Number range CHAPTER **5. EMPLOYMENT CASES**

**Overview**

Section 5 contains model instructions for employment discrimination,
retaliation, and harassment cases arising under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e *et seq.*; the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 621, *et seq.*; 42 U.S.C. § 1981;
42 U.S.C. § 1983; the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, *et seq.*; the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601,
*et seq.*; and the Equal Pay Act, 29 U.S.C. § 206(d). It bears emphasis
that these are *model* instructions and that the instructions for a
particular case must be tailored to the facts and issues presented. This
caveat applies to issues such as damages and affirmative defenses, and
it applies most importantly to the identification of the proper standard
for liability under the specific statute in question.

**Background**

When this project commenced in 1987, Title VII cases were not jury
triable, the ADA and FMLA did not exist, and the standard for liability
in ADEA cases was whether the plaintiff's age was a "determining factor"
in the challenged employment decision. *See* *Grebin v. Sioux Falls
Indep. Sch. Dist. No. 49-5*, 779 F.2d 18, 20 n.1 (8th Cir. 1985). Over
the years, a number of developments have changed this seemingly simple
landscape, including: (1) the United States Supreme Court's distinction
between "direct evidence" and "pretext" cases in *Price Waterhouse v.
Hopkins*, 490 U.S. 228 (1989); (2) the passage of the ADA, the Civil
Rights Act of 1991, and the FMLA, and the ensuing surge in federal court
employment litigation; and (3) the Supreme Court's decision in *Desert
Palace, Inc. v. Costa*, 539 U.S. 90, 123 S. Ct. 2148 (2003), which ruled
that the relevant standard for liability in a Title VII discrimination
case brought under 42 U.S.C. § 2000e-2(m) (pretext cases) is whether the
plaintiff's protected status was a "motivating factor" in the challenged
employment decision, regardless of whether the plaintiff is relying on
direct or circumstantial evidence.

Although *Costa* makes it clear that the "motivating factor" standard
applies in Title VII discrimination cases brought under 42 U.S.C. §
2000e-2(m) (pretext cases), the impact of *Costa* in other types of
discrimination cases is unclear. On one hand, the *Costa* decision noted
that the Civil Rights Act of 1991 expressly legislated the use of a
"motivating standard/same decision" format in 42 U.S.C. § 2000e-2(m)
discrimination cases,[^1] thus leaving the door open for courts to
continue applying the *Price Waterhouse* distinction between direct and
circumstantial evidence in cases under other employment statutes.[^2] It
appears to be an open question after *Costa* whether a plaintiff may
chose to submit under section 2000e2(a)(1) using the determining
factor/*McDonnell Douglas* format. Those instructions may be found at
Model Instructions 5.10 et seq.

On the other hand, the *Costa* opinion notes that in other kinds of
cases, the courts typically do not draw distinctions depending upon
whether the plaintiff relies on direct or circumstantial evidence,[^3]
raising the question of whether the *Price Waterhouse* distinction is
still viable. Moreover, even if a single standard should be used in
cases under the ADEA and other federal employment statutes, there
remains the dilemma of which standard - determining factor, motivating
factor/same decision, or something else - should be used.

The distinction between a "determining factor" instruction and
"motivating factor/same decision" instruction may appear to be of purely
academic interest, but it has great practical significance because of
the potentially dispositive difference in the burden of persuasion. A
"determining factor" instruction places the burden on the plaintiff to
show that he or she would not have been terminated "but for" his or her
protected status. However, a "motivating factor/same decision"
instruction provides that, if the plaintiff has shown that
discrimination was a motivating factor in the challenged employment
decision, the ultimate burden is on the defendant to show that it would
have made the "same decision" regardless of the plaintiff's protected
status. Accordingly, this is an issue that should not be taken lightly.

**[Recommended Approach]{.underline}**

A. Following *Costa*, a motivating factor/same decision instructional
format is recommended for all Title VII discrimination cases brought
under 42 U.S.C. § 2000e-2(m) (pretext cases). *See* Model Instructions
5.01, 5.01A, *infra*.

B. Following the Eighth Circuit's decision in *Pedigo v. P.A.M.
Transport, Inc.*, 60 F.3d 1300, 1301 (8^th^ Cir. 1995), the motivating
factor/same decision format is recommended for discrimination cases
arising under the Americans with Disabilities Act. *See* Model
Instructions 5.50 *et seq.*

C. Following the Eighth Circuit's decision in *Prejean v. Warren*, 301
F.3d 893, 900-01 (8^th^ Cir. 2002), the motivating factor/same decision
format is recommended for Title VII retaliation cases. *See* Model
Instructions 5.60 *et seq.*

D. Following *Mt. Healthy City Bd. Of Ed. V. Doyle*, 429 U.S. 274
(1977), the motivating factor/same decision format is recommended for
First Amendment retaliation cases. *See* Model Instructions 5.70 *et
seq.*

E. With respect to ADEA discrimination and retaliation cases, the
Committee recommends that the "determining factor" standard (Model
Instruction 5.11A) should be used unless the case law indicates
otherwise. *But see Trammel v. Simmons First Bank of Searcy*, 345 F.3d
611 (8^th^ Cir. 2003).

F. With respect to other federal employment statutes, see Model
Instructions 5.20 *et seq.* (42 U.S.C. § 1981); 5.25, *et seq.* (42
U.S.C. § 1983); 5.30 *et seq.* (Equal Pay Act); 5.40 *et seq.*
(Harassment); 5.50 *et seq.* (ADA); 5.60 *et seq.* (Retaliation); 5.80
*et seq.* (FMLA). In the event the district court wants to cover all
bases by eliciting findings under both the "determining factor" and
"motivating factor/same decision" standards, a set of special
interrogatories is offered at 5.92. *See Hartley v. Dillard's, Inc.*,
310 F.3d 1054, 1059-60 (8^th^ Cir. 2002) (approving use of 5.92 special
interrogatories).

**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) \[was a motivating factor\]^6^ \[played a
part\]^7^ 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.
\[You may find that plaintiff\'s (sex) \[was a motivating factor\]
\[played a part\] in defendant\'s (decision)^8^ if it has been proved by
the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide (sex) discrimination.\] ^9^

**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. It appears to be an open
question after *Costa* whether a plaintiff may chose to submit under
section 2000e2(a)(1) using the determining factor/*McDonnell Douglas*
format. Those instructions may be found at Model Instructions 5.10 et
seq.

7\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

8\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

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

**Committee Comments**

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
Broadcasting 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) (pretext
cases)). 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.

**5.01A TITLE VII - ~~DISPARATE TREATMENT -~~ MOTIVATING FACTOR -**

**\"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^

~~(Note: If you answer this question "yes," plaintiff is not entitled to
recover any damages although the court may grant plaintiff other relief.
If you answer the question "no," plaintiff will receive any damages you
assess pursuant to Instruction No\[s\]. \_\_\_ \[and \_\_\_\].~~

**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.

**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.

**5.02A TITLE VII - ~~DISPARATE TREATMENT~~ MOTIVATING FACTOR- 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
benefits^4^ 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^

**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*, 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 (8^th^ 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 (8^th^ 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 (8^th^
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, 808-09 (8th Cir. 1982).

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

**Committee Comments**

The Civil Rights Act of 1991 makes three significant changes in the law
regarding the recovery of damages in Title VII cases. First, the
plaintiff prevails on the issue of liability by showing that unlawful
discrimination was a \"motivating factor\" in the relevant employment
decision; however, the plaintiff cannot recover any actual damages if
the employer shows that it would have made the same employment decision
even in the absence of any discriminatory intent. *See* CRA 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 (8^th^
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
(8^th^ 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 (8^th^ Cir. 1992) (ADEA case).

In *Kramer v. Logan County Sch. Dist. No. R-1*, 157 F.3d 620 (8^th^ 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.

**~~5.03~~ 5.02B TITLE VII - ~~DISPARATE TREATMENT~~ MOTIVATING FACTOR -
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^

**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).

**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.

**~~5.04~~5.02C TITLE VII - ~~DISPARATE TREATMENT~~ MOTIVATING FACTOR -
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 against^3^ 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 \[insert the name(s) of the defendant or manager^5^
> who terminated^6^ plaintiff\] 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^

**\* This instruction should not be given without being revised in light
of *State Farm Mutual Auto Ins. Co. v. Campbell*, 538 U.S. 408, 123 S.
Ct. 1513 (2003); *BMW of North America, Inc. v. Gore*, 517 U.S. 559, 116
S. Ct. 1589 (1996); and *Williams v. ConAgra Poultry Co.*, 378 F.3d 790
(8^th^ Cir. 2004). The following additional language is recommended if
supported by the evidence:**

> **If you decide to award punitive damages, you should consider the
> following in determining the amount of the punitive damages award: the
> nature of the defendant's conduct under the totality of the
> circumstances; the frequency of the defendant's conduct; how
> reprehensible the defendant's conduct was toward the plaintiff; what
> amount of punitive damages, in addition to the compensatory damages
> already awarded, is needed, considering the defendant's financial
> condition, to punish the defendant for its wrongful conduct toward the
> plaintiff and to deter the defendant and others from similar wrongful
> conduct in the future; the amount of fines and civil penalties
> applicable to similar conduct; and whether the amount of punitive
> damages bears a reasonable relationship to the compensatory damages
> awarded.**

**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.

**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.

**5.10 CASES UNDER THE AGE**

**DISCRIMINATION IN EMPLOYMENT ACT (\"ADEA\") OF 1967, AS AMENDED**

**Introductory Comment**

The following instructions are designed for use in jury trials under the
ADEA.

**5.11A ADEA - ~~ESSENTIAL~~ ELEMENTS**

Your verdict must be for plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on plaintiff\'s ~~(~~age~~)^2^~~
discrimination claim\]^~~3~~\ 2^ if all the following elements have been
proved by the \[(greater weight) or (preponderance)\]^~~4~~\ 3^ of the
evidence:

*First*, defendant \[discharged\]^~~5~~\ 4^ plaintiff; and

*Second*, plaintiff\'s ~~(~~age~~)~~ was^~~6~~\ 5^ a determining
factor^~~7~~\ 6^ 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~~\ 7^ \[You may find ~~(~~age~~)~~ was a determining
factor if you find defendant\'s stated reason(s) for its decision(s)
\[(is) (are)\] not the real reason(s), but \[(is) (are)\] a pretext to
hide ~~\[~~age~~\]~~ discrimination\].^~~9~~\ 8^

**Notes on Use**

1\. Use this phrase if there are multiple defendants.

~~2. This instruction is designed for use in an age discrimination case
brought pursuant to the ADEA.~~

~~3~~ 2. The bracketed language should be inserted when the plaintiff
submits more than one claim to the jury.

~~4~~ 3. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

~~5~~ 4. 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~~ 5. Historically, cases have approved use of "a determining factor"
in ADEA pretext cases. *See Ryther v. KARE 11*, 108 F.3d 832, 846-47
(8^th^ Cir. en banc 1997); *Hartley v. Dillard's, Inc.*, 310 F.3d 1054,
1060 (8^th^ Cir. 2002) (affirming plaintiff's verdict where instructions
used "a" determining factor). However, in *Rockwood Bank v. Gaia*, 170
F.3d 833 (8^th^ Cir. 1999), a panel decision held that "the" determining
factor should be used.

~~7~~ 6. The Committee recommends the use of "determining factor" in
ADEA cases unless future case law applies the "motivating factor/same
decision" approach in ADEA cases after *Costa.* *See Trammel v. Simmons
First Bank of Searcy*, 345 F.3d 611 (8^th^ Cir. 2003) (ADEA case
discussing potential impact of *Costa* in non-Title VII cases and noting
that "\[i\]n the past we have required direct evidence, which is not
present here, to support a mixed-motive claim"); *see also Erickson v.
Farmland Ind.*, 271 F.3d 718, 724-25 (8^th^ Cir. 2001) (applying Price
Waterhouse distinction in ADEA case); *Radbaugh v. Zip Feed Mills,
Inc.*, 997 F.2d 444, 448-50 (8^th^ Cir. 1993) (ADEA case discussing what
constitutes direct evidence "sufficient to entitle a plaintiff to a
Price Waterhouse burden-shifting instruction"). If court ~~gives~~
decides to give a motivating factor/same decision instruction, *see*
Model Instruction~~s~~ ~~5.91 and 5.92~~ 5.11B. If court cannot decide
whether to give motivating factor or determining factor, Special
Interrogatories can be used. *See* 5.92.

~~8~~ 7. 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~~ 8. This sentence may be added, if appropriate. *See* Model
Instruction 5.95 and *Moore v. Robertson Fire Protection Dist.*, 249
F.3d 786, 790 n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express
any view as to whether it ever would be reversible error for a trial
court to fail to give a pretext instruction, though we tend to doubt
it."

**Committee Comments**

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.

