Number range CHAPTER

**MANUAL OF**

**MODEL CIVIL**

**JURY INSTRUCTIONS**

**FOR THE**

**DISTRICT COURTS**

**OF THE EIGHTH CIRCUIT**

\(2008\)

CITE THIS WORK

8^TH^ CIR. CIVIL JURY INSTR. § 4.50A (2008)

or

8^TH^ CIR. CIVIL JURY INSTR. § 4.50A comment (2008)

**COMMITTEE ON MODEL JURY INSTRUCTIONS**

**EIGHTH CIRCUIT**

CHAIRMAN: Hon. Scott O. Wright

> United States Senior District Judge
>
> 8662 U.S. Courthouse
>
> 400 E. Ninth Street
>
> Kansas City, Missouri 64106
>
> \(816\) 512-5700
>
> \(816\) 512-5713 (fax)

MEMBERS:

> Hon. Mark W. Bennett
>
> United States District Judge
>
> 313 U.S. Courthouse
>
> 320 Sixth Street
>
> Sioux City, Iowa 51102
>
> \(712\) 233-3909
>
> \(712\) 233-3913 (fax)
>
> Hon. Patrick A. Conmy
>
> United States Senior District Judge
>
> 160 U.S. Courthouse
>
> 220 E. Rosser Avenue
>
> Bismarck, North Dakota 58501
>
> \(701\) 530-2315
>
> \(701\) 530-2318 (fax)
>
> Hon. Ralph R. Erickson
>
> United States District Judge
>
> U.S. Courthouse
>
> First Avenue N, Suite 410
>
> Fargo, North Dakota 58102
>
> \(701\) 297-7080
>
> \(701\) 297-7085 (fax)
>
> Hon. John A. Jarvey
>
> United States District Judge
>
> 131 E. Fourth Street, Suite 252
>
> Davenport, Iowa 52801
>
> \(563\) 884-7727
>
> \(563\) 884-7729 (fax)
>
> Hon. William A. Knox
>
> United States Magistrate Judge
>
> 204 U.S. Courthouse
>
> 131 W. High Street
>
> Jefferson City, Missouri 65101
>
> \(573\) 634-3418
>
> \(573\) 636-5208 (fax)
>
> Hon. Richard H. Kyle
>
> United States Senior District Judge
>
> 764 WEB Federal Building
>
> 316 N. Robert Street
>
> St. Paul, Minnesota 55101
>
> \(651\) 848-1160
>
> \(651\) 848-1162 (fax)
>
> Hon. Nanette K. Laughrey
>
> United States District Judge
>
> 307 U.S. Courthouse
>
> 131 W. High Street
>
> Jefferson City, Missouri 65101
>
> \(573\) 632-6623
>
> \(573\) 636-5108 (fax)
>
> Hon. Ann D. Montgomery
>
> United States District Judge
>
> 300 S. Fourth Street, Suite 13-W
>
> Minneapolis, Minnesota 55415
>
> \(612\) 664-5090
>
> \(612\) 664-5097 (fax)
>
> Hon. James M. Moody
>
> United States District Judge
>
> 381 U.S. Courthouse
>
> 600 W. Capitol Avenue
>
> Little Rock, Arkansas 72201
>
> \(501\) 604-5150
>
> \(501\) 604-5373 (fax)
>
> Hon. Karen E. Schreier
>
> United States Chief District Judge
>
> 316 U.S. Courthouse
>
> 515 Ninth Street
>
> Rapid City, South Dakota 57701
>
> \(605\) 399-6020
>
> \(605\) 399-6021 (fax)
>
> Hon. Rodney W. Sippel
>
> United States District Judge
>
> U.S. Courthouse
>
> 111 S. Tenth Street, Suite 10.182
>
> St. Louis, Missouri 63102
>
> \(314\) 244-7430
>
> \(314\) 244-7439 (fax)
>
> Hon. Warren K. Urbom
>
> United States Senior District Judge
>
> 507 U.S. Courthouse
>
> 100 Centennial Mall N.
>
> Lincoln, Nebraska 68508
>
> \(402\) 437-5231
>
> \(402\) 437-5690 (fax)
>
> Hon. William R. Wilson, Jr.
>
> United States District Judge

444 Richard S. Arnold Annex

> 400 W. Capitol Avenue
>
> Little Rock, Arkansas 72201
>
> \(501\) 604-5140
>
> \(501\) 604-5149 (fax)

**SUBCOMMITTEE ON MODEL CIVIL JURY INSTRUCTIONS**

**EIGHTH CIRCUIT**

CHAIRMAN: Hon. William A. Knox

> United States Magistrate Judge
>
> 204 U.S. Courthouse
>
> 131 West High Street
>
> Jefferson City, Mo. 65101
>
> \(573\) 634-3418
>
> \(573\) 636-5208 (fax)

MEMBERS:

> Ann E. Buckley, Esq.
>
> Buckley & Buckley, LLC
>
> 1139 Olive, Suite 800
>
> St. Louis, Missouri 63101
>
> \(314\) 621-3434
>
> \(314\) 621-3485 (fax)
>
> Hon. Beth Deere
>
> United States Magistrate Judge
>
> 500 W. Capitol, Suite C-150
>
> Little Rock, Arkansas 72201
>
> \(501\) 604-5110
>
> \(501\) 604-5117 (fax)
>
> Denise K. Drake, Esq.
>
> Spencer Fane Britt & Browne LLP
>
> 1000 Walnut, Suite 1400
>
> Kansas City, Missouri 64106
>
> \(816\) 474-8100
>
> \(816\) 474-3216 (fax)
>
> Dennis E. Egan, Esq.
>
> The Popham Law Firm, P.C.
>
> 323 W. Eighth Street, Suite 200
>
> Kansas City, Mo. 64105
>
> \(816\) 221-2288
>
> \(816\) 221-3999 (fax)
>
> Hon. Mary Ann L. Medler
>
> United States Magistrate Judge
>
> U.S. Courthouse
>
> 111 S. Tenth Street, Suite 13-S
>
> St. Louis, Missouri 63102
>
> \(314\) 244-7490
>
> \(314\) 244-7499 (fax)
>
> Martin M. Meyers, Esq.
>
> The Meyers Law Firm, LC
>
> 222 W. Gregory, Suite 340
>
> Kansas City, Missouri 64114
>
> \(816\) 444-8500
>
> Hon. David D. Noce
>
> United States Magistrate Judge
>
> U.S. Courthouse
>
> 111 S. Tenth Street, Suite 17-N
>
> St. Louis, Missouri 63102
>
> \(314\) 244-7630
>
> \(314\) 244-7639 (fax)
>
> Larry M. Schumaker, Esq.
>
> Schumaker Center for Employment Law, P.C.
>
> 10401 Holmes Road, Suite 480
>
> Kansas City, Missouri 64131
>
> \(816\) 941-9994
>
> \(816\) 941-8244 (fax)

**Subcommittee on Model Civil Jury Instructions**

**Eighth Circuit - Admiralty**

Hon. David D. Noce (Chairman)

United States Magistrate Judge

U.S. Courthouse

111 S. Tenth Street, Suite 17-N

St. Louis, Missouri 63102

> \(314\) 244-7630
>
> \(314\) 244-7639 (fax)

Roger Denton, Esq.

Schlichter, Bogart and Denton

100 S. Fourth Street, Suite 900

St. Louis, Missouri 63102

> \(314\) 621-6115

James W. Herron, Esq.

Lewis, Rice & Fingersh, L.L.C.

500 N. Broadway, Suite 2000

St. Louis, Missouri 63102

> \(314\) 444-7600
>
> \(312\) 241-6056 (fax)

Gary T. Sacks, Esq.

Goldstein and Price, L.C.

One N. Memorial Drive, Suite 1000

St. Louis, Missouri 63102

> \(314\) 421-0710
>
> \(314\) 421-2832 (fax)

**Subcommittee on Model Civil Jury Instructions**

**Eighth Circuit**

**Federal Employers' Liability Act**

Hon. William A. Knox (Chairman)

United States Magistrate Judge

204 U.S. Courthouse

131 W. High Street

Jefferson City, Missouri 65101

> \(573\) 634-3418
>
> \(573\) 636-5208 (fax)

Christopher H. Leach, Esq.

Hubbell, Sawyer, Peak, O'Neal & Napier

Union Station

30 W. Pershing Road, Suite 350

Kansas City, Missouri 64108-2463

> \(816\) 221-5666
>
> \(816\) 221-5259 (fax)

K. Paul Day, Esq.

Lathrop & Gage L.C.

2345 Grand Boulevard, Suite 2800

Kansas City, Missouri 64108-2684

> \(816\) 292-2000
>
> \(816\) 292-2001 (fax)

**Subcommittee on Model Civil Jury Instructions**

**Eighth Circuit**

**Fair Labor Standards Act**

Hon. William A. Knox (Chairman)

United States Magistrate Judge

204 U.S. Courthouse

131 W. High Street

Jefferson City, Missouri 65101

> \(573\) 634-3418
>
> \(573\) 636-5208 (fax)

Daniel B. Boatright, Esq.

Spencer Fain Britt & Browne LLP

1000 Walnut Street, Suite 1400

Kansas City, Missouri 64106

> \(816\) 292-8118
>
> \(816\) 474-3216 (fax)

Amy Maloney, Esq.

Holman Schiavone L.L.C.

4600 Madison Avenue, Suite 810

Kansas City, Missouri 64112

> \(816\) 283-8738
>
> \(816\) 283-8739 (fax)

**INTRODUCTION**

These model instructions have been prepared to help judges communicate
more effectively with juries. The Manual is meant to provide judges and
lawyers with models of clear, brief and simple instructions calculated
to maximize juror comprehension. They are not intended to be treated as
the only method of instructing properly a jury. *See* *United States v.
Ridinger*, 805 F.2d 818, 821 (8th Cir. 1986). \"The Model Instructions,
. . . are not binding on the district courts of this circuit, but are
merely helpful suggestions to assist the district courts.\" *United
States v. Norton*, 846 F.2d 521, 525 (8th Cir. 1988).

Every effort has been made to assure conformity with current Eighth
Circuit law; however, it cannot be assumed that all of these model
instructions in the form given necessarily will be appropriate under the
facts of a particular case. The Manual covers issues on which
instructions are most frequently given, but because each case turns on
unique facts, instructions should be drafted or adapted to conform to
the facts in each case. These instructions may be found on the Internet
in both WordPerfect and pdf formats at

[[http://www.juryinstructions.ca8.uscourts.gov/]{.underline}](http://www.juryinstructions.ca8.uscourts.gov/)

In drafting instructions, the Committee has attempted to use simple
language, short sentences, and the active voice and omit unnecessary
words. We have tried to use plain language because giving the jury the
statutory language, or language from appellate court decisions, is often
confusing.

It is our position that instructions should be as brief as possible and
limited to what the jury needs to know for the case. We also recommend
sending a copy of the instructions as given to the jury room.

Counsel are reminded of Civil Rule 51(c), which requires a specific
objection, on the record, before the jury is instructed if possible, and
(d), which requires a proper, timely objection if instruction error is
to be preserved for appeal, unless it amounts to plain error.

The Committee expresses its appreciation to all members of the
subcommittee, whose diligent research and commitment to this project are
essential in continuing to revise current instructions and draft new
ones. Special thanks must go to Kay Bode, secretary to the Honorable
William A. Knox, who has typed, retyped, corrected, edited and revised
the drafts on numerous occasions. Her dedication to detail, careful
screening of drafts, and comparison of various drafts have been
essential in the production of these instructions.

**HOW TO USE THESE INSTRUCTIONS**

These civil jury instructions have been arranged with an awareness that
judges follow different practices when it comes to jury instructions.
Some judges send a full set of written instructions into the jury room
after they have been read in open court. Other judges also provide
jurors with written copies of the instructions to follow as they are
read from the bench. Still other judges prefer not to provide the jury
with any written instructions. These civil jury instructions have been
arranged and drafted to accommodate any of these varying practices.

Model Instruction 1.01 is a general instruction which is intended to
give jurors an overview of their duties and trial procedures during the
trial. It should be given at the commencement of the trial
([after]{.underline} the jurors are sworn and before opening
statements). Model Instruction 1.01 incorporates matters which are also
addressed in Model Instructions 3.02 (Judge\'s Opinion) and 3.03
(Credibility of Witnesses). The Committee recommends that the general
instructions which are given at the outset of the trial (Model
Instructions 1.01 - 1.06) and those given during the middle of trial
should not be repeated at the time the case is submitted to the jury.
Those general matters which are necessary to the jury\'s final
deliberations are again repeated in Model Instructions 2.01 - 2.11, and
3.01 - 3.07.

The Committee recognizes that varying burden-of-proof formulations are
used in different jurisdictions. Judges and lawyers often are accustomed
to using the burden-of-proof instruction found in the pattern civil jury
instructions adopted by their particular states. Model Instruction 3.04
is a burden-of-proof instruction which is intended to accommodate the
various formulations. However, the Committee recognizes that a judge may
prefer to use the burden-of-proof formulation which is accepted in his
or her state. If such a burden-of-proof instruction is used, the
element/issue instructions must be modified accordingly.

The Committee recommends that written instructions which are to be sent
into the jury room should be numbered, in the order given, or accurately
titled without numbering. If a \"titling\" method is used, the judge
should be aware that the titles used in these instructions were not
designed for such use and that an appropriately \"neutral\" method of
expression should be used. Such instructions should also be free of any
extraneous notations: for example, the model instruction number, the
identity of the submitting party, committee notes, any notes by the
court, and other such notations, should not appear on the written
instructions given to the jury.

These instructions may be found on the Internet in both WordPerfect and
pdf formats at

[[http://www.juryinstructions.ca8.uscourts.gov/]{.underline}](http://www.juryinstructions.ca8.uscourts.gov/)

**TABLE OF CONTENTS**

**1. PRELIMINARY INSTRUCTIONS FOR USE AT COMMENCEMENT OF TRIAL**\
**Introductory Comment** [[1]{.underline}](#Generated)

> 1.01 GENERAL: NATURE OF CASE; BURDEN OF PROOF;\
> DUTY OF JURY; CAUTIONARY [[2]{.underline}](#Generated)
>
> 1.02 EVIDENCE; LIMITATIONS [[4]{.underline}](#Generated)
>
> 1.03 BENCH CONFERENCES AND RECESSES [[6]{.underline}](#Generated)
>
> 1.04 NO TRANSCRIPT AVAILABLE \[NOTE-TAKING\]
> [[7]{.underline}](#Generated)
>
> 1.04A QUESTIONS BY JURORS [[8]{.underline}](#Generated)
>
> 1.05 CONDUCT OF THE JURY [[10]{.underline}](#Generated)
>
> 1.06 OUTLINE OF TRIAL [[12]{.underline}](#Generated)

**2. INSTRUCTIONS FOR USE DURING TRIAL**\
**Introductory Comment** [[13]{.underline}](#Generated)

> 2.01 DUTIES OF JURY: RECESSES [[14]{.underline}](#Generated)
>
> 2.02 STIPULATED TESTIMONY [[16]{.underline}](#Generated)
>
> 2.03 STIPULATED FACTS [[17]{.underline}](#Generated)
>
> 2.04 JUDICIAL NOTICE [[18]{.underline}](#Generated)
>
> 2.05 TRANSCRIPT OF TAPE-RECORDED CONVERSATION
> [[19]{.underline}](#Generated)
>
> 2.06 PREVIOUS TRIAL [[20]{.underline}](#Generated)
>
> 2.07 CROSS-EXAMINATION OF PARTY\'S CHARACTER WITNESS
> [[21]{.underline}](#Generated)
>
> 2.08A EVIDENCE ADMITTED AGAINST ONLY ONE PARTY
> [[22]{.underline}](#Generated)
>
> 2.08B EVIDENCE ADMITTED FOR LIMITED PURPOSE
> [[23]{.underline}](#Generated)
>
> 2.09 IMPEACHMENT OF WITNESS, PRIOR CONVICTION
> [[24]{.underline}](#Generated)
>
> 2.10A DEMONSTRATIVE SUMMARIES NOT RECEIVED AS EVIDENCE
> [[25]{.underline}](#Generated)
>
> 2.10B RULE 1006 SUMMARIES [[26]{.underline}](#Generated)
>
> 2.11 WITHDRAWAL [[28]{.underline}](#Generated)
>
> 2.12 DEPOSITION EVIDENCE AT TRIAL [[29]{.underline}](#Generated)

**3. INSTRUCTIONS FOR USE AT CLOSE OF TRIAL**\
**Introductory Comment** [[30]{.underline}](#Generated)

> 3.01 EXPLANATORY [[31]{.underline}](#Generated)
>
> 3.02 JUDGE\'S OPINION [[32]{.underline}](#Generated)
>
> 3.03 CREDIBILITY OF WITNESSES [[33]{.underline}](#Generated)
>
> 3.04 BURDEN OF PROOF\
> (Ordinary Civil Case) [[36]{.underline}](#Generated)
>
> 3.05 WITHDRAWAL (OF CLAIM) [[37]{.underline}](#Generated)
>
> 3.06 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS\
> WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM\
> [[38]{.underline}](#Generated)
>
> 3.07 \"ALLEN\" CHARGE TO BE GIVEN AFTER EXTENDED DELIBERATION
> [[40]{.underline}](#Generated)

**4. PRISONER/PRETRIAL DETAINEE CIVIL RIGHTS CASES\
Introductory Comment** [[43]{.underline}](#Generated)

> 4.10 EXCESSIVE USE OF FORCE - ARREST OR OTHER SEIZURE OF\
> PERSON - BEFORE CONFINEMENT - FOURTH AMENDMENT
> [[44]{.underline}](#Generated)
>
> 4.20 EXCESSIVE USE OF FORCE - PRETRIAL DETAINEES -\
> FIFTH AND FOURTEENTH AMENDMENTS [[48]{.underline}](#Generated)
>
> 4.30 EXCESSIVE USE OF FORCE - CONVICTED PRISONERS -\
> EIGHTH AMENDMENT [[52]{.underline}](#Generated)
>
> 4.31 DENIAL OF MEDICAL CARE -\
> CONVICTED PRISONERS AND PRETRIAL DETAINEES \*\
> (42 U.S.C. § 1983) [[55]{.underline}](#Generated)
>
> 4.32 FAILURE TO PROTECT FROM ATTACK - SPECIFIC ATTACK -\
> CONVICTED PRISONERS - EIGHTH AMENDMENT [[58]{.underline}](#Generated)
>
> 4.40 DEFINITION: COLOR OF STATE LAW (42 U.S.C. § 1983)
> [[60]{.underline}](#Generated)
>
> 4.42 DEFINITION: PERVASIVE RISK OF HARM - CONVICTED PRISONERS\
> (42 U.S.C. § 1983) [[61]{.underline}](#Generated)
>
> 4.43 DEFINITION: SERIOUS MEDICAL NEED - CONVICTED PRISONERS\
> (42 U.S.C. § 1983) [[62]{.underline}](#Generated)
>
> 4.44 DEFINITION: DELIBERATE INDIFFERENCE -\
> CONVICTED PRISONERS AND PRETRIAL DETAINEES\
> (42 U.S.C. § 1983) [[63]{.underline}](#Generated)
>
> 4.45 DEFINITION: MALICIOUSLY [[64]{.underline}](#Generated)
>
> 4.46 DEFINITION: SADISTICALLY [[65]{.underline}](#Generated)
>
> 4.50A ACTUAL DAMAGES - PRISONER CIVIL RIGHTS
> [[66]{.underline}](#Generated)
>
> 4.50B NOMINAL DAMAGES - PRISONER CIVIL RIGHTS
> [[68]{.underline}](#Generated)
>
> 4.50C PUNITIVE DAMAGES - CIVIL RIGHTS [[69]{.underline}](#Generated)
>
> 4.60 VERDICT FORM - ONE PLAINTIFF, TWO DEFENDANTS,\
> ONE INJURY CASE [[73]{.underline}](#Generated)

**5. EMPLOYMENT CASES\
Overview** [[75]{.underline}](#Generated)

> 5.01 TITLE VII - ELEMENTS [[78]{.underline}](#Generated)
>
> 5.01A TITLE VII - \"SAME DECISION\" [[80]{.underline}](#Generated)
>
> 5.02A TITLE VII - ACTUAL DAMAGES [[81]{.underline}](#Generated)
>
> 5.02B TITLE VII - NOMINAL DAMAGES [[85]{.underline}](#Generated)
>
> 5.02C TITLE VII - PUNITIVE DAMAGES [[86]{.underline}](#Generated)
>
> 5.03 TITLE VII - VERDICT FORM [[91]{.underline}](#Generated)
>
> 5.10 AGE DISCRIMINATION IN EMPLOYMENT ACT\
> (\"ADEA\") OF 1967, AS AMENDED - Introductory Comment
> [[93]{.underline}](#Generated)
>
> 5.11A ADEA - ELEMENTS (Determining Factor)
> [[94]{.underline}](#Generated)
>
> 5.11B ADEA - ELEMENTS (Motivating Factor/Same Decision)
> [[96]{.underline}](#Generated)
>
> 5.12A ADEA - ACTUAL DAMAGES [[98]{.underline}](#Generated)
>
> 5.12B ADEA - NOMINAL DAMAGES [[100]{.underline}](#Generated)
>
> 5.12C ADEA - WILLFULNESS [[101]{.underline}](#Generated)
>
> 5.13 ADEA - VERDICT FORM [[102]{.underline}](#Generated)
>
> 5.20 RACE DISCRIMINATION (42 U.S.C. § 1981) - Introductory Comment
> [[103]{.underline}](#Generated)
>
> 5.21A (RACE) DISCRIMINATION - ELEMENTS (Motivating Factor)\
> (42 U.S.C. § 1981) [[104]{.underline}](#Generated)
>
> 5.21B (RACE) - ELEMENTS (Determining Factor) (42 U.S.C. § 1981)
> [[106]{.underline}](#Generated)
>
> 5.22A RACE DISCRIMINATION - ACTUAL DAMAGES (42 U.S.C. § 1981)
> [[107]{.underline}](#Generated)
>
> 5.22B RACE DISCRIMINATION - NOMINAL DAMAGES (42 U.S.C. § 1981)
> [[110]{.underline}](#Generated)
>
> 5.22C RACE DISCRIMINATION - PUNITIVE DAMAGES (42 U.S.C. § 1981)
> [[111]{.underline}](#Generated)
>
> 5.23 RACE DISCRIMINATION - VERDICT FORM (42 U.S.C. § 1981)
> [[115]{.underline}](#Generated)
>
> 5.25 DISCRIMINATION BY PUBLIC EMPLOYERS (42 U.S.C. § 1983)\
> Introductory Comment [[117]{.underline}](#Generated)
>
> 5.26A (SEX) DISCRIMINATION - ELEMENTS (Mixed Motive Case)\
> (42 U.S.C. § 1983) [[118]{.underline}](#Generated)
>
> 5.26B (SEX) DISCRIMINATION - ELEMENTS (Determining Factor)\
> (42 U.S.C. § 1983) [[120]{.underline}](#Generated)
>
> 5.27A ACTUAL DAMAGES (42 U.S.C. § 1983)
> [[121]{.underline}](#Generated)
>
> 5.27B NOMINAL DAMAGES (42 U.S.C. § 1983)
> [[124]{.underline}](#Generated)
>
> 5.27C PUNITIVE DAMAGES (42 U.S.C. § 1983)
> [[125]{.underline}](#Generated)
>
> 5.28 VERDICT FORM (42 U.S.C. § 1983) [[129]{.underline}](#Generated)
>
> 5.30 EQUAL PAY ACT [[131]{.underline}](#Generated)
>
> 5.31 EQUAL PAY ACT -- ESSENTIAL ELEMENTS
> [[132]{.underline}](#Generated)
>
> 5.32 EQUAL PAY ACT -- DEFINITION: "SUBSTANTIALLY EQUAL"
> [[134]{.underline}](#Generated)
>
> 5.33 EQUAL PAY ACT -- AFFIRMATIVE DEFENSES
> [[135]{.underline}](#Generated)
>
> 5.34 EQUAL PAY ACT -- ACTUAL DAMAGES [[137]{.underline}](#Generated)
>
> 5.35 EQUAL PAY ACT - VERDICT FORM [[139]{.underline}](#Generated)
>
> 5.40 HARASSMENT CASES UNDER TITLE VII, SECTIONS 1981 AND 1983,\
> ADA AND ADEA - Introductory Comment [[141]{.underline}](#Generated)
>
> 5.41 HARASSMENT (By Supervisor With Tangible Employment Action)\
> Essential Elements [[144]{.underline}](#Generated)
>
> 5.42 HARASSMENT (By Supervisor With No Tangible Employment Action)\
> Essential Elements [[148]{.underline}](#Generated)
>
> 5.42A AFFIRMATIVE DEFENSE\
> (For Use in Supervisor Cases With No Tangible Employment Action)
> [[153]{.underline}](#Generated)
>
> 5.43 HARASSMENT (By Nonsupervisor) Essential Elements
> [[155]{.underline}](#Generated)
>
> 5.44A HARASSMENT - ACTUAL DAMAGES - Commentary
> [[158]{.underline}](#Generated)
>
> 5.44B HARASSMENT - NOMINAL DAMAGES - Commentary
> [[159]{.underline}](#Generated)
>
> 5.44C HARASSMENT - PUNITIVE DAMAGES - Commentary
> [[160]{.underline}](#Generated)
>
> 5.50 AMERICANS WITH DISABILITIES ACT ("ADA") (Employment Cases Only)
> \*\
> Introduction [[161]{.underline}](#Generated)
>
> 5.51A ADA - DISPARATE TREATMENT - ELEMENTS (Actual Disability)
> [[172]{.underline}](#Generated)
>
> 5.51B ADA - DISPARATE TREATMENT - ELEMENTS (Perceived Disability)
> [[175]{.underline}](#Generated)
>
> 5.51A/B(1) ADA - DISPARATE TREATMENT "SAME DECISION"
> [[178]{.underline}](#Generated)
>
> 5.51C ADA - REASONABLE ACCOMMODATION CASES\
> (Specific Accommodation Identified) [[179]{.underline}](#Generated)
>
> 5.52A ADA - DEFINITION: DISABILITY [[184]{.underline}](#Generated)
>
> 5.52B ADA - DEFINITION: ESSENTIAL FUNCTIONS
> [[185]{.underline}](#Generated)
>
> 5.52C ADA - DEFINITION: SUBSTANTIALLY LIMITS
> [[187]{.underline}](#Generated)
>
> 5.53A \"UNDUE HARDSHIP\" - STATUTORY DEFENSE
> [[190]{.underline}](#Generated)
>
> 5.53B \"DIRECT THREAT\" - STATUTORY DEFENSE
> [[192]{.underline}](#Generated)
>
> 5.54A ACTUAL DAMAGES [[194]{.underline}](#Generated)
>
> 5.54B NOMINAL DAMAGES [[198]{.underline}](#Generated)
>
> 5.54C PUNITIVE DAMAGES - ADA [[199]{.underline}](#Generated)
>
> 5.55 \"GOOD FAITH\" DEFENSE TO COMPENSATORY AND PUNITIVE DAMAGES
> [[204]{.underline}](#Generated)
>
> 5.56 BUSINESS JUDGMENT [[205]{.underline}](#Generated)
>
> 5.57 CONSTRUCTIVE DISCHARGE [[206]{.underline}](#Generated)
>
> 5.60 RETALIATION UNDER EMPLOYMENT DISCRIMINATION STATUTES\
> Introductory Comment [[207]{.underline}](#Generated)
>
> 5.61 RETALIATION FOR PARTICIPATION IN\
> PROCEEDINGS UNDER EMPLOYMENT STATUTES [[210]{.underline}](#Generated)
>
> 5.62 RETALIATION FOR OPPOSITION\
> TO HARASSMENT OR DISCRIMINATION [[212]{.underline}](#Generated)
>
> 5.70 FIRST AMENDMENT RETALIATION (42 U.S.C. § 1983)\
> Introductory Comment [[214]{.underline}](#Generated)
>
> 5.71 FIRST AMENDMENT RETALIATION - ELEMENTS (42 U.S.C. § 1983)
> [[215]{.underline}](#Generated)
>
> 5.71A FIRST AMENDMENT RETALIATION - SPECIAL INTERROGATORIES\
> REGARDING \"PROTECTED SPEECH\" BALANCING ISSUES\
> (42 U.S.C. § 1983) [[221]{.underline}](#Generated)
>
> 5.72A FIRST AMENDMENT RETALIATION - ACTUAL DAMAGES\
> (42 U.S.C. § 1983) [[223]{.underline}](#Generated)
>
> 5.72B FIRST AMENDMENT RETALIATION - NOMINAL DAMAGES\
> (42 U.S.C. § 1983) [[226]{.underline}](#Generated)
>
> 5.72C FIRST AMENDMENT RETALIATION - PUNITIVE DAMAGES\
> (42 U.S.C. § 1983) [[227]{.underline}](#Generated)
>
> 5.73 FIRST AMENDMENT RETALIATION - VERDICT FORM\
> (42 U.S.C. § 1983) [[231]{.underline}](#Generated)
>
> 5.73A FIRST AMENDMENT RETALIATION - SPECIAL\
> INTERROGATORIES ON \"BALANCING\" ISSUES (42 U.S.C. § 1983)
> [[233]{.underline}](#Generated)
>
> 5.80 FAMILY AND MEDICAL LEAVE ACT (FMLA) (29 U.S.C. §§ 2601 - 2654)
> \*\
> Introduction [[235]{.underline}](#Generated)
>
> 5.81A FMLA - WRONGFUL TERMINATION - ELEMENTS\
> (Employee with a Serious Health Condition)
> [[241]{.underline}](#Generated)
>
> 5.81B FMLA - WRONGFUL TERMINATION - ELEMENTS\
> (Employee Needed to Care for Spouse, Parent, Son\
> or Daughter with a Serious Health Condition
> [[243]{.underline}](#Generated)
>
> 5.81C FMLA - WRONGFUL TERMINATION - ELEMENTS\
> (Employee Leave for Birth, Adoption or Foster Care)
> [[246]{.underline}](#Generated)
>
> 5.81D FMLA - FAILURE TO REINSTATE - ELEMENTS\
> (Employee with a Serious Health Condition)
> [[249]{.underline}](#Generated)
>
> 5.81E FMLA - FAILURE TO REINSTATE - ELEMENTS\
> (Employee Needed to Care for a Spouse, Son or Daughter\
> with a Serious Health Condition [[251]{.underline}](#Generated)
>
> 5.81F FMLA - FAILURE TO REINSTATE - ELEMENTS\
> (Employee Leave for Birth, Adoption or Foster Care)
> [[253]{.underline}](#Generated)
>
> 5.82 FMLA - "SAME DECISION" [[255]{.underline}](#Generated)
>
> 5.83A FMLA - DEFINITION: "NEEDED TO CARE FOR"
> [[256]{.underline}](#Generated)
>
> 5.83B FMLA - DEFINITION: "SERIOUS HEALTH CONDITION"
> [[257]{.underline}](#Generated)
>
> 5.83C FMLA - DEFINITION: "SERIOUS HEALTH CONDITION" (alternate)
> [[258]{.underline}](#Generated)
>
> 5.83D FMLA - DEFINITION: "HEALTH CARE PROVIDER" [[260]{.underline}]()
>
> 5.83E FMLA - DEFINITION: "APPROPRIATE NOTICE" -\
> LEAVE FORESEEABLE [[261]{.underline}]()
>
> 5.83F FMLA - DEFINITION: "APPROPRIATE NOTICE" -\
> LEAVE UNFORESEEABLE [[262]{.underline}]()
>
> 5.83G FMLA - DEFINITION: "EQUIVALENT POSITION" [[263]{.underline}]()
>
> 5.84 FMLA - EXCEPTION TO JOB RESTORATION (Key Employee)
> [[264]{.underline}]()
>
> 5.84A FMLA - EXCEPTION TO JOB RESTORATION\
> (Employee would not have been Employed at Time of Reinstatement)
> [[265]{.underline}]()
>
> 5.85 FMLA - ACTUAL DAMAGES [[266]{.underline}]()
>
> 5.86 FMLA - GOOD FAITH DEFENSE TO LIQUIDATED DAMAGES
> [[268]{.underline}]()
>
> 5.87 FMLA - VERDICT FORM [[269]{.underline}]()
>
> 5.90 MISCELLANEOUS INSTRUCTIONS\
> AND SPECIAL INTERROGATORIES [[271]{.underline}]()
>
> 5.92 SPECIAL INTERROGATORIES TO ELICIT FINDINGS\
> IN BORDERLINE PRETEXT/MIXED-MOTIVE CASES [[272]{.underline}]()
>
> 5.93 CONSTRUCTIVE DISCHARGE [[276]{.underline}]()
>
> 5.94 BUSINESS JUDGMENT - TITLE VII CASES [[278]{.underline}]()
>
> 5.95 PRETEXT [[279]{.underline}]()
>
> 5.96 DEFINITION OF MOTIVATING FACTOR [[281]{.underline}]()
>
> 5.97 AFTER-ACQUIRED EVIDENCE [[282]{.underline}]()
>
> 5.97A MODIFIED VERDICT FORM\
> IN AFTER-ACQUIRED EVIDENCE CASES [[284]{.underline}]()

**6. FRAUD CASES** [[287]{.underline}]()

> 6.01 FRAUD - ODOMETER [[288]{.underline}]()
>
> 6.51 ODOMETER FRAUD - DAMAGES [[290]{.underline}]()
>
> 6.51A ODOMETER FRAUD --\
> Verdict Form [[291]{.underline}]()

**7. FEDERAL EMPLOYERS' LIABILITY ACT\
Introduction** [[292]{.underline}]()

> 7.01 GENERAL F.E.L.A. NEGLIGENCE [[296]{.underline}]()
>
> 7.02 DEFENSE THEORY INSTRUCTIONS - THREE OPTIONS\
> Introduction and Committee Comments [[300]{.underline}]()
>
> 7.02A FAILURE OF PROOF ON ANY ELEMENT OF\
> THE PLAINTIFF'S CASE LISTED IN THE ELEMENTS [[302]{.underline}]()
>
> 7.02B FAILURE TO PROVE ANY FACT\
> ESSENTIAL TO THE PLAINTIFF\'S RIGHT TO RECOVER [[304]{.underline}]()
>
> 7.02C DEFENSE THEORY INSTRUCTIONS - AFFIRMATIVE DEFENSES
> [[307]{.underline}]()
>
> 7.03 F.E.L.A CONTRIBUTORY NEGLIGENCE [[309]{.underline}]()
>
> 7.04 F.E.L.A. BOILER INSPECTION ACT VIOLATION [[311]{.underline}]()
>
> 7.05 F.E.L.A. SAFETY APPLIANCE ACT VIOLATION [[315]{.underline}]()
>
> 7.06A F.E.L.A. DAMAGES - INJURY TO EMPLOYEE [[319]{.underline}]()
>
> 7.06B F.E.L.A. DAMAGES - DEATH OF EMPLOYEE [[322]{.underline}]()
>
> 7.06C F.E.L.A. DAMAGES - PRESENT VALUE OF FUTURE LOSS
> [[325]{.underline}]()
>
> 7.06D F.E.L.A. DAMAGES - INCOME TAX EFFECTS OF AWARD
> [[326]{.underline}]()
>
> 7.08 FORM OF VERDICT - CONTRIBUTORY NEGLIGENCE SUBMITTED
> [[327]{.underline}]()
>
> 7.08A FORM OF VERDICT -\
> CONTRIBUTORY NEGLIGENCE NOT SUBMITTED [[330]{.underline}]()
>
> 7.09 DEFINITION OF TERM \"NEGLIGENT\" OR \"NEGLIGENCE\"
> [[331]{.underline}]()
>
> 7.10 DEFINITION OF THE TERM \"ORDINARY CARE\" [[332]{.underline}]()
>
> 7.11 DEFINITIONS OF THE TERMS \"NEGLIGENT\"\
> OR \"NEGLIGENCE\" AND \"ORDINARY CARE\" COMBINED [[333]{.underline}]()

**8. ADMIRALTY INSTRUCTIONS\
Introduction** [[334]{.underline}]()

> 8.10 NEGLIGENCE CLAIM UNDER THE JONES ACT [[342]{.underline}]()
>
> 8.10A NEGLIGENCE CLAIM UNDER THE JONES ACT\--ELEMENTS
> [[343]{.underline}]()
>
> 8.11 JONES ACT\--\"COURSE OF EMPLOYMENT\" DEFINED
> [[344]{.underline}]()
>
> 8.12 JONES ACT\--\"NEGLIGENCE\" DEFINED [[345]{.underline}]()
>
> 8.13 JONES ACT\--CAUSATION [[346]{.underline}]()
>
> 8.14 JONES ACT\--CONTRIBUTORY NEGLIGENCE\
> (COMPARATIVE FAULT) [[347]{.underline}]()
>
> 8.15 \"SEAMAN\" DEFINED [[348]{.underline}]()
>
> 8.16 JONES ACT\--\"VESSEL\" DEFINED [[350]{.underline}]()
>
> 8.20 UNSEAWORTHINESS CLAIM AGAINST EMPLOYER [[351]{.underline}]()
>
> 8.21 UNSEAWORTHINESS CLAIM AGAINST EMPLOYER\--ELEMENTS
> [[352]{.underline}]()
>
> 8.22 UNSEAWORTHINESS CLAIM--CAUSATION [[353]{.underline}]()
>
> 8.30 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT\
> § 905(b)\--TURN-OVER CLAIM\--NEGLIGENCE STANDARD [[354]{.underline}]()
>
> 8.31 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT\
> § 905(b)\--TURN-OVER CLAIM\--ELEMENTS OF CLAIM [[356]{.underline}]()
>
> 8.32 \"MARITIME EMPLOYMENT\" DEFINED [[358]{.underline}]()
>
> 8.33 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT\
> \"COVERED PLACE OF INJURY\" DEFINED [[360]{.underline}]()
>
> 8.34 \"NAVIGABLE WATERS\" DEFINED [[361]{.underline}]()
>
> 8.35 \"PROXIMATE CAUSE\" DEFINED [[362]{.underline}]()
>
> 8.40 GENERAL MARITIME LAW\--NONEMPLOYEE-INVITEE\'S\
> NEGLIGENCE CLAIM\--ELEMENTS [[363]{.underline}]()
>
> 8.41 GENERAL MARITIME LAW\--NONEMPLOYEE-INVITEE\'S CLAIM\--\
> CONTRIBUTORY NEGLIGENCE (COMPARATIVE FAULT) [[364]{.underline}]()
>
> 8.81 COMPENSATORY DAMAGES [[365]{.underline}]()
>
> 8.81A COMPENSATORY DAMAGES\
> (COMPARATIVE FAULT ALTERNATE) [[366]{.underline}]()
>
> 8.82 PRESENT VALUE OF FUTURE DAMAGES [[367]{.underline}]()
>
> 8.83 COMPENSATORY DAMAGES NOT TAXABLE [[368]{.underline}]()
>
> 8.84 DUTY TO MITIGATE DAMAGES [[369]{.underline}]()
>
> 8.85 \"MAINTENANCE\" AND \"CURE\" DEFINED [[370]{.underline}]()
>
> 8.86 MAINTENANCE AND CURE\--SUPPLEMENTAL [[371]{.underline}]()
>
> 8.90 SPECIAL INTERROGATORIES [[372]{.underline}]()

**9. DEFINITIONS** [[376]{.underline}]()

> 9.01 AGENCY [[377]{.underline}]()
>
> 9.02 COLOR OF STATE LAW (42 U.S.C. § 1983) [[378]{.underline}]()
>
> 9.03 DELIBERATE INDIFFERENCE - CONVICTED PRISONERS\
> (42 U.S.C. § 1983) [[379]{.underline}]()
>
> 9.04 MOTIVATING FACTOR [[380]{.underline}]()

**1. PRELIMINARY INSTRUCTIONS FOR USE AT COMMENCEMENT OF TRIAL**

**Introductory Comment**

These preliminary instructions should be read to the jury at the
commencement of trial. They need not be submitted in written form even
if other instructions are given in written form at the time the case is
submitted to the jury.

**1.01 GENERAL: NATURE OF CASE; BURDEN OF PROOF;**

**DUTY OF JURY; CAUTIONARY**

Ladies and Gentlemen: I will take a few moments now to give you some
initial instructions about this case and about your duties as jurors. At
the end of the trial I will give you further instructions. I may also
give you instructions during the trial. Unless I specifically tell you
otherwise, all such instructions - both those I give you now and those I
give you later - are equally binding on you and must be followed.

This is a civil case brought by the plaintiff\[s\] against the
defendant\[s\]. The plaintiff\[s\] allege\[s\] that the defendant\[s\]
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.^1^ The defendant\[s\] deny\[ies\] that
allegation. \[If the defendant has a counterclaim or affirmative
defense, it should be stated here.\] It will be your duty to decide from
the evidence whether the plaintiff\[s\] is \[are\] entitled to a verdict
against the defendant\[s\].^2^

From the evidence you will decide what the facts are. You are entitled
to consider that evidence in the light of your own observations and
experiences in the affairs of life. You will then apply those facts to
the law which I give you in these and in my other instructions, and in
that way reach your verdict. You are the sole judges of the facts; but
you must follow the law as stated in my instructions, whether you agree
with it or not.

In deciding what the facts are, you may have to decide what testimony
you believe and what testimony you do not believe. You may believe all
of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses\'
intelligence, their opportunity to have seen or heard the things they
testify about, their memories, any motives they may have for testifying
a certain way, their manner while testifying, whether they said
something different at an earlier time, the general reasonableness of
their testimony and the extent to which their testimony is consistent
with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law demands of
you a just verdict, unaffected by anything except the evidence, your
common sense, and the law as I give it to you.

You should not take anything I may say or do during the trial as
indicating what I think of the evidence or what I think your verdict
should be.

**Notes on Use**

1\. A short, simple statement of the matter in controversy should be
stated here.

2\. If there are multiple parties, this can be revised as follows:

> It will be your duty to decide from the evidence whether a party is
> entitled to a verdict against another party.

