MANUAL OF MODEL CIVIL JURY INSTRUCTIONS
FOR THE DISTRICT COURTS OF THE EIGHTH CIRCUIT
(April 2001)
CITE THIS WORK
8TH CIR. CIVIL JURY INSTR. 4.51 (2001)
or
8TH CIR. CIVIL JURY INSTR. 4.51 comment (2001)
COMMITTEE ON MODEL JURY INSTRUCTIONS, EIGHTH CIRCUIT
INTORDUCTION
HOW TO USE THESE INSTRUCTIONS
TABLE OF CONTENTS
#1.
PRELIMINARY INSTRUCTIONS FOR USE AT COMMENCEMENT OF TRIAL
Introductory Comment
These preliminary instructions should be read to the jury at the commencement of trial. They need not be submitted in written form even if other instructions are given in written form at the time the case is submitted to the jury.
1.01 GENERAL: NATURE OF CASE; BURDEN OF PROOF; DUTY OF JURY; CAUTIONARY
";
$id101.="Ladies and gentlemen: I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all such instructions . both those I give you now and those I give you later . are equally binding on you and must be followed.
";
$id101.="This is a civil case brought by the";
$id101.="$A against the";
$id101.="$B. The plaintiff[s]";
$id101.="$C that the defendant[s]";
$id101.="$D.";
$id101.="The defendant[s] $F";
$id101.="that allegation. $E.";
$id101.="It will be your duty to decide from the evidence whether the $A is [are] entitled to a verdict against $B.
";
$id101.="From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.
";
$id101.="In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.
";
$id101.="In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony and the extent to which their testimony is consistent with other evidence that you believe.
";
$id101.="Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. ";
$id101.="You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
";
$id101.="
Notes on Use
$id101.="1. A short, simple statement of the matter in controversy should be stated here.
";
$id101.="2. If there are multiple parties, this can be revised as follows:
It will be your duty to decide from the evidence whether a party is entitled to a verdict against another party.";
$id101.="";
echo $id101
?>
1.03 BENCH CONFERENCES AND RECESSES
During the trial it may be necessary for me to speak with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence which govern the trial, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.
1.04 NO TRANSCRIPT AVAILABLE [NOTE-TAKING]
At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult. You must pay close attention to the testimony as it is given.
[If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.] The Clerk will provide each of you with a pad of paper and a pen or pencil. At each recess, leave them __________.1
[When you leave at night, your notes will be secured and not read by anyone.]2
Committee Comments
Both the unbracketed and bracketed portions of this instruction are optional. The unbracketed portion may help keep jurors attentive and may discourage requests for lengthy readbacks of testimony. The practice of restricting the reading back of testimony is discretionary. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).
There is some controversy over the subject of juror note-taking. See United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995). It is within the discretion of the trial judge to permit the practice. United States v. Anthony, 565 F.2d 533, 536 (8th Cir. 1977), cert. denied, 434 U.S. 1079 (1978); United States v. Rhodes, 631 F.2d 43, 45 (5th Cir. 1980).
If note-taking is permitted, an instruction should be given concerning the use of notes during deliberations. United States v. Rhodes, 631 F.2d at 46 n.3.
See 9th Cir. Crim. Jury Instr. 1.10 and 1.11 (2000). See also 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil §§ 101.13, 101.14 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 8 (1988) U.S. Eleventh Circuit Pattern Jury Instructions - Civil Cases, Preliminary Instructions Before Trial (West 1990); United States v. Rhodes, 631 F.2d at 46 n.3. See generally West Key # "Criminal Law" 855(1).
This instruction is similar to 8th Cir. Crim. Jury Instr. 1.06 (2000)
Notes on Use
1. Tell jurors where their notes are to be left.
2. The court may wish to describe the method to be used for safekeeping. In a high profile case, the court may want to give some additional cautionary instructions.
1.04A QUESTIONS BY JURORS1
[When attorneys have finished their examination of a witness, you may ask questions of the witness (describe procedure to be used here).2 If the rules of evidence do not permit a particular question, I will so advise you. Following your questions, if any, the attorneys may ask additional questions.]
Committee Comments
Some judges permit jurors to ask questions of witnesses during the course of both civil and criminal trials. The advantage of this practice is that jurors become more involved in the trial proceedings and are permitted to address their particular concerns with respect to the issues. See Hener and Penrod, Increasing Jurors' Participation with Jury Notetaking and Question Asking, 12 Law & Human Behavior 231 (1988). See United States v. Johnson, 914 F.2d 136 (8th Cir. 1990) for a summary of Eighth Circuit opinions on the subject. The court applied their typical "abuse of discretion" standard of review to questions to which objections were made and the "plain error" rule to questions to which no objections were made. Some perceive dangers in the practice and have criticized it. See United States v. Johnson, 892 F.2d 707 (8th Cir. 1989) (concurrence by Lay, Chief Judge); United States v. Land, 877 F.2d 17, 19 (8th Cir. 1989); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985). The decision to permit questions by jurors, and the procedures employed to control such questions, should be left to the sound discretion of the trial judge. Although the Committee makes no recommendation on whether jurors should be allowed to question witnesses, the Eighth Circuit strongly discouraged the procedure. The court, in United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992), cert. denied, 507 U.S. 1004 (1993), stated: "[n]evertheless, we state once again that we have strong concerns about juror questioning of witnesses. . . . (Citations omitted.) These decisions in which seven, now eight, of the judges of this court have joined make it evident that juror interrogation of witnesses presents substantial risk of reversal and retrial. Where a record is properly made and the record permits a conclusion that prejudice occurred, this will be the inevitable result."
Notes on Use
1. This instruction may be used if the court permits questioning of witnesses by jurors. Various procedures have been used for handling jurors' questions. Some judges require that the questions be in writing, while others permit the jurors to state their questions orally. The procedure employed for taking jurors' questions, considering objections, and posing the questions should be left to the discretion of the judge. The jury should be advised of the procedure to be used.
2. Different methods have been used. For example:
(1) When attorneys have finished their examination of a witness, you may submit a written question or questions if you have not understood something. I will review each question with the attorneys. You may not receive an answer to your question because 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 to your question. For instance, a later witness or an exhibit you will see later in the trial may answer your question.
(2) Most of the testimony will be given in response to questions by the attorneys. Sometimes I may ask questions of a witness. When the attorneys have finished their questioning of a witness and I have finished mine, I shall ask you whether you have any questions for that witness. If you do, direct each of your questions to me, and if I decide that it meets the legal rules, I shall ask it of the witness. After all your questions for a witness have been dealt with, the attorneys will have an opportunity to ask the witness further about the subjects raised by your questions. When you direct questions to me to be asked of the witness, you may state them either orally or in writing.
(3) The court will permit jurors to submit written questions during the course of the trial. Such questions must be submitted to the court, but, depending upon the court's ruling on the questions, the court may not submit them to the witness. The court will endeavor to permit such questions at the conclusion of a witness' testimony.
1.05 CONDUCT OF THE JURY
Finally, to insure fairness, you as jurors must obey the following rules:
First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me.
Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case . you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side . even if it is simply to pass the time of day . an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, remember it is because they are not supposed to talk or visit with you either.
Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.]1
Sixth, do not do any research (including research in the dictionary) or make any investigation about the case on your own.
Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.
Committee Comments
A similar instruction should be repeated before the first recess, and as needed before other recesses (for example, before a weekend recess). See infra Model Instruction 2.01 for a form of instruction before recesses. See also instructions relating to recesses.
See 9th Cir. Crim. Jury Instr. 1.9 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 101.11 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 1 (1988). See generally West Key # "Criminal Law" 1174(1) for cases on the conduct and deliberations of the jury.
Notes on Use
1. Optional for those cases in which media coverage is expected.
1.06 OUTLINE OF TRIAL
The trial will proceed in the following manner:
First, the plaintiff[s]'s attorney may make an opening statement. Next, the defendant[s]'s attorney may make an opening statement. An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be.
The plaintiff[s] will then present evidence and counsel for defendant[s] may cross-examine. Following the plaintiff[s] case, the defendant may present evidence and plaintiff[s]'s counsel may cross-examine.
After presentation of evidence is completed, the attorneys will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. The court will instruct you further on the law. After that you will retire to deliberate on your verdict.
Committee Comments
See 9th Cir. Crim. Jury Instr. 1.12 (2000); Federal JudicialCenter, Pattern Criminal Jury Instructions 1 (1988); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 101.02 (5th ed. 2000).
2. INSTRUCTIONS FOR USE DURING TRIAL
Introductory Comment
Instructions contained in this section may be read to the jury during the course of the trial. They are not generally intended for submission in written form at the conclusion of the case, although there is no particular reason why, in appropriate circumstances, they could not be submitted to the jury as part of the written package. Generally, they will not be reread to the jury at the conclusion of the case, although the court has discretion to do so.
2.01 DUTIES OF JURY: RECESSES1
We are about to take [our first] [a] recess and I remind you of the instruction I gave you earlier. During this recess or any other recess, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, please let me know about it immediately. [Do not read, watch or listen to any news reports of the trial.]2 Finally, keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.
I may not repeat these things to you before every recess, but keep them in mind throughout the trial.3
Committee Comments
The court has considerable discretion to allow the jury to go home or separate before it has reached a verdict. United States v. Williams, 635 F.2d 744, 745 (8th Cir. 1980) and cases cited therein. However, the jury must be admonished as to their duties and responsibilities when not in court. Such an instruction may be given at the beginning of trial, before recesses and lunch time, and most importantly, before separating for the evening. Id. Although failure to give any instruction of this nature during the course of a trial which was completed in one day has been held harmless error, Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969), it is prejudicial error to allow the jury to separate overnight without a cautionary instruction having been given at any stage of the trial prior to separation. Williams, 635 F.2d at 746. However, the failure to give a cautionary instruction prior to an overnight separation was held not reversible error, absent any other claim of prejudice where the jury had been so cautioned on at least thirteen other occasions. United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983). See also United States v. McGrane, 746 F.2d 632 (8th Cir. 1984) holding that the jury was adequately cautioned when they were so instructed on ten occasions.
See 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.01 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 5 (1988); 9th Cir. Crim. Jury Instr. 2.1 (2000).
Notes on Use
1. This instruction should be given before the first recess and at subsequent recesses within the discretion of the court.
2. This language should be modified for overnight or weekend recesses.
3 This language may be omitted for subsequent breaks during trial, but not for overnight or weekend recesses.
Committee Comments
There is, of course, a difference between stipulating that a witness would give certain testimony, and stipulating that certain facts are established. United States v. Lambert, 604 F.2d 594, 595 (8th Cir. 1979). As to the latter kind of stipulation, see infra Model Instruction 2.03.
See 8th Cir. Crim. Jury Instr. 2.02 (2000); Federal Judicial Center, Pattern Criminal Jury Instructions 11 (1988); 9th Cir. Crim. Jury Instr. 2.3 (2000). See generally West Key # "Stipula.tions" 1.21; "Criminal Law" 1172.1(2).
2.03 STIPULATED FACTS
The plaintiff[s] and the defendant[s] have stipulated .- that is, they have agreed .- that certain facts are as counsel have just stated. You should, therefore, treat those facts as having been proved.
Committee Comments
There is, of course, a difference between stipulating that certain facts are established, and stipulating that a witness would give certain testimony. United States v. Lambert, 604 F.2d 594, 595 (8th Cir. 1979). As to the latter kind of stipulation, see infra Model Instruction 2.02.
When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976).
See 8th Cir. Crim. Jury Instr. 2.03 (2000); Federal Judicial Center, Pattern Criminal Jury Instructions 12 (1988); 9th Cir. Crim. Jury Instr. 2.4 (2000). See generally West Key # "Stipula.tions" 1.21, "Criminal Law" 1172.1(2).
2.04 JUDICIAL NOTICE
I have decided to accept as proved the following fact[s]: __________________.
You must accept [this] [these] fact[s] as proved.
Committee Comments
An instruction regarding judicial notice should be given at the time notice is taken.
Fed. R. Evid. 201(g), while permitting the judge to determine that a fact is sufficiently undisputed to be judicially noticed, also requires that the jury be instructed that it must accept as conclusive any fact judicially noticed in a civil case.
See 8th Cir. Crim. Jury Instr. 2.04 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.20 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 7 (1988); 9th Cir. Crim. Jury Instr. 2.5 (2000). See generally Fed. R. Evid. 201; West Key # "Evidence" 1.52.
2.05 TRANSCRIPT OF TAPE-RECORDED CONVERSATION
As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.
You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you identify the speakers. The tape recording is evidence for you to consider. The transcript, however, is not evidence.
You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. The tape recording itself is the primary evidence of its own contents. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.
Differences between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker's voice, or by inaccuracies in the transcript. You should, therefore, rely on what you hear rather than what you read when there is a difference.
Committee Comments
The transcript, absent stipulation of the parties, should not go to the jury room. See United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976), cert. denied, 430 U.S. 906 (1977).
See 8th Cir. Crim. Jury Instr. 2.06 (2000); see generally United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975); United States v. Bentley, 706 F.2d 1498 (8th Cir. 1983).
2.06 PREVIOUS TRIAL
You have heard evidence that there was a previous trial of this case. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. The fact of a previous trial should have no bearing on your decision in this case.1
Committee Comments
See 8th Cir. Crim. Jury Instr. 2.20 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.42 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 14 (1988); 9th Cir. Crim. Jury Instr. 2.14 (2000). See generally West Key # "Evidence" 575.83. This instruction should not be given unless specifically requested.
Notes on Use
1. The instruction should be modified if the results of the prior trial are introduced.
2.07 CROSS-EXAMINATION OF PARTY'S CHARACTER WITNESS
The questions and answers you have just heard were permitted only to help you decide if the witness really knew about __________'s1 reputation for truthfulness.2 The information developed on that subject may not be used by you for any other purpose.3
Committee Comments
See 8th Cir. Crim. Jury Instr. 2.10 (2000); Federal Judicial Center, Pattern Criminal Jury Instructions 52 (1988). See generally Fed. R. Evid. 404, 405; West Key # "Criminal Law" 673(2), "Witnesses" 274(1); and see also Gross v. United States, 394 F.2d 216 (8th Cir. 1968).
Notes on Use
1. Insert name of person whose character is being challenged.
2. Fed. R. Evid. 404(a) and 608 generally limit character evidence in civil cases to reputation for truth and veracity. It may involve cross-examination on character traits which relate to truth and veracity (gave false information to a law enforcement officer; falsified expense account records).
3. This instruction should be given if requested by the party who has offered the character witness at the time the evidence is introduced.
2.08A EVIDENCE ADMITTED AGAINST ONLY ONE PARTY
Each party is entitled to have the case decided solely on the evidence which applies to that party. Some of the evidence in this case is limited under the rules of evidence to one of the parties, and cannot be considered against the others.
The evidence you [are about to hear] [just heard]1 can be considered only in the case against __________.2
Committee Comments
This type of instruction may be used when evidence limited to one or more parties is admitted. Cf. United States v. Kelly, 349 F.2d 720, 757 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966); but see United States v. Polizzi, 500 F.2d 856, 903 (9th Cir. 1974), cert. denied, 419 U.S. 1120 (1975) (not error to refuse a defendant's requested instruction that no evidence introduced by codefendants could be used against him where he rested at close of plaintiff's case).
See 8th Cir. Crim. Jury Instr. 2.14 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.41 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 19 (1988); 9th Cir. Crim. Jury Instr. 1.14 (2000). See generally West Key # "Criminal Law" 673(4), "Trial" 54(2). Fed. R. Evid. 105 requires such an instruction if requested when evidence is admitted against less than all parties.
Notes on Use
1. If desired, the trial judge may give a brief summary of the evidence which is admitted against only one of the parties.
2. State name of party or parties.
2.08B EVIDENCE ADMITTED FOR LIMITED PURPOSE
The evidence [(you are about to hear) (you have just heard)] may be considered by you only on the [(issue) (question)] __________. It may not be considered for any other purpose.
Committee Comments
Such an instruction is appropriate at the time evidence admitted for a limited purpose is received; for example, when a prior inconsistent statement is admitted, or evidence is admitted or prior similar incidents to prove notice by defendant of a defect.
With respect to the use of prior inconsistent statements, Fed. R. Evid. 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. This instruction is appropriate for that purpose. Note, however, that the limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. Fed. R. Evid. 801(d)(1)(A).
See infra Model Instruction 3.03 for additional comments on credibility.
2.09 IMPEACHMENT OF WITNESS, PRIOR CONVICTION
You have heard evidence that witness1 __________ has been convicted of [a crime] [crimes]. You may use that evidence only to help you decide whether to believe the witness and how much weight to give his [her] testimony.
Committee Comments
The admissibility of prior convictions to impeach a witness' credibility is governed by Fed. R. Evid. 609. In civil cases tried before December 1, 1990, the trial judge had no discretion to balance the probative value against the prejudicial effect. The conviction had to be admitted if it came within the rule. Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989); Jones v. Board of Police Comm'rs, 844 F.2d 500, 504-05 (8th Cir. 1988). Effective December 1, 1990, Rule 609 reinstates the balancing feature. If the conviction involves dishonesty or false statements, it may be admitted even if not a felony. Fed. R. Evid. 609. There is substantial dispute about how much information may be injected concerning the prior conviction. Some judges do not even allow evidence of what crime, or what punishment was involved. The judge may allow evidence of the specific crime committed and the sentence. Ross v. Jones, 888 F.2d 548, 555 (8th Cir. 1989). Fed. R. Evid. 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility.
See 8th Cir. Crim. Jury Instr. 2.18 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.44 (5th ed. 2000); Federal Judicial Center, Pattern Criminal Jury Instructions 30 (1988); Fifth Circuit Pattern Jury Instructions - Civil, Instruction 2.17 ( West 1998); 9th Cir. Crim. Jury Instr. 4.8 (2000). See generally Fed. R. Evid. 609, 105; West Key # "Witnesses" 344(1.5), 345 (1.4).
Notes on Use
1. If the party in a civil case has a conviction which is introduced in evidence, it would be appropriate to modify Eighth Cir. Crim. Inst. 2.16 and give the following instruction, unless the evidence is admitted under Fed. R. Evid. 404(b) to prove motive, intent, plan, etc. Crim. Inst. 2.16, modified for civil cases is as follows:
You [are about to hear] [have heard] evidence that (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] engaged in the conduct alleged here, and you must not use that evidence as any proof [he] [she] engaged in that conduct.
If the evidence is admitted under Fed. R. Evid. 404(b), Crim. Inst. 2.08 may be modified and used.
2.10 SUMMARIES OF RECORDS AS EVIDENCE
Commentary
The Committee recommends that no instruction be given because it is now clear that under Fed. R. Evid. 1006 the summary itself is evidence. See United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir. 1977).
2.11 WITHDRAWAL
The claim of plaintiff[s] that the defendant[s] ___________1 is no longer before you and will not be decided by you.
Committee Comments
This is a simplified form. An identical instruction, Model Instruction 3.05, infra, has been included in section 3 for advising the jury of the withdrawal of a claim at the end of the trial. This instruction is intended for use during the time at which the claim is withdrawn and may be modified and used for the withdrawal of counterclaims or affirmative defenses. If this instruction is given during the course of trial, it need not be given with the final instructions. The judge may wish to discuss the matter of withdrawal of a claim with the lawyers to obtain an agreement as to what the jurors are told.
See 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.60 (5th ed. 2000).
Notes on Use
1. Describe briefly the claim which is being withdrawn. If a defendant is dismissed, modify the instruction as follows:
The claim of plaintiff against defendant ______________ is no longer before you and need not be decided by you.
(Note: If a counterclaim is dismissed, transpose the names of plaintiff and defendant.)
3. INSTRUCTIONS FOR USE AT CLOSE OF TRIAL
Introductory Comment
If issue/element instructions are submitted to the jury in writing, then these general instructions should also be submitted in writing at the same time. They are intended as general instructions to be submitted after all evidence has been presented. They may be given either before or after closing arguments, or may be given partially before and partially after arguments. Fed. R. Civ. P. 51.
The elements instructions included herein all have what might be called a converse tail; that is, a last sentence which tells the jury their verdict must be for defendant if any of the elements have not been proved. It would also be proper if the court or parties desire, to delete that sentence and have a separate instruction which tells the jury their verdict must be for defendant unless they find by a [(greater weight) or (preponderance)] of the evidence that any required element of plaintiff's case has not been proved. See infra Model Instruction 7.02A for the format to be used for such instruction. This approach has the advantage of letting a defendant "target" or "focus" the case on the element which is most contested. It also may aid the jury to know where their attention should be focused.
3.01 EXPLANATORY
Members of the jury, the instructions I gave at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions.
You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. [This is true even though some of those I gave you [at the beginning of] [during] trial are not repeated here.]
1[The instructions I am about to give you now [as well as those I gave you earlier] are in writing and will be available to you in the jury room.] [I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.]
Committee Comments
See 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 103.01 (5th ed. 2000); 9th Cir. Crim. Jury Instr. 3.1 (2000). See generally West Key # "Criminal Law" 887.
Notes on Use
1. Optional for use when the final instructions are to be sent to the jury room with the jury. The Committee recommends that practice.
3.02 JUDGE'S OPINION
Neither in these instructions nor in any ruling, action or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict[s] should be.
[During this trial I have occasionally asked questions of witnesses. Do not assume that because I asked questions I hold any opinion on the matters to which my questions related.]1
Notes on Use
1. Use only if judge has asked questions during the course of the trial.
3.03 CREDIBILITY OF WITNESSES
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, you may consider a witness' intelligence, the opportunity a witness had to see or hear the things testified about, a witness' memory, any motives a witness may have for testifying a certain way, the manner of a witness while testifying, whether a witness said something different at an earlier time,1 the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.
[In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]
Committee Comments
The form of credibility instruction given is within the discretion of the trial court. Clark v. United States, 391 F.2d 57, 60 (8th Cir.), cert. denied, 393 U.S. 873 (1968); United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979). In Clark the court held that the following instruction given by the trial court correctly set out the factors to be considered by the jury in determining the credibility of the witnesses:
You are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her demeanor on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling toward the parties to the trial, the probability or improbability of his or her statements as well as all the other facts and circumstances given in evidence.
391 F.2d at 60. In Merrival, the court held that the following general credibility instruction provided protection for the accused:
You, as jurors, are the sole judges of the truthfulness of the witnesses and the weight their testimony deserves.
You should carefully study all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness's ability to observe the matters as to which he or she has testified and whether each witness is either supported or contradicted by other evidence in the case.
600 F.2d at 720 n.2.
The general credibility instruction given in United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:
The jurors are the sole judges of the weight and credibility of the testimony and of the value to be given to each and any witness who has testified in the case. In reaching a conclusion as to what weight and value you ought to give to the testimony of any witness who has testified in the case, you are warranted in taking into consideration the interest of the witness in the result of the trial; take into consideration his or her relation to any party in interest; his or her demeanor upon the witness stand; his or her manner of testifying; his or her tendency to speak truthfully or falsely, as you may believe, the probability or improbability of the testimony given; his or her situation to see and observe; and his or her apparent capacity and willingness to truthfully and accurately tell you what he or she saw and observed; and if you believe any witness testified falsely as to any material issue in this case, then you must reject that which you believe to be false, and you may reject the whole or any part of the testimony of such witness. (Emphasis omitted.)
The instruction in the text is basically a paraphrase of 9th Cir. Crim. Jury Instr. 3.9 (2000) and 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 101.43 (5th ed. 2000), as approved in United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). However, any factors set out in the Phillips, Clark, or Merrival instructions may be added in as deemed relevant to the case.
A general instruction on the credibility of witnesses is in most cases sufficient. Whether a more specific credibility instruction is required with respect to any particular witness or class of witnesses is generally within the discretion of the trial court.
The credibility of a child witness is covered in 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 105.12 (5th ed. 2000). Ninth Circuit Instruction 4.15 recommends that no "child witness" instruction be given. This Committee joins in those comments.
The testimony of police officers is addressed in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966).
Factors to be taken into account in determining whether a special instruction is warranted with respect to a drug user are discussed in United States v. Johnson, 848 F.2d 904, 905.06 (8th Cir. 1988).
Whether a party is entitled to a more specific instruction on witness bias is also generally left to the discretion of the trial court. See United States v. Ashford, 530 F.2d 792, 799 (8th Cir. 1976).
See 9th Cir. Crim. Jury Instr. 3.9 (2000); 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 105.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions - Civil, Instruction 3.1 (West 1998); U.S. Eleventh Circuit Pattern Jury Instructions - Civil Cases, Instruction 3 (West 1990); United States v. Hastings, 577 F.2d 38, 42 (8th Cir. 1978). See generally West Key # "Criminal Law" 785(1.16).
See also Model Instruction l.05, infra.
Notes on Use
1. With respect to the use of prior inconsistent statements (second paragraph of this instruction), Fed. R. Evid. 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. Fed. R. Evid. 801(d)(1)(A).
3.04 BURDEN OF PROOF
In these instructions you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim [or defense]1 depends upon that fact. The party who has the burden of proving a fact must prove it by the [(greater weight) or (preponderance)]2 of the evidence. To prove something by the [(greater weight) or (preponder.ance)] of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. [If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.]
[The [(greater weight) or (preponderance)] of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]
[You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.]
Committee Comments
The phrases which are bracketed are optional, depending upon the preference of the judge. If a different burden-of-proof instruction is used, the issue/element instructions should be modified to correspond to the language of that burden-of-proof instruction. Again, the Committee recognizes that judges may desire to use the burden-of-proof formulation found in the pattern jury instructions adopted by their particular states. If such a burden-of-proof instruction is used, the issue/element instruction must be modified accordingly. The elements instructions will direct the jury to find in favor of a party if "it has been proved," without reference to who must prove the elements. That is not an oversight because it does not matter which party proves something, e.g., whether defendant proved part of plaintiff's case. It only matters, at that stage in the proceedings, whether it has been proved by anyone.
Clear and convincing evidence is needed in very limited circumstances, for example, in a diversity case when the state standard is clear and convincing. Cases to set aside transfers as a fraud on creditors tried before a jury do not require such proof. They also use the general federal "preponderance of the evidence" standard of proof. Grogan v. Garner, 498 U.S. 279 (1991).
Notes on Use
1. Include when an affirmative defense will be submitted to the jury.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3.05 WITHDRAWAL (OF CLAIM)
The claim of plaintiff[s] that the defendant[s] ___________1 is no longer before you and will not be decided by you.
Committee Comments
This instruction is intended for use during the time at which the claim is withdrawn and may be modified and used for the withdrawal of counterclaims or affirmative defenses. If this instruction is given during the course of trial, it need not be given with the final instructions. The judge may wish to discuss the matter of withdrawal of a claim with the lawyers to obtain an agreement as to what the jurors are told.
See 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.60 (5th ed. 2000).
Notes on Use
1. Describe briefly the claim which is being withdrawn. If a defendant is dismissed, modify the instruction as follows:
The claim of plaintiff against defendant ______________ is no longer before you and will not be decided by you.
(Note: If a counterclaim is dismissed, transpose the names of plaintiff and defendant.)
3.06 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS
WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges . judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone . including me . how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be . that is entirely for you to decide.1
Finally, the verdict form is simply the written notice of the decision that you reach in this case. [The form reads: (read form)]. You will take this form to the jury room, and when each of you has agreed on the verdict[s], your foreperson will fill in the form, sign and date it, and advise the marshal or bailiff that you are ready to return to the courtroom.
[If more than one form was furnished, you will bring the unused forms in with you.]
Committee Comments
If a hung jury is possible, use Model Instruction 3.07, infra.
Notes on Use
1. The trial judge may give a fair summary of the evidence as long as the comments do not relieve the jury of its duty to find that each party has proved those elements of the case upon which such party has the burden of proof. Judges may, in appropriate cases, focus the jury on the primary disputed issues, but caution should be exercised in doing so. See United States v. Neumann, 887 F.2d 880, 882-83 (8th Cir. 1989) (en banc).
3.07 "ALLEN" CHARGE TO BE GIVEN AFTER EXTENDED DELIBERATION
As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.
In the course of your deliberations you should not hesitate to reexamine your own views, and to change your opinion if you are convinced it is wrong. To reach a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.
Finally, remember that you are not partisans; you are judges - judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.
You may conduct your deliberations as you choose. But I suggest that you carefully [re]consider all the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.
There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.1
[Please go back now to finish your deliberations in a manner consistent with your good judgment as reasonable persons.]2
Committee Comments
This instruction is a modification of 8th Cir. Crim. Jury Instr. 10.02 (2000). See also the
Committee Comments
in that instruction. The language of this instruction covers the essential points of the traditional "Allen" charge, taken from the instruction approved in United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge Gibson noted in Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982) that "caution . . . dictates . . . that trial courts should avoid substantial departures from the formulations of the charge that have already received judicial approval."
It is not necessarily reversible error for the trial court to give a supplemental instruction sua sponte and even without direct announcement by the jury of its difficulty. United States v. Smith. The safe practice, however, would be to give such an instruction only after the jury has directly communicated its difficulty or the length of time spent in deliberations, compared with the nature of the issues and length of trial, and makes it clear that difficulty does exist. A premature supplemental charge certainly could, in an appropriate case, be sufficient cause for reversal.
The trial court may make reasonable inquiries to determine if a jury is truly deadlocked, but may not ask the jury of the nature and extent of its division. Lowenfield v. Phelps, 484 U.S. 231 (1988); Brasfield v. United States, 272 U.S. 448 (1926); United States v. Webb, 816 F.2d 1263, 1266 (8th Cir. 1987). The fact that the court inadvertently learns the division of the jurors does not, by itself, prevent the giving of a supplemental charge. United States v. Cook, 663 F.2d 808 (8th Cir. 1981); Anderson v. United States, 262 F.2d 764, 773-74 (8th Cir.), cert. denied, 360 U.S. 929 (1959). Such an instruction can be coercive, however, where the sole dissenting juror is aware that the court knows his identity. United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984).
In this circuit the defendant is not entitled to an instruction that the jury has the right to reach no decision. United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).
A court may give an Allen charge without consent of the lawyers. It has been widely approved by federal courts of appeal as a fair and reasonable way to urge jurors to reach a verdict. The Eighth Circuit, in criminal cases, has consistently upheld the authority of the court to give the Allen charge after extended jury deliberation without either requesting or receiving consent from the attorneys representing the parties. See, e.g., United States v. Singletary, 562 F.2d 1058, 1060 (8th Cir. 1977); United States v. Ringland, 497 F.2d 1250, 1252-53 (8th Cir. 1974).
The Third Circuit has totally banned Allen charges, holding that such charges are overly coercive. United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969). The Tenth Circuit has cautioned that the Allen charge should be included, if at all, in the original instructions due to the "inherent danger in this type of instruction when given to an apparently deadlocked jury." United States v. Wynn, 415 F.2d 135, 137 (10th Cir. 1969).
While the Eighth Circuit has "encouraged district courts to consider with particular care whether a supplemental Allen instruction is absolutely necessary under the circumstances," Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982) (citing United States v. Smith, 635 F.2d at 722), the Eighth Circuit has refused to adopt the Third Circuit ban on Allen charges. United States v. Skillman, 442 F.2d 542, 558 (8th Cir. 1971).
Although Allen charges have primarily been considered in criminal cases, courts in civil cases also have authority to give Allen charges. See Railway Express Agency v. Mackay, 181 F.2d 257, 262-63 (8th Cir. 1950); Hill v. Wabash Ry. Co., 1 F.2d 626, 631 (8th Cir. 1924). See also 3 Sand, Siffert, Reiss, Sexton and Thrope, Modern Federal Jury Instructions, Instruction 78.4 Comment, p. 78-12 to 78-13 (1990). Therefore, courts in both criminal and civil cases have the authority to give Allen charges without the consent of attorneys for the parties.
Notes on Use
1. A more expanded version of this instruction has been approved by this Circuit. See United States v. Smith, 635 F.2d at 722.23; United States v. Singletary, 562 F.2d at 1060.61; United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983).
2. Use this sentence when this charge is being given after deliberations have begun.
4. CIVIL RIGHTS - ELEMENT AND DAMAGE INSTRUCTIONS
Introductory Comment
Section 4 contains jury instructions relating primarily to prisoner civil rights cases. This section is organized as follows:
4.10 - 4.19 Instructions covering cases filed by individuals who are complaining of the manner in which they were treated at the time they were arrested and before they were placed in confinement (governed generally by the Fourth Amendment);
4.20 - 4.29 Instructions covering complaints filed by individuals after they are placed in confinement but before they are convicted (pretrial detainees) (governed generally by the Fifth and Fourteenth Amend.ments due process clauses which require that force be reasonably related to legitimate institutional needs; and
4.30 - 4.39 Instructions covering complaints filed by individuals after they are sentenced (governed generally by the Eighth Amendment).
4.40 - 4.49 Definitions
4.50 - 4.59 Damages
4.60 - 4.69 Verdict Forms
4.10 EXCESSIVE USE OF FORCE - ARREST OR OTHER SEIZURE OF
PERSON - BEFORE CONFINEMENT - FOURTH AMENDMENT
Your verdict must be for plaintiff [and against defendant __________]1 [here generally describe the claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, defendant [here describe an act such as "struck, hit, or kicked"]4 plaintiff in the act of [arresting or stopping]5 plaintiff, and
Second, the use of such force was excessive because it was not reasonably necessary to [here describe the purpose for which force was used such as "arrest plaintiff," or "take plaintiff into custody," or "stop plaintiff for investigation"], and
Third, as a direct result, plaintiff was damaged,6 and
[Fourth, defendant was acting under color of state law.]7
In determining whether such force, [if any]8 was "not reasonably necessary," you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used such force under similar circumstances. [The jury must consider that police officers are often forced to make judgments about the amount of force that is necessary in circumstances that are tense, uncertain and rapidly evolving.]9 [The jury must consider whether the officer's actions are reasonable in the light of the facts and circumstances confronting the officer, without regard to the officer's own state of mind, intention or motivation.]10
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, then your verdict must be for defendant.
Committee Comments
This instruction should only be used in connection with claims by unconvicted persons that excessive force was used to arrest them, stop them for investigation, or otherwise seize them. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court rejected substantive due process standards which had long been applied in cases involving claims by unconvicted persons of excessive force by public officers. Rather, the Court held that a "reasonableness" standard, derived from the Fourth Amendment, applied in cases involving the use of force in making an arrest or an investigatory stop. Id. at 393-94. See also Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993). Thus, in cases involving claimed excessive use of force in the seizure of unconvicted persons, the trial judge cannot rely upon the pre-Graham body of law which applied substantive due process standards under Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983).
Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989) specifically recognized that the "shock the conscience" standard is not appropriate in arrest cases. The case reaffirmed that the four factors set forth in Davis v. Forrest, 768 F.2d 257 (8th Cir. 1985) are sufficient in the jury instruction, and that it would not be appropriate to require an additional finding that the defendant's conduct "shocks the conscience" before a constitutional violation is found.
Once an unconvicted person becomes a pretrial detainee, the use of force is measured by a substantive due process standard of the Fifth and Fourteenth Amendments. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th Cir. 1989). See generally, Model Instruction 4.20, infra, for use of excessive force claims of pretrial detainees. The Eighth Circuit has not decided when the person's status changes from "arrestee" to "pretrial detainee." Most circuits that have addressed the issue found that the person becomes a pretrial detainee after the time of the first appearance before a judicial officer. See Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989); Hammer v. Gross, 884 F.2d 1200, 1204 (9th Cir. 1989), vacated en banc on other grounds, 932 F.2d 842, 845 n.1 (9th Cir. 1991) (noting agreement with Fourth Amendment standard), cert. denied, 502 U.S. 980 (1991); Austin v. Hamilton, 945 F.2d 1155, 1159-60, 1162 (10th Cir. 1991), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304 (1995); Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993). These cases are discussed and collected in Pyka v. Village of Orland Park, 906 F. Supp. 1196, 1220 (N.D. Ill. 1995). The prevailing view appears to be that the use of force by the arresting officer, after the individual is taken into custody, but prior to the first appearance before a neutral judicial officer, is to be decided under Fourth Amendment standards. The individual's status as a pretrial detainee continues until the individual has been sentenced. Williams-El v. Johnson, 872 F.2d 224, 228-29 (8th Cir. 1989) (a person convicted, not yet sentenced, is still a pretrial detainee).
Any injury can be sufficient to warrant an award of damages. See Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988); Bolin v. Black, 875 F.2d 1343, 1350 (8th Cir.), cert. denied, 493 U.S. 993 (1989). The jury should be instructed on nominal damages when appropriate. See infra Model Instruction 4.52.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Describe the claim if plaintiff has more than one claim against this defendant.
3 Select the bracketed language which corresponds to the burden-of-proof instruction given.
4 The conduct indicated by plaintiff's evidence should be described generally.
5 Here describe the nature of the seizure of plaintiff in which defendant was engaged. For the standards for determining whether a seizure under the Fourth Amendment was made or claimed, see California v. Hodari D., 499 U.S. 621 (1991); Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993).
6 A finding that plaintiff suffered some actual injury or damage is necessary before an award of substantial compensatory damages may be made under 42 U.S.C. § 1983. Cunningham v. City of Overland, 804 F.2d 1066, 1069-70 (8th Cir. 1986). Specific language which describes the damage plaintiff suffered may be included here and in the damage instruction. Model Instruction 4.51, infra.
A nominal damages instruction may have to be submitted under Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988). See infra Model Instruction 4.52.
7 Use this paragraph only if there is an issue as to whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction. Color of state law will have to be defined on the factual issue specified if this paragraph is used. See infra Model Instruction 4.40.
8 Include this phrase if defendant denies the use of any force.
9 Add this phrase if appropriate. See Graham v. Connor, 490 U.S. 386 (1989).
10 Add this phrase if justified by the evidence. See Graham v. Connor, 490 U.S. 386 (1989).
4.20 EXCESSIVE USE OF FORCE . PRETRIAL DETAINEES -
FIFTH AND FOURTEENTH AMENDMENTS
Your verdict must be for plaintiff [and against defendant __________]1 [here generally describe the claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, defendant [here describe an act such as "struck, hit, or kicked"]4 plaintiff, and
Second, the use of such force was excessive because it was not reasonably necessary to [here describe the purpose for which force was used such as "restore order," or "maintain discipline,"]5, and
Third, as a direct result, plaintiff was damaged,6 and
[Fourth, defendant was acting under color of state law.]7
In determining whether the force [if any]8 was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether it was used for punishment or instead to achieve a legitimate purpose such as maintaining order or security within [here describe the facility in which plaintiff was incarcerated] and whether a reasonable officer on the scene would have used such force under similar circumstances.
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, then your verdict must be for defendant.
Committee Comments
At the time of arrest, a person's right to be free from excessive force is determined under the Fourth Amendment. See infra
Committee Comments
to Model Instruction 4.10. However, different constitutional protections may apply at different junctures of the custodial continuum running through initial arrest to post-conviction incarceration. Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir. 1993); Austin v. Hamilton, 945 F.2d 1155, 1158 (10th Cir. 1991); Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990). Precisely when the standards shift is the subject of debate. See Austin v. Hamilton, 945 F.2d at 1158-60 (discussion of the debate among the circuits). Once an unconvicted person becomes a pretrial detainee, the use of force is measured by a substantive due process standard under the Fifth and Fourteenth Amendments. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th Cir. 1989). See generally Model Instruction 4.10, infra, for claims involving use of excessive force during arrest. The Eighth Circuit has not decided when the person's status changes from "arrestee" to "pretrial detainee." Most circuits that have addressed the issue found that the person becomes a pretrial detainee after the time of the first appearance before a judicial officer. See Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989); Hammer v. Gross, 884 F.2d 1200, 1204 (9th Cir. 1989), vacated en banc on other grounds, 932 F.2d 842, 845 n.1 (9th Cir. 1991) (noting agreement with Fourth Amendment standard), cert. denied, 502 U.S. 980 (1991); Austin v. Hamilton, 945 F.2d 1155, 1159-60, 1162 (10th Cir. 1991), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304 (1995); Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993). These cases are discussed and collected in Pyka v. Village of Orland Park, 906 F. Supp. 1196, 1220 (N.D. Ill. 1995). The prevailing view appears to be that the use of force by the arresting officer, after the individual is taken into custody, but prior to the first appearance before a neutral judicial officer, is to be decided under Fourth Amendment standards. The individual's status as a pretrial detainee continues until the individual has been sentenced. Williams-El v. Johnson, 872 F.2d 224, 228-29 (8th Cir. 1989) (a person convicted--but not yet sentenced--is still a pretrial detainee). See also Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th Cir. 1989). See, e.g., Davis v. Hall, 992 F.2d 151 (8th Cir. 1993) and Ervin v. Busby, 992 F. 2d 147 (8th Cir. 1993). It is not clear to what extent this standard is different from the Fourth Amendment reasonableness standard, or the Eighth Amendment standard. See Davis v. Hall, 992 F.2d 151 (8th Cir. 1993); Ervin v. Busby, 992 F.2d 147 (8th Cir. 1993).
In Ferguson v. Cape Girardeau, 88 F.3d 647, 650 (8th Cir. 1996), the court stated
Conditions of pretrial confinement are impermissible if they constitute punishment as determined by the due process standards of the Fifth and Fourteenth Amendments. See Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979). "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.'" Id. at 539, 99 S. Ct. at 1874. In evaluating the conditions, the court must look to a number of factors, including the size of the detainee's living space, the length of the confinement, the amount of time spent in the confined area each day, and the opportunity for exercise. See A.J. v. Kierst, 56 F.3d 849, 854-55 (8th Cir. 1995) (citations omitted).