**5.11B - ADEA - DISPARATE TREATMENT - ELEMENTS**

**(Motivating Factor/Same Decision)**

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 \[was a motivating factor\]^5^ \[played in
part\]^6^ 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. \[You may find
age was a motivating factor if you find defendant's stated reason(s) for
its decision(s) \[(is) (are)\] not the real reason(s), but \[(is)
(are)\] a pretext to hide age discrimination\]^7^

**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.

6\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

7\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

*See* Notes on Use and Committee Comments to Model Instruction 5.11A.

**5.12A ADEA - 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 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

\[You are also instructed that plaintiff has a duty under the law to
~~\"mitigate\" \[his/her\] damages\--that is,~~ use reasonable efforts
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^

**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\. The formula for "back pay" is "the difference between the value of
compensation the plaintiff would have been entitled to had he remained
employed by the defendant and whatever wages he earned during the
relevant period." *Hartley v. Dillard's, Inc.*, 310 F.3d 1054, 1062
(8^th^ Cir. 2002). The value of lost benefits, such as
employer-subsidized health, life, disability and other forms of
insurance, contributions to retirement, accrued vacation, etc. are
recoverable under the ADEA. *Hartley*, 310 F.3d at 1062 (collecting
cases); *Gaworski v. ITT Commercial Finance Corp.*, 17 F.3d 1104,
1110-1114 (8^th^ Cir. 1994) (allowing insurance replacement costs, lost
401(K) contributions). 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 Hartley v. Dillard's, Inc.*, 310
F.3d 1054, 1061-62 (8^th^ Cir. 2002). The burden is on the employer to
show plaintiff's failure to mitigate. *Id*.

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

**Committee Comments**

The goal of a damages award in an age discrimination case is to put the
plaintiff in the same economic position he/she 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 through the date of verdict. *See Hartley
v. Dillard's, Inc.*, 310 F.3d 1054, 1061-62 (8^th^ Cir. 2002) (plaintiff
entitled to "most complete relief possible"); *Gaworski v. ITT
Commercial Finance Corp.*, 17 F.3d 1104, 1110-14 (8^th^ Cir. 1994).

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. *Gaworski*, 17 F.3d at 1110-14.
However, unemployment compensation, Social Security benefits, and
pension benefits received by plaintiff are considered "collateral
source" benefits that are not offset against a back pay award. *See
Hartley*, 310 F.3d at 1062; *Doyne v. Union Electric Co.*, 953 F.2d 447,
451-52 (8th Cir. 1992) (holding that pension benefits are a \"collateral
source benefit\"); *Gaworski v. ITT Commercial Finance Corp.*, 17 F.3d
1104, 1110-14 (8^th^ Cir. 1994) (unemployment benefits, moonlighting
income also not deductible).

In some cases, a discrimination plaintiff may be eligible for future
lost income and benefits ("front pay"). *Hartley*, 310 F.3d 1062-63.
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 (8^th^ Cir. 1999). *Newhouse v.
McCormick & Co.*, 110 F.3d 635, 641 (8^th^ Cir. 1997) (front pay is an
issue for the court, not the jury, in ADEA cases).

**5.12B ADEA NOMINAL DAMAGES**

\[Nominal damages normally are not appropriate in ADEA cases.\]1

**Notes on Use**

1\. If a nominal damages instruction is deemed appropriate, *see* Model
Instruction 5.02~~A~~B.

**Committee Comments**

Recoverable damages in ADEA cases normally are limited to lost wages and
benefits and in most ADEA 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, and 5.02~~A~~B should be used.
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).

**5.12C ADEA - 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.

**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.

**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 (8^th^ 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
(8^th^ Cir. 1997); *Spencer v. Stuart Hall Co., Inc.*, 173 F.3d 1124
(8^th^ Cir. 1999); *Hartley v. Dillard's, Inc.*, 310 F.3d 1054 (8^th^
Cir. 2002).

**5.13 ADEA - 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 5.12A.

4\. The number or title of the instruction defining \"willfulness\"
should be inserted. *See infra* Model Instruction 5.12C.

**5.14 - 5.19 RESERVED FOR FUTURE USE**

**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,~~ 5.21B, *infra*, contains
a sample ~~pretext~~ determining factor 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.

**5.21A 42 U.S.C. § 1981 - (RACE) DISCRIMINATION - ~~ESSENTIAL~~
ELEMENTS**

**(~~Mixed Motive Case)~~ (Motivating Factor)~~\*~~**

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) \[was a motivating factor\]^5^ \[played a
part\]^6^ ~~\[was a determining factor\]^7^~~ 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). \[You may find
that plaintiff\'s (race) \[was a motivating factor\] \[played a part\]
in defendant\'s (decision)^7^ if it has been proved by the \[(greater
weight) (preponderance)\] of the evidence that defendant\'s stated
reason(s) for its (decision) \[(is) (are)\] not the real reason(s), but
\[(is) (are)\] a pretext to hide (race) discrimination.\] ^8^

**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 appropriate standard in a section
1981 case is ~~phrase~~ \"motivating factor\" and it should be defined.
*See infra* Model Instruction 5.96. If the court decides "determining
factor" is appropriate, use Model Instruction 5.21B.

6\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

~~7.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_~~

~~8~~ 7. Consistent with the various essential elements instructions in
this section, t 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.

8 ~~9~~. This sentence may be added, if appropriate. *See* Model
Instruction 5.95 and *Moore v. Robertson Fire Protection Dist.*, 249
F.3d 786, 790 n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express
any view as to whether it ever would be reversible error for a trial
court to fail to give a pretext instruction, though we tend to doubt
it."

**Committee Comments**

~~\* For a pretext case, the format of Model Instruction 5.91 5.21,
*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.~~**

**5.21B - 42 U.S.C. § 1981 - (RACE) DISPARATE TREATMENT - ELEMENTS**

**(Determining Factor)**

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 \[discharged\]^4^ plaintiff; and

*Second*, plaintiff\'s (race) was a determining factor in defendant\'s
decision.

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.

\"(Race) was a determining factor\" only if defendant would not have
discharged plaintiff but for plaintiff\'s (race); it does not require
that (race) was the only reason for the decision made by defendant.^5^
\[You may find (race) was a determining factor if you find defendant\'s
stated reason(s) for its decision(s) \[(is) (are)\] not the real
reason(s), but \[(is) (are)\] a pretext to hide (race)
discrimination\].^6^

**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\. This definition of the phrase \"(\_\_\_) 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).

6\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

*See* Notes on Use and Committee Comments to Model Instruction 5.21A.

**5.22A 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^

\[Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award any damages by
way of punishment or through sympathy.\]^6^

**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 (7^th^ 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 5.02A 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.

**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 (8^th^ Cir. 1999). *See MacDissi v.
Valmont Indus.*, 856 F.2d 1054, 1060 (8^th^ Cir. 1988); *Newhouse v.
McCormick & Co.*, 110 F.3d 635, 641 (8^th^ 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 (8^th^
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.

**5.22B 42 U.S.C. § 1981 - RACE DISCRIMINATION - NOMINAL DAMAGES**

If you find in favor of plaintiff under Instruction \_\_\_\_\_^1^, but
you do not find that plaintiff\'s damages have monetary value, then you
must return a verdict for plaintiff in the nominal amount of One Dollar
(\$1.00).^2^

**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).

**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).

**5.22C 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^

**\* This instruction should not be given without being revised in light
of *State Farm Mutual Auto Ins. Co. v. Campbell*, 538 U.S. 408, 123 S.
Ct. 1513 (2003); *BMW of North America, Inc. v. Gore*, 517 U.S. 559, 116
S. Ct. 1589 (1996); and *Williams v. ConAgra Poultry Co.*, 378 F.3d 790
(8^th^ Cir. 2004). The following additional language is recommended if
supported by the evidence:**

> **If you decide to award punitive damages, you should consider the
> following in determining the amount of the punitive damages award: the
> nature of the defendant's conduct under the totality of the
> circumstances; the frequency of the defendant's conduct; how
> reprehensible the defendant's conduct was toward the plaintiff; what
> amount of punitive damages, in addition to the compensatory damages
> already awarded, is needed, considering the defendant's financial
> condition, to punish the defendant for its wrongful conduct toward the
> plaintiff and to deter the defendant and others from similar wrongful
> conduct in the future; the amount of fines and civil penalties
> applicable to similar conduct; and whether the amount of punitive
> damages bears a reasonable relationship to the compensatory damages
> awarded.**

**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.

**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. ~~The Committee is considering whether
this instruction should be revised in light of *State Farm Mutual Auto
Ins. Co. v. Campbell*, 538 U.S. 408, 123 S. Ct. 1513 (2003), and *BMW of
North America, Inc. v. Gore*, 517 U.S. 559, 116 S. Ct. 1589 (1996).~~

**5.23 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.

**5.25 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 compensatory 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 infra* ~~Introductory Note to Section 5.~~ Model Instruction
5.26A. Nevertheless, if the trial court believes it is appropriate to
distinguish between a mixed motive case and a pretext case, Model
Instruction ~~5.91~~ 5.26B, *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.

**5.26A 42 U.S.C. § 1983 - (SEX) DISCRIMINATION - (~~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) \[was a motivating factor\]^6^ \[played a
part\]^7^ ~~\[was a determining factor\] ^8^~~in defendant\'s
decision\[; and

*Third*, defendant was acting under color of state law\].^8^

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). \[You may find
that plaintiff\'s (sex) \[was a motivating factor\] \[play a part\] in
defendant\'s (decision)^9^ if it has been proved by the \[(greater
weight) (preponderance)\] of the evidence that defendant\'s stated
reason(s) for its (decision) \[(is) (are)\] not the real reason(s), but
\[(is) (are)\] a pretext to hide (sex) discrimination.\]^10^

**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 appropriate standard in a section
1981 case is ~~phrase~~ \"motivating factor\" and it should be defined.
*See infra* Model Instruction 5.96. If the court decides "determining
factor" is appropriate, use Model Instruction 5.26B.

7\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

~~8.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_~~

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\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

10\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

~~\* 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 5.11A, 5.21, *infra*; *see
generally* *Mt. Healthy City School Dist. v. Doyle*, 429 U.S. 274,
282-87 (1977).~~

**5.26B 42 U.S.C. § 1983 - (SEX) DISCRIMINATION) -**

**DISPARATE TREATMENT - ELEMENTS**

**(Determining Factor)**

Your verdict must be for plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on plaintiff\'s (sex) discrimination
claim\]^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 (sex) was a determining factor in defendant\'s
decision.

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.

\"(Sex) was a determining factor\" only if defendant would not have
discharged plaintiff but for plaintiff\'s (sex); it does not require
that (sex) was the only reason for the decision made by defendant.^5^
\[You may find (sex) was a determining factor if you find defendant\'s
stated reason(s) for its decision(s) \[(is) (are)\] not the real
reason(s), but \[(is) (are)\] a pretext to hide (sex)
discrimination\].^6^

**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\. This definition of the phrase \"(\_\_\_) 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).

6\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

*See* Notes on Use and Committee Comments to Model Instruction 5.26A.

**5.27A 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^

**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 5.02A 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.

**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 (8^th^ Cir. 1999). *See MacDissi v.
Valmont Indus.*, 856 F.2d 1054, 1060 (8^th^ Cir. 1988); *Newhouse v.
McCormick & Co.*, 110 F.3d 635, 641 (8^th^ 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 (8^th^
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.

