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney about whether Dr. Eastman or nurses had committed wrongful acts or omissions that Dr. Hagen should report to the Iowa Board of Medicine or a hospital

You must unanimously agree which one or more, if any, of these kinds of conduct Dr. Hagen engaged in. If he did not engage in any such conduct, then your verdict must be for the defendants on this claim.

Three, Siouxland discharged Dr. Hagen from his employment.

The parties agree that Dr. Hagen was discharged from his employment with Siouxland on or about November 16, 2009.

Four, Dr. Hagen's conduct protected by public policy was the

determining factor in Siouxland's decision to discharge him.

A determining factor

0 need not be the mam reason behind the decision, but

0 must be the reason that tips the scales decisively one way or the other

10

Siouxland must have known of the protected activity before it made the decision to discharge Dr. Hagen.

A short time between Dr. Hagen engaging in the protected activity and his discharge

0 is not enough, by itself, to find that the protected activity was the determining factor in the discharge, but

0 may be suspicious, in light of other evidence that the discharge was for engaging in protected activity

You should consider whether or not there are other legitimate reasons or motives for the discharge.

0 If the defendants offer other reasons for the discharge, you must determine whether those other reasons are merely pretexts for a discharge for engaging in protected activity

0 You may find that a reason is a pretext if it was not the real reason, but is a reason given to hide a discharge for engaging in protected activity

0 If the reasons offered by Siouxland are legitimate and not pretexts, you must determine whether any protected conduct by Dr. Hagen was nevertheless the determining factor in his discharge

Five, the wrongful discharge caused injury to Dr. Hagen.

An injury to Dr. Hagen was caused by the wrongful discharge, if Dr. Hagen would not have

11

suffered the same injury if Siouxland had not discharged him.

If Dr. Hagen does not prove all of these elements by the greater weight of

the evidence, then you must fmd in favor of the defendants on Dr. Hagen's

"wrongful discharge" claim. On the other hand, if Dr. Hagen does prove all of

these elements by the greater weight of the evidence, then you must consider his

claim for "damages" for "wrongful discharge," as damages are explained in the

next four Instructions.

12

No. 6 - DAMAGES IN GENERAL

The fact that I am instructing you on damages is not an indication that I

have any view as to whether Dr. Hagen has proved his

"wrongful discharge" claim. Rather, I am giving you instructions on damages

for your guidance, if you find that Dr. Hagen has proved his "wrongful

discharge" claim, in accordance with the other instructions.

I will explain in the next Instructions how you are to determine

Dr. Hagen's specific damages, if he prevails on his "wrongful discharge" claim.

First, however, I will explain some general rules for awarding damages.

If you find in favor of Dr. Hagen on his claim, then you must determine

the amount of damages to which he is entitled. You must award Dr. Hagen such

sum as you find will fairly and justly compensate him for any damages that you

find he sustained as a direct result of the defendants' wrongful discharge.

In deciding what amounts, if any, to award for damages,

• Decide what damages, if any, have been proved, based upon the

evidence

• Do not base the amount of any compensatory damages upon

speculation, guesswork, conjecture, sympathy, a desire to punish, or

prejudice

Do not decide the amount of damages by taking down the estimate of

each juror and agreeing in advance that the average of those

estimates will be your award of damages; instead, use your sound

judgment based upon an impartial consideration of the evidence

13

• Do not allow amounts awarded under one item of compensatory

damages to be included in any amount awarded under another item

of compensatory damages

• Dr. Hagen had a duty to mitigate his damages

:l A duty to "mitigate" damages is a duty to exercise ordinary

care to reduce, minimize, or limit his damages

'~J It is not a duty to do something unreasonable under the

to mitigate his damages by the greater weight of the evidence.

To do so, they must prove all of the follov;ing elements:

• Dr. Hagen failed to seek out or take advantage of an opportunity to reduce his damages, such as taking advantage of an

ment position

reasonable under the circumstances

• Dr. Hagen unreasonably failed to take advantage of the opportunity

• Dr. Hagen's failure to take advantage of the opportunity caused an identifiable portion

J If the defendants prove that Dr. Hagen failed to mitigate his

damages, you must reduce his damages by the amount that he

reasonably could have avoided if he had done so

14

No.7 - COMPENSATORY DAMAGES

If you find in Dr. Hagen's favor on his "wrongful discharge" claim, as

explained in Instruction No. 5, then you must decide the amount of

"compensatory" or "actual" damages, if any, that will fairly and fully

compensate Dr. Hagen for the damage caused by his wrongful discharge, as

proved by the greater weight of the evidence.

Dr. Hagen seeks "past lost earnings" and "future lost earnings." I will

now explain the circumstances under which each item of damages can be

awarded and how you are to determine the amount of each item of damages.

• Past lost earnings

You may award the reasonable value of earnings that Dr. Hagen lost because Siouxland wrongfully discharged him, from the date of his discharge on November 16, 2009, to the date that you fmd Dr. Hagen would have voluntarily left employment with Siouxland or the date of your verdict, whichever comes first. To determine this amount,

• Determine the amount of wages and fringe benefits that Dr. Hagen would have earned working for Siouxland from the date of his discharge to the date that you find he would have voluntarily left employment with Siouxland or the date of your verdict, whichever comes first

• Subtract from this amount

the wages and fringe benefits, if any, that Dr. Hagen actually did earn

15

during that time from other employment.,.a:B:-d

0 if the defendants prove that Dr. Hagen failed to mitigate his aamages, the wages ana fringe benefits that Dr. Hagen reasonably coulG have earned during that time if he had sought out or taken advantage of another reasonably available employment opportunity

• Future lost earnings

If you find that Dr. Hagen's employment with Siouxland would have continued into the future, if he had not been wrongfully discharged by Siouxland, you may also award the "present value" of his lost future earnings from the date of your verdict until the date that you find that he would have quit working for Siouxland.

• "Present value" is a sum of money paid now, in advance, that, with interest earned at a reasonable rate of return, will compensate Dr. Hagen for future losses

To determine the amount to award for future lost earmngs,

• Determine the present value of wages and fringe benefits that Dr. Hagen would have earned from working for Siouxland from the date of your verdict until the date that you find by the greater weight of the evidence he would have quit working for Siouxland. In deciding the date that Dr. Hagen would have quit working for Siouxland, consider the following factors:

16

0 His remaining work life expectancy

0 His health, habits, occupation, and lifestyle

0 Any other evidence that he would have reduced his work load or quit working for Siouxland before the end of his remaining work life expectancy

• Subtract from this amount

0

the present value of wages and fringe benefits, if any, that Dr. Hagen would have earned from other employment during that time.,a:E:El

You will indicate the amounts, if any, that you award for these items of

damages in the blanks provided in the Verdict Form.

17

No. 8 - NOMINAL DAMAGES

"Nominal damages" are awarded to vindicate a party's rights, when the

violation of those rights has not caused injury that can be valued in monetary

terms. If you find for Dr. Hagen on his "wrongful discharge" claim, but you

find that he has failed to prove "compensatory damages" as defined in Instruction

No. 7 on that claim, then you must award "nominal damages." In other words,

do not award "nominal damages" on Dr. Hagen's "wrongful discharge" claim, if

you award any "compensatory damages" on that claim. "Nominal damages"

may not exceed one dollar.

18

No. 9 - PUNITIVE DAMAGES

In addition to compensatory damages, the law permits, but does not

require, the jury, under certain circumstances, to award punitive damages. You

must determine separately whether or not punitive damages should be awarded

against each or any of the individual defendants and whether defendant Siouxland

is liable for the punitive damages because of the acts of one or more of its

employees.