**1.02 EVIDENCE; LIMITATIONS**

I have mentioned the word \"evidence.\" \"Evidence\" includes the
testimony of witnesses; documents and other things received as exhibits;
any facts that have been stipulated - that is, formally agreed to by the
parties; \[and any facts that have been judicially noticed - that is
facts which I say you must accept as true.\]^1^

Certain things are not evidence. I will list those things for you now:

> 1\. Statements, arguments, questions and comments by lawyers are not
> evidence.
>
> 2\. Exhibits that are identified by a party but not offered or
> received in evidence are not evidence.
>
> 3 . Objections are not evidence. Lawyers have a right and sometimes an
> obligation to object when they believe something is improper. You
> should not be influenced by the objection. If I sustain an objection
> to a question or an exhibit, you must ignore the question or the
> exhibit and must not try to guess what the information might have
> been.
>
> 4 . Testimony and exhibits that I strike from the record, or tell you
> to disregard, are not evidence and must not be considered.
>
> 5\. Anything you see or hear about this case outside the courtroom is
> not evidence\[, unless I specifically tell you otherwise during the
> trial\].

Furthermore, a particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you only for one
particular purpose, and not for any other purpose. I will tell you when
that occurs, and instruct you on the purposes for which the item can and
cannot be used. \[You should also pay particularly close attention to
such an instruction, because it may not be available to you in writing
later in the jury room.\]^2^

Some of you may have heard the terms \"direct evidence\" and
\"circumstantial evidence.\" You are instructed that you should not be
concerned with those terms, since the law makes no distinction between
the weight to be given to direct and circumstantial evidence.

**Notes on Use**

1\. In many cases, the judge is not requested to take judicial notice of
facts. Therefore, this phrase is left as an option for the situations in
which the judge either anticipates that the court will be called upon to
take judicial notice of facts, or in which the judge routinely prefers
to advise the jury of the effect of judicial notice. The judge may want
to wait to instruct the jury about the effect of judicial notice until
such time judicial notice is taken of a particular fact. *See infra*
Model Instruction 2.04.

2\. For optional use in those cases where the final instructions are to
be sent to the jury room. The need for a limiting instruction, of
course, often arises without prior warning, making the submission of a
formal, written instruction impractical.

**1.03 BENCH CONFERENCES AND RECESSES**

During the trial it may be necessary for me to speak with the lawyers
out of your hearing, either by having a bench conference here while you
are present in the courtroom, or by calling a recess. Please understand
that while you are waiting, we are working. The purpose of these
conferences is to decide how certain evidence is to be treated under the
rules of evidence which govern the trial, and to avoid confusion and
error. We will, of course, do what we can to keep the number and length
of these conferences to a minimum.

**1.04 NO TRANSCRIPT AVAILABLE \[NOTE-TAKING\]**

At the end of the trial you must make your decision based on what you
recall of the evidence. You will not have a written transcript to
consult. You must pay close attention to the testimony as it is given.

\[If you wish, however, you may take notes to help you remember what
witnesses said. If you do take notes, please keep them to yourself until
you and your fellow jurors go to the jury room to decide the case. And
do not let note-taking distract you so that you do not hear other
answers by the witness. The Clerk will provide each of you with a pad of
paper and a pen or pencil. At each recess, leave them
\_\_\_\_\_\_\_\_\_\_.^1^\]

\[When you leave at night, your notes will be secured and not read by
anyone.\]^2^

**Notes on Use**

1\. Tell jurors where their notes are to be left.

2\. The court may wish to describe the method to be used for
safekeeping. In a high profile case, the court may want to give some
additional cautionary instructions.

**Committee Comments**

Both the unbracketed and bracketed portions of this instruction are
optional. The unbracketed portion may help keep jurors attentive and may
discourage requests for lengthy readbacks of testimony. Whether or not
to read back testimony is discretionary. *United States v. Bear Ribs*,
722 F.2d 420, 422 (8^th^ Cir. 1983.

There is some controversy over the subject of juror note-taking. *See*
*United States v. Darden*, 70 F.3d 1507, 1536-37 (8th Cir. 1995). It is
within the discretion of the trial judge to permit the practice. *United
States v. Bassler*, 651 F.2d 600, 602 n.3 (8^th^ Cir. 1981).

If note-taking is permitted, an instruction should be given concerning
the use of notes during deliberations. *United States v. Rhodes*, 631
F.2d 43, 46 n.3 (5^th^ Cir. 1980).

*See* *9^th^ Cir. Crim. Jury Instr.* 1.10 and 1.11 (2000). *See also* 3
Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil
§§ 101.13, 101.14 (5^th^ ed. 2000); Federal Judicial Center, *Pattern
Criminal Jury Instructions* 8 (1988) *U.S. Eleventh Circuit Pattern Jury
Instructions - Civil Cases*, Preliminary Instructions Before Trial (West
1990); *United States v. Rhodes*, 631 F.2d at 46 n.3. *See generally*
West Key \# \"Criminal Law\" 855(1).

This instruction is similar to *8^th^ Cir. Crim. Jury Instr.* 1.06
(2000).

**1.04A QUESTIONS BY JURORS**^1^

\[When attorneys have finished their examination of a witness, you may
ask questions of the witness (describe procedure to be used here).^2^ If
the rules of evidence do not permit a particular question, I will so
advise you. Following your questions, if any, the attorneys may ask
additional questions.\]

**Notes on Use**

1\. This instruction may be used if the court permits questioning of
witnesses by jurors. Various procedures have been used for handling
jurors\' questions. The Committee believes that the best procedure is to
require that the questions be submitted by the jurors in writing. The
Eighth Circuit has noted that allowing jurors to state questions orally
in the courtroom can be "somewhat troubling." *United States v. Land*,
877 F.2d 17, 19 (8^th^ Cir. 1989). The procedure employed for taking
jurors\' questions, considering objections, and posing the questions
should be left to the discretion of the judge. The jury should be
advised of the procedure to be used.

2\. Different methods have been used. For example:

> \(1\) When attorneys have finished their examination of a witness, you
> may submit a written question or questions if you have not understood
> something. I will review each question with the attorneys. You may not
> receive an answer to your question because I may decide that the
> question is not proper under the rules of evidence. Even if the
> question is proper, you may not get an immediate answer to your
> question. For instance, a later witness or an exhibit you will see
> later in the trial may answer your question.
>
> \(2\) Most of the testimony will be given in response to questions by
> the attorneys. Sometimes I may ask questions of a witness. When the
> attorneys have finished their questioning of a witness and I have
> finished mine, I shall ask you whether you have any questions for that
> witness. If you do, direct each of your questions to me, in writing,
> and if I decide that it meets the legal rules, I shall ask it of the
> witness. After all your questions for a witness have been dealt with,
> the attorneys will have an opportunity to ask the witness further
> about the subjects raised by your questions. When you direct questions
> to me to be asked of the witness, you may state them either orally or
> in writing.
>
> \(3\) The court will permit jurors to submit written questions during
> the course of the trial. Such questions must be submitted to the
> court, but, depending upon the court\'s ruling on the questions, the
> court may not submit them to the witness. The court will endeavor to
> permit such questions at the conclusion of a witness\' testimony.

**Committee Comments**

Some judges permit jurors to ask questions of witnesses during the
course of both civil and criminal trials. The advantage of this practice
is that jurors become more involved in the trial proceedings and are
permitted to address their particular concerns with respect to the
issues. *See* Hener and Penrod, *Increasing Jurors\' Participation with
Jury Notetaking and Question Asking*, 12 Law & Human Behavior 231
(1988). *See* *United States v. Johnson*, 914 F.2d 136 (8th Cir. 1990)
for a summary of Eighth Circuit opinions on the subject. The court
applied their typical \"abuse of discretion\" standard of review to
questions to which objections were made and the \"plain error\" rule to
questions to which no objections were made. Some perceive dangers in the
practice and have criticized it. *See* *United States v. Johnson*, 892
F.2d 707 (8th Cir. 1989) (concurrence by Lay, Chief Judge); *United
States v. Land*, 877 F.2d 17, 19 (8th Cir. 1989); *United States v.
Polowichak*, 783 F.2d 410, 413 (4th Cir. 1986); *DeBenedetto v. Goodyear
Tire & Rubber Co.*, 754 F.2d 512, 516 (4th Cir. 1985). The decision to
permit questions by jurors, and the procedures employed to control such
questions, should be left to the sound discretion of the trial judge.
*United States v. George*, 986 F.2d 1176, 1178-79 (8^th^ Cir. 1993).
Although the Committee makes no recommendation on whether jurors should
be allowed to question witnesses, the Eighth Circuit strongly
discouraged the procedure. The court, in *United States v. Welliver*,
976 F.2d 1148 (8th Cir. 1992), stated: \"\[n\]evertheless, we state once
again that we have strong concerns about juror questioning of witnesses.
. . . (Citations omitted.) These decisions in which seven, now eight, of
the judges of this court have joined make it evident that juror
interrogation of witnesses presents substantial risk of reversal and
retrial. Where a record is properly made and the record permits a
conclusion that prejudice occurred, this will be the inevitable
result.\" 976 F.2d at 1154-55.

**1.05 CONDUCT OF THE JURY**

To insure fairness, you as jurors must obey the following rules:

*First*, do not talk among yourselves about this case, or about anyone
involved with it, until the end of the case when you go to the jury room
to decide on your verdict.

*Second*, do not talk with anyone else about this case, or about anyone
involved with it, until the trial has ended and you have been discharged
as jurors.

*Third*, when you are outside the courtroom, do not let anyone tell you
anything about the case, or about anyone involved with it \[until the
trial has ended and your verdict has been accepted by me\]. If someone
should try to talk to you about the case \[during the trial\], please
report it to the deputy clerk or other court personnel.

*Fourth*, during the trial you should not talk with or speak to any of
the parties, lawyers or witnesses involved in this case - you should not
even pass the time of day with any of them. It is important not only
that you do justice in this case, but that you also give the appearance
of doing justice. If a person from one side of the lawsuit sees you
talking to a person from the other side - even if it is simply to pass
the time of day - an unwarranted and unnecessary suspicion about your
fairness might be aroused. If any lawyer, party or witness does not
speak to you when you pass in the hall, ride the elevator or the like,
remember it is because they are not supposed to talk or visit with you
either.

*Fifth*, do not read any news stories or articles about the case, or
about anyone involved with it, or listen to any radio, television or
Internet reports about the case or about anyone involved with it. \[In
fact, until the trial is over I suggest that you avoid reading any
newspapers or news journals and listening to any television, radio or
Internet newscasts. I do not know whether there might be any news
reports of this case, but if there are you might inadvertently find
yourself reading or listening to something before you could do anything
about it. If you want, you can have your spouse or a friend clip out any
stories and set them aside to give you after the trial is over. I can
assure you, however, that by the time you have heard the evidence in
this case, you will know what you need to decide it.\]^1^

*Sixth*, do not do any research or make any investigation on your own
about any matter involved in this case. By way of examples, that means
you must not consult a dictionary, textbook or encyclopedia, go to the
Internet or consult any other source for information about some issue or
person in this case. You must learn about this case from the evidence
you receive here at the trial and apply it to the law as I give it to
you.

*Seventh*, cell phones are not permitted in the jury room during
deliberation.

*Eighth*, do not make up your mind during the trial about what the
verdict should be. Keep an open mind until after you have gone to the
jury room to decide the case and you and your fellow jurors have
discussed the evidence.

**Notes on Use**

1\. Optional for those cases in which media coverage is expected.

**Committee Comments**

A similar instruction should be repeated before the first recess, and as
needed before other recesses (for example, before a weekend recess).
*See infra* Model Instruction 2.01 for a form of instruction before
recesses. *See also* instructions relating to recesses.

*See* *9^th^ Cir. Crim. Jury Instr.* 1.9 (2000); 3 Kevin F. O'Malley, et
al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 101.11 (5^th^ ed.
2000); Federal Judicial Center, *Pattern Criminal Jury Instructions* 1
(1988). *See generally* West Key \# \"Criminal Law\" 1174(1) for cases
on the conduct and deliberations of the jury.

**1.06 OUTLINE OF TRIAL**

The trial will proceed in the following manner:

First, the plaintiff\[s\]\'s attorney may make an opening statement.
Next, the defendant\[s\]\'s attorney may make an opening statement. An
opening statement is not evidence but is simply a summary of what the
attorney expects the evidence to be.

The plaintiff\[s\] will then present evidence and counsel for the
defendant\[s\] may cross-examine. Following the plaintiff\[s\]'s case,
the defendant may present evidence and plaintiff\[s\]\'s counsel may
cross-examine.

After the presentation of evidence is completed, the attorneys will make
their closing arguments to summarize and interpret the evidence for you.
As with opening statements, closing arguments are not evidence. The
court will instruct you further on the law. After that you will retire
to deliberate on your verdict.

**Committee Comments**

*See* *9^th^ Cir. Crim. Jury Instr.* 1.12 (2000); Federal Judicial
Center, *Pattern Criminal Jury Instructions* 1 (1988); 3 Kevin F.
O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 101.02
(5^th^ ed. 2000).

**2. INSTRUCTIONS FOR USE DURING TRIAL**

**Introductory Comment**

Instructions contained in this section may be read to the jury during
the course of the trial. They are not generally intended for submission
in written form at the conclusion of the case, although there is no
particular reason why, in appropriate circumstances, they could not be
submitted to the jury as part of the written package. Generally, they
will not be reread to the jury at the conclusion of the case, although
the court has discretion to do so.

**2.01 DUTIES OF JURY: RECESSES^1^**

We are about to take \[our first\] \[a\] recess and I remind you of the
instruction I gave you earlier. During this recess or any other recess,
you must not discuss this case with anyone, including your fellow
jurors, members of your family, people involved in the trial, or anyone
else. If anyone tries to talk to you about the case, please let the
deputy clerk or other court personnel know about it immediately. \[Do
not read, watch or listen to any news reports of the trial.\]^2^
Finally, keep an open mind until all the evidence has been received and
you have heard the views of your fellow jurors.

I may not repeat these things to you before every recess, but keep them
in mind throughout the trial.^3^

**Notes on Use**

1\. This instruction should be given before the first recess and at
subsequent recesses within the discretion of the court.

2\. This language should be modified for overnight or weekend recesses.

3\. This language may be omitted for subsequent breaks during trial, but
not for overnight or weekend recesses.

**Committee Comments**

The court has considerable discretion to allow the jury to go home or
separate before it has reached a verdict. *United States v. Williams*,
635 F.2d 744, 745 (8th Cir. 1980) and cases cited therein. However, the
jury must be admonished as to their duties and responsibilities when not
in court. Such an instruction may be given at the beginning of trial,
before recesses and lunch time, and most importantly, before separating
for the evening. *Id.* Although failure to give any instruction of this
nature during the course of a trial which was completed in one day has
been held harmless error, *Morrow v. United States*, 408 F.2d 1390 (8th
Cir. 1969), it is prejudicial error to allow the jury to separate
overnight without a cautionary instruction having been given at any
stage of the trial prior to separation. *Williams*, 635 F.2d at 746.
However, the failure to give a cautionary instruction prior to an
overnight separation was held not reversible error, absent any other
claim of prejudice where the jury had been so cautioned on at least
thirteen other occasions. *United States v. Weatherd*, 699 F.2d 959, 962
(8th Cir. 1983). *See also* *United States v. McGrane*, 746 F.2d 632
(8th Cir. 1984) holding that the jury was adequately cautioned when they
were so instructed on ten occasions.

*See* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil § 102.01 (5^th^ ed. 2000); Federal Judicial Center,
*Pattern Criminal Jury Instructions* 5 (1988); *9^th^ Cir. Crim. Jury
Instr.* 2.1 (2000).

**2.02 STIPULATED TESTIMONY**

The plaintiff\[s\] and the defendant\[s\] have stipulated - that is,
they have agreed - that if \_\_\_\_\_\_\_\_\_\_ were called as a witness
\[(he) (she)\] would testify in the way counsel have just stated. You
should accept that as being \_\_\_\_\_\_\_\_\_\_\'s testimony, just as
if it had been given here in court from the witness stand.

**Committee Comments**

There is, of course, a difference between stipulating that a witness
would give certain testimony, and stipulating that certain facts are
established. *United States v. Lambert*, 604 F.2d 594, 595 (8th Cir.
1979). As to the latter kind of stipulation, *see infra* Model
Instruction 2.03.

*See* *8^th^ Cir. Crim. Jury Instr.* 2.02 (2000); Federal Judicial
Center, *Pattern Criminal Jury Instructions* 11 (1988); *9^th^ Cir.
Crim. Jury Instr.* 2.3 (2000). *See generally* West Key \#
\"Stipulations\" 1-21; \"Criminal Law\" 1172.1(2).

**2.03 STIPULATED FACTS**

The plaintiff\[s\] and the defendant\[s\] have stipulated \-- that is,
they have agreed \-- that certain facts are as counsel have just stated.
You should, therefore, treat those facts as having been proved.

**Committee Comments**

There is, of course, a difference between stipulating that certain facts
are established, and stipulating that a witness would give certain
testimony. *United States v. Lambert*, 604 F.2d 594, 595 (8th Cir.
1979). As to the latter kind of stipulation, *see infra* Model
Instruction 2.02.

When parties enter into stipulations as to material facts, those facts
will be deemed to have been conclusively proved, and the jury may be so
instructed. *United States v. Houston*, 547 F.2d 104, 107 (9th Cir.
1976).

*See* *8^th^ Cir. Crim. Jury Instr.* 2.03 (2000); Federal Judicial
Center, *Pattern Criminal Jury Instructions* 12 (1988); *9^th^ Cir.
Crim. Jury Instr.* 2.4 (2000). *See generally* West Key \#
\"Stipulations\" 1-21, \"Criminal Law\" 1172.1(2).

**2.04 JUDICIAL NOTICE**

I have decided to accept as proved the following fact\[s\]:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

You must accept \[(this) (these)\] fact\[s\] as proved.

**Committee Comments**

An instruction regarding judicial notice should be given at the time
notice is taken.

Fed. R. Evid. 201(g), while permitting the judge to determine that a
fact is sufficiently undisputed to be judicially noticed, also requires
that the jury be instructed that it must accept as conclusive any fact
judicially noticed in a civil case.

*See* *8^th^ Cir. Crim. Jury Instr.* 2.04 (2000); 3 Kevin F. O'Malley,
et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.20 (5^th^
ed. 2000); Federal Judicial Center, *Pattern Criminal Jury Instructions*
7 (1988); *9^th^ Cir. Crim. Jury Instr.* 2.5 (2000). *See generally*
Fed. R. Evid. 201; West Key \# \"Evidence\" 1-52.

**2.05 TRANSCRIPT OF TAPE-RECORDED CONVERSATION**

As you have \[also\] heard, there is a typewritten transcript of the
tape recording \[I just mentioned\] \[you are about to hear\]. That
transcript also undertakes to identify the speakers engaged in the
conversation.

You are permitted to have the transcript for the limited purpose of
helping you follow the conversation as you listen to the tape recording,
and also to help you identify the speakers. The tape recording is
evidence for you to consider. The transcript, however, is not evidence.

You are specifically instructed that whether the transcript correctly or
incorrectly reflects the conversation or the identity of the speakers is
entirely for you to decide based upon what you have heard here about the
preparation of the transcript, and upon your own examination of the
transcript in relation to what you hear on the tape recording. The tape
recording itself is the primary evidence of its own contents. If you
decide that the transcript is in any respect incorrect or unreliable,
you should disregard it to that extent.

Differences between what you hear in the recording and read in the
transcript may be caused by such things as the inflection in a
speaker\'s voice, or by inaccuracies in the transcript. You should,
therefore, rely on what you hear rather than what you read when there is
a difference.

**Committee Comments**

The transcript, absent stipulation of the parties, should not go to the
jury room. *See* *United States v. Kirk*, 534 F.2d 1262 (8th Cir. 1976),
*cert. denied*, 430 U.S. 906 (1977), *reversed, in part, on other
grounds*, 723 F.2d 1379 (8^th^ Cir. 1983).

*See* *8^th^ Cir. Crim. Jury Instr.* 2.06 (2000); *see generally*
*United States v. McMillan*, 508 F.2d 101 (8th Cir. 1974); *United
States v. Bentley*, 706 F.2d 1498 (8th Cir. 1983).

**2.06 PREVIOUS TRIAL**

You have heard evidence that there was a previous trial of this case.
Keep in mind, however, that you must decide this case solely on the
evidence presented to you in this trial. The fact of a previous trial
should have no bearing on your decision in this case.^1^

**Notes on Use**

1\. The instruction should be modified if the results of the prior trial
are introduced.

**Committee Comments**

*See* *8^th^ Cir. Crim. Jury Instr.* 2.20 (2000); 3 Kevin F. O'Malley,
et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.42 (5^th^
ed. 2000); Federal Judicial Center, *Pattern Criminal Jury Instructions*
14 (1988); *9^th^ Cir. Crim. Jury Instr.* 2.14 (2000). *See generally*
West Key \# \"Evidence\" 575-83. This instruction should not be given
unless specifically requested.

**2.07 CROSS-EXAMINATION OF PARTY\'S CHARACTER WITNESS**

The questions and answers you have just heard were permitted only to
help you decide if the witness really knew about
\_\_\_\_\_\_\_\_\_\_\'s^1^ reputation for truthfulness.^2^ The
information developed on that subject may not be used by you for any
other purpose.^3^

**Notes on Use**

1\. Insert name of person whose character is being challenged.

2\. Fed. R. Evid. 404(a) and 608 generally limit character evidence in
civil cases to reputation for truth and veracity. It may involve
cross-examination on character traits which relate to truth and veracity
(gave false information to a law enforcement officer; falsified expense
account records).

3\. This instruction should be given if requested by the party who has
offered the character witness at the time the evidence is introduced.

**Committee Comments**

*See* *8^th^ Cir. Crim. Jury Instr.* 2.10 (2000); Federal Judicial
Center, *Pattern Criminal Jury Instructions* 52 (1988). *See generally*
Fed. R. Evid. 404, 405; West Key \# \"Criminal Law\" 673(2),
\"Witnesses\" 274(1); and *see also* *Gross v. United States*, 394 F.2d
216 (8th Cir. 1968).

**2.08A EVIDENCE ADMITTED AGAINST ONLY ONE PARTY**

Each party is entitled to have the case decided solely on the evidence
which applies to that party. Some of the evidence in this case is
limited under the rules of evidence to one of the parties, and cannot be
considered against the others.

The evidence you \[are about to hear\] \[just heard\]^1^ can be
considered only in the case against \_\_\_\_\_\_\_\_\_\_.^2^

**Notes on Use**

1\. If desired, the trial judge may give a brief summary of the evidence
which is admitted against only one of the parties.

2\. State name of party or parties.

**Committee Comments**

This type of instruction may be used when evidence limited to one or
more parties is admitted. *Cf.* *United States v. Kelly*, 349 F.2d 720,
757 (2d Cir. 1965), *cert. denied*, 384 U.S. 947 (1966); *but see*
*United States v. Polizzi*, 500 F.2d 856, 903 (9th Cir. 1974) (not error
to refuse a defendant\'s requested instruction that no evidence
introduced by the codefendants could be used against him or her where he
or she rested at close of the plaintiff\'s case).

*See* *8^th^ Cir. Crim. Jury Instr.* 2.14 (2000); 3 Kevin F. O'Malley,
et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.41 (5^th^
ed. 2000); Federal Judicial Center, *Pattern Criminal Jury Instructions*
19 (1988); *9^th^ Cir. Crim. Jury Instr.* 1.14 (2000). *See generally*
West Key \# \"Criminal Law\" 673(4), \"Trial\" 54(2).

Fed. R. Evid. 105 requires such an instruction if requested when
evidence is admitted against less than all parties.

**2.08B EVIDENCE ADMITTED FOR LIMITED PURPOSE**

The evidence \[(you are about to hear) (you have just heard)\] may be
considered by you only on the \[(issue) (question)\]
\_\_\_\_\_\_\_\_\_\_. It may not be considered for any other purpose.

**Committee Comments**

Such an instruction is appropriate at the time evidence admitted for a
limited purpose is received; for example, when a prior inconsistent
statement is admitted, or evidence is admitted or prior similar
incidents to prove notice by the defendant of a defect.

With respect to the use of prior inconsistent statements, Fed. R. Evid.
105 gives a party the right to require a limiting instruction explaining
that the use of this evidence is limited to credibility. This
instruction is appropriate for that purpose. Note, however, that the
limiting instruction should not be given if the prior inconsistent
statement was given under oath in a prior trial, hearing or deposition,
because such prior sworn testimony of a witness is not hearsay and may
be used to prove the truth of the matters asserted. Fed. R. Evid.
801(d)(1)(A).

*See infra* Model Instruction 3.03 for additional comments on
credibility.

**2.09 IMPEACHMENT OF WITNESS, PRIOR CONVICTION**

You have heard evidence that witness^1^ \_\_\_\_\_\_\_\_\_\_ has been
convicted of \[a crime\] \[crimes\]. You may use that evidence only to
help you decide whether to believe the witness and how much weight to
give \[(his) (her)\] testimony.

**Notes on Use**

1\. If the party in a civil case has a conviction which is introduced in
evidence, it would be appropriate to modify Eighth Cir. Crim. Inst. 2.16
and give the following instruction, unless the evidence is admitted
under Fed. R. Evid. 404(b) to prove motive, intent, plan, etc. Crim.
Inst. 2.16, modified for civil cases is as follows:

> You \[are about to hear\] \[have heard\] evidence that (name) was
> previously convicted of \[a\] crime\[s\]. You may use that evidence
> only to help you decide whether to believe \[(his) (her)\] testimony
> and how much weight to give it. That evidence does not mean that
> \[(he) (she)\] engaged in the conduct alleged here, and you must not
> use that evidence as any proof \[(he) (she)\] engaged in that conduct.

If the evidence is admitted under Fed. R. Evid. 404(b), Crim. Inst. 2.08
may be modified and used.

**Committee Comments**

The admissibility of prior convictions to impeach a witness\'
credibility is governed by Fed. R. Evid. 609. If the conviction involves
dishonesty or false statements, it may be admitted even if not a felony.
Fed. R. Evid. 609. There is substantial dispute about how much
information may be injected concerning the prior conviction. Some judges
do not even allow evidence of what crime, or what punishment was
involved. The judge may allow evidence of the specific crime committed
and the sentence. *Ross v. Jones*, 888 F.2d 548, 551 (8th Cir. 1989).
Fed. R. Evid. 105 gives a party the right to require a limiting
instruction explaining that the use of this evidence is limited to
credibility.

*See* *8^th^ Cir. Crim. Jury Instr.* 2.18 (2000); 3 Kevin F. O'Malley,
et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 102.44 (5^th^
ed. 2000); Federal Judicial Center, *Pattern Criminal Jury Instructions*
30 (1988); *Fifth Circuit Pattern Jury Instructions - Civil*,
Instruction 2.17 ( West 1998); *9^th^ Cir. Crim. Jury Instr.* 4.8
(2000). *See generally* Fed. R. Evid. 609, 105; West Key \#
\"Witnesses\" 344(1-5), 345 (1-4).

**2.10A DEMONSTRATIVE SUMMARIES NOT RECEIVED AS EVIDENCE**

Certain charts and summaries have been shown to you in order to help
explain the facts disclosed by the books, records, or other underlying
evidence in the case. Those charts or summaries are used for
convenience. They are not themselves evidence or proof of any facts. If
they do not correctly reflect the facts shown by the evidence in the
case, you should disregard these charts and summaries and determine the
facts from the books, records or other underlying evidence.

**Committee Comments**

*See* 4.11, *Eighth Cir. Model Jury Instructions, Criminal* (2005).

*This instruction should be given only where the chart or summary is
used solely as demonstrative evidence.* Where such exhibits are admitted
into evidence pursuant to Fed. R. Evid. 1006, do *not* give this
instruction. For summaries admitted as evidence pursuant to Fed. R.
Evid. 1006, *see* Instruction 2.10B, *infra*.

Sending purely demonstrative charts to the jury room is disfavored. If
they are submitted limiting instructions are strongly suggested. *United
States v. Possick*, 849 F.2d 332, 339 (8th Cir. 1988). The court may
advise the jury that demonstrative evidence will not be sent back to the
jury room.

**2.10B RULE 1006 SUMMARIES**

You will remember that certain \[schedules\] \[summaries\] \[charts\]
were admitted in evidence. You may use those \[schedules\] \[summaries\]
\[charts\] as evidence, even though the underlying documents and records
are not here.^1^ \[However, the \[accuracy\] \[authenticity\] of those
\[schedules\] \[summaries\] \[charts\] has been challenged. It is for
you to decide how much weight, if any, you will give to them. In making
that decision, you should consider all of the testimony you heard about
the way in which they were prepared.\]^2^

**Notes on Use**

1\. This instruction is not necessary if a stipulation instruction has
been given on the subject.

2\. The bracketed portion of this instruction should be given if the
accuracy or authenticity has been challenged.

**Committee Comments**

*See* 4.12, *Eighth Cir. Model Jury Instructions, Criminal* (2005). *See
generally* Fed. R. Evid. 1006, 1008(c).

This instruction is based on Rule 1006 of the Federal Rules of Evidence,
which permits summaries to be admitted as evidence without admission of
the underlying documents as long as the opposing party has had an
opportunity to examine and copy the documents at a reasonable time and
place and if those underlying documents would be admissible. *Ford Motor
Co. v. Auto Supply Co., Inc.*, 661 F.2d 1171, 1175-76 (8th Cir. 1981).
The Rules contemplate that the summaries will not be admitted until the
court has made a preliminary ruling as to their accuracy. *See* Fed. R.
Evid. 104; *United States v. Robinson*, 774 F.2d 261, 276 (8th Cir.
1985).

As Rule 1008(c) makes clear, the trial judge makes only a preliminary
determination regarding a Rule 1006 summary, the accuracy of which is
challenged. The admission is within the sound discretion of the trial
judge. *United States v. King*, 616 F.2d 1034, 1041 (8th Cir. 1980). If
the determination is to admit the summary, the jury remains the final
arbiter with respect to how much weight it will be given and should be
instructed accordingly.

The \"voluminous\" requirement of Rule 1006 does not require that it
literally be impossible to examine all the underlying records, but only
that in-court examination would be an inconvenience. *United States v.
Possick*, 849 F.2d 332, 339 (8th Cir. 1988).

Charts and diagrams admitted under Rule 1006 may be sent to the jury at
the district court\'s discretion. *Possick*, 849 F.2d at 339; *United
States v. Orlowski*, 808 F.2d 1283, 1289 (8th Cir. 1986); *United States
v. Robinson*, 774 F.2d at 275.

When this type of exhibit is sent to the jury, a limiting instruction is
appropriate, but failure to give an instruction on the use of charts is
not reversible error. *Possick*, 849 F.2d at 340.

There may be cases in which a variety of summaries are before the jury,
some being simply demonstrative evidence, some being unchallenged Rule
1006 summaries, and some being challenged Rule 1006 summaries. In that
situation, or any variant thereof, it will be necessary for the trial
court to distinguish between the various items, probably by exhibit
number, and to frame an instruction which makes the appropriate
distinctions.

**2.11 WITHDRAWAL**

The claim of the plaintiff\[s\] that the defendant\[s\]
\_\_\_\_\_\_\_\_\_\_\_^1^ is no longer before you and will not be
decided by you.

**Notes on Use**

1\. Describe briefly the claim which is being withdrawn. If a defendant
is dismissed, modify the instruction as follows:

> The claim of plaintiff against defendant \_\_\_\_\_\_\_\_\_\_\_\_\_\_
> is no longer before you and will not be decided by you.

(**Note:** If a counterclaim is dismissed, transpose the names of the
plaintiff and the defendant.)

**Committee Comments**

This is a simplified form. An identical instruction, Model Instruction
3.05, *infra*, has been included in section 3 for advising the jury of
the withdrawal of a claim at the end of the trial. This instruction is
intended for use during the time at which the claim is withdrawn and may
be modified and used for the withdrawal of counterclaims or affirmative
defenses. If this instruction is given during the course of trial, it
need not be given with the final instructions. The judge may wish to
discuss the matter of withdrawal of a claim with the lawyers to obtain
an agreement as to what the jurors are told.

*See* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil § 102.60 (5^th^ ed. 2000).

**2.12 DEPOSITION EVIDENCE AT TRIAL**

Testimony will now be presented to you in the form of a deposition. A
deposition is the recorded answers a witness made under oath to
questions asked by lawyers before trial. The deposition testimony to be
offered \[was recorded in writing and now will be read to you\] \[was
electronically videotaped and that recording now will be played for
you\]. You should consider the deposition testimony, and judge its
credibility, as you would that of any witness who testifies here in
person. \[You should not place any significance on the manner or tone of
voice used to read the witness\'s answers to you.\]

**Committee Comments**

This instruction should be given when deposition testimony is offered
and allowed as substantive evidence. *See* Fed. R. Evid. 801(d)(2),
804(b)(1); Fed. R. Civ. P. 32(a). The Committee recommends that this
instruction be given immediately before a deposition is read or
electronically played to the jury. If a successive deposition is offered
into evidence, the court may remind the jury of this instruction instead
of repeating the entire instruction.

This instruction should not be used when deposition testimony is used
for impeachment purposes only. Fed. R. Civ. P. 32(a)(2).

**3. INSTRUCTIONS FOR USE AT CLOSE OF TRIAL**

**Introductory Comment**

If issue/element instructions are submitted to the jury in writing, then
these general instructions should also be submitted in writing at the
same time. They are intended as general instructions to be submitted
after all evidence has been presented. They may be given either before
or after closing arguments, or may be given partially before and
partially after arguments. Fed. R. Civ. P. 51.

The elements instructions included herein all have what might be called
a converse tail; that is, a last sentence which tells the jury their
verdict must be for the defendant if any of the elements have not been
proved. It would also be proper if the court or parties desire, to
delete that sentence and have a separate instruction which tells the
jury their verdict must be for the defendant unless they find that any
required element of the plaintiff\'s case has not been proved. *See
infra* Model Instruction 7.02A for the format to be used for such
instruction. This approach has the advantage of letting a defendant
\"target\" or \"focus\" the case on the element which is most contested.
It also may aid the jury to know where their attention should be
focused.

**3.01 EXPLANATORY**

Members of the jury, the instructions I gave at the beginning of the
trial and during the trial remain in effect. I now give you some
additional instructions.

You must, of course, continue to follow the instructions I gave you
earlier, as well as those I give you now. You must not single out some
instructions and ignore others, because [all]{.underline} are important.
\[This is true even though some of those I gave you \[at the beginning
of\] \[during\] trial are not repeated here.\]

^1^\[The instructions I am about to give you now \[as well as those I
gave you earlier\] are in writing and will be available to you in the
jury room.\] \[I emphasize, however, that this does not mean they are
more important than my earlier instructions. Again, [all]{.underline}
instructions, whenever given and whether in writing or not, must be
followed.\]

**Notes on Use**

1\. Optional for use when the final instructions are to be sent to the
jury room with the jury. The Committee recommends that practice.

**Committee Comments**

*See* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil § 103.01 (5^th^ ed. 2000); *9^th^ Cir. Crim. Jury
Instr.* 3.1 (2000). *See generally* West Key \# \"Criminal Law\" 887.

**3.02 JUDGE\'S OPINION**

Neither in these instructions nor in any ruling, action or remark that I
have made during the course of this trial have I intended to give any
opinion or suggestion as to what your verdict\[s\] should be.

\[During this trial I have occasionally asked questions of witnesses. Do
not assume that because I asked questions I hold any opinion on the
matters to which my questions related.\]^1^

**Notes on Use**

1\. Use only if judge has asked questions during the course of the
trial.

**3.03 CREDIBILITY OF WITNESSES**

In deciding what the facts are, you may have to decide what testimony
you believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it.

In deciding what testimony to believe, you may consider a witness\'
intelligence, the opportunity a witness had to see or hear the things
testified about, a witness\' memory, any motives a witness may have for
testifying a certain way, the manner of a witness while testifying,
whether a witness said something different at an earlier time,^1^ the
general reasonableness of the testimony, and the extent to which the
testimony is consistent with any evidence that you believe.

\[In deciding whether or not to believe a witness, keep in mind that
people sometimes hear or see things differently and sometimes forget
things. You need to consider therefore whether a contradiction is an
innocent misrecollection or lapse of memory or an intentional falsehood,
and that may depend on whether it has to do with an important fact or
only a small detail.\]

**Notes on Use**

1\. With respect to the use of prior inconsistent statements, Fed. R.
Evid. 105 gives a party the right to require a limiting instruction
explaining that the use of this evidence is limited to credibility.
Note, however, that such a limiting instruction should not be given if
the prior inconsistent statement was given under oath in a prior trial,
hearing or deposition, because such prior sworn testimony of a witness
is not hearsay and may be used to prove the truth of the matters
asserted. Fed. R. Evid. 801(d)(1)(A).

**Committee Comments**

The form of credibility instruction given is within the discretion of
the trial court. *Clark v. United States*, 391 F.2d 57, 60 (8th Cir.
1968); *United States v. Merrival*, 600 F.2d 717, 719 (8th Cir. 1979).
In *Clark* the court held that the following instruction given by the
trial court correctly set out the factors to be considered by the jury
in determining the credibility of the witnesses:

> You are instructed that you are the sole judges of the credibility of
> the witnesses and of the weight and value to be given to their
> testimony. In determining such credibility and weight you will take
> into consideration the character of the witness, his or her demeanor
> on the stand, his or her interest, if any, in the result of the trial,
> his or her relation to or feeling toward the parties to the trial, the
> probability or improbability of his or her statements as well as all
> the other facts and circumstances given in evidence.

391 F.2d at 60. In *Merrival*, the court held that the following general
credibility instruction provided protection for the accused:

> You, as jurors, are the sole judges of the truthfulness of the
> witnesses and the weight their testimony deserves.
>
> You should carefully study all the testimony given, the circumstances
> under which each witness has testified, and every matter in evidence
> which tends to show whether a witness is worthy of belief. Consider
> each witness\'s ability to observe the matters as to which he or she
> has testified and whether each witness is either supported or
> contradicted by other evidence in the case.

600 F.2d at 720 n.2.

The general credibility instruction given in *United States v.
Phillips*, 522 F.2d 388, 391 (8th Cir. 1975) covers other details:

> The jurors are the sole judges of the weight and credibility of the
> testimony and of the value to be given to each and any witness who has
> testified in the case. In reaching a conclusion as to what weight and
> value you ought to give to the testimony of any witness who has
> testified in the case, you are warranted in taking into consideration
> the interest of the witness in the result of the trial; take into
> consideration his or her relation to any party in interest; his or her
> demeanor upon the witness stand; his or her manner of testifying; his
> or her tendency to speak truthfully or falsely, as you may believe,
> the probability or improbability of the testimony given; his or her
> situation to see and observe; and his or her apparent capacity and
> willingness to truthfully and accurately tell you what he or she saw
> and observed; and if you believe any witness testified falsely as to
> any material issue in this case, then you must reject that which you
> believe to be false, and you may reject the whole or any part of the
> testimony of such witness. (Emphasis omitted.)

The instruction in the text is basically a paraphrase of *9^th^ Cir.
Crim. Jury Instr.* 3.9 (2000) and 3 Kevin F. O'Malley, et al., FEDERAL
JURY PRACTICE AND INSTRUCTIONS: Civil § 101.43 (5^th^ ed. 2000), as
approved in *United States v. Hastings*, 577 F.2d 38, 42 (8th Cir.
1978). However, any factors set out in the *Phillips*, *Clark*, or
*Merrival* instructions may be added in as deemed relevant to the case.

A general instruction on the credibility of witnesses is in most cases
sufficient. Whether a more specific credibility instruction is required
with respect to any particular witness or class of witnesses is
generally within the discretion of the trial court.

The credibility of a child witness is covered in 3 Kevin F. O'Malley, et
al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 105.12 (5^th^ ed.
2000). Ninth Circuit Instruction 4.15 recommends that no \"child
witness\" instruction be given. This Committee joins in those comments.

The testimony of police officers is addressed in *Golliher v. United
States*, 362 F.2d 594, 604 (8th Cir. 1966).

Factors to be taken into account in determining whether a special
instruction is warranted with respect to a drug user are discussed in
*United States v. Johnson*, 848 F.2d 904, 905-06 (8th Cir. 1988).

Whether a party is entitled to a more specific instruction on witness
bias is also generally left to the discretion of the trial court. *See*
*United States v. Ashford*, 530 F.2d 792, 799 (8th Cir. 1976).

*See* *9^th^ Cir. Crim. Jury Instr.* 3.9 (2000); 3 Kevin F. O'Malley, et
al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 105.01 (5^th^ ed.
2000); *Fifth Circuit Pattern Jury Instructions - Civil*, Instruction
3.1 (West 1998); U.S. *Eleventh Circuit Pattern Jury Instructions -
Civil Cases*, Instruction 3 (West 1990); *United States v. Hastings*,
577 F.2d 38, 42 (8th Cir. 1978). *See generally* West Key \# \"Criminal
Law\" 785(1-16).

*See also* Model Instruction l.05, *infra*.

**3.04 BURDEN OF PROOF**

**(Ordinary Civil Case)**

In these instructions you are told that your verdict depends on whether
you find certain facts have been proved \[by the greater weight of the
evidence\]. In order to find that \[(a fact) (an element)\] has been
proved \[by the greater weight of the evidence\], you must find that it
is more likely true than not true. It is determined by considering all
of the evidence and deciding which evidence is more believable. If, on
any issue in the case, you cannot decide whether a fact is more likely
true than not true, you cannot find that it has been proved.

\[The greater weight of the evidence is not necessarily determined by
the greater number of witnesses or exhibits a party has presented.\]

\[You may have heard of the term \"proof beyond a reasonable doubt.\"
That is a stricter standard which applies in criminal cases. It does not
apply in civil cases such as this. You should, therefore, put it out of
your minds.\]

**Committee Comments**

The phrases which are bracketed are optional, depending upon the
preference of the judge. If a different burden-of-proof instruction is
used, the issue/element instructions should be modified to correspond to
the language of that burden-of-proof instruction. Again, the Committee
recognizes that judges may desire to use the burden-of-proof formulation
found in the pattern jury instructions adopted by their particular
states. If such a burden-of-proof instruction is used, the issue/element
instruction must be modified accordingly. The elements instructions will
direct the jury to find in favor of a party if \"it has been proved,\"
without reference to who must prove the elements. That is not an
oversight because it does not matter which party proves something,
*e.g.*, whether the defendant proved part of the plaintiff\'s case. It
only matters, at that stage in the proceedings, whether it has been
proved by anyone.