**5.27B 42 U.S.C. § 1983 - NOMINAL DAMAGES**

If you find in favor of plaintiff under Instruction \_\_\_\_\_^1^, but
you do not find that plaintiff\'s damages have monetary value, then you
must return a verdict for plaintiff in the nominal amount of One Dollar
(\$1.00).^2^

**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).

**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.

**5.27C 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 defendant^1^ 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^

**\* This instruction should not be given without being revised in light
of *State Farm Mutual Auto Ins. Co. v. Campbell*, 538 U.S. 408, 123 S.
Ct. 1513 (2003); *BMW of North America, Inc. v. Gore*, 517 U.S. 559, 116
S. Ct. 1589 (1996); and *Williams v. ConAgra Poultry Co.*, 378 F.3d 790
(8^th^ Cir. 2004). The following additional language is recommended if
supported by the evidence:**

> **If you decide to award punitive damages, you should consider the
> following in determining the amount of the punitive damages award: the
> nature of the defendant's conduct under the totality of the
> circumstances; the frequency of the defendant's conduct; how
> reprehensible the defendant's conduct was toward the plaintiff; what
> amount of punitive damages, in addition to the compensatory damages
> already awarded, is needed, considering the defendant's financial
> condition, to punish the defendant for its wrongful conduct toward the
> plaintiff and to deter the defendant and others from similar wrongful
> conduct in the future; the amount of fines and civil penalties
> applicable to similar conduct; and whether the amount of punitive
> damages bears a reasonable relationship to the compensatory damages
> awarded.**

**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.

**Committee Comments**

Punitive damages are recoverable under 42 U.S.C. § 1983. *Smith v.
Wade*, 461 U.S. 30 (1983). ~~The Committee is considering whether this
instruction should be revised in light of *State Farm Mutual Auto Ins.
Co. v. Campbell*, 538 U.S. 408, 123 S. Ct. 1513 (2003), and *BMW of
North America, Inc. v. Gore*, 517 U.S. 559, 116 S. Ct. 1589 (1996).~~

**5.28 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 HARASSMENT CASES**

**~~SEXUAL HARASSMENT~~ UNDER TITLE VII, 1981, 1983, ADA AND ADEA**

**~~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). *See also Burlington Indus., Inc. v. Ellerth*, 524 U.S.
742 (1998) and *Faragher v. City of Boca Raton*, 524 U.S. 775 (1998);
*Tuggle v. Mangan*, 348 F.3d 714 (8^th^ Cir. 2003); *Duncan v. General
Motors Corp.*, 300 F.3d 928 (8^th^ Cir. 2002). Same-sex sexual
harassment is also actionable under Title VII. ~~, ruled that *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*~~ Harassment on the basis of race, color,
national origin, religion, age and disability is actionable if it
involves a hostile working environment. Harassment on the basis of sex,
race, color, national origin or religion is prohibited by Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). *See, e.g.,
Schmedding v. Tnemec Co., Inc.*, 187 F.3d 862 (8^th^ Cir. 1999) (Title
VII). Harassment on the basis of age is prohibited by the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 623(a)(1), 631(a).
*See, e.g.*, *Williams v. City of Kansas City, MO*, 223 F.3d 749 (8^th^
Cir. 2000); *Breeding v. Arthur J. Gallagher and Co.*, 164 F.3d 1151
(8^th^ Cir. 1999) (ADEA). Harassment cases can also be brought under 42
U.S.C. § 1981, *Ross v. Kansas City Power & Light Co.*, 293 F.3d 1041
(8^th^ Cir. 2002) (race and 1981); and under 42 U.S.C. § 1983, *Moring
v. Arkansas Dept. of Correction.*, 243 F.3d 452 (8^th^ Cir. 2001 (sex
and 1983). Harassment on the basis of disability under the Americans
with Disabilities Act (ADA) is actionable. *Shaver v. Independent Stave
Co.*, 350 F.3d 716 (8^th^ Cir. 2003).

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 t~~ The Supreme Court has ~~recently~~ stated that the "quid
pro quo" and "hostile work environment" labels are not ~~longer~~
controlling for purposes of establishing employer liability. However,
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 (8^th^ 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, as described below, 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). A
constructive discharge is a tangible employment action. *Pennsylvania
State Police v. Suders*, \_\_\_ U.S. \_\_\_, 124 S. Ct. 2342 (2004).

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~~ illegal 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). Both elements may
not always be required. *See McCurdy v. Arkansas State Police*, 375 F.3d
762 (8^th^ Cir. 2004). This Title VII analysis has generally been
applied in other areas. *See, e.g., Knutson v. Brownstein*, 87 F.E.P.C.,
1771, 2001 WL 1661929 (S.D.N.Y. Dec. 27, 2001) (ADEA harassment -
affirmative defense.)

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).~~ *See, e.g., Weyers v. Lear Operations Corp.*, 359 F.3d
1049, 1057 (8^th^ Cir. 2004) (supervisor "must have had the power (not
necessarily exercised) to take tangible employment action against the
victim, such as the authority to hire, fire, promote, or reassign to
significantly different duties"). *See also Joens v. John Morrell &
Co.*, 354 F.3d 938 (8^th^ Cir. 2004).

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~~ illegal 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~~ illegal
harassment by non-supervisors sufficiently severe or pervasive to create
a hostile working environment (Model Instruction 5.43, *infra*).

**5.41 ~~SEXUAL~~ HARASSMENT**

**(By Supervisor With Tangible Employment Action)**

**Essential Elements**

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 unwelcome^4^; 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 \[was a motivating factor\]^8^ \[played a part\]^9^ 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~~\ 10^ \[You may find that plaintiff\'s \[(rejection of)
(failure to submit to)\] such conduct \[was a motivating factor\]
\[played a part\] in defendant\'s (decision)^11^ if it has been proved
by the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\]^12^

**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. If it is based on something else, this sentence must be
modified.

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\. Most, if not all of these cases will arise under Title VII.
"Motivating factor" is the correct phrase to use in all Title VII
harassment cases. *Desert Palace, Inc. v. Costa*, \_\_\_ U.S. \_\_\_,
123 S. Ct. 2148 (2003). The substantive law in other areas should be
consulted concerning the proper term to be used in such cases. The
Committee recommends that the definition of "motivating factor" set
forth in Model Instruction 5.96, *infra*, be given.

9\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

10\. 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.

11\. ~~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.

12\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it.".

**Committee Comments**

This instruction is designed primarily 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]{.underline}

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]{.underline}

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]{.underline}

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]{.underline}

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.

**5.42 ~~SEXUAL~~ HARASSMENT (By Supervisor With No Tangible Employment
Action)**

**Essential Elements**

Your verdict must be for plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ on plaintiff\'s claim of \[sex~~ual~~/gender\]
\[racial\] \[color\] \[national origin\] \[religious\] \[age\]
\[disability\] 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 unwelcome^4^; and

*Third*, such conduct was based on plaintiff\'s \[(sex/gender) (race)
(color) (national origin) (religion) (age) (disability)
~~(gender)~~\]^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.

**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" or other prohibited
category. If the allegedly offensive conduct clearly was directed at the
plaintiff because of his or her gender, age or race, 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).

**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 and other statutes. Some examples of this kind of
conduct include: verbal abuse of a sexual, racial or religious nature;
graphic verbal commentaries about an individual\'s body, sexual prowess,
or sexual deficiencies; or age; 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]{.underline}

In general, in a sex discrimination case, 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 (4^th^
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]{.underline}

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
> nontrivial.

*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)~~. *Compare Henthorn v. Capitol
Communications, Inc.*, No. 03-1018 (8^th^ Cir. Mar. 5, 2004) *and*
*Duncan v. General Motors Co.*, 300 F.3d 928, 933 (8^th^ Cir. 2002)
*with* *Eich v. Board of Regents for Central Missouri State University*,
850 F.3d 752 (8^th^ Cir. 2004).

"\[I\]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*).

These same factors have generally been required in all types of
harassment/hostile environment cases. See the cases cited in Instruction
5.40, *infra*.

[Objective and Subjective Requirement]{.underline}

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]{.underline}

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.

**5.42A AFFIRMATIVE DEFENSE**

**(For Use in Supervisor 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^

**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.

**Committee Comments**

~~Recently, t~~ 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*. Both
elements may not always be required. *See McCurdy v. Arkansas State
Police*, 375 F.3d 762 (8^th^ Cir. 2004). Although no Eighth Circuit
cases so hold, this affirmative defense has been held applicable to
harassment claims made under ADEA, *Lacher v. West*, 147 F. Supp. 2d 538
(N.D. Tex. 2001); claims under the ADA, *Silk v. City of Chicago*, 194
F.3d 788 (7^th^ Cir. 1999) (assumes harassment actionable under the
ADA); under 42 U.S.C. § 1983; *Molnar v. Booth*, 229 F.3d 593 (7^th^
Cir. 2000); and under 42 U.S.C. § 1981, *Jackson v. Quanex Corp.*, 191
F.3d 647 (6^th^ Cir. 1999).

**5.43 ~~SEXUAL~~ HARASSMENT (By Nonsupervisor)**

**~~With No Tangible Employment Action)~~**

**Essential Elements**

Your verdict must be for plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ on plaintiff\'s claim of \[sexual/gender\]
\[racial\] \[color\] \[national origin\] \[religious\] \[age\]
\[disability\] 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 unwelcome^4^; and

*Third*, such conduct was based on plaintiff\'s \[(sex~~) (~~/gender)
(race) (color) (national origin) (religion) (age) (disability)\]^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^

**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" or other prohibited
category. If the allegedly offensive conduct clearly was directed at the
plaintiff because of his or her gender, age or race, 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.

**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 or other 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*).
Although no Eighth Circuit cases clearly decide this issue, the
Committee believes it is likely the court will follow this approach in
all harassment claims, not just in Title VII cases.

**5.44A HARASSMENT - ACTUAL DAMAGES**

**Commentary**

Actual damages for harassment are generally governed by the same statute
which prohibits the discrimination itself. Thus,

> 5.02A should be reviewed for drafting an instruction dealing with
> actual damages in sexual harassment or other harassment cases under
> Title VII;
>
> 5.12A should be reviewed for drafting an instruction dealing with
> actual damages in age harassment cases under the ADEA;
>
> 5.22A should be reviewed for drafting an instruction dealing with
> actual damages in harassment cases under 42 U.S.C. § 1981;
>
> 5.27A should be reviewed for drafting an instruction dealing with
> actual damages in harassment cases under 42 U.S.C. § 1983;
>
> 5.54A should be reviewed for drafting an instruction dealing with
> actual damages in harassment cases under the ADA.

**5.44B HARASSMENT - NOMINAL DAMAGES**

**Commentary**

Nominal damages for harassment are generally governed by the same
statute which prohibits the discrimination itself. Thus,

> 5.02B should be reviewed for drafting an instruction dealing with
> nominal damages in sexual harassment or other harassment cases under
> Title VII;
>
> 5.12B should be reviewed for drafting an instruction dealing with
> nominal damages in age harassment cases under the ADEA;
>
> 5.22B should be reviewed for drafting an instruction dealing with
> nominal damages in harassment cases under 42 U.S.C. § 1981;
>
> 5.27B should be reviewed for drafting an instruction dealing with
> nominal damages in harassment cases under 42 U.S.C. § 1983;
>
> 5.54B should be reviewed for drafting an instruction dealing with
> nominal damages in harassment cases under the ADA.

**5.44C HARASSMENT - PUNITIVE DAMAGES**

**Commentary**

Punitive damages for harassment are generally governed by the same
statute which prohibits the discrimination itself. Thus,

> 5.02C should be reviewed for drafting an instruction dealing with
> punitive damages in sexual harassment or other harassment cases under
> Title VII;
>
> 5.12C should be reviewed for drafting an instruction dealing with
> liquidated damages in age harassment cases under the ADEA;
>
> 5.22C should be reviewed for drafting an instruction dealing with
> punitive damages in harassment cases under 42 U.S.C. § 1981;
>
> 5.27C should be reviewed for drafting an instruction dealing with
> punitive damages in harassment cases under 42 U.S.C. § 1983;
>
> 5.54C should be reviewed for drafting an instruction dealing with
> punitive damages in harassment cases under the ADA.

**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.

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]{.underline}"

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, 708-09 (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).

["Being Regarded as Having Such an Impairment"]{.underline}

To prevail on a claim that the defendant regarded the plaintiff as
disabled, the plaintiff must show that the defendant either believed the
plaintiff had a substantially limiting impairment that the plaintiff did
not have or believed the plaintiff had a substantially limiting
impairment when in fact the impairment was not so limiting. *Conant v.
Hibbing*, 271 F.3d 782, 784 (8^th^ Cir. 2001) (citing *Sutton v. United
Air Lines, Inc.*, 527 U.S. 471, 489 (1999)). It is not enough for
plaintiff to be regarded as "having a limiting but not disabling
restriction." *Id*. at 785. Compare *Brown v. Lester E. Cox Medical
Centers*, 286 F.3d 1040, 1045 (8^th^ Cir. 2002) (plaintiff adduced
sufficient evidence that employer thought her multiple sclerosis made
her unfit for any further employment at hospital) with *Conant*, 271
F.3d at 785 (no evidence that employer perceived applicant as "anything
more than unable to perform this particular job").

["Major Life Activity"]{.underline}

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)). The Supreme Court has held that reproduction
is a major life activity for purposes of the ADA. *Bragdon v. Abbott*,
524 U.S. 635, 638-39, 118 S. Ct. 2196, 2205 (1998). *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).

The Supreme Court, in *Toyota Motor Mfg. v. Williams*, 534 U.S. 184,
\_\_\_, 122 S. Ct. 681, 691 (2002), held that major life activities are
those that are "central to daily life." The court noted that "the manual
tasks unique to any particular job are not necessarily important parts
of most people's lives," whereas inability to perform household chores
and personal hygiene "are among the types of manual tasks of central
importance to people's daily lives." *Id.* at 693.