Punitive damages are not intended to compensate for injury. You should

consider Dr. Hagen to be made whole for his injuries by the "compensatory

damages," if any, that you may award under Instruction No. 7. Consequently,

you should only award punitive damages, if additional damages are appropriate

to punish the defendant in question and to discourage that defendant and others

from like conduct in the future.

Burden of proof

An award of punitive damages is subject to a different standard of proof

than other issues in this case:

• The elements required to award punitive damages must be proved

"by the greater weight of clear, convincing, and satisfactory

evidence"

Evidence is "clear, convmcmg, and satisfactory," if there is no

serious or substantial uncertainty about the conclusion to be drawn

from it

19

Eligibility for punitive damages

Dr. Hagen is eligible for an award of punitive damages against a particular

defendant, if he proves both of the following elements by the greater weight of

clear, convincing, and satisfactory evidence against that defendant:

One, the defendant's conduct in wrongfully discharging Dr. Hagen in

violation of public policy warrants a penalty in addition to any amount that

you award as compensatory damages on Dr. Hagen's claim.

Conduct warrants an award of punitive damages if it constituted a willful and wanton disregard for the rights of Dr. Hagen. Conduct was "willful and wanton" if

• a person intentionally did an act of an unreasonable character

• the person did so in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow

Two, the defendant's conduct caused actual injury to Dr. Hagen.

You can only award punitive damages if you first find that the wrongful conduct of the defendant in question caused actual injury to Dr. Hagen and you award compensatory damages for such actual injury pursuant to Instruction No. 7 or nominal damages for such actual injury pursuant to Instruction No. 8.

If Dr. Hagen does not prove both of these elements by the greater weight

of clear, convincing, and satisfactory evidence against a particular defendant,

then you cannot award him punitive damages against that defendant on his

"wrongful discharge" claim.

20

Amount of punitive damages

If Dr. Hagen does prove both of the elements establishing eligibility for

punitive damages by the greater weight of clear, convincing, and satisfactory

evidence against a particular defendant, then you may, but are not required to,

award him punitive damages in some amount on his "wrongful discharge" claim.

To award punitive damages, you must determine the following:

The amount, if any, of punitive damages that is warranted by the

defendant's wrongful conduct.

There is no exact rule to determine the amount of punitive damages, if any, you should award. In determining what amount, if any, to award for punitive damages against a particular defendant, you may consider the following factors:

• the nature of the defendant's conduct that harmed Dr. Hagen

• the amount of punitive damages that will punish and discourage like conduct by the defendant

0 you may consider the defendant's financial condition or ability to pay

0 you may not award punitive damages solely because of a defendant's wealth or ability to pay

• the amount of punitive damages that is reasonably related to the amount of compensatory damages that you award to Dr. Hagen on his "wrongful discharge" claim

21

• the existence and frequency of prior similar conduct

Conduct directed specifically at Dr. Hagen

In addition, if you award Dr. Hagen punitive damages against a particular

defendant on his "wrongful discharge" claim, then you will be asked to answer

the following question in the Verdict Form:

Was the wrongful conduct of the defendant in question relating to the

"wrongful discharge" claim directed specifically at Dr. Hagen?

The wrongful conduct was not "directed specifically at" Dr. Hagen, if the defendant's conduct would have been the same if a different plaintiff were involved.

You need not be concerned with the effect of your determination on this

question, because the effect of your determination on this question is for me to

decide.

Siouxland's liability for punitive damages

Siouxland is liable for the punitive damages awarded by reason of the acts

of the individual defendants, if one or more of the following occurred:

• Siouxland authorized the particular defendant's act and the way it

was done, or

• The particular defendant was employed in a managerial capacity and

was acting in the scope of employment, or

• Siouxland ratified or approved the act

22

No. 10- OUTLINE OF THE TRIAL

I will now explain how the trial will proceed.

After I have read all but the last Instruction,

• The lawyers may make opening statements

0 An opening statement is not evidence

0 It is simply a summary of what the lawyer expects the

evidence to be

• Dr. Hagen will present evidence and call witnesses and the lawyer

for the defendants may cross-examine them

• The defendants may present evidence and call witnesses, and the

lawyer for Dr. Hagen may cross-examine those witnesses

The parties will make their closing arguments

0 Closing arguments summarize and interpret the evidence for

you

0 Like opening statements, closing arguments are not evidence

• I will give you the last Instruction, on "deliberations"

• You will retire to deliberate on your verdict

• You will indicate your verdict on Dr. Hagen's claim in a Verdict

Form, a copy of which is attached to these Instructions

0 A Verdict Form is simply a written notice of your decision

23

0 When you have reached a unanimous verdict, your foreperson

will complete one copy of the Verdict Form by marking the

appropriate blank or blanks for each question

0 You will all sign that copy to indicate that you agree with the

verdict and that it is unanimous

D Your foreperson will then bring the signed Verdict Form to

the courtroom when it is time to announce your verdict

24

No. 11 - OBJECTIONS

The lawyers may make objections and motions during the trial that I must

rule upon.

• If I sustain an objection to a question before it is answered, do not

draw any inferences or conclusions from the question itself

Do not hold it against a lawyer or a party that a lawyer has made an

objection, because lawyers have a duty to object to testimony or

other evidence that they believe is not properly admissible

25

No. 12- BENCH CONFERENCES

During the trial, it may be necessary for me to talk with the lawyers out of

your hearing.

• I may hold a bench conference while you are in the courtroom or

call a recess

• Please be patient, because these conferences are

D to decide how certain evidence is to be treated

D to avoid confusion and error, and

D to save your valuable time

• We will do our best to keep such conferences short and infrequent

26

No. 13- NOTE-TAKING

You are allowed to take notes during the trial if you want to .

• Be sure that your note-taking does not interfere with listening to and

considering all the evidence

• Your notes are not necessarily more reliable than your memory or

another juror's notes or memory

• Do not discuss your notes with anyone before you begin your

deliberations

• Leave your notes on your chair during recesses and at the end of the

day

• At the end of trial, you may take your notes with you or leave them

to be destroyed

• No one else will ever be allowed to read your notes, unless you let

them

If you choose not to take notes, remember that it is your own individual

responsibility to listen carefully to the evidence.

An official court reporter is making a record of the trial, but her transcripts

will not be available for your use during your deliberations.

27

No. 14- QUESTIONS BY JURORS

When the attorneys have finished questioning a witness, you may propose

questions in order to clarify the testimony.

• Do not express any opinion about the testimony or argue with a

witness in your questions

• Submit your questions m writing by passmg them to the Court

Security Officer (CSO)

I will review each question with the attorneys. You may not receive an

answer to your question:

• I may decide that the question IS not proper under the rules of

evidence

• Even if the question is proper, you may not get an immediate

answer, because a witness or an exhibit you will see later in the trial

may answer your question

Do not feel slighted or disappointed if your question IS not asked.

Remember, you are not advocates for either side, you are impartial judges of the

facts.

28

No. 15- CONDUCT OF JURORS DURING TRIAL

You must decide this case solely on the evidence and your own

observations, expenences, reason, common sense, and the law in these

Instructions. You must also keep to yourself any information that you learn in

court until it is time to discuss this case with your fellow jurors during

deliberations.

To ensure fairness, you must obey the following rules:

• Do not talk among yourselves about this case, or about anyone

involved with it, until you go to the jury room to decide on your

verdict.

• Do not talk with anyone else about this case, or about anyone

involved with it, until the trial is over.

When you are outside the courtroom, do not let anyone ask you

about or tell you anything about this case, anyone involved with it,

any news story, rumor, or gossip about it, until the trial is over. If

someone should try to talk to you about this case during the trial,

please report it to me.

During the trial, you should not talk to any of the parties, lawyers,

or witnesses-even to pass the time of day-so that there is no

reason to be suspicious about your fairness. The lawyers, parties,

and witnesses are not supposed to talk to you, either.