However, in Whitnack v. Douglas County, 16 F.3d 954 (8th Cir. 1994), the court applied the deliberate indifference standard in a conditions of confinement case involving both convicted individuals and pretrial detainees. In Davis, the court applied the deliberate indifference standard in a case involving medical care of a pretrial detainee. Thus, it appears the Eighth Circuit will use the deliberate indifference standard in some cases involving conditions of confinement and denial of adequate medical care and the reasonableness standard in other cases. However, because it is not permissible to punish pretrial detainees, the Eighth Amendment standard, which permits punishment that is not cruel or unusual, should not be used in excessive force cases. Thus, excessive force claims by pretrial detainees should be resolved by use of the reasonableness standard of the Fifth and Fourteenth Amendments due process clauses. This instruction uses the reasonableness standard.
Under the Due Process Clause, a pretrial detainee may not be punished prior to conviction. Williams-El, 872 F.2d at 228. Thus, the use of force must be necessary to some legitimate institutional interest such as safety, security or efficiency, and the force used may not be in excess of that reasonably believed necessary to achieve those goals. Johnson-El, 878 F.2d at 1048. It seems unlikely the court will apply Eighth Amendment standards for cases involving excessive force by guards; thus, this instruction should be used in such cases.
Any injury can be sufficient. See Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988); Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989), cert. denied, 493 U.S. 993 (1989). The jury should be instructed on nominal damages, when appropriate. See infra Model Instruction 4.52.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Describe the claim if plaintiff has more than one claim against this defendant.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. The conduct indicated by plaintiff's evidence should be described generally.
5. See City of Canton v. Harris, 489 U.S. 378 (1989) for the standard for the pretrial detainee who is in custody. This instruction applies to persons who are not yet in custody at the time the excessive force is alleged to have occurred.
6. A finding that plaintiff suffered "damage, pain, misery, anguish or similar harm" is necessary for an Eighth Amendment violation. See Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988). But see Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989), cert. denied, 493 U.S. 993 (1989) (sufficient to instruct that "unnecessary and wanton infliction of pain" was necessary without requiring a finding of injury). Specific language which describes the damage plaintiff suffered may be included here, and in the damage instruction, Model Instruction 4.51, infra. Nominal damages will also have to be submitted under Cowans. See infra Model Instruction 4.52.
7. Use this language if there is an issue as to whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction. Color of state law will have to be defined on the factual issue specified if this paragraph is used. See infra Model Instruction 4.40.
8. Include this phrase if defendant denies the use of any force.
4.30 EXCESSIVE USE OF FORCE . CONVICTED PRISONERS -
EIGHTH AMENDMENT
Your verdict must be for plaintiff [and against defendant __________]1 [here generally describe the claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, defendant [here describe an act such as "struck, hit, or kicked"]4 plaintiff, and
Second, the use of such force was excessive and applied maliciously and sadistically5 for the very purpose of causing harm; [and not in a good faith effort to achieve a legitimate purpose;]6 and
Third, as a direct result, plaintiff was damaged,7 and
[Fourth, defendant was acting under color of state law.]8
In determining whether the force[, if any]9 was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used[,] [and] the extent of the injury inflicted[, and whether the force was used to achieve a legitimate purpose or wantonly for the very purpose of causing harm]. "Maliciously" means intentionally injuring another without just cause or reason. "Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty.
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, then your verdict must be for defendant.
Committee Comments
This instruction should only be used when a convicted person claims his constitutional rights were violated because of the use of force by a state official or officer. If the plaintiff was a convicted prisoner at the time of the alleged violation, the appropriate standard derives from the Eighth Amendment. Graham v. Connor, 490 U.S. 386 (1989); Whitley v. Albers, 475 U.S. 312 (1986); Hudson v. McMillian, 503 U.S. 1 (1992); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985). The standards first articulated in Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973) have been applied to excessive force cases involving both convicted and unconvicted persons. Compare Black Spotted Horse v. Else with Bauer v. Norris, 713 F.2d 408, 412.13 (8th Cir. 1983). However, in Graham the Supreme Court held that such standards, insofar as they direct an assessment of defendant's intent, are inappropriate in cases involving unconvicted persons. Graham v. Connor, 490 U.S. at 393-96. On the other hand, the standards of Johnson are appropriate for Eighth Amendment cases in that they require a balancing of factors, including defendant's mental state. See Hudson v. McMillian,; Burgin v. Iowa Dept. of Corr., 923 F.2d 637, 638 (8th Cir. 1991); DeGidio v. Pung, 920 F.2d 525, 532 (8th Cir. 1990) (malicious and sadistic standard); Stenzel v. Ellis, 916 F.2d 423, 427 (8th Cir. 1990). See note 5 for a discussion about whether the term "sadistic" should be included in the instruction.
The Committee recommends that a separate instruction presenting the affirmative defense of qualified immunity based upon defendant's "good faith" should not be given. A separate instruction is unnecessary because the issue/elements instruction itself requires the jury to assess defendant's intent in an Eighth Amendment context. See Graham v. Connor. Furthermore, the issue of good faith immunity is an issue the judge must decide, it is not a jury issue. Coffman v. Trickey, 884 F.2d 1057, 1062-63 (8th Cir. 1989). The elements instruction should set forth facts which, if found to be true, entitle plaintiff to a verdict.
Two phrases frequently come up in these cases. One is "maliciously and sadistically for the very purpose of causing harm," and the other is "wanton infliction of pain." The recent Eighth Circuit cases of Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994) and Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993) place substantial emphasis on the use of the words "malicious" and "sadistic" in the instructions themselves. The use of both phrases would be redundant. The Committee sees no benefit in telling the jury that the defendant must have acted both maliciously and sadistically for the very purpose of causing harm and for the purpose of wantonly inflicting pain. Thus, the "wanton infliction of pain" clause has been eliminated.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Describe the claim if plaintiff has more than one claim against this defendant.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. The conduct indicated by plaintiff's evidence should be described generally.
5. The issue of defendant's intent must be addressed as an element of the claim. Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994); Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993). If plaintiff claims force was used for an illegitimate purpose, for example, to deter his access to the courts, the trial judge should consider a modification of this phrase to reflect that improper purpose. If no force at all was appropriate, the term "excessive" could be replaced with "unnecessary." It has been suggested that the jury should not be directed to consider whether the force was applied maliciously if institutional security was not involved. See Wyatt v. Delaney, 818 F.2d 21, 23 (8th Cir. 1987). However, this element repeatedly has been associated with Eighth Amendment violations in excessive force cases. See Graham v. Connor; Whitley v. Albers. See also Cowans v. Wyrick. The cases frequently use the phrase "maliciously and sadistically." The Eighth Circuit has indicated that the term "sadistically" is necessary to a correct statement of the law. Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994). The term "sadistic," to some people, has sexual connotations. The Committee, therefore, recommends that both "maliciously" and "sadistically" be defined. See infra Model Instructions 4.45 and 4.46.
6. Use this phrase if the defendant acknowledges the use of force, but asserts that the force was used to achieve a legitimate purpose.
7. A finding that plaintiff suffered damage or "pain, misery, anguish or similar harm" may be necessary for an Eighth Amendment violation. See Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988). But see Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989), cert. denied, 493 U.S. 993 (1989) (sufficient to instruct that "unnecessary and wanton infliction of pain" was necessary without requiring a finding of injury). Specific language which describes the damage plaintiff suffered may be included here, and in the damage instruction, Model Instruction 4.51, infra. Nominal damages will also have to be submitted under Cowans. See infra Model Instruction 4.52.
8. Use this language if there is an issue as to whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction. Color of state law will have to be defined on the factual issue specified if this paragraph is used. See infra Model Instruction 4.40.
9. Include this phrase if defendant denies the use of any force.
4.31 DENIAL OF MEDICAL CARE . CONVICTED PRISONERS*
42 U.S.C. § 1983
Your verdict must be for plaintiff [and against defendant __________]1 [on plaintiff's claim of deliberate indifference to his serious medical need]2 if all of the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, plaintiff had a serious need for [describe plaintiff's medical need, such as "treatment for a broken leg" or "pain medication"], and
Second, defendant was aware of plaintiff's serious need for such ["medical care" or "pain medication"], and
Third, defendant,4 with deliberate indifference,5 failed to ["provide the medical care" or "direct that the medical care be provided" or "allow plaintiff to obtain the medical care needed"] [within a reasonable time],6 and
Fourth, as a direct result, plaintiff was damaged,7 and
[Fifth, defendant was acting under color of state law.]8
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, then your verdict must be for defendant.
Committee Comments
* See infra Model Instruction 4.20 for a discussion of the standards to be applied when dealing with use of force on pretrial detainees. Medical claims of pretrial detainees, in the Eighth Circuit, will be governed by the Eighth Amendment standard as long as Davis v. Hall, 992 F.2d 151 (8th Cir. 1993) is the controlling case. The "deliberate indifference" standard used in this instruction is an Eighth Amendment standard which is designed for use involving convicted persons. See Wilson v. Seiter, 501 U.S. 294 (1991); Farmer v. Brennan, 511 U.S. 825 (1994).
This instruction is derived from Estelle v. Gamble, 429 U.S. 97 (1976), which applies the Eighth Amendment to the United States Constitution to medical claims and sets the standards. Wilson did not change the standard, although it made it even more clear that the deliberate indifference standard applies to all conditions of confinement cases of convicted persons and that negligence is not sufficient.
See Gobert and Cohen, Rights of Prisoners § 11.10.
The following definition of "serious medical need" should be considered:
A “serious” medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977).
This definition of "serious medical need" was approved in Johnson v. Busby, 953 F.2d 349 (8th Cir. 1991).
Deliberate indifference, as used in a medical case means:
[Intentionally] [deliberately] ignoring plaintiff's [serious medical needs]. Deliberate indifference is established only if there is actual knowledge of a substantial risk that plaintiff has a serious medical problem and if the defendant consciously refuses to take steps to deal with the problem. Mere negligence or inadvertence does not constitute deliberate indifference.
See Campbell v. Greer, 831 F.2d 700, 702 (7th Cir. 1987). Campbell also included the word "recklessly" in the definition. Analysis of the court's language in Wilson and Farmer indicates the court is limiting Eighth Amendment claims to those in which plaintiff can show actual subjective intent rather than just recklessness in the tort sense. In Wilson, the court characterized as Eighth Amendment violations only acts which are "deliberate act[s] intended to chastise or deter" (emphasis added) or “punishment [which] has been deliberately administered for a penal or disciplinary purpose" (emphasis added). Wilson, 501 U.S. at 300. In Farmer, the court stated that recklessness in the criminal law context is what is contemplated and that requires actual knowledge of a substantial risk. Farmer at 837. The court, continuing to follow the deliberate indifference standard, clearly stated that negligence was not sufficient. Application of this standard to some issues involving pretrial detainees is required by the Eighth Circuit (see cases cited in Instruction 4.20).
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Use this language when plaintiff has more than one claim.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. This instruction assumes that defendant had the responsibility to provide care for plaintiff's serious medical needs. If defendant has no duty, then a directed verdict would be appropriate. If the existence of the duty is disputed, the issue may be a question of law for the judge to decide. If a specific fact is disputed, which will be determinative of defendant's responsibility, that fact should be submitted to the jury. For example, it may be disputed whether a certain person was working on a certain day. That question should be specifically submitted to the jury. The legal question whether a duty arises from a specific set of facts is a question for the judge.
5. It is probably best to define "deliberate indifference", although no Eighth Circuit law requires it. See Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989); Duckworth v. Franzen, 780 F.2d 645, 654 (7th Cir. 1985).
6. Add this phrase if it is alleged the medical care was provided but not at a reasonable time.
7. Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988) suggests that actual damages are required in Eighth Amendment cases. But see Carey v. Piphus, 435 U.S. 247 (1978) and Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986), which stated that actual damages are not required in procedural due process cases. The Committee recommends requiring the jury to find that plaintiff sustained damage in all Eighth Amendment cases. The measure of damages is addressed in Model Instructions 4.51 and 4.52, infra. Nominal damages should be submitted in all Eighth Amendment cases, but must be defined in accordance with Cowans and Model Instruction 4.52, infra. See also
Committee Comments
, Model Instruction 4.51, infra.
8. Use this language if the issue of whether the defendant was acting under color of state law is still in the case. Color of state law will have to be defined. See 42 U.S.C. § 1983 and Model Instruction 4.40, infra.
4.32 FAILURE TO PROTECT FROM ATTACK - SPECIFIC ATTACK -
CONVICTED PRISONERS - EIGHTH AMENDMENT
Your verdict must be for plaintiff [and against defendant __________]1 [here generally describe the claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, [here describe the attacker(s) such as "one or more [inmates]"] [here describe an act such as "struck, hit or kicked"]4 plaintiff, and
Second, defendant was aware of the substantial risk of such attack; and
Third, defendant, with deliberate indifference to plaintiff's need to be protected from [such attack], failed to protect plaintiff; and
Fourth, as a direct result, plaintiff was damaged,5 and
[Sixth, defendant was then acting under color of state law.]6
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, then your verdict must be for defendant.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Describe the claim if plaintiff has more than one claim against this defendant.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. The conduct indicated by plaintiff's evidence should be described generally.
5. A finding that plaintiff suffered damage or "pain, misery, anguish or similar harm" may be necessary for an Eighth Amendment violation. See Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir. 1988). But see Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989), cert. denied, 493 U.S. 993 (1989) (sufficient to instruct that "unnecessary and wanton infliction of pain" was necessary without requiring a finding of injury). Specific language which describes the damage plaintiff suffered may be included here, and in the damage instruction, Model Instruction 4.51, infra. Nominal damages will also have to be submitted under Cowans. See infra Model Instruction 4.52.
6. Use this language if there is an issue as to whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction. Color of state law will have to be defined on the factual issue specified if this paragraph is used. See infra Model Instruction 4.40.
4.40 DEFINITION: COLOR OF STATE LAW
42 U.S.C. § 1983
Acts are done under color of law when a person acts or purports to act in the performance of official duties under any state, county or municipal law, ordinance or regulation.
Committee Comments
Adopted from 9th Cir. Civ. Jury Instr. 11.1.1 (1997). See Monroe v. Pape, 365 U.S. 167 (1961), overruled in part, Monell v. Department of Social Services, 436 U.S. 658 (1978); Screws v. United States, 325 U.S. 91 (1945); United States v. Classic, 313 U.S. 299, reh'g denied, 314 U.S. 707 (1941). The court should, if possible, rule on the record whether the conduct of the defendant, if it occurred as claimed by the plaintiff, constitutes acts under color of state (county, municipal) law and not even instruct the jury on this issue. In most cases, the color of state law issue is not challenged and the jury need not be instructed on it. If it must be instructed, this instruction should normally be sufficient.
4.42 DEFINITION: PERVASIVE RISK OF HARM . CONVICTED PRISONERS
42 U.S.C. § 1983
Prisons, by their very nature, are sometimes dangerous, violent and unpredictable.1 Thus, proof of a single or an isolated incident of (violence) (sexual assault) is [ordinarily]2 not sufficient to prove a pervasive risk of harm. On the other hand, it is not necessary to prove that a reign of violence or terror exists in the institution. A pervasive risk of harm exists when (violent acts) (sexual assaults) occur with sufficient frequency that a prisoner or prisoners are put in reasonable fear for their safety and prison officials are aware of the problem and the need for protective measures.3
Notes on Use
1. Falls v. Nesbitt, 966 F.2d 375 (8th Cir. 1992).
2. The Committee believes the word "ordinarily" should not be included unless the case is one in which the jury could appropriately find a pervasive risk of harm from an isolated or single incident. Most cases do not fit that pattern, and including the term "ordinarily" will likely create the impression that it is permissible to find a pervasive risk of harm based on a single incident in the case presented to the jury.
3. Id. at 378.
4.43 DEFINITION: SERIOUS MEDICAL NEED . CONVICTED PRISONERS
42 U.S.C. § 1983
A serious medical need is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.1
Committee Comments
This definition of "serious medical need" was approved in Johnson v. Busby, 953 F.2d 349 (8th Cir. 1991).
Notes on Use
1. Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977).
4.44 DEFINITION: DELIBERATE INDIFFERENCE . CONVICTED PRISONERS
42 U.S.C. § 1983
Deliberate indifference is established only if there is actual knowledge of a substantial risk that plaintiff (describe serious medical problem or other serious harm that defendant is expected to prevent) and if the defendant disregards that risk by intentionally refusing or failing to take reasonable measures to deal with the problem. Mere negligence or inadvertence does not constitute deliberate indifference.
Committee Comments
See Farmer v. Brennan, 511 U.S. 825 (1994) (clearly limiting deliberate indifference to intentional, knowing or recklessness in the criminal law context which requires actual knowledge of a serious risk). Wilson v. Seiter, 501 U.S. 294 (1991). The court is limiting Eighth Amendment claims to those in which plaintiff can show actual subjective intent rather than just recklessness in the tort sense. In Wilson, the court characterized as Eighth Amendment violations only acts which are "deliberate act[s] intended to chastise or deter" (emphasis added) or "punishment [which] has been deliberately administered for a penal or disciplinary purpose" (emphasis added). Wilson, 501 U.S. at 300. The court, continuing to follow the deliberate indifference standard, clearly stated that negligence was not sufficient.
The Committee believes the phrase "deliberate indifference" should probably be defined in most cases, although Eighth Circuit case law does not require it.
4.45 DEFINITION: MALICIOUSLY
"Maliciously" means intentionally injuring another without just cause or reason.
Committee Comments
See Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994).
4.46 DEFINITION: SADISTICALLY
"Sadistically" means engaging in "extreme or excessive cruelty or delighting in cruelty."
Committee Comments
See Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994).
4.51 ACTUAL DAMAGES . PRISONER CIVIL RIGHTS
If you find in favor of plaintiff, then you must award plaintiff such sum as you find from the [(greater weight) or (preponderance)] of the evidence will fairly and justly compensate plaintiff for [any damages]1 you find plaintiff sustained [and is reasonably certain to sustain in the future]2 as a direct result of [insert appropriate language such as "the conduct of defendant as submitted in Instruction _____" or "the failure to provide plaintiff with medical care" or "the violation of plaintiff's constitutional rights."]3 [You should consider the following elements of damages:
1. The physical pain and (mental) (emotional) suffering the plaintiff has experienced (and is reasonably certain to experience in the future); the nature and extent of the injury, whether the injury is temporary or permanent (and whether any resulting disability is partial or total) (and any aggravation of a pre-existing condition);
2. The reasonable value of the medical (hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to the plaintiff (and reasonably certain to be needed and provided in the future);
3. The (wages, salary, profits, reasonable value of the working time) the plaintiff has lost [and the reasonable value of the earning capacity the plaintiff is reasonably certain to lose in the future] because of (his, her) (inability, diminished ability) to work.
[Remember, throughout your deliberations you must not engage in any speculations, guess, or conjecture and you must not award any damages under this Instruction by way of punishment or through sympathy.]
Committee Comments
The damages which may be recovered under 42 U.S.C. § 1983, are of three types: actual or compensatory, nominal and punitive. Memphis Community School District v. Stachura, 477 U.S. 299 (1986). The actual or compensatory damages are to "compensate persons for injuries that are caused by the deprivation of constitutional rights," and not "undefinable value of infringed right" or "presumed" damages. Id. at 307 and 309. See also Carey v. Piphus, 435 U.S. 247 (1978). Actual damages include compensation for out-of-pocket loss, other monetary losses and for impairment of reputation, personal humiliation, mental anguish and suffering. Memphis Community School Dist. v. Stachura.
Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988) suggests that actual damages are required in Eighth Amendment cases. But see Carey v. Piphus, 435 U.S. 247 (1978) and Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986), which stated that actual damages are not required in procedural due process cases. The Committee recommends requiring the jury to find that plaintiff sustained damage in all Eighth Amendment cases. The measure of damages is also addressed in Model Instruction 4.52, infra. Nominal damages should be submitted in all Eighth Amendment cases, but must be defined in accordance with Cowans and Model Instruction 4.52, infra.
Notes on Use
1. A summary of the specific types of damage or injuries which are supported by the evidence can be described here in lieu of the phrase "any damages."
2. Use this language if permanent injuries are involved.
3. It is important to use language that limits the damages recovered to those which are attributable to the improper conduct of the defendant. See Memphis Community Dist. v. Stachura, 477 U.S. 299, 309-10 (1986).
4.52 NOMINAL DAMAGES . PRISONER CIVIL RIGHTS
If you find in favor of plaintiff under Instruction _____,1 but you find that plaintiff's damages have no monetary value,2 then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).3
Committee Comments
This instruction is derived from 3 Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 128.82 (5th ed. 2000). It has been modified slightly.
In certain cases, nominal damages may be recovered when there is a violation of constitutional rights. See Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Tatum v. Houser, 642 F.2d 253 (8th Cir. 1981); Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988). Carey discusses the amount of nominal damages at page 267.
The Committee recommends requiring the jury to find that plaintiff suffered damage in most cases, unless it is clear that recovery is permitted without a showing of any damage or injury. See Memphis and Carey. In classic Eighth Amendment cases, damages must be established and the elements instruction should require the jury to find that plaintiff sustained damage. However, nominal damages must still be submitted in Eighth Amendment cases if requested. The definition contained in this instruction is the one that should be used.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988), a prisoner civil rights case, used the language "unable to place a monetary value" on plaintiff's damages as the proper standard for when nominal damages are appropriate. That language may mislead a jury to believe that nominal damages should be awarded if they are having a difficult time agreeing upon or deciding the amount which should be awarded to compensate for such elements of damage as suffering, humiliation, pain, etc.
3. One Dollar ($1.00) is arguably the required amount in cases in which nominal damages are appropriate. Nominal damages may be appropriate when the jury is unable to place a monetary value on the harm that the plaintiff suffered from the violation of his rights. Cf. Cowans v. Wyrick, 862 F.2d 697 (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 plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984). See
Committee Comments
.
4.53 PUNITIVE DAMAGES . CIVIL RIGHTS
In addition to the damages mentioned in other instructions, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find in favor of plaintiff and against defendant [name] [and if you find the conduct of that defendant as submitted in Instruction _____1 was recklessly and callously indifferent to plaintiff's (specify, e.g., medical needs),]2 then, in addition to any other damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or deter the defendant and others from like conduct in the future. Whether to award plaintiff punitive damages and the amount of those damages are within your sound discretion.3
[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.]4
Committee Comments
In Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991), the Supreme Court held that a punitive damage award is constitutional if the jury instructions have "enlightened the jury as to the punitive damages' nature and purpose, identified the damages as punishment for civil wrongdoing of the kind involved, and explained that their imposition was not compulsory." 499 U.S. at 19. The Committee believes that this punitive damage instruction meets the requirements of Haslip.
Notes on Use
1. Use if more than one element instruction.
2. Punitive damages are allowed even though the threshold for liability requires reckless conduct. If the threshold for the underlying tort liability is less than "reckless," the bracketed language correctly states the standard for punitive damages under 42 U.S.C. § 1983. Smith v. Wade, 461 U.S. 30 (1983). Other optional phrases may be used which embellish or describe the standard for punitive damages, but "reckless" and "callous indifference" state the legal threshold. If the threshold for liability is "reckless conduct" or something more culpable, no additional finding should be necessary because the language in the issue/element instruction requires the jury to find the culpability necessary for imposing punitive damages. However, it is recommended that the punitive damage instruction include such language to be sure the jury focuses on that issue.
3. Factors which may, in appropriate circumstances, be considered by the jury in awarding punitive damages include, but are not limited to:
1. the nature of defendant's conduct;
2. the impact of defendant's conduct on the plaintiff;
3. the relationship between the plaintiff and defendant;
4. the likelihood that the defendant would repeat the conduct if a punitive award is not made;
5. the defendant's financial condition; and
6. any other circumstances shown by the evidence, including any circumstances of mitigation, that bear on the question of the size of any punitive award.
American College of Trial Lawyers, Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice (Mar. 3, 1989). See generally Haslip, 499 U.S. at 19, discussing factors used in Alabama to review appropriateness of punitive damage awards.
4. Use this language if there are multiple defendants. It will have to be modified if plaintiff has numerous elements instructions or if there are multiple plaintiffs.
4.54 et seq. (Reserved for Future Use)
4.60 VERDICT FORM - ONE PLAINTIFF, TWO DEFENDANTS,
ONE INJURY CASE
VERDICT
Note: Complete this form by writing in the names required by your verdict.
On plaintiff (name)'s claim against defendant (name), as submitted in Instruction No. _____, we find in favor of
______________________________________________________________________________
(Plaintiff (name)) or (Defendant (name))
On plaintiff (name)'s claim against defendant (name), as submitted in Instruction No. _____, we find in favor of
______________________________________________________________________________
(Plaintiff (name)) or (Defendant (name))
Note: Complete the following paragraphs only if one or more of the above findings is in favor of plaintiff.
We find plaintiff (name)'s damages to be:
$__________ (stating the amount or, if none, write the word "none")1 (stating the amount, or if you find that plaintiff's damages have no monetary value, set forth a nominal amount such as $1.00).2
Note: You may not award punitive damages against any defendant unless you have first found against that defendant and awarded plaintiff nominal or actual damages.
We assess punitive damages against defendant (name) as follows:
$__________ (stating the amount or, if none, write the word "none").
We assess punitive damages against defendant (name of other defendant) as follows:
$__________ (stating the amount or, if none, write the word "none").
_______________________________
Foreperson
Dated: ___________________
Notes on Use
1. Use this phrase if the jury has not been instructed on nominal damages.
2. Include this paragraph if the jury is instructed on nominal damages.
5. EMPLOYMENT CASES - ELEMENT AND DAMAGE INSTRUCTIONS
Overview
Section 5 contains model elements and damages instructions in employment discrimination cases. Currently, this section only addresses "disparate treatment" cases under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17 (1994) ("Title VII"); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (1994) ("ADEA"); 42 U.S.C. § 1981 (1994); and 42 U.S.C. § 1983 (1994).
Background of "Disparate Treatment" Instructions
When this project commenced in 1987, the Committee anticipated little difficulty in formulating appropriate model instructions. At that time, Title VII cases were not jury triable. See Harmon v. May Broad. Co., 583 F.2d 410, 410 (8th Cir. 1978). Moreover, in ADEA cases, the standard for liability clearly appeared to be whether the plaintiff's age was a "determining factor" in the defendant's employment decision. See Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 n.1 (8th Cir. 1985).
Over the next four years, however, the applicable law changed dramatically. For example, in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court ruled that 42 U.S.C. § 1981 could not be invoked to address claims of racially.motivated discharges or racial harassment. More significantly, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court ruled that different burdens of proof applied in Title VII cases, depending upon the type of evidence offered by the plaintiff: (1) In "pretext" cases, where the plaintiff relied upon "indirect evidence", the Court held that the employee had the burden of proving that unlawful discrimination was a "determining factor" in the challenged employment decision; and (2) in "mixed motive" cases, where the plaintiff relied upon "direct evidence" of discriminatory motivation, the Court ruled that, once the employee established that unlawful bias was a "motivating factor" in the challenged employment decision, the employer had the burden of showing that it would have made the "same decision" in the absence of any unlawful motivation.
Although Price Waterhouse was a Title VII case, the lower courts began applying this pretext/mixed motive distinction in jury cases. Compare Grant v. Hazelett Strip.Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989) (instruction erroneously placed burden of proof on employee who relied upon "direct evidence" of statements manifesting bias) with Lynch v. Belden & Co., 882 F.2d 262, 268.69 (7th Cir. 1989) (absent "direct evidence” of discrimination, burden of persuasion rested squarely with plaintiff). Accordingly, in the wake of Price Waterhouse and its progeny, the Committee developed alternative essential elements instructions for use in ADEA, § 1981, and § 1983 cases. First, in "indirect evidence" cases, the Committee prepared an instruction in which the plaintiff bore the burden of persuasion on the ultimate question of whether discrimination was a "determining factor" in the challenged employment decision. See infra Model Instruction 5.91. Second, in "direct evidence" cases, the Committee drafted an instruction that incorporated the burden.shifting approach announced in Price Waterhouse. See infra Model Instructions 5.11, 5.21, 5.31.
Practical and Analytical Considerations
Despite its ability to draft separate instructions for "pretext" and "mixed motive" cases, the Committee observed that there would be significant difficulty in deciding how to classify a given case. For example, it was not entirely clear that a plaintiff was entitled to a "mixed motive" instruction merely by testifying as to "direct evidence" of discriminatory motivation. Moreover, the Committee noted that the trial court's choice between a "mixed motive" instruction and a "pretext" instruction would be extremely important because of the potentially dispositive difference in the burdens of persuasion contained in these instructions. Consequently, the Committee formulated a model set of special interrogatories to elicit jury findings under both burdens of proof. See infra Model Instruction 5.92.
While these special interrogatories elicited all of the necessary information to permit post.trial analysis under either a "mixed motive" or "pretext" standard, they admittedly were cumbersome and potentially confusing. The Committee also struggled with the logical basis for drawing a distinction between "pretext" and "mixed motive" cases which, in turn, appeared to depend upon the type of evidence offered by the plaintiff.# Indeed, in other contexts, the Committee has counseled against the use of instructions that distinguish between direct and circumstantial evidence. See infra Model Instruction 1.02.
The practical and logical problems created by the pretext/mixed motive distinction were exacerbated when Congress passed the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (hereinafter "CRA of 91"). In this statute, Congress authorized jury trials in Title VII cases and, more importantly from an instructional standpoint, legislatively overruled Price Waterhouse by expressly mandating a motivating factor/same decision analytical format. See CRA of 91, § 107 (codified at 42 U.S.C. § 2000e-z(m) (1994)). In turn, these legislative changes suggested that there could be further practical difficulties in cases where a race discrimination plaintiff joined a "pretext" claim under section 1981 and a claim under Title VII.
Alternative Approaches in "Disparate Treatment" Cases
Against this background, the Committee identified three choices for the "essential elements" instructions in ADEA, § 1981, and § 1983 cases. First, the Committee considered reverting to the use of a "determining factor" standard in all of these cases. Second, the Committee considered retention of separate essential elements instructions for pretext and mixed motive cases, along with the set of special interrogatories for "borderline" cases. Third, the Committee considered adoption of the motivating factor/same decision format in all cases.
Recommended Approach in "Disparate Treatment" Cases
Ultimately, the Committee decided to endorse the third option--the mixed motive/same decision format--as the preferred method of instructing on the issue of liability in "disparate treatment" cases filed under the ADEA, § 1981 and § 1983.# In the Committee's view, this approach has the virtues of uniformity, simplicity and consistency with Title VII cases to which the Civil Rights Act of 1991 applies.# In the event the trial court opts to use a "determining factor" instruction or the set of special interrogatories for "borderline" cases, the Committee has retained sample instructions. See infra Model Instructions 5.91 ("determining factor" instruction), 5.92 (special interrogatories). It bears emphasis that a proper set of instructions must be tailored for each individual case. Cf. Brown v. Stites Concrete, Inc., 994 F.2d 553, 570 (8th Cir. 1993) (en banc) (Loken, J., dissenting from the panel opinion, which was partially reinstated and published as an appendix to the en banc opinion) (criticizing use of model employment instructions without tailoring them for particular case).
5.00 DISPARATE TREATMENT CASES UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, AS AMENDED BY THE CIVIL RIGHTS ACT OF 1991
Introductory Comment
The following instructions are designed for use in jury trials under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. Under the Civil Rights Act of 1991, which was signed into law on November 22, 1991, plaintiffs may recover compensatory and punitive damages in "disparate treatment" cases under Title VII. In Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992), the Eighth Circuit held that section 101 of the 1991 amendments (overruling Patterson v. McLean Credit Union, 491 U.S. 164 (1989)), did not apply retroactively to cases pending at the time of their enactment. See also Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992) (holding that section 114 of the 1991 Act authorizing interest on back pay, and section 113 allowing shifting of expert witness fees, are not retroactive).
5.01 TITLE VII - DISPARATE TREATMENT - ESSENTIAL ELEMENTS
Your verdict must be for plaintiff [and against defendant ___________]1 [on plaintiff's (sex)2 discrimination claim]3 if all the following elements have been proved by the [(greater weight) (preponderance)]4 of the evidence:
First, defendant [discharged]5 plaintiff; and
Second, plaintiff's (sex) was a motivating factor6 in defendant's decision.
If either of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence, your verdict must be for defendant and you need not proceed further in considering this claim.
Committee Comments
This instruction is designed to submit the issue of liability in "disparate treatment" Title VII cases that are subject to the amendments set forth in the Civil Rights Act of 1991. Prior to these amendments, Title VII cases were not jury-triable, Harmon v. May Broad. Co., 583 F.2d 410 (8th Cir. 1978), and the liability standards depended upon whether the case was classified as a "pretext" case or a "mixed motive" case. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under the Civil Rights Act of 1991, these cases will be triable to a jury, see CRA of 91, § 102 (codified at 42 U.S.C. § 1981a(c) (1994)), and, more importantly, the plaintiff prevails on the issue of liability if he or she shows that discrimination was a "motivating factor" in the challenged employment decision. See CRA of 91, § 107 (codified at 42 U.S.C. § 2000e-2(m) (1994)). Plaintiffs who prevail on the issue of liability will be eligible for a declaratory judgment and attorney fees; however, they cannot recover actual or punitive damages if the defendant shows that it would have made the same employment decision irrespective of any discriminatory motivation. See CRA of 91, § 107 (codified at 42 U.S.C. § 2000e-5(g)(2)(B) (1994)); see infra Model Instruction 5.01A ("same decision" instruction).
It is unnecessary and inadvisable to instruct the jury regarding the three-step analysis of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Grebin v. Sioux Falls Indep. School Dist. No. 49.5, 779 F.2d 18, 20-21 (8th Cir. 1985) (ADEA case). See generally Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 135 (8th Cir. 1985) (after all of the evidence has been presented, inquiry should focus on ultimate issue of intentional discrimination, not on any particular step in the McDonnell Douglas paradigm). Accordingly, this instruction is focused on the ultimate issue of whether the plaintiff's protected characteristic was a "motivating factor" in the defendant's employment decision.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. This instruction is designed for use in a gender discrimination case. It must be modified if the plaintiff is claiming discrimination on the basis of race, religion, or some other prohibited factor.
3. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
4. Select the bracketed language that corresponds to the burden-of-proof instruction given.
5. This instruction is designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the instruction must be modified. Where the plaintiff resigned but claims a "constructive discharge," this instruction should be modified. See infra Model Instruction 5.93.
6. The Committee believes that the phrase "motivating factor" should be defined. See infra Model Instruction 5.96.
5.01A TITLE VII . DISPARATE TREATMENT
.
"SAME DECISION" INSTRUCTION
If you find in favor of plaintiff under Instruction ____,1 then you must answer the following question in the verdict form[s]: Has it been proved by the [(greater weight) (preponderance)]2 of the evidence that defendant [would have discharged]3 plaintiff regardless of [his/her] [sex]?4
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 of 91, § 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.
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
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 plaintiff under Model Instruction 5.01, infra, but in favor of defendant on this question under Title VII, is a judgment for 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.
5.02 TITLE VII - DISPARATE TREATMENT - ACTUAL DAMAGES
If you find in favor of plaintiff under Instruction ____1 and if you answer "no" in response to Instruction ____2, then you must award plaintiff such sum as you find by the [(greater weight) (preponderance)]3 of the evidence will fairly and justly compensate plaintiff for any damages you find plaintiff sustained as a direct result of [describe defendant's decision . e.g., "defendant's decision to discharge plaintiff"]. 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 benefits4 plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge] through the date of your verdict,5, 6, 7 minus the amount of earnings and benefits that plaintiff received from other employment during that time.
Second, you must determine the amount of any other damages sustained by plaintiff, such as [list damages supported by the evidence].8 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 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 by the [(greater weight) (preponderance)] of the evidence that 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.]9
[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.]10
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 of 91, § 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 of 91, § 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 of 91, § 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 (10th 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. Arco Chem. 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 (10th 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). 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). If the 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).” Id. 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 shall not be advised on any such limitation. Instead, the trial court will simply reduce the verdict by the amount of any excess.
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
2. Fill in the number or title of the "same decision" instruction here.
3. Select the bracketed language that corresponds to the burden.of.proof instruction given.
4. 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, 470 (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. Syvock v. 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 Co., 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.
5. 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.
6. 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 of back 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, plaintiff is presumptively entitled to front pay through normal retirement age unless employer proves evidence to the contrary).
7. 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 (8th 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).
8. 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 Civil Rights Act of 1991 include "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." CRA of 91, § 102 (codified at 42 U.S.C. § 1981a(b)(3) (1994)). See also Model Instruction 4.51, infra, for a list of some of those damages.
9. 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, 808-809 (8th Cir. 1982).
10. This paragraph may be given at the trial court's discretion.
5.03 TITLE VII - DISPARATE TREATMENT - NOMINAL DAMAGES
If you find in favor of plaintiff under Instruction ____1 and if you answer "no" in response to Instruction ____2, but you find that plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).3
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.
Notes on Use
1. Fill in the number or title of the essential elements instruction (5.01) here.
2. Fill in the number or title of the "same decision" instruction (5.01A) 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 plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).
5.04 TITLE VII - DISPARATE TREATMENT - PUNITIVE DAMAGES
In addition to actual [and nominal] damages mentioned in the other instructions, the law permits the jury under limited circumstances to award an injured person punitive damages.
If you find in favor of plaintiff under Instruction _______,1 and if you answer “no” in response to Instruction _____,2 then you must decide whether defendant acted with malice or reckless indifference to plaintiff’s right not to be discriminated against3 on the basis of [his/her] (sex).4 Defendant acted with malice or reckless indifference if:
it has been proved by the [(preponderance) or (greater weight)] of the evidence that [insert the name(s) of the defendant or manager5 who terminated6 plaintiff] knew that the (termination)5 was in violation of the law prohibiting (sex) discrimination, or acted with reckless disregard of that law.
[However, you may not award punitive damages if it has been proved by the [(preponderance) or (greater weight)] of the evidence [that defendant made a good-faith effort to comply with the law prohibiting (sex)4 discrimination]7.
If you find that defendant acted with malice or reckless disregard and did not make a good-faith effort to comply with the law, then, in addition to any actual [or nominal] damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter defendant and others from like conduct in the future. Whether to award plaintiff punitive damages, and the amount of those damages, are within your discretion.
[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.]8
Committee Comments
Under the Civil Rights Act of 1991, a Title VII 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)(1). See also Model Instruction 4.53, infra, on punitive damages and Pacific Mut. Life Ins. Co. v. Haslip, 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 Association, 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. Id. at 545. The Court does not clarify which party has the burden of proof on the issue of good faith.
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
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 of 91, § 102 (codified at 42 U.S.C. § 1981a(b)(1)).
4. This instruction is designed for use in a gender discrimination case. It must be modified if other forms of discrimination are alleged.
5. Use the name of the defendant, the manager who took the action, or other descriptive phrase such as “the manager who fired plaintiff.”
6. 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.
7. Use this phrase only if the good faith of 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 Association, 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.
8. The bracketed language is available for use if punitive damage claims are submitted against more than one defendant.
5.05 TITLE VII - DISPARATE TREATMENT - VERDICT FORM
VERDICT
Note: Complete the following paragraph by writing in the name required by your verdict.
On the [(sex)1 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 if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberations on this claim.
Has it been proved by the [(greater weight) (preponderance)]4 of the evidence that defendant would have discharged 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 plaintiff's lost wages and benefits through the date of this verdict to be:
$_________ (stating the amount or, if none, write the word "none").
We find plaintiff's other damages, excluding lost wages and benefits, to be:
$_________ (stating the amount [or, if you find that plaintiff's damages do not have a monetary value, write in the nominal amount of One Dollar ($1.00)]).
[We assess punitive damages against 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 infra Model Instruction 5.01.
4. This question submits the "same decision" issue to the jury. See infra Model Instruction 5.01A.
5. Select the bracketed language that corresponds to the burden.of-proof instruction given.
6. This paragraph should be included if the evidence is sufficient to support an award of punitive damages. See infra Model Instruction 5.04.
5.10 DISPARATE TREATMENT CASES UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT ("ADEA")
Introductory Comment
The following instructions are designed for use in "disparate treatment" cases brought pursuant to the Age Discrimination in Employment Act. In the interests of simplicity and uniformity, the model instruction on the issue of liability utilizes a motivating-factor/same-decision format for all cases. See Introductory Note to Section 5. Nevertheless, if the trial court believes it is appropriate to distinguish between a mixed motive case and a pretext case, Model Instruction 5.91, infra, contains a sample pretext instruction. Moreover, if the trial court is inclined to adhere to a pretext/mixed motive distinction but cannot determine how to categorize a particular case, Model Instruction 5.92, infra, contains a set of special interrogatories designed to elicit a complete set of findings for post-trial analysis.
5.11 ADEA . DISPARATE TREATMENT . ESSENTIAL ELEMENTS
(Mixed Motive Case)*
Your verdict must be for plaintiff [and against defendant __________]1 [on plaintiff's age discrimination claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, defendant [discharged]4 plaintiff; and
Second, plaintiff's age was a motivating factor5 in defendant's decision.