["Substantially Limiting]{.underline}"

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); *Cooper v. Olin Corp.*, 246 F.3d 1083,
1088-89 (8^th^ Cir. 2001) (depression did not substantially limit
plaintiff's major life activities where she lived alone, handled her own
finances, operated heavy equipment and cared for animals, home and
farmland); *Orr v. Wal-Mart Stores, Inc.*, 297 F.3d 720, 724 (8^th^ Cir.
2002) (pharmacist, whose diabetes was treated with insulin and diet,
failed to demonstrate that his condition substantially limited his major
life activities; court could not consider what could or would occur if
plaintiff stopped treating his diabetes or how it might develop in the
future). *Cf. Otting v. J.C. Penney Co.*, 223 F.3d 704, 710-11 (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 711;
*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]{.underline}

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
documentation. *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 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]{.underline}**

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]{.underline}

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);
*Spangler v. Federal Home Loan Bank of Des Moines*, 278 F.3d 847, 850
(8^th^ Cir. 2002) (employee's absenteeism prevented her from performing
essential functions of job); *Dropinski v. Douglas County*, 298 F.3d
704, 708-09 (8^th^ Cir. 2002) (employee who could not perform several of
the functions of the written job description for an automatic equipment
operator, including tasks entailing bending, twisting, squatting and
lifting over fifty pounds, could not perform essential functions of the
job); *Alexander v. The Northland Inn*, 321 F.3d 723, 727 (8^th^ Cir.
2003) (vacuuming was an essential function of housekeeping supervisor
position; plaintiff, whose physician said she could do no vacuuming, was
not a qualified individual).

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, 797, 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); *Gilmore v. AT&T*, 319 F.3d 1042 (8^th^ Cir. 2003)
(affirming summary judgment for employer where plaintiff failed to
provide any evidence to reconcile her ADA claim with her assertion, in
application for Social Security Disability, that she was unable to
perform essential functions of her job).

"[Reasonable Accommodation]{.underline}"

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). A refusal to provide a reasonable accommodation can amount
to a constructive demotion. *See Fenney v. Dakota, Minnesota & Eastern
Railroad Co.*, 327 F.3d 707, 717-18 (8^th^ Cir. 2003).

Although there is no precise test for determining what constitutes a
reasonable accommodation, 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 accommodations, "\[t\]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.'").

An employer's showing that the requested accommodation would violate the
rules of an existing seniority system is ordinarily enough to show that
the accommodation is not "reasonable" and to entitle the employer to
summary judgment. *US Airways, Inc. v. Barnett*, 122 S. Ct. 1516, 1519,
1524 (2002). The employee may defeat summary judgment by presenting
evidence of special circumstances that make an exception to a seniority
rule "reasonable" in the particular case. *Id.* at 1519, 1525. Examples
of special circumstances are the employer's fairly frequent exercise of
a right to change the seniority system unilaterally and a seniority
system containing exceptions such that one further exception is unlikely
to matter. *Id*. at 1525.

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.3d 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]{.underline}

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 accommodation, 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 Occupational 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]{.underline}**

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]{.underline}

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]{.underline}

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").

The Supreme Court, in *Chevron U.S.A., Inc. v. Echazabal*, 536 U.S. 73,
78, 122 S. Ct. 2045, 2049 (2002), held that the statutory reference to
threats to "other individuals in the workplace" did not preclude the
EEOC from adopting a regulation that, in the Court's words, "carries the
defense one step further," by allowing an employer to adopt a
qualification standard requiring that an individual not pose a direct
threat to the individual's own health or safety, as well as the health
or safety of others. 29 C.F.R. § 1630.15(b)(2). *See also* 29 C.F.R. §
1630.2(r).

**[Procedures and Remedies]{.underline}**

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). See also Desert Palace, Inc. v. Costa, 539 U.S. 90, 97-102,
123 S. Ct. 2148, 2152-53 (2003) (holding that "motivating factor" is the
standard for liability in a Title VII discrimination case). 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. Pedigo, 60 F.3d at 1301; *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); and^3^

Third, defendant (specify action(s) taken with respect to plaintiff)^4^;
and

Fourth, plaintiff could have performed the essential functions^5^ of
(specify job held or position sought)^6^ at the time defendant (specify
action(s) taken with respect to plaintiff) and

Fifth, defendant knew^7^ of plaintiff\'s (specify alleged impairment(s))
and plaintiff\'s (specify alleged impairment(s)) \[was a motivating
factor\]^8^ \[played a part\]^9^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 \[or if defendant is entitled
to a verdict under (describe instruction)\],^10^ then your verdict must
be for defendant. \[You may find that plaintiff\'s (specify alleged
impairment(s)) \[was a motivating factor\] \[played a part\] in
defendant\'s (decision)^11^ if it has been proved by the \[(greater
weight) (preponderance)\] of the evidence that defendant\'s stated
reason(s) for its (decision) \[(is) (are)\] a pretext to hide
discrimination.\] ^12^

**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 5.93.

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\. See Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

10\. 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)).

11\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

12\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

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 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 .
. . .")~~.

**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); and^3^

Second, defendant (specify action(s) taken with respect to plaintiff)^4^
and

Third, plaintiff could have performed the essential functions^5^ 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)) \[was a motivating
factor\]^7^ \[played a part\]^8^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. \[You may find that plaintiff\'s (specify alleged
impairment(s)) \[was a motivating factor\] \[played a part\] in
defendant\'s (decision)^10^ if it has been proved by the \[(greater
weight) (preponderance)\] of the evidence that defendant\'s stated
reason(s) for its (decision) \[(is) (are)\] a pretext to hide
discrimination.\] ^11^

**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\. See Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

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)).

10\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

11\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

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 .
. . .")~~.

**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)?

**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.

**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).

**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); and^3^

Third, defendant knew^4^ of plaintiff's (specify alleged impairment(s));
and

Fourth, plaintiff could have performed the essential functions^5^ 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.

**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)).

**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.'").

An employer's showing that the requested accommodation would violate the
rules of an existing seniority system (*e.g.*, an employee's request to
remain at a lighter duty position in the mailroom, in disregard of more
senior employees' rights to "bid in" to that position) is ordinarily
enough to show that the accommodation is not "reasonable" and to entitle
the employer to summary judgment. *US Airways, Inc. v. Barnett*, 535
U.S. 391, 394, 403-04, 122 S. Ct. 1516, 1519, 1524 (2002). The employee
may defeat summary judgment and create a jury question by presenting
evidence of special circumstances that make an exception to a seniority
rule "reasonable" in the particular case. *Id.* at 1519, 1525. Examples
of special circumstances are the employer's fairly frequent exercise of
a right to change the seniority system unilaterally and a seniority
system containing exceptions such that one further exception is unlikely
to matter. *Id*. at 1525.

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.

**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.

**Notes on Use**

1\. This instruction should be modified, as appropriate, to include only
those factors supported by the evidence.

**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.

**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.

**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.

**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); *Cooper v. Olin
Corp.*, 246 F.3d 1083, 1088-89 (8^th^ Cir. 2001) (depression did not
substantially limit plaintiff's major life activities where she lived
alone, handled her own finances, operated heavy equipment and cared for
animals, home and farmland); *Orr v. Wal-Mart Stores, Inc.*, 297 F.3d
720, 724 (8^th^ Cir. 2002) (pharmacist, whose diabetes was treated with
insulin and diet, failed to demonstrate that his condition substantially
limited his major life activities; court could not consider what could
or would occur if plaintiff stopped treating his diabetes or how it
might develop in the future).

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, 490-94,
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).

A plaintiff who alleges a substantial limitation in the major life
activity of performing manual tasks must show an impairment restricting
his or her ability to perform "the types of manual tasks of central
importance to people's daily lives," such as "household chores, bathing
and brushing one's teeth," rather than simply an inability to perform
the manual tasks unique to a particular job. *Toyota Motor Mfg. v.
Williams*, 584 U.S. 184, 202, 122 S. Ct. 681, 693 (2002). Thus, in
*Toyota Motor Mfg. v. Williams*, an employee with carpal tunnel syndrome
could not establish disability simply by showing that she could not do
repetitive work with hands and arms extended at or above shoulder levels
for extended periods of time, as required by her specialized assembly
line job. *Id.* *See also Fenney v. Dakota, Minnesota & Eastern Railroad
Co.*, 327 F.3d 707, 715 (8^th^ Cir. 2003), holding that *Toyota's*
analysis is not limited to the activity of performing manual tasks, and
that a plaintiff claiming substantial limitation in caring for himself
was required to "demonstrate that his impairment 'prevents or severely
restricts' his ability to care for himself compared with how unimpaired
individuals normally care for themselves in daily life."

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)).

**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^

**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.

**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]{.underline} 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).

**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
> \[(plaintiff) (others) (plaintiff or others)^2\]^ in the workplace;
> and
>
> Second, such direct threat could not be eliminated ^3^ 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 an individualized assessment of the
plaintiff\'s present ability to safely perform the essential functions
of the job.

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.

**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\. Select the word or phrase that best describes defendant's theory.

3\. 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. § 12111 (3). 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).

**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). The Supreme Court has upheld 29 C.F.R. §§ 1630.2(r) and
1630.15(b)(2), which also allow an employer to adopt a qualification
standard requiring that the individual not pose a direct threat to his
or her own safety. *Chevron U.S.A., Inc. v. Echazabal*, 536 U.S. 73, 78,
122 S. Ct. 2045, 2049 (2002).

For a discussion of the "direct threat" defense in the health care
context, *see Bragdon v. Abbott*, 524 U.S. 624, 649-50, 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).

**5.54A 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
benefits^4^ 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^

**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. *See Hartley v. Dillard's, Inc.*, 310 F.3d 1054, 1062
(8^th^ Cir. 2002) (discussing lost benefits in ADEA case); *Gaworski v.
ITT Commercial Finance Corp.*, 17 F.3d 1104, 1111 (8^th^ Cir. 1994)
(allowing insurance replacement costs, lost 401(k) contributions in ADEA
case).

5\. Front pay is an equitable issue for the judge to decide. Salitros v.
Chrysler Corp., 306 F.3d 562, 571 (8^th^ Cir. 2002). 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.

**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.
Salitros v. Chrysler Corp., 306 F.3d 562, 571 (8^th^ Cir. 2002). 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.

**5.54B NOMINAL DAMAGES**

If you find in favor of plaintiff under Instruction \_\_\_^1^ \[and if
you answer \"no\" in response to Instruction \_\_\_,\]^2^ but you do not
find that plaintiff\'s damages have monetary value, then you must return
a verdict for plaintiff in the nominal amount of One Dollar (\$1.00).^3^

**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).

**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.

**5.54C 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 against^3^ 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 \[insert the name(s) of the defendant or manager^4^
> who terminated^5^ plaintiff's employment\] 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 \[and
did not make a good faith effort to comply with the law,\]^6^ 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^

**\* This instruction should not be given without being revised in light
of *State Farm Mutual Auto Ins. Co. v. Campbell*, 538 U.S. 408, 123 S.
Ct. 1513 (2003); *BMW of North America, Inc. v. Gore*, 517 U.S. 559, 116
S. Ct. 1589 (1996); and *Williams v. ConAgra Poultry Co.*, 378 F.3d 790
(8^th^ Cir. 2004). The following additional language is recommended if
supported by the evidence:**

> **If you decide to award punitive damages, you should consider the
> following in determining the amount of the punitive damages award: the
> nature of the defendant's conduct under the totality of the
> circumstances; the frequency of the defendant's conduct; how
> reprehensible the defendant's conduct was toward the plaintiff; what
> amount of punitive damages, in addition to the compensatory damages
> already awarded, is needed, considering the defendant's financial
> condition, to punish the defendant for its wrongful conduct toward the
> plaintiff and to deter the defendant and others from similar wrongful
> conduct in the future; the amount of fines and civil penalties
> applicable to similar conduct; and whether the amount of punitive
> damages bears a reasonable relationship to the compensatory damages
> awarded.**

**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.

**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).

**5.55 \"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?

**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.

**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.

**5.56 BUSINESS JUDGMENT INSTRUCTION**

See Model Instruction 5.94.

**5.60 RETALIATION UNDER EMPLOYMENT DISCRIMINATION STATUTES**

**Introductory Comment**

The following instructions are designed for use in cases where the
plaintiff alleges that he or she was discharged or otherwise retaliated
against because he/she opposed an unlawful employment practice, or
"participated in any manner" in a proceeding under one of the
discrimination statutes. Title VII, the Age Discrimination in Employment
Act, The Americans With Disabilities Act, the Family and Medical Leave
Act, and other federal employment laws expressly prohibit retaliation
against employees who engage in "protected activity." [See]{.underline},
[e.g.]{.underline}, 42 U.S.C. § 2000e-3 (Title VII); 29 U.S.C. § 623(d)
(ADEA); 42 U.S.C. § 1223 (ADA); 29 U.S.C. § 2615 (FMLA). In addition, 42
U.S.C. § 1981 has been construed to prohibit retaliation against
employees who engage in protected opposition against racial
discrimination. *[Kim v. Nash Finch Co.]{.underline}*, 123 F.3d 1046,
1059 (8^th^ Cir. 1997).