29

• You may need to tell your family, friends, teachers, co-workers, or

employer about your participation in this trial, so that you can tell

them when you must be in court and warn them not to ask you or

talk to you about the case. However, do not provide any

information to anyone by any means about this case until after I have

accepted your verdict. That means do not talk face-to-face or use

any electronic device or media, such as the telephone, a cell or smart

phone, a Blackberry, a PDA, a computer, the Internet, any Internet

service, any text or instant messaging service, any Internet chat

room, any blog, or any website such as Facebook, MySpace,

YouTube, or Twitter, to communicate to anyone any information

about this case until I accept your verdict.

• Do not do any research-on the Internet, m libraries, in the

newspapers, in dictionaries or other reference books, or in any other

way-or make any investigation about this case, the law, or the

people involved on your own.

• Do not visit or view any place discussed in this case and do not use

Internet maps or Google Earth or any other program or device to

search for or to view any place discussed in the testimony.

• Do not read any news stories or articles, in print, on the Internet, or

in any "blog," about this case, or about anyone involved with it, or

listen to any radio or television reports about it or about anyone

involved with it, or let anyone tell you anything about any such news

reports. I assure you that when you have heard all the evidence, you

30

will know more about this case than anyone will learn through the

news media-and it will be more accurate.

Do not make up your mind during the trial about what the verdict

should be. Keep an open mind until you have had a chance to

discuss the evidence with other jurors during deliberations.

Do not decide the case based on biases. Because you are making

very important decisions in this case, I strongly encourage you to

evaluate the evidence carefully and to resist jumping to conclusions

based on personal likes or dislikes, generalizations, gut feelings,

prejudices, sympathies, stereotypes, or biases. The law demands

that you return a just verdict, based solely on the evidence, your

individual evaluation of that evidence, your reason and common

sense, and these instructions. Our system of justice is counting on

you to render a fair decision based on the evidence, not on biases.

• If, at any time during the trial, you have a problem that you would

like to bring to my attention, or if you feel ill or need to go to the

restroom, please send a note to the Court Security Officer (CSO),

who will give it to me. I want you to be comfortable, so please do

not hesitate to tell us about any problem.

I will read the remaining Instruction at the end of the evidence.

31

No. 16- DELIBERATIONS

In conducting your deliberations and returning your verdict, there are

certain rules that you must follow .

• When you go to the jury room, select one of your members as your

foreperson to preside over your discussions and to speak for you

here in court

• Discuss this case with one another in the jury room to try to reach

agreement on the verdict, if you can do so consistent with individual

judgment

D Nevertheless, each of you must make your own conscientious

decision, after considering all the evidence, discussing it fully

with your fellow jurors, and listening to the views of your

fellow jurors

• Do not be afraid to change your opinions if the discussion with other

jurors persuades you that you should, but do not come to a decision

simply because other jurors think it is right, or simply to reach a

verdict

• Remember that you are not advocates, but judges-judges of the

facts

D Your sole interest is to seek the truth from the evidence in the

case.

32

•

•

If you need to communicate with me during your deliberations, you

may send a note to me through the Court Security Officer (CSO),

signed by one or more jurors

0 I will respond as soon as possible, either in writing or orally

in open court

0 Remember that you should not tell anyone-including me-

how your votes stand numerically

Base your verdict solely on the evidence and on the law as I have

given it to you in my Instructions

0 Nothing I have said or done is intended to suggest what your

verdict should be-that is entirely for you to decide

• Your verdict on each question submitted must be unanimous

• Complete and sign one copy of the Verdict Form

fJ The foreperson must bring the signed Verdict Form to the

courtroom when it is time to announce your verdict

• When you have reached a verdict, the foreperson will advise the

Court Security Officer that you are ready to return to the courtroom.

Good luck with your deliberations.

DATED this 19th day of April, 2013.

MARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA

33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

EDWARD P. HAGEN,

Plaintiff, No. C 11-4047-MWB

vs.

SIOUXLAND OBSTETRICS & GYNECOLOGY, P.C., an Iowa corporation; PAUL J. EASTMAN; TAUHNI T. HUNT; and ANGELA J. ALDRICH,

VERDICT FORM

Defendants.

On Dr. Hagen's claim of "wrongful discharge m violation of public

policy," we, the Jury, find as follows:

Step 1: Verdict

Step 2: Protected Conduct

I. LIABILITY On Dr. Hagen's "wrongful discharge" claim, as explained in Instruction No. 5, in whose favor do you find? (If you find in fuvor of the defendants on this claim, then you do not need to answer any further questions in the Verdict Form Instead, notifY the Court Security Officer (CSO) that you have reached a verdict. On the other hand, if you find in favor of Dr. Hagen, go on to consider additional ste sin this Part and in Part II concernin dama es.)

Dr. Hagen The defendants

If you found in fu vor of Dr. Hagen in Step 1 , which one or more of the following kinds of conduct do you find were determining factor(s) in Siouxland's decision to terminate Dr. Ha en? __ Dr. Hagen reporting, stating an intention to report, or stating that he might report to the Iowa Board of Medicine conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, ne li ence, or mal ractice

1

Step 1: Compensatory

Damages

Step 2: Nominal Damages

__ Dr. Hagen reporting, stating an intention to report, or stating that he might report to a hospital conduct of Dr. Eastman that Dr. Hagen believed may have involved wrongful acts, omissions, . .

__ Dr. Hagen consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney about whether Dr. Eastman or nurses had committed wrongful acts or omissions that Dr. Hagen should report to the Iowa Board of Medicine or a

II. DAMAGES If you found in favor of Dr. Hagen on his "wrongful discharge" claim in Part I, Step 1, what amount, if any, do you award for each of the following items of damages, as compensatory damages for a "wrongful

in Instruction No. 7?

$

Future lost earnings, reduced to present value: $

Ifyou found in favor ofDr. Hagen on his "wrongful discharge" claim in Part I, Step 1, but you find that he has failed to prove "compensatory damages" as defmed in Instruction No. 7, then you must award "nominal damages" not exceeding $1.00, as explained in Instruction No. 8. (Do not award "nominal damages" on Dr. Hagen's "wrongful discharge" claim, if you award any

on that claim.

2

Step 3: "Punitive Damages"

(a): "Willful And

Wanton" Conduct"

(b): Responsible

Defendant(s) And Amount Of Punitive

Damages

Ifyou found in favor ofDr. Hagen on his "wrongful discharge" claim in Part I, Step 1, please answer the following questions concerning "punitive damages" for a "wrongful discharge," as "punitive dama es" are ex lained in Instruction No. 9. Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of one or more of the individual defendants constituted willful and wanton disregard of the rights of another? (If your answer is "no," then you cannot award punitive damages. On the other hand, if your answer is "yes," you may, but are not re uired to, award unitive dama es in some amount.)

Yes No

If you answered "yes" in Step 3( a), which one or more of the following defendants do you fmd by the greater weight of clear, convincing, and satisfactory evidence engaged in conduct that constituted willful and wanton disregard of the rights of another, and what amount, if any, in punitive damages do you award against any such defendant?

__ Dr. Eastman engaged in willful and wanton conduct, and the amount of punitive damages awarded against him is $

__ Dr. Hunt engaged in willful and wanton conduct, and the amount of punitive damages awarded against her is $

__ Dr. Aldrich engaged in willful and wanton conduct, and the amount of punitive damages awarded against her is $

If you answered "yes" in Step 3(a), was the conduct of any defendant marked in Step 3(b) directed specifically at Dr. Hagen?