However, your verdict must be for defendant if any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] age.
Committee Comments
* For a pretext case, the format of Model Instruction 5.91, infra, is recommended.
This instruction is designed to submit the issue of liability in "disparate treatment" cases brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1994). The burden-shifting analysis used in this instruction had been adopted by the Supreme Court in "mixed motive" cases under both Title VII and 42 U.S.C. § 1983. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87 (1977). Moreover, a similar burden-shifting approach has been legislatively adopted in all Title VII cases by virtue of the Civil Rights Act of 1991. See Introductory Note to Section 5.
To be sure, there is an important difference between Title VII cases and ADEA cases in the use of this format. In Title VII cases, the plaintiff prevails on the issue of liability by showing that discrimination was a "motivating factor" in the challenged employment decision, and a finding that the employer would have made the "same decision" in the absence of any discriminatory motive precludes an award of damages or reinstatement, but does not preclude an award of attorney fees or equitable relief. 42 U.S.C. § 2000e-2(m). It is unclear whether the same result would occur in an age discrimination case. See Fast v. Southern Union Co., Inc., 149 F.3d 885, 889 (8th Cir. 1998) and Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (same) (citing Fast).
At the court's option, a short statement which defines the Age Discrimination in Employment Act may be included at the beginning of this instruction or as a separate instruction. The following language, based on Grebin v. Sioux Falls Indep. Sch. Dist. No. 49.5, 779 F.2d 18, 20 n.1 (8th Cir. 1985), is recommended:
Under the Age Discrimination in Employment Act, it is unlawful for an employer to make an employment decision on the basis of an individual's age when that individual is 40 years of age or older.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. This instruction is designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the instruction must be modified. Where the plaintiff resigned but claims a "constructive discharge," this instruction should be modified. See infra Model Instruction 5.93.
5. The Committee believes that the phrase "motivating factor" should be defined. See infra Model Instruction 5.96.
5.12 ADEA . DISPARATE TREATMENT . ACTUAL DAMAGES
If you find in favor of plaintiff [under Instruction _____,]1 then you must award plaintiff such sum as you find by the [(greater weight) or (preponderance)]2 of the evidence will fairly and justly compensate plaintiff for any wages and fringe benefits3 you find plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge], through the date of your verdict, minus the amount of earnings and benefits from other employment received by plaintiff during that time.
[You are also instructed that 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 by the [(greater weight) or (preponderance)] of the evidence, that 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 of the wages and fringe benefits [he/she] reasonably would have earned if [he/she] had sought out or taken advantage of such an opportunity.]4
[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.]5
Committee Comments
The goal of a damages award in an age discrimination case is to put the plaintiff in the same economic position he would have been in but for the unlawful employment decision. This instruction is designed to submit the standard back pay formula of lost wages and benefits minus interim earnings and benefits. See Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (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., Inc., 910 F.2d 674, 680 (10th 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. Arco Chem. 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); Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 627 (6th Cir. 1983) (same). But cf. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th 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).
In some cases, a discrimination plaintiff may be eligible for front pay. Because front pay is essentially an equitable remedy “in lieu of” reinstatement, front pay is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (front pay is an issue for the court, not the jury, in ADEA cases). If the trial court submits the issue of front pay to the jury, the jury’s determination may be binding. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).
This instruction is designed to encompass a situation where the defendant asserts some independent post-discharge reason--such as a plant closing or sweeping reduction in force--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). Nevertheless, the trial court may give a separate instruction which submits this issue in more direct terms.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
3. When certain benefits, such as employer-subsidized health insurance benefits, 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, 470 (8th Cir. 1989) (discussing different approaches). Some courts deny recovery for lost benefits unless the employee purchases substitute coverage, in which case the measure of damages is the employee's out-of-pocket expenses. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161 (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. 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).
5. This paragraph may be given at the trial court's discretion.
5.13 ADEA . DISPARATE TREATMENT . NOMINAL DAMAGES
[Nominal damages normally are not allowed in ADEA disparate treatment cases.]
Committee Comments
Recoverable damages in ADEA cases are limited to lost wages and benefits and in most cases, it will be undisputed that plaintiff has some actual damages. Although case law does not clearly authorize this remedy in age discrimination cases, a nominal damage instruction may be considered in appropriate cases. For example, if the plaintiff was given six months severance pay and failed to secure subsequent employment during that period, the jury may find that an award of actual damages would be inappropriate because of the plaintiff's "failure to mitigate."
In an "age harassment" case where the plaintiff claims that he or she was transferred to a less desirable position, but admits there was no loss in pay or benefits, the primary remedy at stake would be an injunction returning the plaintiff to his or her prior position. Similarly, in a discharge cases in which it is undisputed that the plaintiff suffered no actual damages, because he or she was able to secure immediately a better paying job, the primary remedy at stake would be reinstatement. Given the "equitable" nature of injunctive relief and reinstatement, these relatively rare cases should not be tried to a jury since there is no claim for legal relief. See generally EEOC v. Emory Univ., 47 Fair Empl. Prac. Cas. (BNA) 1770, 1771, 1998 WL 156247 at *2 (N.D. Ga. 1988); McClaren v. Emory Univ., 705 F. Supp. 563, 568 (N.D. Ga. 1988). Most cases that allow nominal damages just assume they are permissible without much discussion of the issue. See e.g., Drez v. E.R. Squibb & Sons, Inc., 674 F. Supp. 1432, 1438 (D. Kan. 1987) (ADEA); Graefenhain v. Pabst Brewing Co., 670 F. Supp. 1415, 1416 (E.D. Wis. 1987) (ADEA).
If nominal damages are submitted, the verdict form must permit the jury to make that finding.
5.14 ADEA . DISPARATE TREATMENT . WILLFULNESS
If you find in favor of plaintiff under Instruction _____,1 then you must decide whether the conduct of defendant was "willful." You must find defendant's conduct was willful if you find by the [(greater weight) or (preponderance)]2 of the evidence that, when defendant [discharged]3 plaintiff, defendant knew [the discharge] was in violation of the federal law prohibiting age discrimination, or acted with reckless disregard of that law.
Committee Comments
The standard set forth in the instruction is consistent with that mandated by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). See also Spencer v. Stuart Hall Co., Inc., 173 F.3d 1124 (8th Cir. 1999). For a discussion of the evidence necessary to justify a submission on the issue of wilfulness, see Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997) and Spencer v. Stuart Hall Co., Inc., 174 F.3d 1124 (8th Cir. 1999).
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3. This instruction is designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, or where the plaintiff resigned but claims he was "constructively discharged," the instruction must be modified.
5.15 ADEA . DISPARATE TREATMENT . VERDICT FORM
VERDICT
Note: Complete this form by writing in the names required by your verdict.
On the [age discrimination]1 claim of plaintiff [John Doe], [as submitted in Instruction _____]2, we find in favor of
____________________________________________________________________________
(Plaintiff John Doe) or (Defendant XYZ, Inc.)
Note: Complete the following paragraphs only if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberation on this claim.
We find plaintiff's damages to be:
$__________ (stating the amount or, if none, write the word "none").3
Was defendant's conduct "willful" as that term is defined in Instruction _____?4
Yes _______________ No _______________
(Place an "X" in the appropriate space.)
_______________________________________
Foreperson
Dated: _______________
Notes on Use
1. The bracketed language should be included when the plaintiff submits multiple claims to the jury.
2. The number or title of the "essential elements" instruction should be inserted here.
3. This paragraph must be modified if the issue of nominal damages is submitted. But see infra
Committee Comments
, Model Instruction 5.13.
4. The number or title of the instruction defining "willfulness" should be inserted here. See infra Model Instruction 5.14.
5.20 RACE DISCRIMINATION CASES UNDER 42 U.S.C. § 1981
Introductory Comment
Section 1981 of Title 42, United States Code, which prohibits race discrimination in the making and enforcement of contracts, provides a cause of action for race discrimination in employment claims. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); see also Swapshire v. Baer, 865 F.2d 948 (8th Cir. 1989). Race discrimination claimants often join claims under § 1981 with claims under Title VII because § 1981, unlike Title VII, does not limit the recovery of compensatory and punitive damages. If the plaintiff joins a jury.triable claim under Title VII with a § 1981 claim, the Committee recommends the use of the 5.01 series of instructions and accompanying verdict form. Although there is a distinction between Title VII and § 1981 in terms of the threshold for liability, the 5.01 series of instructions will yield all of the required findings for a § 1981 case.
In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court restricted the applicability of § 1981 in the employment context to claims arising out of the formation of the employment relationship--in other words, hiring claims and some types of promotion claims. See Foster v. University of Arkansas, 938 F.2d 111, 113 (8th Cir. 1991); Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947 (8th Cir. 1991). However, Patterson was legislatively overruled by the Civil Rights Act of 1991, which expressly provides that discharge and harassment claims may be brought under § 1981. In Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992), the Eighth Circuit held that section 101 of the 1991 amendments (overruling Patterson), did not apply retroactively to cases pending at the time of their enactment. See also Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992) (holding that section 114 of the 1991 Act authorizing interest on back pay, and section 113 allowing shifting of expert witness fees, are not retroactive), cert. denied, 511 U.S. 1068 (1994).
The following instructions are designed for use in all cases brought pursuant to 42 U.S.C. § 1981. In the interests of simplicity and uniformity, the model instruction on the issue of liability utilizes a motivating-factor/same-decision format for all cases. See Introductory Note to Section 5. Nevertheless, if the trial court believes it is appropriate to distinguish between a mixed motive case and a pretext case, Model Instruction 5.91, infra, contains a sample pretext instruction. Moreover, if the trial court is inclined to adhere to a pretext/mixed motive distinction but cannot determine how to categorize a particular case, Model Instruction 5.92, infra, contains a set of special interrogatories designed to elicit a complete set of findings for post-trial analysis.
5.21 42 U.S.C. § 1981 . RACE DISCRIMINATION . ESSENTIAL ELEMENTS
(Mixed Motive Case)*
Your verdict must be for plaintiff [and against defendant __________]1 [on plaintiff's race discrimination claim]2 if all the following elements have been proved by the [(greater weight) or (preponderance)]3 of the evidence:
First, defendant [failed to hire]4 plaintiff; and
Second, plaintiff's race was a motivating factor5 in defendant's decision.
However, your verdict must be for defendant if any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have decided not to [hire] plaintiff regardless of [his/her] race.
Committee Comments
* For a pretext case, the format of Model Instruction 5.91, infra, is recommended.
To prevail under section 1981, the plaintiff must establish intentional race discrimination. Swapshire v. Baer, 865 F.2d 948, 952 (8th Cir. 1989) (citing General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982)). Consistent with its approach in age discrimination cases, the Committee recommends the use of a motivating-factor/same-decision instruction in all mixed motive section 1981 cases. See infra Introductory Note to Section 5;
Committee Comments
, Model Instruction 5.11. Under this approach, the jury must determine whether discrimination was a causal factor in the challenged employment decision, although the risk of nonpersuasion on this issue ultimately rests with the defendant.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. This instruction is designed for use in a "failure to hire" case. In a discharge or "failure to promote" case, the instruction must be modified. In "constructive discharge" cases, see infra Model Instruction 5.93.
5. The Committee believes that the phrase "motivating factor" should be defined. See infra Model Instruction 5.96.
5.22 42 U.S.C. § 1981 . RACE DISCRIMINATION . ACTUAL DAMAGES
If you find in favor of plaintiff [under Instruction _____]1, then you must award plaintiff such sum as you find by the [(greater weight) or (preponderance)]2 of the evidence will fairly and justly compensate [him/her] for damages you find [he/she] sustained as a direct result of defendant's conduct as described in Instruction _____.1 Damages include wages or fringe benefits you find plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on (fill in date of discharge), through the date of your verdict, minus the amount of earnings and benefits from other employment received by plaintiff during that time.]3 Damages also may include [list damages supported by the evidence].4
[You are also instructed that 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 by the [(greater weight) or (preponderance)] of the evidence that 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 of the wages and fringe benefits plaintiff reasonably could have earned if [he/she] had sought out or taken advantage of such an opportunity.]5
[Remember, throughout your deliberations, you must not engage in any speculations, guess, or conjecture and you must not award any damages by way of punishment or through sympathy.]6
Committee Comments
This instruction is designed to submit the standard back pay formula of lost wages and benefits minus interim earnings and benefits. See Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir. 1982). Moreover, because § 1981 is open-ended in the types of damages which may be recovered, this instruction also permits the recovery of general damages for pain, suffering, humiliation, and the like. See Patterson v. McLean Credit Union, 491 U.S. 164, 182 n.4 (1989). Unlike Title VII cases under the Civil Rights Act of 1991, there is no "cap" on damages under section 1981.
In some cases, a discrimination plaintiff may be eligible for front pay. Because front pay is essentially an equitable remedy “in lieu of” reinstatement, front pay is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (front pay is an issue for the court, not the jury, in ADEA cases). If the trial court submits the issue of front pay to the jury, the jury’s determination may be binding. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).
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 (10th 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 or pension benefits ordinarily are not offset against a back pay award. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (holding that pension benefits are a "collateral source benefit"); Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 n.1 (3d Cir. 1986) (Social Security and pension benefits not deductible), cert. denied, 480 U.S. 906 (1987); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138-39 (3d Cir.) (unemployment benefits not deductible), cert. denied, 479 U.S. 972 (1986); Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983) (same), cert. denied, 466 U.S. 950 (1984). But cf. Blum v. Witco Chemical Corp., 829 F.2d 367, 374 (3d Cir. 1987) (pension benefits received as a result of subsequent employment considered in offsetting damages award); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (deductibility of unemployment compensation is within trial court's discretion), cert. denied, 495 U.S. 948 (1990); Horn v. Duke Homes, 755 F.2d 599, 607 n.12 (7th Cir. 1985) (same); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir. 1976) (same), cert. denied, 430 U.S. 911 (1977).
This instruction is designed to encompass a situation where the defendant asserts some independent post-discharge reason--such as a plant closing or sweeping reduction in force--why the plaintiff would have been terminated in any event before trial. See, e.g., Cleverly v. Western Elec. Co., 450 F. Supp. 507 (W.D. Mo. 1978), aff'd, 594 F.2d 638 (8th Cir. 1979). Nevertheless, the trial court may give a separate instruction which submits this issue in more direct terms.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3. When certain benefits, such as employer-subsidized health insurance benefits, 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, 470 (8th Cir. 1989) (discussing different approaches). Some courts deny recovery for lost benefits unless the employee purchases substitute coverage, in which case the measure of damages is the employee's out-of-pocket expenses. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161 (7th Cir. 1981), overruled on other grounds, 860 F.2d 834 (7th Cir. 1988); 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. Fariss, 769 F.2d at 964-65. 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 section 1981 cases, a prevailing plaintiff may recover damages for mental anguish, damage to reputation, or other personal injuries. See Wilmington v. J.I. Case Co., 793 F.2d 909, 921 (8th Cir. 1986). The specific elements of damages set forth in this instruction are similar to those found in the Civil Rights Act of 1991. See 42 U.S.C. § 1977A(b)(3). See infra Model Instruction 5.02 n.8.
5. 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).
6. This paragraph may be given at the trial court's discretion.
5.23 42 U.S.C. § 1981 - RACE DISCRIMINATION . NOMINAL DAMAGES
If you find in favor of plaintiff under Instruction _____1, but you find that plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).2
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. This instruction is designed to submit the issue of nominal damages in appropriate cases.
If nominal damages are submitted, the verdict form must contain a line where the jury can make that finding.
An award of nominal damages can support a punitive damage award. See Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 548 (8th Cir. 1984) (§ 1983 case).
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. 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. Cf. Cowans v. Wyrick, 862 F.2d 697 (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 plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).
5.24 42 U.S.C. § 1981 - RACE DISCRIMINATION . PUNITIVE DAMAGES
In addition to actual damages, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find in favor of plaintiff and against defendant [name], [and if you find by the [(greater weight) or (preponderance)]1 of the evidence that plaintiff's firing was motivated by evil motive or intent, or that defendant was callously indifferent to plaintiff's rights,]2 then, in addition to any other damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or deter the defendant and others from like conduct in the future. Whether to award plaintiff punitive damages and the amount of those damages are within your sound discretion.
[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.]3
Committee Comments
Punitive damages are recoverable in section 1981 actions. Patterson v. McLean Credit Union, 491 U.S. 164, 182 n.4 (1989); Wilmington v. J.I. Case Co., 793 F.2d 909, 921-22 (8th Cir. 1986). See infra Model Instruction 4.53, for additional comments on punitive damages and factors that may be considered.
Notes on Use
1. Select the bracketed language that corresponds to the burden.of-proof instruction given.
2. Because a finding of liability necessarily entails a finding of "intentional discrimination," see Swapshire v. Baer, 865 F.2d 948, 952 (8th Cir. 1989), a substantial argument can be made that no additional finding should be required before the jury may consider the issue of punitive damages. See Smith v. Wade, 461 U.S. 30 (1983). Nevertheless, the court may want to submit the bracketed language to emphasize the extraordinary nature of punitive damages. See Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 489-90 (4th Cir.) (indicating that not every section 1981 claim "calls for submission of this extraordinary remedy to the jury"), cert. denied, 488 U.S. 996 (1988). The optional language is derived from Smith v. Wade. See also Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1181 (10th Cir. 1989) (punitive damages recoverable only if discrimination was "malicious, willful, and [sic] in gross disregard of [plaintiff's] rights"); Stephens, 848 F.2d at 489-90 (requiring malice, evil intent, or callous indifference); Beauford v. Sisters of Mercy-Province, Inc., 816 F.2d 1104, 1108-09 (6th Cir.) (requiring malice, evil intent, or callous, reckless or egregious disregard of plaintiff's rights), cert. denied, 484 U.S. 913 (1987).
3. Use this language if there are multiple defendants.
5.25 42 U.S.C. § 1981 - RACE DISCRIMINATION . VERDICT FORM
VERDICT
Note: Complete this form by writing in the names required by your verdict.
On the [race discrimination]1 claim of plaintiff [John Doe], as submitted in Instruction _____2, we find in favor of
______________________________________________________________________________
(Plaintiff Jane Doe) or (Defendant XYZ, Inc.)
Note: Complete the following paragraphs only if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberation on this claim.
We find plaintiff's damages as defined in Instruction _____3 to be:
$__________ (stating the amount or, if none, write the word "none")4 (stating the amount, or if you find that plaintiff's damages have no monetary value, set forth a nominal amount such as $1.00).5
We assess punitive damages against defendant (name), as submitted in Instruction _____,6 as follows:
$__________ (stating the amount or, if none, write the word "none").
_______________________________
Foreperson
Dated: _______________
Notes on Use
1. The bracketed language should be included when the plaintiff submits multiple claims to the jury.
2. The number or title of the "essential elements" instruction should be inserted here.
3. The number or title of the "actual damages" instruction should be inserted here.
4. Use this phrase if the jury has not been instructed on nominal damages.
5. Include this paragraph if the jury is instructed on nominal damages.
6. The number or title of the "punitive damages" instruction should be inserted here.
5.30 DISCRIMINATION BY PUBLIC EMPLOYERS UNDER 42 U.S.C. § 1983
Introductory Comment
Discrimination claims against public employers are often brought under 42 U.S.C. § 1983 as well as Title VII. E.g., Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227 (8th Cir. 1987); Hervey v. City of Little Rock, 787 F.2d 1223 (8th Cir. 1986). Section 1983 historically included three components which Title VII did not contain: (1) the right to a jury trial; (2) the availability of general damages for humiliation, loss of reputation, and the like; and (3) the availability of punitive damages against individual defendants. Although the Civil Rights Act of 1991 has eliminated these differences, § 1983 claims will remain distinctive in two respects: (1) § 1983 does not require exhaustion of the EEOC administrative process; and (2) § 1983 does not place a cap on compensa.tory and punitive damages. The theory of liability in a § 1983 discrimination claim is that discrimination on the basis of race, gender, or religion constitutes a deprivation of equal protection and, thus, violates the Fourteenth Amendment. The Committee expresses no position on the issue of whether discrimination on the basis of age or disability is within the purview of § 1983.
The following instructions are designed for use in all discrimination cases brought pursuant to 42 U.S.C. § 1983. In the interests of simplicity and uniformity, the model instruction on the issue of liability utilizes a motivating-factor/same-decision format for all cases. See Introductory Note to Section 5. Nevertheless, if the trial court believes it is appropriate to distinguish between a mixed motive case and a pretext case, Model Instruction 5.91, infra, contains a sample pretext instruction. Moreover, if the trial court is inclined to adhere to a pretext/mixed motive distinction but cannot determine how to categorize a particular case, Model Instruction 5.92, infra, contains a set of special interrogatories designed to elicit a complete set of findings for post-trial analysis.
5.31 42 U.S.C. § 1983 . ESSENTIAL ELEMENTS
(Mixed Motive Case)*
Your verdict must be for plaintiff [and against defendant __________]1 [on plaintiff's (sex)2 discrimination claim]3 if both of the following elements have been proved by the [(greater weight) or (preponderance)]4 of the evidence:
First, defendant [discharged]5 plaintiff; and
Second, plaintiff's (sex) was a motivating factor6 in defendant's decision[; and
Third, defendant was acting under color of state law].7
However, your verdict must be for defendant if any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] (sex).
Committee Comments
* For a pretext case, the format of Model Instruction 5.91, infra, is recommended.
To prevail on a section 1983 discrimination claim, the plaintiff must prove intentional discrimination. Washington v. Davis, 426 U.S. 229, 240 (1976). This intent to discriminate must be a causal factor in the defendant's employment decision. Tyler v. Hot Springs School Dist. No. 6, 827 F.2d 1227, 1230-31 (8th Cir. 1987). Consistent with its approach in age discrimination and race discrimination cases, the Committee recommends the use of a motivating-factor/same-decision instruction in § 1983 cases. See infra Introductory Note to Section 5;
Committee Comments
, Model Instructions 5.11, 5.21, infra; see generally Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 282-87 (1977).
Notes on Use
1. Use this phrase if there are multiple defendants.
2. This instruction is designed for use in a gender discrimination case. It must be modified if the plaintiff is claiming discrimination on the basis of race, religion, or other unlawful basis.
3. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
4. Select the bracketed language which corresponds to the burden-of-proof instruction given.
5. This instruction is designed for use in a discharge case. In a "failure to hire" "failure to promote," or "demotion" case, the instruction must be modified. Where the plaintiff resigned but claims a "constructive discharge," this instruction should be modified. See infra Model Instruction 5.93.
6. The Committee believes that the phrase "motivating factor" should be defined. See infra Model Instruction 5.96.
7. Use this language if the issue of whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction.
5.32 42 U.S.C. § 1983 . ACTUAL DAMAGES
If you find in favor of plaintiff under Instruction _____,1 then you must award plaintiff such sum as you find by the [(greater weight) or (preponderance)]2 of the evidence will fairly and justly compensate plaintiff for any actual damages you find plaintiff sustained as a direct result of defendant's conduct as submitted in Instruction _____.3 Actual damages include any wages or fringe benefits you find plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge], through the date of your verdict, minus the amount of earnings and benefits from other employment received by plaintiff during that time.4 Actual damages also may include [list damages supported by the evidence].5
[You are also instructed that plaintiff has a duty under the law to "mitigate" his damages--that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if you find by the [(greater weight) or (preponderance)] of the evidence that plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to him, you must reduce his damages by the amount he reasonably could have avoided if he had sought out or taken advantage of such an opportunity.]6 [Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award any damages by way of punishment or through sympathy.]7
Committee Comments
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 (8th Cir. 1982). Moreover, because § 1983 damages are not limited to back pay, the instruction also permits the recovery of general damages for pain, suffering, humiliation, and the like.
In some cases, a discrimination plaintiff may be eligible for front pay. Because front pay is essentially an equitable remedy “in lieu of” reinstatement, front pay is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (front pay is an issue for the court, not the jury, in ADEA cases). If the trial court submits the issue of front pay to the jury, the jury’s determination may be binding. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).
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 (10th 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 or pension benefits ordinarily are not offset against a back pay award. See Doyne v. Union Elec. Co., 953 F.2d 447, 451 (8th Cir. 1992) (holding that pension benefits are a "collateral source benefit"); Dreyer v. Arco Chem. Co., 801 F.2d 651, 653 n.1 (3d Cir. 1986) (Social Security and pension benefits not deductible); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138-39 (3d Cir. 1986) (unemployment benefits not deductible); Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983) (same). But cf. Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir. 1987) (pension benefits received as a result of subsequent employment considered in offsetting damages award); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (deductibility of unemployment compensation is within trial court's discretion); Horn v. Duke Homes, 755 F.2d 599, 607 n.12 (7th Cir. 1985) (same); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir. 1976) (same).
This instruction is designed to encompass a situation where the defendant asserts some independent post-discharge reason--such as a plant closing or sweeping reduction in force--why the plaintiff would have been terminated in any event before trial. See, e.g., Cleverly v. Western Elec. Co., 450 F. Supp. 507 (W.D. Mo. 1978), aff'd, 594 F.2d 638 (8th Cir. 1979). Nevertheless, the trial court may give a separate instruction which submits this issue in more direct terms.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3. When certain benefits, such as employer-subsidized health insurance benefits, 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, 470 (8th Cir. 1989) (discussing different approaches). Some courts deny recovery for lost benefits unless the employee purchases substitute coverage, in which case the measure of damages is the employee's out-of-pocket expenses. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161 (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. 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. This sentence should be used to guide the jury in calculating the plaintiff's economic damages. In section 1983 cases, however, a prevailing plaintiff may recover actual damages for emotional distress and other personal injuries. See Carey v. Piphus, 435 U.S. 247 (1978).
5. In section 1983 cases, a prevailing plaintiff may recover damages for mental anguish and other personal injuries. The specific elements of damages that may be set forth in this instruction are similar to those found in the Civil Rights Act of 1991. See 42 U.S.C. § 1981a(b)(3). See infra Model Instructions 5.02 n.8, and 4.51.
6. 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).
7. This paragraph may be given at the trial court's discretion.
5.33 42 U.S.C. § 1983 . NOMINAL DAMAGES
If you find in favor of plaintiff under Instruction _____1, but you find that plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).2
Committee Comments
Most employment discrimination cases involve lost wages and benefits. Nevertheless, a nominal damage instruction should be given in appropriate cases, such as where a plaintiff claiming a discriminatory harassment did not sustain any loss of earnings. Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 542-43, 548 (8th Cir. 1984).
An award of nominal damages can support a punitive damage award. See Goodwin, 729 F.2d at 548.
If nominal damages are submitted, the verdict form must contain a line where the jury can make that finding.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. 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. Cf. Cowans v. Wyrick, 862 F.2d 697 (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 plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).
5.34 42 U.S.C. § 1983 . PUNITIVE DAMAGES
In addition to actual damages, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant1 for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find in favor of plaintiff and against defendant (name), [and if you find by the [(greater weight) or (preponderance)]2 of the evidence that plaintiff's firing was motivated by evil motive or intent, or that defendant was callously indifferent to plaintiff's rights],3 then in addition to any damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter defendant and others from like conduct in the future. Whether to award plaintiff punitive damages, and the amount of those damages are within your discretion.
[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 such defendants may be the same or they may be different.]4
Committee Comments
Punitive damages are recoverable under 42 U.S.C. § 1983. Smith v. Wade, 461 U.S. 30 (1983).
Notes on Use
1. Public entities, such as cities, cannot be sued for punitive damages under section 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). Consequently, the target of a punitive damage claim must be an individual defendant, sued in his individual capacity.
2. Select the bracketed language that corresponds to the burden.of-proof instruction given.
3. See infra Model Instruction 5.24 n.2.
4. The bracketed language is available for use if punitive damage claims are submitted against more than one defendant.
5.35 42 U.S.C. § 1983 . VERDICT FORM
VERDICT
Note: Complete this form by writing in the names required by your verdict.
On the [(sex)1 discrimination]2 claim of plaintiff [John Doe], as submitted in Instruction _____3, we find in favor of
______________________________________________________________________________
(Plaintiff John Doe) or (Defendant Sam Smith)
Note: Complete the following paragraphs only if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberation on this claim.
We find plaintiff's (name) damages as defined in Instruction ____4 to be:
$__________ (stating the amount or, if none, write the word "none")5 (stating the amount, or if you find that plaintiff's damages have no monetary value, set forth a nominal amount such as $1.00).6
We assess punitive damages against defendant (name), as submitted in Instruction _____,7 as follows:
$__________ (stating the amount or, if none, write the word "none").
___________________________________
Foreperson
Dated: _______________
Notes on Use
1. This verdict form is designed for use in a gender discrimination claim. It must be modified if the plaintiff is claiming a different form of discrimination.
2. The bracketed language should be included when the plaintiff submits multiple claims to the jury.
3. The number or title of the "essential elements" instruction should be inserted here.
4. The number or title of the "actual damages" instruction should be inserted here.
5. Use this phrase if the jury has not been instructed on nominal damages.
6. Include this paragraph if the jury is instructed on nominal damages.
7. The number or title of the "punitive damages" instruction should be inserted here.
5.40 SEXUAL HARASSMENT CASES
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
AS AMENDED BY THE CIVIL RIGHTS ACT OF 1991
Introductory Comment
The following instructions are designed for use in sexual harassment cases under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), the United States Supreme Court held that sexual harassment is “a form of sex discrimination prohibited by Title VII.” More recently, the Supreme Court addressed the requirements of a sexual harassment claim, see Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), ruled that same.sex sexual harassment is actionable under Title VII, see Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), and clarified the standards governing an employer's liability in sexual harassment cases, see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
According to guidelines promulgated by the Equal Employment Opportunity Commission (EEOC), sexual harassment includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 29 C.F.R. § 1604.11(a). Two theories of sexual harassment have been recognized by the courts--“quid pro quo” and “hostile work environment” harassment. Those cases in which the plaintiff claims that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands are generally referred to as “quid pro quo” cases, as distinguished from cases based on “bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.” See Burlington Indus., 524 U.S. at 751.
Although the Supreme Court has recently stated that the “quid pro quo” and “hostile work environment” labels are no longer controlling for purposes of establishing employer liability, the terms--to the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general--are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. See Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2265; accord Newton v. Cadwell Lab., 156 F.3d 880, 883 (8th Cir. 1998) (recognizing Supreme Court's statement that “quid pro quo” and “hostile work environment” labels are no longer controlling for purposes of establishing employer liability).
In Faragher and Burlington Industries, the Supreme Court held that employers are vicariously liable for the discriminatory actions of their supervisory personnel. Faragher, 524 U.S. at 777-78; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2261; accord Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 762 (8th Cir. 1998) (citing Faragher and Burlington Industries). It is not necessary that those at the highest executive levels receive actual notice before an employer is liable for sexual harassment. To establish liability, however, the Supreme Court differentiated between cases in which an employee suffers an adverse “tangible employment action” as a result of the supervisor's sexual harassment and those cases in which an employee does not suffer a tangible employment action, but suffers the intangible harm flowing from the indignity and humiliation of sexual harassment. See Newton, 156 F.3d at 883 (recognizing distinction between cases in which sexual harassment results in a tangible employment action and cases in which no tangible employment action occurs).
When an employee suffers a tangible employment action resulting from a supervisor's sexual harassment, the employer's liability is established by proof of sexual harassment and the resulting adverse tangible employment action taken by the supervisor. See Faragher, 524 U.S. at ___, 118 S. Ct. at 2292.93; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270. See also Newton, 156 F.3d at 883. No affirmative defense is available to the employer in those cases. See Phillips v. Taco Bell Corp., 156 F.3d 884, 889 n.6 (8th Cir. 1998) (citing Faragher, 524 U.S. ___, 118 S. Ct. at 2293; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270).
In cases where no tangible employment action has been taken by the supervisor, the defending employer may interpose an affirmative defense to defeat liability or damages. That affirmative defense “comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270. See also Taco Bell, 156 F.3d at 887-88 (quoting Faragher and Burlington Industries); Rorie, 151 F.3d at 762 (quoting same).
Whether an individual is a “supervisor” for purposes of analyzing vicarious liability under Faragher and Burlington Industries may be a contested issue. Compare Whitmore v. O'Connor Management, Inc., 156 F.3d 796, 800 (8th Cir. 1998) (lead person was “demonstratively not a part of [defendant's] management”) with id., 156 F.3d at 801 (J. Gibson, J., dissenting) (lead person was defendant's “agent” for purposes of reporting complaints and deposition testimony showed that lead person had supervisory authority over plaintiff and alleged harasser).
In light of the new guidance from the Supreme Court, the Committee has drafted instructions for use in three types of cases: (1) those cases in which the plaintiff alleges that he or she suffered a tangible employment action resulting from a refusal to submit to a supervisor's sexual demands (Model Instruction 5.41, infra); (2) those cases in which the plaintiff did not suffer any tangible employment action, but claims that he or she was subjected to sexual harassment by a supervisor sufficiently severe or pervasive to create a hostile working environment (Model Instruction 5.42, infra); and (3) those cases in which the plaintiff did not suffer any tangible employment action, but claims that he or she was subjected to sexual harassment by non-supervisors sufficiently severe or pervasive to create a hostile working environment (Model Instruction 5.43, infra).
5.41 SEXUAL HARASSMENT .. ESSENTIAL ELEMENTS
(By Supervisor With Tangible Employment Action)
Your verdict must be for plaintiff [and against defendant _______]1 on plaintiff's claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)]2 of the evidence:
First, plaintiff was subjected to (describe alleged conduct giving rise to plaintiff's claim)3; and
Second, such conduct was unwelcome4; and
Third, such conduct was based on plaintiff's [(sex) (gender)]5; and
Fourth, defendant (specify action(s) taken with respect to plaintiff)6; and
Fifth, plaintiff's [(rejection of) (failure to submit to)]7 such conduct was a motivating factor8 in the decision to (specify action(s) taken with respect to plaintiff).
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence, your verdict must be for the defendant and you need not proceed further in considering this claim.9
Committee Comments
This instruction is designed for use in sexual harassment cases where the plaintiff alleges that he or she suffered a tangible employment action resulting from a refusal to submit to a supervisor's sexual demands. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms or conditions of employment that is actionable under Title VII. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ___, 118 S. Ct. 2257, 2265 (1998). These cases (i.e., cases based on threats which are carried out) are “referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.” Id. at 2264.
The “Unwelcome” Requirement
In sexual harassment cases, the offending conduct must be “unwelcome.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986). In the Eighth Circuit, “conduct must be 'unwelcome' in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.” Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986); see also Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559, 565 (8th Cir. 1992). In the typical quid pro quo case, where the plaintiff asserts a causal connection between a refusal to submit to sexual advances and a tangible employment action, the “unwelcome” requirement will be met if the jury finds that the plaintiff in fact refused to submit to a supervisor's sexual advances. However, if the court allows a plaintiff to pursue a quid pro quo claim despite his or her submission to the supervisor's sexual advances, the “unwelcome” element is likely to be disputed and must be included.
Conduct Based on Sex
In general, the plaintiff must establish that harassment was “based on sex” in order to prevail on a sexual harassment claim. See, e.g., Burns v. McGregor Elec. Indus., Inc. [Burns II], 989 F.2d 959, 964 (8th Cir. 1993). Because quid pro quo harassment involves behavior that is sexual in nature, there typically will not be a dispute as to whether the objectionable behavior was based on sex. As the Eighth Circuit has stated, “sexual behavior directed at a woman raises the inference that the harassment is based on her sex.” Burns I, 955 F.2d 559, 564 (8th Cir. 1992).
The Supreme Court has ruled that same.sex sexual harassment is actionable under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.75 (1998); accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996).
Employer Liability
As noted in the Introductory Comment, the Supreme Court has recently held that an employer is “vicariously liable” when its supervisor's discriminatory act results in a tangible employment action. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ___, 118 S. Ct. 2257, 2269 (1998) (“A tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.”). No affirmative defense is available is such cases. Id. at 2270.
Tangible Employment Action
According to the Supreme Court, a “tangible employment action” for purposes of the vicarious liability issue means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (citations omitted). In most cases, a tangible employment action “inflicts direct economic harm.” Id. at 762.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
3. The conduct or conditions forming the basis for the plaintiff's sexual harassment claim (e.g., requests for sexual relations by his or her supervisor) should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216 (8th Cir. 1997). It is appropriate to focus the jury's attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff's or defendant's case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).
4. If the court wants to define this term, the following should be considered: “Conduct is 'unwelcome' if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).
5. Because quid pro quo harassment usually involves conduct that is clearly sexual in nature, this element ordinarily may be omitted from the instruction.
6. Insert the appropriate language depending on the nature of the case (e.g., “discharged,” “failed to hire,” “failed to promote,” or “demoted”). Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.93.
7. This instruction is designed for use in sexual harassment cases where the plaintiff alleges that he or she suffered a tangible employment action resulting from a refusal to submit to a supervisor's sexual demands. If the plaintiff submitted to the supervisor's sexual advances, and the court allows the plaintiff to pursue such a claim under this instruction rather than requiring plaintiff to submit such a claim under Model Instruction 5.42, infra, this instruction must be modified or, alternatively, the trial court may use special interrogatories to build a record on all of the potentially dispositive issues. See, e.g., Karibian v. Columbia University, 14 F.3d 773, 778 (2d Cir.), cert. denied, 512 U.S. 1213 (1994).
8. The Committee recommends that the definition of “motivating factor” set forth in Model Instruction 5.96, infra, be given.
9. Because this instruction is designed for use in cases in which tangible employment action has been taken, plaintiff's claim may be analyzed under the “motivating factor/same decision” format used in other Title VII cases. See infra Model Instruction 5.01A. For damages instructions and a verdict form, Model Instructions 5.02 through 5.05, infra, may be used.
5.42 SEXUAL HARASSMENT -- ESSENTIAL ELEMENTS
(By Supervisor With No Tangible Employment Action)
Your verdict must be for plaintiff [and against defendant _______]1 on plaintiff's claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)]2 of the evidence:
First, plaintiff was subjected to (describe alleged conduct or conditions giving rise to plaintiff's claim)3; and
Second, such conduct was unwelcome4; and
Third, such conduct was based on plaintiff's [(sex) (gender)]5; and
Fourth, such conduct was sufficiently severe or pervasive that a reasonable person in plaintiff's position would find plaintiff's work environment to be [(hostile) (abusive)]6; and
Fifth, at the time such conduct occurred and as a result of such conduct, plaintiff believed [(his) (her)] work environment to be [(hostile) (abusive)].
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence, [or if defendant is entitled to a verdict under Instruction ____,]7 your verdict must be for the defendant and you need not proceed further in considering this claim.
Committee Comments
This instruction is designed for use in sexual harassment cases where the plaintiff did not suffer any “tangible” employment action such as discharge or demotion, but rather suffered “intangible” harm flowing from a supervisor's sexual harassment that is “sufficiently severe or pervasive to create a hostile work environment.” See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,751 (1998).
It is impossible to compile an exhaustive list of the types of conduct that may give rise to a hostile environment sexual harassment claim under Title VII. Some examples of this kind of conduct include: verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body, sexual prowess, or sexual deficiencies; sexually degrading or vulgar words to describe an individual; pinching, groping, and fondling; suggestive, insulting, or obscene comments or gestures; the display in the workplace of sexually suggestive objects, pictures, posters or cartoons; asking questions about sexual conduct; and unwelcome sexual advances. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994); Hukkanen v. International Union of Operating Eng’rs Local No. 101, 3 F.3d 281 (8th Cir. 1993); Burns v. McGregor Elec. Indus., Inc. [Burns II], 989 F.2d 959 (8th Cir. 1993); Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559 (8th Cir. 1992); Jones v. Wesco Invs., Inc., 846 F.2d 1154 (8th Cir. 1988); Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988).
Conduct Based on Sex or Gender
In general, the plaintiff must establish that the alleged offensive conduct was “based on sex.” Burns II, 989 F.2d at 964. Despite its apparent simplicity, this requirement raises a host of interesting issues. For example, in an historically male.dominated work environment, it may be commonplace to have sexually suggestive calendars on display and provocative banter among the male employees. While the continuation of this conduct may not be directed at a new female employee, it nevertheless may be actionable on the theory that sexual behavior at work raises an inference of discrimination against women. See Burns I, 955 F.2d at 564; see also Stacks v. Southwestern Bell, 27 F.3d 1316 (8th Cir. 1994) (sexual conduct directed by male employees toward women other than the plaintiff was considered part of a hostile work environment).
The Eighth Circuit also has indicated that conduct which is not sexual in nature but is directed at a woman because of her gender can form the basis of a hostile environment claim. See, e.g., Gillming v. Simmons Indus., 91 F.3d 1168, 1171 (8th Cir. 1996) (jury instruction need not require a finding that acts were explicitly sexual in nature); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (calling a female employee “herpes” and urinating in her gas tank, although not conduct of an explicit sexual nature, was properly considered in determining if a hostile work environment existed); see also Stacks, 27 F.3d at 1326 (differential treatment based on gender in connection with disciplinary action supported a female employee's hostile work environment claim); Shope v. Board of Sup’rs, 14 F.3d 596 (table), 1993 WL 525598 (4th Cir. Dec. 20, 1993) (rude, disparaging, and “almost physically abusive” conduct based on gender supported a hostile environment claim).