This instruction is designed to submit the issue of liability in a
retaliation case under Title VII and other federal discrimination laws.
Retaliation claims require proof of three essential elements: (1)
"protected activity" by the plaintiff; (2) subsequent "adverse
employment action" by the employer; and (3) a causal connection between
the plaintiff's protected activity and the adverse employment action.
*[Sowell v. Alumina Ceramics, Inc.]{.underline}*, 251 F.3d 478 (8^th^
Cir. 2001); *[Borgen v. Minnesota]{.underline}*, 236 F.3d 399 (8^th^
Cir. 2000); *[Cross v. Cleaver]{.underline}*, 142 F.3d 1059 (8^th^ Cir.
1998); *[Kim v. Nash Finch Co.]{.underline}*, 123 F.3d 1046, 1060 (8^th^
Cir. 1997).

**[Protected Activity: Opposition]{.underline}**

A retaliation plaintiff does not need to prove that the underlying
employment practice by the employer was, in fact, unlawful; instead,
employees are protected from retaliation if they oppose an employment
practice which they reasonably and in good faith believe to be unlawful.
[See]{.underline} *[Clark County School District v.
Breeden]{.underline}*, 532 U.S. 268 ( 2001); *[Wentz v. Maryland Cas.
Co.]{.underline}*, 869 F.2d 1153, 1155 (8^th^ Cir. 1989) (ADEA case:
"Contrary to the district court's ruling . . . to prove that he engaged
in protected activity, Wentz need not establish that the conduct he
opposed was, in fact, discriminatory.").

In order to be "protected activity," the employee's complaint must
relate to unlawful employment practices; opposition to alleged
discrimination against students or customers is not protected because it
does not relate to an unlawful employment practice. *[Artis v. Francis
Howell]{.underline}*, 161 F.3d 1178 (8^th^ Cir. 1998). As a general
proposition, however, the threshold for engaging in "protected activity"
is fairly low: the touchstone is simply whether the employee had a
reasonable, good faith belief that the employer had committed an
unlawful employment practice. *[Stuart v. General Motors
Corp.]{.underline}*, 217 F.3d 621, 634 (8^th^ Cir. 2000); *[Buettner v.
Eastern Arch Coal Sales Co.]{.underline}*, 216 F.3d 707, 714 (8^th^ Cir.
2000); *[Wentz]{.underline}*, *[supra]{.underline}*, 869 F.2d at 1155.

**[Protected Activity: Participation]{.underline}**

In addition to prohibiting retaliation based on an employee's
"opposition" to what he/she reasonably believes to be an unlawful
employment practice, Title VII and other federal employment laws protect
employees from retaliation based on their "participation" in proceedings
under these statutes. [E.g.]{.underline}, 42 U.S.C. § 2000e-3 (Title
VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203 (ADA). *[Cross v.
Cleaver]{.underline}*, *[supra]{.underline}*, 142 F.3d at 1071.
Protected "participation" appears to include filing a charge with the
EEOC (or a parallel state or local agency), filing a lawsuit under one
of the federal employment statutes, or serving as a witness in an EEOC
case or discrimination lawsuit. Unlike "opposition" cases, employees who
"participate" in these proceedings appear to have absolute protection
from retaliation, irrespective of whether the underlying claim was made
reasonably and in good faith. *[Benson v. Little Rock Hilton
Inn]{.underline}*, 742 F.2d 414 (8^th^ Cir. 1984).

**[Adverse Employment Action]{.underline}**

"Typically, it is obvious whether an employer took adverse employment
action when, for example, the employee has been terminated or
discharged. However, retaliatory conduct ~~'~~may consist of 'action
less severe than outright discharge.'" *[Kim v. Nash Finch
Co.]{.underline}*, 123 F.3d at 1060. By way of example, the
*[Kim]{.underline}* decision held that conduct which included the
reduction of the plaintiff's "duties, disciplinary action and negative
personnel reports, as well as required remedial training, constituted
adverse employment action." *[Id.]{.underline}*; *[see
also]{.underline}* *[Ross v. Douglas County, Nebraska]{.underline}*, 234
F.3d 391, 395 (8^th^ Cir. 2000) (even though plaintiff did not suffer
any change in benefits or salary, plaintiff's reassignment to the
"bubble," a position Douglas County routinely rotated employees through
because of stressful nature of the duties, was sufficiently adverse);
*[Davis v. City of Sioux City]{.underline}*, 115 F.3d 1365, 1369
(transfer to a less desirable property officer position was actionable,
despite defendant's argument that plaintiff received a salary increase).
*[Compare]{.underline}*, *[LePique v. Hove]{.underline}*, 217 F.3d 1012
(8^th^ Cir. 2000) (holding that failure to transfer plaintiff to a job
that did not entail a change in salary, benefits or other aspects of
employment is not sufficient "adverse" action).

**[Causal Connection]{.underline}**

In most retaliation cases which proceed to trial, the focal issue is
whether there was a causal connection between the plaintiff's protected
activity and the employer's adverse employment action. It has been held
that timing [alone]{.underline} may be insufficient to establish
causation. Compare *[Bradley v. Widnall]{.underline}*, 232 F.3d 626
(8^th^ Cir. 2000); *[Scroggins v. University of Minnesota]{.underline}*,
221 F.3d 1042 (8^th^ Cir. 2000), with *[Bassett v. City of
Minneapolis]{.underline}*, 211 F.3d 1097, 1105 (8^th^ Cir. 2000); [see
also]{.underline} *[Smith v. St. Louis University]{.underline}*, 109
F.3d 1261, 1266 (8^th^ Cir. 1997) ("Passage of time between events does
not by itself foreclose a claim of retaliation"). The proximity between
the plaintiff's protected activity and the employer's adverse employment
action often is a strong circumstantial factor. *[Smith]{.underline}*,
109 F.3d at 1266; *[Bassett]{.underline}*, 211 F.3d at 1105. In *Clark
County School Dist. v. Breeden*, 532 U.S. 268, 273 (2001), the Supreme
Court noted: "The cases that accept mere temporal proximity between an
employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of casualty to establish a prima facie
case uniformly hold that the temporal proximity must be 'very close.""

**[Standard for Causation]{.underline}**

Under Title VII, as amended by the Civil Rights Act of 1991, the
standard for causation to establish liability for *discrimination* is
whether discriminatory intent was a "motivating factor" in the
employer's decision. 42 U.S.C. § 2000e-2(m) (pretext cases); Desert
Palace, Inc. v. Costa, \_\_\_ U.S. \_\_\_, 2003 WL 21310219 (U.S. June
9, 2003); [see]{.underline} [also]{.underline} *[Pedigo v. P.A.M.
Transp. Inc.]{.underline}*, 60 F.3d 1300 (8^th^ Cir. 1995) (applying
"motivating factor" causation standard in ADA case). However, as the
court noted in *[Norbeck v. Basin Elec. Power Co-op]{.underline}*, 215
F.3d 848, 852 (8^th^ Cir. 2000) (a case under the False Claims Act), the
Civil Rights Act of 1991 established a "motivating factor" standard for
liability in the Title VII discrimination cases, but it did not modify
the then-existing standard for liability in Title VII retaliation cases.
Accordingly, even in a Title VII retaliation case, the standard for
liability may require that retaliation was a "determining factor" in the
employer's challenged decision. Nevertheless, as suggested by the Eighth
Circuit's opinion in *[Warren v. Prejean]{.underline}*, 301 F.3d 893,
900-01 (8^th^ Cir. 2002), it appears that the "motivating factor/same
decision" format applies in Title VII retaliation cases. With respect to
retaliation cases under other statutes such as the ADEA, the Committee
believes that the "determining factor" standard should be used unless
and until the case law indicates otherwise or, in the alternative, the
district court may use the special interrogatories at 5.92 to obtain
findings to both standards. Neither the Supreme Court nor the Eighth
Circuit has ruled on this issue as of the publication date for these
instructions.

**[Remedies and Verdict Forms]{.underline}**

Lawyers and judges should utilize the damages instructions and verdict
forms which apply to the type of discrimination in question. In other
words, in a Title VII retaliation case (and subject to the causation
standard issue discussed above), the court should use Model Instruction
5.01A [et]{.underline} [seq]{.underline}.; in an ADEA retaliation case,
the court should use Model Instructions 5.11A [et]{.underline}
[seq]{.underline}.; and so on.

The following instructions are patterned on a situation where the
plaintiff claims retaliation based on his or her opposition to alleged
race discrimination.

**5.61 RETALIATION FOR PARTICIPATION IN**

**PROCEEDINGS UNDER EMPLOYMENT STATUTES**

Your verdict must be for the plaintiff and against the defendant on the
plaintiff's retaliation claim if all the following elements have been
proved by the \[(greater weight) or (preponderance)\]^1^ of the
evidence:

*First*, plaintiff \[filed an EEOC charge alleging (race
discrimination)\]^2^ and

*Second*, defendant (discharged)^3^ plaintiff; and

*Third*, plaintiff's \[filing of an EEOC charge\] \[was a\[(motivating)
factor\]^4^ \[played a part\]^5^ in defendant's decision to (discharge)
plaintiff.

If any of the above elements has not been proved by the \[(greater
weight) or (preponderance)\] of the evidence, your verdict must be for
the defendant and you need not proceed further in considering this
claim. In addition, your verdict must be for the defendant if it has
been proved by the \[(greater weight) or (preponderance)\] of the
evidence that defendant would have (discharged) plaintiff even if
plaintiff had not (filed an EEOC charge). \[You may find that
plaintiff\'s \[filing of an EEOC charge\] \[was a motivating factor\]
\[played a part\] in defendant\'s (decision)^6^ if it has been proved by
the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\] ^7^

**Notes on Use**

1\. Select the bracketed language which corresponds to the Burden of
Proof instruction.

2\. Select the appropriate terms depending upon whether plaintiff's
underlying complaint involved discrimination based on race, gender, age,
disability, etc.

3\. Select the appropriate term depending upon whether the alleged
retaliatory action involved discharge, demotion, failure to promote,
etc.

4\. This instruction assumes retaliation under Title VII~~I~~ (race,
creed, color, sex, etc.). If retaliation is based on something else,
*see* Introductory Comments in Section 5.60.

5\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

6\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

7\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**5.62 RETALIATION FOR OPPOSITION TO HARASSMENT OR DISCRIMINATION**

Your verdict must be for the plaintiff and against the defendant on the
plaintiff's retaliation claim if all the following elements have been
proved by the \[(greater weight) or (preponderance)\]^1^ of the
evidence:

*First*, plaintiff complained to defendant that \[(he/she) or (name of
third party)\] ^2^ was being (harassed/discriminated against) 3 on the
basis of (race)^4^; and

\[*Second*, plaintiff reasonably believed that \[(he) (she) (name of
third party)\] was being (harassed/discriminated against) on the basis
of (race)\];^5^ and

\[*Second, Third*\], defendant (discharged)^6^ plaintiff; and

\[*Third, Fourth*\], plaintiff's complaint of (racial harassment) (race
discrimination) \[was a (motivating) factor\]^7^ \[played a part\]^8^ in
defendant's decision to (discharge) plaintiff.

If any of the above elements has not been proved by the \[(greater
weight) or (preponderance)\] of the evidence, your verdict must be for
the defendant and you need not proceed further in considering this
claim. In addition, your verdict must be for the defendant if it has
been proved by the \[(greater weight) or (preponderance)\] of the
evidence that defendant would have (discharged) plaintiff even if
plaintiff had not (complained about race harassment/discrimination).
\[You may find that plaintiff\'s \[filing of an EEOC charge\] \[was a
motivating factor\] \[played a part\] in defendant\'s (decision)^9^ if
it has been proved by the \[(greater weight) (preponderance)\] of the
evidence that defendant\'s stated reason(s) for its (decision) \[(is)
(are)\] a pretext to hide discrimination.\] ^10^

**Notes on Use**

1\. Select the bracketed language which corresponds to the Burden of
Proof instruction.

2\. Select the appropriate term depending upon whether the plaintiff
complained about discrimination toward himself/herself or toward a third
party.

3\. Select the appropriate term depending on whether plaintiff's
underlying complaint involved harassment or allegedly discriminatory
employment decision whether the underlying complaint was based on race,
gender, age, disability, etc.

4\. Select the appropriate term depending upon whether the underlying
complaint was based on race, gender, age, disability, etc.

5\. Plaintiff does not need to prove that the underlying employment
practice by the employer was, in fact, unlawful. Instead, employees are
protected if they opposed an employment practice which they reasonably
and in good faith believe to be unlawful. Only submit this paragraph if
there is evidence to support a factual dispute as to whether plaintiff
was complaining of or opposing discrimination in good faith. (See
Committee Comments, below).