Dr. Eastman: Yes No

Dr. Hunt: Yes No

Dr. Aldrich: Yes No

3

(d): Liability Of Siouxland

Date

Foreperson

Juror

Juror

Juror

Ifyou answered "yes" in Step 3(a), and you awarded punitive damages in Step 3(b), is Siouxland liable for the punitive damages awarded by reason of the acts of an individual defendant identified in Ste 3(b)?

Dr. Eastman: Yes No

Dr. Hunt: Yes No

Dr. Aldrich: Yes No

Juror

Juror

Juror

Juror

4

IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

DOROTHEA POLK

Plaintiff,

vs.

STATE OF IOWA, et al.,

Defendants.

NOs. LACL 128844

JURY INSTRUCTIONS

STATEMENT OF THE CASE

Members of the Jury:

Th is is a civil case brought by the Plaintiff, Dorothea Polk, against Defendants,

the State of Iowa and two of its administrative agencies, Iowa Workforce Development

and the Department of Administrative Services. Plaintiff claims that she was

discriminated against by Defendants, based upon her race, in connection with her

application for the receptionist position, her application for the clerk position, and her

termination from the clerk position. She also claims that Defendants terminated her in

retaliation for asserting civil rights complaints. Defendants deny the allegations made by

Plaintiff and assert that their employment decisions were appropriate regardless of

Plaintiff's race.

Do not consider this summary as proof of any claim. Decide the facts from the

evidence and apply the law which I will now give you. Upon the issues thus joined, you

are instructed as follows:

INSTRUCTION NO. 1

My duty is to tell you what the law is. Your duty is to accept and apply this law.

You must consider all of the instructions together, because no one instruction

includes all of the applicable law.

The order in which I give these instructions is not important.

Your duty is to decide all fact questions.

Do not be influenced by any personal likes or dislikes, sympathy, bias, prejudices

or emotions.

INSTRUCTION NO. 2

Whenever a party must prove something they must do so by the preponderance

of the evidence.

Preponderance of the evidence is evidence that is more convincing than

opposing evidence. Preponderance of the evidence does not depend upon the number

of witnesses testifying on one side or the other.

INSTRUCTION NO. 3

You shall base your verdict only upon the evidence and these instructions.

Evidence is:

1. Testimony in person or by deposition.

2. Exhibits received by the court.

3. Stipulations, which are agreements between the attorneys.

4. Any other matter admitted (e.g answers to interrogatories, matters which judicial notice was taken, and etc.)

Evidence may be direct or circumstantial. The weight to be given any evidence

is for you to decide.

Sometimes, during a trial , references are made to pre-trial statements and

reports, witnesses' depositions, or other miscellaneous items. Only those things formally

offered and received by the court are available to you during your deliberations.

Documents or items read from or referred to which were not offered and rece ived into

evidence, are not available to you.

The following are not evidence:

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

2. Objections and ruling on objections.

3. Testimony I told you to disregard.

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

INSTRUCTION NO. 4

Certain testimony has been read into evidence or played by video from

depositions. A deposition is testimony taken under oath before the trial and preserved in

writing or on video. Consider that testimony as if it had been given in court.

INSTRUCTION NO. 5

You will decide the facts from the evidence. Consider the evidence using your

observations, common sense and experience. You must try to reconcile any conflicts in

the evidence; but, if you cannot, you will accept the evidence you find more believable.

In determining the facts, you may have to decide what testimony you believe.

You may believe all, part or none of any witnesses' testimony.

There are many factors which you may consider in deciding what testimony to

believe, for example:

1. Whether the testimony is reasonable and consistent with other evidence you believe;

2. The witnesses' appearance, conduct, age, intelligence, memory and knowledge of the facts; and,

3. The witnesses' interest in the trial , their motive, candor, bias and prejudice.

INSTRUCTION NO. 6

During the course of this trial there has been reference to other claims and

litigation alleging discriminatory conduct. Ms. Polk, as well as others, filed civil rights

complaints with the Iowa Civil Rights Commission, filed a report with the Governor of the

State of Iowa, and brought a class action claim in court asserting systemic

discrimination. The class action case is not this case. The class action claim was

litigated separately from this case and was decided by another Court. The civil rights

complaints, the report to the Governor, and the class action case provide factual and

historical background for the context in which the Plaintiff's current claims arise. You

should decide this case based upon the unique facts and circumstances proved by the

evidence, applying the law that I am now giving you.

INSTRUCTION NO. 7

Iowa law requires each state agency to investigate and document any complaints

of alleged discrimination, and to report the filing of such complaints to the director of the

Department of Administrative Services.

INSTRUCTION NO. 8

Plaintiff claims that Defendants have intentionally destroyed or failed to produce

evidence consisting of a report of an investigation into racial discrimination at the Iowa

Workforce Development office. You may, but are not required to, conclude that such

evidence would be unfavorable to Defendants. Defendants deny that the report urged

by the Plaintiff ever existed. Defendants contend that they have produced all reports

relating to such investigations.

Before you can reach the conclusion urged by the Plaintiff, which is denied by

Defendants, Plaintiff must prove all of the following:

1. The evidence exists or previously existed.

2. The evidence is or was within the possession or control of the Defendants.

3. Defendants' interests would call for production of the evidence if favorable to

Defendants.

4. Defendants have intentionally destroyed or failed to produce the evidence

without satisfactory explanation.

For you to reach this conclusion, more than the mere destruction or non

production of the evidence must be shown. Rather, Plaintiff must establish that the

Defendants intentionally destroyed or failed to produce the evidence. Moreover, it is not

sufficient to show that a third person destroyed or is withholding the evidence without the

authorization or consent of Defendants.

INSTRUCTION NO. 9

You have heard evidence claiming that a witness made statements before this

trial while under oath which were inconsistent with what the witness said in this trial. If

you find these statements were made and were inconsistent, then you may consider

them as part of the evidence, just as if they had been made at this trial.

You may also use these statements to help you decide if you believe the witness.

You may disregard all or any part of the testimony if you find the statements were made

and were inconsistent with the testimony given at trial, but you are not required to do so.

Do not disregard the trial testimony if other evidence you believe supports it, or if you

believe it for any other reason.

INSTRUCTION NO. 10

The fact that defendants are the State of Iowa and state administrative agencies

should not affect your decision. All persons are equal before the law, and corporations

and governmental entities, whether large or small, are entitled to the same fair and

conscientious consideration by you as any other person.

INSTRUCTION NO. 11

The State of Iowa, and any of the state administrative agencies, acts only

through its agents or employees. Any agent or employee of the State or of an agency

may bind the State or the agency by acts and statements made while acting within the

scope of the authority delegated to the agent by the State or by the agency, or within the

scope of his or her duties as an employee of the State or the agency. The State of Iowa

and its administrative agencies, including Iowa Workforce Development and the

Department of Administrative Services, should be considered as one entity for purposes

of determining whether or not the Plaintiff has established her claims against the

Defendants.

INSTRUCTION NO. 12

To establish her claim of race discrimination Plaintiff must prove both of the

following elements:

1. Defendants took adverse employment action against Plaintiff in connection

with her application for the reception position, her application for the clerk position or her

termination from the clerk position; and

2. Plaintiffs race was a motivating factor for Defendants' adverse employment

action. ·

If Plaintiff has proved both of these elements, you shall consider whether the

Defendants have established that they would have taken the same employment action

against the Plaintiff regardless of her race, as explained in Instruction No.18. If Plaintiff

has failed to prove either of these elements, your verdict must be for the Defendants on

the claim of race discrimination.

INSTRUCTION NO. 13

To establish her claim of retaliation , Plaintiff must prove all of the following

elements:

1. Plaintiff filed a civil rights complaint or otherwise reported conduct that she

reasonably believed was potential harassment or discrimination, and

2. Defendants discharged Plaintiff, and

3. Plaintiff's complaint was a motivating factor in the decision of Defendants to

discharge her.