The Eighth Circuit has not directly addressed the issue of whether vulgar or abusive conduct that is directed equally toward men and women can constitute a violation of Title VII. Because sexual harassment is a variety of sex discrimination, some courts have suggested that it is not a violation of Title VII if a manager is equally abusive to male and female employees. For example, in Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987), abrogated on other grounds, 510 U.S. 178 (1993), the court suggested that sexual harassment of all employees by a bisexual supervisor would not violate Title VII. In a similar vein, the district court in Kopp v. Samaritan Health System, Inc., 13 F.3d 264 (8th Cir. 1993), granted the employer's motion for summary judgment on the theory that the offending supervisor was abusive toward all employees. Although the Eighth Circuit reversed because the plaintiff had offered evidence that the abuse directed toward female employees was more frequent and more severe than the abuse directed at male employees, Kopp suggests that the “equal opportunity harassment” defense can present a question of fact for the jury. But see Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334 (D. Wyo. 1993) (holding that "equal opportunity harassment" of employees of both genders can violate Title VII).
The Supreme Court has ruled that same.sex sexual harassment is actionable under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996).
Hostile or Abusive Environment
In order for hostile environment harassment to be actionable, it must be “so 'severe or pervasive' as to 'alter the conditions of [the victim's] employment and create an abusive working environment.'” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank v. Vinson, 477 U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982))); accord Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992); Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559, 564 (8th Cir. 1992); Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989); Minteer v. Auger, 844 F.2d 569 (8th Cir. 1988). In Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986), the court explained:
The harassment must be “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Henson v. City of Dundee, 682 F.2d at 904. The plaintiff must show a practice or pattern of harassment against her or him; a single incident or isolated incidents generally will not be sufficient. The plaintiff must generally show that the harassment is sustained and non trivial.
Id. at 749-50; see Faragher, 524 U.S. at 788 (“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'”) (citations omitted).
“[I]n assessing the hostility of an environment, a court must look to the totality of the circumstances.” Stacks, 27 F.3d at 1327 (citation omitted). In Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993), the Court held that a hostile environment claim may be actionable without a showing that the plaintiff suffered psychological injury. In determining whether an environment is hostile or abusive, the relevant factors include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23. See also Faragher, 524 U.S. at ___, 118 S. Ct. at 2283 (reiterating relevant factors set forth in Harris); accord Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998) (citing Harris).
Objective and Subjective Requirement
In Harris, the Supreme Court explained that “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (“[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.”)); accord Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir. 1998).
Employer Liability
As noted in the Introductory Comment, the Supreme Court has recently held that an employer is “subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Unlike those cases in which the plaintiff suffers a tangible employment action, however, in cases where no tangible employment action has been taken by the supervisor, the employer may raise an affirmative defense to liability or damages. Id. See infra Model Instruction 5.42(A) &
Committee Comments
.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
3. The conduct or conditions forming the basis for the plaintiff's sexual harassment claim should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216 (8th Cir. 1997). It is appropriate to focus the jury's attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff's or defendant's case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).
4. The term “unwelcome” may be of such common usage that it need not be defined. If the court wants to define this term, the following should be considered: “Conduct is 'unwelcome' if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).
5. As noted in the
Committee Comments
, there are a number of subsidiary issues which can arise in connection with the requirement that actionable harassment must be “based on sex.” If the allegedly offensive conduct clearly was directed at the plaintiff because of his or her gender, it is not necessary to include this element. However, if there is a dispute as to whether the offensive conduct was discriminatory--for example, if the offending conduct may have been equally abusive to both men and women or if men and women participated equally in creating a “raunchy workplace”--it may be necessary to modify this element to properly frame the issue.
6. Select the word which best describes plaintiff's theory. Both words may be appropriate. This element sets forth the “objective test” for a hostile work environment. As discussed in the
Committee Comments
, it is the Committee's position that the appropriate perspective is that of a “reasonable person.” In addition, it may be appropriate to include the factors set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), and reiterated in Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S. Ct. 2275, 2283 (1998), to aid in determining whether a plaintiff's work environment was hostile or abusive. For example:
In determining whether a reasonable person in the plaintiff's circumstances would find the plaintiff's work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiff's work performance; and the effect on plaintiff's psychological well-being. No single factor is required in order to find a work environment hostile or abusive.
7. Because this instruction is designed for cases in which no tangible employment action is taken, the defendant may defend against liability or damages by proving an affirmative defense “of reasonable oversight and of the employee's unreasonable failure to take advantage of corrective opportunities.” Nichols v. American Nat'l Ins. Co., 154 F.3d 875, 887 (8th Cir. 1998) (citing Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270). The bracketed language should be used when the defendant is submitting the affirmative defense. See infra Model Instruction 5.42(A).
5.42(A) AFFIRMATIVE DEFENSE
(For Use in Cases With No Tangible Employment Action)
Your verdict must be for defendant on plaintiff's claim of sexual harassment if it has been proved by the [greater weight) (preponderance)]1 of the evidence that (a) defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that plaintiff unreasonably failed to take advantage of (specify the preventive or corrective opportunities provided by defendant of which plaintiff allegedly failed to take advantage or how plaintiff allegedly failed to avoid harm otherwise).2
Committee Comments
Recently, the United States Supreme Court held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by [the employee's] supervisor.” Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 762 (8th Cir. 1998) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 777 (1998)). When “no tangible employment action, such as discharge, demotion, or undesirable reassignment” is taken, however, an employer may defend against liability or damages “by proving an affirmative defense of reasonable oversight and of the employee's unreasonable failure to take advantage of corrective opportunities.” Nichols v. American Nat'l Ins. Co., 154 F.3d 875, 887 (8th Cir. 1998) (citing Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270)); accord Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir. 1998) (citing same); Newton v. Cadwell Laboratories, 156 F.3d 880, 883 (8th Cir. 1998) (citing same). The language of the affirmative defense is taken verbatim from the Supreme Court's decisions in Burlington Industries and Faragher.
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given.
2. According to the Supreme Court, a defendant asserting this affirmative defense must prove not only that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, but also that “plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by defendant or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at ___, 118 S. Ct. at 2270. For purposes of instructing the jury, however, the Committee recommends that the specific preventive or corrective opportunities of which plaintiff allegedly failed to take advantage or the particular manner in which plaintiff allegedly failed to avoid harm be identified.
5.43 SEXUAL HARASSMENT-- ESSENTIAL ELEMENTS
(By Nonsupervisor With No Tangible Employment Action)
Your verdict must be for plaintiff [and against defendant _______]1 on plaintiff's claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)]2 of the evidence:
First, plaintiff was subjected to (describe alleged conduct or conditions giving rise to plaintiff's claim)3; and
Second, such conduct was unwelcome4; and
Third, such conduct was based on plaintiff's [(sex) (gender)]5; and
Fourth, such conduct was sufficiently severe or pervasive that a reasonable person in plaintiff's position would find plaintiff's work environment to be [(hostile) (abusive)]6; and
Fifth, at the time such conduct occurred and as a result of such conduct, plaintiff believed [(his) (her)] work environment to be [(hostile) (abusive)]; and
Sixth, defendant knew or should have known of the (describe alleged conduct or conditions giving rise to plaintiff's claim)7; and
Seventh, defendant failed to take prompt and appropriate corrective action to end the harassment.8
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence, your verdict must be for the defendant and you need not proceed further in considering this claim.9
Committee Comments
This instruction is designed for use in cases where the plaintiff did not suffer any tangible employment action, but claims that he or she was subjected to sexual harassment by non-supervisors (as opposed to supervisory personnel) sufficiently severe or pervasive to create a hostile working environment. In such cases (i.e., cases not involving vicarious liability), “[e]mployees have some obligation to inform their employers, either directly or otherwise, of behavior that they find objectionable before employer can be held responsible for failing to correct that behavior, at least ordinarily.” Whitmore v. O'Connor Management, Inc., 156 F.3d 796, 800 (8th Cir. 1998) (decided after the Supreme Court's opinions in Burlington Industries and Faragher).
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
3. The conduct or conditions forming the basis for the plaintiff's sexual harassment claim should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997). It is appropriate to focus the jury's attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff's or defendant's case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).
4. The term “unwelcome” may be of such common usage that it need not be defined. If the court wants to define this term, the following should be considered: “[Conduct is 'unwelcome'] if the employee did not solicit or invite it and the employee regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).
5. As noted in the
Committee Comments
, there are a number of subsidiary issues which can arise in connection with the requirement that actionable harassment must be “based on sex.” If the allegedly offensive conduct clearly was directed at the plaintiff because of his or her gender, it is not necessary to include this element. However, if there is a dispute as to whether the offensive conduct was discriminatory--for example, if the offending conduct may have been equally abusive to both men and women or if men and women participated equally in creating a “raunchy workplace”--it may be necessary to modify this element to properly frame the issue.
6. Select the word which best describes plaintiff's theory. Both words may be appropriate. This element sets forth the “objective test” for a hostile work environment. As discussed in the
Committee Comments
, it is the Committee's position that the appropriate perspective is that of a “reasonable person.” In addition, it may be appropriate to include the factors set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), and reiterated in Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S. Ct. 2275, 2283 (1998), to aid in determining whether a plaintiff's work environment was hostile or abusive. For example:
In determining whether a reasonable person in the plaintiff's circumstances would find the plaintiff's work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiff's work performance; and the effect on plaintiff's psychological well-being. No single factor is required in order to find a work environment hostile or abusive.
7. As noted in the
Committee Comments
, there are generally two requirements for establishing employer liability in sexual harassment cases where the plaintiff claims harassment by his or her coworkers rather than by supervisory personnel: (1) the plaintiff must show that the employer knew or should have known of the harassment; and (2) the plaintiff must show that the employer failed to take appropriate action to end the harassment. This element sets forth the first half of the test. As a practical matter, it is unlikely that the defendant will seriously contest both issues: if the employer claims it never knew of the harassment, the question of whether its response was appropriate would be moot; conversely, if the employer's primary defense is that it took appropriate remedial action, the “knew or should have known” element may be moot.
8. As discussed in the Introductory Comment, the Supreme Court's recent opinions with respect to employer liability in sexual harassment cases address only those situations in which a supervisor (as opposed to a non-supervisor) sexually harasses a subordinate. In cases in which the plaintiff alleges sexual harassment by a non-supervisor, the issue of whether courts will leave the burden on plaintiff to prove that the defendant failed to take prompt and appropriate corrective action or whether courts will place the burden on the defendant to prove an affirmative defense that it took prompt and appropriate corrective action as in Faragher and Burlington Industries is an open question. See, e.g., Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366 (11th Cir. 1999) (Barkett, concurring).
9. Because this instruction is designed for use in cases in which no tangible employment action has been taken, plaintiff's claim should not be analyzed under the “motivating factor/same decision” format used in other Title VII cases. See Stacks v. Southwestern Bell, 27 F.3d 1316 (8th Cir. 1994). For damages instructions and a verdict form, Model Instructions 5.02 through 5.05, infra, should be used in a modified format. For a sample constructive discharge instruction, see infra Model Instruction 5.93.
5.50 DISPARATE TREATMENT AND REASONABLE ACCOMMODATION CASES
UNDER THE AMERICANS WITH DISABILITIES ACT (“ADA”)
(Employment Cases Only)
Introduction
The following instructions are designed for use in disability cases under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The ADA was enacted July 26, 1990, and became effective July 26, 1992. The purposes of the ADA are to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. See 42 U.S.C. § 12101(b).
Some of the key issues in those cases include whether an individual has a "disability" as defined in the ADA; whether the individual is "otherwise qualified" for the position; whether the individual can perform the "essential functions" of the job with or without "reasonable accommoda.tions"; and whether the employer has provided “reasonable accommodations.” The instructions focus on many of these issues.
These instructions are not intended to cover cases with respect to public accommodations or public services under the ADA. Rather, these instructions are intended to cover only those cases arising under the employment provisions of the ADA.
To establish a prima facie case under the ADA, an aggrieved employee must establish that he or she has a disability as defined in 42 U.S.C. § 12102(2); that he or she is qualified to perform the essential functions of the job, with or without reasonable accommodation; and that he or she has suffered adverse employment action because of his or her disability. Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000); Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574 (8th Cir. 2000); Snow v. Ridgeway Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997); Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996); Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996).
A “Disability” Under the ADA
Under the ADA, a “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 948 (8th Cir. 1999); Snow, 128 F.3d at 1206; Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997); Smith v. City of Des Moines, 99 F.3d 1466, 1474 (8th Cir. 1996).
Although the ADA does not define the key phrases found in subsection (A) of 42 U.S.C. § 12102(2) (i.e., “physical or mental impairment,” “major life activity,” and “substantially limits”), the regulations implementing the ADA provide guidance on these issues.
“Physical or Mental Impairment”
According to the regulations, a “physical impairment” is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine. 29 C.F.R. § 1630.2(h); Otting v. J.C. Penney Co., 223 F.3d 704, ___ (8th Cir. 2000). A “mental impairment” is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h).
“Major Life Activity”
The regulations define the term “major life activity” as activities that an average person can perform with little or no difficulty, such as walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, and working. 29 C.F.R. § 1630.2(i); Otting, 223 F.3d at 710; Fjellestad, 188 F.3d at 948; Snow, 128 F.3d at 1207 n.3; Doane, 115 F.3d at 627; Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996); accord Shipley v. City of University City, 195 F.3d 1020, 1022 (8th Cir. 1999) (citing Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998)). Sitting, standing and reaching are also considered major life activities. Fjellestad, 188 F.3d at 948 (citing Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997)). See also Land v. Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir. 1999) (eating is a major life activity); Weber v. Strippit, Inc., 186 F.3d 907, 913-14 (8th Cir. 1999) (shoveling snow, gardening, mowing the lawn, playing tennis, walking up stairs, fishing and hiking do not qualify as major life activities).
Although lifting is also considered a major life activity, a general lifting restriction, without more, is generally insufficient to constitute a significant limitation on any major life activities. See, e.g., Snow, 128 F.3d at 1207 (“While lifting is noted under the regulations as a major life activity, a general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA.”); Helfter, 115 F.3d at 617 (evidence that impairment limits work-related activities such as lifting does not demonstrate triable dispute regarding substantial limitation on major life activity); Aucutt, 85 F.3d at 1319 (twenty-five pound lifting restriction, without more, does not constitute a significant restriction on ability to perform major life activities).
The Eighth Circuit has held that reproduction and caring for others are not major life activities under the ADA. See Krauel v. Iowa Methodist Center, 95 F.3d 674, 677 (8th Cir. 1996). But see Bragdon v. Abbott, 524 U.S. 639, ___, 118 S. Ct. 2196, 2205 (1998) (reproduction is a major life activity for purposes of the ADA).
“Substantially Limiting”
In order for an impairment to be considered “substantially limiting,” the individual must be (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j)(1); Fjellestad, 188 F.3d at 948-49; Snow, 128 F.3d at 1206 (8th Cir. 1997); Helfter, 115 F.3d at 616. The United States Supreme Court has held that a physical or mental impairment that is corrected by medication, the body’s own systems, or other measures does not “substantially limit” a major life activity. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999); accord Spades v. City of Walnut Ridge, 186 F.3d 897, 899-900 (8th Cir. 1999) (alleged disability of depression did not substantially limit any of plaintiff’s major life activities where plaintiff conceded that resort to medicines and counseling allowed him to function without limitation). Cf. Otting v. J.C. Penney Co., 223 F.3d 704, ___ (8th Cir. 2000) (plaintiff’s epilepsy substantially limited one or more major life activities where, despite surgery and medication, seizures were not under control at time of discharge).
The following factors are relevant in determining whether an individual is substantially limited in a major life activity: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2); Otting, 223 F.3d at ___; Fjellestad, 188 F.3d at 949; Snow, 128 F.3d at 1207; Helfter, 115 F.3d at 616; Aucutt, 85 F.3d at 1319.
Thus, temporary, non-chronic impairments of short duration with little or no long-term or permanent impact are usually not disabilities. See Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (citing 29 C.F.R. § 1630 App., § 1630.2(j); Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997)).
The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Snow, 128 F.3d at 1206 (citing 29 C.F.R. § 1630.2(j)(3)(i)); Aucutt, 85 F.3d at 1319 (same); accord Fjellestad, 188 F.3d at 949 (“Finding that an individual is substantially limited in his or her ability to work requires a showing that his or her overall employment opportunities are limited.”). Rather, a person must show the impairment significantly restricts his or her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. Snow, 128 F.3d at 1206-07 (citing 29 C.F.R. § 1630.2(j)(3)(i)); Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996) (same); accord Shipley, 195 F.3d at 1022-23 (citing Sutton, 119 S. Ct. at 2150-52); Fjellestad, 188 F.3d at 949.
Knowledge of the Disability
Unlike other discrimination cases, the protected characteristic of the employee in a disability discrimination case may not always be immediately obvious to the employer. As the Seventh Circuit has stated, “It is true that an employer will automatically know of many disabilities. For example, an employer would know that a person in a wheelchair, or with some other obvious physical limitation, had a disability.” Hedberg v. Indiana Bell Tele. Co., 47 F.3d 928, 932 (7th Cir. 1995). Furthermore, it may be that some symptoms are so obviously manifestations of an underlying disability that it would be reasonable to infer that an employer actually knew of the disability (e.g., an employee who suffers frequent seizures at work likely has some disability). Id. at 934. Finally, an employer may actually know of disabilities that are not immediately obvious, such as when an employee asks for an accommodation under the ADA and submits supporting medical documenta.tion. See id. at 932.
An employer's mere knowledge of the disability's effects, far removed from the disability itself and with no obvious link to the disability, is generally insufficient to create liability. As one court has aptly stated, “[t]he ADA does not require clairvoyance.” See id. at 934.
A number of recent Eighth Circuit decisions suggest that an employer must have actual knowledge of an employee's disability before the employer may be exposed to liability. See, e.g., Miller v. National Casualty Co., 61 F.3d 627, 629-30 (8th Cir. 1995) (employee’s complaints of stress insufficient to put employer on notice of any disability when it had not been informed about a diagnosis of manic depression; to extent symptoms were known, they were not “so obviously manifestations of an underlying disability that it would be reasonable to infer that [her] employer actually knew of the disability” (quoting Hedberg, 47 F.3d at 934)); Webb v. Mercy Hosp., 102 F.3d 958, 960 (8th Cir. 1996) (holding that the employer did not violate the ADA when it discharged a nurse who had a history of hospitalization for depression because there was no evidence that the employer knew of her diagnosis); Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 990 (8th Cir. 1996) (upholding summary judgment for the employer where the plaintiff concealed the severity of his disabling condition even though the employer had some awareness of the plaintiff’s health problems).
A “Qualified” Individual with a Disability
In order to be protected by the ADA, an individual must be a “qualified individual with a disability.” To be a qualified individual, one must be able to perform the essential functions of the job with or without reasonable accommodations. 42 U.S.C § 12111(8); see also Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000) (determination of qualification involves two-fold inquiry--whether the person meets the necessary prerequisites for the job, such as education, experience and training, and whether the individual can perform the essential job functions with or without reasonable accommodation); Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574-76 (8th Cir. 2000) (in order for court to assess whether plaintiff is “qualified” within the meaning of the ADA, plaintiff must identify particular job sought or desired).
Essential Functions of the Job
The phrase "essential functions" means the fundamental job duties of the employment position the plaintiff holds or for which the plaintiff has applied. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998). “Essential functions” does not include the marginal functions of the position. Id. (citing 29 C.F.R. § 1630.2(n)(1)). The EEOC regulations suggest the following may be considered in determining the essential functions of an employment position: (1) The employer's judgment as to which functions of the job are essential; (2) written job descriptions prepared for advertising or used when interviewing applicants for the job; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the terms of a collective bargaining agreement if one exists; (6) the work experience of persons who have held the job; and/or (7) the current work experience of persons in similar jobs. 29 C.F.R. § 1630.2(n)(3); Moritz, 147 F.3d at 787. See also Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998) (“An employer's identification of a position's “essential functions” is given some deference under the ADA.”); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113-14 (8th Cir. 1995) (discussing “essential functions” and relevant EEOC regulations).
Resolving a conflict among the courts of appeals, the United States Supreme Court held that an ADA plaintiff's application for or receipt of benefits under the Social Security Disability Insurance program neither automatically estops the plaintiff from pursuing his or her ADA claim nor erects a strong presumption against the plaintiff's success under the ADA. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, ___, 119 S. Ct. 1597, 1600 (1999). Nonetheless, to survive a motion for summary judgment, the plaintiff must explain why his or her claim for disability benefits is consistent with the claim that he or she could perform the essential functions of his or her previous job with or without reasonable accommodation. Id.; accord Hill v. Kansas City Area Transportation Authority, 181 F.3d 891, 893 (8th Cir. 1999). See also Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084-85 (8th Cir. 2000) (affirming grant of summary judgment to employer in part because plaintiff failed to overcome presumption, created by prior allegation of total disability, that he is not a qualified individual within the meaning of the ADA).
“Reasonable Accommodation”
The ADA requires employers to make reasonable accommodations to allow disabled individuals to perform the essential functions of their positions. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).
Although there is no precise test for determining what constitutes a reasonable accommoda.tion, an accommodation is unreasonable if it imposes undue financial or administrative burdens or if it otherwise imposes an undue hardship on the operation of the employer’s business. 42 U.S.C. § 12112(b)(5)(A); Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). The “undue hardship” defense is discussed below.
The ADA provides that the concept of “reasonable accommodation” may include: “(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications or examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). See also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-24 (8th Cir. 1995) (discussing “reasonable accommodations” and relevant EEOC regulations).
Although part-time work and job restructuring may be considered reasonable accommoda.tions, “[t]his does not mean an employer is required to offer those accommodations in every case.” Treanor, 200 F.3d at 575. Moreover, although job restructuring is a possible accommodation under the ADA, an employer need not reallocate the essential functions of a job. Id.; Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999); Lloyd, 207 F.3d at 1084; Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998); Benson, 62 F.3d at 1112-13 (citing 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii)). In addition, an employer is not obligated to hire additional employees or reassign existing workers to assist an employee. Fjellestad, 188 F.3d at 950 (citing Moritz, 124 F.3d at 788).
Reassignment to a vacant position is another possible accommodation under the ADA. Benson, 62 F.3d at 1114 (citing 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii)); see also Fjellestad, 188 F.3d at 950-51 (plaintiff created genuine issue of material fact as to whether employer could have reassigned her to a specific, vacant position). In fact, the Eighth Circuit has recognized that, in certain circumstances, reassignment to a vacant position may be “necessary” as a reasonable accommodation. See Cravens, 214 F.3d at 1018. The scope of the reassignment duty is limited, however. Id. at 1019. For example, reassignment is an accommodation of “last resort”; that is, the “very prospect of reassignment does not even arise unless accommodation within the individual’s current position would pose an undue hardship.” Id. Moreover, the ADA does not require an employer to create a new position as an accommodation. Id.; see also Treanor, 200 F.3d at 575 (“[T]he ADA does not require an employer to create a new part-time position where none previously existed.”); Fjellestad, 188 F.3d at 950 (employer not required to create new position or to create permanent position out of a temporary one). In addition, an employer is not required to “bump” another employee in order to reassign a disabled employee to that position. Cravens, 214 F.3d at 1019. Promotion is not required. Id. Finally, the employee must be “otherwise qualified” for the reassignment position. Id.
An employer is not obligated to provide an employee the accommodation he or she requests or prefers. See, e.g., Cravens, 214 F.3d at 1019. The employer need only provide some reasonable accommodation. Hennenfent v. Mid Dakota Clinic, P.C., 164 F.3d 419, 422 n.2 (8th Cir. 1998); accord Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) (“If more than one accommodation would allow the individual to perform the essential functions of the position, ‘the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.’”).
The ADA does not require the preferential treatment of individuals with disabilities in terms of job qualifications as a reasonable accommodation. See Harris v. Polk County, 103 F.2d 696, 697 (8th Cir. 1996) (employer lawfully denied job to disabled applicant on basis of criminal record which allegedly had resulted from prior psychological problems because “an employer may hold disabled employees to the same standard of law-abiding conduct as all other employees”).
For more discussion of “reasonable accommodations” under the ADA, see infra Model Instruction 5.51(C) and
Committee Comments
.
The Interactive Process
Before an employer must make an accommodation for the physical or mental limitation of an employee, the employer must have knowledge that such a limitation exists. Miller v. National Casualty Co., 61 F.3d 627, 629 (8th Cir. 1995); accord Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 726 (8th Cir. 1999). Thus, it is generally the responsibility of the plaintiff to request the provision of a reasonable accommodation. Miller, 61 F.3d at 630 (citing 29 C.F.R. § 1630 App., § 1630.9); Cannice, 189 F.3d at 727; accord Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (The burden remains with the plaintiff “to show that a reasonable accommoda.tion, allowing him to perform the essential functions of his job, is possible.”); Mole v. Buckhorn Rubber Prods., Inc., 165 F. 3d 1212, 1218 (8th Cir. 1999) (affirming grant of summary judgment for defendant where “only [plaintiff] could accurately identify the need for accommodations specific to her job and workplace” and she failed to do so); Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 689 (8th Cir. 1998) (“Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, as is often the case when mental disabilities are involved, the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (citation omitted)).
Once the plaintiff has made such a request, the ADA and its implementing regulations require that the parties engage in an “interactive process” to determine what precise accommodations are necessary. See 29 C.F.R. § 1630.2(o)(3) & § 1630 App., § 1630.9; accord Fjellestad, 188 F.3d at 951. This means that the employer “should first analyze the relevant job and the specific limitations imposed by the disability and then, in consultation with the individual, identify potential effective accommodations.” See Cannice, 189 F.3d at 727. In essence, the employer and the employee must work together in good faith to help each other determine what accommodation is necessary. Id.
Several courts, however, have held that an employer's failure to engage in an interactive process, standing alone, is insufficient to expose the employer to liability under the ADA. See, e.g., Barnett v. U.S. Air, Inc., 157 F.3d 744, 752 (9th Cir. 1998) (and cases cited therein); accord Cravens, 214 F.3d at 1021; Fjellestad, 188 F.3d at 952 (“We tend to agree with those courts that hold that there is no per se liability under the ADA if an employer fails to engage in an interactive process.”); Cannice, 189 F.3d at 727.
The Eighth Circuit has recognized that although an employer will not be held liable under the ADA for failing to engage in an interactive process if no reasonable accommodation was possible, the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith. See Fjellestad, 188 F.3d at 952; Cravens, 214 F.3d at 1021 (To establish that an employer failed to participate in an interactive process, a disabled employee must show the employer knew about the disability; the employee requested accommodation or assistance; the employer did not make a good faith effort to assist the employee; and the employee could have been reasonably accommodated but for the employer’s lack of good faith.). Accordingly, the Circuit held that summary judgment is typically precluded when there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process of seeking reasonable accommodations. See Cravens, 214 F.3d at 1022; Fjellestad, 188 F.3d at 953; accord Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998) (single telephone conversation between plaintiff and employer “hardly satisfies our standard that the employer make reasonable efforts to assist the employee [and] to communicate with him in good faith”).
On the other hand, summary judgment may be appropriate where the employee fails to engage in the interactive process. See, e.g., Treanor, 200 F.3d at 575 (plaintiff failed to create a genuine question of fact in dispute on issue of interactive process where plaintiff requested part-time work, defendant indicated that no such position existed, plaintiff failed to identify any particular “suitable” position and there was no evidence that defendant acted in bad faith by failing to investigate further the existence of a reasonable accommodation); Webster v. Methodist Occupa.tional Health Centers, Inc., 141 F.3d 1236 (7th Cir. 1998) (no liability where employee failed to participate in the interactive process required under the ADA); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (no liability where plaintiff failed to engage in interactive process after employer offered accommodations in that she did not provide employer with any substantive reasons as to why all five of the proffered accommodations were unreasonable); Gerdes v. Swift-Eckrich, Inc., 949 F. Supp. 1386 (N.D. Iowa 1996) (summary judgment for employer appropriate where responsibility for causing the breakdown of the interactive process rested plainly on plaintiff), aff’d, 125 F.3d 634 (8th Cir. 1997).
Similarly, summary judgment may be appropriate in the absence of evidence that the employer failed to make a good faith effort to arrive at a reasonable accommodation for the plaintiff. See, e.g., Mole, 165 F.3d at 1218 (affirming grant of summary judgment for employer where “there is no evidence [the employer] failed to make a good faith reasonable effort to help [plaintiff] determine if other accommodations might be needed.”); Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996) (“[W]here, as here, the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodation based on the information it possessed, ADA liability simply does not follow.”).
Statutory Defenses
The ADA specifically provides for the following defenses: (1) undue hardship (42 U.S.C. § 12112(b)(5)(A)); (2) direct threat to the health or safety of others in the workplace (42 U.S.C. § 12113(b)); (3) employment qualification standard, test or selection criterion that is job-related and consistent with business necessity (42 U.S.C. § 12113(a)); (4) religious entity (42 U.S.C. § 12113(c)(1)); (5) infectious or communicable disease (42 U.S.C. § 12113(d)(2)); and (6) illegal use of drugs (42 U.S.C. § 12114(a)). The statutory defenses most likely to lead to instruction issues are undue hardship and direct threat. See infra Model Instructions 5.53(A) and 5.53(B). The Committee assumes that the burden of proving and pleading these defenses is on the defendant.
Undue Hardship
As set forth above, the ADA provides that an employer need not provide a reasonable accommodation if it can prove that the accommodation would impose an undue hardship on the operation of its business. The term “undue hardship” is defined as “an action requiring significant difficulty or expense,” which is to be considered in light of the following factors: (i) the nature and cost of the accommodation; (ii) the employer’s financial resources at the facility in question; (iii) the employer’s overall financial resources; and (iv) the fiscal relationship of the facility in question with the employer’s overall business. 42 U.S.C. § 12111(10).
Direct Threat
The ADA specifically permits employers to reject applicants and terminate employees who pose a “direct threat” to the health or safety of others in the workplace if such direct threat cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12113(b); see Wood v. Omaha Sch. Dist., 25 F.3d 667 (8th Cir. 1994) (insulin-dependent individuals with poorly controlled diabetes were not qualified to serve as school bus drivers).
The courts also have used the “direct threat” doctrine to support the terminations of individuals who assault or threaten co-workers. For example, in Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996), the court upheld the termination of an alcoholic employee who threatened his supervisor. See also Crawford v. Runyon, 79 F.3d 743 (8th Cir. 1996) (upholding district court’s finding of no pretext in termination of postal worker who threatened to kill his supervisor); Fenton v. Pritchard Corp., 926 F. Supp. 1437 (D. Kan. 1996) (upholding termination of disgruntled employee who threatened to “go postal”).
Procedures and Remedies
Pursuant to 42 U.S.C. § 12117, ADA cases generally adopt the procedures and remedy schemes from Title VII cases. Doane v. City of Omaha, 115 F.3d 624, 629 (8th Cir. 1997). Accordingly, an EEOC charge and right-to-sue notice typically will be necessary preconditions to an ADA claim. See 42 U.S.C. § 2000e-5. By virtue of the Civil Rights Act of 1991, damages under the ADA generally are the same as those available under Title VII. Thus, potential remedies in ADA cases include backpay, compensatory damages, punitive damages, and attorneys’ fees. See 42 U.S.C. § 1981a.
In ADA cases, a plaintiff prevails on the issue of liability by showing that discrimination was a “motivating factor” in the adverse employment decision. Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). The employer may nevertheless 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. Id.; Doane, 115 F.3d at 629. In such cases, “remedies available are limited to a declaratory judgment, an injunction that does not include an order for reinstatement or for back pay, and some attorney’s fees and costs.” Doane, 115 F.3d at 629 (quoting Pedigo, 60 F.3d at 1301) (citing 42 U.S.C. § 2000e-5(g)(2)(B)(i) & (ii)). But see Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396, 397-98 (8th Cir. 1996) (discussing prevailing party for purposes of awarding attorneys’ fees).
In addition, the ADA provides a “good faith” defense if an employer “demonstrates good faith efforts” to find a reasonable accommodation with the plaintiff. See 42 U.S.C § 1981a(a)(3) and Model Instruction 5.57, infra. If the jury finds that the employer has made such efforts, the plaintiff cannot recover compensatory or punitive damages. See 42 U.S.C. § 1981a(a)(3).
5.51A ADA - DISPARATE TREATMENT - ESSENTIAL ELEMENTS
(ACTUAL DISABILITY)
Your verdict must be for plaintiff and against defendant if all of the following elements have been proved by the [(greater weight) (preponderance)]1 of the evidence:
First, plaintiff had (specify alleged impairment(s));2 and
Second, such (specify alleged impairment(s)) substantially limited plaintiff's ability to (specify major life activity or activities affected); and3
Third, defendant (specify action(s) taken with respect to plaintiff)4; and
Fourth, plaintiff could have performed the essential functions5 of (specify job held or position sought)6 at the time defendant (specify action(s) taken with respect to plaintiff) and
Fifth, defendant knew7 of plaintiff's (specify alleged impairment(s)) and plaintiff's (specify alleged impairment(s)) was a motivating factor8 in defendant's decision to (specify action(s) taken with respect to plaintiff).
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence [or if defendant is entitled to a verdict under (describe instruction)],9 then your verdict must be for defendant.
Committee Comments
This instruction is designed to submit cases in which the primary issue is whether the plaintiff's disability was a motivating factor in the employment decision. The instruction may be modified if the plaintiff alleges that he or she has a record of a disability. See 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(g). If the plaintiff alleges that he or she did not have an actual disability, but that he or she was regarded by the defendant as having a disability, see 42 U.S.C. § 12102(2)(C), the appropriate instruction for use is Model Instruction 5.51(B), infra.
The McDonnell Douglas burden-shifting scheme applies in analyzing claims of intentional discrimination under the ADA. See, e.g., Christopher v. Adam's Mark Hotels, 137 F.3d 1069, 1071 (8th Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). It is unnecessary and inadvisable, however, to instruct the jury regarding the McDonnell Douglas analysis. Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir. 1997) (“Reference to this complex analysis is not necessary . . . or even recommended.”); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (“[T]he McDonnell Douglas 'ritual is not well suited as a detailed instruction to the jury' and adds little understanding to deciding the ultimate question of discrimina.tion.”) (quoting Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir. 1985)). Instead, the submission to the jury should focus on the ultimate issues of whether intentional discrimination was a motivating factor in the defendant's employment decision. See Lang, 107 F.3d at 1312 (“Model instruction § 5.91 properly focuses on the single ultimate factual issue for the jury--whether the plaintiff is a victim of intentional discrimination . . . .”).
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
2. In a typical case, the plaintiff will allege discrimination on the basis of an actual disability. See 42 U.S.C. § 12102(2)(A). In such cases, the name of the condition is not essential as long as the specified condition fits the definition of an impairment as used in the ADA. See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (“[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.”) (quoting 29 C.F.R. § 1630 App., § 1630.2(j)). Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997) (cautioning district court to be mindful of placing “undue emphasis” on one party's evidence).
As discussed in the
Committee Comments
, however, if the plaintiff contends that he or she had a record of a disability, the language of the instruction will have to be modified. See 42 U.S.C. § 12102(2)(B). For cases in which the plaintiff alleges that he or she was regarded by the defendant as having a disability, see infra Model Instruction 5.51(B). See id. § 12102(2)(C).
3. This element is designed to submit the issue of whether the plaintiff’s alleged impairment constitutes a “disability” under the ADA. If necessary, the phrase “substantially limits” may be defined. See infra Model Instruction 5.52(C).
4. Insert the appropriate language depending on the nature of the case (e.g.,“discharge,” “failure to hire,” “failure to promote,” or “demotion” case). Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.59.
5. This element is designed to submit the issue of whether the plaintiff is a “qualified individual” under the ADA. If necessary, the phrase “essential functions” may be defined. See infra Model Instruction 5.52(B).
6. In a discharge or demotion case, specify the position held by the plaintiff. In a failure-to-hire or failure-to-promote case, specify the position for which the plaintiff applied. See Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575-76 (8th Cir. 2000) (agreeing with district court’s assessment that it could not evaluate whether plaintiff was a qualified individual within the meaning of the ADA because plaintiff failed to identify any particular job for which she was qualified).
7. This language may need to be modified if there is a dispute whether the defendant had adequate knowledge of the plaintiff’s impairment. See Webb v. Mercy Hosp., 102 F.3d 958, 960 (8th Cir. 1996) (holding that an employer did not violate the ADA when it discharged a nurse who had a history of hospitalization for depression because there was no evidence that the employer knew of her diagnosis); Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 990 (8th Cir. 1996) (upholding summary judgment for the employer where the plaintiff concealed the severity of her disabling condition even though the employer had some awareness of the plaintiff’s health problems). See also Miller v. National Casualty Co., 61 F.3d 627, 630 (8th Cir. 1995) (employee’s complaints of stress insufficient to put employer on notice of any disability when it had not been informed about a diagnosis of manic depression; to extent symptoms were known, they were not “so obviously manifestations of an underlying disability that it would be reasonable to infer that [her] employer actually knew of the disability” (quoting Hedberg v. Indiana Bell Tele. Co., 47 F.3d 928, 934 (7th Cir. 1995))). For more discussion on this issue, see section 5.50.
8. The phrase “motivating factor” is the proper phrase to use in the instruction, see Pedigo v. P.A.M. Transport Inc., 60 F.3d 1300, 1301 (8th Cir. 1995), and the Committee recommends that the definition set forth in Model Instruction 5.96, infra, be given.
9. This language should be used when the defendant is submitting an affirmative defense. The ADA specifically provides for the following affirmative defenses: direct threat (42 U.S.C. § 12113(b)); religious entity (42 U.S.C. § 12113(c)(1)); infectious or communicable disease (42 U.S.C. § 12113(d)(2)); illegal use of drugs (42 U.S.C. 12114(a)); undue hardship (42 U.S.C. § 12112(b)(5)(A)); and employment qualification standard, test or selection criterion that is job-related and consistent with business necessity (42 U.S.C. § 12113(a)).
5.51B ADA-- DISPARATE TREATMENT - ESSENTIAL ELEMENTS
(PERCEIVED DISABILITY)
Your verdict must be for plaintiff and against defendant if all of the following elements have been proved by the [(greater weight) (preponderance)]1 of the evidence:
First, defendant regarded plaintiff's (specify alleged impairment(s))2 as substantially limiting plaintiff's ability to (specify major life activity or activities defendant allegedly believed were affected); and3
Second, defendant (specify action(s) taken with respect to plaintiff)4 and
Third, plaintiff could have performed the essential functions5 of (specify job held or position sought)6 at the time defendant (specify action(s) taken with respect to plaintiff); and
Fourth, plaintiff's (specify alleged impairment(s)) was a motivating factor7 in defendant's decision to (specify action(s) taken with respect to plaintiff).
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence [or if defendant is entitled to a verdict under (describe instruction)],8 then your verdict must be for defendant.
Committee Comments
This instruction is designed to submit cases in which the primary issue is whether the plaintiff's perceived disability was a motivating factor in the employment decision. See 42 U.S.C. § 12102(2)(C).
The McDonnell Douglas burden-shifting scheme applies in analyzing claims of intentional discrimination under the ADA. See, e.g., Christopher v. Adam's Mark Hotels, 137 F.3d 1069, 1071 (8th Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). It is unnecessary and inadvisable, however, to instruct the jury regarding the McDonnell Douglas analysis. Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir. 1997) (“Reference to this complex analysis is not necessary . . . or even recommended.”); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (“[T]he McDonnell Douglas 'ritual is not well suited as a detailed instruction to the jury' and adds little understanding to deciding the ultimate question of discrimination.”) (quoting Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir. 1985)). Instead, the submission to the jury should focus on the ultimate issues of whether intentional discrimination was a motivating factor in the defendant's employment decision. See Lang, 107 F.3d at 1312 (“Model instruction § 5.91 properly focuses on the single ultimate factual issue for the jury--whether the plaintiff is a victim of intentional discrimination . . . .”).
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
2. It may be that in the majority of “perceived disability” cases, the plaintiff has an actual impairment, although the impairment does not substantially limit any of the plaintiff's major life activities. See 29 C.F.R. § 1630.2(l)(1) (explaining that a person is “regarded as” having an impairment that substantially limits a major life activity “if he or she has a physical or mental impairment that does not substantially limit major life activities but is treated . . . as constituting such limitation”).
In such cases, the name of the condition is not essential as long as the specified condition fits the definition of an impairment as used in the ADA. See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (“[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.”) (quoting 29 C.F.R. § 1630 App., § 1630.2(j)). Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997) (cautioning district court to be mindful of placing “undue emphasis” on one party's evidence).
3. This element is designed to submit the issue of whether the plaintiff has a “disability” within the meaning of the ADA because the defendant regarded plaintiff as having a substantially limiting impairment. See 42 U.S.C. § 12102(2)(C). If necessary, the phrase “substantially limits” may be defined. See infra Model Instruction 5.52(C).
4. Insert the appropriate language depending on the nature of the case (e.g.,“discharge,” “failure to hire,” “failure to promote,” or “demotion” case). Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.59.
5. This element is designed to submit the issue of whether the plaintiff is a “qualified individual” under the ADA. If necessary, the phrase “essential functions” may be defined. See infra Model Instruction 5.52(B).
6. In a discharge or demotion case, specify the position held by the plaintiff. In a failure-to-hire or failure-to-promote case, specify the position for which the plaintiff applied. See Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575-76 (8th Cir. 2000) (agreeing with district court’s assessment that it could not evaluate whether plaintiff was a qualified individual within the meaning of the ADA because plaintiff failed to identify any particular job for which she was qualified).