**3.05 WITHDRAWAL (OF CLAIM)**

The claim of the plaintiff\[s\] that defendant\[s\]
\_\_\_\_\_\_\_\_\_\_\_^1^ is no longer before you and will not be
decided by you.

**Notes on Use**

1\. Describe briefly the claim which is being withdrawn. If a defendant
is dismissed, modify the instruction as follows:

> The claim of the plaintiff against defendant
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_ is no longer before you and will not be
> decided by you.

(**Note:** If a counterclaim is dismissed, transpose the names of the
plaintiff and the defendant.)

**Committee Comments**

This instruction is intended for use during the time at which the claim
is withdrawn and may be modified and used for the withdrawal of
counterclaims or affirmative defenses. If this instruction is given
during the course of trial, it need not be given with the final
instructions. The judge may wish to discuss the matter of withdrawal of
a claim with the lawyers to obtain an agreement as to what the jurors
are told.

*See* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil § 102.60 (5^th^ ed. 2000).

**3.06 ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS**

**WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM**

In conducting your deliberations and returning your verdict, there are
certain rules you must follow.

*First*, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your
discussions and speak for you here in court.

*Second*, it is your duty, as jurors, to discuss this case with one
another in the jury room. You should try to reach agreement if you can
do so without violence to individual judgment, because a verdict must be
unanimous.

Each of you must make your own conscientious decision, but only after
you have considered all the evidence, discussed it fully with your
fellow jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you
that you should. But do not come to a decision simply because other
jurors think it is right, or simply to reach a verdict. Remember at all
times that you are not partisans. You are judges - judges of the facts.
Your sole interest is to seek the truth from the evidence in the case.

*Third*, if you need to communicate with me during your deliberations,
you may send a note to me through the marshal or bailiff, signed by one
or more jurors. I will respond as soon as possible either in writing or
orally in open court. Remember that you should not tell anyone -
including me - how your votes stand numerically.

*Fourth*, your verdict must be based solely on the evidence and on the
law which I have given to you in my instructions. The verdict must be
unanimous. Nothing I have said or done is intended to suggest what your
verdict should be - that is entirely for you to decide.^1^

*Finally*, the verdict form is simply the written notice of the decision
that you reach in this case. \[The form reads: (read form)\]. You will
take this form to the jury room, and when each of you has agreed on the
verdict\[s\], your foreperson will fill in the form, sign and date it,
and advise the marshal or bailiff that you are ready to return to the
courtroom.

\[If more than one form was furnished, you will bring the unused forms
in with you.\]

**Notes on Use**

1\. The trial judge may give a fair summary of the evidence as long as
the comments do not relieve the jury of its duty to find that each party
has proved those elements of the case upon which such party has the
burden of proof. Judges may, in appropriate cases, focus the jury on the
primary disputed issues, but caution should be exercised in doing so.
*See* *United States v. Neumann*, 887 F.2d 880, 882-83 (8th Cir. 1989)
(en banc).

**Committee Comments**

If a hung jury is possible, use Model Instruction 3.07, *infra*.

**3.07 \"ALLEN\" CHARGE TO BE GIVEN AFTER EXTENDED DELIBERATION**

As stated in my instructions, it is your duty to consult with one
another and to deliberate with a view to reaching agreement if you can
do so without violence to your individual judgment. Of course you must
not surrender your honest convictions as to the weight or effect of the
evidence solely because of the opinions of other jurors or for the mere
purpose of returning a verdict. Each of you must decide the case for
yourself; but you should do so only after consideration of the evidence
with your fellow jurors.

In the course of your deliberations you should not hesitate to reexamine
your own views, and to change your opinion if you are convinced it is
wrong. To reach a unanimous result you must examine the questions
submitted to you openly and frankly, with proper regard for the opinions
of others and with a willingness to re-examine your own views.

Finally, remember that you are not partisans; you are judges - judges of
the facts. Your sole interest is to seek the truth from the evidence.
You are the judges of the credibility of the witnesses and the weight of
the evidence.

You may conduct your deliberations as you choose. But I suggest that you
carefully \[re\]consider all the evidence bearing upon the questions
before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a
better way or that a more conscientious, impartial or competent jury
would be selected to hear it. Any future jury must be selected in the
same manner and from the same source as you. If you should fail to agree
on a verdict, the case is left open and must be disposed of at some
later time.^1^

\[Please go back now to finish your deliberations in a manner consistent
with your good judgment as reasonable persons.\]^2^

**Notes on Use**

1\. A more expanded version of this instruction has been approved by
this Circuit. *See* *United States v. Smith*, 635 F.2d 716, 722-23
(8^th^ Cir. 1980) ; *United States v. Singletary*, 562 F.2d 1058,
1060-61 (8^th^ Cir. 1977); *United States v. Hecht*, 705 F.2d 976, 979
(8th Cir. 1983).

2\. Use this sentence when this charge is being given after
deliberations have begun.

**Committee Comments**

This instruction is a modification of *8^th^ Cir. Crim. Jury Instr.*
10.02 (2000). *See also* the Committee Comments in that instruction. The
language of this instruction covers the essential points of the
traditional \"Allen\" charge, taken from the instruction approved in
*United States v. Smith*, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge
Gibson noted in *Potter v. United States*, 691 F.2d 1275, 1277 (8th Cir.
1982) that \"caution . . . dictates . . . that trial courts should avoid
substantial departures from the formulations of the charge that have
already received judicial approval.\"

It is not necessarily reversible error for the trial court to give a
supplemental instruction *sua sponte* and even without direct
announcement by the jury of its difficulty. *United States v. Smith*,
635 F.2d 716, 721 (8^th^ Cir. 1980). The safe practice, however, would
be to give such an instruction only after the jury has directly
communicated its difficulty or the length of time spent in
deliberations, compared with the nature of the issues and length of
trial, and makes it clear that difficulty does exist. A premature
supplemental charge certainly could, in an appropriate case, be
sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is
truly deadlocked, but may not ask the jury of the nature and extent of
its division. *Lowenfield v. Phelps*, 484 U.S. 231 (1988); *Brasfield v.
United States*, 272 U.S. 448 (1926); *United States v. Webb*, 816 F.2d
1263, 1266 (8th Cir. 1987). The fact that the court inadvertently learns
the division of the jurors does not, by itself, prevent the giving of a
supplemental charge. *United States v. Cook*, 663 F.2d 808 (8th Cir.
1981); *Anderson v. United States*, 262 F.2d 764, 773-74 (8th Cir.
1959). Such an instruction can be coercive, however, where the sole
dissenting juror is aware that the court knows his identity. *United
States v. Sae-Chua*, 725 F.2d 530 (9th Cir. 1984).

In this circuit the defendant is not entitled to an instruction that the
jury has the right to reach no decision. *United States v. Arpan*, 887
F.2d 873 (8th Cir. *en banc* 1989).

A court may give an Allen charge without consent of the lawyers. It has
been widely approved by federal courts of appeal as a fair and
reasonable way to urge jurors to reach a verdict. The Eighth Circuit, in
criminal cases, has consistently upheld the authority of the court to
give the Allen charge after extended jury deliberation *without* either
requesting or receiving consent from the attorneys representing the
parties. *See*, *e.g.*, *United States v. Singletary*, 562 F.2d 1058,
1060 (8th Cir. 1977); *United States v. Ringland*, 497 F.2d 1250,
1252-53 (8th Cir. 1974).

The Third Circuit has totally banned Allen charges, holding that such
charges are overly coercive. *United States v. Fioravanti*, 412 F.2d 407
(3d Cir. 1969). The Tenth Circuit has cautioned that the Allen charge
should be included, if at all, in the original instructions due to the
\"inherent danger in this type of instruction when given to an
apparently deadlocked jury.\" *United States v. Wynn*, 415 F.2d 135, 137
(10th Cir. 1969).

While the Eighth Circuit has \"encouraged district courts to consider
with particular care whether a supplemental *Allen* instruction is
absolutely necessary under the circumstances,\" *Potter v. United
States*, 691 F.2d 1275, 1277 (8th Cir. 1982) (citing *United States v.
Smith*, 635 F.2d at 722), the Eighth Circuit has refused to adopt the
Third Circuit ban on Allen charges. *United States v. Skillman*, 442
F.2d 542, 558 (8th Cir. 1971).

Although Allen charges have primarily been considered in criminal cases,
courts in civil cases also have authority to give Allen charges. *See*
*Railway Express Agency v. Mackay*, 181 F.2d 257, 262-63 (8th Cir.
1950); *Hill v. Wabash Ry. Co.*, 1 F.2d 626, 631 (8th Cir. 1924). *See
also* 3 Sand, Siffert, Reiss, Sexton and Thrope, *Modern Federal Jury
Instructions*, Instruction 78-4 Comment, p. 78-12 to 78-13 (1990).
Therefore, courts in both criminal and civil cases have the authority to
give Allen charges without the consent of attorneys for the parties.

**4. PRISONER/PRETRIAL DETAINEE CIVIL RIGHTS CASES**

**Introductory Comment**

Section 4 contains jury instructions relating primarily to prisoner
civil rights cases. This section is organized as follows:

> 4.10 - 4.19 Instructions covering cases filed by individuals who are
> complaining of the manner in which they were treated at the time they
> were arrested and before they were placed in confinement (governed
> generally by the Fourth Amendment);
>
> 4.20 - 4.29 Instructions covering complaints filed by individuals
> after they are placed in confinement but before they are convicted
> (pretrial detainees) (governed generally by the Fifth and Fourteenth
> Amendments due process clauses which require that force be reasonably
> related to legitimate institutional needs); and
>
> 4.30 - 4.39 Instructions covering complaints filed by individuals
> after they are sentenced (governed generally by the Eighth Amendment).
>
> 4.40 - 4.49 Definitions
>
> 4.50 - 4.59 Damages
>
> 4.60 - 4.69 Verdict Forms

**4.10 EXCESSIVE USE OF FORCE - ARREST OR OTHER SEIZURE OF**

**PERSON - BEFORE CONFINEMENT - FOURTH AMENDMENT**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[here generally describe the claim\]^2^ if
all the following elements have been proved^3^:

*First*, the defendant \[here describe an act such as \"struck, hit,
kicked, or shot\"\]^4^ the plaintiff in the act of \[arresting or
stopping\]^5^ the plaintiff, and

*Second*, the use of such force was excessive because it was not
reasonably necessary to \[here describe the purpose for which force was
used such as \"arrest the plaintiff,\" or \"take the plaintiff into
custody,\" or \"stop the plaintiff for investigation\"\], and

*Third*, as a direct result, the plaintiff was damaged,^6^ and

\[*Fourth*, the defendant was acting under color of state law.\]^7^

In determining whether such force, \[if any\]^8^ was \"excessive,\" you
must consider such factors as the need for the application of force, the
relationship between the need and the amount of force that was used, the
extent of the injury inflicted, and whether a reasonable officer on the
scene, without the benefit of 20/20 hindsight, would have used such
force under similar circumstances. \[You should keep in mind that the
decision about how much force to use often must be made in circumstances
that are tense, uncertain and rapidly changing.\]^9^ \[Deadly force^10^
may be used only if it is reasonably believed necessary to \[(apprehend
a dangerous, fleeing felon) (prevent a significant threat of death or
serious physical harm to the officer or others)\].^11^ A warning must be
given, if feasible, before deadly force may be used.\] You must consider
whether the officer\'s actions are reasonable in the light of the facts
and circumstances confronting the officer \[without regard to the
officer\'s own state of mind, intention or motivation\].^12^

If any of the above elements has not been proved, then your verdict must
be for the defendant.

\["Deadly force" is force intended or reasonably likely to cause death
or serious physical injury.\]^13^

**Notes on Use**

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

2\. Describe the claim if the plaintiff has more than one claim against
this defendant.

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

4\. The conduct indicated by the plaintiff\'s evidence should be
described generally. This instruction assumes that probable cause for
the arrest or stop is not in dispute. If it is in issue, that claim
should be submitted in a separate instruction.

5\. Here describe the nature of the seizure of the plaintiff in which
the defendant was engaged.

6\. A finding that the plaintiff suffered some actual injury or damage
is necessary before an award of substantial compensatory damages may be
made under 42 U.S.C. § 1983. *Cunningham v. City of Overland*, 804 F.2d
1066, 1069-70 (8th Cir. 1986). Specific language which describes the
damage the plaintiff suffered may be included here and in the damage
instruction. Model Instruction 4.50A, *infra*.

A nominal damages instruction may have to be submitted under *Cowans v.
Wyrick*, 862 F.2d 697, 700 (8th Cir. 1988). *See infra* Model
Instruction 4.50B.

7\. Use this language if there is an issue as to whether the defendant
was acting under color of state law, a prerequisite to a claim under 42
U.S.C. § 1983. Typically, this element will be conceded by the
defendant. If so, it need not be included in this instruction. Color of
state law will have to be defined on the factual issue specified if this
paragraph is used. *See infra* Model Instruction 4.40.

8\. Include this phrase if the defendant denies the use of any force.

9\. Add this phrase if appropriate. *See Graham v. Connor*, 490 U.S. 386
(1989). It should not be used if repetitious. *See Billingsley v. City
of Omaha*, 277 F.3d 990 (8^th^ Cir. 2002). It need not be included if
the defendant denies all use of force. *Boesing v. Hunter*, 2008 WL
3981804 (8^th^ Cir. Aug. 29, 2008).

10\. Add the definition of deadly force if the phrase is used in the
instruction.

11\. Add this phrase or other appropriate language if deadly force is
used. *See Rahn v. Hawkins*, 464 F.3d 813 (8^th^ Cir. 2006); *Tennessee
v. Garner*, 471 U.S. 1 (1985).

12\. Add this phrase if there is evidence of the defendant officer's ill
will toward the plaintiff. *See Graham v. Connor*, 490 U.S. 386 (1989).

13\. Use this or another definition if deadly force was used, or may
have been used. *See* *Kuha v. City of Minnetonka*, 365 F.3d 590, 597-98
(8^th^ cir. 2004) (use of police dog not deadly force); *Black's Law
Dictionary*, 580 (5^th^ ed. 1979); *Webster's Ninth New Collegiate
Dictionary*, 326 (1985); RESTATEMENT 2d OF TORTS § 131 (1965); *Black's
Law Dictionary*, 656 (7^th^ ed. 1999) ("violent action known to create a
substantial risk of causing death or serious bodily harm"). There are a
variety of formulations, all of which are similar.

**Committee Comments**

This instruction should only be used in connection with claims by people
that excessive force was used to arrest them, stop them for
investigation, or otherwise seize them. In *Graham v. Connor*, 490 U.S.
386 (1989), the Supreme Court held that a \"reasonableness\" standard,
derived from the Fourth Amendment, applied in cases involving the use of
force in making an arrest or an investigatory stop. *Id.* at 393-94.
*See also Cole v. Bone*, 993 F.2d 1328, 1333 (8th Cir. 1993). This
instruction does not cover cases involving injuries to persons other
than to the suspect. For the elements for such a case, *see Terrell v.
Larson*, 396 F.3d 975 (8^th^ Cir. 2005) (en banc).

In *Tennessee v. Garner*, 471 U.S. 1, 11-12 (1985), the Court stated:
"Where the suspect poses no immediate threat to the officer and no
threat to others, the harm resulting from failing to apprehend him does
not justify the use of deadly force to do so. \* \* \* Where the officer
has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.
Thus, if the suspect threatens the officer with a weapon or there is
probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly
force may be used if necessary to prevent escape, and if, where
feasible, some warning has been given." *See also Scott v. Harris*,
\_\_\_ U.S. \_\_\_, 127 S. Ct. 1769 (2007) (high speed chase); *Rahn v.
Hawkins*, 464 F.3d 813 (8^th^ Cir. 2006).

A threat to use deadly force is not generally considered a deadly force.
*See* § 3.11(2), Model Penal Code; *Black's Law Dictionary*, p. \_\_\_
(8^th^ ed. 2004).

Once an individual becomes a pretrial detainee, the use of force is
measured by a substantive due process standard of the Fifth and
Fourteenth Amendments. *Johnson-El v. Schoemehl*, 878 F.2d 1043, 1048-49
(8th Cir. 1989). *See generally*, Model Instruction 4.20, *infra*, for
use of excessive force claims of pretrial detainees. The Eighth Circuit
has not decided when the person\'s status changes from \"arrestee\" to
\"pretrial detainee.\" Most circuits that have addressed the issue found
that the person becomes a pretrial detainee after the time of the first
appearance before a judicial officer. *See Powell v. Gardner*, 891 F.2d
1039, 1044 (2d Cir. 1989); *Hammer v. Gross*, 884 F.2d 1200, 1204 (9th
Cir. 1989), *vacated en banc on other grounds*, 932 F.2d 842, 845 n.1
(9th Cir. 1991) (noting agreement with Fourth Amendment standard);
*Austin v. Hamilton*, 945 F.2d 1155, 1159-60, 1162 (10th Cir. 1991),
*abrogated on other grounds by* *Johnson v. Jones*, 515 U.S. 304 (1995);
*Pride v. Does*, 997 F.2d 712, 716 (10th Cir. 1993). These cases are
discussed in *Pyka v. Village of Orland Park*, 906 F. Supp. 1196, 1220
(N.D. Ill. 1995). The prevailing view appears to be that the use of
force by the arresting officer, after the individual is taken into
custody, but prior to the first appearance before a neutral judicial
officer, is to be decided under Fourth Amendment standards. The
individual\'s status as a pretrial detainee continues until the
individual has been sentenced. *Williams-El v. Johnson*, 872 F.2d 224,
228-29 (8th Cir. 1989) (a person convicted, not yet sentenced, is still
a pretrial detainee).

Any injury can be sufficient to warrant an award of damages. *See Cowans
v. Wyrick*, 862 F.2d 697, 700 (8th Cir. 1988); *Bolin v. Black*, 875
F.2d 1343, 1350 (8th Cir. 1989). The jury should be instructed on
nominal damages when appropriate. *See infra* Model Instruction 4.50B.

**4.20 EXCESSIVE USE OF FORCE - PRETRIAL DETAINEES -**

**FIFTH AND FOURTEENTH AMENDMENTS**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[here generally describe the claim\]^2^ if
all the following elements have been proved^3^:

*First*, the defendant \[here describe an act such as \"struck, hit,
kicked, or shot\"\]^4^ the plaintiff, and

*Second*, the use of such force was excessive because it was not
reasonably necessary to \[here describe the purpose for which force was
used such as \"restore order,\" or \"maintain discipline,\"\]^5^, and

*Third*, as a direct result, the plaintiff was damaged,^6^ and

\[*Fourth*, the defendant was acting under color of state law.\]^7^

In determining whether the force \[if any\]^8^ was excessive, you must
consider such factors as the need for the application of force, the
relationship between the need and the amount of force that was used, the
extent of the injury inflicted, and whether it was used for punishment
or instead to achieve a legitimate purpose such as maintaining order or
security within \[here describe the facility in which the plaintiff was
incarcerated\] and whether a reasonable officer on the scene would have
used such force under similar circumstances. \[You should keep in mind
that the decision about how much force to use often must be made in
circumstances that are tense, uncertain and rapidly changing.\]^9^
\[Deadly force^10^ may be used only if it is reasonably believed
necessary to \[(apprehend a dangerous, fleeing felon) (prevent a
significant threat of death or serious physical harm to the officer or
others)\].^11^ A warning must be given, if feasible, before deadly force
may be used.\] You must consider whether the officer\'s actions are
reasonable in the light of the facts and circumstances confronting the
officer \[without regard to the officer\'s own state of mind, intention
or motivation\].^12^

If any of the above elements has not been proved, then your verdict must
be for the defendant.

\["Deadly force" is force intended or reasonably likely to cause death
or serious physical injury.\]^13^

**Notes on Use**

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

2\. Describe the claim if the plaintiff has more than one claim against
this defendant.

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

4\. The conduct indicated by the plaintiff\'s evidence should be
described generally. This instruction assumes that probable cause for
the arrest or stop is not in dispute. If it is in issue, that claim
should be submitted in a separate instruction.

5\. *See City of Canton v. Harris*, 489 U.S. 378 (1989) for the standard
for the pretrial detainee who is in custody. This instruction applies to
persons who are not yet in custody at the time the excessive force is
alleged to have occurred.

6\. A finding that the plaintiff suffered \"damage, pain, misery,
anguish or similar harm\" is necessary for an Eighth Amendment
violation. *See Cowans v. Wyrick*, 862 F.2d 697, 700 (8th Cir. 1988).
*But see Bolin v. Black*, 875 F.2d 1343 (8th Cir. 1989) (sufficient to
instruct that \"unnecessary and wanton infliction of pain\" was
necessary without requiring a finding of injury). Specific language
which describes the damage the plaintiff suffered may be included here,
and in the damage instruction, Model Instruction 4.50A, *infra*. Nominal
damages will also have to be submitted under *Cowans*. *See infra* Model
Instruction 4.50B.

7\. Use this language if there is an issue as to whether the defendant
was acting under color of state law, a prerequisite to a claim under 42
U.S.C. § 1983. Typically, this element will be conceded by the
defendant. If so, it need not be included in this instruction. Color of
state law will have to be defined on the factual issue specified if this
paragraph is used. *See infra* Model Instruction 4.40.

8\. Include this phrase if the defendant denies the use of any force.

9\. Add this phrase or other appropriate language if deadly force is
used. *See Rahn v. Hawkins*, 464 F.3d 813 (8^th^ Cir. 2006); *Tennessee
v. Garner*, 471 U.S. 1 (1985). It need not be included if the defendant
denies all use of force. *Boesing v. Hunter*, 2008 WL 3981804 (8^th^
Cir. Aug. 29, 2008).

10\. Add the definition of deadly force if the phrase is used in the
instruction.

11\. Add this phrase or other appropriate language if deadly force is
used. *See Rahn v. Hawkins*, 464 F.3d 813 (8^th^ Cir. 2006); *Tennessee
v. Garner*, 471 U.S. 1 (1985).

12\. Add this phrase if there is evidence of the defendant officer's ill
will toward the plaintiff. *See Graham v. Connor*, 490 U.S. 386 (1989).

13\. Use this or another definition if deadly force was used, or may
have been used. *See* *Kuha v. City of Minnetonka*, 365 F.3d 590, 597-98
(8^th^ cir. 2004) (use of police dog not deadly force); *Black's Law
Dictionary*, 580 (5^th^ ed. 1979); *Webster's Ninth New Collegiate
Dictionary*, 326 (1985); RESTATEMENT 2d OF TORTS § 131 (1965); *Black's
Law Dictionary*, 656 (7^th^ ed. 1999) ("violent action known to create a
substantial risk of causing death or serious bodily harm"). There are a
variety of formulations, all of which are similar.

**Committee Comments**

At the time of arrest, a person\'s right to be free from excessive force
is determined under the Fourth Amendment. *See infra* Committee Comments
to Model Instruction 4.10. However, different constitutional protections
may apply at different junctures of the custodial continuum running
through initial arrest to post-conviction incarceration. *See Andrews v.
Neer*, 253 F.3d 1052 (8^th^ Cir. 2001). Precisely *when* the standards
shift is the subject of debate. *See Wilson v. Spain*, 209 F.3d 713, 715
(8^th^ Cir. 2000). The prevailing view appears to be that the use of
force by the arresting officer, after the individual is taken into
custody, but prior to the first appearance before a neutral judicial
officer, is to be decided under Fourth Amendment standards.

Once an individual becomes a pretrial detainee, the use of force is
measured by a substantive due process standard under the Fifth and
Fourteenth Amendments. *Johnson-El v. Schoemehl*, 878 F.2d 1043, 1048-49
(8th Cir. 1989). *Andrews*, 253 F.3d at 1060. *See generally* Model
Instruction 4.10, *infra*, for claims involving use of excessive force
during arrest. The Eighth Circuit has not decided when the person\'s
status changes from \"arrestee\" to \"pretrial detainee.\" Most circuits
that have addressed the issue found that the person becomes a pretrial
detainee after the time of the first appearance before a judicial
officer. *See Powell v. Gardner*, 891 F.2d 1039, 1044 (2d Cir. 1989);
*Hammer v. Gross*, 884 F.2d 1200, 1204 (9th Cir. 1989), *vacated en banc
on other grounds*, 932 F.2d 842, 845 n.1 (9th Cir. 1991) (noting
agreement with Fourth Amendment standard); *Pride v. Does*, 997 F.2d
712, 716 (10th Cir. 1993). These cases are discussed in *Pyka v. Village
of Orland Park*, 906 F. Supp. 1196, 1220 (N.D. Ill. 1995). The
individual\'s status as a pretrial detainee continues until the
individual has been sentenced. *Williams-El v. Johnson*, 872 F.2d 224,
228-29 (8th Cir. 1989) (a person convicted\--but not yet sentenced\--is
still a pretrial detainee). *See also Johnson-El v. Schoemehl*, 878 F.2d
1043, 1048-49 (8th Cir. 1989). *See*, *e.g.*, *Davis v. Hall*, 992 F.2d
151 (8th Cir. 1993) and *Ervin v. Busby*, 992 F. 2d 147 (8th Cir. 1993).
It is not clear to what extent this standard is different from the
Fourth Amendment reasonableness standard, or the Eighth Amendment
standard. *See Davis v. Hall*, 992 F.2d 151 (8th Cir. 1993); *Ervin v.
Busby*, 992 F.2d 147 (8th Cir. 1993).

In *Ferguson v. Cape Girardeau*, 88 F.3d 647, 650 (8th Cir. 1996), the
court stated

> Conditions of pretrial confinement are impermissible if they
> constitute punishment as determined by the due process standards of
> the Fifth and Fourteenth Amendments. *See Bell v. Wolfish*, 441 U.S.
> 520, 99 S. Ct. 1861, 60 L. Ed.2d 447 (1979). \"\[I\]f a particular
> condition or restriction of pretrial detention is reasonably related
> to a legitimate governmental objective, it does not, without more,
> amount to \'punishment.\'\" *Id.* at 539, 99 S. Ct. at 1874. In
> evaluating the conditions, the court must look to a number of factors,
> including the size of the detainee\'s living space, the length of the
> confinement, the amount of time spent in the confined area each day,
> and the opportunity for exercise. *See A.J. v. Kierst*, 56 F.3d 849,
> 854-55 (8th Cir. 1995) (citations omitted).

Because it is not permissible to punish pretrial detainees, the Eighth
Amendment standard, which permits punishment that is not cruel or
unusual, should not be used in excessive force cases. Thus, excessive
force claims by pretrial detainees should be resolved by use of the
reasonableness standard of the due process clauses Fifth and Fourteenth
Amendments. *Andrews*, 253 F.3d at 1060-61. This instruction uses the
reasonableness standard.

Under the Due Process Clause, a pretrial detainee may not be punished
before conviction. *Williams-El*, 872 F.2d at 228. Thus, the use of
force must be necessary to some legitimate institutional interest such
as safety, security or efficiency, and the force used may not be in
excess of that reasonably believed necessary to achieve those goals.
*Johnson-El*, 878 F.2d at 1048. It seems unlikely the court will apply
Eighth Amendment standards for cases involving excessive force by
guards; thus, this instruction should be used in such cases.

Cases involving food, clothing, shelter, medical care and reasonable
safety must be decided under the deliberate indifference standard when
pretrial detainees and convicted prisoners are involved. *Butler v.
Fletcher*, 465 F.3d 340 (8^th^ Cir. 2006), *cert. denied*, \_\_\_ U.S.
\_\_\_, 127 S. Ct. 2128 (2007); *Crow v. Montgomery*, 403 F.3d 598
(8^th^ Cir. 2005); *Whitnack v. Douglas County*, 16 F.3d 954 (8th Cir.
1994).

Any injury can be sufficient. *See Cowans v. Wyrick*, 862 F.2d 697, 700
(8th Cir. 1988); *Bolin v. Black*, 875 F.2d 1343 (8th Cir. 1989). *Scher
v. Engelke*, 943 F.2d 921 (8^th^ Cir. 1991). The jury should be
instructed on nominal damages, when appropriate. *See infra* Model
Instruction 4.50B.

**4.30 EXCESSIVE USE OF FORCE - CONVICTED PRISONERS -**

**EIGHTH AMENDMENT**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[here generally describe the claim\]^2^ if
all the following elements have been proved^3^:

*First*, the defendant \[here describe an act such as \"struck, hit, or
kicked\"\]^4^ the plaintiff, and

*Second*, the use of such force was excessive and applied maliciously
and sadistically^5^ for the very purpose of causing harm; \[and not in a
good faith effort to achieve a legitimate purpose;\]^6^ and

*Third*, as a direct result, the plaintiff was damaged,^7^ and

\[*Fourth*, the defendant was acting under color of state law.\]^8^

In determining whether the force\[, if any\]^9^ was excessive,^10^ you
must consider such factors as the need for the application of force, the
relationship between the need and the amount of force that was used\[,\]
\[and\] the extent of the injury inflicted\[, and whether the force was
used to achieve a legitimate purpose or wantonly for the very purpose of
causing harm\]. \"Maliciously\" means intentionally injuring another
without just cause or reason. \"Sadistically\" means engaging in extreme
or excessive cruelty or delighting in cruelty.

If any of the above elements has not been proved, then your verdict must
be for the defendant.

**Notes on Use**

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

2\. Describe the claim if the plaintiff has more than one claim against
this defendant.

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

4\. The conduct indicated by the plaintiff\'s evidence should be
described generally.

5\. The issue of the defendant\'s intent must be addressed as an element
of the claim. *Howard v. Barnett*, 21 F.3d 868 (8th Cir. 1994);
*Cummings v. Malone*, 995 F.2d 817 (8th Cir. 1993). If the plaintiff
claims force was used for an illegitimate purpose, for example, to deter
his access to the courts, the trial judge should consider a modification
of this phrase to reflect that improper purpose. If no force at all was
appropriate, the term \"excessive\" could be replaced with
\"unnecessary.\" It has been suggested that the jury should not be
directed to consider whether the force was applied maliciously if
institutional security was not involved. *See Wyatt v. Delaney*, 818
F.2d 21, 23 (8th Cir. 1987). However, this element repeatedly has been
associated with Eighth Amendment violations in excessive force cases.
*See Graham v. Connor; Whitley v. Albers. See also Cowans v. Wyrick*.
The cases frequently use the phrase \"maliciously and sadistically.\"
The Eighth Circuit has indicated that the term \"sadistically\" is
necessary to a correct statement of the law. *Howard v. Barnett*, 21
F.3d 868 (8th Cir. 1994). The term \"sadistic,\" to some people, has
sexual connotations. The Committee, therefore, recommends that both
\"maliciously\" and \"sadistically\" be defined. *See infra* Model
Instructions 4.45 and 4.46.

6\. Use this phrase if the defendant acknowledges the use of force, but
asserts that the force was used to achieve a legitimate purpose.

7\. A finding that the plaintiff suffered damage or \"pain, misery,
anguish or similar harm\" may be necessary for an Eighth Amendment
violation. *See Cowans v. Wyrick*, 862 F.2d 697, 700 (8th Cir. 1988).
*But see Bolin v. Black*, 875 F.2d 1343 (8th Cir. 1989) (sufficient to
instruct that \"unnecessary and wanton infliction of pain\" was
necessary without requiring a finding of injury). Specific language
which describes the damage the plaintiff suffered may be included here,
and in the damage instruction, Model Instruction 4.50A, *infra*. Nominal
damages will also have to be submitted under *Cowans*. *See infra* Model
Instruction 4.50B.

8\. Use this language if there is an issue as to whether the defendant
was acting under color of state law, a prerequisite to a claim under 42
U.S.C. § 1983. Typically, this element will be conceded by the
defendant. If so, it need not be included in this instruction. Color of
state law will have to be defined on the factual issue specified if this
paragraph is used. *See infra* Model Instruction 4.40.

9\. Include this phrase if the defendant denies the use of any force.

10\. If deadly force was used, it may be appropriate to modify this
instruction to tell the jury when deadly force is allowed. *See Rahn v.
Hawkins*, 464 F.3d 813 (8^th^ Cir. 2006); *Tennessee v. Garner*, 471
U.S. 1 (1985).

**Committee Comments**

This instruction should only be used when a *convicted* person claims
his constitutional rights were violated because of the use of force by a
state official or officer. If the plaintiff was a convicted prisoner at
the time of the alleged violation, the appropriate standard derives from
the Eighth Amendment. *Graham v. Connor*, 490 U.S. 386 (1989); *Whitley
v. Albers*, 475 U.S. 312 (1986); *Hudson v. McMillian*, 503 U.S. 1
(1992); *Black Spotted Horse v. Else*, 767 F.2d 516, 517 (8th Cir.
1985). The standards first articulated in *Johnson v. Glick*, 481 F.2d
1028, 1033 (2d Cir. 1973) have been applied to excessive force cases
involving both convicted and unconvicted persons. *Compare Black Spotted
Horse v. Else* with *Bauer v. Norris*, 713 F.2d 408, 412-13 (8th Cir.
1983). However, in *Graham* the Supreme Court held that such standards,
insofar as they direct an assessment of the defendant\'s intent, are
inappropriate in cases involving unconvicted persons. *Graham v.
Connor*, 490 U.S. at 393-96. On the other hand, the standards of
*Johnson* are appropriate for Eighth Amendment cases in that they
require a balancing of factors, including the defendant\'s mental state.
*See Hudson v. McMillian*,; *Burgin v. Iowa Dept. of Corr.*, 923 F.2d
637, 638 (8th Cir. 1991); *DeGidio v. Pung*, 920 F.2d 525, 532 (8th Cir.
1990) (malicious and sadistic standard); *Stenzel v. Ellis*, 916 F.2d
423, 427 (8th Cir. 1990). *See* note 5 for a discussion about whether
the term \"sadistic\" should be included in the instruction.

The Committee recommends that a separate instruction presenting the
affirmative defense of qualified immunity based upon the defendant\'s
\"good faith\" *should not* be given. A separate instruction is
unnecessary because the issue/elements instruction itself requires the
jury to assess the defendant\'s intent in an Eighth Amendment context.
*See Graham v. Connor*. Furthermore, the issue of good faith immunity is
an issue the judge must decide, it is not a jury issue. *Coffman v.
Trickey*, 884 F.2d 1057, 1062-63 (8th Cir. 1989). The elements
instruction should set forth facts which, if found to be true, entitle
the plaintiff to a verdict.

Two phrases frequently come up in these cases. One is \"maliciously and
sadistically for the very purpose of causing harm,\" and the other is
\"wanton infliction of pain.\" The Eighth Circuit cases of *Howard v.
Barnett*, 21 F.3d 868 (8th Cir. 1994) and *Cummings v. Malone*, 995 F.2d
817 (8th Cir. 1993) place substantial emphasis on the use of the words
\"malicious\" and \"sadistic\" in the instructions themselves. The use
of both phrases would be redundant. The Committee sees no benefit in
telling the jury that the defendant must have acted both maliciously and
sadistically for the very purpose of causing harm and for the purpose of
wantonly inflicting pain. Thus, the \"wanton infliction of pain\" clause
has been eliminated.

**4.31 DENIAL OF MEDICAL CARE -**

**CONVICTED PRISONERS AND PRETRIAL DETAINEES \***

**(42 U.S.C. § 1983)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s claim of deliberate
indifference to \[(his) (her)\] serious medical need\]^2^ if all of the
following elements have been proved^3^:

*First*, the plaintiff had a serious need for \[describe the
plaintiff\'s medical need, such as \"treatment for a broken leg\" or
\"pain medication\"\], and

*Second*, the defendant was aware of the plaintiff\'s serious need for
such \[\"medical care\" or \"pain medication\"\], and

*Third*, the defendant,^4^ with deliberate indifference,^5^ failed to
\[\"provide the medical care\" or \"direct that the medical care be
provided\" or \"allow the plaintiff to obtain the medical care
needed\"\] \[within a reasonable time\],^6^ and

*Fourth*, as a direct result, the plaintiff was damaged,^7^ and

\[*Fifth*, the defendant was acting under color of state law.\]^8^

If any of the above elements has not been proved, then your verdict must
be for the defendant.

\* In *Butler v. Fletcher*, 465 F.3d 340 (8^th^ Cir. 2006), the court
held that "deliberate indifference" is the appropriate standard of
culpability for all claims that prison officials failed to provide
pretrial detainees with adequate food, clothing, shelter, medical care
and reasonable safety.

**Notes on Use**

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

2\. Use this language when the plaintiff has more than one claim.

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

4\. This instruction assumes that the defendant had the responsibility
to provide care for the plaintiff\'s serious medical needs. If the
defendant has no duty, then a directed verdict would be appropriate. If
the existence of the duty is disputed, the issue may be a question of
law for the judge to decide. If a specific fact is disputed, which will
be determinative of the defendant\'s responsibility, that fact should be
submitted to the jury. For example, it may be disputed whether a certain
person was working on a certain day. That question should be
specifically submitted to the jury. The legal question whether a duty
arises from a specific set of facts is a question for the judge.

5\. It is probably best to define \"deliberate indifference.\" *See
Howard v. Adkison*, 887 F.2d 134 (8th Cir. 1989); *Duckworth v.
Franzen*, 780 F.2d 645, 654 (7th Cir. 1985).

6\. Add this phrase if it is alleged the medical care was provided but
not at a reasonable time.

7\. *Cowans v. Wyrick*, 862 F.2d 697 (8th Cir. 1988) suggests that
actual damages are required in Eighth Amendment cases. *But see Carey v.
Piphus*, 435 U.S. 247 (1978) and *Memphis Community School Dist. v.
Stachura*, 477 U.S. 299 (1986), which stated that actual damages are not
required in procedural due process cases. The Committee recommends
requiring the jury to find that the plaintiff sustained damage in all
Eighth Amendment cases. The measure of damages is addressed in Model
Instructions 4.50A and 4.50B, *infra*. Nominal damages should be
submitted in all Eighth Amendment cases, but must be defined in
accordance with *Cowans* and Model Instruction 4.50B, *infra*. *See
also* Committee Comments, Model Instruction 4.50A, *infra*.

8\. Use this language if the issue of whether the defendant was acting
under color of state law is still in the case. Color of state law will
have to be defined. *See* 42 U.S.C. § 1983 and Model Instruction 4.40,
*infra*.

**Committee Comments**

*See infra* Model Instruction 4.20 for a discussion of the standards to
be applied when dealing with use of force on pretrial detainees. Medical
claims of pretrial detainees are governed by the same "deliberate
indifference" standard as used for convicted prisoners. *Butler v.
Fletcher*, 465 F.3d 340 (8^th^ Cir. 2006); *Davis v. Hall*, 992 F.2d 151
(8th Cir. 1993) is the controlling case. The \"deliberate indifference\"
standard used in this instruction is an Eighth Amendment standard which
is designed for use involving convicted persons. *See Wilson v. Seiter*,
501 U.S. 294 (1991); *Farmer v. Brennan*, 511 U.S. 825 (1994), but may
also be used in pretrial detainee cases involving failure to provide
food, clothing, shelter, medical care and reasonable safety. *Butler*,
465 F.3d at \_\_\_..

This instruction is derived from *Estelle v. Gamble*, 429 U.S. 97
(1976), which applies the Eighth Amendment to the United States
Constitution to medical claims and sets the standards. *Wilson* did not
change the standard, although it made it even more clear that the
deliberate indifference standard applies to all conditions of
confinement cases of convicted persons and that negligence is not
sufficient.

*See* Gobert and Cohen, *Rights of Prisoners* § 11.10.

The following definition of \"serious medical need\" should be
considered:

> A "serious" medical need is one that has been diagnosed by a physician
> as mandating treatment or one that is so obvious that even a lay
> person would easily recognize the necessity for a doctor\'s attention.
> *Laaman v. Helgemoe*, 437 F. Supp. 269, 311 (D.N.H. 1977).

This definition of \"serious medical need\" was approved in *Johnson v.
Busby*, 953 F.2d 349 (8th Cir. 1991).

> Deliberate indifference, as used in a medical case means:
>
> \[Intentionally\] \[deliberately\] ignoring the plaintiff\'s \[serious
> medical needs\]. Deliberate indifference is established only if there
> is actual knowledge of a substantial risk that the plaintiff has a
> serious medical problem and if the defendant consciously refuses to
> take steps to deal with the problem. Mere negligence or inadvertence
> does not constitute deliberate indifference.

*See Campbell v. Greer*, 831 F.2d 700, 702 (7th Cir. 1987). *Campbell*
also included the word \"recklessly\" in the definition. Analysis of the
court\'s language in *Wilson* and *Farmer* indicates the court is
limiting Eighth Amendment claims to those in which the plaintiff can
show actual subjective intent rather than just recklessness in the tort
sense. In *Wilson*, the court characterized as Eighth Amendment
violations only acts which are \"*deliberate* act\[s\] *intended* to
chastise or deter\" (emphasis added) or "punishment \[which\] has been
deliberately administered for a penal or disciplinary *purpose*\"
(emphasis added). *Wilson*, 501 U.S. at 300. In *Farmer*, the court
stated that recklessness in the criminal law context is what is
contemplated and that requires actual knowledge of a substantial risk.
*Farmer* at 837. The court, continuing to follow the deliberate
indifference standard, clearly stated that negligence was not
sufficient. Application of this standard to some issues involving
pretrial detainees is required by the Eighth Circuit (see cases cited in
Instruction 4.20).