If Plaintiff has proved all of the above elements, you shall consider whether the

Defendants have established that they would have taken the same employment action

against the Plaintiff regardless of her race, as explained in Instruction No. 18. If Plaintiff

has failed to prove any of these elements, your verdict must be for the Defendants on

the claim of retaliation.

INSTRUCTION NO. 14

As used in these instructions, an "adverse employment action" is an action that

detrimentally alters or adversely affects the terms, conditions, or privileges of

employment, specifically including decisions related to hiring, promotion, and

termination.

INSTRUCTION N0.15

As used in these Instructions, Plaintiff's race and/or her reports of discrimination

based upon race are "a motivating factor" if Plaintiff's race and/or reports of

discrimination based upon race, either separately or combined, played a part in

Defendants' decision in failing to hire the Plaintiff, in failing to promote the Plaintiff, or in

terminating the Plaintiff. Plaintiff's race and/or her reports of discrimination based upon

race need not be the only factor in Defendants' decision to be "a motivating factor".

INSTRUCTION NO. 16

In determining whether or not Plaintiff's race or complaints of discrimination were

a motivating factor in Defendants' decision to take adverse employment action you may

consider whether Plaintiff has proved that Defendants' stated reasons for its decision are

not the real reason, but are a pretext to hide discrimination or retaliation.

INSTRUCTION NO. 17

You may not return a verdict for the Plaintiff just because you might disagree with

Defendant's decision or believe it to be harsh or unreasonable.

INSTRUCTION NO. 18

If you find in favor of the Plaintiff in connection with any of her claims for

discrimination or retaliation, as described in Instruction Nos. 12 and 13, then you must

also consider whether or not the Defendants have proved that they would have made

the same employment decisions related to the Plaintiff, regardless of her race or report

of discrimination.

INSTRUCTION NO. 19

In connection with her claim of retaliation, Plaintiff does not have to prove that the

conduct she complained of or opposed was actually unlawful discrimination, but she

does have to prove that she had a reasonable, good faith belief that the conduct she

complained of or opposed was unlawful discrimination. Plaintiff's belief may be

reasonable when based upon the employer's training, policies or expectations provided

to her as their employee. Plaintiff's complaint or opposition may be stated through the

employer's complaint procedure, to a supervisor, to the employer's human resources

department, or to an appropriate agency.

items:

INSTRUCTION NO. 20

If you find Plaintiff is entitled to recover damages, you shall consider the following

1. Mental pain and suffering from the date of discrimination to the present time.

Mental pain and suffering may include, but is not limited to, mental anguish or

loss of enjoyment of life.

2. The present value of future mental pain and suffering.

3. The reasonable value of lost earnings (wages and benefits) from the date of

discrimination to the present time.

4. The present value of loss of future earning capacity. Loss of future earning

capacity is the reduction in the ability to work and earn money generally,

rather than in a particular job.

The amount you assess for mental pain and suffering in the past and future

cannot be measured by any exact or mathematical standard. You must use your sound

judgment based upon an impartial consideration of the evidence.

Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice,

for or against the parties. The amount you assess for any item of damage must not

exceed the amount caused by the defendant as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded

under one item of damage to be included in any amount awarded under another item of

damage. In arriving at an item of damage, you cannot arrive at a figure by taking down

the estimate of each juror as to an item of damage and agreeing in advance that the

average of those estimates shall be your item of damage.

The amounts, if any, you find for each of the above items will be used to answer

the special verdicts.

INSTRUCTION NO. 21

A Standard Mortality Table indicates the normal life expectancy of people who

are the same age as Dorothea Polk is 30.01 years. The statistics from a Standard

Mortality Table are not conclusive. You may use this information, together with all the

other evidence, about Plaintiff's health, habits, occupation, and lifestyle, when deciding

issues of future damages.

INSTRUCTION NO. 22

Future damages must be reduced to present value. "Present value" is a sum of

money paid now in advance which, together with interest earned at a reasonable rate of

return , will compensate the Plaintiff for future losses.

INSTRUCTION NO. 23

Plaintiff has a duty to exercise ordinary care to reduce, minimize or limit her

damages. However, Plaintiff has no duty to do something that is unreasonable under

the circumstances. If you find there was some reasonable action Plaintiff could have

taken to minimize her damages, and that Plaintiff unreasonably failed to take that action,

you may reduce Plaintiff's damages by an amount caused by her failure to take that

action.

INSTRUCTION NO. 24

During the trial you have been allowed to take notes. You may take these with

you to the jury room to use in your deliberations. Remember that these are notes and

not evidence. Generally, they reflect the recollection or impressions of the evidence as

viewed by the person taking them, and may be inaccurate or incomplete.

Upon reaching a verdict, leave the notes in the jury room and they will be

destroyed.

INSTRUCTION NO. 25

Upon retiring you shall select a foreperson. It will be his or her duty to see

discussion is carried on in an orderly fashion, the issues are fully and freely discussed,

and each juror is given an opportunity to express his or her views.

Your attitude at the beginning of your deliberations is important. It is not a good

idea for you to take a position before thoroughly discussing the case with the other

jurors. If you do this, individual pride may become involved and you may later hesitate

to change an announced position even if shown it may be incorrect. Remember you are

not partisans or advocates, but judges - judges of the facts. Your sole interest is to find

the truth and do justice.

INSTRUCTION NO. 26

I am giving you one verdict form containing special interrogatories. Read the

verdict form and follow the directions on it carefully. During the first six hours of

deliberations, excluding meals and recesses outside your jury room, your decision must

be unanimous. If you all agree, the verdict and interrogatories must be signed by your

foreperson.

After deliberating for six hours from __ o'clock _.m., excluding meals or

recesses outside your jury room, then it is necessary that only seven of you agree upon

the answers to the questions. In that case, the verdict and interrogatories must be

signed by all seven jurors who agree.

When you have agreed upon the verdict and interrogatories and appropriately

signed it, tell the court attendant.

Dated this 5th day of November, 2013.

Brad McCall - District Court Judge Fifth Judicial District of Iowa

IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

DOROTHEA POLK

Plaintiff, NOs. LACL 128844,

vs. VERDICT FORM

STATE OF IOWA, et al.,

Defendants.

Question No. 1:

a. Did Plaintiff prove her claim of race discrimination, as described in Instruction

No. 12, related to her application for the receptionist position?

ANSWER: __ ("yes" or "no")

(If your answer is "yes", go to Question 1b. If your answer is "no", do not answer Question 1 b. Instead, go directly to Question 2a)

b. Did Defendants prove that they would have made the same employment

decisions related to Plaintiff's application for the receptionist position,

regardless of the Plaintiff's race?


Question No. 2:


No. 12, related to her application for the clerk position?


(If your answer is "yes", go to Question 2b. If your answer is " no", do not answer Question 2b. Instead, go directly to Question 3a)


decisions related to Plaintiff's application for the clerk position, regardless of

the Plaintiff's race?


Question No. 3:


No. 12, related to her termination from the clerk position?


(If your answer is "yes", go to Question 3b. If your answer is "no", do not answer Question 3b. Instead, go directly to Question 4a).


decisions related to Plaintiff's termination from the clerk position, regardless

of the Plaintiff's race?


Question No. 4:

a. Did Plaintiff prove her claim of retaliation, as described in Instruction No. 13,

related to her termination from the clerk position?


(If your answer is "yes", go to Question 4b. If your answer is "no", do not answer Question 4b. Instead, go directly to Question 5).


decisions related to Plaintiff's termination from the clerk position, regardless

of the Plaintiff's race?


Question No. 5:

Did you answer "yes" to any part "a" of the foregoing numbered questions and

also answer "no" to part "b" of the same numbered question?