7. The phrase “motivating factor” is the proper phrase to use in the instruction, see Pedigo v. P.A.M. Transport Inc., 60 F.3d 1300, 1301 (8th Cir. 1995), and the Committee recommends that the definition set forth in Model Instruction 5.96, infra, be given.
8. This language should be used when the defendant is submitting an affirmative defense. The ADA specifically provides for the following affirmative defenses: direct threat (42 U.S.C. § 12113(b)); religious entity (42 U.S.C. § 12113(c)(1)); infectious or communicable disease (42 U.S.C. § 12113(d)(2)); illegal use of drugs (42 U.S.C. 12114(a)); undue hardship (42 U.S.C. § 12112(b)(5)(A)); and employment qualification standard, test or selection criterion that is job-related and consistent with business necessity (42 U.S.C. § 12113(a)).
5.51A/B(1) ADA--DISPARATE TREATMENT
“SAME DECISION” INSTRUCTION
If you find in favor of plaintiff under Instruction ___,1 then you must answer the following question in the verdict form[s]: Has it been proved by the [(greater weight) (preponderance)]2 of the evidence that defendant would have (specify action taken with respect to plaintiff) even if defendant had not considered plaintiff’s (specify alleged impairment)?
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 42 U.S.C. § 2000e-5(g)(2)(B). This instruction is designed to submit this "same decision" issue to the jury. See Doane v. City of Omaha, 115 F.3d 624, 629 (8th Cir. 1997) (discussing remedies available in "mixed motive" case under ADA); Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995) (same). See also Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396, 396-97 (8th Cir. 1996) (discussing “prevailing party” for purposes of awarding attorneys’ fees).
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
5.51C ADA - REASONABLE ACCOMMODATION CASES
(Specific Accommodation Identified)
Your verdict must be for plaintiff and against defendant if all of the following elements have been proved by the [(greater weight) (preponderance)]1 of the evidence:
First, plaintiff had (specify alleged impairment(s));2 and
Second, such (specify alleged impairment(s)) substantially limited plaintiff's ability to (specify major life activity or activities affected); and3
Third, defendant knew4 of plaintiff’s (specify alleged impairment(s)); and
Fourth, plaintiff could have performed the essential functions5 of the (specify job held or position sought) at the time defendant (specify action(s) taken with respect to plaintiff) if plaintiff had been provided with (specify accommodation(s) identified by plaintiff)6; and
Fifth, providing (specify accommodation(s) identified by plaintiff) would have been reasonable; and
Sixth, defendant failed to provide (specify accommodation(s) identified by plaintiff) and failed to provide any other reasonable accommodation.7
If any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence [or if defendant is entitled to a verdict under (describe instruction)], 8 then your verdict must be for defendant.
Committee Comments
The ADA requires employers to make reasonable accommodations to allow disabled individuals to perform the essential functions of their positions. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). Although many individuals with disabilities are qualified to perform the essential functions of jobs without need of any accommodation, this instruction is designed for use in cases in which the nature or extent of accommodations provided to an otherwise qualified individual is in dispute. For a discussion of the “interactive process” in which employers and employees may be required to engage to determine the nature and extent of accommodations needed, see section 5.50.
The term “accommodation” means making modifications to the work place which allows a person with a disability to perform the essential functions of the job or allows a person with a disability to enjoy the same benefits and privileges as an employee without a disability. See Kiel, 169 F.3d at 1136 (“A reasonable accommodation should provide the disabled individual an equal employment opportunity, including an opportunity to attain the same level of performance, benefits, and privileges that is available to similarly situated employees who are not disabled.”).
A “reasonable” accommodation is one that could reasonably be made under the circumstances and may include but is not limited to: making existing facilities used by employees readily accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 29 C.F.R. § 1630.2(o); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995).
Although part-time work and job restructuring may be considered reasonable accommodations, “[t]his does not mean an employer is required to offer those accommodations in every case.” Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575 (8th Cir. 2000). Moreover, although job restructuring is a possible accommodation under the ADA, an employer need not reallocate the essential functions of a job. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999); Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084 (8th Cir. 2000); Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575 (8th Cir. 2000); Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998); Benson, 62 F.3d at 1112-13 (citing 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii)). In addition, an employer is not obligated to hire additional employees or reassign existing workers to assist an employee. Fjellestad, 188 F.3d at 950 (citing Moritz, 124 F.3d at 788).
Reassignment to a vacant position is another possible accommodation under the ADA. Benson, 62 F.3d at 1114 (citing 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii)); see also Fjellestad, 188 F.3d at 950-51 (plaintiff created genuine issue of material fact as to whether employer could have reassigned her to a specific, vacant position). In fact, the Eighth Circuit has recognized that, in certain circumstances, reassignment to a vacant position may be “necessary” as a reasonable accommodation. See Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1018 (8th Cir. 2000). The scope of the reassignment duty is limited, however. Id. at 1019. For example, reassignment is an accommodation of “last resort”; that is, the “very prospect of reassignment does not even arise unless accommodation within the individual’s current position would pose an undue hardship.” Id. Moreover, the ADA does not require an employer to create a new position as an accommodation. Id.; see also Treanor, 200 F.3d at 575 (“[T]he ADA does not require an employer to create a new part-time position where none previously existed.”); Fjellestad, 188 F.3d at 950 (employer not required to create new position or to create permanent position out of a temporary one). In addition, an employer is not required to “bump” another employee in order to reassign a disabled employee to that position. Cravens, 214 F.3d at 1019. Promotion is not required. Id. Finally, the employee must be “otherwise qualified” for the reassignment position. Id.
An employer is not obligated to provide an employee the accommodation he or she requests or prefers. See, e.g., Cravens, 214 F.3d at 1019. The employer need only provide some reasonable accommodation. Hennenfent v. Mid Dakota Clinic, P.C., 164 F.3d 419, 422 n.2 (8th Cir. 1998); accord Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) (“If more than one accommodation would allow the individual to perform the essential functions of the position, ‘the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.’”).
The ADA does not require the preferential treatment of individuals with disabilities in terms of job qualifications as a reasonable accommodation. See Harris v. Polk County, 103 F.2d 696, 697 (8th Cir. 1996) (employer lawfully denied job to disabled applicant on basis of criminal record which allegedly had resulted from prior psychological problems because “an employer may hold disabled employees to the same standard of law-abiding conduct as all other employees”).
In some cases, the timing of the plaintiff's alleged disability is critical. If necessary, the language may be modified to incorporate the relevant time frame of the plaintiff's alleged disability.
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
2. The name of the condition is not essential as long as the specified condition fits the definition of an impairment as used in the ADA. See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (“[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.”) (quoting 29 C.F.R. § 1630 App., § 1630.2(j)). Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997) (cautioning district court to be mindful of placing “undue emphasis” on one party's evidence).
3. This element is designed to submit the issue of whether the plaintiff’s alleged impairment constitutes a “disability” under the ADA. If necessary, the phrase “substantially limits” may be defined. See infra Model Instruction 5.52(C).
4. This language may need to be modified if there is a dispute whether the defendant had adequate knowledge of the plaintiff’s impairment. See Webb v. Mercy Hosp., 102 F.3d 958, 960 (8th Cir. 1996) (holding that an employer did not violate the ADA when it discharged a nurse who had a history of hospitalization for depression because there was no evidence that the employer knew of her diagnosis); Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 990 (8th Cir. 1996) (upholding summary judgment for the employer where the plaintiff concealed the severity of her disabling condition even though the employer had some awareness of the plaintiff’s health problems). See also Miller v. National Casualty Co., 61 F.3d 627, 630 (8th Cir. 1995) (employee’s complaints of stress insufficient to put employer on notice of any disability when it had not been informed about a diagnosis of manic depression; to extent symptoms were known, they were not “so obviously manifestations of an underlying disability that it would be reasonable to infer that [her] employer actually knew of the disability” (quoting Hedberg v. Indiana Bell Tele. Co., 47 F.3d 928, 934 (7th Cir. 1995))). For more discussion on this issue, see section 5.50.
5. This element is designed to submit the issue of whether the plaintiff is a “qualified individual” under the ADA. If necessary, the phrase “essential functions” may be defined. See infra Model Instruction 5.52(B).
6. It may be that in the majority of cases, the plaintiff requests the provision of a specific accommodation (e.g., a modified work schedule). In some cases, however, the plaintiff may simply notify the employer of his or her need for an accommodation in general. In such cases, the language of the instruction should be modified.
7. An employer is not obligated to provide an employee the accommodation he or she requests or prefers. See, e.g., Cravens, 214 F.3d at 1019. The employer need only provide some reasonable accommodation. Hennenfent v. Mid Dakota Clinic, P.C., 164 F.3d 419, 422 n.2 (8th Cir. 1998); accord Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) (“If more than one accommodation would allow the individual to perform the essential functions of the position, 'the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.'”).
8. This language should be used when the defendant is submitting an affirmative defense. The ADA specifically provides for the following affirmative defenses: direct threat (42 U.S.C. § 12113(b)); religious entity (42 U.S.C. § 12113(c)(1)); infectious or communicable disease (42 U.S.C. § 12113(d)(2)); illegal use of drugs (42 U.S.C. § 12114(a)); undue hardship (42 U.S.C. § 12112(b)(5)(A)); and employment qualification standard, test or selection criterion that is job-related and consistent with business necessity (42 U.S.C. § 12113(a)).
5.52A DISABILITY
[no definition recommended]
Committee Comments
As drafted, the Model Instructions do not use the term "disability" and, thus, do not require the jury to determine whether a plaintiff has a "disability." Rather, the instructions require the jury to find the facts which support the underlying elements of a disability under the Act.
5.52B ESSENTIAL FUNCTIONS
In determining whether a job function is essential, you should consider the following factors: [(1) The employer's judgment as to which functions of the job are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of persons who have held the job; (7) the current work experience of persons in similar jobs; (8) whether the reason the position exists is to perform the function; (9) whether there are a limited number of employees available among whom the performance of the function can be distributed; (10) whether the function is highly specialized and the individual in the position was hired for his or her expertise or ability to perform the function; and (11) (list any other relevant factors supported by the evidence)].1
No one factor is necessarily controlling. You should consider all of the evidence in deciding whether a job function is essential.
The term "essential functions" means the fundamental job duties of the employment position the plaintiff holds or for which the plaintiff has applied. The term "essential functions" does not include the marginal functions of the position.
Committee Comments
The ADA protects only those individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position that the plaintiff holds or desires. See 42 U.S.C. § 12111(8); Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084 (8th Cir. 2000); Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir. 1998); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995). Thus, this instruction is designed for use in connection with the essential elements instruction in cases where the issue of whether a particular job requirement or task is an "essential function" of the job is in dispute. The instruction, although not technically a definition, should be used to instruct the jury in determining whether a given job duty is essential.
The instruction is based on 29 C.F.R. § 1630.2(n) and the Eighth Circuit's opinions in Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998) (“An employer's identification of a position's “essential functions” is given some deference under the ADA.”); Moritz, 147 F.3d at 787; and Benson, 62 F.3d at 1113.
Notes on Use
1. This instruction should be modified, as appropriate, to include only those factors supported by the evidence.
5.52C SUBSTANTIALLY LIMITS
The phrase “substantially limits” as used in these instructions means an individual is [unable to perform (specify major life activity affected)] [significantly restricted in the ability to perform (specify major life activity affected)].1
In determining whether the plaintiff's impairment substantially limits plaintiff's ability to (specify major life activity affected), you should compare the plaintiff's ability to (specify major life activity affected) with that of the average person. In doing so, you should also consider: (1) the nature and severity of the impairment; (2) how long the impairment will last or is expected to last; and (3) the permanent or long-term impact, or expected impact, of the impairment. [Temporary impairments with little or no long-term impact are not sufficient.]2
It is not the name of an impairment or a condition that matters, but rather the effect of an impairment or condition on the life of a particular person.
Committee Comments
This instruction is designed for use in connection with the essential elements instruction in cases in which the issue of whether plaintiff has a disability under the ADA is in dispute. The language of the instruction is based on 29 C.F.R. § 1630.2(j). The term “substantially limits” may be of such common usage that a definition is not required. If the Court desires to define the term, however, the Committee recommends this definition. The instruction will need to be modified in cases where the plaintiff claims that the defendant “regarded” plaintiff as having a substantially limiting impairment.
An impairment is only a disability under the ADA if it substantially limits one or more major life activities. See 42 U.S.C. § 12102(2). The phrase “substantially limits” means that an individual is (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j)(1); Fjellestad v. Pizza Hut of Am, Inc., 188 F.3d 944, 948-49 (8th Cir. 1999); Snow v. Ridgeway Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997).
The United States Supreme Court has held that a physical or mental impairment that is corrected by medication, the body’s own systems, or other measures does not “substantially limit” a major life activity. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999); accord Spades v. City of Walnut Ridge, 186 F.3d 897, 899-900 (8th Cir. 1999) (alleged disability of depression did not substantially limit any of plaintiff’s major life activities where plaintiff conceded that resort to medicines and counseling allowed him to function without limitation).
The following factors are relevant in determining whether an individual is substantially limited in a major life activity: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2); Fjellestad, 188 F.3d at 949; Snow, 128 F.3d at 1207; Helfter, 115 F.3d at 616; Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). Temporary, non-chronic impairments of short duration with little or no long-term or permanent impact are usually not disabilities. See Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (citing 29 C.F.R. § 1630 App., § 1630.2(j); Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997)).
If the plaintiff alleges that he or she is substantially limited in the major life activity of working, a separate instruction may need to be given. Generally, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Snow, 128 F.3d at 1206 (citing 29 C.F.R. § 1630.2(j)(3)(i)); Aucutt, 85 F.3d at 1319 (same); accord Fjellestad, 188 F.3d at 949 (“Finding that an individual is substantially limited in his or her ability to work requires a showing that his or her overall employment opportunities are limited.”). Rather, a person must show the impairment significantly restricts his or her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. Snow, 128 F.3d at 1206-07 (citing 29 C.F.R. § 1630.2(j)(3)(i)); Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996) (same); accord Shipley v. City of University City, 195 F.3d 1020, 1022-23 (8th Cir. 1999) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2150-52 (1999)); Fjellestad, 188 F.3d at 949.
The following factors are relevant in determining whether a person is substantially limited in the major life activity of working: (1) the number and type of jobs from which the individual has been disqualified because of the impairment; (2) the geographical area to which the individual has reasonable access; and (3) the individual’s job training, experience and expectations. 29 C.F.R. § 1630.2(j)(3); Fjellestad, 188 F.3d at 949; Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th Cir. 1997); Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996).
Ultimately, “a court must ask ‘whether the particular impairment constitutes for the particular person a significant barrier to employment.’” Webb, 94 F.3d at 488 (quoting Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986)). The courts caution, however, that “‘working’ does not mean working at a particular job of that person’s choice.” Smith v. City of Des Moines, 99 F.3d 1466, 1474 (8th Cir. 1996) (quoting Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995)).
Notes on Use
1. Select the bracketed language that is supported by the evidence.
2. Use the bracketed language only if it is supported by the evidence.
5.53A "UNDUE HARDSHIP" -- STATUTORY DEFENSE
Your verdict must be in favor of the defendant if it has been proved by the [(greater weight) (preponderance)]1 of the evidence that providing (specify accommodation) would cause an undue hardship on the operation of defendant's business.
The term "undue hardship," as used in these instructions, means an action requiring defendant to incur significant difficulty or expense when considered in light of the following:
[(1) the nature and cost of (specify accommodation);
(2) the overall financial resources of the facility involved in the provision of (specify accommodation), the number of persons employed at such facility and the effect on expenses and resources;
(3) the overall financial resources of the defendant;
(4) the overall size of the business of defendant with respect to the number of its employees and the number, type and location of its facilities;
(5) the type of operation of the defendant, including the composition, structure, and functions of the workforce;
(6) the impact of (specify accommodation) on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business;
and (list any other relevant factors supported by the evidence)].2
Committee Comments
Under the ADA, an employer must provide a reasonable accommodation to the known physical limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business. See 42 U.S.C. § 12111(9) and Model Instruction 5.51(B), infra,
Committee Comments
. Thus, this instruction should be used to submit the defense of undue hardship. See 42 U.S.C. § 12111(10).
Eighth Circuit case law holds that the defendant in any civil case is entitled to a specific instruction on its theory of the case, if the instruction is "legally correct, supported by the evidence and brought to the court's attention in a timely request." Des Moines Bd. of Water Works v. Alvord, Burdick & Howson, 706 F.2d 820, 823 (8th Cir. 1983).
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
2. This instruction should be modified, as appropriate, to include only those factors supported by the evidence.
5.53B "DIRECT THREAT" -- STATUTORY DEFENSE
Your verdict must be in favor of the defendant if it has been proved by the [(greater weight) (preponderance)]1 of the evidence that
First, defendant (specify action(s) taken with respect to plaintiff) because plaintiff posed a direct threat to the health or safety of others in the workplace; and
Second, such direct threat could not be eliminated by reasonable accommodation.
A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated by reasonable accommodation. The determination that a direct threat exists must be based on a specific personal assessment of the plaintiff's present ability to safely perform the essential functions of the job. This assessment of the plaintiff's ability must be based on either a reasonable medical judgment that relies on the most current medical knowledge, or on the best available objective evidence.
In determining whether a person poses a direct threat, you must consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the likely time before the potential harm occurs.
Committee Comments
This instruction should be used in submitting the defense of direct threat. See 42 U.S.C. § 12111(3); 29 C.F.R. 1630.2(r). Eighth Circuit case law holds that the defendant in any civil case is entitled to a specific instruction on its theory of the case, if the instruction is "legally correct, supported by the evidence and brought to the court's attention in a timely request." Des Moines Bd. of Water Works v. Alvord, Burdick & Howson, 706 F.2d 820, 823 (8th Cir. 1983).
Under the ADA, an employer may apply its qualification standards, tests, or selection criteria to screen out, deny a job to, or deny a benefit of employment to a disabled person, if such criteria are job-related and consistent with business necessity and if the person cannot perform the essential function of the position with reasonable accommodation. 42 U.S.C. § 12113(a); EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1283-84 (7th Cir. 1995).
The ADA includes within the term “qualification standards” the requirement that the employee not pose a direct threat to the health or safety of other individuals in the workplace. See 42 U.S.C. § 12133(b). At least one court has rejected the language of 29 C.F.R. § 1630.2(r) which expands the ADA to include the employee being a direct threat to himself or herself. See Kohnke v. Delta Airlines, Inc., 932 F. Supp. 1110, 1111-12 (N.D. Ill. 1996). That court, however, held that a qualification standard which proscribed an employee being a direct threat to himself, as well as others in the workplace, could pass muster under the more general provision of 42 U.S.C. § 12113(a).
For a discussion of the “direct threat” defense in the health care context, see Bragdon v. Abbott, 524 U.S. 624, ___, 118 S. Ct. 2196, 2210 (1998) (health care professional has duty to assess risk based on objective, scientific information available to him or her and others in profession).
Notes on Use
1. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
2. The term “direct threat” is defined by the ADA as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” See 42 U.S.C. § 12113 (b). The applicable regulations define “direct threat” as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” See 29 C.F.R. § 1630.2(r) (emphasis added). This regulatory expansion of the ADA to include an employee being a threat to himself or herself, as well as to others, has been rejected by at least one court. See Kohnke v. Delta Airlines, Inc., 932 F. Supp. 1110 (N.D. Ill. 1996).
5.54 ACTUAL DAMAGES
If you find in favor of plaintiff under Instruction ___1 [and if you answer "no" in response to Instruction ___,]2 then you must award plaintiff such sum as you find by the [(greater weight) (preponderance)]3 of the evidence will fairly and justly compensate plaintiff for any damages you find plaintiff sustained as a direct result of [describe defendant's decision--e.g., "defendant's failure to hire plaintiff"]. 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 benefits4 plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge] through the date of your verdict,5 minus the amount of earnings and benefits that plaintiff received from other employment during that time.
Second, you must determine the amount of any other damages sustained by plaintiff, such as [list damages supported by the evidence].6 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.7
[You are also instructed that 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 by the [(greater weight) (preponderance)] of the evidence that 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
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. 42 U.S.C. § 2000e.2(g)(2)(B). 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. Id. § 1981a(a). 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. Id. § 1981a(b).
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 Industries, 910 F.2d 674, 680 (10th 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 or pension benefits ordinarily are not offset against a back pay award. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (holding that pension benefits are a "collateral source benefit"); Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 n.1 (3d Cir. 1986) (Social Security and pension benefits not deductible); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138.39 (3d Cir. 1986) (unemployment benefits not deductible); Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983) (same). But see Blum v. Witco Chemical Corp., 829 F.2d 367, 374 (3d Cir. 1987) (pension benefits received as a result of subsequent employment considered in offsetting damages award); Toledo v. Nobel.Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (deductibility of unemployment compensation is within trial court's discretion); Horn v. Duke Homes, 755 F.2d 599, 607 n.12 (7th Cir. 1985) (same); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir. 1976) (same). 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, front pay is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (front pay is an issue for the court, not the jury, in ADEA cases). If the trial court submits the issue of front pay to the jury, the jury’s determination may be binding. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).
In Kramer v. Logan County School Dist. No. R.1, 157 F.3d 620, 625.26 (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).”
Although the Civil Rights Act of 1991 expressly limits the amount of compensatory and punitive damages depending upon the size of the employer, the jury shall not be advised on any such limitation. 42 U.S.C. § 1981a(c)(2). Instead, the trial court will simply reduce the verdict by the amount of any excess.
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
2. Fill in the number or title of the “same decision” instruction here. Even if the jury finds that the defendant would have made the same decision regardless of plaintiff’s disability, the Court may direct the jury to determine the amount of damages, if any, sustained by the plaintiff. This approach will protect against the necessity of a retrial of the case in the event the underlying liability determination is reversed on appeal.
3. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
4. 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, 470 (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. Syvock v. 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. 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.
5. Front pay is an equitable issue for the judge to decide. Excell Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir. 1999) (Title VII case). 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 (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.
6. Under the Civil Rights Act of 1991, a prevailing ADA plaintiff may recover damages for mental anguish and other personal injuries. The types of damages mentioned in § 1981a(b)(3) include “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” For cases involving the provision of a reasonable accommodation (Model Instruction 5.51(C), infra), the plaintiff may not recover such damages if the defendant demonstrated “good faith efforts” to arrive at a reasonable accommodation with the plaintiff. See infra Model Instruction 5.57.
7. If the issue of “front pay” is submitted to the jury, it should be distinguished from an award of compensatory damages, which is subject to the statutory cap. See infra
Committee Comments
. Accordingly, separate categories of damages must be identified.
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.
5.55 NOMINAL DAMAGES
If you find in favor of plaintiff under Instruction ___1 [and if you answer "no" in response to Instruction ___,]2 but you find that plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).3
Committee Comments
Most employment discrimination cases involve lost wages and benefits. In some case, 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. This instruction is designed to submit the issue of nominal damages in appropriate cases.
Notes on Use
1. Fill in the number or title of the essential elements instruction here.
2. Fill in the number or title of the "same decision" instruction here. Even if the jury finds that the defendant would have made the same decision regardless of plaintiff’s disability, the Court may direct the jury to determine the amount of damages, if any, awarded to the plaintiff. This approach will protect against the necessity of a retrial of the case in the event the underlying liability determination is reversed on appeal.
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 of the harm that the plaintiff suffered from the violation of his rights. Dean v. Civiletti, 670 F.2d 99, 101 (8th Cir. 1982) (Title VII); cf. Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988) (in prisoner civil rights action, nominal damages are appropriate where the jury cannot place a monetary value of the harm suffered by the plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).
5.56 PUNITIVE DAMAGES
In addition to actual [and nominal] damages mentioned in the other instructions, the law permits the jury under limited circumstances to award an injured person punitive damages.
If you find in favor of plaintiff under Instruction _______,1 and if you answer “no” in response to Instruction _____,2 then you must decide whether defendant acted with malice or reckless indifference to plaintiff’s right not to be discriminated against3 on the basis of [his/her] (specify alleged impairment(s)). Defendant acted with malice or reckless indifference if:
it has been proved by the [(preponderance) or (greater weight)] of the evidence that [insert the name(s) of the defendant or manager4 who terminated5 plaintiff’s employment] knew that the (termination)5 was in violation of the law prohibiting disability discrimination, or acted with reckless disregard of that law.
[However, you may not award punitive damages if it has been proved by the [(preponderance) or (greater weight)] of the evidence [that defendant made a good-faith effort to comply with the law prohibiting disability discrimination]6.
If you find that defendant acted with malice or reckless disregard and did not make a good faith effort to comply with the law, then, in addition to any actual [or nominal] damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter defendant and others from like conduct in the future. Whether to award plaintiff punitive damages, and the amount of those damages, are within your discretion.
[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.]7
Committee Comments
Under the Civil Rights Act of 1991, a Title VII or ADA 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)(1). See also Model Instruction 4.53, infra, on punitive damages and Pacific Mut. Life Ins. Co. v. Haslip, 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 Association, 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. Id. at 545. The Court does not clarify which party has the burden of proof on the issue of good faith.
For cases involving the provision of a reasonable accommodation (see infra Model Instruction 5.51(C)),the plaintiff may not recover punitive damages if the defendant demonstrated “good faith efforts” to arrive at a reasonable accommodation with the plaintiff. See infra Model Instruction 5.57.
Under the ADA, as amended by the Civil Rights Act of 1991, the upper limit on an award including punitive and compensatory damages is $300,000. See 42 U.S.C. § 1981a(b)(3) (limiting the sum of compensatory and punitive damages awards depending on the size of the employer). For a discussion of submitting punitive damages to the jury under both state and federal law, see Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 575-78 (8th Cir. 1997).
Notes on Use
1. Fill in the number or title of the essential elements instruction here. See infra Model Instructions 5.51(A), 5.51(B) and 5.51(C).
2. Fill in the number or title of the “same decision” instruction if applicable. See infra Model Instruction 5.51(A/B)(1).
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.” Civil Rights Act of 1991, § 102 (codified at 42 U.S.C. § 1981a(b)(1)).
4. Use the name of the defendant, the manager who took the action, or other descriptive phrase such as “the manager who fired plaintiff.”
5. 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.
6. Use this phrase only if the good faith of 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 Association, 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.
7. The bracketed language is available for use if punitive damage claims are submitted against more than one defendant.
5.57 "GOOD FAITH" DEFENSE TO COMPENSATORY AND PUNITIVE DAMAGES
If you find in favor of plaintiff under Instruction ___,1 then you must answer the following question in the verdict form(s): Has it been proved by the [(greater weight) (preponderance)]2 of the evidence that the defendant made a good faith effort and consulted with the plaintiff, to identify and make a reasonable accommodation?
Committee Comments
This instruction is designed for use in cases where a discriminatory practice involves the provision of a reasonable accommodation. The language is derived from 42 U.S.C. § 1981a(a)(3), which provides that the plaintiff may not recover damages if the defendant "demonstrates good faith efforts" to arrive at a reasonable accommodation with the plaintiff.
If the jury answers the above interrogatory in the affirmative, the plaintiff may still be entitled to attorneys' fees and nominal damages.
Notes on Use
1. Fill in the number or title of the “reasonable accommodation” essential elements instruction here (Model Instruction 5.51(C), infra).
2. Select the bracketed language that corresponds to the burden-of-proof instruction given. See also Model Instruction 3.04, infra, and the
Committee Comments
thereto.
5.58 BUSINESS JUDGMENT INSTRUCTION
You may not return a verdict for plaintiff just because you might disagree with defendant's (decision)1 or believe it to be harsh or unreasonable.
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. Moreover, the Circuit has expressly approved the language of the instruction set forth here. See Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (“In an employment discrimination case, a business judgment instruction is 'crucial to a fair presentation of the case,' and the district court must offer it whenever it is proffered by the defendant.”). Cf. Blake v. J.C. Penney Co., 894 F.2d 274, 281 (8th Cir. 1990) (upholding a different business judgment instruction as sufficient).
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.
5.59 CONSTRUCTIVE DISCHARGE INSTRUCTION
See infra Model Instruction No. 5.93.
5.60 et seq.
(Reserved for "Reasonable Accommodation" Cases under the
Americans with Disabilities Act, 42 U.S.C. § 12101)
5.70 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION
Introductory Comment
The legal theory underlying First Amendment retaliation cases is that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142 (1983); see also Pickering v. Board of Educ., 391 U.S. 563, 568-74 (1968); Perry v. Sindermann, 408 U.S. 593, 597.98 (1972); Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 283.84 (1977); Rankin v. McPherson, 483 U.S. 378, 383.84 (1987); Waters v. Churchill, 511 U.S. 661 (1994). Although most First Amendment retaliation cases relate to the termination of the plaintiff's employment, they can involve demotions, suspensions, and other employment-related actions. See, e.g., Stever v. Independent School Dist. No. 625, 943 F.2d 845 (8th Cir. 1991) (transfer); Powell v. Basham, 921 F.2d 165, 167-68 (8th Cir. 1990) (denial of promotion); Duckworth v. Ford, 995 F.2d 858, 860-61 (8th Cir. 1993) (harassment). Generally, there are three issues in First Amendment retaliation cases: whether the plaintiff's speech was "protected activity" under the First Amendment; whether the plaintiff's speech was a motivating or substantial factor in the defendant's decision to terminate or otherwise impair the plaintiff's employment; and whether the defendant would have taken the same action irrespective of the plaintiff's speech. E.g., Hamer v. Brown, 831 F.2d 1398, 1401 (8th Cir. 1987); Lewis v. Harrison School Dist., 805 F.2d 310, 313 (8th Cir. 1986). In view of the Supreme Court's decision in Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977), the model instruction on liability utilizes a motivating-factor/same-decision burden-shifting format in all First Amendment retaliation cases.
5.71 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION -
ESSENTIAL ELEMENTS
Your verdict must be for plaintiff [and against defendant _______________]1 [on plaintiff's First Amendment retaliation claim]2 if the following elements have been proved by the [(greater weight) (preponderance)]3 of the evidence:
First, defendant [discharged]4 plaintiff; and
Second, plaintiff's [here specifically describe plaintiff's protected speech . e.g., letter to the local newspaper]5 was a motivating factor6 in defendant's decision [to discharge]7 plaintiff[; and
Third, defendant was acting under color of law].8
However, your verdict must be for defendant if any of the above elements has not been proved by the [(greater weight) (preponderance)] of the evidence, or if it has been proved by the [(greater weight) (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] (letter to the local newspaper).9
Committee Comments
OVERVIEW
Public employers may not retaliate against their employees for speaking out on matters of public concern unless their speech contains knowingly or recklessly false statements, undermines the ability of the employee to function, or interferes with the operation of the governmental entity. McGee v. South Pemiscot School Dist., 712 F.2d 339, 342 (8th Cir. 1983). In recent years, the Eighth Circuit has issued a number of noteworthy decisions concerning this theory of liability. See Duckworth v. Ford, 995 F.2d 858, 861 (8th Cir. 1993) (holding that defendants were not entitled to qualified immunity in First Amendment case); Shands v. City of Kennett, 993 F.2d 1337, 1344-46 (8th Cir. 1993) (affirming j.n.o.v. for employer where plaintiff's comments regarding personnel and safety issues were not protected by First Amendment); Bausworth v. Hazelwood School Dist., 986 F.2d 1197 (8th Cir. 1993) (affirming summary judgment for employer where plaintiff's comments regarding school district policy were not "protected activity"); Buzek v. County of Saunders, 972 F.2d 992 (8th Cir. 1992) (individual defendant was not entitled to qualified immunity defense in First Amendment case); Bartlett v. Fischer, 972 F.2d 911 (8th Cir. 1992) (approving qualified immunity defense in First Amendment case); Stever v. Independent School Dist. No. 625, 943 F.2d 845 (8th Cir. 1991) (analyzing "protected speech" and "causation" issues); Powell v. Basham, 921 F.2d 165 (8th Cir. 1990) (holding that public employee's criticism of employer's promotion process was "protected activity"); Crain v. Board of Police Comm'rs, 920 F.2d 1402 (8th Cir. 1990) (affirming summary judgment where plaintiffs' internal grievances did not rise to the level of "protected speech"); Hoffmann v. City of Liberty, 905 F.2d 229 (8th Cir. 1990) (employee grievance was not protected by the First Amendment); Darnell v. Ford, 903 F.2d 556 (8th Cir. 1990) (ruling that state police officer's support of a certain candidate for the position of Highway Patrol Superintendent was "protected activity").
PRIMARY ISSUES IN FIRST AMENDMENT CASES
Generally, there are three primary issues in First Amendment retaliation cases: (1) whether the plaintiff's speech was "protected activity" under the First Amendment; (2) whether the plaintiff's protected activity was a substantial or motivating factor in defendant's decision to terminate or otherwise impair the plaintiff's employment; and (3) whether the defendant would have taken the same action irrespective of plaintiff's protected activity. Hamer v. Brown, 831 F.2d 1398, 1401 (8th Cir. 1987); Lewis v. Harrison School Dist., 805 F.2d 310, 313 (8th Cir. 1986); Cox v. Dardanelle Public School Dist., 790 F.2d 668, 672 (8th Cir. 1986). The determination of whether the plaintiff's speech was "protected" presents a question of law for the court. E.g., Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1198 (8th Cir. 1993); Lewis v. Harrison School Dist., 805 F.2d 310, 313 (8th Cir. 1986).
SECONDARY ISSUES RELATING TO "PROTECTED SPEECH" DETERMINATION
In general, the question of whether the plaintiff's speech was "protected" depends upon two subissues: (1) whether the plaintiff's speech addressed a matter of "public concern"; and (2) whether, in balancing the competing interests, the plaintiff's interest in commenting on matters of public concern outweighs the government's interest in rendering efficient services to its constituents. Waters v. Churchill, 511 U.S. 661 (1994); Hamer v. Brown, 831 F.2d 1398, 1401.02 (8th Cir. 1987); Cox v. Dardanelle Public School Dist., 790 F.2d 668, 672 (8th Cir. 1986). In many cases, the trial court will be able to determine whether the plaintiff's speech was protected without much difficulty. However, as discussed below, complicated issues can arise when there are factual disputes underlying this issue. See Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993).
a. Public Concern
Analysis of whether the plaintiff's speech addressed a matter of "public concern" requires consideration of the plaintiff's role in conveying the speech, whether the plaintiff attempted to communicate to the public at large, and whether the plaintiff was attempting to generate public debate or merely pursuing personal gain. Bausworth v. Hazelwood School Dist., 986 F.2d 1197 (8th Cir. 1993); but cf. Derrickson v. Board of Educ., 703 F.2d 309, 316 (8th Cir. 1983) (speech can be protected even if it was "privately express[ed]" to plaintiff's superiors); Darnell v. Ford, 903 F.2d 556, 563 (8th Cir. 1990) (speech was protected even if it was motivated by plaintiff's self-interest); see generally Connick v. Myers, 461 U.S. 138, 147 (1983) (speech is not protected by First Amendment if plaintiff speaks merely as an employee upon matters only of personal interest). Determination of whether the plaintiff's speech addressed a matter of public concern appears to fall exclusively within the province of the court. See Lewis v. Harrison School Dist., 805 F.2d 310, 312-13 (8th Cir. 1986) (trial court erred in following jury's finding that plaintiff's speech did not address a matter of public concern).
b. Balancing of Interests
Analysis of the "balancing" issue depends upon a variety of factors, which traditionally have included the following: the need for harmony in the workplace; whether the governmental entity's mission required a close working relationship between the plaintiff and his or her co-workers when the speech in question has caused or could have caused deterioration in the plaintiff's work relationships; the time, place, and manner of the speech; the context in which the dispute arose; the degree of public interest in the speech; and whether the speech impaired the plaintiff's ability to perform his or her duties. Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993); Hamer v. Brown, 831 F.2d 1398, 1402 (8th Cir. 1987); see generally Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). This balancing process is flexible, and the weight to be given to any one factor depends upon the specific circumstances of each case. Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993).
c. Balancing and Jury Instructions
Although the balancing process ultimately is a function for the court, Eighth Circuit case law indicates that subsidiary factual issues must be submitted to the jury. For example, in McGee v. South Pemiscot School Dist., 712 F.2d 339, 342 (8th Cir. 1983), the court stated that "[i]t was for the jury to decide whether the [plaintiff's] letter [to the editor] created disharmony between McGee and his immediate supervisors." Likewise, in Lewis v. Harrison School Dist., 805 F.2d 310, 315 (8th Cir. 1986), the Eighth Circuit ruled that it was error for the trial court to disregard the jury's special interrogatory findings on certain balancing issues. In Shands v. City of Kennett, 993 F.2d 1337 (8th Cir. 1993), the court stated that:
Any underlying factual disputes concerning whether the plaintiff's speech is protected . . . should be submitted to the jury through special interrogatories or special verdict forms. For example, the jury should decide factual questions such as the nature and substance of the plaintiff's speech activity, and whether the speech created disharmony in the work place. The trial court should then combine the jury's factual findings with its legal conclusions in determining whether the plaintiff's speech is protected.
Id. at 1342-43 (citations omitted). Accordingly, this model instruction may be supplemented with a set of special interrogatories or it may require modification to elicit specific jury findings on critical balancing issues such as "disharmony." See infra Note on Use 2; Model Instruction 5.71A. Although the plaintiff appears to have the burden of proof as to whether the speech was "constitutionally protected," see Cox v. Miller County R-1 School Dist., 951 F.2d 927, 931 (8th Cir. 1991) and Stever v. Independent School Dist. No. 625, 943 F.2d 845, 849-50 (8th Cir. 1991), it is unclear whether the plaintiff bears the burden of proof as to each subsidiary factor.
When the trial court submits special interrogatories to the jury, it bears emphasis that the ultimate decision as to whether the plaintiff's speech was protected is a question of law for the court. E.g., Lewis v. Harrison School Dist., 805 F.2d 310, 312-13 (8th Cir. 1986) (trial court erred in following jury's finding that speech did not address matter of public concern); Bowman v. Pulaski County Special School Dist., 723 F.2d 640, 644-45 (8th Cir. 1983) (plaintiff's speech was protected even though it "contributed to the turmoil" at the workplace). It also bears emphasis that the defendant's reasonable perception of the critical events is controlling; the jury cannot be allowed to substitute its judgment as to what "really happened" for the honest and reasonable belief of the defendant. Waters v. Churchill, 511 U.S. 661 (1994.)
d. Balancing and Qualified Immunity
The need to address the balancing issue in jury instructions is most likely to arise in cases brought against municipalities, school districts, and other local governmental bodies which are not entitled to qualified immunity or Eleventh Amendment immunity. In contrast, recent Eighth Circuit case law suggests that individual defendants may have qualified immunity with respect to any jury-triable damages claims if the "balancing issue" becomes critical in a First Amendment case. See Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (holding that individual defendants are entitled to qualified immunity where there is specific and unrefuted evidence that the employee's speech affected morale and substantially disrupted the work environment); Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992) (suggesting that qualified immunity from damages will apply whenever a First Amendment retaliation case involves the "balancing test"). But cf. Duckworth v. Ford, 995 F.2d 858, 861 (8th Cir. 1993) (rejecting individual defendants' qualified immunity defense in First Amendment case); Buzek v. County of Saunders, 972 F.2d 992 (8th Cir. 1992) (rejecting qualified immunity in First Amendment case where defendant failed to introduce evidence sufficient to invoke the balance test); Powell v. Basham, 921 F.2d 165, 167.68 (8th Cir. 1990) (rejecting qualified immunity defense in First Amendment wrongful discharge cases); Lewis v. Harrison School Dist., 805 F.2d 310, 318 (8th Cir. 1986) (same). In Waters v. Churchill, 511 U.S. 661 (1994), the Supreme Court declined to address the issue of qualified immunity in First Amendment cases. In addition, state governmental bodies typically have Eleventh Amendment immunity from damages claims. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Accordingly, when balancing issues arise in a case brought by a state employee, the defendants may have immunity from a claim for damages and, as a result, there would be no need for a jury trial or jury instructions.
MOTIVATION AND CAUSATION
If a plaintiff can make the required threshold showing that he or she engaged in protected activity, the remaining issues focus on the questions of motivation and causation: was the plaintiff's employment terminated or otherwise impaired because of his or her protected activity? In Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977), the Supreme Court introduced the “motivating-factor”/“same-decision” burden shifting format in First Amendment retaliation cases. On the issue of causation, it also should be noted that the Eighth Circuit has allowed a claim against a defendant who recommended the plaintiff's dismissal but lacked final decision-making authority. Darnell v. Ford, 903 F.2d 556, 561.62 (8th Cir. 1990). The Eighth Circuit also has allowed a claim against a school board for unknowingly carrying out a school principal's retaliatory recommendation. Cox v. Dardanelle Pub. School Dist., 790 F.2d 668, 676 (8th Cir. 1986). More recently, in Waters v. Churchill, 511 U.S. 661 (1994), the Supreme Court ruled that a public employer does not violate the First Amendment if it honestly and reasonably believes reports by coworkers of unprotected conduct by the plaintiff; the Supreme Court did not address the situation where the public employer relied upon the tainted recommendation of a management-level employee.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
4. This instruction is designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the instruction must be modified. Where the plaintiff resigned but claims a "constructive discharge," this instruction should be modified. See infra Model Instruction 5.93.