**4.32 FAILURE TO PROTECT FROM ATTACK - SPECIFIC ATTACK -**

**CONVICTED PRISONERS - EIGHTH AMENDMENT**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[here generally describe the claim\]^2^ if
all the following elements have been proved^3^:

*First*, \[here describe the attacker(s) such as \"one or more
\[inmates\]\"\] \[here describe an act such as \"struck, hit or
kicked\"\]^4^ the plaintiff, and

*Second*, the defendant was aware of the substantial risk of such
attack; and

*Third*, the defendant, with deliberate indifference to the plaintiff\'s
need to be protected from \[such attack\], failed to protect the
plaintiff; and

*Fourth*, as a direct result, the plaintiff was damaged,^5^ and

\[*Fifth*, the defendant was then acting under color of state law.\]^6^

If any of the above elements has not been proved, then your verdict must
be for the defendant.

**Notes on Use**

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

2\. Describe the claim if the plaintiff has more than one claim against
this defendant.

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

4\. The conduct indicated by the plaintiff\'s evidence should be
described generally.

5\. A finding that the plaintiff suffered damage or \"pain, misery,
anguish or similar harm\" may be necessary for an Eighth Amendment
violation. *See Cowans v. Wyrick*, 862 F.2d 697, 700 (8th Cir. 1988).
*But see Bolin v. Black*, 875 F.2d 1343 (8th Cir. 1989) (sufficient to
instruct that \"unnecessary and wanton infliction of pain\" was
necessary without requiring a finding of injury). Specific language
which describes the damage the plaintiff suffered may be included here,
and in the damage instruction, Model Instruction 4.50A, *infra*. Nominal
damages will also have to be submitted under *Cowans*. *See infra* Model
Instruction 4.50B.

6\. Use this language if there is an issue as to whether the defendant
was acting under color of state law, a prerequisite to a claim under 42
U.S.C. § 1983. Typically, this element will be conceded by the
defendant. If so, it need not be included in this instruction. Color of
state law will have to be defined on the factual issue specified if this
paragraph is used. *See infra* Model Instruction 4.40.

**Committee Comments**

The defendant must have been aware of a substantial risk of the attack,
negligence is not sufficient. *See Kahle v. Leonard*, 477 F.3d 544,
550-51 (8^th^ Cir. 2007); *Ambrose v. Young*, 474 F.3d 1070, 1077 (8^th^
Cir. 2007).

**4.40 DEFINITION: COLOR OF STATE LAW (42 U.S.C. § 1983)**

Acts are done under color of law when a person acts or purports to act
in the performance of official duties under any state, county or
municipal law, ordinance or regulation.

**Committee Comments**

Adopted from *9^th^ Cir. Civ. Jury Instr.* 11.1.1 (1997). *See Monroe v.
Pape*, 365 U.S. 167 (1961), *overruled in part*, *Monell v. Department
of Social Services*, 436 U.S. 658 (1978); *Screws v. United States*, 325
U.S. 91 (1945); *United States v. Classic*, 313 U.S. 299, *reh\'g
denied*, 314 U.S. 707 (1941). The court should, if possible, rule on the
record whether the conduct of the defendant, if it occurred as claimed
by the plaintiff, constitutes acts under color of state (county,
municipal) law and not even instruct the jury on this issue. In most
cases, the color of state law issue is not challenged and the jury need
not be instructed on it. If it must be instructed, this instruction
should normally be sufficient.

**4.42 DEFINITION: PERVASIVE RISK OF HARM - CONVICTED PRISONERS**

**(42 U.S.C. § 1983)**

A pervasive risk of harm exists when (violent acts) (sexual assaults)
occur with sufficient frequency that a prisoner or prisoners are put in
reasonable fear for their safety and prison officials are aware of the
problem and the need for protective measures.

**Committee Comments**

In *Falls v. Nesbitt*, 966 F.2d 375 (8th Cir. 1992), the court stated:

> \[A\] "pervasive risk of harm" may not ordinarily be shown by pointing
> to a single incident or isolated incidents, but it may be established
> by much less than proof of a reign of violence and terror in the
> particular instruction. . . . It is enough that violence and sexual
> assaults occur . . . with sufficient frequency that prisoners . . .
> are put in reasonable fear for their safety and to reasonably apprise
> prison officials of the existence of the problem and the need for
> protective measures. . . .

*Id.* at 378 (quoting *Andrews v. Siegel*, 929 F.2d at 1330).

**4.43 DEFINITION: SERIOUS MEDICAL NEED - CONVICTED PRISONERS**

**(42 U.S.C. § 1983)**

A serious medical need is one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor\'s attention.^1^

**Notes on Use**

1\. *Laaman v. Helgemoe*, 437 F. Supp. 269, 311 (D.N.H. 1977).

**Committee Comments**

This definition of \"serious medical need\" was approved in *Johnson v.
Busby*, 953 F.2d 349 (8th Cir. 1991).

**4.44 DEFINITION: DELIBERATE INDIFFERENCE -**

**CONVICTED PRISONERS AND PRETRIAL DETAINEES**

**(42 U.S.C. § 1983)**

Deliberate indifference is established only if there is actual knowledge
of a substantial risk that the plaintiff (describe serious medical
problem or other serious harm that the defendant is expected to prevent)
and if the defendant disregards that risk by intentionally refusing or
intentionally failing to take reasonable measures to deal with the
problem. Mere negligence or inadvertence does not constitute deliberate
indifference.

**Committee Comments**

*See* *Farmer v. Brennan*, 511 U.S. 825 (1994) (clearly limiting
deliberate indifference to intentional, knowing or recklessness in the
criminal law context which requires actual knowledge of a serious risk).
*Wilson v. Seiter*, 501 U.S. 294 (1991). The court is limiting Eighth
Amendment claims to those in which the plaintiff can show actual
subjective intent rather than just recklessness in the tort sense. In
*Wilson*, the court characterized as Eighth Amendment violations only
acts which are \"*deliberate* act\[s\] *intended* to chastise or deter\"
(emphasis added) or \"punishment \[which\] has been deliberately
administered for a penal or disciplinary *purpose*\" (emphasis added).
*Wilson*, 501 U.S. at 300. The court, continuing to follow the
deliberate indifference standard, clearly stated that negligence was not
sufficient.

In *Butler v. Fletcher*, 465 F.3d 340, 345 (8^th^ Cir. 2006), the court,
in discussing the right to food, clothing, shelter, medical care and
reasonable safety, stated that "\[p\]retrial detainees and convicted
inmates, like all persons in custody, have the same right to these basic
needs. Thus, the same standard of care is appropriate." The court then
held that the deliberate indifference standard is the standard to be
applied.

The Committee believes the phrase \"deliberate indifference\" should
probably be defined in most cases, although Eighth Circuit case law does
not require it.

**4.45 DEFINITION: MALICIOUSLY**

\"Maliciously\" means intentionally injuring another without just cause
or reason.

**Committee Comments**

*See* *Howard v. Barnett*, 21 F.3d 868 (8th Cir. 1994).

**4.46 DEFINITION: SADISTICALLY**

\"Sadistically\" means engaging in \"extreme or excessive cruelty or
delighting in cruelty.\"

**Committee Comments**

*See* *Howard v. Barnett*, 21 F.3d 868 (8th Cir. 1994).

**4.50A ACTUAL DAMAGES - PRISONER CIVIL RIGHTS**

If you find in favor of the plaintiff, then you must award the plaintiff
such sum as you find will fairly and justly compensate the plaintiff for
\[any damages\]^1^ you find the plaintiff sustained \[and is reasonably
certain to sustain in the future\]^2^ as a direct result of \[insert
appropriate language such as \"the conduct of the defendant as submitted
in Instruction \_\_\_\_\_\" or \"the failure to provide the plaintiff
with medical care\" or \"the violation of the plaintiff\'s
constitutional rights.\"\]^3^ \[You should consider the following
elements of damages:

> 1\. The physical pain and (mental) (emotional) suffering the plaintiff
> has experienced (and is reasonably certain to experience in the
> future); the nature and extent of the injury, whether the injury is
> temporary or permanent (and whether any resulting disability is
> partial or total) (and any aggravation of a pre-existing condition);
>
> 2\. The reasonable value of the medical (hospital, nursing, and
> similar) care and supplies reasonably needed by and actually provided
> to the plaintiff (and reasonably certain to be needed and provided in
> the future);
>
> 3\. The (wages, salary, profits, reasonable value of the working time)
> the plaintiff has lost \[and the reasonable value of the earning
> capacity the plaintiff is reasonably certain to lose in the future\]
> because of \[(his) (her)\] \[(inability) (diminished ability)\] to
> work.\]

\[Remember, throughout your deliberations you must not engage in any
speculations, guess, or conjecture and you must not award any damages
under this Instruction by way of punishment or through sympathy.\]

**Notes on Use**

1\. A summary of the specific types of damage or injuries which are
supported by the evidence can be described here in lieu of the phrase
\"any damages.\"

2\. Use this language if permanent injuries are involved.

3\. It is important to use language that limits the damages recovered to
those which are attributable to the improper conduct of the defendant.
*See* *Memphis Community Dist. v. Stachura*, 477 U.S. 299, 309-10
(1986).

**Committee Comments**

The damages which may be recovered under 42 U.S.C. § 1983, are of three
types: actual or compensatory, nominal and punitive. *Memphis Community
School Dist. v. Stachura*, 477 U.S. 299 (1986). The actual or
compensatory damages are to \"compensate persons for injuries that are
caused by the deprivation of constitutional rights,\" and not
\"undefinable value of infringed right\" or \"presumed\" damages. *Id.*
at 307 and 309. *See also* *Carey v. Piphus*, 435 U.S. 247 (1978).
Actual damages include compensation for out-of-pocket loss, other
monetary losses and for impairment of reputation, personal humiliation,
mental anguish and suffering. *Memphis Community School Dist. v.
Stachura*.

*Cowans v. Wyrick*, 862 F.2d 697 (8th Cir. 1988) suggests that actual
damages are required in Eighth Amendment cases. *But see* *Carey v.
Piphus*, 435 U.S. 247 (1978) and *Memphis Community School Dist. v.
Stachura*, 477 U.S. 299 (1986), which stated that actual damages are not
required in procedural due process cases. The Committee recommends
requiring the jury to find that the plaintiff sustained damage in all
Eighth Amendment cases. The measure of damages is also addressed in
Model Instruction 4.50A, *infra*. Nominal damages should be submitted in
all Eighth Amendment cases, but must be defined in accordance with
*Cowans* and Model Instruction 4.50B, *infra*.

**4.50B NOMINAL DAMAGES - PRISONER CIVIL RIGHTS**

If you find in favor of the plaintiff under Instruction \_\_\_\_\_,^1^
but you find that the plaintiff\'s damages have no monetary value,^2^
then you must return a verdict for the plaintiff in the nominal amount
of One Dollar (\$1.00).^3^

**Notes on Use**

1\. Insert the number or title of the \"essential elements\" instruction
here.

2\. *Cowans v. Wyrick*, 862 F.2d 697 (8th Cir. 1988), a prisoner civil
rights case, used the language \"unable to place a monetary value\" on
the plaintiff\'s damages as the proper standard for when nominal damages
are appropriate. That language may mislead a jury to believe that
nominal damages should be awarded if they are having a difficult time
agreeing upon or deciding the amount which should be awarded to
compensate for such elements of damage as suffering, humiliation, pain,
etc.

3\. One Dollar (\$1.00) is arguably the required amount in cases in
which nominal damages are appropriate. Nominal damages may be
appropriate when the jury is unable to place a monetary value on the
harm that the plaintiff suffered from the violation of his rights. *Cf.*
*Cowans v. Wyrick*, 862 F.2d 697 (8th Cir. 1988) (in prisoner civil
rights action, nominal damages are appropriate where the jury cannot
place a monetary value on the harm suffered by the plaintiff); *Haley v.
Wyrick*, 740 F.2d 12 (8th Cir. 1984). *See* Committee Comments.

**Committee Comments**

This instruction is derived from 3 Kevin F. O'Malley, et al., FEDERAL
JURY PRACTICE AND INSTRUCTIONS: Civil § 128.82 (5^th^ ed. 2000). It has
been modified slightly.

In certain cases, nominal damages may be recovered when there is a
violation of constitutional rights. *See* *Memphis Community School
Dist. v. Stachura*, 477 U.S. 299 (1986); *Carey v. Piphus*, 435 U.S. 247
(1978); *Tatum v. Houser*, 642 F.2d 253 (8th Cir. 1981); *Cowans v.
Wyrick*, 862 F.2d 697 (8th Cir. 1988). *Carey* discusses the amount of
nominal damages at page 267.

The Committee recommends requiring the jury to find that the plaintiff
suffered damage in most cases, unless it is clear that recovery is
permitted without a showing of any damage or injury. *See* *Memphis* and
*Carey*. In classic Eighth Amendment cases, damages must be established
and the elements instruction should require the jury to find that the
plaintiff sustained damage. However, nominal damages must still be
submitted in Eighth Amendment cases if requested. The definition
contained in this instruction is the one that should be used.

**4.50C PUNITIVE DAMAGES - CIVIL RIGHTS**

In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff under Instruction(s) \_\_\_\_\_
and if it has been proved^1^ that the conduct of that defendant as
submitted in Instruction \_\_\_\_\_^2^ was malicious or recklessly
indifferent to the plaintiff\'s (specify, *e.g.*, medical needs),^3^
then you may, but are not required to, award the plaintiff an additional
amount as punitive damages for the purposes of punishing the defendant
for engaging in such misconduct and deterring the defendant and others
from engaging in such misconduct in the future.

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^4^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^5^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^6^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^7^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^8^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^9^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^10^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^11^

**Notes on Use**

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

2\. Use if more than one element instruction.

3\. Punitive damages are allowed even though the threshold for liability
requires reckless conduct. If the threshold for the underlying tort
liability is less than "reckless," the bracketed language correctly
states the standard for punitive damages under 42 U.S.C. § 1983. *Smith
v. Wade*, 461 U.S. 30 (1983). *See* *Kolstad v. American Dental Ass'n*,
527 U.S. 526, 535, 536 (1999), and *Canny v. Dr. Pepper/Seven-Up
Bottling Group, Inc.*, 439 F.3d 894, 903 (8^th^ Cir. 2006), discussing
the meaning of "malice" and "reckless indifference." If the threshold
for liability is "malice" or "reckless indifference" or something more
culpable, no additional finding should be necessary because the language
in the issue/element instruction requires the jury to find the
culpability necessary for imposing punitive damages. However, it is
recommended that the punitive damages instruction include such language
to be sure the jury focuses on that issue.

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

5\. The court may, of course, exclude any item not relevant to the
outcome.

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

7\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell,* 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

9\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Supreme Court in *Philip Morris USA v.
Williams*, \_\_\_ U.S. \_\_\_, 127 S. Ct. 1057 (2007); *State Farm Mut.
Auto. Ins. Co. v. Campbell*, 538 U.S. 408 (2003), *BMW of North America,
Inc. v. Gore*, 517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S.
415 (1994), and *TXO Production Corp. v. Alliance Resources Corp.*, 509
U.S. 443, 459-62 (1993). In *State Farm*, 538 U.S. at 417, the court
observed: "We have admonished that '\[p\]unitive damages pose an acute
danger of arbitrary deprivation of property. Jury instructions typically
leave the jury with wide discretion in choosing amounts, and the
presentation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases against
big businesses, particularly those without strong local presences.'"
(quoting *Honda Motor*, 512 U.S. at 432). *See Baker v. John Morrell &
Co.*, 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816
(8^th^ Cir. 2004), and *In Re Exxon Valdez*, 296 F. Supp. 2d 1071, 1080
(D. Alaska 2004), for examples of punitive damages instructions in which
the court attempted to incorporate constitutional standards.

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

**4.60 VERDICT FORM - ONE PLAINTIFF, TWO DEFENDANTS,**

**ONE INJURY CASE**

VERDICT

**Note:** Complete this form by writing in the names required by your
verdict.

On plaintiff (name)\'s claim against defendant (name), as submitted in
Instruction No. \_\_\_\_\_, we find in favor of

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

(Plaintiff (name)) or (Defendant (name))

On plaintiff (name)\'s claim against defendant (name), as submitted in
Instruction No. \_\_\_\_\_, we find in favor of

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

(Plaintiff (name)) or (Defendant (name))

**Note:** Complete the following paragraphs only if one or more of the
above findings is in favor of the plaintiff.

We find plaintiff (name)\'s damages to be:

> \$\_\_\_\_\_\_\_\_\_\_ (stating the amount or, if none, write the word
> \"none\")^1^ (stating the amount, or if you find that the plaintiff\'s
> damages have no monetary value, set forth a nominal amount such as
> \$1.00).^2^

**Note:** You may not award punitive damages against any defendant
unless you have first found against that defendant and awarded the
plaintiff nominal or actual damages.

We assess punitive damages against defendant (name) as follows:

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

We assess punitive damages against defendant (name of other defendant)
as follows:

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

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

Foreperson

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

1\. Use this phrase if the jury has not been instructed on nominal
damages.

2\. Include this paragraph if the jury is instructed on nominal damages.

**5. EMPLOYMENT CASES**

**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.*; and the Family Medical Leave Act (FMLA), 29 U.S.C. §
2601, *et seq.* Equal Pay Act, 29 U.S.C. § 206(d), instructions are
being drafted. 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 (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 factor/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 infra* Model
Instructions 5.01, 5.01A.

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 infra* 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 infra* 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 infra* 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, *infra*) 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 infra* Model
Instructions 5.20 *et seq.* (42 U.S.C. § 1981); 5.25 *et seq.* (42
U.S.C. § 1983); 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 - ELEMENTS**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s (sex)^2^
discrimination claim\]^3^ if all the following elements have been
proved^4^:

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

*Second*, the plaintiff\'s (sex) \[was a motivating factor\]^6^ \[played
a part\]^7^ in the defendant\'s decision.

If either of the above elements has not been proved, your verdict must
be for the defendant and you need not proceed further in considering
this claim. \[You may find that the plaintiff\'s (sex) \[was a
motivating factor\] \[played a part\] in the defendant\'s (decision)^8^
if it has been proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 infra* 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 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, *infra*, 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 - \"SAME DECISION\"**

If you find in favor of the plaintiff under Instruction \_\_\_\_,^1^
then you must answer the following question in the verdict form\[s\]:
Has it been proved^2^ that the defendant \[would have discharged\]^3^
the plaintiff regardless of \[(his) (her)\] \[sex\]^4^?

**Notes on Use**

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

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

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

4\. This instruction is designed for use in a gender discrimination
case. The language within the brackets must be modified if other forms
of discrimination are alleged. The practical effect of a decision in
favor of the plaintiff under Model Instruction 5.01, *supra*, but in
favor of the defendant on this question under Title VII, is a judgment
for the plaintiff and eligibility for an award of attorney fees but no
actual damages. The Committee takes no position on whether the judge
should advise the jury or allow the attorneys to argue to the jury the
effect of a decision in favor of the defendant on the question set out
in this instruction.

**Committee Comments**

If a plaintiff prevails on the issue of liability by showing that
discrimination was a \"motivating factor,\" the defendant nevertheless
may avoid an award of damages or reinstatement by showing that it would
have taken the same action \"in the absence of the impermissible
motivating factor.\" *See* CRA 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 - ACTUAL DAMAGES**

If you find in favor of the plaintiff under Instruction \_\_\_\_^1^ and
if you answer \"no\" in response to Instruction \_\_\_\_^2^, then you
must award the plaintiff such sum as you find will fairly and justly
compensate the plaintiff for any damages you find the plaintiff
sustained as a direct result of \[describe the defendant\'s decision -
*e.g.*, \"the defendant\'s decision to discharge the plaintiff\"\]. The
plaintiff\'s claim for damages includes three distinct types of damages
and you must consider them separately:

*First*, you must determine the amount of any wages and fringe
benefits^3^ the plaintiff would have earned in \[(his) (her)\]
employment with the defendant if \[(he) (she)\] had not been discharged
on \[fill in date of discharge\] through the date of your
verdict,^4,\ 5,\ 6^ *minus* the amount of earnings and benefits that the
plaintiff received from other employment during that time.

*Second*, you must determine the amount of any other damages sustained
by the plaintiff, such as \[list damages supported by the evidence\].^7^
You must enter separate amounts for each type of damages in the verdict
form and must not include the same items in more than one category.

\[You are also instructed that the plaintiff has a duty under the law to
\"mitigate\" \[(his) (her)\] damages - that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if you find that the plaintiff failed to seek out or take
advantage of an opportunity that was reasonably available to \[(him)
(her)\], you must reduce \[(his) (her)\] damages by the amount \[(he)
(she)\] reasonably could have avoided if \[(he) (she)\] had sought out
or taken advantage of such an opportunity.\]^8^

\[Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award damages under
this Instruction by way of punishment or through sympathy.\]^9^

**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\. 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.

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

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

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

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

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

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

**Committee Comments**

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

**5.02B TITLE VII - NOMINAL DAMAGES**

If you find in favor of the plaintiff under Instruction \_\_\_\_^1^ and
if you answer \"no\" in response to Instruction \_\_\_\_^2^, but you
find that the plaintiff\'s damages have no monetary value, then you must
return a verdict for the plaintiff in the nominal amount of One Dollar
(\$1.00).^3^

**Notes on Use**

1\. Fill in the number or title 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 the plaintiff); *Haley v.
Wyrick*, 740 F.2d 12 (8th Cir. 1984).

**Committee Comments**

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

**5.02C TITLE VII - PUNITIVE DAMAGES**

In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff under Instruction(s)
\_\_\_\_\_\_\_,^1^ and if you answer "no" in response to Instruction
\_\_\_\_\_,^2^ then you must decide whether the defendant acted with
malice or reckless indifference to the plaintiff's right not to be
discriminated against^3^ on the basis of \[(his) (her)\] (sex).^4^ The
defendant acted with malice or reckless indifference if:

> it has been proved^5^ that \[insert the name(s) of the defendant or
> manager^6^ who terminated^6^ the plaintiff\] knew that the
> (termination)^7^ was in violation of the law prohibiting (sex)
> discrimination, or acted with reckless disregard of that law.^8^

\[However, you may not award punitive damages if it has been proved that
the defendant made a good-faith effort to comply with the law
prohibiting (sex)^4^ discrimination\]^9^.

If you find that the defendant acted with malice or reckless
indifference to the plaintiff's rights \[and did not make a good-faith
effort to comply with the law\], then, in addition to any other damages
to which you find the plaintiff entitled, you may, but are not required
to, award the plaintiff an additional amount as punitive damages for the
purposes of punishing the defendant for engaging in such misconduct and
deterring the defendant and others from engaging in such misconduct in
the future.

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^10^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^11^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^12^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^13^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^14^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^15^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^16^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^17^

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

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

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

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

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

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

11\. The court may, of course, exclude any item not relevant to the
outcome.

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

13\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell,* 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

15\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

Under the Civil Rights Act of 1991, a Title VII the plaintiff may
recover damages by showing that the defendant engaged in discrimination
"with malice or with reckless indifference to \[his or her\] federally
protected rights." *See* 42 U.S.C. § 1981a(b)(1). *See also* Model
Instruction 4.50C, *supra*, 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 Ass'n*, 527 U.S. 526, 535 (1999). The Court added that the terms
pertain to the employer's knowledge that it may be acting in violation
of federal law, not its awareness that it is engaging in discrimination.
*Id.* To be liable for punitive damages, the employer must at least
discriminate in the face of a perceived risk that its actions will
violate federal law. *Id.* at 536. Rejecting the conclusion of the lower
court that punitive damages were limited to cases involving intentional
discrimination of an "egregious" nature, the Court held that a plaintiff
is not required to show egregious or outrageous discrimination
independent of the employer's state of mind. *Id.* at 546.

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

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Supreme Court in *Philip Morris USA v.
Williams*, \_\_\_ U.S. \_\_\_, 127 S. Ct. 1057 (2007); *State Farm Mut.
Auto. Ins. Co. v. Campbell*, 538 U.S. 408 (2003), *BMW of North America,
Inc. v. Gore*, 517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S.
415 (1994), and *TXO Production Corp. v. Alliance Resources Corp.*, 509
U.S. 443, 459-62 (1993). In *State Farm*, 538 U.S. at 417, the court
observed: "We have admonished that '\[p\]unitive damages pose an acute
danger of arbitrary deprivation of property. Jury instructions typically
leave the jury with wide discretion in choosing amounts, and the
presentation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases against
big businesses, particularly those without strong local presences.'"
(quoting *Honda Motor*, 512 U.S. at 432). *See Baker v. John Morrell &
Co.*, 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816
(8^th^ Cir. 2004), and *In Re Exxon Valdez*, 296 F. Supp. 2d 1071, 1080
(D. Alaska 2004), for examples of punitive damages instructions in which
the court attempted to incorporate constitutional standards.

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

**5.03 TITLE VII - VERDICT FORM**

VERDICT

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

On the \[(sex)^1^ discrimination\]^2^ claim of plaintiff \[Jane Doe\],
\[as submitted in Instruction \_\_\_\_\]^3^, we find in favor of:

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

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

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

Has it been proved^4^ that the defendant would have discharged the
plaintiff regardless of \[(his) (her)\] (sex)?^5^

\_\_\_\_\_\_Yes \_\_\_\_\_\_\_No

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

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

We find the plaintiff\'s lost wages and benefits through the date of
this verdict to be:

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

We find the plaintiff\'s other damages, excluding lost wages and
benefits, to be:

> \$\_\_\_\_\_\_\_\_\_ (stating the amount \[or, if you find that the
> plaintiff\'s damages do not have a monetary value, write in the
> nominal amount of One Dollar (\$1.00)\]).

\[We assess punitive damages against the defendant, as submitted in
Instruction \_\_\_\_, as follows:

> \$\_\_\_\_\_\_\_\_\_ (stating the amount or, if none, write the word
> \"none\").\]^6^

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

Foreperson

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

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

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

3\. The number or title of the \"essential elements\" instruction may be
inserted here. *See infra* Model Instruction 5.01.

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

5\. This question submits the \"same decision\" issue to the jury. *See
infra* Model Instruction 5.01A.

6\. This paragraph should be included if the evidence is sufficient to
support an award of punitive damages. *See infra* Model Instruction
5.02C.

**5.10 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 - ELEMENTS (Determining Factor)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s age discrimination
claim\]^2^ if all the following elements have been proved^3^:

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

*Second*, the plaintiff\'s age was^5^ a determining factor^6^ in the
defendant\'s decision.

If any of the above elements has not been proved, your verdict must be
for the defendant.

\"Age was a determining factor\" only if the defendant would not have
discharged the plaintiff but for the plaintiff\'s age; it does not
require that age was the only reason for the decision made by the
defendant.^7^ \[You may find age was a determining factor if it has been
proved that the 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\].^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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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.

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 the 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.

6\. The Committee recommends the use of "determining factor" in ADEA
cases unless the plaintiff presents "direct evidence" of discrimination,
in which case the "motivating factor/same decision" instruction in Model
Instruction 5.11B should be used. *See Gross v. FBL Financial Services,
Inc.*, 526 F.3d 356, 358-62 (8^th^ Cir. 2008) (reversing jury verdict
for ADEA plaintiff where trial court used a "motivating factor/same
decision" instruction in a nondirect evidence case and thereby
improperly "shifted the burden of persuasion on a central issue in the
case"); *see also 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); *Radabaugh 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 the court cannot decide whether the
plaintiff's evidence qualifies as "direct evidence" of age
discrimination and cannot decide whether to give the motivating factor
or determining factor instruction, Special Interrogatories can be used.
*See infra* Model Instruction 5.92.

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).

8\. This sentence may be added, if appropriate. *See infra* 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 - ELEMENTS (Motivating Factor/Same Decision) \***

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s age discrimination
claim\]^2^ if all the following elements have been proved^3^:

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

*Second*, the plaintiff\'s age \[was a motivating factor\]^5^ \[played
in part\]^6^ in the defendant\'s decision.

However, your verdict must be for the defendant if any of the above
elements has not been proved, or if it has been proved that the
defendant would have \[discharged\] the plaintiff regardless of \[(his)
(her)\] age. \[You may find age was a motivating factor if it has been
proved that the 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^

> \*To be used in direct evidence cases only. *See* Instruction 5.11A,
> n.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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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

This instruction should be used only in direct evidence cases. *See
Gross v. FBL Financial Services, Inc.*, 526 F.3d 356 (8^th^ Cir. 2008).

**5.12A ADEA - ACTUAL DAMAGES**

If you find in favor of the plaintiff \[under Instruction
\_\_\_\_\_,\]^1^ then you must award the plaintiff such sum as you find
will fairly and justly compensate the plaintiff for any wages and fringe
benefits you find the plaintiff would have earned in \[(his) (her)\]
employment with the defendant if \[(he) (she)\] had not been discharged
on \[fill in date of discharge\], through the date of your verdict,
*minus* the amount of earnings and benefits from other employment
received by the plaintiff during that time.^2^

\[You are also instructed that the plaintiff has a duty under the law to
use reasonable efforts to minimize \[(his) (her)\] damages. Therefore,
if it has been proved^3^ that the plaintiff failed to seek out or take
advantage of an opportunity that was reasonably available to \[(him)
(her)\], you must reduce \[(his) (her)\] damages by the amount 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\. 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,
1110-14 (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.

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

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 the 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 or 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) (the
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 the 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 supra*
Model Instruction 5.02B.

**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 the
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 Model
Instruction 5.02B, *supra*, 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 the plaintiff under Instruction \_\_\_\_\_,^1^
then you must decide whether the conduct of the defendant was
\"willful.\" You must find the defendant\'s conduct was willful if it
has been proved^2^ that, when the defendant \[discharged\]^3^ the
plaintiff, the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

3\. This instruction is designed for use in a discharge case. In a
\"failure to hire,\" \"failure to promote,\" or \"demotion\" case, or
where the plaintiff resigned but claims he or she 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 the plaintiff. If the above finding is in favor of the
defendant, have your foreperson sign and date this form because you have
completed your deliberation on this claim.

We find the plaintiff\'s damages to be:

> \$\_\_\_\_\_\_\_\_\_\_ (stating the amount or, if none, write the word
> \"none\").^3^

Was the 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 supra* Committee Comments, Model Instruction 5.12A.

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

**5.20 RACE DISCRIMINATION (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.

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. Nevertheless, if
the trial court believes it is appropriate to distinguish between a
mixed motive case and a pretext case, Model Instruction 5.21B, *infra*,
contains a sample 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 (RACE) DISCRIMINATION - ELEMENTS (Motivating Factor)**

**(42 U.S.C. § 1981)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s (race) discrimination
claim\]^2^ if all the following elements have been proved^3^:

*First*, the defendant \[failed to hire\]^4^ the plaintiff; and

*Second*, the plaintiff\'s (race) \[was a motivating factor\]^5^
\[played a part\]^6^ in the defendant\'s decision.

However, your verdict must be for the defendant if any of the above
elements has not been proved, or if it has been proved that the
defendant would have decided not to \[hire\] the plaintiff regardless of
\[(his) (her)\] (race). \[You may find that the plaintiff\'s (race)
\[was a motivating factor\] \[played a part\] in the defendant\'s
(decision)^7^ if it has been proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 appropriate standard in a section 1981 case is not clearly
resolved. \"Motivating factor\" was used previously in these
instructions and these cases have many similarities to Title VII cases.
The phrase \"motivating factor\" should be defined, if used. *See infra*
Model Instruction 5.96. If the court decides \"determining factor\" is
appropriate, use *infra* Model Instruction 5.21B. If the court is
uncertain as to which standard should be used in a particular case, the
Special Interrogatories in Model Instruction 5.92, *infra*, may be used.

6\. *See supra* 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 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\. This sentence may be added, if appropriate. *See infra* 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."

**5.21B (RACE) - ELEMENTS (Determining Factor) (42 U.S.C. § 1981)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s (race) discrimination
claim\]^2^ if all the following elements have been proved^3^:

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

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

Your verdict must be for the defendant if any of the above elements has
not been proved.

\"(Race) was a determining factor\" only if the defendant would not have
discharged the plaintiff but for the plaintiff\'s (race); it does not
require that (race) was the only reason for the decision made by the
defendant.^5^ \[You may find (race) was a determining factor if it has
been proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 infra* 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 supra* Note on Use 5 to Model Instruction 5.21A.

**5.22A RACE DISCRIMINATION - ACTUAL DAMAGES (42 U.S.C. § 1981)**

If you find in favor of the plaintiff \[under Instruction
\_\_\_\_\_\]^1^, then you must award the plaintiff such sum as you find
will fairly and justly compensate \[(him) (her)\] for damages you find
\[(he) (she)\] sustained as a direct result of the defendant\'s conduct
as described in Instruction \_\_\_\_\_.^1^ Damages include wages or
fringe benefits you find the plaintiff would have earned in \[(his)
(her)\] employment with the defendant if \[(he) (she)\] had not been
discharged on (fill in date of discharge), through the date of your
verdict, *minus* the amount of earnings and benefits from other
employment received by the plaintiff during that time.\]^2^ Damages also
may include \[list damages supported by the evidence\].^3^

\[You are also instructed that the plaintiff has a duty under the law to
\"mitigate\" \[(his) (her)\] damages\--that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if you find that the plaintiff failed to seek out or take
advantage of an opportunity that was reasonably available to \[(him)
(her)\], you must reduce \[(his) (her)\] damages by the amount of the
wages and fringe benefits the plaintiff reasonably could have earned if
\[(he) (she)\] had sought out or taken advantage of such an
opportunity.\]^4^

\[Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award any damages by
way of punishment or through sympathy.\]^5^

**Notes on Use**

1\. Insert the number or title of the \"essential elements\" instruction
here.

2\. 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.

3\. 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 supra* Model Instruction 5.02A n.8.

4\. This paragraph is designed to submit the issue of \"mitigation of
damages\" in appropriate cases. *See* *Coleman v. City of Omaha*, 714
F.2d 804, 808 (8th Cir. 1983).

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

**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);
*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 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.

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

If you find in favor of the plaintiff under Instruction \_\_\_\_\_^1^,
but you do not find that the plaintiff\'s damages have monetary value,
then you must return a verdict for the 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 the plaintiff); *Haley v. Wyrick*, 740
F.2d 12 (8th Cir. 1984).

**Committee Comments**

Most employment discrimination cases involve lost wages and benefits. In
some cases, however, the jury may be permitted to return a verdict for
only nominal damages. For example, if the plaintiff was given severance
pay and was able to secure a better paying job, the evidence may not
support an award of back pay, but may support an award of compensatory
damages. 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 RACE DISCRIMINATION - PUNITIVE DAMAGES (42 U.S.C. § 1981)**

In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff and against defendant \[name\],
\[and if it has been proved^1^ that the plaintiff\'s firing was
motivated by evil motive or intent, or that the defendant was recklessly
indifferent to the plaintiff\'s rights,\]^2^ then, in addition to any
other damages to which you find the plaintiff entitled, you may, but are
not required to, award the plaintiff an additional amount as punitive
damages for the purposes of punishing the defendant for engaging in such
misconduct and deterring the defendant and others from engaging in such
misconduct in the future.

\[However, you may not award punitive damages if it has been proved^1^
\[that the defendant made a good-faith effort to comply with the law
prohibiting race discrimination\]^3^.

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^4^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^5^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^6^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^7^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^8^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^9^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^10^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^11^

**Notes on Use**

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

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 special nature of punitive damages.

3\. Use this phrase only if the good faith of the defendant is to be
presented to the jury. This two-part test was articulated by the United
States Supreme Court in *Kolstad v. American Dental Ass'n*, 527 U.S. 526
(1999), a Title VII case. The Supreme Court has not yet decided whether
it applies to actions under 42 U.S.C. § 1981. For a discussion of
*Kolstad*, 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.

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

5\. The court may, of course, exclude any item not relevant to the
outcome.

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

7\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

9\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

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 supra* Model
Instruction 4.50C, for additional comments on punitive damages and
factors that may be considered. In 1999, the United States Supreme Court
explained that the terms "malice" and "reckless" ultimately focus on the
actor's state of mind. *Kolstad v. American Dental Ass'n*, 527 U.S. 526,
535 (1999). The Court added that the terms pertain to the employer's
knowledge that it may be acting in violation of federal law, not its
awareness that it is engaging in discrimination. *Id.* To be liable for
punitive damages, the employer must at least discriminate in the face of
a perceived risk that its actions will violate federal law. *Id.* at
536. Rejecting the conclusion of the lower court that punitive damages
were limited to cases involving intentional discrimination of an
"egregious" nature, the Court held that a plaintiff is not required to
show egregious or outrageous discrimination independent of the
employer's state of mind. *Id.* at 546.

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

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Supreme Court in *Philip Morris USA v.
Williams*, \_\_\_ U.S. \_\_\_, 127 S. Ct. 1057 (2007); *State Farm Mut.
Auto. Ins. Co. v. Campbell*, 538 U.S. 408 (2003), *BMW of North America,
Inc. v. Gore*, 517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S.
415 (1994), and *TXO Production Corp. v. Alliance Resources Corp.*, 509
U.S. 443, 459-62 (1993). In *State Farm*, 538 U.S. at 417, the court
observed: "We have admonished that '\[p\]unitive damages pose an acute
danger of arbitrary deprivation of property. Jury instructions typically
leave the jury with wide discretion in choosing amounts, and the
presentation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases against
big businesses, particularly those without strong local presences.'"
(quoting *Honda Motor*, 512 U.S. at 432). *See Baker v. John Morrell &
Co*., 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816
(8^th^ Cir. 2004), and *In Re Exxon Valdez*, 296 F. Supp. 2d 1071, 1080
(D. Alaska 2004), for examples of punitive damages instructions in which
the court attempted to incorporate constitutional standards.

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

**5.23 RACE DISCRIMINATION - VERDICT FORM (42 U.S.C. § 1981)**

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 the plaintiff. If the above finding is in favor of the
defendant, have your foreperson sign and date this form because you have
completed your deliberation on this claim.

We find the 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 the 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 (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, section 1983 claims
will remain distinctive in two respects: (1) section 1983 does not
require exhaustion of the EEOC administrative process; and (2) section
1983 does not place a cap on compensatory and punitive damages. The
theory of liability in a section 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 section 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* 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 5.26B, *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 (SEX) DISCRIMINATION - ELEMENTS (Mixed Motive Case)**

**(42 U.S.C. § 1983)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s (sex)^2^ discrimination
claim\]^3^ if both of the following elements have been proved^4^:

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

*Second*, the plaintiff\'s (sex) \[was a motivating factor\]^6^ \[played
a part\]^7^ in the defendant\'s decision\[; and

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

However, your verdict must be for the defendant if any of the above
elements has not been proved, or if it has been proved that the
defendant would have \[discharged\] the plaintiff regardless of \[(his)
(her)\] (sex). \[You may find that the plaintiff\'s (sex) \[was a
motivating factor\] \[play a part\] in the defendant\'s (decision)^9^ if
it has been proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 appropriate standard in a section 1983 case is not clearly
resolved. \"Motivating factor\" was used previously in these
instructions and these cases have many similarities to Title VII cases.
The phrase \"motivating factor\" should be defined, if used. *See infra*
Model Instruction 5.96. If the court decides \"determining factor\" is
appropriate, use *infra* Model Instruction 5.26B. If the court is
uncertain as to which standard should be used in a particular case, the
Special Interrogatories in Model Instruction 5.92, *infra*, may be used.

7\. *See infra* 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\. 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\. 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 infra* 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**

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).

**5.26B (SEX) DISCRIMINATION - ELEMENTS (Determining Factor)**

**(42 U.S.C. § 1983)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s (sex) discrimination
claim\]^2^ if all the following elements have been proved^3^:

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

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

Your verdict must be for the defendant if any of the above elements has
not been proved.

\"(Sex) was a determining factor\" only if the defendant would not have
discharged the plaintiff but for the plaintiff\'s (sex); it does not
require that (sex) was the only reason for the decision made by the
defendant.^5^ \[You may find (sex) was a determining factor if it has
been proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 infra* 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 supra* Note on Use 6 to Model Instruction 5.26A.

**5.27A ACTUAL DAMAGES (42 U.S.C. § 1983)**

If you find in favor of the plaintiff under Instruction \_\_\_\_\_,^1^
then you must award the plaintiff such sum as you find will fairly and
justly compensate the plaintiff for any actual damages you find the
plaintiff sustained as a direct result of the defendant\'s conduct as
submitted in Instruction \_\_\_\_\_.^2^ Actual damages include any wages
or fringe benefits you find the plaintiff would have earned in \[(his)
(her)\] employment with the defendant if \[(he) (she)\] had not been
discharged on \[fill in date of discharge\], through the date of your
verdict, *minus* the amount of earnings and benefits from other
employment received by the plaintiff during that time.^3^ Actual damages
also may include \[list damages supported by the evidence\].^4^

\[You are also instructed that the plaintiff has a duty under the law to
\"mitigate\" \[(his) (her)\] damages\--that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if it has been proved^5^ that the plaintiff failed to seek
out or take advantage of an opportunity that was reasonably available to
\[(him) (her)\], you must reduce \[(his) (her)\] damages by the amount
\[(he) (she)\] reasonably could have avoided if \[(he) (she)\] had
sought out or taken advantage of such an opportunity.\]^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\. 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.

3\. 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).

4\. 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.

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

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 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 NOMINAL DAMAGES (42 U.S.C. § 1983)**

If you find in favor of the plaintiff under Instruction \_\_\_\_\_^1^,
but you do not find that the plaintiff\'s damages have monetary value,
then you must return a verdict for the 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 or her 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 the 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 PUNITIVE DAMAGES (42 U.S.C. § 1983)**

In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff and against defendant \[name\]^1^,
\[and if it has been proved^2^ that the plaintiff\'s firing was
motivated by evil motive or intent, or that the defendant was recklessly
indifferent to the plaintiff\'s rights\]^3^, then in addition to any
other damages to which you find the plaintiff entitled, you may, but are
not required to, award the plaintiff an additional amount as punitive
damages for the purposes of punishing the defendant for engaging in such
misconduct and deterring the defendant and others from engaging in such
misconduct in the future.

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^4^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^5^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^6^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^7^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^8^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^9^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^10^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^11^

**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 or her individual capacity.

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

3\. *See supra* Model Instruction 5.22C n.1.

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

5\. The court may, of course, exclude any item not relevant to the
outcome.

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

7\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

9\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

Punitive damages are recoverable under 42 U.S.C. § 1983. *Smith v.
Wade*, 461 U.S. 30 (1983).