Juror**

Juror**

Juror**

Juror**


(If your answer to Question 5 is "yes" set forth the amounts of damages that have been proved by the evidence. If your answer to Question 5 is " no", do not assess any damages - simply sign the verdict)

Damages:

Loss of Earnings - Past

Loss of Earnings - Future

Emotional Distress - Past

Emotional Distress - Future

TOTAL

$ ______ _

$ ______________ _

$ ______ _

$~-------------$ _______ _

Foreperson*

(*To be signed only if verdict is unanimous)

Juror**

Juror**

Juror**

(**To be signed by the jurors agreeing thereto after six hours or more of deliberation)

DEFENDANTS' FINAL JURY INSTRUCTION NO. 17

MARSHALLING INSTRUCTION

In order to recover against Defendant _____________ on her sex discrimination claim,

Plaintiff ______________ must prove all of the following elements:

1. ______________ was able to perform the regular duties of her position.

2. ____________ terminated _____________.

3. _____________ sex was a motivating factor in ___________ decision to

terminate ____.

4. ____________ was treated differently than similarly situated employees who

were not members of her protected class.

The term "motivating factor," as used in these instructions, means a reason, alone or with

other reasons, on which the defendant relied when it terminated the plaintiff.

If Plaintiff __________ has failed to prove any of these propositions, your verdict must

be for Defendant ____________ and you need not proceed further in considering this claim.

8th Cir. Model Instrs. 5.01, 5.96 (modified); Wilkie v. Dept. of Health & Human Servs., 638 F.3d 944, 954-55 (8th Cir. 2011).


NO PREFERENTIAL TREATMENT

The law does not require that pregnant females be given preferential treatment. The law

allows employers to treat pregnant women the same as they treat all similarly situated but non-

pregnant employees.

42 U.S.C. § 2000e(k); Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 436-37 (8th Cir. 1998).


SEX DISCRIMINATION: SAME DECISION

If you find in favor of Plaintiff _____________ under Instruction No. 17, then you must

answer the following question in the verdict form: Has it been proved to be more likely true than

not true that Defendant ___________ would have terminated Plaintiff ____________ for her

inability to perform the requirements of her position even if that inability arose out of

circumstances unrelated to her sex?

8th Cir. Model Instr. 5.01A (modified)


SEX DISCRIMINATION: PRETEXT

Defendant __________ has presented evidence explaining the reasons for discharging

Plaintiff ___________. You are instructed that Defendant ___________ is entitled to take the

actions which it did for the reasons which its witnesses explained and that __________ reasons

dispel any inference that its conduct was improper, unless you find the __________ reasons to be

a pretext or a cover-up for intentional discrimination because of ___________ sex. Your verdict

should be in favor of ___________ unless you find that ____________ has proved that it is more

likely true than not true that the reasons stated by ____________ witnesses for its actions are a

pretext or a cover-up for intentional discrimination on the basis of sex.

Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 857-58 (8th Cir. 1998).

The verdict in this case will be determined by your answers to a series of questions set forth below. Make sure that you read the questions and notes carefully because they explain the order in which the questions should be answered and which questions may be skipped.

We find the following on the questions submitted:

QUESTIONS Question No. 1: Has _____________ proved by the preponderance of the evidence that she was able to perform the regular duties of her position?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 2: Has ____________ proved by the preponderance of the evidence that Defendant ____________ terminated Plaintiff __________?

________ Yes ________ No Question No. 3: Has _____________ proved by the preponderance of the evidence that her pregnancy was a motivating factor in Defendant ___________ decision to terminate her?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 4: Has ____________ proved by the preponderance of the evidence that she was treated differently than similarly situated employees who were not members of her protected class?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 5: Was Plaintiff ____________ termination by ___________ due solely to her pregnancy? (Answer this question only if you answered "Yes" to Question No. 3)

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 6: (Answer this question only if you answered "No" to Question No. 5) What is the amount of ___________ lost wages and benefits as defined in Instruction No. 22? $_________________ (stating the amount or, if none, write the word "none")

What is the amount of _____________ other damages, excluding lost wages and benefits, as defined in Instruction No. 22? $_________________ (stating the amount or, if you find that the plaintiff's damages do not have a monetary value, write in the nominal amount of One Dollar ($1.00))

Date:______________ ______________________________ Foreperson

DEFENDANTS' FINAL JURY INSTRUCTION NO. 17A

MARSHALLING INSTRUCTION

Plaintiff, _____________ has the burden of proof in this case. In order to recover against

Defendant __________ on her sex/pregnancy discrimination claim, Plaintiff ___________ must

prove all of the following elements:

1. _____________ was able to perform the regular duties of her position.

2. ____________ terminated ____________.

3. ______________ sex was a motivating factor in ___________ decision to

terminate her.

4. ____________ was treated differently than similarly situated employees who

were not pregnant.

The term regular duties as used in these instructions means plaintiff could have

performed the regular duties of her position at the time the defendant terminated her

employment.

The term "motivating factor," as used in these instructions, means a reason, alone or with

other reasons, on which the defendant relied when it terminated the plaintiff. Sex/pregnancy

was a motivating factor only if the defendant would not have discharged the plaintiff but for the

plaintiff's sex/pregnancy; it does not require that sex/pregnancy was the only reason for the

decision made by the defendant. However, your verdict must be for the defendant if Plaintiff has

failed to prove any of the above elements, or if it has been proved that the defendant would have

discharged the plaintiff regardless of her sex/pregnancy.

If Plaintiff _____________ has failed to prove any of these propositions, your verdict

must be for Defendant ___________ and you need not proceed further in considering this claim.

8th Cir. Model Instrs. 5.01, 5.96, 5.26A (modified); Wilkie v. Dept. of Health & Human Servs., 638 F.3d 944, 954-55 (8th Cir. 2011).


SEX DISCRIMINATION:

SAME DECISION

If you find in favor of Plaintiff ___________ under Instruction No. 17, then you must

answer the following question in the verdict form: Has it been proved that Defendant

__________ would have terminated Plaintiff ____________ for her inability to perform the

requirements of her position regardless of whether that inability arose out of her pregnancy?

8th Cir. Model Instr. 5.01A (modified).


SEX DISCRIMINATION: PRETEXT

Defendant ___________ has presented evidence explaining the reasons for taking

Plaintiff ____________ off its payrolls. You are instructed that Defendant __________ is

entitled to take the actions which it did for the reasons set forth by its witnesses and that

____________ reasons dispel any inference that its conduct was improper, unless you find

____________ reasons to be a pretext or a cover-up for intentional discrimination because of

_____________ sex/pregnancy. Your verdict should be in favor of ___________ unless you

find that ____________ has proved that it is more likely true than not true that the reasons stated

by ____________ witnesses for its actions are a pretext or a cover-up for intentional

discrimination on the basis of sex/pregnancy.

8th Cir. Model Instr. 5.95 (modified); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 857-58 (8th Cir. 1998).


BUSINESS JUDGMENT – TITLE VII CASES You may not return a verdict for the plaintiff just because you might disagree with the

defendant's decision or believe it to be harsh or unreasonable.

8th Cir. Model Instr. 5.94 (modified).


PRETEXT You may find that the plaintiff's sex/pregnancy was a motivating factor in the defendant's

decision if it has been proved that the defendant's stated reasons for its decision are not the real

reason, but are a pretext to hide sex/pregnancy discrimination.

8th Cir. Model Instr. 5.95 (modified).