5. To avoid difficult questions regarding causation, it is very important to specifically describe the speech which forms the basis for the claim. Vague references to "the plaintiff's speech" or "the plaintiff's statements to the school board" often will be inadequate; instead, specific reference to the time, place and substance of the speech (e.g., "plaintiff's comments criticizing teacher salaries at the April 1992 school board meeting") is recommended. Whenever there is a genuine issue as to whether the plaintiff's speech was "protected" by the First Amendment, the trial court should be extremely careful in making the record regarding this issue. If the trial court can readily determine that the plaintiff's speech was "protected" by the First Amendment without resort to jury findings, a succinct description of the protected speech should be inserted in the elements instruction. By way of example, the model instruction makes reference to plaintiff's "letter to the local newspaper." However, if there is an underlying factual dispute impacting whether the plaintiff's speech was protected, any questions of fact should be submitted to the jury through special interrogatories or other special instructional devices. See Shands v. City of Kennett, 993 F.2d 1337, 1342-43 (8th Cir. 1993).
As suggested by Shands v. City of Kennett, 993 F.2d 1337, 1342-43 (8th Cir. 1993), the trial court may separately submit special interrogatories to elicit jury findings as to the relevant balancing factors, while reserving judgment on the legal impact of those findings. For a sample set of interrogatories, see infra Model Instruction 5.71A. If the trial court takes this approach, it should postpone its entry of judgment while it fully evaluates the implications of the jury's findings of fact. See infra Model Instruction 5.75A. Alternatively, if the essential jury issue can be crystallized in the form of a single essential element which the plaintiff must prove, it may be included in the elements instruction. For example, in McGee v. South Pemiscot School Dist., 712 F.2d 339, 342 (8th Cir. 1983), the trial court instructed the jury that its verdict had to be for the defendants if it believed that the plaintiff's "exercise of free speech had a disruptive impact upon the [school district's] employees."
6. The Committee believes that the term "motivating factor" may be of such common usage that it need not be defined. If the jury has a question regarding this term, the following may be a suitable definition: "The term 'motivating factor' means a consideration that moved the defendant toward its decision." The phrase "a factor that played a part" also may be an appropriate substitute for the phrase "motivating factor." See Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101-02 (8th Cir. 1988). But cf. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977) (equating "motivating factor" with "substantial factor").
7. The bracketed term should be consistent with the first element. Accordingly, this instruction must be modified in a "failure-to-hire," "failure-to-promote," or "demotion" case.
8. Use this language if the issue of whether the defendant was acting under color of state law, a prerequisite to a claim under 42 U.S.C. § 1983. Typically, this element will be conceded by the defendant. If so, it need not be included in this instruction.
9. If appropriate, this instruction may be modified to include a "business judgment" and/or a "pretext" instruction. See infra Model Instructions 5.94, 5.95.
5.71A 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION -
SPECIAL INTERROGATORIES REGARDING
"PROTECTED SPEECH" BALANCING ISSUES
To assist the Court in determining whether plaintiff's [describe the speech upon which plaintiff's claim is based--e.g., "memo to Principal Jones dated January 24, 1989"]1 was protected by the First Amendment to the United States Constitution, you are directed to consider and answer the following questions:
1. Did plaintiff's [memo to Principal Jones dated January 24, 1989] cause, or could it have caused, disharmony or disruption in the workplace?2
2. Did plaintiff's [January 24, 1989, memo to Principal Jones] impair [his/her] ability to perform [his/her] duties?3
Please use the Supplemental Verdict Form to indicate your answers to these questions.4
Committee Comments
The Eighth Circuit has indicated that, whenever the Pickering balancing process must be invoked to determine whether the plaintiff's speech was protected by the First Amendment, "[a]ny underlying factual disputes . . . should be submitted to the jury through special interrogatories or special verdict forms." Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993). This instruction is designed to meet the mandate of Shands. See generally
Committee Comments
to Model Instruction 5.71, infra. If the plaintiff's speech clearly is "protected" without reference to the Pickering balancing analysis, this instruction should not be used.
Although the Shands decision described a number of factors to be utilized in the balancing process, only two seem likely to raise factual issues which warrant the submission of special interrogatories: whether the plaintiff's speech caused, or could have caused, disharmony or disruption in the workplace; and whether the speech impaired the plaintiff's ability to perform his or her job. The other relevant factors..which deal with the "need for harmony in the workplace," the "degree of public interest in the speech," the "context in which the dispute arose," and the "time, manner, and place of the speech".-typically will not present factual issues for the jury. Nevertheless, this instruction should be tailored to the particular situation at hand by adding, deleting, or modifying the relevant questions. If there is an issue concerning the time, place, or manner of the speech, it should be resolved by the jury. For example, if the plaintiff contends that he/she made the crucial remark at a public meeting while the defendant claims the remark was made in a private conversation, the issue should be submitted to the jury by means of a special interrogatory, such as:
Did the plaintiff make his/her statement [describe the statement - e.g., about corporal punishment of students] at the public school board meeting of May 1, 1992?
Similarly, if there is a material dispute over the precise content of the plaintiff's speech, it appears that the issue must be resolved by the jury. In resolving any such factual dispute, deference must be given to the honest and reasonable perception of the defendant. Waters v. Churchill, 511 U.S. 661 (1994). Thus, if the defendant takes the position that it terminated the plaintiff based on a third-party report that the plaintiff engaged in unprotected insubordination, the following sequence of interrogatories may be appropriate:
1. Did plaintiff say that his/her supervisor was incompetent?
Yes _____ No _____
Note: If your answer is "yes," you should not answer Question No. 2. If your answer is "no," continue on the Question No. 2.
2. Did defendant honestly and reasonably believe the report of [name plaintiff's coworker or other source of third-party report] that plaintiff had referred to his/her supervisor as incompetent?
Yes _____ No _____
In general, it appears that the plaintiff has the burden of showing that his or her speech was constitutionally protected. See Cox v. Miller County R-1 School Dist., 951 F.2d 927, 931 (8th Cir. 1991); Stever v. Independent School Dist. No. 625, 943 F.2d 845, 849-50 (8th Cir. 1991). However, it is unclear whether the plaintiff should bear the risk of nonpersuasion on every subsidiary factual issue. Accordingly, this instruction does not include any "burden of proof" language. It also should be noted that the ultimate balancing test rests within the province of the Court and that no particular factor is dispositive. See Shands, 993 F.2d at 1344, 1346.
Notes on Use
1. Describe the speech upon which the plaintiff bases his or her claim.
2. The first two factors mentioned in Shands relate to "the need for harmony in the office or work place" and "whether the government's responsibilities required a close working relationship to exist between the plaintiff and co-workers." Shands, 993 F.2d at 1344. The second factor mentioned in Shands addresses whether the plaintiff's speech caused or could have caused deterioration in plaintiff's working relationships. Shands, 993 F.2d at 1344. This question is designed to test this issue.
3. Yet another balancing factor mentioned in Shands is whether the speech at issue impaired the plaintiff's ability to perform his or her assigned duties. See Shands, 993 F.2d at 1344. This question is designed to test this issue. As discussed in the
Committee Comments
, this list of questions is not required in all cases, nor is it all-inclusive. If other issues exist concerning the context or content of the plaintiff's speech, additional questions should be included.
4. The jury's answers to the special interrogatories should be recorded on a Supplemental Verdict Form. See infra Model Instruction 5.75A.
5.72 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION - ACTUAL DAMAGES
If you find in favor of plaintiff under Instruction ____,1 then you must award plaintiff such sum as you find by the [(greater weight) or (preponderance)]2 of the evidence will fairly and justly compensate plaintiff for any actual damages you find plaintiff sustained as a direct result of defendant's conduct as submitted in Instruction _____.3 Actual damages include any wages or fringe benefits you find plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge], through the date of your verdict, minus the amount of earnings and benefits from other employment received by plaintiff during that time.4 Actual damages also may include [list damages supported by the evidence].5
[You are also instructed that plaintiff has a duty under the law to "mitigate" his damages--that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if you find by the [(greater weight) or (preponderance)] of the evidence that plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to him, you must reduce his damages by the amount he reasonably could have avoided if he had sought out or taken advantage of such an opportunity.]6 [Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award any damages by way of punishment or through sympathy.]7
Committee Comments
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 (8th Cir. 1982). Moreover, because section 1983 damages are not limited to back pay, the instruction also permits the recovery of general damages for pain, suffering, humiliation, and the like.
In some cases, a discrimination plaintiff may be eligible for front pay. Because front pay is essentially an equitable remedy “in lieu of” reinstatement, front pay is an issue for the court, not the jury. Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999). See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir. 1988); Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) (front pay is an issue for the court, not the jury, in ADEA cases). If the trial court submits the issue of front pay to the jury, the jury’s determination may be binding. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (ADEA case).
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 Industries, 910 F.2d 674, 680 (10th 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 or pension benefits ordinarily are not offset against a back pay award. See Doyne v. Union Electric Co., 953 F.2d 447, 451 (8th Cir. 1992) (holding that pension benefits are a "collateral source benefit"); Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 n.1 (3d Cir. 1986) (Social Security and pension benefits not deductible); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138-39 (3d Cir. 1986) (unemployment benefits not deductible); Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983) (same) but cf. Blum v Witco Chemical Corp., 829 F.2d 367, 374 (3d Cir. 1987) (pension benefits received as a result of subsequent employment considered in offsetting damages award); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (deductibility of unemployment compensation is within trial court's discretion); Horn v. Duke Homes, 755 F.2d 599, 607 n.12 (7th Cir. 1985) (same); EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir. 1976) (same).
This instruction is designed to encompass a situation where the defendant asserts some independent post-discharge reason--such as a plant closing or sweeping reduction in force--why the plaintiff would have been terminated in any event before trial. See, e.g., Cleverly v. Western Elec. Co., 450 F. Supp. 507 (W.D. Mo. 1978), aff'd, 594 F.2d 638 (8th Cir. 1979). Nevertheless, the trial court may give a separate instruction which submits this issue in more direct terms.
Notes on Use
1. Insert the number or title of the "essential element" instruction here.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3. When certain benefits, such as employer-subsidized health insurance benefits, 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, 470 (8th Cir. 1989) (discussing different approaches). Some courts deny recovery for lost benefits unless the employee purchases substitute coverage, in which case the measure of damages is the employee's out-of-pocket expenses. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161 (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. 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. This sentence should be used to guide the jury in calculating the plaintiff's economic damages. In section 1983 cases, however, a prevailing plaintiff may recover actual damages for emotional distress and other personal injuries. See Carey v. Piphus, 435 U.S. 247 (1978). The words following "minus" are accurate only to the extent that they refer to employment that has been taken in lieu of the employment with the defendant. That is significant where, for example, the plaintiff had a part-time job with someone other than the defendant before the discharge and retained it after the discharge. In that circumstance, the amount of earnings and benefits from that part-time employment received after the discharge should not be deducted from the wages or fringe benefits the plaintiff would have earned with the defendant if he or she had not have been discharged, unless the part-time job was enlarged after the discharge. In such a case, the instruction should be modified to make it clear to the jury which income may be used to reduce plaintiff's recovery.
5. In section 1983 cases, a prevailing plaintiff may recover damages for mental anguish and other personal injuries. The specific elements of damages that may be set forth in this instruction are similar to those found in the Civil Rights Act of 1991. See 42 U.S.C. § 1981a(b)(3). See infra Model Instructions 5.02 n.8, and 4.51.
6. 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).
7. This paragraph may be given at the trial court's discretion.
5.73 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION - NOMINAL DAMAGES
If you find in favor of plaintiff under Instruction ____,1 but you find that plaintiff's damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).2
Committee Comments
Most employment discrimination cases involve lost wages and benefits. Nevertheless, a nominal damage instruction should be given in appropriate cases, such as where a plaintiff claiming a discriminatory harassment did not sustain any loss of earnings. Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 542-43, 548 (8th Cir. 1984).
An award of nominal damages can support a punitive damage award. See Goodwin v. Circuit Court of St. Louis County, 729 F.2d at 548.
If nominal damages are submitted, the verdict form must contain a line where the jury can make that finding.
Notes on Use
1. Insert the number or title of the "essential elements" instruction here.
2. 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. Cf. Cowans v. Wyrick, 862 F.2d 697 (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 plaintiff); Haley v. Wyrick, 740 F.2d 12 (8th Cir. 1984).
5.74 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION - PUNITIVE DAMAGES
In addition to actual damages, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant1 for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find in favor of plaintiff and against defendant (name), [and if you find by the [(greater weight) or (preponderance)]2 of the evidence that plaintiff's firing was motivated by evil motive or intent, or that defendant was callously indifferent to plaintiff's rights],3 then in addition to any damages to which you find plaintiff entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter defendant and others from like conduct in the future. Whether to award plaintiff punitive damages, and the amount of those damages are within your discretion.
[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 such defendants may be the same or they may be different.]4
Committee Comments
Punitive damages are recoverable under 42 U.S.C. § 1983. Smith v. Wade, 461 U.S. 30 (1983).
Notes on Use
1. Public entities, such as cities, cannot be sued for punitive damages under section 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). Consequently, the target of a punitive damage claim must be an individual defendant, sued in his/her individual capacity.
2. Select the bracketed language that corresponds to the burden-of-proof instruction given.
3. See infra Model Instruction 5.24 n.2.
4. The bracketed language is available for use if punitive damage claims are submitted against more than one defendant.
5.75 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION - VERDICT FORM
VERDICT
Note: Complete this form by writing in the names required by your verdict.
On the [First Amendment retaliation]1 claim of plaintiff [John Doe], as submitted in Instruction _____,2 we find in favor of
______________________________________________________________________________
(Plaintiff John Doe) or (Defendant Sam Smith)
Note: Complete the following paragraphs only if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberation on this claim.
We find plaintiff's (name) damages as defined in Instruction _____3 to be:
$_____________ (stating the amount or, if none, write the word "none")4 (stating the amount, or if you find that plaintiff's damages have no monetary value, set forth a nominal amount such as $1.00).5
We assess punitive damages against defendant (name), as submitted in Instruction ______,6 as follows:
$____________ (stating the amount or, if none, write the word "none").
__________________________________________
Foreperson
Date:
Committee Comments
See infra Model Instruction No. 5.35.
Notes on Use
1. The bracketed language should be included when the plaintiff submits multiple claims to the jury.
2. The number or title of the "essential element" instruction should be inserted here.
3. The number or title of the "actual damages" instruction should be inserted here.
4. Use this phrase if the jury has not been instructed on nominal damages.
5. Use this phrase if the jury is instructed on nominal damages.
6. The number or title of the "punitive damages" instruction should be inserted here.
5.75A 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION -
SPECIAL INTERROGATORIES ON "BALANCING" ISSUES
SUPPLEMENTAL VERDICT FORM
As directed in Instruction No. _____,1 we find as follows:
Question No. 1: Did plaintiff's [memo to Principal Jones]2 cause, or could it have caused, disharmony or disruption in the workplace?
____ Yes ____ No
(Mark an "X" in the appropriate space)
Question No. 2: Did plaintiff's [memo to Principal Jones] impair [his/her] ability to perform [his/her] duties?
____ Yes ____ No
(Mark an "X" in the appropriate space)
Foreperson
Date:
Committee Comments
See
Committee Comments
to Instruction No. 5.71A. These special interrogatories are available for use when there are factual disputes underlying the determination of whether or not the plaintiff's speech was protected by the First Amendment. This supplemental verdict form should never be used alone; it always should accompany Model Instructions 5.71, 5.71A and 5.75, infra.
The questions listed in this model instruction are for illustration only; in every case, the list of relevant questions must be tailored to the particular situation. It also bears emphasis that the ultimate question of whether the plaintiff's speech was protected is for the Court and that no single factor is dispositive. Accordingly, when this supplemental verdict form is used, the trial court should receive all of the jury's findings and it should postpone its entry of judgment while it fully evaluates the implications of those findings.
Notes on Use
1. The number or title of the special interrogatory instruction should be inserted here. See infra Model Instruction 5.71A.
2. Describe the speech upon which the plaintiff bases his or her claim. This description should be identical to the phrase used in the special interrogatory instruction. See infra Model Instruction 5.71A.
5.80 CASES UNDER THE FAMILY AND MEDICAL LEAVE ACT (FMLA)
Introduction
These instructions are for use with cases brought under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 - 2654. The purposes of the FMLA are to balance the demands on the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. 29 U.S.C. § 2601(b). The Act entitles eligible employees to take up to 12 workweeks of unpaid leave because of a serious health condition that makes the employee unable to perform the functions of his or her position; because of the birth of a son or daughter and to care for the newborn child; for placement with the employee of a son or daughter for adoption or foster care; or to care for the employee’s spouse, son, daughter, or parent who has a serious health condition. 29 U.S.C. § 2612, 29 C.F.R. § 825.112.
Employers Covered by the FMLA
A covered employer under the Act is one engaged in commerce or in an industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(4)(A), Beal v. Rubbermaid Commercial Products, Inc., 972 F. Supp. 1216, 1222 n.13 (S.D. Iowa 1997).
Employees Eligible for Leave
Not all employees are entitled to leave under FMLA. Before an employee can take leave to care for himself or herself, or a family member, the following eligibility requirements must be met: he or she must have been employed by the employer for at least 12 months and must have worked at least 1,250 hours during the previous 12-month period. 29 U.S.C. § 2611(2)(A). A husband and wife who are both eligible for FMLA leave and are employed by the same covered employer may be limited by the employer to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for 1) the birth of the employee’s son or daughter or to care for that newborn; 2) for placement of a son or daughter for adoption or foster care, or to care for the child after placement; or 3) or to care for the employee’s parent. 29 C.F.R. § 202(a).
Family Members Contemplated by the FMLA
Employees are also eligible for leave when certain family members – his or her spouse, son, daughter, or parent – have serious health conditions. Spouse means a husband or wife as defined or recognized under state law where the employee resides, including common law spouses in states where common law marriages are recognized. 29 U.S.C. 2611(13); 29 C.F.R. § 825.113.
Under the FMLA, a son or daughter means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or who is age 18 or older but is incapable of self-care because of a mental or physical disability. 29 U.S.C. § 2611(12); 29 C.F.R. § 825.113(c). Persons with “in loco parentis” status under the FMLA include those who had day-to-day responsibility to care for and financially support the employee when the employee was a child. 29 C.F.R. § 113(c)(3).
“Incapable of self-care” means that the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living. 29 C.F.R. § 825.113(c)(1).
“Activities of daily living” include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Id. “Instrumental activities of daily living” include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. Id. “Physical or mental disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. 29 C.F.R. § 825.113(c)(2). These terms are defined in the same manner as they are under the Americans with Disabilities Act. Id.
Parent means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter. 29 U.S.C. § 2611(7). The term “parent” does not include grandparents or parents-in-law unless a grandparent or parent-in-law meets the in loco parentis definition. Krohn v. Forsting, 11 F. Supp.2d 1082, 1091 (E.D. Mo. 1998); 29 C.F.R. § 825.113(b).
Leave for Birth, Adoption or Foster Care
The FMLA permits an employee to take leave for the birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement. 29 U.S.C. § 2612(a); 29 C.F.R. § 825.100.
The right to take leave under the FMLA applies equally to male and female employees. A father as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child. 29 C.F.R. § 825.112(b). Circumstances may require that the FMLA leave begin before the actual date of the birth of a child or the actual placement for adoption of a child. For example, an expectant mother may need to be absent from work for prenatal care, or her condition may make her unable to work. In addition, if an absence from work is required for the placement for adoption or foster care to proceed, the employee is entitled to FMLA leave. 29 C.F.R. § 825.112(c)-(d).
An employee’s entitlement to leave for a birth or placement for adoption or foster care expires at the end of the 12-month period beginning on the date of the birth or placement unless state law allows, or the employer permits, leave to be taken for a longer period. 29 C.F.R. § 825.201. Any such FMLA leave must be concluded during this one-year period. Id. An employee is not required to designate whether the leave the employee is taking is FMLA leave or leave under state law. 29 C.F.R. § 825.701. If an employee’s leave qualifies for FMLA and state-law leave, the leave used counts against the employee’s entitlement under both laws. Id.
What Constitutes a “Serious Health Condition?”
One of the more frequently litigated aspects of the FMLA is the issue of what type of condition constitutes a “serious health condition” under the Act. The concept of “serious health condition” was meant to be construed broadly, so that the FMLA’s provisions are interpreted to effect the Act’s remedial purpose. Stekloff v. St. John’s Mercy Health Systems, 218 F.3d 858, 862 (8th Cir. 2000). The phrase is defined in the regulations as an illness, injury, impairment or physical or mental condition that involves inpatient care, a period of incapacity combined with treatment by a health care provider, pregnancy or prenatal care, chronic conditions, long-term incapacitating conditions, and conditions requiring multiple treatments. 29 C.F.R. § 825.114(a).
Specifically, inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity (inability to work, attend school or perform other regular daily activities), or any subsequent treatment in connection with the inpatient care. 29 C.F.R. § 825.114(a)(1).
Incapacity plus treatment means a period of incapacity (inability to work, attend school or perform other regular daily activities) of more than three consecutive days, including any subsequent treatment or period of incapacity relating to the same condition, that also involves: 1) treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health services (for example, a physical therapist) under orders of, or on referral by, a health care provider; or 2) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. 29 C.F.R. § 825.114(a)(2)(i). In some circumstances, the regulatory definition of incapacity offers limited guidance. See, e.g., Caldwell v. Holland of Texas, 208 F.3d 671, 675 (8th Cir. 2000) (in situation where three-year-old child did not work or attend school, the FMLA regulations offered insufficient guidance for determining whether child was incapacitated and fact finder must determinate whether the child’s illness demonstrably affected his normal activity).
Pregnancy or prenatal care includes any period of incapacity due to the pregnancy or prenatal care, such as time off from work for doctors’ visits. 29 C.F.R. § 825.114(a)(2)(ii).
A chronic health condition means a condition which requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider, which continues over an extended period of time (including recurring episodes of a single underlying condition), and may cause episodes of incapacity (inability to work, attend school or perform other regular daily activities) rather than continuing incapacity. 29 C.F.R. § 825.114(a)(2)(iii).
Long-term incapacitating conditions are those for which treatment may not be effective, but require continuing supervision of a health care provider, even though the patient may not be receiving active treatment. 29 C.F.R. § 825.114(a)(2)(iv).
Conditions requiring multiple treatments includes any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity (inability to work, attend school or perform other regular daily activities) of more than three consecutive calendar days in the absence of medical intervention or treatment. 29 C.F.R. § 825.114(a)(2)(v).
The FMLA regulations provide some guidance concerning what is and is not a serious health condition. For example, the following generally do not fall within the definition of a serious health condition: routine physical, eye or dental examinations; treatments for acne or plastic surgery; common ailments such as a cold or the flu, ear aches, upset stomach, minor ulcers, headaches (other than migraines); and treatment for routine dental or orthodontic problems or periodontal disease. 29 C.F.R. § 114(b),(c). While the above conditions are not generally considered “serious,” the Eighth Circuit has held that some conditions, such as upset stomach or a minor ulcer, could still be “serious health conditions” if they meet the regulatory criteria, for example, an incapacity of more than three consecutive calendar days that also involved qualifying treatment. Thorson v. Gemini, Inc., 205 F.3d 370, 379 (8th Cir. 2000).
In addition, the regulations provide guidance regarding what conditions commonly are considered serious health conditions. For example, chronic conditions could include asthma, diabetes or epilepsy; long-term incapacitating conditions could include Alzheimer’s, a severe stroke or the terminal stages of a disease; and conditions requiring multiple treatments could include cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis). 29 C.F.R. § 825.114(a).
The regulations also provide that the phrase “continuing treatment” as used in the definition of serious health condition, includes a course of prescription medication and therapy, but not over-the-counter medications, bed-rest or exercise. 29 C.F.R. § 825.114(b).
Courts in the Eighth Circuit have provided additional guidance regarding what constitutes a serious health condition. In Beal v. Rubbermaid Commercial Products, Inc., 972 F. Supp. 1216 (S.D. Iowa 1997), aff’d 1998 U.S. App. LEXIS 9295 (8th Cir. 1998) the court analyzed several conditions against the regulatory definition. The court found that a minor back ailment, eczema, and non-incapacitating bronchitis were not serious health conditions under the FMLA. Id. at 1223-25. The court also held that an employee was not entitled to FMLA leave subsequent to her son’s death noting “[l]eave is not meant to be used for bereavement because a deceased person has no basic medical, nutritional, or psychological needs which need to be cared for.” Id. at 1216.
In addition, the Eighth Circuit has held that exams and evaluations given to an employee’s child to determine whether the child had been sexually molested did not amount to treatment for a serious health condition covered by the FMLA. Martyszenko v. Safeway, Inc., 120 F.3d 120, 123-24 (8th Cir. 1997). The alleged molestation did not create a mental condition that hindered the child’s ability to participate in any activity at all and did not restrict any of the child’s daily activities. Id.
5.81A FMLA – Wrongful Termination – Essential Elements
(employee with a serious health condition)
Your verdict must be for the plaintiff [and against defendant]1 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]2 of the evidence:
[First, plaintiff was eligible for leave3;]
First, plaintiff had [specify condition];
Second, [specify condition] was a serious health condition (as defined in Instruction ______)4;
Third, plaintiff was [absent from work]5 because of that serious health condition;
Fourth, plaintiff gave defendant appropriate notice (as defined in Instruction _____)6 of [his/her] need to be [absent from work] 5;
Fifth, defendant [describe employment action taken, e.g., discharged]7 plaintiff;
Sixth, plaintiff’s [absence from work]5 was a motivating factor in defendant’s decision to [describe employment action taken, e.g., discharge]7 plaintiff.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]2 of the evidence, [or if defendant is entitled to a verdict under (Instruction _______)]8.
Committee Comments
The FMLA prohibits an employer from terminating an employee because the employee exercised rights or attempted to exercise rights under the FMLA. An employee who contends he or she was terminated because of FMLA leave, or a request to take FMLA leave, must show that the employer’s action was motivated by discrimination because of the leave or request for leave. Marks v. The School District of Kansas City, Missouri, 941 F. Supp. 886, 892 (W.D. Mo. 1996) (quoting Day v. Excel Corp., 1996 U.S. Dist. LEXIS 8269, 1996 WL 294341 (D. Kan. 1996)).
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
3. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
4. Insert the number of the Instruction defining “serious health condition.”
5. It is anticipated that these instructions will be more commonly applied to cases in which the plaintiff actually took leave. However, the FMLA also protects an eligible employee who’s leave request was denied by the employer. In such a situation, insert language that corresponds to the facts of the case.
6. Insert the number of the Instruction defining “appropriate notice.”
7. In addition to protecting employees from retaliatory termination, the FMLA prohibits employers from interfering with or retaliating against employees who attempt to exercise rights under the FMLA. For example, the FMLA also protects employees who requested but were denied leave from retaliatory termination. Insert the language that corresponds to the facts of the case.
8. This language should be used when the defendant is submitting an affirmative defense.
5.81B FMLA – Wrongful Termination – Essential Elements
(employee needed to care for spouse, parent, son
or daughter with a serious health condition1)
Your verdict must be for the plaintiff [and against defendant _________]2 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]3 of the evidence:
[First, plaintiff was eligible for leave4;]
First, plaintiff’s [identify family member] had [specify condition];
Second, [specify condition] was a serious health condition (as defined in Instruction ______)5;
Third, plaintiff was needed to care for (as defined in Instruction ______)6 [identify family member];
Fourth, plaintiff was [absent from work]7 to care for [identify family member];
Fifth, plaintiff gave defendant appropriate notice (as defined in Instruction _____)8 of [his/her] need to be [absent from work]7;
Sixth, defendant [describe employment action taken, e.g., discharged]9 plaintiff;
Seventh, plaintiff’s [absence from work]7 was a motivating factor in defendant’s decision to [describe employment action taken, e.g., discharge]9 plaintiff.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]2 of the evidence, [or if defendant is entitled to a verdict under (Instruction _____)]10.
Committee Comments
The FMLA entitles an eligible employee to take up to 12 workweeks of leave if the employee is needed to care for the employee’s spouse, son, daughter or parent with a serious health condition. The FMLA prohibits an employer from terminating an employee because the employee exercised rights or attempted to exercise rights under the FMLA. An employee who contends he or she was terminated because of FMLA leave, or a request to take FMLA leave, must show that the employer’s action was motivated by discrimination because of the leave or request for leave. Marks v. The School District of Kansas City, Missouri, 941 F. Supp. 886, 892 (W.D. Mo. 1996) (quoting Day v. Excel Corp., 1996 U.S. Dist. LEXIS 8269, 1996 WL 294341 (D. Kan. 1996)).
Notes on Use
1. This Instruction is for use in cases in which the employee’s family member had a serious health condition. Instruction 5.81C should be used for cases in which the employee needed leave because of a birth, adoption or foster care.
2. Use this phrase if there are multiple defendants.
3. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
4. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
5. Insert the number of the Instruction defining “serious health condition.”
6. Insert the number of the Instruction defining “needed to care for.”
7. It is anticipated that these instructions will be more commonly applied to cases in which the plaintiff actually took leave. However, the FMLA also protects an eligible employee who’s leave request was denied by the employer. In such a situation, insert language that corresponds to the facts of the case.
8. Insert the number of the Instruction defining “appropriate notice.”
9. In addition to protecting employees from retaliatory termination, the FMLA prohibits employers from interfering with or retaliating against employees who attempt to exercise rights under the FMLA. For example, the FMLA also protects employees who requested but were denied leave from retaliatory termination. Insert the language that corresponds to the facts of the case.
10. This language should be used when the defendant is submitting an affirmative defense.
5.81C FMLA – Wrongful Termination – Essential Elements
(employee leave for birth, adoption or foster care1)
Your verdict must be for the plaintiff [and against defendant _________]2 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]3 of the evidence:
[First, plaintiff was eligible for leave4;]
First, plaintiff was [absent from work]5 because of [the birth of a son or daughter, or for placement with the plaintiff of a son or daughter for adoption or foster care]6;
Second, plaintiff gave defendant appropriate notice (as defined in Instruction _____)7 of [his/her] need to be [absent from work]5;
Third, defendant [describe employment action taken, e.g., discharged]8 plaintiff;
Fourth, plaintiff’s [absence from work]5 was a motivating factor in defendant’s decision to [describe employment action taken, e.g., discharge]8 plaintiff.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]2 of the evidence, [or if defendant is entitled to a verdict under (Instruction ____)]9.
Committee Comments
The FMLA entitles an eligible employee to take up to 12 workweeks of leave for the birth of a son or daughter, or for placement with the employee of a son or daughter for adoption or foster care. 29 U.S.C. § 2612(a)(1)(A), (B). The FMLA prohibits an employer from terminating an employee because the employee exercised rights or attempted to exercise rights under the FMLA. An employee who contends that he or she was terminated because of FMLA leave, or a request to take FMLA leave, must show that the employer’s action was motivated by discrimination because of the leave or request for leave. Marks v. The School District of Kansas City, Missouri, 941 F. Supp. 886, 892 (W.D. Mo. 1996) (quoting Day v. Excel Corp., 1996 U.S. Dist. LEXIS 8269, 1996 WL 294341 (D. Kan. 1996)).
Notes on Use
1. This Instruction is for use in cases in which the employee needed leave because of a birth, adoption or foster care. Instruction 5.81B should be used for cases in which the employee’s family member had a serious health condition. This Instruction differs from 5.81B in that it does not include an element requiring the plaintiff to show that he or she was “needed to care for” the newborn, adopted child or foster child. One of the purposes of the FMLA is to provide time for early parent-child bonding. 1993 U.S. Code Cong. and Admin. News 3, 11; 139 Cong. Rec. H 319, 384, 387, 396; Kelly Co. v. Marquardt, 493 N.W.2d 68, 75 (Wis. 1992).
2. Use this phrase if there are multiple defendants.
3. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
4. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
5. It is anticipated that these instructions will be more commonly applied to cases in which the plaintiff actually took leave. However, the FMLA also protects an eligible employee who’s leave request was denied by the employer. In such a situation, insert language that corresponds to the facts of the case.
6. Insert the language that corresponds to the facts of the case.
7. Insert the number of the Instruction defining “appropriate notice.”
8. In addition to protecting employees from retaliatory termination, the FMLA prohibits employers from interfering with or retaliating against employees who attempt to exercise rights under the FMLA. For example, the FMLA also protects employees who requested but were denied leave from retaliatory termination. Insert the language that corresponds to the facts of the case.
9. This language should be used when the defendant is submitting an affirmative defense.
5.81D FMLA – Failure to Reinstate – Essential Elements
(employee with a serious health condition)
Your verdict must be for the plaintiff [and against defendant ____________ ]1 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]2 of the evidence:
[First, plaintiff was eligible for leave3;]
First, plaintiff had [specify condition];
Second, [specify condition] was a serious health condition (as defined in Instruction ______)4;
Third, plaintiff was absent from work because of that serious health condition;
Fourth, plaintiff received treatment and was able to return to work and perform the functions of [his/her] job prior to the expiration of the leave period; and
Fifth, defendant refused to reinstate plaintiff to the same or an equivalent position (as defined in Instruction ______)5 held by plaintiff when the absence began.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]2 of the evidence, [or if defendant is entitled to a verdict under (Instruction ____)]6.
Committee Comments
The FMLA entitles an employee on leave to be reinstated to the same or an equivalent position upon return from leave. 29 U.S.C. § 2614; 29 C.F.R. § 825.214; McGraw v. Sears, Roebuck & Co., 1998 U.S. Dist. LEXIS 14979 (E.D. Minn. 1998).
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA period. 29 C.F.R. § 825.216(a). For example, if the employer can prove that during the FMLA leave the employee would have been laid off and not entitled to job restoration regardless of that leave, the employee cannot prevail. Id. See Instruction 5.84A.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. The bracketed language should be inserted which corresponds to the burden-of- proof instruction given.
3. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
4. Insert the number of the Instruction defining “serious health condition.”
5. Insert the number of the Instruction defining “equivalent position.”
6. This language should be used when the defendant is submitting an affirmative defense.
5.81E FMLA – Failure to Reinstate -- Essential Elements
(employee needed to care for a spouse, son or daughter with a serious health condition1)
Your verdict must be for the plaintiff [and against defendant)2 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]3 of the evidence:
[First, plaintiff was eligible for leave4;]
First, plaintiff’s [identify family member] had [specify condition];
Second, [specify condition] was a serious health condition (as defined in Instruction ______)5;
Third, plaintiff was needed to care for (as defined in Instruction _____)6 [his/her] [identify family member] because of that serious health condition;
Fourth, plaintiff was absent from work because [he/she] was caring for [his/her] [identify family member] with the serious health condition;
Fifth, plaintiff was able to return to [his/her] job prior to the expiration of the leave period; and
Sixth, defendant refused to reinstate plaintiff to the same or an equivalent position (as defined by Instruction _____)7 held by plaintiff when the absence began.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]3 of the evidence, [or if defendant is entitled to a verdict under (Instruction _____)]8.
Committee Comments
The FMLA entitles an eligible employee to take up to 12 workweeks of leave if the employee is needed to care for the employee’s spouse, son, daughter or parent with a serious health condition. The FMLA also entitles an employee on leave to be reinstated to the same or an equivalent position upon return from leave. 29 U.S.C. § 2614; 29 C.F.R. § 825.214; McGraw v. Sears, Roebuck & Co., 1998 U.S. Dist. LEXIS 14979 (E.D. Minn. 1998).
The court may wish to define the phrase “equivalent position.” According to the FMLA regulations, an “equivalent position” means a position that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. 29 C.F.R. § 825.215(a). It must involve the same or substantially similar duties or responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. Id.
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA period. 29 C.F.R. § 825.216(a). For example, if the employer can prove that during the FMLA leave the employee would have been laid off and not entitled to job restoration regardless of that leave, the employee cannot prevail. Id. See Instruction 5.84A.
Notes on Use
1. This Instruction is for use in cases in which the employee’s family member had a serious health condition. Instruction 5.81F should be used for cases in which the employee needed leave because of a birth, adoption or foster care.
2. Use this phrase if there are multiple defendants.
3. The bracketed language should be inserted which corresponds to the burden-of- proof instruction given.
4. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
5. Insert the number of the Instruction defining “serious health condition.”
6. Insert the number of the Instruction defining “needed to care for.”
7. Insert the number of the Instruction defining “equivalent position.”
8. This language should be used when the defendant is submitting an affirmative defense.
5.81F FMLA – Failure to Reinstate -- Essential Elements
(employee leave for birth, adoption or foster care1)
Your verdict must be for the plaintiff [and against defendant)2 if all of the following elements have been proved by [(the greater weight) or (a preponderance)]3 of the evidence:
[First, plaintiff was eligible for leave4;]
First, plaintiff was absent from work because of [the birth of a son or daughter, or for placement with the plaintiff of a son or daughter for adoption or foster care]5;
Second, plaintiff was able to return to [his/her] job prior to the expiration of the leave period; and
Third, defendant refused to reinstate plaintiff to the same or an equivalent position (as defined by Instruction _____)6 held by plaintiff when the absence began.
However, your verdict must be for the defendant if any of the above elements has not been proved by [(the greater weight) or (a preponderance)]3 of the evidence, [or if defendant is entitled to a verdict under (Instruction _____)]7.
Committee Comments
The FMLA entitles an eligible employee to take up to 12 workweeks of leave for the birth of a son or daughter, or for placement with the employee of a son or daughter for adoption or foster care. The FMLA also entitles an employee on leave to be reinstated to the same or an equivalent position upon return from leave. 29 U.S.C. § 2614; 29 C.F.R. § 825.214; McGraw v. Sears, Roebuck & Co., 1998 U.S. Dist. LEXIS 14979 (E.D. Minn. 1998).
The court may wish to define the phrase “equivalent position.” According to the FMLA regulations, an “equivalent position” means a position that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. 29 C.F.R. § 825.215(a). It must involve the same or substantially similar duties or responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. Id.
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA period. 29 C.F.R. § 825.216(a). For example, if the employer can prove that during the FMLA leave the employee would have been laid off and not entitled to job restoration regardless of that leave, the employee cannot prevail. Id. See Instruction 5.84A.
Notes on Use
1. This Instruction is for use in cases in which the employee needed leave because of a birth, adoption or foster care. Instruction 5.81E should be used for cases in which the employee’s family member had a serious health condition. This Instruction differs from 5.81E in that it does not include an element requiring the plaintiff to show that he or she was “needed to care for” the newborn, adopted child or foster child. One of the purposes of the FMLA is to provide time for early parent-child bonding. 1993 U.S. Code Cong. and Admin. News 3, 11; 139 Cong. Rec. H 319, 384, 387, 396; Kelly Co. v. Marquardt, 493 N.W.2d 68, 75 (Wis. 1992).
2. Use this phrase if there are multiple defendants.
3. The bracketed language should be inserted which corresponds to the burden-of- proof instruction given.
4. Before an employee can exercise rights under the FMLA, he or she must be “eligible” for leave. See infra “Employees Eligible for Leave” section in 5.80. This element is bracketed here because it is anticipated that this element will be needed infrequently as eligibility issues will likely be decided as a matter of law. In the case where eligibility is a fact issue, this element should be incorporated and the remaining elements renumbered accordingly.
5. Insert the language that corresponds to the facts of the case
6. Insert the number of the Instruction defining “equivalent position.”
7. This language should be used when the defendant is submitting an affirmative defense.
5.82 FMLA – “Same Decision” Instruction
If you find in favor of plaintiff under Instruction ____,1 then you must answer the following question in the verdict form[s]: Has it been proved by [(the greater weight) or (a preponderance)]2 of the evidence that defendant would have [describe employment action taken, e.g., discharge]3 plaintiff even if defendant had not considered plaintiff’s [absence from work]4.
Committee Comments
While the case law construing “same decision” analysis under the FMLA is sparse, it is likely that courts will determine that a defendant will avoid liability under the FMLA if it convinces a jury that the plaintiff would have suffered the same adverse employment action even if he or she had not taken or requested FMLA leave. See Peters v. Community Action Comm., 977 F. Supp. 1428, 1434 (M.D. Ala. 1997) (defendant can avoid liability in an FMLA case only by proving that it would have made the same decision even if it had not allowed such discrimination). Courts have repeated looked to cases construing the Fair Labor Standards Act (FLSA) for guidance in construing the FMLA. See e.g. Morris v. VCW, Inc. 1996 U.S. Dist. LEXIS 19201 (W.D. Mo. 1996). In retaliation cases under the FLSA, courts have determined that a plaintiff cannot prevail if the defendant can show that he or she would have been terminated regardless of the FLSA activity. See e.g. McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996); Reich v. Davis, 50 F.3d 962 (11th Cir. 1995).
This result is different than cases under the Americans With Disabilities Act (ADA), which adopted Title VII remedies. See Doane v. City of Omaha, 115 F.3d 624, 629 (8th Cir. 1997); Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995).
Notes on Use
1. Insert the number or title of the essential elements Instruction here.
2. Select the bracketed language that corresponds to the burden-of-proof Instruction given.
3. Select the language that corresponds to the facts of the case.
4. It is anticipated that these instructions will be more commonly applied to cases in which the plaintiff actually took leave. However, the FMLA also protects an eligible employee who’s leave request was denied by the employer. In such a situation, insert language that corresponds to the facts of the case.