6\. Select the appropriate term depending upon whether the allegedly
retaliatory action involved discharge, demotion, failure to promote,
etc.

7\. *See* Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

8\. This instruction assumes retaliation under Title VIII (race, creed,
color, sex, etc.). If retaliation is based on something else, *see*
Introductory Comments in Section 5.60.

9\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

10\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**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^ \[was a
motivating factor\]^6^ \[played a part\]^7^in defendant\'s decision \[to
discharge\]^8^ plaintiff\[; and

*Third*, defendant was acting under color of law\].^9^

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).^10^ \[You may find that plaintiff\'s \[~~filing of an EEOC
charge~~ letter to a local newspaper\] \[was a motivating factor\]
\[played a part\] in defendant\'s (decision)^11^ if it has been proved
by the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] not the
real reason, but \[is/are\] a pretext to hide discrimination.\] ^12^

**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* Cook v.
Tadros, 312 F.3d 386, 388 (8^th^ Cir. 2002); *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. The use of special interrogatories on these model instructions
was approved in *Cook v. Tadros*, 312 F.3d 386, 388 (8^th^ Cir. 2002).
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\" should be
defined. See Instruction 5.96, *infra*.

7\. See Model Instruction 5.96, which defines "motivating factor" in
terms of whether the characteristic "played a part or a role" in the
defendant's decision. The phrase "motivating factor" need not be defined
if the definition itself is used in the element instruction.

8\. 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.

9\. 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.

10\. 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.

11\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

12\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

*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); *see also 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. Mayor of 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. The use of these special interrogatories was
approved in *Cook v. Tadros*, 312 F.3d 386, 388 (8^th^ Cir. 2002).
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, 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). 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.

**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^

**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.

**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* and the use of special interrogatories
based on these model instructions was approved in *Cook v. Tadros*, 312
F.3d 386, 388 (8^th^ Cir. 2002). *See generally* Committee Comments to
Model Instruction 5.71, *supra*.

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.

**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^

**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 supra* Model Instructions 5.02A 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.

**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 (8^th^ Cir. 1999). *See MacDissi v.
Valmont Indus.*, 856 F.2d 1054, 1060 (8^th^ Cir. 1988); *Newhouse v.
McCormick & Co.*, 110 F.3d 635, 641 (8^th^ 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 (8^th^
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.

**5.73 42 U.S.C. § 1983 - FIRST AMENDMENT RETALIATION - NOMINAL
DAMAGES**

If you find in favor of plaintiff under Instruction \_\_\_\_,^1^ but you
do not find that plaintiff\'s damages have monetary value, then you must
return a verdict for plaintiff in the nominal amount of One Dollar
(\$1.00).^2^

**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).

**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.

**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 defendant^1^ 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^

**\* This instruction should not be given without being revised in light
of *State Farm Mutual Auto Ins. Co. v. Campbell*, 538 U.S. 408, 123 S.
Ct. 1513 (2003); *BMW of North America, Inc. v. Gore*, 517 U.S. 559, 116
S. Ct. 1589 (1996); and *Williams v. ConAgra Poultry Co.*, 378 F.3d 790
(8^th^ Cir. 2004). The following additional language is recommended if
supported by the evidence:**

> **If you decide to award punitive damages, you should consider the
> following in determining the amount of the punitive damages award: the
> nature of the defendant's conduct under the totality of the
> circumstances; the frequency of the defendant's conduct; how
> reprehensible the defendant's conduct was toward the plaintiff; what
> amount of punitive damages, in addition to the compensatory damages
> already awarded, is needed, considering the defendant's financial
> condition, to punish the defendant for its wrongful conduct toward the
> plaintiff and to deter the defendant and others from similar wrongful
> conduct in the future; the amount of fines and civil penalties
> applicable to similar conduct; and whether the amount of punitive
> damages bears a reasonable relationship to the compensatory damages
> awarded.**

**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 supra* 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.

**Committee Comments**

Punitive damages are recoverable under 42 U.S.C. § 1983. *Smith v.
Wade*, 461 U.S. 30 (1983). ~~The Committee is considering whether this
instruction should be revised in light of *State Farm Mutual Auto Ins.
Co. v. Campbell*, 538 U.S. 408, 123 S. Ct. 1513 (2003), and *BMW of
North America, Inc. v. Gore*, 517 U.S. 559, 116 S. Ct. 1589 (1996).~~

**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:

**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\. 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:

**Notes on Use**

1\. The number or title of the special interrogatory instruction should
be inserted here. *See supra* 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 supra* Model Instruction 5.71A.

**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, *supra*.

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.

**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); 29 C.F.R. §
825.104(d); *Beal v. Rubbermaid Commercial Products, Inc*., 972 F. Supp.
1216, 1222 n.13 (S.D. Iowa 1997), *aff'd,* 149 F.3d 1186 (8^th^ Cir.
1998). The Eighth Circuit has also held that public officials in their
individual capacities are "employers" under the FMLA. *Darby v. Bratch*,
287 F.3d 673, 680-81 (8^th^ Cir. 2002). In addition, the Supreme Court
has held that states are employers under the FMLA. [Nevada Dep't of
Human Resources v. Hibbs]{.underline}, 538 U.S. 721 (2003).

*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. § 825.202(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. § 825.113(c)(3).

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).

"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.*

*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 (8^th^ 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]{.underline} 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 (8^th^ 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).

Note that under the FMLA, a demonstration that an employee is unable to
work in his or her current job due to a serious health condition is
enough to show the employee is incapacitated even if that job is the
only one the employee is unable to perform. *Stekloff*, 218 F.3d at 861.
This standard is less stringent than under the ADA in which a plaintiff
must show that he or she is unable to work in a broad range of jobs to
show that he or she is unable to perform the major life activity of
working. *Id.*

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. § 825.114(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 (8^th^ Cir.), *aff'd*, 205 F.3d 370 (8^th^ 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).

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*,
149 F.3d 1186 (8^th^ 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 (8^th^ 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.*

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).

[The Relationship Between the Fair Labor Standards Act
(FLSA),]{.underline}

[Civil Rights Legislation, and the FMLA]{.underline}

Although earlier cases suggested the FMLA was more akin to the FLSA than
to Civil Rights legislation, [see, e.g.., Morris v. VCW,
Inc.]{.underline}, 1996 WL 740544 (W.D. Mo. 1996), the Supreme Court has
left no doubt that the FMLA is an anti-discrimination statute. [Nevada
Dep't of Human Resources v. Hibbs]{.underline}, 538 U.S. 721, \_\_\_,
2003 WL 21210426, \*4 (U.S. May 27, 2003) ("the FMLA aims to protect the
right to be free from gender-based discrimination in the workplace and
such a statutory scheme is subject to heightened scrutiny"). However,
the FLSA can provide guidance for the interpretation of FMLA terms such
as using FLSA "hours of service" to calculate FMLA eligibility for leave
and determination of whether a supervisor is an "employer" for FMLA
purposes. [See Morris]{.underline} at \*2 and cases cited therein.

Under the FLSA, the phrases "motivating factor" or "immediate cause" are
used to determine whether an employer violated the anti-retaliation
provision of the FLSA. These phrases have been interpreted to be the
equivalent of a "but for" analysis, that is, discharge is unlawful only
if it would not have occurred but for the retaliatory intent, even if it
was not the sole reason for the employers' action. [McKenzie v.
Renberg's, Inc.]{.underline}, 94 F.3d 1478 (10th Cir. 1996), [cert.
denied]{.underline}, 520 U.S. 1186 (1997); [Reich v. Davis]{.underline},
50 F.3d 962, 965 (11th Cir. 1995)." [See E.E.O.C. v. HBE
Corp.]{.underline}, 135 F.3d 543, 555 n.3 (8^th^ Cir. 1998) (plaintiff
must prove retaliation was the determining factor, not that it was the
only factor).

However, in retaliation cases under the FMLA, courts frequently borrow
the framework and method of analysis in civil rights cases. [See,
e.g.,]{.underline} [Spurlock v. Peter Bilt Motors Co.,
Inc.]{.underline}, 2003 WL 463491 (6th Cir. (Tenn.)); [Graham v. State
Farm Mut. Ins. Co.]{.underline}, 193 F.3d 1274, 1282-83 (11th Cir.
1999); [Chaffin v. John H. Carter Co., Inc.]{.underline}, 179 F.3d 316,
319 (5th Cir. 1999); [King v. Preferred Technical Group]{.underline},
166 F.3d 887, 891 (7th Cir. 1999); [Hodgens v. Dynamics]{.underline},
144 F.3d 151 (1st Cir. 1998); [Lottinger v. Shell Co.]{.underline}, 143
F. Supp. 2d 743 (S.D. Tx. 2001); [Maxwell v. GTE Wireless Service
Corp.]{.underline}, 121 F. Supp. 2d 649, 658 (N.D. Ohio 2000); [Bond v.
Sterling, Inc.]{.underline}, 77 F. Supp. 2d 300, 302 (N.D.N.Y. 1999);
[Belgrave v. City of New York]{.underline}, 1999 WL 692034 at \*42 n.38,
aff'd, 216 F.3d 1071 (2000); [Stubl v. T.A. Systems]{.underline}, 948 F.
Supp. 1075, 1091 (E.D. Mich. 1997); [Peters v. Community Action CTE,
Inc. of Chem. Chambers-Tallapoosa-Coosa]{.underline}, 977 F. Supp. 1428
(M.D. Alabama 1997). Those cases generally used "motivating factor"
where there was direct evidence of discrimination and "determining
factor" when there was no direct evidence of discrimination.

A review of the case law suggests that courts look to the FLSA and cases
decided thereunder for the definition and scope of "employment-type"
terms and concepts in the FMLA. However, the method of analysis for
violations of the anti-discrimination provisions of the FMLA suggests
looking to civil rights cases. [See Hibbs]{.underline}, 538 U.S. at
\_\_\_, 2003 WL 21210426 at \*4. The Eighth Circuit has not clearly
resolved this issue. It is also not resolved at this time whether
[Desert Palace v. Costa's]{.underline} requirement of a motivating
factor test for all Title VII cases will carry over to other civil
rights cases, including the FMLA. Nothing in the FMLA modifies or
affects any federal or state law prohibiting discrimination on the basis
of race, religion, color, national origin, sex, age or disability (e.g.,
Title VII, the Pregnancy Discrimination Act, the Rehabilitation Act, the
ADA, etc.) 29 U.S.C. § 2651(a)(b); 29 C.F.R. § 825.702(a).

**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:

\[*First*, plaintiff was eligible for leave^3^; and\]

First, plaintiff had a serious health condition (as defined in
Instruction \_\_\_\_\_\_)^4^; and

*Second*, plaintiff was \[absent from work\]^5^ because of that serious
health condition; and

\[*Third*, plaintiff gave defendant appropriate notice ~~(as defined in
Instruction \_\_\_\_\_)^6^~~ of \[his/her\] need to be \[absent from
work\] ^5^;\] ^~~7~~\ 6^ and

*Fourth*, defendant \[describe employment action taken, e.g.,
discharged\]^~~8~~\ 7^ plaintiff; and

*Fifth*, plaintiff's \[absence from work\]^5^ was a
determining^~~9~~\ 8^ factor in defendant's decision to \[describe
employment action taken, e.g., discharge\]^~~8~~\ 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, \[or if defendant is entitled to a
verdict under (Instruction \_\_\_\_\_\_\_)\] ^~~10~~\ 9^.

\[You may find that plaintiff\'s \[absence from work\] was a determining
factor in defendant\'s (decision)^~~11~~\ 10^ if it has been proved by
the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\] ^~~12~~\ 11^

**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 whose 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~~ 6. This element is bracketed because "appropriate notice" may not
be a fact issue. If it is a fact issue, this element should be
incorporated and the remaining elements renumbered accordingly.

~~8~~ 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. Insert the language that corresponds to the facts of the case.

~~9~~ 8. See the Introduction for a discussion of whether the term
"determining" factor or "motivating" factor should be used.

~~10~~ 9. This language should be used when the defendant is submitting
an affirmative defense.

~~11~~ 10. ~~Consistent with the various essential elements instructions
in this section, t~~ 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.

~~12~~ 11. This sentence may be added, if appropriate. *See* Model
Instruction 5.95 and *Moore v. Robertson Fire Protection Dist.*, 249
F.3d 786, 790 n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express
any view as to whether it ever would be reversible error for a trial
court to fail to give a pretext instruction, though we tend to doubt
it."

**Committee Comments**

The 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 Dist. of Kansas City, Missouri*, 941 F.
Supp. 886, 892 (W.D. Mo. 1996) (quoting *Day v. Excel Corp.*, 1996 WL
294341 (D. Kan. 1996)).