DEFINITION: REGULAR DUTIES In determining a job's regular duties, you should consider: (1) The employer's judgment

as to the regular job duties; (2) written job descriptions; (3) the amount of time spent on the job

performing the duties in question; (4) consequences of not requiring the person to perform the

duty; (5) the work experience of persons who have held the job; (6) the current work experience

of persons in similar jobs; (7) whether the reason the position exists is to perform the function;

(8) whether there are a limited number of employees available among whom the performance of

the function can be distributed; and (9) whether the function is highly specialized and the

individual in the position was hired for her expertise or ability to perform the function.

No one factor is necessarily controlling. You should consider all of the evidence in

deciding a job's regular duties.

8th Cir. Model Instr. 5.52B (modified).


EMPLOYER'S MEDICAL LEAVE An employer may put an employee on medical leave or terminate an employee if the

employee has a work restriction which prevents the employee from fulfilling their regular job

duties.

Rohloff v. Metz Baking Co., LLC., 491 F.Supp.2d 840 (N.D. Iowa 2007); Johnson v. Arkansas State Police, 10 F.3d 547 (8th Cir. 1993); Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040 (8th Cir. 2005).

The verdict in this case will be determined by your answers to a series of questions set forth below. Make sure that you read the questions and notes carefully because they explain the order in which the questions should be answered and which questions may be skipped.

We find the following on the questions submitted:

QUESTIONS Question No. 1: Has ______________ proved by the preponderance of the evidence that she was able to perform the regular duties of her position?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 2: Has ____________ proved by the preponderance of the evidence that her pregnancy was a motivating factor in Defendant __________ decision to terminate her?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 3: Has ____________ proved by the preponderance of the evidence that she was treated differently than similarly situated employees who were not pregnant?

________ Yes ________ No [If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 4: Was Plaintiff ____________ termination by ____________ due solely to her pregnancy?

________ Yes ________ No

[If you find "No" to this question, stop here and sign the Verdict Form.] Question No. 5: Has it been proved that ____________ would have discharged the plaintiff for her inability to perform the requirements of her position regardless of whether that inability arose out of her pregnancy? ______Yes _______No (Mark an "X" in the appropriate space) [If you find "Yes" to this question, stop here and sign the Verdict Form.]

Question No. 6: (Answer this question only if you answered "No" to Question No. 5) What is the amount of _____________ lost wages and benefits as defined in Instruction No. 22? $_________________ (stating the amount or, if none, write the word "none") What is the amount of _____________ other damages, excluding lost wages and benefits, as defined in Instruction No. 22? $_________________ (stating the amount or, if you find that the plaintiff's damages do not have a monetary value, write in the nominal amount of One Dollar ($1.00))

Date:______________ ______________________________ Foreperson

Polk v. Department of Administrative Services, Slip Copy (2015)

126 Fair Empl.Prac.Cas. (BNA) 1432

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 1817031 NOTICE: FINAL PUBLICATION DECISION

PENDING Court of Appeals of Iowa.

Dorothea POLK, Plaintiff–Appellee, v.

DEPARTMENT OF ADMINISTRATIVE SERVICES and Iowa Workforce Development,

Defendants–Appellants.

No. 14–0627. | April 22, 2015.

Appeal from the Iowa District Court for Polk County, Brad McCall, Judge. The defendants appeal following a jury verdict in favor of Dorothea Polk on her claim that she was fired from her employment in retaliation for filing a civil rights complaint concerning race discrimination. AFFIRMED.

Attorneys and Law Firms

Jeffrey S. Thompson, Solicitor General, and Julia S. Kim, Assistant Attorney General, for appellants.

Thomas Newkirk, Jill Zwagerman, and Leonard Bates of Newkirk Zwagerman, P.L.C., Des Moines, for appellee.

Heard by VAITHESWARAN, P.J., and DOYLE and TABOR, JJ.

Opinion

DOYLE, J.

*1 The Iowa Department of Administrative Services and Iowa Work Force Development (collectively “the State”) appeal following a jury verdict in favor of Dorothea Polk on her claim that she was fired from her employment in retaliation for filing a civil rights complaint concerning race discrimination. The State contends the district court’s jury instructions incorrectly stated the legal standard for retaliation claims under Iowa Code chapter 216 (2007) because a higher causation standard was required, causing its prejudice. We affirm.

I. Background Facts and Proceedings. In January 2006, Dorothea Polk was hired by defendant Iowa Workforce Development (IWD) to work in its Business Services Bureau as a clerk. This position was

subject to a six-month probationary period. In May 2006, Polk filed an Iowa Civil Rights Commission (ICRC) complaint against her supervisor and her chain of command. Polk, along with others, alleged there was “[o]ngoing and continuing racial discrimination and retaliation and the maintenance of a hostile environment toward African Americans seeking employment and advancement at IWD.” In July 2006, Polk was informed she did not successfully complete her probationary period, and her employment with IWD was terminated. Polk subsequently filed a second complaint with the ICRC asserting she “was fired due to [her] race as part of the continuing pattern of discrimination against African Americans and in retaliation for filing a civil rights complaint in May of 2006.” Polk alleged she “was fired for false reasons [three] days before [she was to obtain] protection under the Union as [she] was the only person of the group who complained in May that was subject to termination without union protection.” Ultimately, Polk was issued right-to-sue letters following the filing of her civil rights complaints. In 2007, Polk, along with others, filed a class action against defendants IWD and Iowa Department of Administrative Services (IDAS) alleging, among other things, claims of race discrimination under Iowa Code chapter 216. In October 2013, Polk’s individual claims against the State of race discrimination and retaliation were severed and tried separately to a jury. Prior to trial, the parties submitted proposed jury instructions to the court. The court then drafted its own proposed jury instructions and provided them to the parties before the case was submitted to the jury. Concerning Polk’s retaliatory-discharge claim, the court proposed the following instructions, similar to those proposed by Polk:

Instruction No. 13

To establish her claim of retaliation, [Polk] must prove all of the following elements:

1. [Polk] filed a civil rights complaint or otherwise reported conduct that she reasonably believed was potential harassment or discrimination, and

2. Defendants discharged [Polk], and

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3. [Polk’s] complaint was a motivating factor in the decision of Defendants to discharge her.

*2 lf [Polk] has proved all of the above elements, you shall consider whether ... Defendants have established that they would have taken the same employment action against [Polk] regardless of her race, as explained in [the following instruction]. If [Polk] has failed to prove any of these elements, your verdict must be for ... Defendants on the claim of retaliation.

Instruction No. 14

As used in these instructions, an “adverse employment action” is an action that detrimentally alters or adversely affects the terms, conditions, or privileges of employment, specifically including decisions related to hiring, promotion, and termination.

Instruction No. 15

As used in these Instructions, [Polk’s] race and/or her reports of discrimination based upon race are “a motivating factor” if [Polk’s] race and/or reports of discrimination based upon race, either separately or combined, played a part in Defendants’ decision in failing to hire [Polk], in failing to promote [Polk], or in terminating [Polk]. [Polk’s] race and/or her reports of discrimination based upon race need not be the only factor in Defendants’ decision to be “a motivating factor.”

Instruction No. 16

In determining whether or not [Polk’s] race or complaints of discrimination were a motivating factor in Defendants’ decision to take adverse employment action you may consider whether [Polk] has proved that Defendants’ stated reasons for its decision are not the real reason, but are a pretext to hide discrimination or retaliation.

Instruction No. 17

You may not return a verdict for [Polk] just because you might disagree with Defendants’ decision or believe it to be harsh or unreasonable.