5.83A FMLA – Definition: “Needed to Care For”
An employee is “needed to care for” a spouse, son, daughter or parent with a serious health condition (as defined in Instruction _______ )1 when the family member is unable to care for his or her own basic medical, hygienic or nutritional needs or safety; or is unable to transport himself or herself to the doctor. [The phrase also includes providing psychological comfort and reassurance which would be beneficial to a family member with a serious health condition (as defined in Instruction _______ )1 who is receiving inpatient or home care. The phrase also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.2]
Committee Comments
This definition is taken from the FMLA regulations. 29 C.F.R. § 825.116(a)-(b).
Notes on Use
1. Insert the number of the Instruction defining “serious health condition.”
2. The definition of “needed to care for” is more expansive than it first appears for it includes situations in which the employee’s presence or assistance would provide psychological comfort or assurance to a family member, and instances in which the employee may need to make arrangements for care. In cases in which any of these situations are applicable, this Instruction should be modified to include the additional definition(s).
5.83B FMLA – Definition: “Serious Health Condition”
A “serious health condition” means an illness, injury, impairment or physical or mental condition that involves either 1) inpatient care in a hospital, hospice, or residential medical care facility, or 2) continuing treatment by a health care provider (as defined in Instruction _____)1.
Committee Comments
This relatively brief definition is the statutory definition. 29 U.S.C. § 2611(11). A more detailed definition is supplied by the FMLA regulations and included as an alternate definition in these model instructions. 29 C.F.R. § 825.114. See infra Model Instruction 5.83C.
Notes on Use
1. Insert the number of the Instruction defining “health care provider.”
5.83C FMLA — Definition: “Serious Health Condition” (alternate)
The phrase a “serious health condition” as used in these instructions means an illness, injury, impairment, or physical or mental condition that involves:
[Inpatient care (for example, an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (inability to work, attend school or perform other regular daily activities), or any subsequent treatment in connection with the inpatient care)];
OR
[Incapacity plus treatment, which means a period of incapacity (inability to work, attend school or perform other regular daily activities) of more than three consecutive days, including any subsequent treatment or period of incapacity relating to the same condition, that also involves:
1) Treatment two or more times by a health care provider (as defined in Instruction _____)1, by a nurse or physician’s assistant under direct supervision of a health care provider (as defined in Instruction _____)1, or by a provider of health services (for example, a physical therapist) under orders of, or on referral by, a health care provider (as defined in Instruction _____)1; or
2) Treatment by a health care provider (as defined in Instruction _____)1on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider (as defined in Instruction _____)1];
OR
[Any period of incapacity (inability to work, attend school or perform other regular daily activities) due to pregnancy or for prenatal care];
OR
[A chronic health condition, which means a condition which requires periodic visits for treatment by a health care provider (as defined in Instruction _____)1, or by a nurse or physician’s assistant under direct supervision of a health care provider (as defined in Instruction _____)1, which continues over an extended period of time (including recurring episodes of a single underlying condition), and may cause episodes of incapacity (inability to work, attend school or perform other regular daily activities) rather than continuing incapacity];
OR
[A period of incapacity (inability to work, attend school or perform other regular daily activities) which is permanent or long-term due to a condition for which treatment may not be effective, but requires continuing supervision of a health care provider (as defined in Instruction _____)1, even though the patient may not be receiving active treatment];
OR
[Any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider (as defined in Instruction _____)1, or by a provider of health care services under orders of, or on referral by, a health care provider (as defined in Instruction _____)1, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity (inability to work, attend school or perform other regular daily activities) of more than three consecutive calendar days in the absence of medical intervention or treatment.]1
Committee Comments
This instruction is based on the definition of “serious health condition” as set forth in the FMLA regulations at 29 C.F.R. § 825.114. See comments regarding Instruction 5.80 for further discussion of the definition of a serious health condition.
Notes to Use
1. Select the language that corresponds to the facts of the case. Within each optional definition, the language also may need to be adjusted on a case-by-case basis due to varying facts. For example, the court may wish to delete the language “or by a nurse or physician’s assistant under direct supervision of a health care provider” if the facts of the case do not indicate that treatment was provided by someone other than the health care provider.
5.83D FMLA — Definition: “Health Care Provider”
As used in these instructions the phrase “health care provider” includes [doctor of medicine, doctor of osteopathy, podiatrist, dentist, clinical psychologist, optometrist, nurse practitioner, nurse-midwife, or clinical social worker]1, so long as the provider is authorized to practice in the State and is performing within the scope of his or her practice.
Committee Comments
The FMLA defines “health care provider” as:
(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
(B) any other person determined by the Secretary [of Labor] to be capable of providing health care services.
29 C.F.R. § 825.118.
The regulations promulgated by the Department of Labor defined additional persons “capable of providing health care services” to include the workers described in the model Instruction as well as 1) chiropractors, if treatment is limited to “manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist;” 2) Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; 3) any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and 4) a health care provider who falls within one of the specifically mentioned categories who practices in a country other than the United States, so long as he or she is authorized to practice in accordance with the law of that country and is performing with the scope of his or her practice. The regulations state that “authorized to practice in the State” means that the health care provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other health care provider. 29 C.F.R. § 825.118.
Notes on Use
1. The bracketed language is not exhaustive of the types of health care workers who can meet the regulatory definition of a health care provider. For a full discussion, see the
Committee Comments
, infra. Insert the appropriate language to include the type of health provider(s) relevant to the case.
5.83E FMLA — Definition: “Appropriate Notice” – Leave Foreseeable1
The phrase “appropriate notice” as used in these instructions means that [he/she] must have notified defendant of [his/her] need for leave at least 30 days before the leave was to begin.
Committee Comments
The FMLA requires that employees provide adequate notice to their employers of the need to take leave. If the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give the employer at least 30 days advance notice before the leave is to begin. 29 C.F.R. § 825.302(a). See also Bailey v. Amsted, 172 F.3d 1041 (8th Cir. 1999). An employee need not invoke the FMLA by name in order to put an employer on notice that the FMLA may have relevance to the employee’s absence from work. Thorson v. Gemini, 205 F.3d 370, 381 (8th Cir. 2000). The employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave. Id.
Notes on Use
1. This Instruction should be used in situations where plaintiff’s need for leave was foreseeable.
5.83F FMLA — Definition: “Appropriate Notice” – Leave Unforeseeable1
The phrase “appropriate notice” as used in these instructions means that [he/she] must have notified defendant of [his/her] need for leave as soon as practicable after [he/she] learned of the need to take leave.
Committee Comments
The FMLA requires that employees provide adequate notice to their employers of the need to take leave. In the case of unexpected absences where 30 days advance notice is not possible, the regulations require the employee to give the employee notice “as soon as practicable.” 29 C.F.R. § 825.302(a). See also Bailey v. Amsted, 172 F.3d 1041 (8th Cir. 1999). The regulations further state that ordinarily “as soon as practicable” requires the employee to give at least verbal notification within one or two business days after the employee learns of the need for leave. 29 C.F.R. § 825.302(b). See also Browning v. Liberty Mutual Insurance Company, 178 F.3d 1043, 1049 (8th Cir. 1999); Carter v. Ford Motor Co., 121 F.3d 1146 (8th Cir. 1997). An employee need not invoke the FMLA by name in order to put an employer on notice that the FMLA may have relevance to the employee’s absence from work. Thorson v. Gemini, 205 F.3d 370, 381 (8th Cir. 2000). The employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave. Id.
Notes on Use
1. This Instruction should be used in situations where plaintiff’s need for leave was unforeseeable.
5.83G FMLA — Definition: “Equivalent Position”
An “equivalent position” means a position that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties or responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
Committee Comments
This definition is taken from the FMLA regulations at 29 C.F.R. § 825.215(a).
5.84 FMLA – Exception to Job Restoration (key employee)
Your verdict must be for the defendant if it has been proved by [(the greater weight) or (a preponderance)]1 of the evidence that plaintiff was a key employee and that denying job restoration to plaintiff was necessary to prevent substantial and grievous economic injury to the operations of the employer. In considering whether or not plaintiff was a key employee you may consider factors such as whether the employer could replace the employee on a temporary basis, whether the employer could temporarily do without the employee, and the cost of reinstating the employee.
Committee Comments
An employer may deny job restoration to a “key employee” if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer. 29 C.F.R. § 825.216(c). In determining what constitutes a substantial and grievous economic injury, the focus should be on the extent of the injury to the employer’s operations, not whether the absence of the employee will cause the injury. 29 C.F.R. § 825.218(a). This standard is different and more stringent than the “undue hardship” test under the Americans with Disabilities Act. 29 C.F.R. § 825.218(d). While a precise definition is not provided in the regulations, factors to consider in making that determination are provided at 29 C.F.R. § 825.218(b). They include whether the employer could replace the employee on a temporary basis, whether the employer could temporarily do without the employee, and the cost of reinstating the employee. Id.
The court may wish to define “key employee,” which is defined by FMLA regulation as a salaried employee who is eligible to take FMLA leave and who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employer’s worksite. 29 C.F.R. § 825.217(a). The method of determining whether the employee is “among the highest paid 10 percent” is described in the FMLA regulations. 29 C.F.R. § 825.217(c). No more than 10 percent of the employer’s employees within 75 miles of the worksite may be “key employees.” 29 C.F.R. § 825.217(c)(2). The term “salaried” has the same meaning under the FMLA as it does under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, as amended. 29 C.F.R. § 825.217(b), 29 C.F.R. § 541.118.
Notes on Use
1. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
5.84A FMLA – Exception to Job Restoration
(employee would not have been employed at time of reinstatement)
Your verdict must be for the defendant if it has been proved by [(the greater weight) or (a preponderance)]1 of the evidence that plaintiff would not have been employed by the defendant at the time job reinstatement was requested.
Committee Comments
An employer is not required to provide an employee returning from medical leave “any right, benefit or position of employment other than the right, benefit or position to which the employee would have been entitled had the employee never taken leave. 29 U.S.C. § 2614(a)(3)(B); Marks v. The School Dist. of Kansas City, Mo., 941 F. Supp. 886, 892 (W.D. Mo. 1996). Thus, an employee is not entitled to job reinstatement after FMLA leave if the employer can show that the employee would not otherwise have been employed at the time reinstatement is requested. 29 C.F.R. § 825.216(a). For example, an employer is not required to reinstate an employee who was laid off during the course of taking FMLA leave. 29 C.F.R. § 825.216(a)(1).
Notes on Use
1. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
5.85 FMLA – Actual Damages
If you find in favor of plaintiff under Instruction ____1 then you must award plaintiff the amount of any wages, salary, and employment benefits plaintiff would have earned in [his/her] employment with defendant if [he/she] had not been discharged on [fill in date of discharge] through the date of your verdict, minus the amount of earnings and benefits from other employment received by plaintiff during that time.
[You are also instructed that 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 by [(the greater weight) or )a preponderance)]2 of the evidence that plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to [his/her], you must reduce [his/her] damaged by the amount [he/she] reasonably could have avoided if [he/she] had sought out or taken advantage of such an opportunity.]3
[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.]4
Committee Comments
The FMLA provides that a prevailing plaintiff is entitled to recover actual damages and interest thereon plus an additional equal amount as liquidated damages. 29 U.S.C. § 2617(a)(1); Morris v. VCW, Inc., 1996 U.S. Dist. LEXIS 19201, *3 (W.D. Mo. 1996). In Morris, the court held that an employee could not recover interest because she failed to present evidence at trial regarding the method of calculating the amount of interest. Id. at *16.
Where a prevailing plaintiff has not lost wages, salary or employment benefits, he or she may be entitled to other compensation. 29 U.S.C. § 2617. For example, an employee who was denied FMLA leave may be able to recover any monetary losses incurred as a direct result of the FMLA violation, such as the cost of providing for a family member, up to an amount equal to 12 weeks of wages or salary for the employee. 29 U.S.C. § 2617(a)(1).
Notes on Use
1. Insert the number or title of the essential elements instruction here.
2. The bracketed language should be inserted which corresponds to the burden-of- proof Instruction given.
3. 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).
4. This paragraph may be given at the trial court’s discretion.
5.86 FMLA – Good Faith Defense to Liquidated Damages
If you find in favor of plaintiff under Instruction _____1, then you must decide whether defendant acted in good faith. You must find defendant acted in good faith if you find by [(the greater weight) or a preponderance)]2 of the evidence that when defendant [insert defendant’s act or omission], defendant reasonably believed that its actions complied with the Family and Medical Leave Act.
Committee Comments
A prevailing plaintiff in an FMLA case is entitled to liquidated damages in an amount equal to actual damages plus interest. 29.U.S.C. § 2617(a)(1); Morris v. VCW, Inc., 1996 U.S. Dist. LEXIS 19201, *3, (W.D. Mo. 1996). In Morris, the United States District Court for the Western District of Missouri looked to case law under the Fair Labor Standards Act to determine whether plaintiff was entitled to liquidated damages. Id. at *5-6.
The language for this Instruction is based on the court’s analysis of the good-faith defense in Morris, 1996 U.S. Dist. LEXIS 19201 at *8-10. The FMLA allows an employer may avoid the imposition of liquidated damages if it can show that its act or omission was made in good faith and that it had reasonable grounds for believing it was acting in accordance with the FMLA. 29.U.S.C. § 2617(a)(1)(A)(iii). Good faith requires some duty on the part of the employer to investigate potential liability under the FMLA. Morris, 1996 U.S. Dist. LEXIS 19201 at *10.
Notes on Use
1. Insert the number or title of the essential elements Instruction here.
2. Insert the bracketed language which corresponds to the burden-of-proof instruction given.
5.90 MISCELLANEOUS INSTRUCTIONS AND SPECIAL INTERROGATORIES
5.91 DISPARATE TREATMENT CASES . PRETEXT/INDIRECT EVIDENCE
INSTRUCTION . ESSENTIAL ELEMENTS
Your verdict must be for plaintiff [and against defendant __________]1 [on plaintiff's (age)2 discrimination claim]3 if all the following elements have been proved by the [(greater weight) or (preponderance)]4 of the evidence:
First, defendant [discharged]5 plaintiff; and
Second, plaintiff's (age) was a6 determining factor7 in defendant's decision.
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, your verdict must be for defendant.
"(Age) was a determining factor" only if defendant would not have discharged plaintiff but for plaintiff's (age); it does not require that (age) was the only reason for the decision made by defendant.8 [You may find (age) was a determining factor if you find defendant's stated reason(s) for its decision(s) [(is) (are)] not the true reason(s), but [(is) (are)] a "pretext" to hide [(age) (gender) (race)] discrimination].9
Committee Comments
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that an age discrimination plaintiff may create a submissible issue by showing that the defendant’s stated reason for its decision was pretextual. This instruction may be used in "pretext" cases filed under ADEA, § 1981, and § 1983, if the trial court believes it is appropriate to follow the pretext/mixed motive distinction identified in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Introductory Note to Section 5. This basic instruction should not be given if the plaintiff is proceeding on a "mixed motive" theory. Mullins v. Uniroyal, Inc., 805 F.2d 307, 309 (8th Cir. 1986). If the trial court is inclined to adhere to the pretext/mixed motive distinction, but cannot determine how to categorize a particular case, see infra Model Instruction 5.92.
It is unnecessary and inadvisable to instruct the jury regarding the three-step analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997). See Grebin v. Sioux Falls Indep. School Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir. 1985); see generally Bell v. Gas Serv. Co., 778 F.2d 512, 516 (8th Cir. 1985) (inquiry should focus on whether age was a determining factor in employer's decision, not on any particular step in the McDonnell Douglas paradigm). Instead, the submission to the jury should focus on the ultimate issue of whether intentional discrimination was a determining factor in the defendant's employment decision. Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1408 (8th Cir. 1987) (ultimate issue is whether intentional discrimination was a determining factor in the action taken by the employer); Bethea v. Levi Strauss & Co., 827 F.2d 355, 357 (8th Cir. 1987) (same); see also Grebin, 779 F.2d at 20 n.1 (approving definition of "determining factor").
Plaintiffs can prove that unlawful bias was a "determining factor" by showing "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). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Notes on Use
1. Use this phrase if there are multiple defendants.
2. This instruction is designed for use in age discrimination cases brought pursuant to the ADEA. It should be modified for race discrimination cases under 42 U.S.C. § 1981 and constitutional discrimination cases under 42 U.S.C. § 1983.
3. The bracketed language should be inserted when the plaintiff submits more than one claim to the jury.
4. Select the bracketed language which corresponds to the burden-of-proof instruction given.
5. This first element is designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the instruction must be modified. Where the plaintiff resigned but claims a "constructive discharge," this instruction should be modified. See infra Model Instruction 5.93.
6. Historically, cases have approved use of “a” determining factor in pretext cases. See Ryther v. KARE 11, 108 F.3d 832, 846-47 (8th Cir. en banc 1997). However, in Rockwood Bank v. Gaia, 170 F.3d 833 (8th Cir. 1999), a panel decision held that “the” determining factor should be used.
7. The phrase "age was a determining factor" must be defined. The Committee sees no problem in allowing a plaintiff to submit the issue to the jury using “determining factor” rather than “motivating factor” if plaintiff wishes to do so, even in mixed-motive cases.
8. This definition of the phrase "(age) was a determining factor" is based on Grebin v. Sioux Falls Indep. School Dist. No. 49.5, 779 F.2d 18, 20 n.1 (8th Cir. 1985).
9. The bracketed phrase may be added at the court's option in cases in which plaintiff relies on indirect evidence/pretext to prove discriminatory motive.
5.92 SPECIAL INTERROGATORIES TO ELICIT FINDINGS IN BORDERLINE
PRETEXT/MIXED-MOTIVE CASES
Directions
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.
In Question No. 1, you will be asked whether plaintiff's (age)1 was a motivating factor2 in defendant's decision to [discharge]3 [him/her]. If it has been proved that plaintiff's (age) was a motivating factor in defendant's decision, you must answer "yes" to Question No. 1. If it has not been proved, you must answer "no" to Question No. 1.
In Question No. 2, you will be asked whether plaintiff's (age) was a determining factor in defendant's decision to [discharge] [him/her]. "(Age) was a determining factor" only if defendant would not have discharged plaintiff but for plaintiff's (age). It does not require that (age) was the only reason for the decision made by defendant.4 [You may find that (age) was a determining factor if you find defendant's stated reason(s) for its decision are not the true reason(s), but are a pretext to hide [(age) (gender) (race)] discrimination.]5 If it has been proved that plaintiff's (age) was a determining factor in defendant's decision, you must answer "yes" to Question No. 2. If it has not been proved, you must answer "no" to Question No. 2.
In Question No. 3, you will be asked whether defendant would have [discharged] plaintiff regardless of [his/her] (age). If it has been proved that defendant would have discharged plaintiff regardless of [his/her] (age), you must answer "yes" to Question No. 3. If it has not been proved, you must answer "no" to Question No. 3.
Question No. 4 deals with the amount of damages plaintiff is eligible to recover. In answering Question No. 4, you are instructed to assess plaintiff's damages in accordance with Instruction ____6 [and Instruction ____].7
Question No. 5 deals with whether defendant's conduct was "willful," as defined in Instruction ____.8
QUESTIONS
Question No. 1: Has it been proved by the [(greater weight) or (preponderance)] of the evidence that plaintiff's (age)1 was a motivating factor2 in defendant's decision to [discharge]3 [him/her]?
_____ Yes _____ No
(Mark an "X" in the appropriate space)
Note: Continue on to Question No. 2 only if you answered "yes" to Question No. 1. If you answered "no" to Question No. 1, you need not answer Questions 2 through 5. You should have your foreperson sign and date this form because you have completed your deliberation on this age-discrimination claim.
Question No. 2: Has it been proved by the [(greater weight) or (preponderance)] of the evidence that plaintiff's (age) was a determining factor in defendant's decision to [discharge] [him/her]?
_____ Yes _____ No
(Mark an "X" in the appropriate space)
Note: Continue on to Question No. 3 only if you answered "no" to Question No. 2. If you answered "yes" to Question No. 2, go directly to Questions No. 4 and 5.
Question No. 3: (Answer this question if you answered "yes" to Question No. 1 and "no" to Question No. 2.) Has it been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] (age)?
_____ Yes _____ No
(Mark an "X" in the appropriate space)
Note: Continue on to Questions No. 4 and 5 only if you answered "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 age-discrimination claim.
Question No. 4: (Answer this question only if you answered "yes" to Question No. 2 or "no" to Question No. 3.) What is the amount of plaintiff's damages as that term is defined in Instruction _____?6 $__________ (stating the amount [or, if you find that plaintiff' damages have no monetary value, write in the nominal amount of One Dollar ($1.00)]).7
Question No. 5: (Answer this question even if you answered "yes" to Question No. 2 or "no" to Question No. 3.) Has it been proved by the [(greater weight) or (preponderance)] of the evidence that defendant's conduct was "willful" as that term is defined in Instruction ____?8
_____ Yes _____ No
(Mark an "X" in the appropriate space)
___________________________________
Foreperson
Date: ____________________
Committee Comments
See Introductory Note to Section 5.
These special interrogatories are designed for use where the trial court is inclined to adhere to a mixed motive/pretext distinction but cannot readily classify a case under a "mixed motive" or "pretext" theory. For example, if plaintiff presents some direct evidence which does not clearly address the employment decision at issue, such as general statements of age bias by the employer, it may be unclear whether the case should be submitted under a "mixed motive" or "pretext" instruction. As explained below, the first three basic interrogatories will permit the court to create a complete record to permit analysis under either theory.
Question No. 1 is designed to test the proof on the "motivating factor" issue. The note following Question No. 1 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 may be entered for the defendant.
Question No. 2 is designed to test the ultimate issue in a "pretext" case of whether plaintiff's age, race, or other protected characteristics was a "determining factor" in the employment decision being challenged. As reflected in the note following Question No. 2, the plaintiff wins under either a pretext or mixed motive theory if the jury finds that unlawful discrimination was a "determining factor." Thus, analysis on the issue of liability should end if the jury answers "yes" to Question No. 2. The jury must go on to Question No. 3 only if it found that discrimination was a motivating factor but not a "determining factor."
Question No. 3 is designed to reach the final issue in a "mixed motive" case. As noted above, the defendant clearly wins if the jury answers "no" to Question No. 1, and the plaintiff clearly wins if the jury answers "yes" to Question No. 2. It also is clear that the defendant wins if the jury answers "no" to Question No. 2 and "yes" to Question No. 3. Thus, the court will be revisited with 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 that jury finding, the plaintiff wins if the case is classified under a "mixed motive" theory, while the defendant wins if the case is classified under a "pretext" case theory.
Questions No. 1, 2 and 3 are to be submitted in lieu of, not in conjunction with, any elements instruction. However, actual damages and, if appropriate, a "willfulness" or punitive damages instruction 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 and damages and willfulness submitted separately from Questions No. 1, 2 and 3.
Notes on Use
1. This set of interrogatories is designed for use in an age discrimination case. It should be modified for race discrimination cases under 42 U.S.C. § 1981 or constitutional discrimination cases under 42 U.S.C. § 1983.
2. The Committee believes that the term "motivating factor" may be of such common usage that it need not be defined. If the jury has a question regarding this term, the following may be a suitable definition: "The term 'motivating factor' means a consideration that moved the defendant toward its decision." The phrase "a factor that played a part" also may be an appropriate substitute for the phrase "motivating factor." See Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101 (8th Cir. 1988). But cf. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (equating "motivating factor" with "substantial factor").
3. These interrogatories are designed for use in a discharge case. In a "failure to hire," "failure to promote," or "demotion" case, the interrogatories and directions must be modified.
Where the plaintiff resigned but claims that he or she was "constructively discharged," the directions must be modified and an additional interrogatory should be given as a threshold to the interrogatories shown above and the subsequent interrogatories will have to be renumbered. See infra Model Instruction 5.93. An appropriate interrogatory would be:
Question No. 1: Has it been proved by the [(greater weight) or (preponderance)] of the evidence that defendant made plaintiff's working conditions intolerable for the purpose of forcing plaintiff to resign?
_____ Yes _____ No
(Mark an "X" in the appropriate space)
Note: Continue on to Question No. 2 only if you answered Question No. 1 "yes." If you answered this question "no," you need not answer Questions Nos. 2 through 6. You should have your foreperson sign this form because you have completed your deliberations on this age-discrimination claim.
4. The definition of the term "(age) was a determining factor" is based on Grebin v. Sioux Falls Indep. 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, in cases in which plaintiff relies primarily on indirect evidence/pretext to prove discriminatory motive.
6. Fill in the number of the "actual damages" instruction here. See infra Model Instructions 5.12, 5.22, 5.32. In cases where special interrogatories are submitted instead of an elements instruction, the first two lines of the damages instruction should be modified as follows:
If you reach Question No. 4 of the Verdict Form, plaintiff's damages are defined as such sum as you find by the . . . .
7. Regarding the submission of the issue of nominal damages, see infra Model Instructions 5.13, 5.23, 5.33.
8. Because this model set of interrogatories is designed for age discrimination cases, Question No. 5 is designed to submit the issue of "willfulness." See infra Model Instruction 5.14. If the issue of "willfulness" is not submitted in an age discrimination case, Question No. 5 should be omitted; otherwise, insert the number of the "willfulness" instruction here. In cases where special interrogatories are submitted instead of an elements instruction, the first sentence of Model Instruction 5.14 should be modified as follows:
If you reach Question No. 5 of the Verdict Form, then you must consider whether the conduct of defendant was "willful."
In race discrimination cases and constitutional discrimination cases, Question No. 5 should be used to submit the issue of punitive damages, if appropriate. See infra Model Instructions 5.24, 5.34. If the issue of punitive damages is not submitted to the jury, Question No. 5 should be omitted. If the issue of punitive damages is submitted, the "Directions" section of these interrogatories should be modified as follows:
Question No. 5 deals with punitive damages that may be assessed, in accordance with Instruction ___.
Similarly, the "Questions" section of the interrogatories should be modified as follows:
Question No. 5: (Answer this question only if you answered "yes" to Question No. 2 or "no" to Question No. 3). What amount, if any, do you assess for punitive damages as that term is defined in Instruction ___? $_________ (stating the amount or, if none, write the word "none").
Finally, if the issue of punitive damages is submitted in connection with these interrogatories, the first sentence of the second paragraph of the model instructions for punitive damages (Model Instructions 5.24, 5.34, infra) should be modified as follows:
If you reach Question No. 5 of the Verdict Form, . . .
5.93 CONSTRUCTIVE DISCHARGE INSTRUCTION
First, defendant made plaintiff’s working conditions intolerable, and
Second, plaintiff’s (age, race, gender, religion)1 was a motivating factor2 in defendant’s actions, and
Third, [defendant acted with the intent of forcing plaintiff to quit] or [plaintiff’s resignation was a reasonably foreseeable result of defendant’s actions]3.
Working conditions are intolerable if a reasonable person in plaintiff’s situation would have deemed resignation the only reasonable alternative.4
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 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.101, 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 infra Model Instructions 5.01 (Title VII), 5.11 (ADEA), 5.21 (42 U.S.C. § 1981), 5.31 (42 U.S.C. § 1983).
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. See infra Model Instruction 5.91.
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 Kanas 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.”).
5.94 BUSINESS JUDGMENT INSTRUCTION - TITLE VII CASES
You may not return a verdict for plaintiff just because you might disagree with defendant's (decision)1 or believe it to be harsh or unreasonable.
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).
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.
5.95 PRETEXT INSTRUCTION
You may find that plaintiff's (age)1 was a motivating factor in defendant's (decision)2 if it has been proved by the [(greater weight) (preponderance)]3 of the evidence that defendant's stated reason(s) for its (decision) [(is) (are)] not the true reason(s), but [(is) (are)] a pretext to hide [(age) (gender) (race)] discrimination.
Committee Comments
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.
Id. at 837 (footnote omitted).
Notes on Use
1. This term must be modified if the plaintiff alleges discrimination on the basis of race, gender, or some other prohibited factor.
2. Consistent with the various essential elements instructions in this section, 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.
3. Select the bracketed language which corresponds to the burden-of-proof instruction given.
5.96 DEFINITION OF MOTIVATING FACTOR
As used in these instructions, plaintiff’s (sex, gender, race, national origin, religion, disability)1 was a "motivating factor," if plaintiff’s (sex, gender, race, national origin, religion, disability) played a part2 [or a role3]4 in the defendant’s decision to __________5 plaintiff. However, plaintiff’s (sex, gender, race, national origin, religion, disability) need not have been the only reason for defendant’s decision to __________ plaintiff.
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 banc 1997); Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101-02 (8th Cir. 1988).
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 defendant relied when it __________ plaintiff[, Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989);] or which moved defendant toward its decision to __________ plaintiff[, id. at 241;] or because of which defendant __________ plaintiff[, 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.
5.97 AFTER-ACQUIRED EVIDENCE1
If your verdict is in favor of plaintiff under Instruction No. ___,2 and if you answered “no” to Question No. 1,3 then you must answer the following question on your verdict form:
Question No. 2: Has it been proved by [(a preponderance) or (the greater weight)]4 of the evidence that, even if plaintiff had not been terminated on [insert appropriate date], defendant would have terminated5 plaintiff’s employment by [insert appropriate date]6 because [insert brief explanation of defendant’s after-acquired reason for termination.]7 ?
Committee Comments
In McKennon v. Nashville Banner Publishing Co., 513 U.S.352 (1995), the Supreme Court ruled that an employer’s after-acquired evidence of misconduct by the plaintiff does not act as a bar to liability, but it may cut off the plaintiff’s damages as of the date the employer discovered the misconduct. The after-acquired evidence doctrine appears to be an affirmative defense which must be pleaded and proven by the employer-defendant.
To establish an after-acquired evidence defense to damages, the employer must establish that “the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of discharge.” McKennon, 513 U.S. at 362-63. It is not enough to show that the misconduct was in violation of company policy or might have justified termination; instead, the employer must show that the after-acquired evidence would have resulted in termination. Sheehan v. Donlen Corp., 173 F.3d 1039, 1048 (7th Cir. 1999) (“[p]roving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made”) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989)).
The plaintiff-employee cannot circumvent the after-acquired evidence defense by suggesting that the defendant-employer discovered the prior misconduct during the course of discovery. “Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery and even if the information might have gone undiscovered absent the suit.” McKennon, 513 U.S. at 362.
Notes on Use
1. This instruction is intended for potential use in cases involving claims of wrongful termination or other adverse employment actions resulting in economic loss to the plaintiff. When given, it ordinarily will be inserted after the essential elements instruction (or, when given, after the “same decision” instruction) and before the actual damages instruction. In addition to instructing on this issue, the verdict form will need to be modified. See infra Model Instruction 5.97A.
2. Insert the number of the “essential elements” instruction given.
3. Insert the number of the “same decision” instruction given. If a “same decision” instruction is not given, this phrase should be deleted.
4. Choose the appropriate term based on the language used in the burden of proof instruction given.
5. The after-acquired evidence defense typically is asserted by the defendant to cut off liability for economic damages by suggesting that the plaintiff would have been terminated if it had been aware of the after-acquired evidence of misconduct. When the defense is based on a different fact pattern -- e.g., the defendant asserts that the plaintiff would have been demoted or transferred to a lower-paying job if it had known of the after-acquired evidence -- the appropriate job action should be identified.
6. Insert the appropriate date based upon defendant’s contention of when plaintiff would have been terminated as a result of the after-acquired evidence.
7. Describe the basis for the defendant’s after-acquired evidence defense -- e.g. “plaintiff’s misrepresentation in his employment application” or “plaintiff’s falsification of expense reports.”
5.97A MODIFIED VERDICT FORM
IN AFTER-ACQUIRED EVIDENCE CASES
Note: Complete the following paragraph by writing in the name required by your verdict.
On the [(sex)1 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 if the above finding is in favor of plaintiff. If the above finding is in favor of defendant, have your foreperson sign and date this form because you have completed your deliberations on this claim.
Question No. 1: Has it been proved by [(the greater weight) or (a preponderance)]4 of the evidence that defendant would have discharged5 plaintiff on [date on which 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 by [(a preponderance) or (the greater weight)]7 of the evidence that, even if plaintiff had not been terminated on [insert appropriate date], defendant would have terminated8 plaintiff’s employment by [insert appropriate date]9 because [insert brief explanation of defendant’s after-acquired reason for termination.]10?
____ Yes ____ No
(Mark an “X” in the appropriate space)
Note: Continue on to the following paragraphs regardless of how you answered Question No. 2.
We assess 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 verdict11:
$________ (stating the amount [or, if none, write the word “none”])
C. Plaintiff’s other damages, excluding past and future lost wages and benefits:
$_________ (stating the amount [or, if you find that plaintiff’s damages do not have a monetary value, write in the nominal amount of One Dollar ($1.00)]).12
[We assess punitive damages against defendant, as submitted in Instruction ___, as follows:
$_______ (stating the amount or, if none, write the word “none”).]14
___________________________________
Foreperson
Dated: _____________________
Committee Comments
This model instruction illustrates the modifications to the verdict form in cases where the after-acquired evidence defense is submitted. See infra Model Instruction 5.97; see also infra Model Instructions 5.05 (Title VII Verdict Form); 5.15 (ADEA Verdict Form); 5.25 (§ 1981 Verdict Form); 5.35 (§ 1983 Verdict Form); 5.75 (First Amendment Verdict Form).
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.
4. Select the bracketed language that corresponds to the burden-of-proof instruction given.
5. See infra Model Instruction 5.97 n.5.
6. This question submits the “same decision” issue to the jury. See infra Model Instruction 5.01A.
7. Choose the appropriate term based on the burden of proof instruction given.
8. See infra Model Instruction 5.97 n.5.
9. See infra Model Instruction 5.97 n.6.
10. See infra Model Instruction 5.97 n.7.
11. 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 of law 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).
12. 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.
13. This paragraph should be included if the evidence is sufficient to support an award of punitive damages. See infra, e.g., Model Instruction 5.04.
6. FRAUD CASES - ELEMENT AND DAMAGE INSTRUCTIONS
6.01 FRAUD . ODOMETER
Your verdict must be for plaintiff [and against defendant __________]1 [here generally describe the claim if there is more than one] if all of the following elements have been proved by the [(greater weight) or (preponderance)]2 of the evidence:
First, that defendant or its agent [disconnected, reset, or altered the odometer on the vehicle in question by changing the number of miles indicated thereon];3 and
Second, that the action of the defendant or its agent was done with the intent to defraud4 someone.5
To act with intent to defraud means to act with intent to deceive or cheat for the purpose of bringing some financial gain to one's self or another.
If any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, your verdict must be for defendant.
Notes on Use
1. Use this phrase if there are multiple defendants.
2. Select the bracketed language which corresponds to the burden-of-proof instruction given.
3. The bracketed language should be used when plaintiff's civil action is based upon a violation of 49 U.S.C. § 32703(2). If the action is premised on an alleged violation of 49 U.S.C. §§ 32703(3) or 32705. the element should be modified as follows:
a) section 32703(3) .
First, that defendant or its agent operated the vehicle in question knowing that the odometer of such vehicle was disconnected or nonfunctional;
b) section 32705 .
First, that defendant or its agent failed to provide an accurate written odometer disclosure statement on the vehicle in question at the time of its transfer;
4. Constructive knowledge, recklessness, or even gross negligence in determining or disclosing actual mileage constitutes intent to defraud. Tusa v. Omaha Automobile Auction, Inc., 712 F.2d 1248 (8th Cir. 1983); Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979); Nieto v. Pence, 578 F.2d 640 (5th Cir. 1978).
5. Privity is unnecessary between the defrauded party and the party who violated the Motor Vehicle Information and Cost Savings Act with an intent to defraud. Tusa v. Omaha Automobile Auction, Inc. Plaintiff need only prove that defendant intended to defraud someone.
6.51 ODOMETER FRAUD . DAMAGES
If you find in favor of plaintiff then you must award plaintiff such sum as you find by the [(greater weight) or (preponderance)] of the evidence the amount of damages [he/she] sustained.1
Damages include such things as the difference between the fair market value of the vehicle in question with its actual mileage and the amount paid for the vehicle by plaintiff, and such sum as you find will fairly and justly compensate plaintiff for any other damages sustained as a result of the [insert appropriate language such as "the conduct of defendant as submitted in Instruction _____"].2
Notes on Use
1. This instruction establishes a damage figure for the purposes of applying the minimum damage figure set by 49 U.S.C. § 32710(a). Under the provisions of this section, plaintiff may, upon proper proof, recover three times the amount of actual damages he or she sustained, or $1,500, whichever is greater. See Williams v. Toyota of Jefferson, Inc., 655 F. Supp. 1081 (E.D. La. 1987); Beachy v. Eagle Motors, Inc., 637 F. Supp. 1093 (N.D. Ind. 1986); Gonzales v. Van's Chevrolet, Inc., 498 F. Supp. 1102 (D. Del. 1980); Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381 (D. Neb. 1977), aff'd, 578 F.2d 721 (8th Cir. 1978). The Committee recommends that, in jury cases, the jury should be directed to determine the amount of actual damages and that the court should apply the statutory formula. See Gonzales.
Not only should the court apply the statutory damage formula, but the court, not the jury, should address the issue of attorney fees and costs. The provisions of 49 U.S.C. § 32710(6) permits an award of attorney fees and costs to a prevailing plaintiff. The attorney fee award is determined under the factors set out in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). See Tusa v. Omaha Automobile Auction, Inc., 712 F.2d 1248 (8th Cir. 1983); Duval.
2. Repair bills and other items of damage are recoverable under 49 U.S.C. § 32710(a) provided they are legitimately attributable to the defendant's acts. Oettinger v. Lakeview Motors, Inc., 675 F. Supp. 1488, 1495-96 (E.D. Va. 1988); Duval.
7. FEDERAL EMPLOYERS’ LIABILITY ACT
Introduction
The Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., commonly referred to as the "F.E.L.A.," makes railroads engaging in interstate commerce liable in damages to their employees for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51 (1939).
Although grounded in negligence, the statute does not define negligence; federal case law does so. Urie v. Thompson, 337 U.S. 163, 174 (1949). Generally, to prevail on an F.E.L.A. claim, a plaintiff must prove the traditional common law components of negligence including duty, breach, foreseeability, causation and injury. Adams v. CSX Transp. Inc., 899 F.2d 536, 539 (6th Cir. 1990); Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987). This includes whether the defendant railroad failed to use reasonable or ordinary care under the circumstances. Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976), cert. denied, 429 U.S. 1002 (1976); McGivern v. Northern Pacific Ry. Co., 132 F.2d 213, 217 (8th Cir. 1942). Typically, it must be shown that the railroad either knew or should have known of the condition or circumstances that allegedly caused plaintiff's injury. This is referred to as the notice requirement. See Siegrist v. Delaware, Lackawanna & Western R. Co., 263 F.2d 616, 619 (2d Cir.), cert. denied, 360 U.S. 917 (1959). Ordinarily, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury, Davis, 541 F.2d at 185, although the exact manner in which the injury occurs and the extent of the injury need not be foreseen, Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 120 (1963).
Although grounded in negligence, the F.E.L.A. is "an avowed departure from the rules of the common law." Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 329 (1958). The Act's most distinctive departure from the common law is in the area of causation. The plain language of 45 U.S.C. § 51 (1939) establishes a standard of "in whole or in part" causation which replaces the common law standard of proximate causation. "[T]o impose liability on the defendant, the negligence need not be the proximate cause of the injury." Nicholson v. Erie R. Co., 253 F.2d 939, 940 (2d Cir. 1958). “The F.E.L.A. has its own rule of causation." Id. "The test of causation under the FELA is whether the railroad's negligence played any part, however small, in the injury which is the subject of the suit." Fletcher v. Union Pac. R. Co., 621 F.2d 902, 909 (8th Cir.), cert. denied, 449 U.S. 1110 (1980). The quantum of proof necessary to submit the question of negligence to the jury and the quantum of proof necessary to sustain a jury finding of negligence are also modified under the F.E.L.A.
It is well established that, under FELA, a case must go to the jury if there is any probative evidence to support a finding of even the slightest negligence on the part of the employer, Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506-07 (1957), and that jury verdicts in favor of plaintiffs can be sustained upon evidence that would not support such a verdict in ordinary tort actions, Heater v. Chesapeake & Ohio Railway, 497 F.2d 1243, 1246 (7th Cir.), cert. denied, 419 U.S. 1013 (1974).
Caillouette v. Baltimore & Ohio Chicago Terminal R. Co., 705 F.2d 243, 246 (7th Cir. 1983).
As the F.E.L.A. has modified the common law negligence case, it has also "stripped" certain defenses from the F.E.L.A. cause of action. See Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507-08 (1957). Contributory negligence is no bar to recovery. It may only be used to proportionately reduce the plaintiff's damages. 45 U.S.C. § 53. If the negligence of plaintiff employee is the sole cause of his own injury or death, there is no liability because the railroad did not cause or contribute to cause the employee's injury or death. New York Cent. R. Co. v. Marcone, 281 U.S. 345, 350 (1930); Meyers v. Union Pacific R. Co., 738 F.2d 328, 331 (8th Cir. 1984); Flanigan v. Burlington Northern Inc., 632 F.2d 880, 883 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 827 (5th Cir. 1965). Although assumption of risk is abolished as a defense altogether, 45 U.S.C. § 54, evidence supporting the defense of contributory negligence should not be excluded merely because it also would support an assumption of the risk argument. Beanland v. Chicago, Rock Island and Pac. R. Co., 480 F.2d 109, 116 n.5 (8th Cir. 1973).