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**5.81B FMLA -- WRONGFUL TERMINATION -- ~~ESSENTIAL~~ ELEMENTS**

**(Employee Needed to Care for Spouse, Parent, Son**

**or Daughter with a Serious Health Condition**^1^)

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:

\[*First*, plaintiff was eligible for leave^4^; and\]

First, plaintiff's \[identify family member\] had a serious health
condition (as defined in Instruction \_\_\_\_\_\_)^5^; and

*Second*, plaintiff was needed to care for ~~(as defined in Instruction
\_\_\_\_\_\_)^6^~~ \[identify family member\]; and

*Third*, plaintiff was \[absent from work\]^~~7~~\ 6^ to care for
\[identify family member\]; and

\[*Fourth*, plaintiff gave defendant appropriate notice ~~(as defined in
Instruction \_\_\_\_\_)^8^~~ of \[his/her\] need to be \[absent from
work\]^~~7~~\ 6^;\] ^~~9~~\ 7^ and

*Fifth*, defendant \[describe employment action taken, e.g.,
discharged\]^~~10~~\ 8^ plaintiff; and

*Sixth*, plaintiff's \[absence from work\]^~~7~~\ 6^ was a
determining^~~11~~\ 9^ factor in defendant's decision to \[describe
employment action taken, e.g., discharge\]^~~10~~\ 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, \[or if defendant is entitled to a
verdict under (Instruction \_\_\_\_\_)\]^~~12~~\ 10^.

\[You may find that plaintiff\'s \[absence from work\] was a determining
factor in defendant\'s (decision)^~~13~~\ 11^ if it has been proved by
the \[(greater weight) (preponderance)\] of the evidence that
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\] ^~~14~~\ 12^

**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~~ 6. 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 whose 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~~ 7. This element is bracketed because "appropriate notice" may not
be a fact issue. If it is a fact issue, this element should be
incorporated and the remaining elements renumbered accordingly.

~~10~~ 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. Insert the language that corresponds to the facts of the case.

~~11~~ 9. See the Introduction for a discussion of whether the term
"determining" factor or "motivating" factor should be used.

~~12~~ 10. This language should be used when the defendant is submitting
an affirmative defense.

~~13~~ 11. ~~Consistent with the various essential elements instructions
in this section, t~~ 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.

~~14~~ 12. This sentence may be added, if appropriate. *See* Model
Instruction 5.95 and *Moore v. Robertson Fire Protection Dist.*, 249
F.3d 786, 790 n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express
any view as to whether it ever would be reversible error for a trial
court to fail to give a pretext instruction, though we tend to doubt
it."

**Committee Comments**

The 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 Dist. of Kansas City, Missouri*, 941 F. Supp. 886, 892 (W.D. Mo.
1996) (quoting *Day v. Excel Corp.*, 1996 WL 294341 (D. Kan. 1996)).

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**5.81C FMLA -- WRONGFUL TERMINATION -- ~~ESSENTIAL~~ ELEMENTS**

**(Employee Leave for Birth, Adoption or Foster Care^1^)**

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:

\[*First*, plaintiff was eligible for leave^4^; and\]

*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^; and

\[*Second*, plaintiff gave defendant appropriate notice (as defined in
Instruction \_\_\_\_\_)^7^ of \[his/her\] need to be \[absent from
work\]^5^;\] ^8^ and

*Third*, defendant \[describe employment action taken, e.g.,
discharged\]^9^ plaintiff; and

*Fourth*, plaintiff's \[absence from work\]^5^ was a determining^10^
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, \[or if defendant is entitled to a
verdict under (Instruction \_\_\_\_)\]^11^.

\[You may find that plaintiff\'s \[absence from work\] was a determining
factor in defendant\'s (decision)^12^ if it has been proved by the
\[(greater weight) (preponderance)\] of the evidence that defendant\'s
stated reason(s) for its (decision) \[(is) (are)\] a pretext to hide
discrimination.\] ^13^

**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; *Kelley Co. v. Marquardt*, 172 Wis. 2d
234, 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 whose 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\. This element is bracketed because "appropriate notice" may not be a
fact issue. If it is a fact issue, this element should be incorporated
and the remaining elements renumbered accordingly.

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. Insert
the language that corresponds to the facts of the case.

10\. See the Introduction for a discussion of whether the term
"determining" factor or "motivating" factor should be used.

11\. This language should be used when the defendant is submitting an
affirmative defense.

12\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

13\. This sentence may be added, if appropriate. *See* Model Instruction
5.95 and *Moore v. Robertson Fire Protection Dist.*, 249 F.3d 786, 790
n.9 (8^th^ Cir. 2001), which states "\[w\]e do not express any view as
to whether it ever would be reversible error for a trial court to fail
to give a pretext instruction, though we tend to doubt it."

**Committee Comments**

The 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); 29 C.F.R. § 825.112(a)(1), (2). 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 Dist. of Kansas City, Missouri*, 941 F. Supp. 886,
892 (W.D. Mo. 1996) (quoting *Day v. Excel Corp.*, 1996 WL 294341 (D.
Kan. 1996)).

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**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:

\[*First*, plaintiff was eligible for leave^3^; and\]

First, plaintiff had a serious health condition (as defined in
Instruction \_\_\_\_\_\_)^4^; and

*Second*, plaintiff was absent from work because of that serious health
condition; and

*Third*, plaintiff received treatment and was able to return to work and
perform the functions of \[his/her\] job at the expiration of the leave
period; ^5^ and

*Fourth*, defendant refused to reinstate plaintiff to the same or an
equivalent position (as defined in 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 \[(the greater weight) or (a
preponderance)\]^2^ of the evidence, \[or if defendant is entitled to a
verdict under (Instruction \_\_\_\_)\]^7^.

**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\. Define the "leave period" or use the date of the expiration of the
leave period.

6\. Insert the number of the Instruction defining "equivalent position."

7\. This language should be used when the defendant is submitting an
affirmative defense.

**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*., 21 F. Supp. 2d 1017
(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.

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**5.81E FMLA -- FAILURE TO REINSTATE \-- ~~ESSENTIAL~~ ELEMENTS**

**(Employee Needed to Care for a Spouse, Son or Daughter**

**with a Serious Health Condition^1^)**

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:

\[*First*, plaintiff was eligible for leave^4^; and\]

First, plaintiff's \[identify family member\] had a serious health
condition (as defined in Instruction \_\_\_\_\_\_)^5^;and

*Second*, plaintiff was needed to care for (as defined in Instruction
\_\_\_\_\_)^6^ \[his/her\] \[identify family member\] because of that
serious health condition; and

*Third*, plaintiff was absent from work because \[he/she\] was caring
for \[his/her\] \[identify family member\] with the serious health
condition; and

*Fourth*, plaintiff was able to return to \[his/her\] job at the
expiration of the leave period; and

*Fifth*, 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^.

**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.

**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*., 21 F. Supp. 2d 1017 (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.

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**5.81F FMLA -- FAILURE TO REINSTATE \-- ~~ESSENTIAL~~ ELEMENTS**

**(Employee Leave for Birth, Adoption or Foster Care**^1^)

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:

\[*First*, plaintiff was eligible for leave^4^; and\]

*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^; and

*Second*, plaintiff was able to return to \[his/her\] job at the
expiration of the leave period; ^6^ and

*Third*, 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^.

**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; *Kelley Co. v. Marquardt*, 172 Wis. 2d
234, 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\. Define the "leave period" or use the actual date of the expiration
> of the leave period.

7\. Insert the number of the Instruction defining "equivalent position."

8\. This language should be used when the defendant is submitting an
affirmative defense.

**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*., 21 F. Supp. 2d 1017 (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.

If plaintiff is alleging defendant's stated reason for its employment
action is a pretext to hide discrimination, Model Instruction 5.95 may
be used.

**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^.\]^5^

**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 whose leave request was
denied by the employer. In such a situation, insert language that
corresponds to the facts of the case.

5\. The case law is unclear whether the FMLA is to be treated like a
Title VII case or like other civil rights cases. In a Title VII case,
there is special statutory language that a decision for plaintiff on the
issue of liability, but in favor of defendant on the "same decision"
question, results in a judgment for plaintiff but no actual damages.
*See* 42 U.S.C. § 2000e-5(g)(2)(B). Plaintiff's remedies are limited to
a declaratory judgment, injunction not including reinstatement or back
pay and attorney fees and costs. If the FMLA is treated like other civil
rights cases, defendant prevails if the judgment is in favor of
defendant on the "same decision" question.

**Committee Comments**

Until there is case law to the contrary, it is the Committee's position
that a defendant may avoid liability in an FMLA case 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.

**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. \[The phrase also
includes providing psychological comfort and reassurance which would be
beneficial to a family member with a serious health condition (as
defined in Instruction \_\_\_\_\_\_\_ )^1^ who is receiving inpatient or
home care. The phrase also includes situations where the employee may be
needed to fill in for others who are caring for the family member, or to
make arrangements for changes in care, such as transfer to a nursing
home.^2^\]

**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). See 29 C.F.R. § 825.116(a), (b).

**Committee Comments**

This definition is taken from the FMLA regulations. 29 C.F.R. §
825.116(a)-(b).

**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^.

**Notes on Use**

1\. Insert the number of the Instruction defining "health care
provider."

**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.

**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]{.underline} 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
> \_\_\_\_\_)^1^on 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^

**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.

**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.

**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.

**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, *supra.*
Insert the appropriate language to include the type of health
provider(s) relevant to the case.

**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.

**5.83E FMLA --- DEFINITION: "APPROPRIATE NOTICE" -- LEAVE FORESEEABLE
^1^**

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.

**Notes on Use**

1\. This Instruction should be used in situations where plaintiff's need
for leave was foreseeable.

**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 (8^th^ 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 (8^th^ Cir.
2000). Nelson v. Arkansas Pediatric Facility, 2001 WL 13291 (8^th^ Cir.
(Ark)). The adequacy of the notice in an FMLA context is a fact issue,
not a question of law. *Sanders v. May Dept. Stores Co.*, 2003 WL 61112,
at \*4 (8^th^ Cir. (Mo)).

The FMLA also requires an employer to give appropriate notice. Whether
an employer has satisfied its notice requirements is a jury issue.
*Sanders*, 2003 WL 61112, at \*4. The employer must post a notice
concerning the Act. 29 C.F.R. § 825.300(a). In addition, the employer
must give written notice of an employee's rights under the Act after the
employee has given appropriate notice to the employer of the need for
leave. 29 C.F.R. § 825.301(c); *Sanders*, 2003 WL 61112, at \*4.

**5.83F FMLA --- DEFINITION: "APPROPRIATE NOTICE" --**

**LEAVE UNFORESEEABLE ^1^**

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.

**Notes on Use**

1\. This Instruction should be used in situations where plaintiff's need
for leave was unforeseeable.

**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 (8^th^
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 (8^th^ Cir. 1999); *Carter v.
Ford Motor Co.*, 121 F.3d 1146 (8^th^ 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 (8^th^ Cir. 2000). Nelson v. Arkansas
Pediatric Facility, 2001 WL 13291 (8^th^ Cir. (Ark)). The adequacy of
the notice in an FMLA context is a fact issue, not a question of law.
*Sanders v. May Dept. Stores Co.*, 2003 WL 61112, at \*4 (8^th^ Cir.
(Mo)).

The FMLA also requires an employer to give appropriate notice. Whether
an employer has satisfied its notice requirements is a jury issue.
*Sanders*, 2003 WL 61112, at \*4. The employer must post a notice
concerning the Act. 29 C.F.R. § 825.300(a). In addition, the employer
must give written notice of an employee's rights under the Act after the
employee has given appropriate notice to the employer of the need for
leave. 29 C.F.R. § 825.301(c); *Sanders*, 2003 WL 61112, at \*4.

**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). This is somewhat different than the approach taken by the
ADA. An ADA plaintiff must demonstrate that he or she is unable to work
in a broad range of jobs to show that he or she is unable to perform the
major life activity of working and is, therefore, disabled for purposes
of the ADA; a plaintiff who shows only an inability to perform his or
her own job has not, therefore, made a showing of disability sufficient
to entitle him or her to the protections of the ADA. 29 C.F.R. §
1630.2(j)(3)(i). However, a demonstration that an employee is unable to
work in his or her job due to a serious health condition is enough to
show the employee is incapacitated for purposes of the FMLA. 29 C.F.R. §
825.702(b); *Steckloff v. St. John's Mercy Health Systems*, 218 F.3d
858, 861 (8^th^ Cir. 2000).

**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.

**Notes on Use**

1\. Insert the bracketed language which corresponds to the
burden-of-proof instruction given.

**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.

**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.

**Notes on Use**

1\. Insert the bracketed language which corresponds to the
burden-of-proof instruction given.