Instruction No. 18

If you find in favor of [Polk] in connection with any of her claims for discrimination or retaliation, as described in Instruction Nos. 12 and 13, then you must also consider whether or not the Defendants have proved that they would have made the same employment decisions related to [Polk], regardless of her race or report of discrimination. (Emphasis added.) The State objected to these proposed instructions, and it asserted its marshalling instruction should be used instead, citing as authority for its instruction the Eighth Circuit’s Civil Jury Instructions sections 5.21, 5.40, and 10.41 (2013), as well as Iowa Code section 216.6(1)(a), Hy–Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512 (Iowa 1990), and Dubuque City Assessor’s Office v. Dubuque Human Rights Commission, 484 N.W.2d 200, 202 (Iowa Ct.App.1992):

In order to recover on her disparate treatment claim of retaliatory discharge ... [Polk] must prove each of the following:

First, that [Polk] complained to the defendant that she was being discriminated against on the basis of race; and

Second, that [Polk] reasonably believed that she was being discriminated against on the basis of race; and

Third, that the defendant discharged [Polk]; and

*3 Fourth, that the defendants’ decision to discharge was made because [sic] [Polk’s] complaint of race discrimination.

If any of the above elements has not been proved, your verdict must be for the defendant and you need not proceed further in considering this claim. The retaliation must be intentional and the focus is on the defendants’ motive. Proof of retaliatory motive is critical, although it can in some situations be informed from the mere fact of differences in treatment.

The State argued the court’s instruction was

an incorrect statement of law for two reasons. It

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ignores the statutory standard set forth in Chapter 216 of the Iowa Civil Rights Act. In particular, it ignores the “because of” language, which is the operative language in the Civil Rights Act with regard to ... claims of discrimination.

It ignores the [Iowa] Supreme Court’s admonition in [Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009) ] that the court ... must be mindful not to substitute federal concepts for the clear words of the Iowa Civil Rights Act. This instruction does that. It also ignores the fact that there is an intent requirement for disparate treatment claims as set forth in [Hy–Vee Food Stores, Inc., 453 N.W.2d at 512].

The State did not proffer an instruction defining the term “because [of],” as used in its proposed marshalling instruction. The court denied the State’s objection, finding the court’s proposed instruction adequately and appropriately set forth the applicable law.

Thereafter, the case was submitted to the jury. The jury found Polk did not prove her claims of race discrimination, but it determined Polk did prove her claim of retaliation, and it awarded damages to Polk. The State subsequently filed a motion for a new trial and judgment notwithstanding the verdict, alleging, among other things, that “it was legal error to deny [its] proposed ‘because of’ retaliation instruction and adopt [Polk’s] proposed ‘motivating factor’ retaliation instruction instead.” A reported hearing was held on the matter, and the State again argued the court should have given a “because of” instruction. The court denied its motion. The State now appeals, contending the district court erred in not using its proposed instruction concerning Polk’s retaliatory-discharge claim. It asserts the “motivating factor” language used by the court incorrectly states the legal standard for retaliation claims under Iowa Code chapter 216 because a higher causation standard was required, causing it prejudice.

II. Scope and Standards of Review. The State’s claim that the trial court should have given its requested instruction is reviewed for an abuse of discretion. See Asher v. OB–Gyn Specialists, P.C., 846 N.W.2d 492, 496 (Iowa 2014). If the trial court materially misstated the law in its instructions, it has committed legal error. See id. However, reversal is not warranted if the record affirmatively establishes the complaining party was not prejudiced. See id. Specifically, if the court’s

error was not one of constitutional magnitude, we will only find prejudicial, reversible error if we determine “it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice.” Id. (internal quotation marks and citation omitted); see also State v. Mayhew, 170 N.W.2d 608, 619 (Iowa 1969).

III. Discussion. *4 The Iowa Civil Rights Act (ICRA), set forth in Iowa Code chapter 216, makes it an unfair or discriminatory practice for an employer “to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment ... because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability” of the employee or job applicant. Iowa Code § 216.6 (Supp.2007); see also Dindinger v. Allsteel, Inc., ––– N.W.2d ––––, 2015 WL 968718, at *2 (Iowa 2015). Section 216.11(2), in turn, provides:

It shall be an unfair or discriminatory practice for ... [a]ny person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.

The State maintained at trial, and advances here, that section 216.6’s use of the word “because” mandates a higher causation standard than the “motivating factor” language used in the district court’s instruction. On appeal, the State suggests that rather than using “a motivating factor,” the court should have required Polk “prove the filing of her complaint was a significant factor in her termination—not that it merely ‘played a part’ in her termination.” Polk contends the State did not argue at trial that the court should use “a significant factor” instead of “a motivating factor” and thus failed to preserve this claim for our review. Polk also contends that, “[w]hen read together, [the jury instructions] accurately stated the applicable law on the causation standard in retaliation cases under the ICRA.” As Polk points out, the State did not mention the phrase

















“a significant factor” when it objected to Instruction No. 13 setting forth the elements of the retaliation claim, nor did it propose in its own jury instruction or in its post-trial motions that “a significant factor” should have been used. In response, the State argues it objected to Instruction No. 13’s use of “a motiving factor” and Instruction No. 15’s definition of “a motivating factor” as “played a part,” and this was sufficient to put the trial court on notice to take the corrective action it now suggests the court should have taken. We disagree. Our supreme court has explained “that objections to jury instructions must specify the matter objected to and the grounds for objection.” Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013) (citing Iowa R. Civ. P. 1.924). “The purpose of the rule is to enable trial counsel to correct any errors in the instructions before the court submits the case to the jury.” Pavone v. Kirke, 801 N.W.2d 477, 496 (Iowa 2011). Consequently, “[o]bjections must be specific enough to put the trial court on notice of the basis of the complaint so the court may appropriately correct any errors before placing the case in the hands of the jury,” and we therefore only consider on appeal the grounds that were sufficiently specified in the objections below. Mitchell, 832 N.W.2d at 703. *5 Here, the State’s own proposed instruction did not use the phrase “a significant factor.” Additionally, its proposed instruction cited the Eighth Circuit’s Civil Jury Instructions numbers 10.41, 5.21, and 5.40, which do not use the language “a significant factor .” Instruction number 10.41 refers the reader to the legal overview stated in instruction number 10.00, which explains that one of the elements of a retaliation claim under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e–3, is that “the plaintiff must show that retaliation was a ‘determining factor’ in the employer’s challenged decision.” See 8th Cir. Civ. Jury Instrs. §§ 10.00 at 251, 10.41 at 257–58 (2013). However, instructions number 5.21 and 5.40 both use the phrase “motivating factor.” See id. §§ 5.21 at 103, 5.40 at 108. In fact, instruction number

5.21 defines “motivating factor” in the following context: “[T]he plaintiff’s (sex, gender, race, national origin, religion, disability) was a ‘motivating factor,’ if the plaintiff’s (sex, gender, race, national origin, religion, disability) played a part [or a role] in the defendant’s decision to _____ the plaintiff.” See id. § 5.21 at 103. Similarly, neither of the cases cited by the State in support of its proposed instruction used the phrase “a significant factor.” See Hy–Vee Food Stores, Inc., 453 N.W.2d at 524 (requiring plaintiff to show “a discriminatory reason more likely motivated” the employer’s decision); Dubuque City Assessor’s Office, 484 N.W.2d at 203 (explaining that “the disparate treatment theory focuses on the employer’s motivation; the disparate impact theory focuses on the consequences of the employer’s conduct”). On appeal the State argues the district court should have used the language “a significant factor.” We agree with Polk that the State failed to advance this argument before the district court and has therefore failed to preserve it for our review here. “Nothing is more basic in the law of appeal and error than the axiom that a party cannot sing a song to us that was not first sung in trial court.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). More specifically, a party cannot amplify or change its objection to an instruction on appeal. See Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986). We cannot assign error to the failure to give an instruction that was not requested. See id. Accordingly, we affirm the district court’s denial of the State’s motion for a new trial and a judgment notwithstanding the verdict. AFFIRMED.

All Citations

Slip Copy, 2015 WL 1817031 (Table), 126 Fair Empl.Prac.Cas. (BNA) 1432

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