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Supreme Court in *Philip Morris USA v.
Williams*, \_\_\_ U.S. \_\_\_, 127 S. Ct. 1057 (2007); *State Farm Mut.
Auto. Ins. Co. v. Campbell*, 538 U.S. 408 (2003), *BMW of North America,
Inc. v. Gore*, 517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S.
415 (1994), and *TXO Production Corp. v. Alliance Resources Corp.*, 509
U.S. 443, 459-62 (1993). In *State Farm*, 538 U.S. at 417, the court
observed: "We have admonished that '\[p\]unitive damages pose an acute
danger of arbitrary deprivation of property. Jury instructions typically
leave the jury with wide discretion in choosing amounts, and the
presentation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases against
big businesses, particularly those without strong local presences.'"
(quoting *Honda Motor*, 512 U.S. at 432). *See Baker v. John Morrell &
Co*., 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816
(8^th^ Cir. 2004), and *In Re Exxon Valdez*, 296 F. Supp.2d 1071, 1080
(D. Alaska 2004), for examples of punitive damages instructions in which
the court attempted to incorporate constitutional standards.

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

**5.28 VERDICT FORM (42 U.S.C. § 1983)**

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 the plaintiff. If the above finding is in favor of the
defendant, have your foreperson sign and date this form because you have
completed your 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 the 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.

**5.30 EQUAL PAY ACT**

**Introductory Comment**

The Equal Pay Act, 29 U.S.C. § 206(d), with certain exceptions,
prohibits employers from discriminating against employees on the basis
of sex with respect to wages paid for equal work performed under similar
working conditions. The Equal Pay Act, which is part of the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219, provides:

> No employer having employees subject to \[the minimum wage provisions
> of the Fair Labor Standards Act\] shall discriminate, within any
> establishment in which such employees are employed, between employees
> on the basis of sex by paying wages to employees in such establishment
> at a rate less than the rate at which he pays wages to employees of
> the opposite sex in such establishment for equal work on jobs the
> performance of which requires equal skill, effort, and responsibility,
> and which are performed under similar working conditions, except where
> such payment is made pursuant to (i) a seniority system; (ii) a merit
> system; (iii) a system which measures earnings by quantity or quality
> of production; or (iv) a differential based on any other factor other
> than sex . . . .

29 U.S.C. § 206(d)(1).

The following instructions are designed for use in cases brought
pursuant to the Equal Pay Act. It is important to note that a plaintiff
may bring a federal claim for wage discrimination on the basis of sex
under either the Equal Pay Act or Title VII of the Civil Rights Act of
1964 (as amended), 42 U.S.C. § 2000e *et seq*. *See* *Simmons v. New
Pub. Sch. Dist. No. 8*, 251 F.3d 1210, 1215 (8th Cir. 2001); *EEOC v.
Delight Wholesale Co.*, 973 F.2d 664, 669 (8^th^ Cir. 1992). If the
plaintiff is claiming wage discrimination under Title VII and not the
Equal Pay Act, these instructions should not be used.

**5.31 EQUAL PAY ACT -- ESSENTIAL ELEMENTS**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ \[on the plaintiff's Equal Pay Act claim\]^2^ if all
of the following elements have been proved^3^:

*First*, the defendant employed the plaintiff and one or more members of
the opposite sex in positions requiring substantially equal skill,
effort, and responsibility; and

*Second,* the plaintiff and one or more members of the opposite sex
performed their positions under similar working conditions; and

*Third,* the plaintiff was paid a lower wage than \[the\]^4^
member\[s\]^4^ of the opposite sex who \[(was) (were)\]^4^ performing
substantially equal work under similar working conditions.

If any of the above elements has not been proved, or if it has been
proved that the difference in pay was based on (describe affirmative
defense(s) raised by the evidence) in Instruction \_\_\_,^5^ 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\. Use this phrase if there are multiple claims.

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

4\. Select the proper singular or plural form.

5\. Insert number for Instruction 5.33.

**Committee Comments**

To establish a violation under the Act, a plaintiff must prove that the
defendant paid different wages to employees of different sexes for
"equal work on jobs the performance of which requires equal skill,
effort and responsibility, and which are performed under similar working
conditions." *EEOC v. Delight Wholesale Co.*, 973 F.2d 664, 669 (8th
Cir. 1992) (quoting *Corning Glass Works v. Brennan*, 417 U.S. 188, 195
(1974)); *see Hunt v. Nebraska Pub. Power Dist.*, 282 F.3d 1021, 1029
(8th Cir. 2002) (holding the plaintiff must prove that (1) he or she was
paid less than one or more members of the opposite sex employed in the
same establishment, (2) for equal work on jobs requiring equal skill,
effort, and responsibility, (3) which were performed under similar
working conditions).

Once the plaintiff has met his or her burden, the employer may avoid
liability only by proving that the disparity in pay was based on a bona
fide seniority system, a merit system, a system which measures earnings
by quantity or quality of production, any other factor other than sex.
*See Hutchins v. Int'l Bhd. of Teamsters*, 177 F.3d 1076, 1081 (8th Cir.
1999).

**5.32 EQUAL PAY ACT -- DEFINITION: "SUBSTANTIALLY EQUAL"**

"Substantially equal" means equal or nearly equal in the essential
aspects of the job. In considering whether two jobs are substantially
equal, you should compare the skill, effort, and responsibility required
in performing the jobs. You should consider the actual job requirements,
as opposed to job classifications, job descriptions, or job titles. In
addition, you should consider the jobs overall, as opposed to individual
segments of the jobs. You may disregard any superficial differences
required to perform the jobs.

**Committee Comments**

Determining whether two jobs are substantially equal requires "practical
judgment on the basis of all the facts and circumstances of a particular
case." *Buettner v. Arch Coal Sales Co., Inc.*, 216 F.3d 707, 719 (8th
Cir. 2000). A plaintiff is not required to show that the jobs are
identical. *See Ridgway v. United Hospitals-Miller Division*, 563 F.2d
923, 926 (8th Cir. 1977); *Orahood v. Board of Trustees of the Univ. of
Arkansas*, 645 F.2d 651, 654 (8th Cir. 1981). Comparability, however, is
not enough. *See Christopher v. Iowa*, 559 F.2d 1135, 1138 (8th Cir.
1977). The inquiry centers around "whether the performance of the jobs
requires substantially equal skill, effort and responsibility under
similar working conditions." *Orahood*, 645 F.2d at 654. This may
involve a comparison of the seniority and background experience of the
employees performing the jobs, *see Buettner*, 216 F.3d at 719, and a
comparison of the predecessor and successor employees to the jobs (both
immediate and non-immediate), *see Broadus v. O.K. Indus.*, 226 F.3d
937, 942 (8th Cir. 2000). The actual job requirements and performance,
as opposed to the job classifications or titles, are to be considered.
*See Hunt v. Nebraska Pub. Power Dist.*, 282 F.3d 1021, 1029 (8th Cir.
2002) (citing *Orahood*, 645 F.2d at 654). Moreover, the overall jobs,
and not merely the individual segments of the jobs, are to be
considered. *See* *Broadus*, 226 F.3d at 942. Two jobs requiring an
insubstantial or minor difference in the degree or amount of skill, or
effort, or responsibility may be "substantially equal." *See Hunt*, 282
F.3d at 1030.

**5.33 EQUAL PAY ACT -- AFFIRMATIVE DEFENSES**^1^

Your verdict must be for the defendant if it has been proved^2^ that the
difference in pay was the result of:

\(1\) a bona fide seniority system; or

\(2\) a merit system; or

\(3\) a system that measures earnings by quantity or quality of
production; or

\(4\) \[any factor other than sex\].^3^

**Notes on Use**

1\. This instruction should be used when the defendant is submitting an
affirmative defense. It should be tailored to include only those
affirmative defenses asserted.

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

3\. Insert language that describes the factor other than sex upon which
the defendant relies (e.g., "job performance," "education," or
"experience").

**Committee Comments**

The Equal Pay Act specifically provides that a defendant is not liable
under the Act when a disparity in pay between males and females is based
on (1) a seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) a
differential based on any factor other than sex. *See* 29 U.S.C. §
206(d)(1).

*Seniority system.* "A bona fide seniority system is a valid defense to
the application of different standards of compensation." *Wood v.
Southwestern Bell*, 637 F.2d 1188, 1193 (8th Cir. 1981) (Title VII
case). It is proper to give a jury instruction defining a valid
seniority system as simply a "bona fide seniority system," as opposed to
defining the specific seniority system involved. *See Bjerke v. Nash
Finch Co.*, No. Civ. A3-98-134, 2000 WL 33146937, at \*3 (D. N.D. Dec.
4, 2000).

*Merit system*. If a plaintiff's salary is marginally different from
comparable employees and legitimate factors are used to base salary
differentials after evaluations, there is no violation of the Equal Pay
Act. *See Brousard-Norcross v. Augustana College Ass'n*, 935 F.2d 974,
979 (8th Cir. 1991).

*System which measures earnings by quantity or quality of production*.
"There is no discrimination if two employees receive the same pay rate,
but one receives more total compensation because he or she produces
more." *Bence v. Detroit Health Corp.*, 712 F.2d 1024, 1029 (6th Cir.
1983). Similarly, an employee who generates more profits for the
employer can be paid more than an employee of the opposite sex. *See,
e.g.,* *Hodgson v. Robert Hall Clothes, Inc.*, 473 F.2d 589, 597 (3rd
Cir. 1973) (employer demonstrated salespersons in men's clothing
department generated more profits than those in women's clothing
department).

*Factor other than sex*. The Equal Pay Act's broad exemption for
employers who pay different wages to different sexes based upon any
"factor other than sex" indicates that the Act is intended to address
the same kind of "purposeful gender discrimination" prohibited by the
Constitution. *See Varner v. Illinois State Univ.*, 226 F.3d 927, 934
(7th Cir. 2000). The broad exemption allows an employer to provide a
neutral explanation for a disparity in pay. *See id.*

A difference in the job performance between a male and female employee
in the same position can be a "factor other than sex" sufficient to
justify a disparity in pay. *See EEOC v. Cherry-Burrell Corp.*, 35 F.3d
356, 362 (8th Cir. 1994) ("\[P\]erforming 'similar' duties does not
bring about an inference that all Buyers did 'identical' work or even
that objectively measured, they performed the Buyer's role equally.").
Education or experience may be factors sufficient to justify a disparity
in pay. *See Hutchins v. Int'l Bhd. of Teamsters*, 177 F.3d 1076, 1081
(8th Cir. 1999); *Clymore v. Far-Mar-Co., Inc.*, 709 F.2d 499, 503 (8th
Cir. 1983). An employer's salary retention policy, maintaining a skilled
employee's salary upon temporary change of position, may be a factor
"other than sex" that justifies a salary differential. *Taylor v.
White*, 321 F.3d 710, 720 (8^th^ Cir. 2003). Reliance on prior salary
may be a factor "other than sex" under appropriate circumstances. *Id.*

Payment of different wages because an employee of one sex is more likely
to enter into "management training programs," however, is not a valid
justification, where such programs appear to be available to only one
sex. *See Hodgson v. Security National Bank of Sioux City*, 460 F.2d 57,
61 (8th Cir. 1972). Unequal wages due to alleged employee "flexibility"
necessitates an inquiry into the frequency and the manner in which the
additional flexibility is actually utilized. *See Peltier v. City of
Fargo*, 533 F.2d 374, 377 (8th Cir. 1976).

If an employer has a legitimate fiscal reason, such as letting an
employee work overtime instead of calling in a new employee to complete
the additional duties, a wage differential to compensate for the
overtime worked is justifiable. *See Fyfe v. Fort Wayne*, 241 F.3d 597,
600-01 (7th Cir. 2001). Additionally, paying an employee more in order
to avoid harming the public, such as paying an employee overtime for
spraying a greenhouse with harmful pesticides after hours instead of
during normal working hours, is allowable. *See id.*

**5.34 EQUAL PAY ACT -- ACTUAL DAMAGES**

If you find in favor of the plaintiff under Instruction \_\_\_,^1^ \[and
you find against the defendant in Instruction \_\_\_,^2^\]^3^ you must
award the plaintiff such sum as you find will compensate the plaintiff
for the difference between what the plaintiff was paid and what
\[the\]^4^ member\[s\]^4^ of the opposite sex \[(was) (were)\]^4^ paid.

The verdict form will give you further guidance on this issue.
\[Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture, and you must not award damages by way
of punishment or through sympathy.\]^5^

**Notes on Use**

1\. Insert the number of the Instruction setting forth the essential
elements for the plaintiff's claim.

2\. Insert the number of the Instruction setting forth the affirmative
defenses.

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

4\. Select the proper singular or plural form.

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

**Committee Comments**

Employees who bring a successful Equal Pay Act claim are entitled to
compensatory damages, usually composed of back wages and liquidated
damages. *See Broadus v. O.K. Indus.*, 226 F.3d 937, 943 (8th Cir.
2000). The term "liquidated damages" is "'something of a misnomer'
because it is not a sum certain amount determined in advance, rather it
is 'a means of compensating employees for losses they might suffer by
reason of not receiving their lawful wage at the time it was due.'"
*Id.* (quoting *Reich v. Southern New England Telecommunications*, 121
F.3d 58, 70 n.4 (2d Cir. 1997)). Liquidated damages are awarded in an
amount equal to the amount of back wages, *see* 29 U.S.C. § 216(b),
unless the court finds in its discretion that the employer acted "in
good faith and had reasonable grounds for believing that his act or
omission was in violation of the \[FLSA\]." 29 U.S.C. § 260. Where the
court finds the employer acted in good faith, it may "award no
liquidated damages or award any amount thereof not to exceed the amount
specified in \[29 U.S.C. § 216\]." *Id.* There is no need to instruct
the jury on the issue of liquidated damages, as the amount is simply
double the amount awarded for unpaid wages. "The burden is on the
employer to show that the violation was in good faith." *See* *Broadus*,
226 F.3d at 944.

Back wages are normally limited to two years but may be extended to
three years for a willful violation. *See* 29 U.S.C. § 255(a); *see also
Redman v. U.S. West Bus. Res., Inc.*, 153 F.3d 691, 695 (8th Cir. 1998)
("\[A\]ll claims for violations of the FLSA must be 'commenced within
two years after the cause of action accrued,' unless the violation was
'willful.'") (quoting 29 U.S.C. § 255(a)); *Clark v. Eagle Food Ctrs.,
Inc.*, No. 95-3459, 105 F.3d 662, 1997 WL 6145 at \*2 (8th Cir. Jan. 9,
1997) ("Equal Pay Act provides two-year limitations period from filing
of complaint or three-year limitations period if willful violation
proven."). The word "willful" generally refers to conduct that is not
merely negligent. *See McLaughlin v. Richland Shoe Co.*, 486 U.S. 128,
133 (1988). Willfulness is established if the employer either knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by the statute. *Id.* The question of willfulness is a
question for the jury. *See* *Broadus*, 226 F.3d at 944. The jury's
decision on "willfulness" is distinct from the district judge's decision
to award liquidated damages. *See id.*

Title VII awards may subsume part or all of Equal Pay Act claims. *See
EEOC v. Cherry-Burrell Corp.*, 35 F.3d 356, 358 (8th Cir. 1994). "\[A
plaintiff\] is entitled only to one compensatory damage award if
liability is found on any or all of the theories involved." *Id.*
(quoting *Greenwood Ranches, Inc. v. Skie Constr. Co.*, 629 F.2d 518,
521 (8th Cir. 1980)).

**5.35 EQUAL PAY ACT - VERDICT FORM**

[VERDICT]{.underline}

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

1\. On the \[Equal Pay Act\]^1^ claim of plaintiff \[\_\_\_\_\_\_ \]^2^
against defendant \[ \_\_\_\_\_ \],^3^ we find in favor of:

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

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

**Note**: Answer question 2 only if the above finding is in favor of
plaintiff \[\_\_\_\_\_\_\]^2^. If the above finding is in favor of
defendant \[ \_\_\_\_\_ \],^3^ have your foreperson sign and date the
form because you have completed your deliberations on this claim.

\[2. Has it been proved^4^ that the defendant either knew it was
violating the Equal Pay Act or acted with reckless disregard of the
Equal Pay Act?

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

**Note:** If you answered yes to question 2, you should award damages
based on the wages the plaintiff earned from \[ \_\_\_\_ to
\_\_\_\_\_\].^5^ If you answered no to question 2, you should award
damages based on the wages the plaintiff earned from \[ \_\_\_\_ to
\_\_\_\_\_\].^6^\]^7^

3\. We find that the plaintiff should be awarded damages in the amount
of:

\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

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

> Foreperson

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

1\. This phrase should be used when the plaintiff submits multiple
claims to the jury.

2\. Insert the name of the plaintiff.

3\. Insert the name of the defendant.

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

5\. Insert the date on which the plaintiff's cause of action accrued, or
the date three years prior to the date on which the plaintiff filed his
or her complaint, whichever is later. Insert the date the instructions
are submitted to the jury as the final date.

6\. Insert the date on which the plaintiff's cause of action accrued, or
the date two years prior to the date on which the plaintiff filed his or
her complaint, whichever is later. Insert the date the instructions are
submitted to the jury as the final date.

7\. This question is used when the parties dispute the "wilfulness" of
the defendant's actions. When the parties do not dispute "wilfulness,"
question 2 may be eliminated. Question 3 should become question 2 with
the following recommended language:

> Based on the wages the plaintiff earned from \_\_\_\_\_\_ to
> \_\_\_\_\_\_, we find that the plaintiff should be awarded damages in
> the amount of:

\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

**5.40 HARASSMENT CASES UNDER TITLE VII, SECTIONS 1981 AND 1983,**

**ADA AND ADEA - Introductory Comment**

The following instructions are designed for use in harassment cases. 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." *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. *Oncale
v. Sundowner Offshore Servs., Inc.*, 523 U.S. 75 (1998). 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 Dep't of Corr.*, 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.

The Supreme Court has stated that the "quid pro quo" and "hostile work
environment" labels are not 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 752;
*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 744; *accord Rorie v. United Parcel Serv., Inc.*,
151 F.3d 757, 762 (8^th^ Cir. 1998) (citing *Faragher* and *Burlington
Industries*). 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 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 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 harassment the employer\'s liability is established by
proof of harassment and the resulting adverse tangible employment action
taken by the supervisor. *See Faragher*, 524 U.S. at 805-07; *Burlington
Indus.*, 524 U.S. at 763. *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. 775; *Burlington Indus*.,
524 U.S. at 763. A constructive discharge is a tangible employment
action. *Pennsylvania State Police v. Suders*, 542 U.S. 129 (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 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 vicarious
liability under *Faragher* and *Burlington Industries* may be a
contested issue. *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 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 illegal harassment by
non-supervisors sufficiently severe or pervasive to create a hostile
working environment (Model Instruction 5.43, *infra*).

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

**Essential Elements**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ on the plaintiff\'s claim of sexual harassment if
all of the following elements have been proved^2^:

*First*, the plaintiff was subjected to (describe alleged conduct giving
rise to the plaintiff\'s claim)^3^; and

*Second*, such conduct was unwelcome^4^; and

*Third*, such conduct was based on the plaintiff\'s \[(sex)
(gender)\]^5^; and

*Fourth*, the defendant (specify action(s) taken with respect to the
plaintiff)^6^; and

*Fifth*, the 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 the plaintiff).

If any of the above elements has not been proved, your verdict must be
for the defendant and you need not proceed further in considering this
claim.^10^ \[You may find that the plaintiff\'s \[(rejection of)
(failure to submit to)\] such conduct \[was a motivating factor\]
\[played a part\] in the defendant\'s (decision)^11^ if it has been
proved the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

3\. 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 the 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 the plaintiff must
prove is not normally deemed to be a comment on the evidence. Placing
undue emphasis on a particular theory of the plaintiff\'s or the
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 the 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. 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*, 539 U.S. 90 (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 infra* 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, the plaintiff\'s claim may be
analyzed under the "motivating factor/same decision" format used in
other Title VII cases. *See supra* Model Instruction 5.01A. For damages
instructions and a verdict form, Model Instructions 5.02A through 5.03,
*supra*, may be used.

11\. 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 infra* 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, 753 (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 751.

[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 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, 761, 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 HARASSMENT (By Supervisor With No Tangible Employment Action)**

**Essential Elements**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ on the plaintiff\'s claim of \[sex/gender\]
\[racial\] \[color\] \[national origin\] \[religious\] \[age\]
\[disability\] harassment if all of the following elements have been
proved^2^:

*First*, the plaintiff was subjected to (describe alleged conduct or
conditions giving rise to the plaintiff\'s claim)^3^; and

*Second*, such conduct was unwelcome^4^; and

*Third*, such conduct was based on the 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 the plaintiff\'s position would find the
plaintiff\'s work environment to be \[(hostile) (abusive)\]^6^; and

*Fifth*, at the time such conduct occurred and as a result of such
conduct, the plaintiff believed \[(his) (her)\] work environment to be
\[(hostile) (abusive)\].

If any of the above elements has not been proved, \[or if the defendant
is entitled to a verdict under Instruction \_\_\_\_,\]^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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

3\. The conduct or conditions forming the basis for the plaintiff\'s
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 the 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 the plaintiff must
prove is not normally deemed to be a comment on the evidence. Placing
undue emphasis on a particular theory of the plaintiff\'s or the
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 the 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 the 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 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 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 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). *See Pedroza v. Cintas Corporation No. 2*, 397 F.3d 1063
(8^th^ Cir. 2005), for a discussion of the possible evidentiary routes
for proving sexual harassment in same-sex cases.

[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.\'"). *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 supra* the cases cited in
section 5.40.

[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 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 5.42A and Committee
Comments.

**5.42A AFFIRMATIVE DEFENSE**

**(For Use in Supervisor Cases With No Tangible Employment Action)**

Your verdict must be for the defendant on the plaintiff\'s claim of
harassment if it has been proved^1^ that (a) defendant exercised
reasonable care to prevent and correct promptly any harassing behavior;
and (b) that the plaintiff unreasonably failed to take advantage of
(specify the preventive or corrective opportunities provided by the
defendant of which the plaintiff allegedly failed to take advantage or
how the plaintiff allegedly failed to avoid harm otherwise).^2^

**Notes on Use**

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

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 "the 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 763. For purposes of instructing the jury, however, the
Committee recommends that the specific preventive or corrective
opportunities of which the plaintiff allegedly failed to take advantage
or the particular manner in which the plaintiff allegedly failed to
avoid harm be identified.

**Committee Comments**

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 763); *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 HARASSMENT (By Nonsupervisor) Essential Elements**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\]^1^ on the plaintiff\'s claim of \[sex/gender\]
\[racial\] \[color\] \[national origin\] \[religious\] \[age\]
\[disability\] harassment if all of the following elements have been
proved^2^:

*First*, the plaintiff was subjected to (describe alleged conduct or
conditions giving rise to the plaintiff\'s claim)^3^; and

*Second*, such conduct was unwelcome^4^; and

*Third*, such conduct was based on the 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 the plaintiff\'s position would find the
plaintiff\'s work environment to be \[(hostile) (abusive)\]^6^; and

*Fifth*, at the time such conduct occurred and as a result of such
conduct, the plaintiff believed \[(his) (her)\] work environment to be
\[(hostile) (abusive)\]; and

*Sixth*, the defendant knew or should have known of the (describe
alleged conduct or conditions giving rise to the plaintiff\'s claim)^7^;
and

*Seventh*, the defendant failed to take prompt and appropriate
corrective action to end the harassment.^8^

If any of the above elements has not been proved, your verdict must be
for the defendant and you need not proceed further in considering this
claim.^9^

**Notes on Use**

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

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

3\. The conduct or conditions forming the basis for the plaintiff\'s
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 the 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 the plaintiff must
prove is not normally deemed to be a comment on the evidence. Placing
undue emphasis on a particular theory of the plaintiff\'s or the
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 the 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, 786 (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
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 nonsupervisor, the issue of
whether courts will leave the burden on the 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, the 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 5.02A through 5.03, *supra*, 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 AMERICANS WITH DISABILITIES ACT ("ADA") (Employment Cases Only)
\***

**Introduction**

***\* The ADA was amended significantly effective January 1, 2009, by
the ADA Amendments Act of 2008. Those amendments are not retroactive and
are not covered in this edition of the instructions, but will be covered
in the next edition.***

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 the
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) (the 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") and *Pittari v.
American Eagle Airlines, Inc.*, 468 F.3d 1056, 1063 (8^th^ Cir. 2006)
(judgment for plaintiff reversed because of insufficient evidence that
employer regarded flight attendant as disabled in major life activity of
working).

["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 (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, 196
(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 201-02.

["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 the plaintiff's major life activities where
the 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
the 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
the 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) (the 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); *Christensen v. Titan
Distribution, Inc.*, 481 F.3d 1085, 1094 (8^th^ Cir. 2007) (employee
whose knee replacement surgery precluded him from performing about 50
percent of the jobs in the job market and who was restricted in lifting
and walking presented sufficient evidence that he was substantially
limited in the major life activity of working).

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*, 527 U.S. at 491); *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 the plaintiff is "qualified" within the meaning of the ADA, the
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; the plaintiff, whose physician said she could do no vacuuming,
was not a qualified individual); *Rehrs v. The Iams Co.*, 486 F.3d 353,
357 (8^th^ Cir. 2007) (shift rotation was an essential function of
plaintiff's job, where all technician positions were on rotating
shifts). A temporary accommodation exempting an employee from certain
job requirements does not demonstrate that those job functions are
non-essential. *Id.* at 358.

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 (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 the plaintiff failed to
overcome presumption, created by prior allegation of total disability,
that he or she 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 the 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, the ADA does not require an accommodation
"that would cause other employees to work harder, longer, or be deprived
of opportunities." *Rehrs*, 486 F.3d at 357. 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, 1112-14 (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 (the 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). An employer who has an established
policy of filling vacant positions with the most qualified applicant is
not required to assign the vacant position to a disabled employee who,
although qualified, is not the most qualified applicant. *Huber v.
Wal-Mart Stores*, 486 F.3d 480, 483-84 (8^th^ Cir. 2007). 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*, 535 U.S. 391, 394,406
(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 5.51C 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 the defendant where "only \[the
plaintiff\] 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 Eighth
Circuit has 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 the 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 (the plaintiff failed to create a genuine
question of fact in dispute on issue of interactive process where the
plaintiff requested part-time work, the defendant indicated that no such
position existed, the plaintiff failed to identify any particular
"suitable" position and there was no evidence that the 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 the 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 the 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 \[the plaintiff\] 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 5.53A and 5.53B. 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 coworkers. 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 (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
(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
5.55, *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 - ELEMENTS (Actual Disability)**

Your verdict must be for the plaintiff and against the defendant if all
of the following elements have been proved^1^:

*First*, the plaintiff had (specify alleged impairment(s));^2^ and

*Second*, such (specify alleged impairment(s)) substantially limited the
plaintiff\'s ability to (specify major life activity or activities
affected); and^3^

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

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

*Fifth*, the defendant knew^7^ of the plaintiff\'s (specify alleged
impairment(s)) and the plaintiff\'s (specify alleged impairment(s))
\[was a motivating factor\]^8^ \[played a part\]^9^in the defendant\'s
decision to (specify action(s) taken with respect to the plaintiff).

If any of the above elements has not been proved, \[or if the defendant
is entitled to a verdict under (describe instruction),\]^10^ then your
verdict must be for the defendant. \[You may find that the plaintiff\'s
(specify alleged impairment(s)) \[was a motivating factor\] \[played a
part\] in the defendant\'s (decision)^11^ if it has been proved that the
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\] ^12^

**Notes on Use**

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

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
5.51B. *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 5.52C.

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 5.52B.

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 the plaintiff was a qualified individual within the meaning of
the ADA because the 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 supra* section 5.50.

8\. "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 infra* 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\. 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 infra* 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 5.51B, *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.

**5.51B ADA - DISPARATE TREATMENT - ELEMENTS (Perceived Disability)**

Your verdict must be for the plaintiff and against the defendant if all
of the following elements have been proved^1^:

*First*, the defendant regarded the plaintiff\'s (specify alleged
impairment(s))^2^ as substantially limiting the plaintiff\'s ability to
(specify major life activity or activities the defendant allegedly
believed were affected); and^3^

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

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

*Fourth*, the plaintiff\'s (specify alleged impairment(s)) \[was a
motivating factor\]^7^ \[played a part\]^8^in the defendant\'s decision
to (specify action(s) taken with respect to the plaintiff).

If any of the above elements has not been proved, \[or if the defendant
is entitled to a verdict under (describe instruction),\]^9^ then your
verdict must be for the defendant. \[You may find that the plaintiff\'s
(specify alleged impairment(s)) \[was a motivating factor\] \[played a
part\] in the defendant\'s (decision)^10^ if it has been proved that the
defendant\'s stated reason(s) for its (decision) \[(is) (are)\] a
pretext to hide discrimination.\] ^11^

**Notes on Use**

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

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 the 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
5.52C.

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 5.57.

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 5.52B.

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 the plaintiff was a qualified individual within the meaning of
the ADA because the plaintiff failed to identify any particular job for
which she was qualified).

7\. "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 infra* 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\. 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 infra* 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.").

**5.51A/B(1) ADA - DISPARATE TREATMENT "SAME DECISION"**

If you find in favor of the plaintiff under Instruction \_\_\_,^1^ then
you must answer the following question in the verdict form\[s\]: Has it
been proved^2^ that the defendant would have (specify action taken with
respect to the plaintiff) even if the defendant had not considered the
plaintiff's (specify alleged impairment)?

**Notes on Use**

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

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

**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 the plaintiff and against the defendant if all
of the following elements have been proved^1^:

*First*, the plaintiff had (specify alleged impairment(s));^2^ and

*Second*, such (specify alleged impairment(s)) substantially limited the
plaintiff\'s ability to (specify major life activity or activities
affected); and^3^

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

*Fourth*, the plaintiff could have performed the essential functions^5^
of the (specify job held or position sought) at the time the defendant
(specify action(s) taken with respect to the plaintiff) if the plaintiff
had been provided with (specify accommodation(s) identified by the
plaintiff)^6^; and

*Fifth*, providing (specify accommodation(s) identified by the
plaintiff) would have been reasonable; and

*Sixth*, the defendant failed to provide (specify accommodation(s)
identified by the plaintiff) and failed to provide any other reasonable
accommodation.^7^

If any of the above elements has not been proved, \[or if the defendant
is entitled to a verdict under (describe instruction),\]^8^ then your
verdict must be for the defendant.

**Notes on Use**

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

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 5.52C.

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 supra* 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 5.52B.

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 supra*
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). The ADA does not require an accommodation "that would
cause other employees to work harder, longer, or be deprived of
opportunities." *Rehrs v. The Iams Co.*, 486 F.3d 353, 357 (8^th^ Cir.
2007).

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 (the 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). An employer who has an established
policy of filling vacant positions with the most qualified applicant is
not required to assign the vacant position to a disabled employee who,
although qualified, is not the most qualified applicant. *Huber v.
Wal-Mart Stores*, 486 F.3d 480, 483-84 (8^th^ Cir. 2007). 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.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").

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 ADA - DEFINITION: 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 ADA - DEFINITION: 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 \[(his)
(her)\] 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 ADA - DEFINITION: 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
the 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 the
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" the 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 the plaintiff's major life
activities where the 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 the 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 the 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
(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 (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^1^
that providing (specify accommodation) would cause an undue hardship on
the operation of the defendant\'s business.

The term \"undue hardship,\" as used in these instructions, means an
action requiring the 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 the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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 5.51B, *supra*, 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^1^
that:

*First*, the defendant (specify action(s) taken with respect to the
plaintiff) because the plaintiff posed a direct threat to the health or
safety of \[(the plaintiff) (others) (the plaintiff or others)^2\]^ 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

2\. Select the word or phrase that best describes the 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
(2002).

For a discussion of the "direct threat" defense in the health care
context, *see Bragdon v. Abbott*, 524 U.S. 624, 649-50 (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 the plaintiff under Instruction \_\_\_^1^ \[and
if you answer \"no\" in response to Instruction \_\_\_,\]^2^ then you
must award the plaintiff such sum as you find will fairly and justly
compensate the plaintiff for any damages you find the plaintiff
sustained as a direct result of \[describe the defendant\'s
decision\--e.g., \"the defendant\'s failure to hire the plaintiff\"\].
The plaintiff\'s claim for damages includes three distinct types of
damages and you must consider them separately.

*First*, you must determine the amount of any wages and fringe
benefits^3^ the plaintiff would have earned in \[(his) (her)\]
employment with the defendant if \[(he) (she)\] had not been discharged
on \[fill in date of discharge\] through the date of your verdict,^4^
*minus* the amount of earnings and benefits that the plaintiff received
from other employment during that time.

*Second*, you must determine the amount of any other damages sustained
by the plaintiff, such as \[list damages supported by the evidence\].^5^
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.^6^

\[You are also instructed that the plaintiff has a duty under the law to
"mitigate" \[(his) (her)\] damages\--that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if it has been proved^7^ that the plaintiff failed to seek
out or take advantage of an opportunity that was reasonably available to
\[(him) (her)\], you must reduce \[(his) (her)\] damages by the amount
\[(he) (she)\] reasonably could have avoided if \[(he) (she)\] had
sought out or taken advantage of such an opportunity.\]^8^

\[Remember, throughout your deliberations, you must not engage in any
speculation, guess, or conjecture and you must not award damages under
this Instruction by way of punishment or through sympathy.\]^9^

**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 the 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\. 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).

4\. 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.

5\. 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
5.51C, *supra*), 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 5.55.

6\. 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.

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

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

**Notes on Use**

1\. Fill in the number or title 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 the 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 - ADA**

In addition to the damages mentioned in the other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff under Instruction(s)
\_\_\_\_\_\_\_,^1^ and if you answer "no" in response to Instruction
\_\_\_\_\_,^2^ then you must decide whether the defendant acted with
malice or reckless indifference to the plaintiff's right not to be
discriminated against^3^ on the basis of a disability. The defendant
acted with malice or reckless indifference if:

> it has been proved^4^ that \[insert the name(s) of the defendant or
> manager^5^ who terminated^5^ the plaintiff's employment\] knew that
> the (termination)^6^ was in violation of the law prohibiting
> disability discrimination, or acted with reckless disregard of that
> law.^7^

\[However, you may not award punitive damages if it has been proved
\[that the defendant made a good-faith effort to comply with the law
prohibiting disability discrimination\]^8^.

If it has been proved that the defendant acted with malice or reckless
indifference to the plaintiff's rights \[and did not make a good faith
effort to comply with the law,\] then, in addition to any other damages
to which you find the plaintiff entitled, you may, but are not required
to, award the plaintiff an additional amount as punitive damages for the
purposes of punishing the defendant for engaging in such misconduct and
deterring the defendant and others from engaging in such misconduct in
the future.

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^9^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^10^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^11^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^12^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^13^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^14^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^15^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^16^

**Notes on Use**

1\. Fill in the number or title of the essential elements instruction
here. *See supra* Model Instructions 5.51A, 5.51B and 5.51C.

2\. Fill in the number or title of the "same decision" instruction if
applicable. *See supra* Model Instruction 5.51A/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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

5\. Use the name of the defendant, the manager who took the action, or
other descriptive phrase such as "the manager who fired the 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\. *See* *Kolstad v. American Dental Ass'n*, 527 U.S. 526, 535, 536
(1999) (holding that "'malice' or 'reckless indifference' pertain to the
employer's knowledge that it may be acting in violation of federal law,
not its awareness that it is engaging in discrimination" and that "an
employer must at least discriminate in the face of a perceived risk that
its actions will violate federal law to be liable in punitive damages");
*Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc.*, 439 F.3d 894, 903
(8^th^ Cir. 2006) (citing *Kolstad* and observing that an award of
punitive damages may be inappropriate when the underlying theory of
discrimination is novel or poorly recognized or "when the employer (1)
is unaware federal law prohibits the relevant conduct, (2) believes the
discriminatory conduct is lawful, or (3) reasonably believes there is a
bona fide occupational qualification defense for the discriminatory
conduct").

8\. Use this phrase only if the good faith of the defendant is to be
presented to the jury. This two-part test was articulated by the United
States Supreme Court in *Kolstad v. American Dental Ass'n*, 527 U.S. 526
(1999), a Title VII case. For a discussion of *Kolstad*, 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.

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

10\. The court may, of course, exclude any item not relevant to the
outcome.

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

12\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell,* 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

14\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

Under the Civil Rights Act of 1991, a Title VII 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, *supra*, 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 Ass'n*, 527 U.S. 526, 535 (1999). The Court added that the terms
pertain to the employer's knowledge that it may be acting in violation
of federal law, not its awareness that it is engaging in discrimination.
*Id.* To be liable for punitive damages, the employer must at least
discriminate in the face of a perceived risk that its actions will
violate federal law. *Id.* at 536. Rejecting the conclusion of the lower
court that punitive damages were limited to cases involving intentional
discrimination of an "egregious" nature, the Court held that a plaintiff
is not required to show egregious or outrageous discrimination
independent of the employer's state of mind. *Id.* at 546.

The *Kolstad* case also established a good-faith defense to place limits
on an employer's vicarious liability for punitive damages. Recognizing
that Title VII and the ADA are both efforts to promote prevention of
discrimination as well as remediation, the Court held that an employer
may not be vicariously liable for the discriminatory decisions of
managerial agents where those decisions are contrary to the employer's
good faith efforts to comply with Title VII or the ADA. *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
supra* Model Instruction 5.51C), 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 5.55.

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).

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Supreme Court in *Philip Morris USA v.
Williams*, \_\_\_ U.S. \_\_\_, 127 S. Ct. 1057 (2007); *State Farm Mut.
Auto. Ins. Co. v. Campbell*, 538 U.S. 408 (2003), *BMW of North America,
Inc. v. Gore*, 517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S.
415 (1994), and *TXO Production Corp. v. Alliance Resources Corp.*, 509
U.S. 443, 459-62 (1993). In *State Farm*, 538 U.S. at 417, the court
observed: "We have admonished that '\[p\]unitive damages pose an acute
danger of arbitrary deprivation of property. Jury instructions typically
leave the jury with wide discretion in choosing amounts, and the
presentation of evidence of a defendant's net worth creates the
potential that juries will use their verdicts to express biases against
big businesses, particularly those without strong local presences.'"
(quoting *Honda Motor*, 512 U.S. at 432). *See Baker v. John Morrell &
Co.*, 266 F. Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816
(8^th^ Cir. 2004), and *In Re Exxon Valdez*, 296 F. Supp. 2d 1071, 1080
(D. Alaska 2004), for examples of punitive damages instructions in which
the court attempted to incorporate constitutional standards.

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

**5.55 \"GOOD FAITH\" DEFENSE TO COMPENSATORY AND PUNITIVE DAMAGES**

If you find in favor of the plaintiff under Instruction \_\_\_,^1^ then
you must answer the following question in the verdict form(s): Has it
been proved^2^ that the defendant made a good aith 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 5.51C, *supra*).

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

**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**

**Committee Comments**

*See infra* Model Instruction 5.94.

**5.57 CONSTRUCTIVE DISCHARGE**

**Committee Comments**

*See infra* Model Instruction No. 5.93.

**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 or 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, e.g.*, 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 to racial discrimination. *Kim v. Nash Finch Co.*,
123 F.3d 1046, 1059 (8^th^ Cir. 1997).

These instructions are designed to submit the issue of liability in a
retaliation case under Title VII and other federal discrimination laws.
To establish a claim of retaliation, the plaintiff must show (1) he or
she engaged in a "protected activity," (2) the employer took or engaged
in a materially adverse action, and (3) a causal connection existed
between the protected activity and the materially adverse action.
*Burlington Northern & Santa Fe Ry. Co. v. White*, 548 U.S. 53, \_\_\_,
126 S. Ct. 2405, 2414-15 (2006); *see, e.g.,* *Higgins v. Gonzales*, 481
F.3d 578, 589 (8th Cir. 2007). An action is \"materially adverse\" if
\"it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination,\" *Burlington,* 548 U.S. at 68;
*Vajdl v. Mesabi Academy of Kidspeace, Inc.*, 484 F.3d 546, 552 (8th
Cir. 2007).

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

A retaliation plaintiff does not need to prove that the underlying
employment practice by the employer was 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 Clark
County School District v. Breeden*, 532 U.S. 268 ( 2001); *Wentz v.
Maryland Cas. Co.*, 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 . . . 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*, 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.*, 217 F.3d 621, 634 (8^th^
Cir. 2000); *Buettner v. Eastern Arch Coal Sales Co.*, 216 F.3d 707, 714
(8^th^ Cir. 2000); *Wentz*, 869 F.2d at 1155.

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

In addition to prohibiting retaliation based on an employee's
"opposition" to what he or 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.*, 42 U.S.C. § 2000e-3 (Title VII); 29 U.S.C.
§ 623(d) (ADEA); 42 U.S.C. § 12203 (ADA). *Cross v. Cleaver*, 142 F.3d
1059, 1071 (8^th^ Cir. 1988). 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*, 742 F.2d 414 (8^th^ Cir.
1984).

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

To qualify as unlawful retaliation, the employer must have taken a
\"materially adverse\" action. *Burlington Northern & Santa Fe Ry. Co.
v. White*, 548 U.S. 53, \_\_\_, 126 S. Ct. 2405, 2414-15 (2006). To be
\"materially adverse,\" the plaintiff must show that a reasonable
employee in plaintiff\'s position might well have been "dissuaded" from
filing or supporting a charge of discrimination. *Id.* at 68. This is an
objective standard. *Id*.

The requisite \"materially adverse\" action is not limited to actions
that affect the terms and conditions of employment *Id.* Indeed, it
extends beyond workplace and employment-related acts and harm. *Id.* On
the other hand, trivial actions are not materially adverse. *Id.* at
1215-16. Petty slights, minor annoyances, or a simple lack of good
manners normally are not sufficient to demonstrate that an action is
materially adverse. *Id.* Both the action and its context must be
examined, as acts that may be immaterial in some situations may be
material in others. *Id.; see Clegg v. Arkansas Dept. of Correction*,
2007 WL 2296414 (8th Cir. 2007); *Stewart v. Independent Sch. Dist. No.*
196, 481 F.3d 1034 (8th Cir. 2007). An employer\'s actions may be
considered \"cumulatively\" \-- \"extreme, systematic retaliatory
conduct\" may be considered materially adverse. *Devin v. Schwan\'s Home
Service, Inc*., 2007 WL 1948310 (8th Cir. 2007).