Despite the foregoing authorities and F.E.L.A. principles, it must be kept in mind that the provisions of 45 U.S.C. § 51 which establish a negligence cause of action do not establish an absolute liability cause of action. "[T]he Federal Act does not make the railroad an absolute insurer against personal injury damages suffered by its employees." Wilkerson v. McCarthy, 336 U.S. 53, 61 (1949). "That proposition is correct, since the Act imposes liability only for negligent injuries." Id.; cf. Tracy v. Terminal R. Ass'n of St. Louis, 170 F.2d 635, 638 (8th Cir. 1948). The plaintiff has the burden to prove the elements of the F.E.L.A. cause of action, including the railroad's failure to exercise ordinary care, notice, reasonable foreseeability of harm, causation and damages.
In addition to the negligence cause of action of 45 U.S.C. § 51, the F.E.L.A. also provides for certain causes of action which are not based upon negligence. These are actions brought under the F.E.L.A. for injury caused by the railroad's violation of the Safety Appliance Act (formerly 45 U.S.C. §§ 1-16, recodified as 49 U.S.C. §§ 20301-20304, 21302, 21304 (1994)), or the Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified as 49 U.S.C. §§ 20102, 20701 (1994)).
Sometimes the same factual circumstances will give rise to a claim under the general negligence provision of the F.E.L.A., as well as a claim under the Safety Appliance Act or a claim under the Boiler Inspection Act. While the same facts may give rise to a combination of these three types of F.E.L.A. claims, the elements of an F.E.L.A. general negligence claim are separate and distinct from those of an F.E.L.A. Safety Appliance Act or F.E.L.A. Boiler Inspection Act claim.
The Safety Appliance Act and Boiler Inspection Act require that certain railroad equipment be kept in certain prescribed conditions. If the equipment is not kept in the prescribed conditions and an employee is thereby injured, the employee may bring a cause of action under 45 U.S.C. § 51. In such a case, proof of the violation of the Safety Appliance Act or Boiler Inspection Act supplies "the wrongful act necessary to ground liability under the F.E.L.A." Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 434 (1949). The Safety Appliance Act and Boiler Inspection Act thus "dispense, for the purposes of employees' suits with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law." Urie, 337 U.S. at 189. The United States Supreme Court "early swept all issues of negligence out of cases under the Safety Appliance Act." O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 390 (1949).
In other words, in F.E.L.A. cases brought for injury caused by violation of the Boiler Inspection Act or Safety Appliance Act, care on the part of the railroad is immaterial. "The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous." Brady v. Terminal R. Ass'n of St. Louis, 303 U.S. 10, 15 (1938). Likewise, in such cases, care on the part of the employee is immaterial insofar as the defense of contributory negligence is not available to bar the plaintiff's action or to reduce the damages award. 45 U.S.C. § 53, However, if the plaintiff's negligence was the sole cause of the injury or death, then the statutory violation could not have contributed in whole or in part to the injury or death. Beimert v. Burlington Northern, Inc., 726 F.2d 412, 414 (8th Cir. 1984), cert. denied, 467 U.S. 1216 (1984).
Despite the elemental differences between these types of cases "(t)he appliance cause often is joined with one for negligence, and even sometimes . . . mingled in a single mongrel cause of action." O'Donnell, 338 U.S. at 391. In order to avoid such mingling, claims brought under the general F.E.L.A. negligence provisions of the Act, claims brought under the Safety Appliance Act and claims brought under the Boiler Inspection Act should all be submitted by separate elements instructions. See infra Model Instructions 7.01 (elements instruction for claims brought under the general F.E.L.A. negligence provisions of the Act); Model Instruction 7.04 (elements instruction for claims brought under Boiler Inspection Act); Model Instruction 7.05 (elements instruction for claims brought under the Safety Appliance Act).
For a more thorough overview of the F.E.L.A. see Richter and Forer, Federal Employers' Liability Act, 12 F.R.D. 13 (1951) or Michael Beethe, Railroads Swing Injured Employees: Should the Federal Employers’ Liability Act Allow Railroads to Recover from Injured Railroad Workers for Property Damages?, 65 U.M.K.C. L. Rev. 231 (1996)
Finally, a motivating purpose for Congress in enacting the F.E.L.A. was to simplify the common law negligence action which had previously provided the injured railroad worker's remedy.
The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant . . . . [F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.
Rogers, 352 U.S. at 507-8 (footnotes omitted).
Given this purpose of the F.E.L.A. and the nature of the F.E.L.A. cause of action, the instructions in this section are drafted in the same format as are the other instructions in this manual generally. They are drafted to present the jury only those issues material to the questions it is to decide. Toward this goal, abstract statements of law and evidentiary detail are avoided.
A number of jurisdictions submit F.E.L.A. cases by instruction schemes which present propositions of law and paraphrase the underlying statutes. Notable among the jurisdictions which instruct in this manner are Illinois and Arkansas. Although the Committee has adopted the ultimate issue instruction format for this manual in general and the F.E.L.A. instructions in specific, the Committee recognizes that other instruction schemes are equally valuable. None of the instructions in this manual are mandatory, and any court which prefers to use another appropriate instruction set or system should do so.
7.01 GENERAL F.E.L.A. NEGLIGENCE
Your verdict must be for plaintiff [and against defendant (name of defendant)]1 [on plaintiff's (identify claim presented in this elements instruction as "first," "second," etc.) claim]2 if all of the following elements have been proved by [the greater weight of the evidence] [a preponderance of the evidence]3:
First, plaintiff [(name of decedent)] was an employee of defendant [(name of defendant)], and4, 5
Second, defendant [(name of defendant)] failed to provide:6
(reasonably safe conditions for work [in that (describe the conditions at issue)] or)
(reasonably safe tools and equipment [in that (describe the tools and equipment at issue)] or)
(reasonably safe methods of work [in that (describe the methods at issue)] or)
(reasonably adequate help [in that (describe the inadequacy at issue)]), and
Third, defendant [(name of defendant)] in any one or more of the ways described in Paragraph Second was negligent,7 and8
Fourth, such negligence resulted in whole or in part9 in [injury to plaintiff] [the death of (name of decedent)].
If any of the above elements has not been proved by [the greater weight of the evidence] [a preponderance of the evidence], then your verdict must be for defendant [(name of defendant)].10
[Your verdict must be for defendant if you find in favor of defendant under Instruction ____ (insert number or title of affirmative defense instruction)].11
Notes on Use
1. If there are two or more defendants in the lawsuit, include this phrase and identify the defendant against whom the claim covered by this elements instruction is made.
2. Include this phrase and identify the claim covered by this elements instruction as "first," "second," etc., only if more than one claim is to be submitted. See Introduction to Section 7 (discussion of relationship among F.E.L.A. claims for general negligence, violation of the Safety Appliance Act and violation of the Boiler Inspection Act).
3. Use the phrase which conforms to the language of the burden of proof instruction, Model Instruction 3.04, infra.
4. The F.E.L.A. provides that the railroad "shall be liable in damages to any person suffering injury while he is employed by such carrier . . . ." 45 U.S.C. § 51 (1939) (emphasis added). In the typical F.E.L.A. case, there is no dispute as to whether the injured or deceased person was an employee, and this language need not be included except to make the instruction more readable. However, when there is such a dispute in the case, the term "employee" must be defined. The definition must be carefully tailored to the specific factual question presented, and it is recommended that Restatement (Second) of Agency (1958) be used as a guideline in a manner consistent with the federal authorities. See Kelley v. Southern Pacific Co., 419 U.S. 318, 324 (1974) (discussion of Restatement (Second) of Agency (1957) as authoritative concerning meaning of "employee" and "employed" under the F.E.L.A. and as source of proper jury instruction).
5. It may be argued the plaintiff was not acting within the scope of his or her railroad employment at the time of the incident. If there is a question whether the employee was within the scope of employment, paragraph First should provide as follows:
First, [plaintiff] [(name of decedent)] was an employee of defendant [(name of defendant)] acting within the scope of (his) (her) employment at the time of (his) (her) [injury] [death] [(describe the incident alleged to have caused injury or death)], and
If this paragraph is included, the term "scope of employment" must be defined in relation to the factual issue in the case. The Restatement (Second) of Agency (1958) is recognized as a guide. Wilson v. Chicago, Milwaukee, St. Paul and Pac. R. Co., 841 F.2d 1347, 1352 (7th Cir.), cert. dism., 487 U.S. 1244 (1988). In rare cases it may be argued that the duties of the employee did not affect interstate commerce and thus are not covered by the Act. Usually if the employee was acting within the scope and course of his employment for the railroad his conduct will be sufficiently connected to interstate commerce to be included within the Act.
6. This paragraph of the elements instruction is designed to present descriptions of the conduct alleged to constitute breach of the railroad's standard of care in the majority of F.E.L.A. cases. These descriptions should focus the jurors' attention upon the evidence without belaboring the elements instruction with evidentiary detail. The description may consist of no more than the appropriate phrase or phrases "reasonably safe conditions for work," "reasonably safe tools and equipment," "reasonably safe methods of work" or "reasonably adequate help." However, if a more specific description will be helpful to the jury and is deemed by the court to be desirable in the particular case, a more specific description should be used. The following are examples of ways in which the applicable phrase may be modified to provide further description:
First, defendant either failed to provide:
reasonably safe conditions for work in that there was oil on the walk.way, or
reasonably safe tools and equipment in that it provided plaintiff with a lining bar that had a broken claw, or
reasonably safe methods of work in that it failed to require plaintiff to wear safety goggles while welding rail, or
reasonably adequate help in that it required plaintiff to lift by himself a track saw that was too heavy to be lifted by one worker, and
7. The terms "negligent" and "negligence" must be defined. See infra Model Instructions 7.09, 7.10 and 7.11.
8. If only one phrase describing the railroad's alleged breach of duty is submitted in Paragraph Second, then Paragraph Third should read as follows:
Third, defendant [(name of defendant)] was thereby negligent, and
9. The standard of causation in an F.E.L.A. case is whether the injury or death was caused "in whole or in part" by the railroad's negligence. 45 U.S.C. § 51; see infra Introduction to Section 7. No other causation language is necessary.
The defendant may request an instruction stating that if plaintiff's negligence was the sole cause of his injury, he may not recover under the F.E.L.A. New York Central R. Co. v. Marcone, 281 U.S. 345, 350 (1930); Meyers v. Union Pacific R.R. Co., 738 F.2d 328, 330-31 (8th Cir. 1984) (not error to instruct jury, "if you find that the plaintiff was guilty of negligence, and that the plaintiff's negligence was the sole cause of his injury, then you must return your verdict in favor of defendant"). Such a defense may also arise under the Boiler Inspection and Safety Appliance Acts. See Beimert v. Burlington Northern, Inc., 726 F.2d 412, 414 (8th Cir.), cert. denied, 467 U.S. 1216 1984).
Sole cause instructions have sometimes been criticized as unnecessary and as confusing. See Flanigan v. Burlington Northern, Inc., 632 F.2d 880, 883-84 n.1 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981); Almendarez v. Atchison, T. & S.F. Ry. Co., 426 F.2d 1095, 1097 (5th Cir. 1970); Page v. St. Louis Southwestern Ry. Co., 349 F.2d 820, 826-27 (5th Cir. 1965). The Committee takes no position on whether a sole cause instruction should be given in an F.E.L.A. case. If the court decides to give a sole cause type instruction, the following may be appropriate:
The phrase "in whole or in part" as used in [this instruction] [Instruction _____ (state the title or number of the plaintiff's elements instruction)] means that the railroad is responsible if its negligence, if any, played any part, no matter how small, in causing the plaintiff's injuries. This, of course, means that the railroad is not responsible if any other cause, including plaintiff's own negligence, was solely responsible.#
Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 507 (1957); Page v. St. Louis Southwestern Ry., 349 F.2d 820, 826-27 (5th Cir. 1965).
As is the case with any model instruction, if the court determines that some other instruction on the subject is appropriate, such an instruction may be given.
10. This paragraph should not be used if Model Instruction 7.02A or 7.02B is given.
11. Use Model Instruction 7.02C, infra, to submit affirmative defenses.
7.02 DEFENSE THEORY INSTRUCTIONS - THREE OPTIONS
Introduction and
Committee Comments
Eighth Circuit case law holds that the defendant in an F.E.L.A. case, like any party in any other civil case, is entitled to a specific instruction on its theory of the case, if the instruction is "legally correct, supported by the evidence and brought to the court's attention in a timely request." Board of Water Works, Trustees of the City of Des Moines, Iowa v. Alvord, Burdick & Howson, 706 F.2d 820, 823 (8th Cir. 1983). This proposition applies to F.E.L.A. cases. Chicago & N.W. Ry. Co. v. Green, 164 F.2d 55, 61 (8th Cir. 1947); see also Chicago, Rock Island & Pacific Railroad Co. v. Lint, 217 F.2d 279, 284-86 (8th Cir. 1954) (error to refuse defendant's foreseeability of harm instructions which "more specifically" than the court's instructions presented defendant's theory of defense); Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112-13 (8th Cir. 1988) (defendant in products liability case may be entitled to a sole cause instruction presenting its theory of the case to the jury, if legally correct, supported by the evidence and brought to the court's attention in a timely request).
The 7.02 series of defense theory instructions provides for three alternative formats that a defendant may utilize to present its defense theory to the jury. If defendant's theory is that plaintiff has failed to carry his burden of proof on one or more of the elements of his claim set forth in the elements instruction, the Model Instruction 7.02A format permits instructing the jury that their verdict must be for the defendant unless that element has been proved. The 7.02B format is similar, but does not limit the defendant to the precise language used in the elements instruction. That is, defendant can specify any fact which the plaintiff must prove in order to recover and obtain an instruction stating that defendant is entitled to a verdict unless that fact is proved. Defendant may wish to use this format where the defense theory is that plaintiff has failed to prove notice or reasonable foreseeability of harm.
The formats used in 7.02A and 7.02B are designed to cover defense theories where plaintiff has failed to prove an element of his or her claim. The third category of defense theory instructions, as set forth in Model Instruction 7.02C, infra, is designed to cover affirmative defenses where the railroad has the burden of proof.
The court should limit the number of defense theory instructions so as not to unduly emphasize the defense theories in a way that would be unfair to plaintiff. The Committee believes that as a general rule, the defendant should be entitled to at least one defense theory instruction for each claim that plaintiff is separately submitting to the jury. There may be certain cases where more than one defense theory instruction should be given for a particular claim. For example, in an occupational lung disease case, there may be a statute of limitations defense hinging on fact issues to be decided by the jury and there also may be issues as to notice and reasonable foreseeability of harm. In such a case, the court might conclude to give a 7.02C instruction on the affirmative defense of statute of limitations and a 7.02B instruction covering the failure to prove notice or reasonable foreseeability of harm. If the defendant wants 7.02A and 7.02B instructions to be given in a case, they should be combined in a single defense theory instruction following the 7.02B format. Rather than creating an arbitrary limit on the number of defense theory instructions that may be given, the Committee believes that it is preferable to give the court flexibility and discretion in dealing with each case on its own facts. The operative principles are fairness and evenhanded treatment.
7.02A DEFENSE THEORY INSTRUCTIONS - FAILURE OF PROOF ON ANY
ELEMENT OF PLAINTIFF'S CASE LISTED IN THE ELEMENTS INSTRUCTION
Your verdict must be for defendant [(name of defendant)]1 [on plaintiff's (identify claim presented in this instruction as "first," "second," etc.)2 claim] unless it has been proved by [the greater weight of the evidence] [a preponderance of the evidence]3 that [(specify any element upon which plaintiff bears the burden of proof as listed in the appropriate elements instruction for the particular claim)].
Committee Comments
See Introduction and
Committee Comments
to the 7.02 series of defense theory instructions for a discussion of the general principles underlying their use.
Model Instruction 7.02A, infra, provides a general format that can be used when defendant's theory is that plaintiff has failed to prove an element of his claim as listed in the elements instruction. When this format is used, the language in the elements instruction should be repeated verbatim in the defense theory instruction. For example, if the defense theory is the failure to prove causation, the instruction might read: "Your verdict must be for defendant on plaintiff's claim unless it has been proved by the greater weight of the evidence that defendant's negligence resulted in whole or in part in injury to plaintiff."
The defendant may wish to specify in its defense theory instruction more than one element of plaintiff's case that defendant contends has not been proved. If the defendant specifies more than one element from the elements instruction, the defense theory instruction should use the same connecting term ("and" versus "or") as used in the elements instruction. In other words, in specifying conjunctive submissions, the defense theory instruction uses "and" between elements; in specifying disjunctive submissions, it uses "or."
The defendant has the option to specify one or more elements of the elements instruction in its defense theory instruction. The only limitation on defendant's right to specify as much or as little of the elements instruction as desired is with respect to disjunctive submissions. If defendant elects to specify any element which is submitted by the elements instruction in the disjunctive, he must specify all such disjunctive elements. For example, if plaintiff's elements instruction submits that defendant either committed negligent act "A" or negligent act "B," it would be improper to give a defense theory instruction stating that the verdict must be for the defendant unless the jury believes that negligent act "A" has been proved. Instead, the defense theory instruction would have to specify all of the negligent acts submitted in the elements instruction connected by the word "or."
Notes on Use
1. If there are two or more defendants in the lawsuit, include this phrase and identify the defendant against whom the claim identified in this instruction is made.
2. Include this phrase and identify the claim represented in this instruction as "first," "second," etc., only if more than one claim is to be submitted. See Introduction to Section 7 (discussion of relationship among F.E.L.A. claims for general negligence, violation of the Safety Appliance Act and violation of the Boiler Inspection Act).
3. Use the phrase which conforms to the language of the burden of proof instruction, Model Instruction 3.04, infra.
7.02B DEFENSE THEORY INSTRUCTIONS - FAILURE TO PROVE
ANY FACT ESSENTIAL TO PLAINTIFF'S RIGHT TO RECOVER
Your verdict must be for defendant [(name of defendant)]1 [on plaintiff's (identify claim as "first," "second," etc.) claim]2 unless it has been proved by [the greater weight of the evidence] [a preponderance of the evidence]3 that [(specify any fact which plaintiff must prove in order to recover)].4
Committee Comments
See Introduction and
Committee Comments
to the 7.02 series of defense theory instructions for a discussion of the general principles underlying their use. If the defendant wants 7.02A and 7.02B instructions to be given in a case, they should be combined in a single defense theory instruction following the 7.02B format.
This defense theory instruction format is similar to the 7.02A format, but differs in that the defendant is not restricted to a repetition of the exact language used in the elements instruction. The 7.02B format is intended by the Committee to address the kind of instruction issues discussed in Chicago & N.W. Ry. Co. v. Green, 164 F.2d 55, 61 (8th Cir. 1947) and Chicago, Rock Island & Pacific Railroad Co. v. Lint, 217 F.2d 279, 284-86 (8th Cir. 1954). See Introduction and
Committee Comments
to 7.02 series of defense theory instructions.
The Committee anticipates that the 7.02B format can be used, for example, to instruct on plaintiff's burden to prove "notice" and "reasonable foreseeability of harm." For a discussion of these concepts, see infra
Committee Comments
, Model Instruction 7.09.
The close and interdependent relationship of notice and reasonable foreseeability of harm to the ultimate question of whether the railroad exercised due care raises the issue whether the jury should be instructed to make separate findings of notice and reasonable foreseeability of harm in the elements instruction. In Atlantic Coast Line R. Co. v. Dixon, 189 F.2d 525, 527-28 (5th Cir. 1951), and Patterson v. Norfolk & Western Railway Company, 489 F.2d 303, 305 (6th Cir. 1973), instructions calling for such separate findings were found improper in that they misrepresented the ultimate question of reasonable or ordinary care. However, in Chicago, Rock Island & Pacific Railroad Co. v. Lint, 217 F.2d 279, 284-86 (8th Cir. 1954), it was held error to refuse defendant's notice and reasonable foreseeability of harm instructions which "more specifically" than the court's instructions presented defendant's theory of defense. Similarly, in Chicago & N.W. Ry. Co. v. Green, 164 F.2d 55, 61 (8th Cir. 1947), it was error to refuse to give an instruction requested by defendant on defendant's defense theory that plaintiff had failed to prove notice. Other cases of interest are: Denniston v. Burlington Northern, Inc., 726 F.2d 391, 393-94 (8th Cir. 1984) (no plain error in instructing that the plaintiff was required to prove notice); and Baynum v. Chesapeake & Ohio Railway Co., 456 F.2d 658, 660 (6th Cir. 1972) (verdict for plaintiff upon sufficient evidence of notice rendered refusal of notice instruction harmless error).
By way of illustration, assume that plaintiff's submission of negligence is that defendant failed to provide reasonably safe conditions for work in that there was oil on the walkway (see infra Model Instruction 7.01 n.8). Assume further that defendant's theory of defense is that defendant did not know and could not have known in the exercise of ordinary care that there was oil on the walkway. The defense theory instruction for this defense might read as follows: "Your verdict must be for defendant unless it has been proved by the greater weight of the evidence that defendant knew or by the exercise of ordinary care should have known that there was oil on the walkway." In other words, a notice defense theory instruction should specify the defect, condition or other circumstance so it will be clear what fact or facts must be proved in order to establish notice.
As an example of a defense theory instruction on reasonable foreseeability of harm, assume a case where plaintiff is claiming occupational lung disease caused by exposure to diesel fumes. The negligence submission from the elements instruction might read: "Defendant failed to provide reasonably safe conditions for work in that plaintiff was repeatedly exposed to diesel fumes." The defense theory instruction on foreseeability of harm might read as follows: "Your verdict must be for defendant unless it has been proved by the greater weight of the evidence that defendant knew or by the exercise of ordinary care should have known that repeated exposure to diesel fumes was reasonably likely to cause harm to plaintiff."
While notice and foreseeability of harm are common defense theories that can be accommodated by the 7.02B format, this format is not limited to those particular theories. This format can be used to specify any fact upon which the plaintiff bears the burden of proof and which fact is essential to plaintiff's right to recover. Of course, it is up to the court to determine what those "essential facts" might be under the case law and under the circumstances of the particular case before the court.
The 7.02B format should not be used to specify a fact upon which the defendant bears the burden of proof. If the defendant bears the burden of proof to establish the defense theory, the 7.02C format should be followed.
Notes on Use
1. If there are two or more defendants in the lawsuit, include this phrase and identify the defendant against whom the claim identified in this instruction is made.
2. Include this phrase and identify the claim represented in this instruction as "first," "second," etc., only if more than one claim is to be submitted. See Introduction to Section 7 (discussion of relationship among F.E.L.A. claims for general negligence, violation of the Safety Appliance Act and violation of the Boiler Inspection Act).
3. Use the phrase which conforms to the language of the burden of proof instruction, Model Instruction 3.04, infra.
4. Of course, it is an issue of substantive law as to what facts are essential to plaintiff's right to recover. See the examples in the
Committee Comments
above for instructions on the defense theories of failure to prove notice and failure to prove reasonable foreseeability of harm.
7.02C DEFENSE THEORY INSTRUCTIONS - AFFIRMATIVE DEFENSES
Your verdict must be for defendant [(name of defendant)]1 [on plaintiff's (identify claim to which this instruction pertains as "first," "second," etc.)2 claim] if all of the following elements have been proved by [the greater weight of the evidence] [a preponderance of the evidence]3:
[List in numbered paragraphs each element of any affirmative defense upon which the defendant bears the burden of proof and which, if proved, entitles defendant to a verdict.]
Committee Comments
See Introduction and
Committee Comments
to the 7.02 series of defense theory instructions for a discussion of the general principles underlying their use.
The 7.02C format is only to be used for affirmative defenses where defendant bears the burden of proof. For example, the affirmative defenses of release and statute of limitations sometimes turn on fact issues to be resolved by the jury. The Committee has not undertaken to prepare model instructions for affirmative defenses. If a particular case requires an affirmative defense instruction, the elements of the affirmative defense should be submitted in separate paragraphs connected by "and." Evidentiary detail should be avoided, but the ultimate factual issues to be resolved by the jury should be specified.
The 7.02C format should not be used in submitting the defense of contributory negligence which, if proved, only reduces plaintiff's recovery. That defense should be submitted under Model Instruction 7.03, infra.
Assumption of the risk is no defense whatsoever because it has been abolished altogether in F.E.L.A cases. 45 U.S.C. § 54 (1994).
The defendant may request a defense theory instruction stating that if plaintiff's negligence was the sole cause of his injury, he may not recover under the F.E.L.A. For a discussion of the authorities on sole cause instructions, see infra Model Instruction 7.01 n.9. The Committee takes no position on whether a sole cause instruction should be given in an F.E.L.A. case.
Notes on Use
1. If there are two or more defendants in the lawsuit, identify the defendant to whom this instruction applies.
2. Include this bracketed language and identify the claim to which this instruction pertains as "first," "second," etc., only if more than one claim is submitted and one or more of such claims is not subject to the affirmative defense.
3. Use the phrase which conforms to the language of the burden of proof instruction, Model Instruction 3.04, infra.
7.03 F.E.L.A CONTRIBUTORY NEGLIGENCE
If you find in favor of plaintiff under Instruction _____ (insert number or title of plaintiff's elements instruction) you must consider whether plaintiff [(name of decedent)]1 was also negligent. Under this Instruction, you must assess a percentage of the total negligence2 to [plaintiff] [(name of decedent)] [on plaintiff's (identify claim to which this instruction pertains as "first," "second," etc.) claim against defendant [(name of defendant)]]3 if all of the following elements have been proved by [the greater weight of the evidence] [a preponderance of the evidence]4:
First, [plaintiff] [(name of decedent)] (characterize the alleged negligent conduct, such as, "failed to keep a careful lookout for oncoming trains"),5 and
Second, [plaintiff] [(name of decedent)] was thereby negligent, and6
Third, such negligence of [plaintiff] [(name of decedent)] resulted in whole or in part in [his] [her] injury.7
[If any of the above elements have not been proved by [the greater weight of the evidence] [a preponderance of the evidence], then you must not assess a percentage of negligence to [plaintiff] [(name of decedent)].]8
Committee Comments
Contributory negligence is no bar to recovery under F.E.L.A., "but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee . . . ." 45 U.S.C. § 53 (1994).
In a F.E.L.A. case brought for injury or death caused by the railroad's violation of a "statute enacted for the safety of employees," contributory negligence will neither bar the plaintiff's recovery nor reduce his or her damages. Id. The Safety Appliance Act (formerly 45 U.S.C. §§ 1-16, recodified at 49 U.S.C. §§ 20301-20304, 21302, 21304 (1994)), and the Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified at 49 U.S.C. §§ 20102, 20701 (1994)), are statutes enacted for the safety of employees. Therefore, this instruction should not be submitted in a claim brought for violation of the Boiler Inspection Act (Model Instruction 7.04, infra) or for violation of the Safety Appliance Act (Model Instruction 7.05, infra). See Introduction to Section 7 (discussion of relationship among Boiler Inspection Act, Safety Appliance Act and F.E.L.A.).
Notes on Use
1. This contributory negligence instruction is designed for use in cases in which the employee's injury resulted in death as well as in cases in which the employee's injuries did not result in death. If the employee's injuries resulted in death, identify the decedent by name.
2. The terms "negligent" and "negligence" must be defined. See infra Model Instruction 7.09.
3. Include this bracketed language and identify the claim to which this instruction pertains as "first," "second," etc., only if more than one claim is submitted.
If there are two or more defendants in the lawsuit, identify the defendant against whom the claim referred to in this instruction is asserted.
4. Use the phrase which conforms to the language of the burden of proof instruction, Model Instruction 3.04, infra.
5. More than one act or omission alleged to constitute contributory negligence may be here submitted in the same way that alternative submissions are made under Model Instruction 7.01. See infra Model Instruction 7.01 n.6.
6. If more than one act or omission is alleged as contributory negligence, then Paragraph Second should be modified to read as follows:
Second, [plaintiff] [(name of decedent)] in any one or more of the ways described in Paragraph First was negligent, and . . . .
7. A single standard of causation is to be applied to the plaintiff's negligence claim and the railroad's claim of contributory negligence. Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 822-24 (5th Cir. 1965).
8. This paragraph is optional. If requested, the court may add this paragraph.
7.04 F.E.L.A. BOILER INSPECTION ACT VIOLATION
Your verdict must be for plaintiff [and against defendant (name of defendant)]1 [on plaintiff's (identify claim represented in this elements instruction as "first," "second," etc.) claim]2 if all of the following elements have been proved by [the greater weight of the evidence] [a preponderance of the evidence]3:
First, plaintiff [(name of decedent)] was an employee of defendant [(name of defendant)]4, 5
Second, the [locomotive] [boiler] [tender] [(identify part or appurtenance of locomotive, boiler or tender which is the subject of the claim)]6 at issue in the evidence was not in proper condition and safe to operate without unnecessary peril to life or limb in that (identify the defect which is the subject of the claim),7 and8
Third, this condition resulted in whole or in part9 in [injury to plaintiff] [death to (name of decedent)].
If any of the above elements has not been proved by [the greater weight of the evidence] [a preponderance of the evidence], then your verdict must be for defendant [(name of defendant)].10
[Your verdict must be for defendant if you find in favor of defendant under Instruction ____ (insert number or title of affirmative defense instruction)].11
Committee Comments
The introduction to Section 7 discusses the relationship among the Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified at 49 U.S.C. §§ 20102, 20701 (1994)), the Safety Appliance Act (formerly 45 U.S.C. §§ 1-16, recodified at 49 U.S.C. §§ 20301-20304, 21302, 21304 (1994)), and F.E.L.A., 45 U.S.C. § 51, 60 (1994).
Notes on Use
1. If there are two or more defendants in the lawsuit, include this phrase and identify the defendant against whom the claim represented in this elements instruction is made.
2. Include this phrase and identify the claim represented in this elements instruction as "first," "second," etc., only if more than one claim is to be submitted.
3. Use the phrase which conforms to the burden of proof instruction, Model Instruction 3.04, infra.
4. F.E.L.A. provides that the railroad "shall be liable in damages to any person suffering injury while he is employed by such carrier . . . ." 45 U.S.C. § 51 (emphasis added). In the typical F.E.L.A. case, there is no dispute as to whether the injured or deceased person was an employee, and this language need not be included except to make the instruction more readable. However, when there is such a dispute in the case, the term "employee" must be defined. The definition must be carefully tailored to the specific factual question presented, and it is recommended that Restatement (Second) of Agency (1958) be used as a guide in a manner consistent with the federal authorities. See Kelley v. Southern Pacific Company, 419 U.S. 318, 324 (1974) (discussion of Restatement (Second) of Agency (1958) as authoritative concerning meaning of "employee" and "employed" under F.E.L.A., and as source of proper jury instruction).
5. It may be argued the plaintiff was not acting within the scope of his or her railroad employment at the time of the incident. If there is a question whether the employee was within the scope of employment, paragraph First should provide as follows:
First, [plaintiff] [(name of decedent)] was an employee of defendant [(name of defendant)] acting within the scope of (his) (her) employment at the time of (his) (her) [injury] [death] [(describe the incident alleged to have caused injury or death)], and
If this paragraph is included, the term "scope of employment" must be defined in relation to the factual issue in the case. The Restatement (Second) of Agency (1958) is recognized as a guide. Wilson v. Chicago, Milwaukee, St. Paul and Pac. R. Co., 841 F.2d 1347, 1352 (7th Cir. 1988). In rare cases it may be argued that the duties of the employee did not affect interstate commerce and thus are not covered by the Act. Usually if the employee was acting within the scope and course of his employment for the railroad his conduct will be sufficiently connected to interstate commerce to be included within the Act.
6. The Boiler Inspection Act language of 49 U.S.C. § 2701, formerly 45 U.S.C. § 23, refers to the "locomotive or tender and its parts and appurtenances." The court should select the term which conforms to the case. The court may choose to specifically identify the specific part or appurtenance of the locomotive, boiler or tender in a case in which mere reference to the locomotive, boiler or tender will not adequately present the theory of violation.
7. Counsel should draft a concise statement of the Boiler Inspection Act violation alleged which is simple and free of unnecessary language. Examples which might be sufficient for a Boiler Act violation are: "in that there was oil on the locomotive catwalk;" or "in that the ladder on the locomotive was bent;" or "in that the grab iron on the locomotive was loose."
The Secretary of Transportation is authorized to establish standards for equipment covered under the Boiler Inspection Act and the Safety Appliance Act. Shields v. Atlantic Coast Line R. Co., 350 U.S. 318, 320-25 (1956); Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 486 (1943). Regulations promulgated pursuant to this authority are found in Title 49 of the Code of Federal Regulations under the Federal Railroad Administration (FRA) regulations. FRA regulations "acquire[] the force of law and become[] an integral part of the Act . . . ." Lilly, 317 U.S. at 488. Such regulations have "the same force as though prescribed in terms by the statute," Atchison T. & S.F. Ry. Co. v. Scarlett, 300 U.S. 471, 474 (1937), and violation of such regulations "are violations of the statute, giving rise not only to damage suits by those injured, but also to money penalties recoverable by the United States." Urie v. Thompson, 337 U.S. 163, 191 (1949) (citations omitted). If plaintiff's case is based on a violation of such a regulation, the plaintiff may request the court to replace Paragraph Second of the instruction with a paragraph submitting the regulation violation theory. See Eckert v. Aliquippa & Southern R. Co., 828 F.2d 183, 187 (3d Cir. 1987).
8. Both the Boiler Inspection Act and the Safety Appliance Act require that the equipment at issue be "in use" at the time of the subject incident. The purpose of the "in use" element is to "exclude those injuries directly resulting from the inspection, repair or servicing of railroad equipment located at a maintenance facility." Angell v. Chesapeake & O. Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980); Steer v. Burlington Northern, Inc., 720 F.2d 975, 976-77 (8th Cir. 1983).
Whether the equipment at issue is "in use" at the time of the subject incident is to be decided by the court as a question of law and not by the jury. Pinkham v. Maine Cent. R. Co., 874 F.2d 875, 881 (1st Cir. 1989) (citing Steer, 720 F.2d at 977 n.4). Because the "in use" element is a question of law for the court, this instruction does not submit the question to the jury.
Numerous reported cases discuss this element of the Boiler Inspection Act and Safety Appliance Act, and cases which construe the term "in use" under one act are authoritative for purposes of construing the term under the other act. Holfester v. Long Island Railroad Company, 360 F.2d 369, 373 (2d Cir. 1966). Any attempt to here represent the cases on point is beyond the scope of these
Notes on Use
, and counsel are referred to the authorities for further discussion of this element.
9. The same standard of "in whole or in part" causation which applies to general F.E.L.A. negligence cases prosecuted under 45 U.S.C. § 51 also applies to Boiler Inspection Act cases. Green v. River Terminal Ry. Co., 763 F.2d 805, 810 (6th Cir. 1985) (citing Carter v. Atlantic & St. Andrews Bay Railway Co., 338 U.S. 430, 434 (1949)).
The defendant may request an instruction stating that if plaintiff's negligence was the sole cause of his injury, he may not recover under F.E.L.A. New York Central R. Co. v. Marcone, 281 U.S. 345, 350 (1930); Meyers v. Union Pacific R. Co., 738 F.2d 328, 330-31 (8th Cir. 1984) (not error to instruct jury, "if you find that the plaintiff was guilty of negligence, and that the plaintiff's negligence was the sole cause of his injury, then you must return your verdict in favor of defendant"). Such a defense may also arise under the Boiler Inspection and Safety Appliance Acts. See Beimert v. Burlington Northern, Inc., 726 F.2d 412, 414 (8th Cir.), cert. denied, 467 U.S. 1216 (1984).
Sole cause instructions have sometimes been criticized as unnecessary and as confusing. See Flanigan v. Burlington Northern, Inc., 632 F.2d 880, 883 n.1 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981); Almendarez v. Atchison, T. & S.F. Ry. Co., 426 F.2d 1095, 1097 (5th Cir. 1970); Page v. St. Louis Southwestern Ry. Co., 349 F.2d 820, 826-27 (5th Cir. 1965). The Committee takes no position on whether a sole cause instruction should be given in an F.E.L.A. case. If the court decides to give a sole cause type instruction, the following may be appropriate:
The phrase "in whole or in part" as used in [this instruction] [Instruction _____ (state the title or number of the plaintiff's elements instruction)] means that the railroad is responsible if [describe the alleged Boiler Inspection Act violation], if any, played any part, no matter how small, in causing the plaintiff's injuries. This, of course, means that the railroad is not responsible if any other cause, including plaintiff's own negligence, was solely responsible.*
*This instruction may be given as a paragraph in the plaintiff's elements instruction or as a separate instruction.
Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507 (1957); Page v. St. Louis Southwestern Ry., 349 F.2d 820, 826-27 (5th Cir. 1965).
As is the case with any model instruction, if the court determines that some other instruction on the subject is appropriate, such an instruction may be given.
10. This paragraph should not be used if Model Instruction 7.02A or 7.02B is given.
11. Use Model Instruction 7.02C, infra, to submit affirmative defenses.
7.05 F.E.L.A. SAFETY APPLIANCE ACT VIOLATION
Your verdict must be for plaintiff [and against defendant (name of defendant)]1 [on plaintiff's (identify claim represented in this elements instruction as "first," "second," etc.) claim]2 if all of the following elements have been proved by [the greater weight of the evidence] [a preponderance of the evidence]3:
First, plaintiff [(name of decedent)] was an employee of defendant [(name of defendant)]4,5
Second, (specify the alleged Safety Appliance Act violation),6 and7
Third, the condition described in paragraph Second resulted in whole or in part8 in [injury to plaintiff] [death to (name of decedent)].
If any of the above elements has not been proved by [the greater weight of the evidence] [a preponderance of the evidence], then your verdict must be for defendant [(name of defendant)].9
[Your verdict must be for defendant if you find in favor of defendant under Instruction ____ (insert number or title of affirmative defense instruction)].10
Committee Comments
The Introduction To Section 7 discusses the relationship among the Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified 49 U.S.C. §§ 20102, 20701), the Safety Appliance Act (formerly 45 U.S.C. §§ 1-16, recodified 49 U.S.C. §§ 20301-20304, 21302, 21304), and the F.E.L.A., 45 U.S.C. § 51, et seq.
Notes on Use
1. If there are two or more defendants in the lawsuit, include this phrase and identify the defendant against whom the claim represented in this elements instruction is made.
2. Include this phrase and identify the claim represented in this elements instruction as "first," "second," etc., only if more than one claim is to be submitted.
3. Use the phrase which conforms to the burden of proof instruction, Model Instruction 3.04, infra.
4. The F.E.L.A. provides that the railroad "shall be liable in damages to any person suffering injury while he is employed by such carrier . . . ." 45 U.S.C. § 51 (1939) (emphasis added). In the typical F.E.L.A. case, there is no dispute as to whether the injured or deceased person was an employee, and this language need not be included except to make the instruction more readable. However, when there is such a dispute in the case, the term "employee" must be defined. The definition must be carefully tailored to the specific factual question presented, and it is recommended that Restatement (Second) of Agency (1958) be used as a guide in a manner consistent with the federal authorities. See Kelley v. Southern Pacific Company, 419 U.S. 318, 324 (1974) (discussion of Restatement (Second) of Agency (1958) as authoritative concerning meaning of "employee" and "employed" under the F.E.L.A. and as source of proper jury instruction).
5. It may be argued the plaintiff was not acting within the scope of his or her railroad employment at the time of the incident. If there is a question whether the employee was within the scope of employment, paragraph First should provide as follows:
First, [plaintiff] [(name of decedent)] was an employee of defendant [(name of defendant)] acting within the scope of (his) (her) employment at the time of (his) (her) [injury] [death] [(describe the incident alleged to have caused injury or death)], and
If this paragraph is included, the term "scope of employment" must be defined in relation to the factual issue in the case. The Restatement (Second) of Agency (1958) is recognized as a guide. Wilson v. Chicago, Milwaukee, St. Paul and Pac. R. Co., 841 F.2d 1347, 1352 (7th Cir. 1988). In rare cases it may be argued that the duties of the employee did not affect interstate commerce and thus are not covered by the Act. Usually if the employee was acting within the scope and course of his employment for the railroad his conduct will be sufficiently connected to interstate commerce to be included within the Act.
6. Counsel should draft a concise statement of the Safety Appliance Act violation alleged which is simple and free of unnecessary language. An example of a concise statement which might be sufficient in a case brought for violation of 49 U.S.C. § 20302(a)(2), formerly 45 U.S.C. § 4 (1988), is as follows: "Third, the grab iron at issue in the evidence was not secure, and . . . ."
The Secretary of Transportation is authorized to establish standards for equipment covered under the Boiler Inspection Act and the Safety Appliance Act. Shields v. Atlantic Coast Line R. Co., 350 U.S. 318, 320-25 (1956); Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 486 (1943). Regulations promulgated pursuant to this authority are found in Title 49 of the Code of Federal Regulations under the Federal Railroad Administration (FRA) regulations. FRA regulations "acquire the force of law and become an integral part of the Act . . .