**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).

**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^

**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 Hartley v. Dillard's, Inc.*, 310
F.3d 1054, 1061 (8^th^ Cir. 2002); *Coleman v. City of Omaha*, 714 F.2d
804, 808 (8^th^ Cir. 1983); *Fieldler v. Indianhead Truck Line, Inc.*,
670 F.2d 806, 808-09 (8^th^ Cir. 1982).

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

**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); 29 C.F.R. § 825.400(c);
*Morris v. VCW, Inc*., 1996 WL 740544 (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, 29 C.F.R. § 825.400(c). 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).

In the Eighth Circuit, damages for emotional distress have been
approved. [See Duty v. Norton-Alcoa Proppants]{.underline}, 293 F.3d
481, 496 (8^th^ Cir. 2002) (approving compensatory damages for mental
distress (citing [Frazier v. Iowa Beef Processors, Inc.]{.underline},
200 F.3d 1190 (8^th^ Cir. 2000) (approving mental distress damages under
Iowa Public Policy)). [But see Koch v. St. Francis Med.
Center]{.underline}, 2002 WL 32063336 (E.D. Mo.) (stating it is not
clear whether [Duty]{.underline} awarded damages for mental distress
under Arkansas Civil Rights Act or the FMLA); [Keene v.
Rinaldi]{.underline}, 127 F. Supp. 2d 770 (M.D.N.C. 2000).

**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.

**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.

**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); 29 C.F.R. § 825.401(c); *Morris v. VCW, Inc.*, 1996 WL
740544 (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 \*2 (the statutory relief provided by the
FMLA's liquidated damage provision "parallels the provisions of the
FLSA." S. Rep. No. 103-3 at 35; *compare* 29 U.S.C. § 216(b) *with* 29
U.S.C. § 2617(a)(1)).

The language for this Instruction is based on the court's analysis of
the good-faith defense in *Morris,* 1996 WL 740544, at \*3. The FMLA
allows an employer to 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). Morris describes it as "subjective
good faith" and an "objective reasonable belief" its conduct did not
violate the law. *Id.* at \*3. Good faith requires some duty on the part
of the employer to investigate potential liability under the FMLA.
*Morris*, 1996 WL 740544, at \*3.

**5.87 FMLA - VERDICT FORM**

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

On the \[violation of the FMLA\] ^1^ claim of plaintiff \[John Doe\],
\[as submitted in Instruction \_\_\_\_\_\] ^2^, we find in favor of:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Plaintiff John 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 \[(greater weight ) (preponderance)\] ^3^ of
the evidence that defendant would have (describe employment action
taken, e.g., discharged) ^4^ plaintiff regardless of \[his/her\]
(exercise of \[his/her\] rights under the FMLA)? ^5^

\_\_\_\_\_ Yes \_\_\_\_\_ No

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

Note: Complete the following paragraph 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 damages \[, other than for emotional distress\] ^6^
to be:

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

\[We find plaintiff's damages for emotional distress to be:

\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ (stating the amount, 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 may be
inserted here. *See infra* Model Instructions 5.81 A-F.

3\. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

4\. Select the language that corresponds to the facts of the case.

5\. This question submits the "same decision" issue to the jury. *See
infra* Model Instruction 5.82.

6\. As noted [infra]{.underline} in the Committee Comments to Model
Instruction 5.85, the issue of whether damages for emotional distress
will be allowed under the FMLA is not completely resolved. The bracketed
language may be used if there is evidence of emotional distress. These
damages are segregated from plaintiff's other damages in the verdict
form in order to avoid the need for retrial if the issue is resolved in
the negative. [See Hibbs]{.underline}, 583 U.S. at \_\_\_, 2003 WL
21210426 at \*9 describing the many limitations placed on the scope of
the FMLA by Congress.

**5.91 - DISPARATE TREATMENT - ~~ESSENTIAL~~ ELEMENTS**

**(Motivating Factor/Same Decision)**

(Instruction Deleted)

**5.92 SPECIAL INTERROGATORIES TO ELICIT FINDINGS**

**IN BORDERLINE PRETEXT/MIXED-MOTIVE CASES**

**~~Directions~~**

~~The~~Your verdict in this case will be determined by your answers to
the following questions. 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. 3]{.underline}: Would , 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]{.underline}: What is the amount of plaintiff's
damages as defined in 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]{.underline}: Was deals with whether defendant\'s
conduct was \"willful,\" as defined in Instruction \_\_\_\_.?^8^~~

[Question No. 1]{.underline}: Has it been proved by the \[(greater
weight) or (preponderance)\] of the evidence that plaintiff\'s (age)^1^
was a determining factor in defendant\'s decision to (discharge)^2^
\[him/her\]? "(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. **^3^** \[You may find that (age) was a determining factor if
you find defendant's stated reason(s) for its decision are not the
~~true~~ real reason(s), but are a pretext to hide (age)
discrimination.\] **^4^**

\_\_\_\_\_ Yes \_\_\_\_\_ No

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

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

[Question No. 2]{.underline}: Has it been proved by the \[(greater
weight) or (preponderance)\] of the evidence that plaintiff\'s (age) was
a motivating factor**^5^** in defendant\'s decision to (discharge)
\[him/her\]? (Age) was a \"motivating factor\" if plaintiff's (age)
played a part \[or a role\] in the defendant's decision to (discharge)
plaintiff. However, plaintiff's (age) need not have been the only reason
for defendant's decision to (discharge) plaintiff. \[You may find that
(age) was a motivating factor if you find the defendant's stated
reason(s) for its decision are not the ~~true~~ real reason(s), but are
a pretext to hide (age) discrimination.\]^6^

\_\_\_\_\_ Yes \_\_\_\_\_ No

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

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

[Question No. 3]{.underline}: 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]{.underline}: Answer Questions 4 and 5 only if you answered
\"yes\" to Question No. 1 [or]{.underline} if you answered \"yes\" to
Question No. 2 and "no" to Question No. 3. If you answered \"yes\" to
Question No. 3, have your foreperson sign and date this form because you
have completed your deliberations on this age-discrimination claim.

[Question No. 4]{.underline}: State the amount of plaintiff\'s actual
damages as that term is defined in Instruction \_\_\_\_\_:^7^
\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ (stating the amount \[or,
if you find that plaintiff\'s damages have no monetary value, write in
the nominal amount of One Dollar (\$1.00)\]).^8^

[Question No. 5]{.underline}: 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 \_\_\_\_?^9^

\_\_\_\_\_ Yes \_\_\_\_\_ No

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

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Foreperson

Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

1\. This set of interrogatories is designed for use in an age
discrimination case. It should be modified for cases under other
statutes, such as race discrimination cases under 42 U.S.C. §1981, in
which it is unclear whether the correct standard for liability is
"determining factor" or "motivating factor."

2\. These interrogatories are designed for use in a discharge case. In a
\"failure to hire,\" \"failure to promote,\" or \"demotion\" case, the
interrogatories must be modified. Where the plaintiff resigned but
claims that he or she was \"constructively discharged,\" an additional
interrogatory should be given as a threshold to the interrogatories
shown above and the subsequent interrogatories will have to be
renumbered. *See infra* Model Instruction 5.93.

3\. The explanation 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 (8^th^ Cir. 1985).

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

5\. The Committee believes that the term \"motivating factor\" should be
defined. See Model Instruction 5.96.

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

7\. Fill in the number of the \"actual damages\" instruction here. *See
supra* Model Instructions 5.12 (ADEA cases), 5.22 (§1981 cases), 5.27
(§1983 cases), 5.62 (Title VII retaliation cases).

8\. Regarding the submission of the issue of nominal damages, *see
supra* Model Instructions 5.13, 5.23, 5.28, 5.63.

9\. Because this model set of interrogatories is designed for age
discrimination cases, Question No. 5 is designed to submit the issue of
\"willfulness,\" which is the predicate for an award of liquidated
damages under the ADEA *See supra* Model Instruction 5.15. If the issue
of \"willfulness\" is not submitted in an age discrimination case,
Question No. 5 should be omitted; if the issue is submitted, insert the
number of the \"willfulness\" instruction here.

In cases where the underlying statute permits recovery of punitive
damages, such race discrimination cases and constitutional
discrimination cases, Question No. 5 should be used to submit the issue
of punitive damages, if appropriate. *See supra* Model Instructions
5.24, 5.28, 5.64. 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, ~~insert the number of the punitive damages
instruction here and~~ change the language in Question 5 and insert the
number of the punitive damages instruction as follows:

[Question No. 5]{.underline}: ~~(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\").

**Committee Comments**

~~*See* Introductory Note to Section 5.~~ In *Desert Palace, Inc. v.
Costa*, 590~~\_\_\_~~ U.S. 90~~\_\_\_, 2003 WL 21310219~~ (U.S. ~~June
9,~~ 2003), the Supreme Court ruled that "motivating factor/same
decision" instructions should be given in all Title VII cases,
regardless of whether the plaintiff relies on "direct evidence" or
circumstantial/pretext evidence. The *Costa* decision did not address
whether the direct evidence/pretext distinction, and the corresponding
use of a "motivating factor" or "determining factor" standard remains
viable in cases filed under the ADEA, §~~section~~ 1981, §~~section~~
1983 or under the retaliation provision of Title VII.

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. The use of these special interrogatories in an ADEA
case was approved in *Hartley v. Dillard's, Inc.*, 310 F.3d 1054,
1059-60, (8^th^ Cir. 2000).

Question No. 1 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. 1, the
plaintiff prevails under either a pretext [or]{.underline} 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. 1. The jury must go on
to Questions 2 and 3 only if it has not been proved ~~it found~~ that
discrimination was ~~not~~ a \"determining factor.\" ~~(Question No.
1.)~~

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

Question No. 3 is designed to reach the final issue in a \"mixed
motive\" case. As noted above, the defendant clearly prevails if the
jury answers \"no\" to Question No. 2, and the plaintiff clearly
prevails if the jury answers \"yes\" to Question No. 1. It also is clear
that the defendant prevails if the jury reaches and answers ~~\"no\" to
Question No. 1 and~~ \"yes\" to Question No. 3. Thus, the court will
need to ~~be~~ revisit~~ed~~ ~~with~~ the issue of whether a case should
be classified as \"mixed motive\" or \"pretext\" [only if]{.underline}
the jury reaches Question No. 3 [and]{.underline} only if the jury
answers \"no\" to that question. Based on this set of~~at~~ jury
findings, the plaintiff prevails if the case is classified under a
\"mixed motive\" theory, while the defendant prevails if the case is
classified under a \"pretext\" case theory.

Questions 1, 2 and 3 are to be submitted in lieu of an elements
instruction~~. If submitted in conjunction with an elements instruction,
the elements instruction should be modified by changing the introductory
and conclusory language which tells the jury its verdict must be for a
certain party.~~ . However, actual damages and, if appropriate, a
\"willfulness\" or punitive damages instruction must also be submitted
~~even if an elements instruction is not given~~. The Committee makes no
recommendation regarding whether all issues should be submitted to the
jury simultaneously or whether jury deliberations should be bifurcated,
with the issues of~~and~~ damages and willfulness (or punitive damages)
being submitted separately from Questions 1, 2 and 3.

**5.95 PRETEXT INSTRUCTION**

You may find that plaintiff\'s (age) (race) (sex)^1^ was a
\[motivating\] \[determining\]^2^ factor in defendant\'s (decision)^3^
if it has been proved by the \[(greater weight) (preponderance)\]^4^ of
the evidence that defendant\'s stated reason(s) for its (decision)
\[(is) (are)\] not the real reason, but \[is/are\] a pretext to hide
\[(age) (sex) (race)\] discrimination. 5

**Notes on Use**

1\. Choose the appropriate word.

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

3\. ~~Consistent with the various essential elements instructions in
this section, t~~ 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.

4\. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

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

**Committee Comments**

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).

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

[^1]: ^?^See Costa,123 S. Ct. at 2153-54.

[^2]: ^?^See Trammel v. Simmons First Bank of Searcy, 345 F.3d 611
    (8^th^ Cir. 2003) (ADEA case discussing potential impact of *Costa*
    in non-Title VII cases and noting that "\[i\]n the past we have
    required direct evidence, which is not present here, to support a
    mixed-motive claim"); see also Erickson v. Farmland Ind., 271 F.3d
    718, 724-25 (8^th^ Cir. 2001) (applying *Price Waterhouse*
    distinction in ADEA case); Radbaugh v. Zip Feed Mills, Inc., 997
    F.2d 444, 448-50 (8^th^ Cir. 1993) (ADEA case discussing what
    constitutes direct evidence "sufficient to entitle a plaintiff to a
    *Price Waterhouse* burden-shifting instruction").

[^3]: ^?^See Costa, 123 S. Ct. at 2154 ("The reason for treating
    circumstantial and direct evidence alike is both clear and
    deep-rooted: 'Circumstantial evidence is not only sufficient, but
    may also be more certain, satisfying, and persuasive than direct
    evidence.'") (citation omitted).