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

Plaintiff must show there was a causal connection between the
plaintiff's protected activity and the employer's materially adverse
action. It has been held that timing [alone]{.underline} may be
insufficient to establish causation. *Compare* *Bradley v. Widnall*, 232
F.3d 626 (8^th^ Cir. 2000); *Scroggins v. University of Minnesota*, 221
F.3d 1042 (8^th^ Cir. 2000), *with* *Bassett v. City of Minneapolis*,
211 F.3d 1097, 1105 (8^th^ Cir. 2000); *see also Smith v. St. Louis
University*, 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 materially adverse action often is a strong circumstantial
factor. *Smith*, 109 F.3d at 1266; *Bassett*, 211 F.3d at 1105. In
*Clark County School Dist. v. Breeden*, 532 U.S. 268, 273 (2001), the
Supreme Court noted that the"cases that accept mere temporal proximity
between an employer's knowledge of protected activity\"and a materially
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*, 539 U.S. 90 (2003); *see also Pedigo v. P.A.M.
Transp. Inc.*, 60 F.3d 1300 (8^th^ Cir. 1995) (applying "motivating
factor" causation standard in ADA case). However, the Eighth Circuit has
noted that the Civil Rights Act of 1991 did not modify the standard for
liability in Title VII retaliation cases and, accordingly, the plaintiff
must show that retaliation was a "determining factor" in the employer's
challenged decision. *Van Horn v. Best Buy Stores, L.P.*, 526 F.3d 1144,
1148 (8^th^ Cir. 2008); *Carrington v. City of Des Moines, Iowa*, 481
F.3d 1046, 1053 (8^th^ Cir. 2007). *But cf.* *Warren v. Prejean*, 301
F.3d 893, 900-01 (8^th^ Cir. 2002) ("\[i\]nstructing the jury that
Warren must prove by a preponderance of the evidence that her sex and
grievance were motivating factors in DYS' decision to discharge her,
fairly and adequately reflects the applicable law of this circuit")
(emphasis added). 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 *supra* Model
Instructions 5.01A *et seq.*; in an ADEA retaliation case, the court
should use *supra* Model Instructions 5.11A *et seq.*; 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^1^:

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

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

\[*Third*, a reasonable employee under the same or similar circumstances
might well have been dissuaded from \[filing an EEOC charge\]; and\]^4^

\[*Third, Fourth\],* the plaintiff's \[filing of an EEOC charge\] was a
determining factor^5^ in the defendant's decision^6^ to (discharge,
transfer, reassign) the plaintiff.

If any of the above elements has not been proved, your verdict must be
for the defendant and you need not proceed further in considering this
claim.

"The \[filing of an EEOC charge\] was a determining factor" only if the
defendant would not have discharged the plaintiff but for the
plaintiff\'s filing of an EEOC charge; it does not require that the
filing of an EEOC charge was the only reason for the decision made by
the defendant.^7^ \[You may find that the plaintiff\'s \[filing of an
EEOC charge\] \[was a determining factor\] in the defendant\'s
(decision) if it has been proved that the defendant\'s stated reason(s)
for its (decision) \[(is) (are)\] a pretext to hide discrimination.\]^8^

**Notes on Use**

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

2\. Describe the protected conduct and select the appropriate terms
depending upon whether the 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,
transfer, suspension, etc.

4\. Only submit this paragraph when the parties dispute whether a
decision or act was "materially adverse." *See supra* Introductory
Comments. The Committee elected not to use the phrase "materially
adverse" directly in the elements instruction for simplicity. Actual use
of the phrase "materially adverse" in the elements instruction may be
preferred in some instances. The Committee recommends defining
"materially adverse" in the instruction in this instance.

5\. See the discussion in the introductory comments, Section 5.60,
regarding the standard for liability in retaliation cases. This
instruction assumes retaliation under Title VII (race, creed, color,
sex, etc.). If retaliation is based on something else, *see* the
Introductory Comments in section 5.60.

6\. 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 definition of the phrase, \"the filing of an EEOC charge 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).

8\. This sentence may be added, if appropriate. *See* Model Instruction
5.95, *infra*, 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^1^:

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

*Second*, the plaintiff reasonably believed that \[(he) (she) (name of
third party)\] was being (harassed/discriminated against) ^3^ on the
basis of (race)^5^; and

*Third,* the defendant (discharged, transferred, reassigned)^6^ the
plaintiff; and

*Fourth*, the plaintiff's complaint of (racial harassment) (race
discrimination) was a (determining)^7^ factor\] in the defendant's
decision to (discharge, transfer, reassign) the plaintiff; and

*Finally,* a reasonable employee under the same or similar circumstances
might well have been dissuaded from complaining as a result of the
(discharge, transfer, reassignment).^8^

If any of the above elements has not been proved, your verdict must be
for the defendant and you need not proceed further in considering this
claim. \[You may find that the plaintiff\'s \[filing of an EEOC charge\]
\[was a determining factor\] in the defendant\'s (decision)^9^ if it has
been proved that the defendant\'s stated reason(s) for its (decision)
\[(is) (are)\] a pretext to hide discrimination.\] ^10^

**Notes on Use**

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

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

3\. Select the appropriate term depending on whether the plaintiff's
underlying complaint involved harassment or an allegedly discriminatory
employment decision.

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

5\. The plaintiff need not 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 the plaintiff was
complaining of or opposing discrimination in good faith. *See supra*
Introductory Comments.

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

7\. See the discussion in the introductory comments, Section 5.60,
regarding the standard for liability in retaliation cases. This
instruction assumes retaliation under Title VIII (race, creed, color,
sex, etc.). If retaliation is based on something else, *see* the
Introductory Comments in Section 5.60.

8\. Only submit this paragraph when the parties dispute whether a
decision or act was "materially adverse." *See supra* Introductory
Comments. The Committee elected not to use the phrase "materially
adverse" directly in the elements instruction for simplicity. Actual use
of the phrase "materially adverse" in the elements instruction may be
preferred in some instances. The Committee recommends defining
"materially adverse" later in the instruction in this instance.

9\. 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, *infra*, 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 FIRST AMENDMENT RETALIATION (42 U.S.C. § 1983)**

**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 FIRST AMENDMENT RETALIATION - ELEMENTS (42 U.S.C. § 1983)**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]^1^ \[on the plaintiff\'s First
Amendment retaliation claim\]^2^ if the following elements have been
proved^3^:

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

*Second*, the plaintiff\'s \[here specifically describe the plaintiff\'s
protected speech - *e.g.*, letter to the local newspaper\]^5^ \[was a
motivating factor\]^6^ \[played a part\]^7^in the defendant\'s decision
\[to discharge\]^8^ the plaintiff\[; and

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

However, your verdict must be for the defendant if any of the above
elements has not been proved, or if it has been proved that the
defendant would have \[discharged\] the plaintiff regardless of \[(his)
(her)\] (letter to the local newspaper).^10^ \[You may find that the
plaintiff\'s \[letter to a local newspaper\] \[was a motivating factor\]
\[played a part\] in the defendant\'s (decision)^11^ if it has been
proved that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

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.*, \"the 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 the 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 5.73A. 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 infra* Instruction 5.96.

7\. *See infra* 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\. 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, *infra*, 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 the 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 the
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 the 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 the 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 the 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 the 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 the
plaintiff\'s superiors); *Darnell v. Ford*, 903 F.2d 556, 563 (8th Cir.
1990) (speech was protected even if it was motivated by the plaintiff\'s
self-interest); *see generally Connick v. Myers*, 461 U.S. 138, 147
(1983) (speech is not protected by First Amendment if the 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 the
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* Model Instruction
5.71A n.2. 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) (the 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 the 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 FIRST AMENDMENT RETALIATION - SPECIAL INTERROGATORIES**

**REGARDING \"PROTECTED SPEECH\" BALANCING ISSUES**

**(42 U.S.C. § 1983)**

To assist the Court in determining whether the plaintiff\'s \[describe
the speech upon which the plaintiff\'s claim is based\--*e.g.*, \"memo
to Principal Jones dated January 24, 1989\"\]^1^ was protected by the
First Amendment to the United States Constitution, you are directed to
consider and answer the following questions:

> 1\. Did the 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 the 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 the 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
5.73A.

**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 the 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 the defendant honestly and reasonably believe the report of
> \[name the plaintiff\'s coworker or other source of third-party
> report\] that the 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.

**5.72A FIRST AMENDMENT RETALIATION - ACTUAL DAMAGES**

**(42 U.S.C. § 1983)**

If you find in favor of the plaintiff under Instruction \_\_\_\_,^1^
then you must award the plaintiff such sum as you find will fairly and
justly compensate the plaintiff for any actual damages you find the
plaintiff sustained as a direct result of the defendant\'s conduct as
submitted in Instruction \_\_\_\_\_.^2^ Actual damages include any wages
or fringe benefits you find the plaintiff would have earned in \[(his)
(her)\] employment with the defendant if \[(he) (she)\] had not been
discharged on \[fill in date of discharge\], through the date of your
verdict, *minus* the amount of earnings and benefits from other
employment received by the plaintiff during that time.^3^ Actual damages
also may include \[list damages supported by the evidence\].^4^

\[You are also instructed that the plaintiff has a duty under the law to
\"mitigate\" \[(his) (her)\] damages\--that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if it has ben proved^5^ that the plaintiff failed to seek out
or take advantage of an opportunity that was reasonably available to
\[(him) (her)\], you must reduce \[(his) (her)\] damages by the amount
\[(he) (she)\] reasonably could have avoided if \[(he) (she)\] had
sought out or taken advantage of such an opportunity.\]^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\. 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.

3\. 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 the plaintiff\'s recovery.

4\. 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.

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

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.

**5.72B FIRST AMENDMENT RETALIATION - NOMINAL DAMAGES**

**(42 U.S.C. § 1983)**

If you find in favor of the plaintiff under Instruction \_\_\_\_,^1^ but
you do not find that the plaintiff\'s damages have monetary value, then
you must return a verdict for the 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 or her 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 the 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.

**5.72C FIRST AMENDMENT RETALIATION - PUNITIVE DAMAGES**

**(42 U.S.C. § 1983)**

In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages.

If you find in favor of the plaintiff and against the defendant
\[name\],^1^ \[and if it has been proved^2^ that the plaintiff's firing
was motivated by evil motive or intent, or that the defendant acted with
reckless indifference to the plaintiff's rights\],^3^ then in addition
to any other damages to which you find the plaintiff entitled, you may,
but are not required to, award the plaintiff an additional amount as
punitive damages for the purposes of punishing the defendant for
engaging in such misconduct and deterring the defendant and others from
engaging in such misconduct in the future. The defendant acted with
reckless indifference if:

> it has been proved that \[insert the name(s) of the defendant or
> manager^4^ who terminated^5^ the plaintiff's employment\] knew that
> the (termination) was in violation of the law prohibiting retaliation
> or acted with reckless disregard of that law.^6^

In determining whether to award punitive damages, you should consider
whether the defendant's conduct was reprehensible.^7^ In this regard,
you may consider whether the harm suffered by the plaintiff was physical
or economic or both; whether there was violence, deceit, intentional
malice, reckless disregard for human health or safety; whether the
defendant's conduct that harmed the plaintiff also caused harm or posed
a risk of harm to others; and whether there was any repetition of the
wrongful conduct and past conduct of the sort that harmed the
plaintiff.^8^

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

1\. how much harm the defendant's wrongful conduct caused the plaintiff
\[and could cause the plaintiff in the future\].^9^ \[You may not
consider harm to others in deciding the amount of punitive damages to
award.\]^10^

2\. what amount of punitive damages, in addition to the other damages
already awarded, is needed, considering the defendant's financial
condition, to punish the defendant for \[(his) (her) (its)\] wrongful
conduct toward the plaintiff and to deter the defendant and others from
similar wrongful conduct in the future;

3\. \[the amount of fines and civil penalties applicable to similar
conduct\].^11^

The amount of any punitive damages award should bear a reasonable
relationship to the harm caused to the plaintiff.^12^

\[You may assess punitive damages against any or all defendants or you
may refuse to impose punitive damages. If punitive damages are assessed
against more than one defendant, the amounts assessed against such
defendants may be the same or they may be different.\]^13^

\[You may not award punitive damages against the defendant\[s\] for
conduct in other states.\]^14^

**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 or her individual capacity.

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

3\. *See supra* Model Instruction 5.22C n.2.

4\. Use the name of the defendant, the manager who took the action, or
other descriptive phrase such as "the manager who fired the 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\. *See* *Kolstad v. American Dental Ass'n*, 527 U.S. 526, 535, 536
(1999) (holding that "'malice' or 'reckless indifference' pertain to the
employer's knowledge that it may be acting in violation of federal law,
not its awareness that it is engaging in discrimination" and that "an
employer must at least discriminate in the face of a perceived risk that
its actions will violate federal law to be liable in punitive damages");
*Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc.*, 439 F.3d 894, 903
(8^th^ Cir. 2006) (citing *Kolstad* and observing that an award of
punitive damages may be inappropriate when the underlying theory of
discrimination is novel or poorly recognized or "when the employer (1)
is unaware federal law prohibits the relevant conduct, (2) believes the
discriminatory conduct is lawful, or (3) reasonably believes there is a
bona fide occupational qualification defense for the discriminatory
conduct").

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

8\. The court may, of course, exclude any item not relevant to the
outcome.

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

10\. A paragraph instructing the jury that any punitive damages award
should not include an amount for harm suffered by persons who are not
parties to the case may be necessary if evidence concerning harm
suffered by nonparties has been introduced. *See Philip Morris USA v.
Williams*, \_\_\_ U.S. at \_\_\_, 127 S. Ct. at 1064-65; *State Farm
Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 422-24 (2003); *Williams
v. ConAgra Poultry Co.*, 378 F.3d 790, 797-98 (8^th^ Cir. 2004).

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

12\. *See State Farm Mut. Auto. Ins. Co. v. Campbell*, 538 U.S. 408, 425
(2003) (stating that "in practice, few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process" and observing that: "Single-digit
multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards
with ratios in range of 500 to1 \[citing *BMW of North America, Inc. v.
Gore*, 517 U.S. 559, 582 (1996)\] or, in this case, of 145 to 1.").

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

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

**Committee Comments**

Punitive damages are recoverable under 42 U.S.C. § 1983. *Smith v.
Wade*, 461 U.S. 30 (1983).

This instruction attempts to incorporate the constitutionally relevant
principles set forth by the Su*State Farm Mut. Auto. Ins. Co. v.
Campbell*, 538 U.S. 408 (2003), *BMW of North America, Inc. v. Gore*,
517 U.S. 559 (1996), *Honda Motor Co. v. Oberg*, 512 U.S. 415 (1994),
and *TXO Production Corp. v. Alliance Resources Corp.*, 509 U.S. 443,
459-62 (1993). In *State Farm*, 538 U.S. at 417, the court observed: "We
have admonished that '\[p\]unitive damages pose an acute danger of
arbitrary deprivation of property. Jury instructions typically leave the
jury with wide discretion in choosing amounts, and the presentation of
evidence of a defendant's net worth creates the potential that juries
will use their verdicts to express biases against big businesses,
particularly those without strong local presences.'" (quoting *Honda
Motor*, 512 U.S. at 432). *See Baker v. John Morrell & Co*., 266 F.
Supp. 2d 909, 961 (N.D. Iowa 2003), *aff'd*, 382 F.3d 816 (8^th^ Cir.
2004), and *In Re Exxon Valdez*, 296 F. Supp. 2d 1071, 1080 (D. Alaska
2004), for examples of punitive damages instructions in which the court
attempted to incorporate constitutional standards.

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

**5.73 FIRST AMENDMENT RETALIATION - VERDICT FORM**

**(42 U.S.C. § 1983)**

VERDICT

**Note:** Complete this form by writing in the names required by your
verdict.

On the \[First Amendment retaliation\]^1^ claim of the 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 the plaintiff. If the above finding is in favor of the
defendant, have your foreperson sign and date this form because you have
completed your 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 the
> 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.

**5.73A FIRST AMENDMENT RETALIATION - SPECIAL**

**INTERROGATORIES ON \"BALANCING\" ISSUES (42 U.S.C. § 1983)**

SUPPLEMENTAL VERDICT FORM

As directed in Instruction No. \_\_\_\_\_,^1^ we find as follows:

**Question No. 1**: Did the 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 the 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 supra* 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 5.73, *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 FAMILY AND MEDICAL LEAVE ACT (FMLA) (29 U.S.C. §§ 2601 - 2654)
\***

**Introduction**

***\* In 2008, the FMLA was amended and new regulations were passed,
effective January 16, 2009, that add two new leave entitlements:
military caregiver leave and qualifying exigency leave. The amendments
create certain new concepts that are applicable primarily to the taking
of military family leave and thus, the new regulations include four
regulatory sections, numbered 825.126, 825.127, 825.309 and 825.310.
These changes dealing with the new military family leave provisions are
not covered here, but will be included in the next edition.***

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*, 538 U.S. 721 (2003). In January 2008, the
FMLA was amended to extend coverage to the families of United States
Armed Forces members.

*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 have
day-to-day responsibility to care for and financially support a child.
29 C.F.R. § 825.113(c)(3).

Parent means a biological parent of an employee or an individual who
stood *in loco parentis* to an employee when the employee was a child.
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 or her 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),*

*Civil Rights Legislation, and the FMLA*

Although earlier cases suggested the FMLA was more akin to the FLSA than
to Civil Rights legislation, *see, e.g., Morris v. VCW, Inc.*, 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*, 538 U.S. 721, 728-29 (2003) (holding 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* 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.*, 94 F.3d 1478 (10th Cir. 1996); *Reich v. Davis*, 50
F.3d 962, 965 (11th Cir. 1995). *See E.E.O.C. v. HBE Corp.*, 135 F.3d
543, 555 n.3 (8^th^ Cir. 1998) (the 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.*,
*Phillips v. Mathews*, 547 F.3d 905, 913-14 (8^th^ Cir. 2008) (FMLA
makes it unlawful for an employer to discriminate against any individual
for opposing any practice made unlawful by the Act; this opposition
clause is derived from Title VII of the Civil Rights Act of 1964 and is
intended, according to the legislative history, to be construed in the
same manner); *Spurlock v. Peter Bilt Motors Co., Inc.*, 2003 WL 463491
(6th Cir. (Tenn.)); *Graham v. State Farm Mut. Ins. Co.*, 193 F.3d 1274,
1282-83 (11th Cir. 1999); *Chaffin v. John H. Carter Co., Inc.*, 179
F.3d 316, 319 (5th Cir. 1999); *King v. Preferred Technical Group*, 166
F.3d 887, 891 (7th Cir. 1999); *Hodgens v. Dynamics*, 144 F.3d 151 (1st
Cir. 1998); *Lottinger v. Shell Co.*, 143 F. Supp. 2d 743 (S.D. Tx.
2001); *Maxwell v. GTE Wireless Service Corp.*, 121 F. Supp. 2d 649, 658
(N.D. Ohio 2000); *Bond v. Sterling, Inc.*, 77 F. Supp. 2d 300, 302
(N.D.N.Y. 1999); *Belgrave v. City of New York*, 1999 WL 692034 at \*42
n.38, aff'd, 216 F.3d 1071 (2000); *Stubl v. T.A. Systems*, 948 F. Supp.
1075, 1091 (E.D. Mich. 1997); *Peters v. Community Action CTE, Inc. of
Chem. Chambers-Tallapoosa-Coosa*, 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; however, after *Desert Palace, Inc.
v. Costa*, 539 U.S. 90 (2003), such a distinction is probably no longer
appropriate.

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*, 538 U.S. at 728-30;
*Phillips*, 547 F.3d 905 (8^th^ Cir. 2008). It is not resolved at this
time whether *Costa*'s requirement of a motivating factor test for all
Title VII cases will carry over to other civil rights cases, including
the FMLA. The law in this area is not clear. Therefore, if the term
"motivating factor" is used, the "same decision" instruction, 5.82,
should be given. If the term "determining factor" is used, the "same
decision" instruction, 5.82, should not be given.

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*, 538 U.S. at 728-30. The
Eighth Circuit has not resolved this issue. It is also not resolved at
this time whether *Costa*'s requirement of a motivating factor test for
all Title VII cases will carry over to other civil rights cases,
including the FMLA. The law in this area is not clear. Therefore, if the
term "motivating factor" is used, the "same decision" instruction, 5.82,
should be given. If the term "determining factor" is used, the "same
decision" instruction, 5.82, should not be given.

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 - 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^2^:

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

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

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

\[*Third*, the plaintiff gave the defendant appropriate notice of
\[(his) (her)\] need to be \[absent from work\] ^5^;\] ^6^ and

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

*Fifth*, the plaintiff's \[absence from work\]^5^ was a \[(motivating)
(determining)\]^8^ factor in the defendant's decision to \[describe
employment action taken, e.g., discharge\]^7^ the plaintiff.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_\_\_\_)\] ^9^.

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

**Notes on Use**

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

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

3\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "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 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\. 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.

7\. Insert language that corresponds to the facts of the case. 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. *See
Throneberry v. McGehee Desha County Hosp.*, 403 F.3d 972, 977 (8^th^
Cir. 2005) ("The FMLA makes it 'unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under' the FMLA, 29 U.S.C. § 2615(a)(1). A violation of
this provision creates what is commonly known as the interference theory
of recovery. 29 U.S.C. § 2617. . . . The FMLA also makes it 'unlawful
for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by' the
FMLA. 29 U.S.C. § 2615(a)(2). A violation of this provision creates what
is commonly known as the discrimination theory of recovery. 29 U.S.C. §
2617.")

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

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

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

**5.81B FMLA - WRONGFUL TERMINATION - 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^3^:

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

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

*Second*, the plaintiff was needed to care for \[identify family
member\]; and

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

\[*Fourth*, the plaintiff gave the defendant appropriate notice of
\[(his) (her)\] need to be \[absent from work\]^6^;\] ^7^ and

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

*Sixth*, the plaintiff's \[absence from work\]^6^ was a \[(motivating)
(determining)\]^9^ factor in the defendant's decision to \[describe
employment action taken, e.g., discharge\]^8^ the plaintiff.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_\_)\]^10^.

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

**Notes on Use**

1\. This Instruction is for use in cases in which the employee's family
member had a serious health condition. Model Instruction 5.81C, *infra*,
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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

4\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "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\. 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.

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.

8\. Insert the language that corresponds to the facts of the case. 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. *See
Throneberry v. McGehee Desha County Hosp.*, 403 F.3d 972, 977 (8^th^
Cir. 2005) ("The FMLA makes it 'unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under' the FMLA, 29 U.S.C. § 2615(a)(1). A violation of
this provision creates what is commonly known as the interference theory
of recovery. 29 U.S.C. § 2617. . . . The FMLA also makes it 'unlawful
for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by' the
FMLA. 29 U.S.C. § 2615(a)(2). A violation of this provision creates what
is commonly known as the discrimination theory of recovery. 29 U.S.C. §
2617.")

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

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

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

**5.81C FMLA - WRONGFUL TERMINATION - 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^3^:

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

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

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

*Fourth*, the plaintiff's \[absence from work\]^5^ was a \[(motivating)
(determining)\]^9^ factor in the defendant's decision to \[describe
employment action taken, e.g., discharge\]^10^ the plaintiff.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_)\]^11^.

\[You may find that the plaintiff\'s \[absence from work\] was a
\[(motivating) (determining)\] factor in the defendant\'s (decision)^12^
if it has been proved that the 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. Model Instruction
5.81B, *supra*, should be used for cases in which the employee's family
member had a serious health condition. This Instruction differs from
Model Instruction 5.81B, *supra*, 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

4\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "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\. See the Introduction for a discussion of whether the term
"determining" factor or "motivating" factor should be used.

10\. Insert the language that corresponds to the facts of the case. 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. *See
Throneberry v. McGehee Desha County Hosp.*, 403 F.3d 972, 977 (8^th^
Cir. 2005) ("The FMLA makes it 'unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under' the FMLA, 29 U.S.C. § 2615(a)(1). A violation of
this provision creates what is commonly known as the interference theory
of recovery. 29 U.S.C. § 2617. . . . The FMLA also makes it 'unlawful
for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by' the
FMLA. 29 U.S.C. § 2615(a)(2). A violation of this provision creates what
is commonly known as the discrimination theory of recovery. 29 U.S.C. §
2617.")

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

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

**5.81D FMLA - FAILURE TO REINSTATE - 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^2^:

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

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

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

*Third*, the 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*, the defendant refused to reinstate the plaintiff to the same
or an equivalent position (as defined in Instruction \_\_\_\_\_\_)
^6^held by the plaintiff when the absence began.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_)\]^7^.

**Notes on Use**

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

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

3\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "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 infra* Model
Instruction 5.84A. *Throneberry v. McGehee Desha County Hosp.*, 403 F.3d
972, 978 (8^th^ Cir. 2005).

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

**5.81E FMLA - FAILURE TO REINSTATE - 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^3^:

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

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

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

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

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

*Fifth*, the defendant refused to reinstate the plaintiff to the same or
an equivalent position (as defined by Instruction \_\_\_\_\_)^7^ held by
the plaintiff when the absence began.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_\_)\]^8^.

**Notes on Use**

1\. This Instruction is for use in cases in which the employee's family
member had a serious health condition. Model Instruction 5.81F, *infra*,
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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

4\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "Employees Eligible for Leave"
in section 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 infra* Model
Instruction 5.84A. *Throneberry v. McGehee Desha County Hosp.*, 403 F.3d
972, 978 (8^th^ Cir. 2005).

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

**5.81F FMLA - FAILURE TO REINSTATE - 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^3^:

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

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

*Third*, the defendant refused to reinstate the plaintiff to the same or
an equivalent position (as defined by Instruction \_\_\_\_\_) ^7^ held
by the plaintiff when the absence began.

However, your verdict must be for the defendant if any of the above
elements has not been proved \[or if the defendant is entitled to a
verdict under (Instruction \_\_\_\_\_)\]^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. Model Instruction
5.81E, *supra*, should be used for cases in which the employee's family
member had a serious health condition. This Instruction differs from
Instruction 5.81E, *supra*, 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

4\. Before an employee can exercise rights under the FMLA, he or she
must be "eligible" for leave. *See supra* "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 infra* Model
Instruction 5.84A. *Throneberry v. McGehee Desha County Hosp.*, 403 F.3d
972, 978 (8^th^ Cir. 2005)

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

**5.82 FMLA - "SAME DECISION"**

\[If you find in favor of the plaintiff under Instruction \_\_\_\_,^1^
then you must answer the following question in the verdict form\[s\]:
Has it been proved^2^ that the defendant would have \[describe
employment action taken, e.g., discharged\]^3^ the plaintiff even if the
defendant had not considered the plaintiff's \[absence from
work\]^4^.\]^5^

**Notes on Use**

1\. Insert the number or title of the essential elements Instruction
here.

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

3\. 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 Eighth Circuit has held that the FMLA does not impose strict
liability for all interferences with an employee's FMLA rights; an
employer will not be held liable for interference with an employee's
FMLA rights if the employer can prove it would have made the same
decision had the employee not exercised rights under the FMLA.
*Throneberry v. McGehee Desha County Hosp.*, 403 F.3d 972, 977 (8^th^
Cir. 2005).

**Committee Comments**

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 \[(his)
(her)\] own basic medical, hygienic or nutritional needs or safety; or
is unable to transport \[(himself) (herself)\] 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 infra* comments in section 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 \[(his)
(her)\] 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. 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 the 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 the 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 Dep't Stores Co.*, 315
F.3d 940, 945 (8^th^ Cir. 2003).

The FMLA also requires an employer to give appropriate notice. Whether
an employer has satisfied its notice requirements is a jury issue.
*Sanders*, 315 F.3d at 945. 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*, 315 F.3d at 945.

**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 the 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 the 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 Dep't Stores Co.*, 315 F.3d 940, 945 (8^th^ Cir. 2003).

The FMLA also requires an employer to give appropriate notice. Whether
an employer has satisfied its notice requirements is a jury issue.
*Sanders*, 315 F.3d at 945. 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*, 315 F.3d at 945.

**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^1^ that the
plaintiff was a key employee and that denying job restoration to the
plaintiff was necessary to prevent substantial and grievous economic
injury to the operations of the employer. In considering whether or not
the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

**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^1^ that the
plaintiff would not have been employed by the defendant at the time job
reinstatement was requested.

**Notes on Use**

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

**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 the plaintiff under Instruction \_\_\_\_^1^ then
you must award the plaintiff the amount of any wages, salary, and
employment benefits the plaintiff would have earned in \[(his) (her)\]
employment with the defendant if \[(he) (she)\] had not been discharged
on \[fill in date of discharge\] through the date of your verdict,
*minus* the amount of earnings and benefits from other employment
received by the plaintiff during that time.

\[You are also instructed that the plaintiff has a duty under the law to
"mitigate" \[(his) (her)\] damages -- that is, to exercise reasonable
diligence under the circumstances to minimize \[(his) (her)\] damages.
Therefore, if it has been proved^2^ that the 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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

3\. This 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 are not permitted.
*Rodgers v. City of Des Moines*, 2006 WL 167899 (S.D. Ia. 2006) (holding
damages recoverable under the FMLA are strictly defined in the statute
and measured by actual monetary losses).

**5.86 FMLA - GOOD FAITH DEFENSE TO LIQUIDATED DAMAGES**

If you find in favor of the plaintiff under Instruction \_\_\_\_\_^1^,
then you must decide whether the defendant acted in good faith. You must
find the defendant acted in good faith if it has been proved^2^ that
when the defendant \[insert the defendant's act or omission\], the
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\. Model Instruction 3.04 (Burden of Proof) tells the jury that
something is proved only if the jury finds it is more likely true than
not true. The phrase "greater weight of the evidence" is not necessary
here. It can be included in Instruction 3.04 if desired by the court.

**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 the 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
the plaintiff. If the above finding is in favor of the defendant, have
your foreperson sign and date this form because you have completed your
deliberations on this claim.

Has it been proved^3^ that the defendant would have (describe employment
action taken, e.g., discharged) ^4^ the 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 the plaintiff's damages \[, other than for emotional distress\]
^6^ to be:

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

\[We find the 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 supra* Model Instructions 5.81 A-F.

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

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

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

6\. As noted *supra* 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 the 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 Nevada Dep't of Human Resources v. Hibbs*, 583 U.S.
721, 738 (2003), describing the many limitations placed on the scope of
the FMLA by Congress.

**5.90 MISCELLANEOUS INSTRUCTIONS**

**AND SPECIAL INTERROGATORIES**

**5.92 SPECIAL INTERROGATORIES TO ELICIT FINDINGS**

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

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.

[Question No. 1]{.underline}: Has it been proved^1^ that the
plaintiff\'s (age)^2^ was a determining factor in the defendant\'s
decision to (discharge)^3^ \[(him) (her)\]? "(Age) was a determining
factor" only if the defendant would not have (discharged) the plaintiff
but for the plaintiff's (age). It does not require that (age) was the
only reason for the decision made by the defendant.^4^ \[You may find
that (age) was a determining factor if it has been proved that the
defendant's stated reason(s) for its decision are not the real
reason(s), but are a pretext to hide (age) discrimination.\]^5^

\_\_\_\_\_ 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 that the plaintiff\'s
(age) was a motivating factor^5^ in the defendant\'s decision to
(discharge) \[(him) (her)\]? (Age) was a \"motivating factor\" if the
plaintiff's (age) played a part \[or a role\] in the defendant's
decision to (discharge) the plaintiff. However, the plaintiff's (age)
need not have been the only reason for the defendant's decision to
(discharge) the plaintiff. \[You may find that (age) was a motivating
factor if it has been proved that the defendant's stated reason(s) for
its decision are not the real reason(s), but are a pretext to hide (age)
discrimination.\]^7^

\_\_\_\_\_ 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 that the defendant
would have (discharged) the 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 the plaintiff\'s
actual damages as that term is defined in Instruction \_\_\_\_\_:^8^
\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ (stating the amount \[or,
if you find that the plaintiff\'s damages have no monetary value, write
in the nominal amount of One Dollar (\$1.00)\]).^9^

[Question No. 5]{.underline}: Has it been proved that the defendant\'s
conduct was \"willful\" as that term is defined in Instruction
\_\_\_\_?^10^

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

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

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

Foreperson

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

**Notes on Use**

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

2\. 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."

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

4\. 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).

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

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

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

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

9\. Regarding the submission of the issue of nominal damages, *see
supra* Model Instructions 4.50B, 5.02B, 5.22B, 5.27B, 5.54B, 5.72B.

10\. 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 5.13. 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
4.50C, 5.02C 5.22C, 5.27C, 5.54C, 5.72C. 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, change the language in
Question 5 and insert the number of the punitive damages instruction as
follows:

> [Question No. 5]{.underline}: 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**

In *Desert Palace, Inc. v. Costa*, 539 U.S. 90 (2003), the Supreme Court
ruled that "motivating factor/same decision" instructions should be
given in 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, § 1981, § 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 the 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 the 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 that discrimination
was a \"determining factor.\"

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

Question No. 3 is designed to reach the 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 \"yes\" to
Question No. 3. Thus, the court will need to revisit the issue of
whether a case should be classified as \"mixed motive\" or \"pretext\"
[only if]{.underline} the jury reaches Question No. 3 [and]{.underline}
only if the jury answers \"no\" to that question. Based on this set of
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. However, actual damages and, if appropriate, a
\"willfulness\" or punitive damages instruction must also be submitted.
The Committee makes no recommendation regarding whether all issues
should be submitted to the jury simultaneously or whether jury
deliberations should be bifurcated, with the issues of damages and
willfulness (or punitive damages) being submitted separately from
Questions 1, 2 and 3.

**5.93 CONSTRUCTIVE DISCHARGE**

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

*Second*, the plaintiff's (age, race, gender, religion)^1^ was a
motivating factor^2^ in the defendant's actions, and

*Third*, \[the defendant acted with the intent of forcing the plaintiff
to quit\] or \[the plaintiff's resignation was a reasonably foreseeable
result of the defendant's actions\]^3^.

Working conditions are intolerable if a reasonable person in the
plaintiff's situation would have deemed resignation the only reasonable
alternative.^4^

**Notes on Use**

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

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

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

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

**Committee Comments**

This instruction is designed for use in connection with the essential
elements instruction in cases where the plaintiff resigned but claims
that the employer's discriminatory actions forced him or her to do so.
*See Barrett v. Omaha National Bank*, 726 F.2d 424, 428 (8th Cir. 1984)
("\[a\]n employee is constructively discharged when he or she
involuntarily resigns to escape intolerable and illegal employment
requirements"); *Hukkanen v, International Union of Operating Engineers,
Hoisting & Portable Local No.101*, 3 F.3d 281, 285 (8th Cir. 1993)
("\[c\]onstructive discharge plaintiffs thus satisfy Bunny Breads'
intent requirement by showing their resignation was a reasonably
foreseeable consequence of their employer's discriminatory actions,"
thus, adding an alternative method of meeting the standard announced in
*Johnson v. Bunny Bread Co.*, 646 F.2d 1250, 1256 (8th Cir. 1981)
(employer's actions "must have been taken with the intention of forcing
the employee to quit")). *See also Ogden v. Wax Works, Inc.,* 214 F.3d
999, 1007 n.13 (8th Cir. 2000) ("To establish her constructive
discharge, Ogden needed to show that a reasonable person would have
found the conditions of her employ intolerable *and that the employer
either intended to force her to resign or could have reasonably foreseen
she would do so as a result of its actions*.) (Emphasis added.) This
instruction should be used in lieu of the first and second elements in
the essential elements instructions. *See infra* Model Instructions 5.01
(Title VII), 5.11A and B (ADEA), 5.21A and B (42 U.S.C. § 1981), 5.26A
and B (42 U.S.C. § 1983).

**5.94 BUSINESS JUDGMENT - TITLE VII CASES**

You may not return a verdict for the plaintiff just because you might
disagree with the defendant\'s (decision)^1^ or believe it to be harsh
or unreasonable.

**Notes on Use**

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

**Committee Comments**

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

**5.95 PRETEXT**

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

**Notes on Use**

1\. Choose the appropriate word.

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

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

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

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**

The plaintiffs can establish unlawful bias through \"either direct
evidence of discrimination *or* evidence that the reasons given for the
adverse action are a pretext to cloak the discriminatory motive.\"
*Brooks v. Woodline Motor Freight, Inc.*, 852 F.2d 1061, 1063 (8th Cir.
1988) (emphasis added). \"\[A\]n employer\'s submission of a discredited
explanation for firing a member of a protected class is itself evidence
which may persuade the finder of fact that such unlawful discrimination
actually occurred.\" *MacDissi v. Valmont Indus., Inc.*, 856 F.2d 1054,
1059 (8th Cir. 1988). This instruction, which is based on *St. Mary\'s
Honor Center v. Hicks*, 509 U.S. 502 (1993), may be used in conjunction
with the essential elements instruction when the plaintiff relies
substantially or exclusively on \"indirect evidence\" of discrimination.
In an attempt to clarify this standard, the Eighth Circuit, in *Ryther
v. KARE 11*, 108 F.3d 832 (8th Cir. 1997), stated:

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

*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).

**5.96 DEFINITION OF MOTIVATING FACTOR**

As used in these instructions, the plaintiff's (sex, gender, race,
national origin, religion, disability)^1^ was a \"motivating factor,\"
if the plaintiff's (sex, gender, race, national origin, religion,
disability) played a part^2^ \[or a role^3^\]^4^ in the defendant's
decision to \_\_\_\_\_\_\_\_\_\_^5^ the plaintiff. However, the
plaintiff's (sex, gender, race, national origin, religion, disability)
need not have been the only reason for the defendant's decision to
\_\_\_\_\_\_\_\_\_\_ the plaintiff.

**Notes on Use**

1\. Here state the alleged unlawful consideration.

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

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

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

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

5\. Here state the alleged adverse employment action.

**Committee Comments**

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

**5.97 AFTER-ACQUIRED EVIDENCE**^1^

If your verdict is in favor of the plaintiff under Instruction No.
\_\_\_,^2^ and if you answered "no" to Question No. 1,^3^ then you must
answer the following question on your verdict form:

> Question No. 2: Has it been proved^4^ that, even if the plaintiff had
> not been terminated on \[insert appropriate date\], the defendant
> would have terminated^5^ the plaintiff's employment by \[insert
> appropriate date\]^6^ because \[insert brief explanation of the
> defendant's after-acquired reason for termination.\]^7^ ?

**Notes on Use**

1\. This instruction is intended for potential use in cases involving
claims of wrongful termination or other adverse employment actions
resulting in economic loss to the plaintiff. When given, it ordinarily
will be inserted after the essential elements instruction (or, when
given, after the "same decision" instruction) and before the actual
damages instruction. In addition to instructing on this issue, the
verdict form will need to be modified. *See infra* Model Instruction
5.97A.

2\. Insert the number of the "essential elements" instruction given.

3\. Insert the number of the "same decision" instruction given. If a
"same decision" instruction is not given, this phrase should be deleted.

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

5\. The after-acquired evidence defense typically is asserted by the
defendant to cut off liability for economic damages by suggesting that
the plaintiff would have been terminated if it had been aware of the
after-acquired evidence of misconduct. When the defense is based on a
different fact pattern \-- e.g., the defendant asserts that the
plaintiff would have been demoted or transferred to a lower-paying job
if it had known of the after-acquired evidence \-- the appropriate job
action should be identified.

6\. Insert the appropriate date based upon the defendant's contention of
when the plaintiff would have been terminated as a result of the
after-acquired evidence.

7\. Describe the basis for the defendant's after-acquired evidence
defense \-- e.g. "the plaintiff's misrepresentation in \[(his) (her)\]
employment application" or "the plaintiff's falsification of expense
reports."

**Committee Comments**

In *McKennon v. Nashville Banner Publishing Co.*, 513 U.S.352 (1995),
the Supreme Court ruled that an employer's after-acquired evidence of
misconduct by the plaintiff does not act as a bar to liability, but it
may cut off the plaintiff's damages as of the date the employer
discovered the misconduct. The after-acquired evidence doctrine appears
to be an affirmative defense which must be pleaded and proven by the
employer-defendant.

To establish an after-acquired evidence defense to damages, the employer
must establish that "the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of discharge." *McKennon*, 513
U.S. at 362-63. It is not enough to show that the misconduct was in
violation of company policy or might have justified termination;
instead, the employer must show that the after-acquired evidence would
have resulted in termination. *Sheehan v. Donlen Corp.*, 173 F.3d 1039,
1048 (7th Cir. 1999) ("\[p\]roving that the same decision would have
been justified . . . is not the same as proving that the same decision
would have been made") (quoting *Price Waterhouse v. Hopkins*, 490 U.S.
228, 252 (1989)).

The plaintiff-employee cannot circumvent the after-acquired evidence
defense by suggesting that the defendant-employer discovered the prior
misconduct during the course of discovery. "Once an employer learns
about employee wrongdoing that would lead to a legitimate discharge, we
cannot require the employer to ignore the information, even if it is
acquired during the course of discovery and even if the information
might have gone undiscovered absent the suit." *McKennon*, 513 U.S. at
362.

**5.97A MODIFIED VERDICT FORM**

**IN AFTER-ACQUIRED EVIDENCE CASES**

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

On the \[(sex)^1^ discrimination\]^2^ claim of plaintiff \[Jane Doe\],
\[as submitted in Instruction \_\_\_\]^3^, we find in favor of:

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

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

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

Question No. 1: Has it been proved^4^ that the defendant would have
discharged^5^ the plaintiff on \[date on which the plaintiff was
discharged\] regardless of \[(his) (her)\] (sex)?^6^

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

(Mark an "X" in the appropriate space)

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

Question No. 2: Has it been proved that, even if the plaintiff had not
been terminated on \[insert appropriate date\]^7^, the defendant would
have terminated the plaintiff's employment by \[insert appropriate
date\] because \[insert brief explanation of the defendant's
after-acquired reason for termination.\]^8^?

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

(Mark an "X" in the appropriate space)

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

We assess the plaintiff's damages as follows:

> A. Lost wages and benefits from \[date of actual termination\] through
> \[date used in after-acquired evidence instruction\]:

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

> B. Lost wages and benefits from \[date used in after-acquired evidence
> instruction\] through the date of your verdict^9^:

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

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

> \$\_\_\_\_\_\_\_\_\_ (stating the amount \[or, if you find that the
> plaintiff's damages do not have a monetary value, write in the nominal
> amount of One Dollar (\$1.00)\]).^10^

\[We assess punitive damages against the defendant, as submitted in
Instruction \_\_\_, as follows:

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

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

Foreperson

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

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

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

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

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

5\. *See infra* Model Instruction 5.97 n.5.

6\. This question submits the "same decision" issue to the jury. *See
infra* Model Instruction 5.01A.

7\. *See infra* Model Instruction 5.97 n.6.

8\. *See infra* Model Instruction 5.97 n.7.

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

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

11\. This paragraph should be included if the evidence is sufficient to
support an award of punitive damages. *See supra, e.g.,* Model
Instruction 5.02C.

**Committee Comments**

This model instruction illustrates the modifications to the verdict form
in cases where the after-acquired evidence defense is submitted. *See
supra* Model Instruction 5.97; *see also supra* Model Instructions 5.03
(Title VII Verdict Form); 5.13 (ADEA Verdict Form); 5.23 (§ 1981 Verdict
Form); 5.28 (§ 1983 Verdict Form); 5.73 (First Amendment Verdict Form).

**6. FRAUD CASES**

**6.01 FRAUD - ODOMETER**

Your verdict must be for the plaintiff \[and against defendant
\_\_\_\_\_\_\_\_\_\_\]^1^ \[here generally describe the claim if there
is more than one\] if all of the following elements have been proved^2^:

*First*, that the defendant or its agent \[disconnected, reset, or
altered the odometer on the vehicle in question by changing the number
of miles indicated thereon\];^3^ and

*Second*, that the action of the defendant or its agent was done with
the intent to defraud^4^ someone.^5^

To act with intent to defraud means to act with intent to deceive or
cheat for the purpose of bringing some financial gain to one\'s self or
another.

If any of the above elements has not been proved, your verdict must be
for the defendant.

**Notes on Use**

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

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

3\. The bracketed language should be used when the plaintiff\'s civil
action is based upon a violation of 49 U.S.C. § 32703(2). If the action
is premised on an alleged violation of 49 U.S.C. §§ 32703(3) or 32705.
the element should be modified as follows:

> a\) section 32703(3) -
>
> *First*, that the defendant or its agent operated the vehicle in
> question knowing that the odometer of such vehicle was disconnected or
> nonfunctional;
>
> b\) section 32705 -
>
> *First*, that the defendant or its agent failed to provide an accurate
> written odometer disclosure statement on the vehicle in question at
> the time of its transfer;

4\. Constructive knowledge, recklessness, or even gross negligence in
determining or disclosing actual mileage is enough for the fact finder
to reasonably infer intent to defraud. *Tusa v. Omaha Automobile
Auction, Inc.*, 712 F.2d 1248 (8th Cir. 1983); *Ryan v. Edwards*, 592
F.2d 756 (4th Cir. 1979); *Nieto v. Pence*, 578 F.2d 640 (5th Cir.
1978). Mere negligence is not enough. *See Huson v. General Motors
Acceptance Corp.,* 108 F.3d 172 (8th Cir. 1997); *Bedsworth v. G & J
Automotive, Inc.,* 650 F. Supp 763 (E.D. Mo. 1996).

5\. Privity is unnecessary between the defrauded party and the party who
violated the Motor Vehicle Information and Cost Savings Act with an
intent to defraud. *Tusa v. Omaha Automobile Auction, Inc.* The
plaintiff need only prove that the defendant intended to defraud
someone.

**Committee Comments**

Sections 37023(1) and 37024, 49 United States Code, specify other
actionable illegal acts not covered by this instruction.

**6.51 ODOMETER FRAUD - DAMAGES**

If you find in favor of plaintiff, then you must award plaintiff such
sum as you believe will fairly and justly compensate plaintiff for any
damages you believe plaintiff sustained as a direct result of \[insert
appropriate language such as "the conduct of the defendant as submitted
in Instruction \_\_\_\_\_"\].

Damages include such things as the difference between the fair market
value of the vehicle in question with its actual mileage and the amount
paid for the vehicle by the plaintiff, and such sum as you find will
fairly and justly compensate the plaintiff for any other damages
sustained, including \[insert list of appropriate other special damages
requested\].^1^

**Notes on Use**

1\. Title 49 U.S.C. § 32710(a) also allows an award of expenses such as
repair bills for defects that are directly related to the car's higher
mileage and overpayment of insurance premiums and title and licensing
fees attributable to the car's fraudulent inflation in value due to the
lower mileage reading, provided these expenses are legitimately
attributable to the defendant\'s acts. *Oettinger v. Lakeview Motors,
Inc.*, 675 F. Supp. 1488, 1495-96 (E.D. Va. 1988); *Duval v. Midwest
Auto City, Inc.*, 425 F. Supp. 1381 (D. Neb. 1977)..

**Committee Comments**

This instruction establishes a damage figure for the purposes of
applying the minimum damage figure set by 49 U.S.C. § 32710(a). Under
the provisions of this section, the plaintiff may, upon proper proof,
recover three times the amount of actual damages he or she sustained, or
\$1,500, whichever is greater. *See* *Williams v. Toyota of Jefferson,
Inc.*, 655 F. Supp. 1081 (E.D. La. 1987); *Beachy v. Eagle Motors,
Inc.*, 637 F. Supp. 1093 (N.D. Ind. 1986); *Gonzales v. Van\'s
Chevrolet, Inc.*, 498 F. Supp. 1102 (D. Del. 1980); *Duval v. Midwest
Auto City, Inc.*, 425 F. Supp. 1381 (D. Neb. 1977). The Committee
recommends that, in jury cases, the jury should be directed to determine
the amount of actual damages and that the court should apply the
statutory formula. *See* *Gonzales*.

Section 32710(6) of Title 49, United States Code, permits an award of
reasonable attorney fees and costs to a prevailing plaintiff. The
factors to be considered in awarding these fees are the same as in other
civil rights cases. *See Blanchard v. Bergeron*, 489 U.S. 87 (1989);
*Blum v. Stenson*, 465 U.S. 886 (1984).

**6.51A ODOMETER FRAUD --**

**Verdict Form**

VERDICT

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

On the odometer fraud claim of plaintiff \[name\] against defendant
\[name\] as submitted in Instruction \_\_\_\_^1^, we find in favor of:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(Plaintiff \[name\]) or (Defendant \[name\])

**Note:** Complete the following paragraph only if the above finding is
in favor of the plaintiff. If the above finding is in favor of the
defendant, have your foreperson sign and date this form because you have
completed your deliberation on this claim.

We find plaintiff's damages as defined in Instruction \_\_\_\_^2^ to be:

\$\_\_\_\_\_\_\_\_

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

Foreperson

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Notes on Use**

1\. The number or title of the "essential elements" instruction should
be inserted here.

2\. The number or title of the "actual damages" instruction should be
inserted here.

**7. FEDERAL EMPLOYERS' LIABILITY ACT**

**Introduction**

The Federal Employers\' Liability Act, 45 U.S.C. § 51, *et seq.*,
commonly referred to as the \"F.E.L.A.,\" makes railroads engaging in
interstate commerce liable in damages to their employees for \"injury or
death resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves, or other
equipment.\" 45 U.S.C. § 51 (1939).

Although grounded in negligence, the statute does not define negligence;
federal case law does so. *Urie v. Thompson*, 337 U.S. 163, 174 (1949).
Generally, to prevail on an F.E.L.A. claim, a plaintiff must prove the
traditional common law components of negligence including duty, breach,
foreseeability, causation and injury. *Adams v. CSX Transp. Inc.*, 899
F.2d 536, 539 (6th Cir. 1990); *Robert v. Consolidated Rail Corp.*, 832
F.2d 3, 6 (1st Cir. 1987). This includes whether the defendant railroad
failed to use reasonable or ordinary care under the circumstances.
*Davis v. Burlington Northern, Inc.*, 541 F.2d 182, 185 (8th Cir. 1976);
*McGivern v. Northern Pacific Ry. Co.*, 132 F.2d 213, 217 (8th Cir.
1942). Typically, it must be shown that the railroad either knew or
should have known of the condition or circumstances that allegedly
caused the plaintiff\'s injury. This is referred to as the notice
requirement. *See* *Siegrist v. Delaware, Lackawanna & Western R. Co.*,
263 F.2d 616, 619 (2d Cir. 1959). Ordinarily, the plaintiff must prove
that the railroad, with the exercise of due care, could have reasonably
foreseen that a particular condition could cause injury, *Davis*, 541
F.2d at 185, although the exact manner in which the injury occurs and
the extent of the injury need not be foreseen, *Gallick v. Baltimore &
Ohio R.R. Co.*, 372 U.S. 108, 120 (1963).

Although grounded in negligence, the F.E.L.A. is \"an avowed departure
from the rules of the common law.\" *Sinkler v. Missouri Pacific R.
Co.*, 356 U.S. 326, 329 (1958). The Act\'s most distinctive departure
from the common law is in the area of causation. The plain language of
45 U.S.C. § 51 (1939) establishes a standard of \"in whole or in part\"
causation which replaces the common law standard of proximate causation.
\"\[T\]o impose liability on the defendant, the negligence need not be
the proximate cause of the injury.\" *Nicholson v. Erie R. Co.*, 253
F.2d 939, 940 (2d Cir. 1958). "The F.E.L.A. has its own rule of
causation.\" *Id.* \"The test of causation under the FELA is whether the
railroad\'s negligence played any part, however small, in the injury
which is the subject of the suit.\" *Fletcher v. Union Pac. R. Co.*, 621
F.2d 902, 909 (8th Cir. 1980). The quantum of proof necessary to submit
the question of negligence to the jury and the quantum of proof
necessary to sustain a jury finding of negligence are also modified
under the F.E.L.A.

> It is well established that, under FELA, a case must go to the jury if
> there is any probative evidence to support a finding of even the
> slightest negligence on the part of the employer, *Rogers v. Missouri
> Pac. R. Co.*, 352 U.S. 500, 506-07 (1957), and that jury verdicts in
> favor of plaintiffs can be sustained upon evidence that would not
> support such a verdict in ordinary tort actions, *Heater v. Chesapeake
> & Ohio Railway*, 497 F.2d 1243, 1246 (7th Cir.), *cert. denied*, 419
> U.S. 1013 (1974).

*Caillouette v. Baltimore & Ohio Chicago Terminal R.* Co., 705 F.2d 243,
246 (7th Cir. 1983).

As the F.E.L.A. has modified the common law negligence case, it has also
\"stripped\" certain defenses from the F.E.L.A. cause of action. *See
Rogers v. Missouri Pac. R. Co.*, 352 U.S. 500, 507-08 (1957).
Contributory negligence is no bar to recovery. It may only be used to
proportionately reduce the plaintiff\'s damages. 45 U.S.C. § 53. If the
negligence of the plaintiff employee is the sole cause of his or her own
injury or death, there is no liability because the railroad did not
cause or contribute to cause the employee\'s injury or death. *New York
Cent. R. Co. v. Marcone*, 281 U.S. 345, 350 (1930); *Meyers v. Union
Pacific R. Co.*, 738 F.2d 328, 331 (8th Cir. 1984); *Flanigan v.
Burlington Northern Inc.*, 632 F.2d 880, 883 (8th Cir. 1980); *Page v.
St. Louis Southwestern Railway Co.*, 349 F.2d 820, 827 (5th Cir. 1965).
Although assumption of risk is abolished as a defense altogether, 45
U.S.C. § 54, evidence supporting the defense of contributory negligence
should not be excluded merely because it also would support an
assumption of the risk argument. *Beanland v. Chicago, Rock Island and
Pac. R. Co.*, 480 F.2d 109, 116 n.5 (8th Cir. 1973).

Despite the foregoing authorities and F.E.L.A. principles, it must be
kept in mind that the provisions of 45 U.S.C. § 51 which establish a
negligence cause of action do not establish an absolute liability cause
of action. \"\[T\]he Federal Act does not make the railroad an absolute
insurer against personal injury damages suffered by its employees.\"
*Wilkerson v. McCarthy*, 336 U.S. 53, 61 (1949). \"That proposition is
correct, since the Act imposes liability only for negligent injuries.\"
*Id.*; *cf.* *Tracy v. Terminal R. Ass\'n of St. Louis*, 170 F.2d 635,
638 (8th Cir. 1948). The plaintiff has the burden to prove the elements
of the F.E.L.A. cause of action, including the railroad\'s failure to
exercise ordinary care, notice, reasonable foreseeability of harm,
causation and damages.

In addition to the negligence cause of action of 45 U.S.C. § 51, the
F.E.L.A. also provides for certain causes of action which are not based
upon negligence. These are actions brought under the F.E.L.A. for injury
caused by the railroad\'s violation of the Safety Appliance Act
(formerly 45 U.S.C. §§ 1-16, recodified as 49 U.S.C. §§ 20301-20304,
21302, 21304 (1994)), or the Boiler Inspection Act (formerly 45 U.S.C.
§§ 22-23, recodified as 49 U.S.C. §§ 20102, 20701 (1994)).

Sometimes the same factual circumstances will give rise to a claim under
the general negligence provision of the F.E.L.A., as well as a claim
under the Safety Appliance Act or a claim under the Boiler Inspection
Act. While the same facts may give rise to a combination of these three
types of F.E.L.A. claims, the elements of an F.E.L.A. general negligence
claim are separate and distinct from those of an F.E.L.A. Safety
Appliance Act or F.E.L.A. Boiler Inspection Act claim.

The Safety Appliance Act and Boiler Inspection Act require that certain
railroad equipment be kept in certain prescribed conditions. If the
equipment is not kept in the prescribed conditions and an employee is
thereby injured, the employee may bring a cause of action under 45
U.S.C. § 51. In such a case, proof of the violation of the Safety
Appliance Act or Boiler Inspection Act supplies \"the wrongful act
necessary to ground liability under the F.E.L.A.\" *Carter v. Atlanta &
St. Andrews Bay Ry. Co.*, 338 U.S. 430, 434 (1949). The Safety Appliance
Act and Boiler Inspection Act thus \"dispense, for the purposes of
employees\' suits with the necessity of proving that violations of the
safety statutes constitute negligence; and making proof of such
violations is effective to show negligence as a matter of law.\" *Urie*,
337 U.S. at 189. The United States Supreme Court \"early swept all
issues of negligence out of cases under the Safety Appliance Act.\"
*O\'Donnell v. Elgin, J. & E. Ry. Co.*, 338 U.S. 384, 390 (1949).

In other words, in F.E.L.A. cases brought for injury caused by violation
of the Boiler Inspection Act or Safety Appliance Act, care on the part
of the railroad is immaterial. \"The duty imposed is an absolute one,
and the carrier is not excused by any showing of care, however
assiduous.\" *Brady v. Terminal R. Ass\'n of St. Louis*, 303 U.S. 10, 15
(1938). Likewise, in such cases, care on the part of the employee is
immaterial insofar as the defense of contributory negligence is not
available to bar the plaintiff\'s action or to reduce the damages award.
45 U.S.C. § 53, However, if the plaintiff\'s negligence was the sole
cause of the injury or death, then the statutory violation could not
have contributed in whole or in part to the injury or death. *Beimert v.
Burlington Northern, Inc.*, 726 F.2d 412, 414 (8th Cir. 1984).

Despite the elemental differences between these types of cases \"(t)he
appliance cause often is joined with one for negligence, and even
sometimes . . . mingled in a single mongrel cause of action.\"
*O\'Donnell*, 338 U.S. at 391. In order to avoid such mingling, claims
brought under the general F.E.L.A. negligence provisions of the Act,
claims brought under the Safety Appliance Act and claims brought under
the Boiler Inspection Act should all be submitted by separate elements
instructions. *See* *infra* Model Instructions 7.01 (elements
instruction for claims brought under the general F.E.L.A. negligence
provisions of the Act); Model Instruction 7.04 (elements instruction for
claims brought under Boiler Inspection Act); Model Instruction 7.05
(elements instruction for claims brought under the Safety Appliance
Act).

For a more thorough overview of the F.E.L.A. *see* Richter and Forer,
*Federal Employers\' Liability Act*, 12 F.R.D. 13 (1951) or Michael
Beethe, *Railroads Swing Injured Employees: Should the Federal
Employers' Liability Act Allow Railroads to Recover from Injured
Railroad Workers for Property Damages?*, 65 U.M.K.C. L. Rev. 231 (1996)

Finally, a motivating purpose for Congress in enacting the F.E.L.A. was
to simplify the common law negligence action which had previously
provided the injured railroad worker\'s remedy.

> The law was enacted because the Congress was dissatisfied with the
> common-law duty of the master to his servant . . . . \[F\]or practical
> purposes the inquiry in these cases today rarely presents more than
> the single question whether negligence of the employer played any
> part, however small, in the injury or death which is the subject of
> the suit.

*Rogers*, 352 U.S. at 507-8 (footnotes omitted).

Given this purpose of the F.E.L.A. and the nature of the F.E.L.A. cause
of action, the instructions in this section are drafted in the same
format as are the other instructions in this manual generally. They are
drafted to present the jury only those issues material to the questions
it is to decide. Toward this goal, abstract statements of law and
evidentiary detail are avoided.

A number of jurisdictions submit F.E.L.A. cases by instruction schemes
which present propositions of law and paraphrase the underlying
statutes. Notable among the jurisdictions which instruct in this manner
are Illinois and Arkansas. Although the Committee has adopted the
ultimate issue instruction format for this manual in general and the
F.E.L.A. instructions in specific, the Committee recognizes that other
instruction schemes are equally valuable. None of the instructions in
this manual are mandatory, and any court which prefers to use another
appropriate instruction set or system should do so.

**7.01 GENERAL F.E.L.A. NEGLIGENCE**

Your verdict must be for the plaintiff \[and against defendant (name of
the defendant)\]^1^ \[on the plaintiff\'s (identify claim presented in
this elements instruction as \"*first*,\" \"*second*,\" etc.) claim\]^2^
if all of the following elements have been proved^3^:

*First*, \[(the plaintiff) or (name of decedent)\] was an employee of
defendant \[(name of the defendant)\], and^4,\ 5^

*Second*, defendant \[(name of the defendant)\] failed to provide:^6^

> (reasonably safe conditions for work \[in that (describe the
> conditions at issue)\] or)
>
> (reasonably safe tools and equipment \[in that (describe the tools and
> equipment at issue)\] or)
>
> (reasonably safe methods of work \[in that (describe the methods at
> issue)\] or)
>
> (reasonably adequate help \[in that (describe the inadequacy at
> issue)\]), and

*Third*, defendant \[(name of the defendant)\] in any one or more of the
ways described in Paragraph *Second* was negligent,^7^ and^8^

*Fourth*, such negligence resulted in whole or in part^9^ in \[injury to
the plaintiff\] \[the death of (name of decedent)\].

If any of the above elements has not been proved, then your verdict must
be for defendant \[(name of the defendant)\].^10^

\[Your verdict must be for the defendant if you find in favor of the
defendant under Instruction \_\_\_\_ (insert number or title of
affirmative defense instruction)\].^11^

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim covered by this
elements instruction is made.

2\. Include this phrase and identify the claim covered by this elements
instruction as \"*first*,\" \"*second*,\" etc., only if more than one
claim is to be submitted. *See* Introduction to Section 7 (discussion of
relationship among F.E.L.A. claims for general negligence, violation of
the Safety Appliance Act and violation of the Boiler Inspection Act).

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

4\. The F.E.L.A. provides that the railroad \"shall be liable in damages
to any person suffering injury *while he is employed* by such carrier .
. . .\" 45 U.S.C. § 51 (1939) (emphasis added). In the typical F.E.L.A.
case, there is no dispute as to whether the injured or deceased person
was an employee, and this language need not be included except to make
the instruction more readable. However, when there is such a dispute in
the case, the term \"employee\" must be defined. The definition must be
carefully tailored to the specific factual question presented, and it is
recommended that [Restatement (Second) of Agency]{.smallcaps} (1958) be
used as a guideline in a manner consistent with the federal authorities.
*See* *Kelley v. Southern Pacific Co.*, 419 U.S. 318, 324 (1974)
(discussion of Restatement (Second) of Agency (1957) as authoritative
concerning meaning of \"employee\" and \"employed\" under the F.E.L.A.
and as source of proper jury instruction).

Sometimes employees of one company work on property or equipment owned
by a railroad. In such situations, the individual can be said to be
employed by the railroad if the railroad controlled or had the right to
control the plaintiff's work. The passing of information and other
coordinated efforts between employees of the two companies are not alone
enough to satisfy this test. To find that the plaintiff was employed by
the railroad, the railroad's employees must have had a supervisory role
over the plaintiff's work. *Vanskike v. ACF Industries, Inc.*, 665 F.2d
188, 198-99, 200-02 (8^th^ Cir. 1981).

5\. It may be argued the plaintiff was not acting within the scope of
his or her railroad employment at the time of the incident. If there is
a question whether the employee was within the scope of employment,
paragraph *First* should provide as follows:

> *First*, \[plaintiff\] \[(name of decedent)\] was an employee of
> defendant \[(name of the defendant)\] acting within the scope of
> \[(his) (her)\] employment at the time of \[(his) (her)\] \[injury\]
> \[death\] \[(describe the incident alleged to have caused injury or
> death)\], and

If this paragraph is included, the term \"scope of employment\" must be
defined in relation to the factual issue in the case. The [Restatement
(Second) of Agency]{.smallcaps} (1958) is recognized as a guide. *Wilson
v. Chicago, Milwaukee, St. Paul and Pac. R. Co.*, 841 F.2d 1347, 1352
(7th Cir.), *cert. dism.*, 487 U.S. 1244 (1988). In rare cases it may be
argued that the duties of the employee did not affect interstate
commerce and thus are not covered by the Act. Usually if the employee
was acting within the scope and course of his or her employment for the
railroad, his or her conduct will be sufficiently connected to
interstate commerce to be included within the Act.

6\. This paragraph of the elements instruction is designed to present
descriptions of the conduct alleged to constitute breach of the
railroad\'s standard of care in the majority of F.E.L.A. cases. These
descriptions should focus the jurors\' attention upon the evidence
without belaboring the elements instruction with evidentiary detail. The
description may consist of no more than the appropriate phrase or
phrases \"reasonably safe conditions for work,\" \"reasonably safe tools
and equipment,\" \"reasonably safe methods of work\" or \"reasonably
adequate help.\" *However, if a more specific description will be
helpful to the jury and is deemed by the court to be desirable in the
particular case, a more specific description should be used.* The
following are examples of ways in which the applicable phrase may be
modified to provide further description:

> *First*, the defendant either failed to provide:
>
> reasonably safe conditions for work in that there was oil on the
> walkway, or
>
> reasonably safe tools and equipment in that it provided the plaintiff
> with a lining bar that had a broken claw, or
>
> reasonably safe methods of work in that it failed to require the
> plaintiff to wear safety goggles while welding rail, or
>
> reasonably adequate help in that it required the plaintiff to lift by
> himself a track saw that was too heavy to be lifted by one worker, and

7\. The terms \"negligent\" and \"negligence\" must be defined. *See
infra* Model Instructions 7.09, 7.10 and 7.11.

8\. If only one phrase describing the railroad\'s alleged breach of duty
is submitted in Paragraph *Second*, then Paragraph *Third* should read
as follows:

> *Third*, defendant \[(name of the defendant)\] was thereby negligent,
> and

9\. The standard of causation in an F.E.L.A. case is whether the injury
or death was caused \"in whole or in part\" by the railroad\'s
negligence. 45 U.S.C. § 51; *see infra* Introduction to Section 7. No
other causation language is necessary.

The defendant may request an instruction stating that if the
plaintiff\'s negligence was the sole cause of his or her injury, he or
she may not recover under the F.E.L.A. *New York Central R. Co. v.
Marcone*, 281 U.S. 345, 350 (1930); *Meyers v. Union Pacific R.R. Co.*,
738 F.2d 328, 330-31 (8th Cir. 1984) (not error to instruct jury, \"if
you find that the plaintiff was guilty of negligence, and that the
plaintiff\'s negligence was the sole cause of his injury, then you must
return your verdict in favor of defendant\"). Such a defense may also
arise under the Boiler Inspection and Safety Appliance Acts. *See*
*Beimert v. Burlington Northern, Inc.*, 726 F.2d 412, 414 (8th Cir.
1984).

Sole cause instructions have sometimes been criticized as unnecessary
and as confusing. *See* *Flanigan v. Burlington Northern, Inc.*, 632
F.2d 880, 883-84 n.1 (8th Cir. 1980); *Almendarez v. Atchison, T. & S.F.
Ry. Co.*, 426 F.2d 1095, 1097 (5th Cir. 1970); *Page v. St. Louis
Southwestern Ry. Co.*, 349 F.2d 820, 826-27 (5th Cir. 1965). The
Committee takes no position on whether a sole cause instruction should
be given in an F.E.L.A. case. If the court decides to give a sole cause
type instruction, the following may be appropriate:

> The phrase \"in whole or in part\" as used in \[this instruction\]
> \[Instruction \_\_\_\_\_ (state the title or number of the
> plaintiff\'s elements instruction)\] means that the railroad is
> responsible if its negligence, if any, played any part, no matter how
> small, in causing the plaintiff\'s injuries. This, of course, means
> that the railroad is not responsible if any other cause, including
> plaintiff\'s own negligence, was solely responsible.^\*\*\*^[^4]

*Rogers v. Missouri Pacific Railroad Co.*, 352 U.S. 500, 507 (1957);
*Page v. St. Louis Southwestern Ry. Co.*, 349 F.2d 820, 826-27 (5th Cir.
1965).

As is the case with any model instruction, if the court determines that
some other instruction on the subject is appropriate, such an
instruction may be given.

10\. This paragraph should not be used if Model Instruction 7.02A or
7.02B is given.

11\. Use Model Instruction 7.02C, *infra*, to submit affirmative
defenses.

**7.02 DEFENSE THEORY INSTRUCTIONS - THREE OPTIONS**

**Introduction and Committee Comments**

Eighth Circuit case law holds that the defendant in an F.E.L.A. case,
like any party in any other civil case, is entitled to a specific
instruction on its theory of the case, if the instruction is \"legally
correct, supported by the evidence and brought to the court\'s attention
in a timely request.\" *Board of Water Works, Trustees of the City of
Des Moines, Iowa v. Alvord, Burdick & Howson*, 706 F.2d 820, 823 (8th
Cir. 1983). This proposition applies to F.E.L.A. cases. *Chicago & N.W.
Ry. Co. v. Green*, 164 F.2d 55, 61 (8th Cir. 1947); *see also* *Chicago,
Rock Island & Pacific Railroad Co. v. Lint*, 217 F.2d 279, 284-86 (8th
Cir. 1954) (error to refuse the defendant\'s foreseeability of harm
instructions which \"more specifically\" than the court\'s instructions
presented the defendant\'s theory of defense); *Lewy v. Remington Arms
Co., Inc.*, 836 F.2d 1104, 1112-13 (8th Cir. 1988) (the defendant in
products liability case may be entitled to a sole cause instruction
presenting its theory of the case to the jury, if legally correct,
supported by the evidence and brought to the court\'s attention in a
timely request).

The 7.02 series of defense theory instructions provides for three
alternative formats that a defendant may utilize to present its defense
theory to the jury. If the defendant\'s theory is that the plaintiff has
failed to carry his or her burden of proof on one or more of the
elements of his or her claim set forth in the elements instruction, the
Model Instruction 7.02A format permits instructing the jury that their
verdict must be for the defendant unless that element has been proved.
The 7.02B format is similar, but does not limit the defendant to the
precise language used in the elements instruction. That is, the
defendant can specify any fact which the plaintiff must prove in order
to recover and obtain an instruction stating that the defendant is
entitled to a verdict unless that fact is proved. The defendant may wish
to use this format where the defense theory is that the plaintiff has
failed to prove notice or reasonable foreseeability of harm.

The formats used in 7.02A and 7.02B are designed to cover defense
theories where the plaintiff has failed to prove an element of his or
her claim. The third category of defense theory instructions, as set
forth in Model Instruction 7.02C, *infra*, is designed to cover
affirmative defenses where the railroad has the burden of proof.

The court should limit the number of defense theory instructions so as
not to unduly emphasize the defense theories in a way that would be
unfair to the plaintiff. The Committee believes that as a general rule,
the defendant should be entitled to at least one defense theory
instruction for each claim that the plaintiff is separately submitting
to the jury. There may be certain cases where more than one defense
theory instruction should be given for a particular claim. For example,
in an occupational lung disease case, there may be a statute of
limitations defense hinging on fact issues to be decided by the jury and
there also may be issues as to notice and reasonable foreseeability of
harm. In such a case, the court might conclude to give a 7.02C
instruction on the affirmative defense of statute of limitations and a
7.02B instruction covering the failure to prove notice or reasonable
foreseeability of harm. If the defendant wants 7.02A and 7.02B
instructions to be given in a case, they should be combined in a single
defense theory instruction following the 7.02B format. Rather than
creating an arbitrary limit on the number of defense theory instructions
that may be given, the Committee believes that it is preferable to give
the court flexibility and discretion in dealing with each case on its
own facts. The operative principles are fairness and evenhanded
treatment.

**7.02A FAILURE OF PROOF ON ANY ELEMENT OF**

**THE PLAINTIFF'S CASE LISTED IN THE ELEMENTS**

Your verdict must be for defendant \[(name of the defendant)\]^1^ \[on
the plaintiff\'s (identify claim presented in this instruction as
\"*first*,\" \"*second*,\" etc.)^2^ claim\] unless it has been proved^3^
that \[(specify any element upon which the plaintiff bears the burden of
proof as listed in the appropriate elements instruction for the
particular claim)\].

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim identified in
this instruction is made.

2\. Include this phrase and identify the claim represented in this
instruction as \"*first*,\" \"*second*,\" etc., only if more than one
claim is to be submitted. *See* Introduction to Section 7 (discussion of
relationship among F.E.L.A. claims for general negligence, violation of
the Safety Appliance Act and violation of the Boiler Inspection Act).

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

**Committee Comments**

*See* Introduction and Committee Comments to the 7.02 series of defense
theory instructions for a discussion of the general principles
underlying their use.

Model Instruction 7.02A, *infra*, provides a general format that can be
used when the defendant\'s theory is that the plaintiff has failed to
prove an element of his or her claim *as listed in the elements
instruction*. When this format is used, the language in the elements
instruction should be repeated verbatim in the defense theory
instruction. For example, if the defense theory is the failure to prove
causation, the instruction might read: \"Your verdict must be for the
defendant on the plaintiff\'s claim unless it has been proved that the
defendant\'s negligence resulted in whole or in part in injury to the
plaintiff.\"

The defendant may wish to specify in its defense theory instruction more
than one element of the plaintiff\'s case that the defendant contends
has not been proved. If the defendant specifies more than one element
from the elements instruction, the defense theory instruction should use
the same connecting term (\"and\" versus \"or\") as used in the elements
instruction. In other words, in specifying conjunctive submissions, the
defense theory instruction uses \"and\" between elements; in specifying
disjunctive submissions, it uses \"or.\"

The defendant has the option to specify one or more elements of the
elements instruction in its defense theory instruction. The only
limitation on the defendant\'s right to specify as much or as little of
the elements instruction as desired is with respect to disjunctive
submissions. If the defendant elects to specify any element which is
submitted by the elements instruction in the disjunctive, he or she must
specify *all* such disjunctive elements. For example, if the
plaintiff\'s elements instruction submits that the defendant either
committed negligent act \"A\" *or* negligent act \"B,\" it would be
improper to give a defense theory instruction stating that the verdict
must be for the defendant unless the jury believes that negligent act
\"A\" has been proved. Instead, the defense theory instruction would
have to specify all of the negligent acts submitted in the elements
instruction connected by the word \"or.\"

**7.02B FAILURE TO PROVE ANY FACT**

**ESSENTIAL TO THE PLAINTIFF\'S RIGHT TO RECOVER**

Your verdict must be for defendant \[(name of the defendant)\]^1^ \[on
the plaintiff\'s (identify claim as \"*first*,\" \"*second*,\" etc.)
claim\]^2^ unless it has been proved^3^ that \[(specify any fact which
the plaintiff must prove in order to recover)\].^4^

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim identified in
this instruction is made.

2\. Include this phrase and identify the claim represented in this
instruction as \"*first*,\" \"*second*,\" etc., only if more than one
claim is to be submitted. *See* Introduction to Section 7 (discussion of
relationship among F.E.L.A. claims for general negligence, violation of
the Safety Appliance Act and violation of the Boiler Inspection Act).

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

4\. Of course, it is an issue of substantive law as to what facts are
essential to the plaintiff\'s right to recover. See the examples in the
Committee Comments above for instructions on the defense theories of
failure to prove notice and failure to prove reasonable foreseeability
of harm.

**Committee Comments**

*See* Introduction and Committee Comments to the 7.02 series of defense
theory instructions for a discussion of the general principles
underlying their use. If the defendant wants 7.02A and 7.02B
instructions to be given in a case, they should be combined in a single
defense theory instruction following the 7.02B format.

This defense theory instruction format is similar to the 7.02A format,
but differs in that the defendant is not restricted to a repetition of
the exact language used in the elements instruction. The 7.02B format is
intended by the Committee to address the kind of instruction issues
discussed in *Chicago & N.W. Ry. Co. v. Green*, 164 F.2d 55, 61 (8th
Cir. 1947) and *Chicago, Rock Island & Pacific Railroad Co. v. Lint*,
217 F.2d 279, 284-86 (8th Cir. 1954). *See* Introduction and Committee
Comments to 7.02 series of defense theory instructions.

The Committee anticipates that the 7.02B format can be used, for
example, to instruct on the plaintiff\'s burden to prove \"notice\" and
\"reasonable foreseeability of harm.\" For a discussion of these
concepts, *see infra* Committee Comments, Model Instruction 7.09.

The close and interdependent relationship of notice and reasonable
foreseeability of harm to the ultimate question of whether the railroad
exercised due care raises the issue whether the jury should be
instructed to make separate findings of notice and reasonable
foreseeability of harm in the elements instruction. In *Atlantic Coast
Line R. Co. v. Dixon*, 189 F.2d 525, 527-28 (5th Cir. 1951), and
*Patterson v. Norfolk & Western Railway Company*, 489 F.2d 303, 305 (6th
Cir. 1973), instructions calling for such separate findings were found
improper in that they misrepresented the ultimate question of reasonable
or ordinary care. However, in *Chicago, Rock Island & Pacific Railroad
Co. v. Lint*, 217 F.2d 279, 284-86 (8th Cir. 1954), it was held error to
refuse the defendant\'s notice and reasonable foreseeability of harm
instructions which \"more specifically\" than the court\'s instructions
presented the defendant\'s theory of defense. Similarly, in *Chicago &
N.W. Ry. Co. v. Green*, 164 F.2d 55, 61 (8th Cir. 1947), it was error to
refuse to give an instruction requested by the defendant on defendant\'s
defense theory that the plaintiff had failed to prove notice. Other
cases of interest are: *Denniston v. Burlington Northern, Inc.*, 726
F.2d 391, 393-94 (8th Cir. 1984) (no plain error in instructing that the
plaintiff was required to prove notice); and *Baynum v. Chesapeake &
Ohio Railway Co.*, 456 F.2d 658, 660 (6th Cir. 1972) (verdict for the
plaintiff upon sufficient evidence of notice rendered refusal of notice
instruction harmless error).

By way of illustration, assume that the plaintiff\'s submission of
negligence is that the defendant failed to provide reasonably safe
conditions for work in that there was oil on the walkway (*see infra*
Model Instruction 7.01 n.8). Assume further that the defendant\'s theory
of defense is that the defendant did not know and could not have known
in the exercise of ordinary care that there was oil on the walkway. The
defense theory instruction for this defense might read as follows:
\"Your verdict must be for the defendant unless it has been proved that
the defendant knew or by the exercise of ordinary care should have known
that there was oil on the walkway.\" In other words, a notice defense
theory instruction should specify the defect, condition or other
circumstance so it will be clear what fact or facts must be proved in
order to establish notice.

Where the defendant claims it is not negligent because it did not have a
reasonable opportunity to remove or repair a defect, such as a spill,
the jury may be instructed as follows: "Your verdict must be for the
defendant unless it has been proved that the defendant had a reasonable
opportunity to \[clean up the spill\] before the plaintiff was injured."

As an example of a defense theory instruction on reasonable
foreseeability of harm, assume a case where the plaintiff is claiming
occupational lung disease caused by exposure to diesel fumes. The
negligence submission from the elements instruction might read: \"The
defendant failed to provide reasonably safe conditions for work in that
the plaintiff was repeatedly exposed to diesel fumes.\" The defense
theory instruction on foreseeability of harm might read as follows:
\"Your verdict must be for the defendant unless it has been proved that
the defendant knew or by the exercise of ordinary care should have known
that repeated exposure to diesel fumes was reasonably likely to cause
harm to the plaintiff.\"

While notice and foreseeability of harm are common defense theories that
can be accommodated by the 7.02B format, this format is not limited to
those particular theories. This format can be used to specify any fact
upon which the plaintiff bears the burden of proof and which fact is
essential to the plaintiff\'s right to recover. Of course, it is up to
the court to determine what those \"essential facts\" might be under the
case law and under the circumstances of the particular case before the
court.

The 7.02B format should not be used to specify a fact upon which the
defendant bears the burden of proof. If the defendant bears the burden
of proof to establish the defense theory, the 7.02C format should be
followed.

**7.02C DEFENSE THEORY INSTRUCTIONS - AFFIRMATIVE DEFENSES**

Your verdict must be for defendant \[(name of the defendant)\]^1^ \[on
the plaintiff\'s (identify claim to which this instruction pertains as
\"*first*,\" \"*second*,\" etc.)^2^ claim\] if all of the following
elements have been proved^3^:

\[List in numbered paragraphs each element of any affirmative defense
upon which the defendant bears the burden of proof and which, if proved,
entitles the defendant to a verdict.\]

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, identify the
defendant to whom this instruction applies.

2\. Include this bracketed language and identify the claim to which this
instruction pertains as \"*first*,\" \"*second*,\" etc., only if more
than one claim is submitted and one or more of such claims is not
subject to the affirmative defense.

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

**Committee Comments**

*See* Introduction and Committee Comments to the 7.02 series of defense
theory instructions for a discussion of the general principles
underlying their use.

The 7.02C format is only to be used for affirmative defenses where the
defendant bears the burden of proof. For example, the affirmative
defenses of release and statute of limitations sometimes turn on fact
issues to be resolved by the jury. The Committee has not undertaken to
prepare model instructions for affirmative defenses. If a particular
case requires an affirmative defense instruction, the elements of the
affirmative defense should be submitted in separate paragraphs connected
by \"and.\" Evidentiary detail should be avoided, but the ultimate
factual issues to be resolved by the jury should be specified.

The 7.02C format should not be used in submitting the defense of
contributory negligence which, if proved, only reduces the plaintiff\'s
recovery. That defense should be submitted under Model Instruction 7.03,
*infra*.

Assumption of the risk is no defense whatsoever because it has been
abolished altogether in F.E.L.A. cases. 45 U.S.C. § 54 (1994).

The defendant may request a defense theory instruction stating that if
the plaintiff\'s negligence was the sole cause of his or her injury, he
or she may not recover under the F.E.L.A. For a discussion of the
authorities on sole cause instructions, *see infra* Model Instruction
7.01 n.9. The Committee takes no position on whether a sole cause
instruction should be given in an F.E.L.A. case.

**7.03 F.E.L.A CONTRIBUTORY NEGLIGENCE**

If you find in favor of the plaintiff under Instruction \_\_\_\_\_
(insert number or title of the plaintiff\'s elements instruction) you
must consider whether plaintiff \[(name of decedent)\]^1^ was also
negligent. Under this Instruction, you must assess a percentage of the
total negligence^2^ to \[plaintiff\] \[(name of decedent)\] \[on the
plaintiff\'s (identify claim to which this instruction pertains as
\"*first*,\" \"*second*,\" etc.) claim against defendant \[(name of the
defendant)\]\]^3^ if all of the following elements have been proved^4^:

*First*, \[plaintiff\] \[(name of decedent)\] (characterize the alleged
negligent conduct, such as, \"failed to keep a careful lookout for
oncoming trains\"),^5^ and

*Second*, \[plaintiff\] \[(name of decedent)\] was thereby negligent,
and^6^

*Third*, such negligence of \[plaintiff\] \[(name of decedent)\]
resulted in whole or in part in \[(his) (her)\] injury.^7^

\[If any of the above elements have not been proved, then you must not
assess a percentage of negligence to \[plaintiff\] \[(name of
decedent)\].\]^8^

**Notes on Use**

1\. This contributory negligence instruction is designed for use in
cases in which the employee\'s injury resulted in death as well as in
cases in which the employee\'s injuries did not result in death. If the
employee\'s injuries resulted in death, identify the decedent by name.

2\. The terms \"negligent\" and \"negligence\" must be defined. *See
infra* Model Instruction 7.09.

3\. Include this bracketed language and identify the claim to which this
instruction pertains as \"*first*,\" \"*second*,\" etc., only if more
than one claim is submitted.

If there are two or more defendants in the lawsuit, identify the
defendant against whom the claim referred to in this instruction is
asserted.

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

5\. More than one act or omission alleged to constitute contributory
negligence may be here submitted in the same way that alternative
submissions are made under Model Instruction 7.01. *See infra* Model
Instruction 7.01 n.6.

6\. If more than one act or omission is alleged as contributory
negligence, then Paragraph Second should be modified to read as follows:

> *Second*, \[plaintiff\] \[(name of decedent)\] in any one or more of
> the ways described in Paragraph *First* was negligent, and . . . .

7\. A single standard of causation is to be applied to the plaintiff\'s
negligence claim and the railroad\'s claim of contributory negligence.
*Norfolk Southern Ry. Co. v. Sorrell*, 549 U.S. 159 (2007).

8\. This paragraph is optional. If requested, the court may add this
paragraph.

**Committee Comments**

Contributory negligence is no bar to recovery under F.E.L.A., \"but the
damages shall be diminished by the jury in proportion to the amount of
negligence attributable to such employee . . . .\" 45 U.S.C. § 53
(1994).

In a F.E.L.A. case brought for injury or death caused by the railroad\'s
violation of a \"statute enacted for the safety of employees,\"
contributory negligence will neither bar the plaintiff\'s recovery nor
reduce his or her damages. *Id.* The Safety Appliance Act (formerly 45
U.S.C. §§ 1-16, recodified at 49 U.S.C. §§ 20301-20304, 21302, 21304
(1994)), and the Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23,
recodified at 49 U.S.C. §§ 20102, 20701 (1994)), are statutes enacted
for the safety of employees. Therefore, this instruction should not be
submitted in a claim brought for violation of the Boiler Inspection Act
(Model Instruction 7.04, *infra*) or for violation of the Safety
Appliance Act (Model Instruction 7.05, *infra*). *See* Introduction to
Section 7 (discussion of relationship among Boiler Inspection Act,
Safety Appliance Act and F.E.L.A.).

**7.04 F.E.L.A. BOILER INSPECTION ACT VIOLATION**

Your verdict must be for the plaintiff \[and against defendant (name of
the defendant)\]^1^ \[on the plaintiff\'s (identify claim represented in
this elements instruction as \"*first*,\" \"*second*,\" etc.) claim\]^2^
if all of the following elements have been proved^3^:

*First*, plaintiff \[(name of decedent)\] was an employee of defendant
\[(name of the defendant)\]^4,\ 5^

*Second*, the \[locomotive\] \[boiler\] \[tender\] \[(identify part or
appurtenance of locomotive, boiler or tender which is the subject of the
claim)\]^6^ at issue in the evidence was not in proper condition and
safe to operate without unnecessary peril to life or limb in that
(identify the defect which is the subject of the claim),^7^ and^8^

*Third*, this condition resulted in whole or in part^9^ in \[injury to
the plaintiff\] \[death to (name of decedent)\].

If any of the above elements has not been proved, then your verdict must
be for defendant \[(name of the defendant)\].^10^

\[Your verdict must be for the defendant if you find in favor of the
defendant under Instruction \_\_\_\_ (insert number or title of
affirmative defense instruction)\].^11^

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim represented in
this elements instruction is made.

2\. Include this phrase and identify the claim represented in this
elements instruction as \"*first*,\" \"*second*,\" etc., only if more
than one claim is to be submitted.

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

4\. F.E.L.A. provides that the railroad \"shall be liable in damages to
any person suffering injury *while he is employed* by such carrier . . .
.\" 45 U.S.C. § 51 (emphasis added). In the typical F.E.L.A. case, there
is no dispute as to whether the injured or deceased person was an
employee, and this language need not be included except to make the
instruction more readable. However, when there is such a dispute in the
case, the term \"employee\" must be defined. The definition must be
carefully tailored to the specific factual question presented, and it is
recommended that [Restatement (Second) of Agency]{.smallcaps} (1958) be
used as a guide in a manner consistent with the federal authorities.
*See* *Kelley v. Southern Pacific Company*, 419 U.S. 318, 324 (1974)
(discussion of [Restatement (Second) of Agency]{.smallcaps} (1958) as
authoritative concerning meaning of \"employee\" and \"employed\" under
F.E.L.A., and as source of proper jury instruction).

5\. It may be argued the plaintiff was not acting within the scope of
his or her railroad employment at the time of the incident. If there is
a question whether the employee was within the scope of employment,
paragraph *First* should provide as follows:

> *First*, \[plaintiff\] \[(name of decedent)\] was an employee of
> defendant \[(name of the defendant)\] acting within the scope of
> \[(his) (her)\] employment at the time of \[(his) (her)\] \[injury\]
> \[death\] \[(describe the incident alleged to have caused injury or
> death)\], and

If this paragraph is included, the term \"scope of employment\" must be
defined in relation to the factual issue in the case. The [Restatement
(Second) of Agency]{.smallcaps} (1958) is recognized as a guide. *Wilson
v. Chicago, Milwaukee, St. Paul and Pac. R. Co.*, 841 F.2d 1347, 1352
(7th Cir. 1988). In rare cases it may be argued that the duties of the
employee did not affect interstate commerce and thus are not covered by
the Act. Usually if the employee was acting within the scope and course
of his or her employment for the railroad his or her conduct will be
sufficiently connected to interstate commerce to be included within the
Act.

6\. The Boiler Inspection Act language of 49 U.S.C. § 2701, formerly 45
U.S.C. § 23, refers to the \"locomotive or tender and its parts and
appurtenances.\" The court should select the term which conforms to the
case. The court may choose to specifically identify the specific part or
appurtenance of the locomotive, boiler or tender in a case in which mere
reference to the locomotive, boiler or tender will not adequately
present the theory of violation.

7\. Counsel should draft a concise statement of the Boiler Inspection
Act violation alleged which is simple and free of unnecessary language.
Examples which might be sufficient for a Boiler Act violation are: \"in
that there was oil on the locomotive catwalk;\" or \"in that the ladder
on the locomotive was bent;\" or \"in that the grab iron on the
locomotive was loose.\"

The Secretary of Transportation is authorized to establish standards for
equipment covered under the Boiler Inspection Act and the Safety
Appliance Act. *Shields v. Atlantic Coast Line R. Co.*, 350 U.S. 318,
320-25 (1956); *Lilly v. Grand Trunk Western R. Co.*, 317 U.S. 481, 486
(1943). Regulations promulgated pursuant to this authority are found in
Title 49 of the Code of Federal Regulations under the Federal Railroad
Administration (FRA) regulations. FRA regulations \"acquire\[\] the
force of law and become\[\] an integral part of the Act . . . .\"
*Lilly*, 317 U.S. at 488. Such regulations have \"the same force as
though prescribed in terms by the statute,\" *Atchison T. & S.F. Ry. Co.
v. Scarlett*, 300 U.S. 471, 474 (1937), and violation of such
regulations \"are violations of the statute, giving rise not only to
damage suits by those injured, but also to money penalties recoverable
by the United States.\" *Urie v. Thompson*, 337 U.S. 163, 191 (1949)
(citations omitted). If the plaintiff\'s case is based on a violation of
such a regulation, the plaintiff may request the court to replace
Paragraph Second of the instruction with a paragraph submitting the
regulation violation theory. *See* *Eckert v. Aliquippa & Southern R.
Co.*, 828 F.2d 183, 187 (3d Cir. 1987).

8\. Both the Boiler Inspection Act and the Safety Appliance Act require
that the equipment at issue be \"in use\" at the time of the subject
incident. The purpose of the \"in use\" element is to \"exclude those
injuries directly resulting from the inspection, repair or servicing of
railroad equipment located at a maintenance facility.\" *Angell v.
Chesapeake & O. Ry. Co.*, 618 F.2d 260, 262 (4th Cir. 1980); *Steer v.
Burlington Northern, Inc.*, 720 F.2d 975, 976-77 (8th Cir. 1983).

Whether the equipment at issue is \"in use\" at the time of the subject
incident is to be decided by the court as a question of law and not by
the jury. *Pinkham v. Maine Cent. R. Co.*, 874 F.2d 875, 881 (1st Cir.
1989) (citing *Steer*, 720 F.2d at 977 n.4). Because the \"in use\"
element is a question of law for the court, this instruction does not
submit the question to the jury.

Numerous reported cases discuss this element of the Boiler Inspection
Act and Safety Appliance Act, and cases which construe the term \"in
use\" under one act are authoritative for purposes of construing the
term under the other act. *Holfester v. Long Island Railroad Company*,
360 F.2d 369, 373 (2d Cir. 1966). Any attempt to here represent the
cases on point is beyond the scope of these Notes on Use, and counsel
are referred to the authorities for further discussion of this element.

9\. The same standard of \"in whole or in part\" causation which applies
to general F.E.L.A. negligence cases prosecuted under 45 U.S.C. § 51
also applies to Boiler Inspection Act cases. *Green v. River Terminal
Ry. Co.*, 763 F.2d 805, 810 (6th Cir. 1985) (citing *Carter v. Atlantic
& St. Andrews Bay Railway Co.*, 338 U.S. 430, 434 (1949)).

The defendant may request an instruction stating that if the
plaintiff\'s negligence was the sole cause of his or her injury, he or
she may not recover under F.E.L.A. *New York Central R. Co. v. Marcone*,
281 U.S. 345, 350 (1930); *Meyers v. Union Pacific R. Co.*, 738 F.2d
328, 330-31 (8th Cir. 1984) (not error to instruct jury, \"if you find
that the plaintiff was guilty of negligence, and that the plaintiff\'s
negligence was the sole cause of his injury, then you must return your
verdict in favor of defendant\"). Such a defense may also arise under
the Boiler Inspection and Safety Appliance Acts. *See* *Beimert v.
Burlington Northern, Inc.*, 726 F.2d 412, 414 (8th Cir. 1984).

Sole cause instructions have sometimes been criticized as unnecessary
and as confusing. *See* *Flanigan v. Burlington Northern, Inc.*, 632
F.2d 880, 883 n.1 (8th Cir. 1980); *Almendarez v. Atchison, T. & S.F.
Ry. Co.*, 426 F.2d 1095, 1097 (5th Cir. 1970); *Page v. St. Louis
Southwestern Ry. Co.*, 349 F.2d 820, 826-27 (5th Cir. 1965). The
Committee takes no position on whether a sole cause instruction should
be given in an F.E.L.A. case. If the court decides to give a sole cause
type instruction, the following may be appropriate:

> The phrase \"in whole or in part\" as used in \[this instruction\]
> \[Instruction \_\_\_\_\_ (state the title or number of the
> plaintiff\'s elements instruction)\] means that the railroad is
> responsible if \[describe the alleged Boiler Inspection Act
> violation\], if any, played any part, no matter how small, in causing
> the plaintiff\'s injuries. This, of course, means that the railroad is
> not responsible if any other cause, including the plaintiff\'s own
> negligence, was solely responsible.\*
>
> \*This instruction may be given as a paragraph in the plaintiff\'s
> elements instruction or as a separate instruction.

*Rogers v. Missouri Pac. R. Co.*, 352 U.S. 500, 507 (1957); *Page v. St.
Louis Southwestern Ry.*, 349 F.2d 820, 826-27 (5th Cir. 1965).

As is the case with any model instruction, if the court determines that
some other instruction on the subject is appropriate, such an
instruction may be given.

10\. This paragraph should not be used if Model Instruction 7.02A or
7.02B is given.

11\. Use Model Instruction 7.02C, *infra*, to submit affirmative
defenses.

**Committee Comments**

The introduction to Section 7 discusses the relationship among the
Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified at 49
U.S.C. §§ 20102, 20701 (1994)), the Safety Appliance Act (formerly 45
U.S.C. §§ 1-16, recodified at 49 U.S.C. §§ 20301-20304, 21302, 21304
(1994)), and F.E.L.A., 45 U.S.C. §§ 51, 60 (1994).

**7.05 F.E.L.A. SAFETY APPLIANCE ACT VIOLATION**

Your verdict must be for the plaintiff \[and against defendant (name of
the defendant)\]^1^ \[on the plaintiff\'s (identify claim represented in
this elements instruction as \"*first*,\" \"*second*,\" etc.) claim\]^2^
if all of the following elements have been proved^3^:

*First*, plaintiff \[(name of decedent)\] was an employee of defendant
\[(name of the defendant)\]^4,5^

*Second*, (specify the alleged Safety Appliance Act violation),^6^
and^7^

*Third*, the condition described in paragraph Second resulted in whole
or in part^8^ in \[injury to the plaintiff\] \[death to (name of
decedent)\].

If any of the above elements has not been proved, then your verdict must
be for defendant \[(name of the defendant)\].^9^

\[Your verdict must be for the defendant if you find in favor of the
defendant under Instruction \_\_\_\_ (insert number or title of
affirmative defense instruction)\].^10^

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim represented in
this elements instruction is made.

2\. Include this phrase and identify the claim represented in this
elements instruction as \"*first*,\" \"*second*,\" etc., only if more
than one claim is to be submitted.

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

4\. The F.E.L.A. provides that the railroad \"shall be liable in damages
to any person suffering injury *while he is employed* by such carrier .
. . .\" 45 U.S.C. § 51 (1939) (emphasis added). In the typical F.E.L.A.
case, there is no dispute as to whether the injured or deceased person
was an employee, and this language need not be included except to make
the instruction more readable. However, when there is such a dispute in
the case, the term \"employee\" must be defined. The definition must be
carefully tailored to the specific factual question presented, and it is
recommended that [Restatement (Second) of Agency]{.smallcaps} (1958) be
used as a guide in a manner consistent with the federal authorities.
*See* *Kelley v. Southern Pacific Company*, 419 U.S. 318, 324 (1974)
(discussion of [Restatement (Second) of Agency]{.smallcaps} (1958) as
authoritative concerning meaning of \"employee\" and \"employed\" under
the F.E.L.A. and as source of proper jury instruction).

5\. It may be argued the plaintiff was not acting within the scope of
his or her railroad employment at the time of the incident. If there is
a question whether the employee was within the scope of employment,
paragraph *First* should provide as follows:

> *First*, \[plaintiff\] \[(name of decedent)\] was an employee of
> defendant \[(name of the defendant)\] acting within the scope of
> \[(his) (her)\] employment at the time of \[(his) (her)\] \[injury\]
> \[death\] \[(describe the incident alleged to have caused injury or
> death)\], and

If this paragraph is included, the term \"scope of employment\" must be
defined in relation to the factual issue in the case. The [Restatement
(Second) of Agency]{.smallcaps} (1958) is recognized as a guide. *Wilson
v. Chicago, Milwaukee, St. Paul and Pac. R. Co.*, 841 F.2d 1347, 1352
(7th Cir. 1988). In rare cases it may be argued that the duties of the
employee did not affect interstate commerce and thus are not covered by
the Act. Usually if the employee was acting within the scope and course
of his or her employment for the railroad his or her conduct will be
sufficiently connected to interstate commerce to be included within the
Act.

6\. Counsel should draft a concise statement of the Safety Appliance Act
violation alleged which is simple and free of unnecessary language. An
example of a concise statement which might be sufficient in a case
brought for violation of 49 U.S.C. § 20302(a)(2), formerly 45 U.S.C. § 4
(1988), is as follows: \"Third, the grab iron at issue in the evidence
was not secure, and . . . .\"

The Secretary of Transportation is authorized to establish standards for
equipment covered under the Boiler Inspection Act and the Safety
Appliance Act. *Shields v. Atlantic Coast Line R. Co.*, 350 U.S. 318,
320-25 (1956); *Lilly v. Grand Trunk Western R. Co.*, 317 U.S. 481, 486
(1943). Regulations promulgated pursuant to this authority are found in
Title 49 of the Code of Federal Regulations under the Federal Railroad
Administration (FRA) regulations. FRA regulations \"acquire the force of
law and become an integral part of the Act . . . .\" *Lilly*, 317 U.S.
at 488. Such regulations have \"the same force as though prescribed in
terms of the statute,\" *Atchison, T. & S.F. Ry. Co. v. Scarlett*, 300
U.S. 471, 474 (1937), and violation of such regulations \"are violations
of the statute, giving rise not only to damage suits by those injured,
but also to money penalties recoverable by the United States.\" *Urie v.
Thompson*, 337 U.S. 163, 191 (1949) (citations omitted). If the
plaintiff\'s case is based on a violation of such a regulation, the
plaintiff may request the court to replace Paragraph Second of the
instruction with a paragraph submitting the regulation violation theory.
*See* *Eckert v. Aliquippa & Southern R. Co.*, 828 F.2d 183, 187 (3d
Cir. 1987).

7\. Both the Boiler Inspection Act and the Safety Appliance Act require
that the equipment at issue be \"in use\" at the time of the subject
incident. The purpose of the \"in use\" element is to \"exclude those
injuries directly resulting from the inspection, repair or servicing of
railroad equipment located at a maintenance facility.\" *Angell v.
Chesapeake & O. Ry. Co.*, 618 F.2d 260, 262 (4th Cir. 1980); *Steer v.
Burlington Northern, Inc.*, 720 F.2d 975, 976-77 (8th Cir. 1983).

Whether the equipment at issue is \"in use\" at the time of the subject
incident is to be decided by the court as a question of law and not by
the jury. *Pinkham v. Maine Cent. R. Co.*, 874 F.2d 875, 881 (1st Cir.
1989) (citing *Steer*, 720 F.2d at 977). Because the \"in use\" element
is a question of law for the court, this instruction does not submit the
question to the jury.

Numerous reported cases discuss this element of the Boiler Inspection
Act and Safety Appliance Act, and cases which construe the term \"in
use\" under one act are authoritative for purposes of construing the
term under the other act. *Holfester v. Long Island Railroad Co.*, 360
F.2d 369, 373 (2d Cir. 1966). Any attempt to here represent the cases on
point is beyond the scope of these Notes on Use, and counsel are
referred to the authorities for further discussion of this element.

8\. The standard of \"in whole or in part\" causation which applies to
general F.E.L.A. negligence cases is the standard of causation which
applies to F.E.L.A. cases premised upon violation of the Safety
Appliance Act. \"Once this violation is established, only causal
relation is an issue. And Congress has directed liability if the injury
resulted \'in whole or in part\' from defendant\'s negligence or its
violation of the Safety Appliance Act.\" *Carter v. Atlanta & St.
Andrews Bay Ry. Co.*, 338 U.S. 430, 434-35 (1949).

The defendant may request an instruction stating that if the
plaintiff\'s negligence was the sole cause of his or her injury, he or
she may not recover under the F.E.L.A. *New York Central R. Co. v.
Marcone*, 281 U.S. 345, 350 (1930); *Meyers v. Union Pacific R.R. Co.*,
738 F.2d 328, 330-31 (8th Cir. 1984) (not error to instruct jury, \"if
you find that the plaintiff was guilty of negligence, and that the
plaintiff\'s negligence was the sole cause of his injury, then you must
return your verdict in favor of defendant\"). Such a defense may also
arise under the Boiler Inspection and Safety Appliance Acts. *See*
*Beimert v. Burlington Northern, Inc.*, 726 F.2d 412, 414 (8th Cir.
1984).

Sole cause instructions have sometimes been criticized as unnecessary
and as confusing. *See* *Flanigan v. Burlington Northern, Inc.*, 632
F.2d 880, 883-84 n.1 (8th Cir. 1980); *Almendarez v. Atchison, T. & S.F.
Ry. Co.*, 426 F.2d 1095, 1097 (5th Cir. 1970); *Page v. St. Louis
Southwestern Ry. Co.*, 349 F.2d 820, 826-27 (5th Cir. 1965). The
Committee takes no position on whether a sole cause instruction should
be given in an F.E.L.A. case. If the court decides to give a sole cause
type instruction, the following may be appropriate:

> The phrase \"in whole or in part\" as used in \[this instruction\]
> \[Instruction \_\_\_ (state the title or number of the plaintiff\'s
> elements instruction)\] means that the railroad is responsible if
> \[describe the alleged Safety Appliance Act violation\], if any,
> played any part, no matter how small, in causing the plaintiff\'s
> injuries. This, of course, means that the railroad is not responsible
> if any other cause, including the plaintiff\'s own negligence, was
> solely responsible.\*
>
> \*This instruction may be given as a paragraph in the plaintiff\'s
> elements instruction or as a separate instruction.

*Rogers v. Missouri Pacific Railroad Co.*, 352 U.S. 500, 507 (1957);
*Page v. St. Louis Southwestern Ry.*, 349 F.2d 820, 826-27 (5th Cir.
1965).

As is the case with any model instruction, if the court determines that
some other instruction on the subject is appropriate, such an
instruction may be given.

9\. This paragraph should not be used if Model Instruction 7.02A or
7.02B is given.

10\. Use Model Instruction 7.02C, *infra*, to submit affirmative
defenses.

**Committee Comments**

The Introduction to Section 7 discusses the relationship among the
Boiler Inspection Act (formerly 45 U.S.C. §§ 22-23, recodified 49 U.S.C.
§§ 20102, 20701), the Safety Appliance Act (formerly 45 U.S.C. §§ 1-16,
recodified 49 U.S.C. §§ 20301-20304, 21302, 21304), and the F.E.L.A., 45
U.S.C. § 51, *et seq.*

**7.06A F.E.L.A. DAMAGES - INJURY TO EMPLOYEE**

If you find in favor of the plaintiff, then you must award the plaintiff
such sum as you find will fairly and justly compensate the plaintiff for
any damages you find the plaintiff sustained \[and is reasonably certain
to sustain in the future\]^1^ as a direct result of the occurrence
mentioned in the evidence.^2^ \[You should consider the following
elements of damages:^3^

1\. The physical pain and (mental) (emotional) suffering the plaintiff
has experienced (and is reasonably certain to experience in the future);
the nature and extent of the injury, whether the injury is temporary or
permanent (and whether any resulting disability is partial or total),
(including any aggravation of a pre-existing condition);

2\. The reasonable expense of medical care and supplies reasonably
needed by and actually provided to the plaintiff to date (and the
present value of reasonably necessary medical care and supplies
reasonably certain to be received in the future);

3\. The earnings the plaintiff has lost to date (and the present value
of earnings the plaintiff is reasonably certain to lose in the
future);^4^

4\. The reasonable value of household services which the plaintiff has
been unable to perform for \[(himself) (herself)\] to date (and the
present value of household services the plaintiff is reasonably certain
to be unable to perform for \[(himself) (herself)\] in the
future).\]^5,\ 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^ \[You may not include in
your award any sum for court costs or attorneys\' fees.\]^8^

\[If you assess a percentage of negligence to the plaintiff by reason of
Instruction \_\_\_ (state the title or number of the contributory
negligence instruction),^9^ do not diminish the total amount of damages
by the percentage of negligence you assess to the plaintiff. The court
will do this.\]^10^

**Notes on Use**

1\. Include this language if the evidence supports a submission of any
item of future damage.

2\. The language \"as a direct result of the occurrence mentioned in the
evidence\" should be deleted and replaced whenever there is evidence
tending to prove that the employee suffered the subject injuries in an
occurrence other than the one upon which the railroad\'s liability is
premised. In such cases, the language \"as a result of the occurrence
mentioned in the evidence\" should be replaced with a concise
description of the occurrence upon which the railroad\'s liability is
premised. An example of such a case is one in which the plaintiff
alleges that his or her injuries were suffered in a fall at the work
place, and the railroad claims the injuries were suffered in a car
accident which was not job related. The following would be appropriate
language to describe the occurrence upon which liability is premised:
\"as a direct result of the fall on (the date of the fall).\"

3\. This list of damages is optional and is intended to include those
items of damage for which recovery is commonly sought in the ordinary
F.E.L.A. case. This list is not intended to exclude any item of damages
which is supported in evidence and the authorities. *If the court elects
to list items of damage in the damages instruction, there must, of
course, be evidence to support each item listed*.

4\. For the relationship between lost future earnings and lost earning
capacity, *see* *Gorniack v. National R. Passenger Corp.*, 889 F.2d 481,
483-84 (3d Cir. 1989); *DeChico v. Metro-North Commuter RR*, 758 F.2d
856, 861 (2d Cir. 1985); *Wiles v. New York, Chicago & St. Louis
Railroad Co.*, 283 F.2d 328, 331-32 (3d Cir. 1960); *Downie v. United
States Lines Co.*, 359 F.2d 344, 347 (3d Cir. 1966) (if permanent
injuries result in impairment of earning capacity, the plaintiff is
entitled to reimbursement for such impairment including, but not limited
to, probable loss of future earnings). If the court determines that the
case is one in which the jury should be instructed on the distinction
between loss of future earnings and loss of earning capacity, this model
instruction may be modified accordingly. Otherwise, such issue can be
left to argument. Situations in which this distinction arises may be
rare.

5\. The reasonable value of household services which the injured
employee is unable to perform for himself or herself is a compensable
item of pecuniary damages. *See* *Cruz v. Hendy Intern. Co.*, 638 F.2d
719, 723 (5th Cir. 1981) (case decided under the Jones Act, 46 U.S.C. §
688 (1982), which specifically incorporates the F.E.L.A. and where it
was stated that the plaintiff may recover \"the cost of employing
someone else to perform those domestic services that he would otherwise
have been able to render but is now incapable of doing.\"); *cf.*
*Hysell v. Iowa Public Service Co.*, 559 F.2d 468, 475 (8th Cir. 1977).

6\. If the evidence supports a charge that the plaintiff has failed to
mitigate his or her damages, the following paragraph should be included
after the last listed item of damage, or after the general damage
instruction paragraph if the court chooses not to list items of damage:

> If you find that the defendant has proved by that the plaintiff has
> failed to take reasonable steps to minimize \[(his) (her)\] damages,
> then your award must not include any sum for any amount of damage
> which you find plaintiff might reasonably have avoided by taking such
> steps.

In *Kauzlarich v. Atchison, Topeka & Santa Fe Ry. Co.*, 910 S.W.2d 254
(Mo. banc 1995), it was held to be reversible error to refuse to give
the railroad\'s proposed mitigation instruction that \"closely
follow\[ed\]\" the above instruction. *Id.* at 256. The court held that
as a matter of federal substantive law, the railroad was entitled to a
mitigation instruction when there was evidence to support it. *Id.* at
258. The burden of pleading and proving failure to mitigate is on the
defendant. *Sayre v. Musicland Group, Inc.*, 850 F.2d 350, 355-56 (8th
Cir. 1988); *Modern Leasing v. Falcon Mfg. of California*, 888 F.2d 59,
62 (8th Cir. 1989).

7./8. These instructions may also be added.

9\. *See infra* Model Instruction 7.03. Note that contributory
negligence may not be submitted for claims alleging violation of the
Boiler Inspection Act or Safety Appliance Act.

10\. If Model Instruction 7.08, *infra*, Form of Verdict, is used, then
this paragraph must be given because contributory negligence is
submitted. If the alternative Form of Verdict set out in Committee
Comments to 7.08 is used, this paragraph should not be used.

**Committee Comments**

This Instruction should be used to submit damages issues in cases in
which the employee\'s injuries were not fatal. Model Instruction 7.06B,
*infra*, should be used in cases in which the employee\'s injuries were
fatal.

The final paragraph of this instruction tells the jury that the court
will diminish the total amount of damages in proportion to the amount of
contributory negligence found. This instruction is consistent with the
Form of Verdict 7.08 which requires the jury to assess the plaintiff\'s
total damages and the plaintiff\'s percentage of contributory
negligence. If contributory negligence is not submitted, the final
paragraph of 7.06A should be eliminated. Also, it should be eliminated
for claims submitted under the Boiler Inspection Act and the Safety
Appliance Act.

**7.06B F.E.L.A. DAMAGES - DEATH OF EMPLOYEE**

If you find in favor of the plaintiff, then you must award the plaintiff
such sum as you find will fairly and justly compensate \[here identify
the beneficiaries\]^1^ for \[(his) (her) (their)\] damages which can be
measured in money which you find \[(he) (she) (they)\] sustained as a
direct result of the death of (name of decedent).^2^ \[You should
consider the following elements of damages:^3^

> 1\. The reasonable value of any money, goods and services that (name
> of decedent) would have provided (name of beneficiaries) had (name of
> decedent) not died on (date of death). \[These damages include the
> monetary value of (name of child beneficiaries)\'s loss of any care,
> attention, instruction, training, advice and guidance from (name of
> decedent).\]^4^

2\. Any conscious pain and suffering you find from the evidence that
(name of decedent) experienced as a result of \[(his) (her)\]
injuries.^5^

3\. The reasonable expense of medical care and supplies reasonably
needed by and actually provided to (name of decedent).\]^5^

Your award must not include any sum for grief or bereavement or the loss
of society or companionship.^6^

Any award you make for the value of any money and services which you
find from the evidence that (name of decedent) would have provided (name
of each beneficiary) in the future should be reduced to present value.
Any award you make for the value of any money and services you find from
the evidence that (name of decedent) would have provided (name of
beneficiary) between the date of \[(his) (her)\] death on (date of
death) and the present should not be reduced to present value.^7^

\[Remember, throughout your deliberations you must not engage in any
speculation, guess, or conjecture and you must not award any damages by
way of punishment or through sympathy.\]^8^ \[You may not include in
your award any sum for court costs or attorneys\' fees.\]^9^

\[If you assess a percentage of negligence to (name of decedent) by
reason of Instruction \_\_\_\_ (state the number of the contributory
negligence instruction),^10^ do not diminish the total amount of damages
by the percentage of negligence you assess to (name of decedent). The
court will do this.\]^11^

**Notes on Use**

1\. A death action under the F.E.L.A. is brought by a personal
representative, as the plaintiff, for the benefit of specific
beneficiaries. The personal representative brings the action \"for the
benefit of the surviving widow or husband and children of such employee;
and, if none, then of such employee\'s parents; and, if none, then of
the next of kin dependent upon such employee, . . . .\" 45 U.S.C. § 51
(1939).

2\. *See* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil § 128.30 (5^th^ ed. 2000). Damages in an F.E.L.A.
death action \"are such as flow from the deprivation of the pecuniary
benefits which the beneficiaries might have reasonably received if the
deceased had not died from his injuries.\" *Michigan Central R. Co. v.
Vreeland*, 227 U.S. 59, 70 (1913). \"No hard and fast rule by which
pecuniary damages may in all cases be measured is possible . . . . The
rule for the measurement of damages must differ according to the
relation between the parties plaintiff and the decedent, . . . .\"
*Id.*, 227 U.S. at 72; *cf.* *Norfolk & Western R. Co. v. Holbrook*, 235
U.S. 625, 629 (1915).

3\. This list of damages is optional and is intended to include those
items of damage for which recovery is commonly sought in the ordinary
F.E.L.A. case. This list is not intended to exclude any item of damages
which is supported in evidence and the authorities. *If the court elects
to list items of damage in the damages instruction, there must, of
course, be evidence to support each item listed*.

4\. In an F.E.L.A. death case, recovery is limited to pecuniary losses.
The items specified in the bracketed sentence have been deemed pecuniary
losses in the case of a child beneficiary. The recovery may be different
in the case of a spouse, parent or an adult child. *Michigan Central R.
Co. v. Vreeland*, 227 U.S. 59, 70 (1913); *Norfolk & Western R. Co. v.
Holbrook*, 235 U.S. 625, 629 (1915); *Kozar v. Chesapeake and Ohio
Railway Co.*, 449 F.2d 1238, 1243 (6th Cir. 1971).

5\. The items of damage set forth in paragraphs 2 and 3 are recoverable
by the personal representative on behalf of the spouse, children or
parents of the decedent, if supported by the evidence. If the claim is
brought by the personal representative on behalf of next of kin other
than the spouse, children or parents, then dependency upon decedent must
be shown, and the instructions will require modification to submit that
issue to the jury. The elements instruction might be modified to submit
the dependency issue. 45 U.S.C. § 59 (1910); *Auld v. Terminal R.R.
Assoc. of St. Louis*, 463 S.W.2d 297 (Mo. 1970); *Jensen v. Elgin,
Joliet & Eastern Ry. Co.*, 24 Ill.2d 383, 182 N.E.2d 211 (1962).

Funeral expenses may not be included in damages awarded in F.E.L.A.
actions under either a 45 U.S.C. § 51 death action or a 45 U.S.C. § 59
survival action. *Philadelphia & R.R. v. Marland*, 239 Fed. 1, 11 (3d
Cir. 1917); *DuBose v. Kansas City Southern Ry. Co.*, 729 F.2d 1026,
1033 (5th Cir. 1984); *Heffner v. Pennsylvania R.R. Co.*, 81 F.2d 28, 31
(2d Cir. 1936); *Frabutt v. New York C. & St. L. R.R.*, 84 F. Supp. 460,
467 (W.D. Pa. 1949).

6\. *Michigan Central R. v. Vreeland*, 227 U.S. 59, 70 (1913).

7\. Future pecuniary benefits in an F.E.L.A. death case should be
awarded at present value. *Chesapeake & O.R. Co. v. Kelly*, 241 U.S.
485, 489-90 (1916); *cf.* *St. Louis Southwestern Ry. Co. v. Dickerson*,
470 U.S. 409 (1985).

8./9. These instructions may also be added.

10\. Model Instruction 7.03, *infra*, submits the issue of contributory
negligence.

11\. If Model Instruction 7.08, *infra*, Form of Verdict, is used, then
this paragraph must be given when contributory negligence is submitted.
If the alternative Form of Verdict set out in Committee Comments to 7.08
is used, this paragraph should not be used.

**Committee Comments**

This instruction should be used to submit damages in cases in which the
employee\'s injuries were fatal. Model Instruction 7.06A, *infra*,
should be used in cases in which the employee\'s injuries were not
fatal.

The final paragraph of this instruction tells the jury that the court
will diminish the total amount of damages in proportion to the amount of
contributory negligence found. This instruction is consistent with Form
of Verdict 7.08 which requires the jury to assess the plaintiff\'s total
damages and decedent\'s percentage of contributory negligence. If
contributory negligence is not submitted the final paragraph of 7.06B
should be eliminated. Also, it should be eliminated for claims submitted
under the Boiler Inspection Act and the Safety Appliance Act.

**7.06C F.E.L.A. DAMAGES - PRESENT VALUE OF FUTURE LOSS**

If you find that the plaintiff is reasonably certain to lose \[earnings
in the future\] \[or to incur medical expenses in the future\], then you
must determine the present value in dollars of such future damage, since
the award of future damages necessarily requires that payment be made
now in one lump sum and the plaintiff will have the use of the money now
for a loss that will not occur until some future date. You must decide
what those future losses will be and then make a reasonable adjustment
for the present value.

**Committee Comments**

In an F.E.L.A. case \"an utter failure to instruct the jury that present
value is the proper measure of a damage award is error.\" *St. Louis
Southwestern Ry. Co. v. Dickerson*, 470 U.S. 409, 412 (1985); *Monessen
Southwestern Ry. Co. v. Morgan*, 486 U.S. 330, 339-40 (1988). If
requested, such an instruction must be given. However, \"no single
method for determining present value is mandated by federal law.\"
*Dickerson*, 470 U.S. at 412. *See also* *Beanland v. Chicago, Rock
Island & Pacific Railroad*, 480 F.2d 109, 114-15 (8th Cir. 1973); 3
Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil
§ 128.20 (5^th^ ed. 2000).

Only future economic damages are to be reduced to present value. Past
economic damages and future noneconomic damages are not to be reduced to
present value. *See* *Chesapeake & Ohio R. Co. v. Kelly*, 241 U.S. 485,
489 (1916).

In *Flanigan v. Burlington Northern, Inc.*, 632 F.2d 880, 885 (8th Cir.
1980), the court stated that the jury should not be instructed to reduce
damages for future pain and suffering to present value.

This Instruction contemplates that the court will allow evidence and
jury argument about the proper method for calculating present value. If
additional instruction on the definition of present value or factors to
be considered is deemed appropriate, *see*, *e.g.*, *Fifth Circuit
Pattern Jury Instructions - Civil*, Instruction 15.3(c) (West 1998); and
*Arkansas Model Jury Instructions-AMI Civil 3d*, AMI 2219 (1989).

**7.06D F.E.L.A. DAMAGES - INCOME TAX EFFECTS OF AWARD**

The plaintiff will not be required to pay any federal or state income
taxes on any amount that you award.

\[When calculating lost earnings, if any, you should use after-tax
earnings.\]^1^

**Notes on Use**

1\. This sentence should be given if there is evidence of both gross and
net earnings and there is any danger that the jury may be confused as to
the proper measure of damages.

**Committee Comments**

If requested, the jury must be instructed that the verdict will not be
subject to income taxes. *Norfolk & Western Ry. Co. v. Liepelt*, 444
U.S. 490, 498 (1980); *Gander v. FMC Corp.*, 892 F.2d 1373, 1381 (8th
Cir. 1990); *Paquette v. Atlanska-Plovidba*, 701 F.2d 746, 748 (8th Cir.
1983). Furthermore, the Supreme Court in *Norfolk & Western Ry. Co. v.
Liepelt*,, stated that the jury should base its award on the
\"after-tax\" value of lost earnings in determining lost earnings. The
Court stated:

> The amount of money that a wage earner is able to contribute to the
> support of his family is unquestionably affected by the amount of the
> tax he must pay to the Federal Government. It is his after-tax income,
> rather than his gross income before taxes, that provides the only
> realistic measure of ability to support his family.

444 U.S. at 493.

**7.08 FORM OF VERDICT - CONTRIBUTORY NEGLIGENCE SUBMITTED**

VERDICT^1^

**Note**: Complete this form by writing in the name required by your
verdict.

On the claim^2^ of plaintiff \[(name of plaintiff)\] against defendant
\[(name of the defendant)\], we, the jury find in favor of:

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

Plaintiff \[(name of plaintiff)\] or Defendant \[(name of the
defendant)\]

**Note:** Complete the next paragraph only if the above finding is in
favor of the plaintiff.

We, the jury, assess the total damages of plaintiff \[(name of
plaintiff)\] at \$\_\_\_\_\_\_\_\_\_\_.

DO NOT REDUCE THIS AMOUNT BY THE PERCENTAGE OF NEGLIGENCE, IF ANY, YOU
FIND IN THE NEXT QUESTION.

**Note:** If you do not assess a percentage of negligence to
\[plaintiff\] \[(name of decedent)\] under Instruction \_\_\_\_\_ (state
the number or title of the contributory negligence instruction), then
write \"0\" (zero) in the blank in the following paragraph. If you do
assess a percentage of negligence to \[plaintiff\] \[(name of
decedent)\] by reason of Instruction \_\_\_\_\_ (state the number or
title of contributory negligence instruction), then write the percentage
of negligence in the blank in the following paragraph. The court will
then reduce the total damages you assess above by the percentage of
negligence you assess to \[plaintiff\] \[(name of decedent)\].

We, the jury, find \[plaintiff\] \[(name of decedent)\] to be
\_\_\_\_\_% negligent.

**Notes on Use**

1\. When more than one claim is submitted, a jury decision is required
on each claim.

Although the employee may bring claims for negligence as well as claims
for violation of the Safety Appliance Act or Boiler Inspection Act in
the same case, the employee is entitled to only one recovery for his or
her damages.

2\. If more than one claim is submitted in the same lawsuit, the claims
should be separately identified in the verdict form. *See infra* Model
Instruction 4.60.

**Committee Comments**

This form of verdict can be used in F.E.L.A. negligence cases when
contributory negligence is submitted. In F.E.L.A. cases where
contributory negligence is not submitted and in Boiler Inspection Act
and Safety Appliance Act cases use Form of Verdict 7.08A.

In cases in which the issue of contributory negligence has been
submitted to the jury, and the jury has been instructed to make findings
on the issues of contributory negligence and damages, there is a
question whether the jury or the court should perform the computations
which reduce the total damages by the percentage of contributory
negligence found. The plain language of 45 U.S.C. § 53 (1908) is that
\"the damages shall be diminished *by the jury* . . . .\" (Emphasis
added.) This Committee is not aware of any case specifically prohibiting
a form of verdict which allows the jury to determine the percentage of
the plaintiff\'s negligence and permits the court to perform the
mathematical calculation. State jurisdictions such as Arkansas and
Missouri, and some federal courts, instruct the jury to reduce the total
damage award by the percentage of contributory negligence before
rendering a general verdict for the reduced amount of total damages.
*Wilson v. Burlington Northern, Inc.*, 670 F.2d 780, 782-83 n.1 (8th
Cir. 1982) (jury instructed to perform contributory negligence reduction
computation and to return general verdict for damage award in reduced
amount); *note* 3 Kevin F. O'Malley, et al., FEDERAL JURY PRACTICE AND
INSTRUCTIONS: Civil §§ 106.12, 106.13, 106.14 (5^th^ ed. 2000).

Another means to the same result is for the jury to separately set forth
the percentage of contributory negligence and the total amount of
damages without reduction for contributory negligence. With this
information the court will perform the contributory negligence damage
reduction calculation in arriving at its judgment. This may be done by
means of a special verdict. Fed. R. Civ. P. 49(a); *Wattigney v.
Southern Pacific Company*, 411 F.2d 854, 856 (5th Cir. 1969); 3 Kevin F.
O'Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil §§
106.12, 106.13, 106.14 (5^th^ ed. 2000). This may also be done by means
of a general verdict accompanied by special interrogatories. Fed. R.
Civ. P. 49(b); *Flanigan v. Burlington Northern Inc.*, 632 F.2d 880, 884
(8th Cir. 1980).

If the court wants the jury to reduce the damages by a monetary amount
because of contributory negligence, the following instruction may be
used:

VERDICT^1^

> **Note:** Complete this form by writing in the name required by your
> verdict.
>
> On the claim^2^ of plaintiff \[(name of plaintiff)\] against defendant
> \[(name of the defendant)\], we, the jury, find in favor of:
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Plaintiff \[(name of plaintiff)\] Defendant \[(name of the defendant)\]

> **Note:** Complete the following paragraph only if the above finding
> is in favor of the plaintiff. \[If you assess a percentage of
> negligence to (name of decedent) (the plaintiff) by reason of
> Instruction (state the name of the contributory negligence
> instruction), then you must reduce the total amount of damages by the
> percentage of negligence you assess to (name of decedent)
> (plaintiff).\]
>
> We, the jury, assess the damages of plaintiff \[(name of plaintiff)\]
> at \$\_\_\_\_\_\_\_\_\_\_.

By using the recommended Form of Verdict 7.08, the trial court and
counsel can determine whether the jury has found the plaintiff to be
contributorily negligent, and if so, the percentage of fault attributed
to the plaintiff. When a general form of verdict is used, the record
will not show what determinations were made on this issue and it also
will be impossible to determine the amount of total damages determined
by the jury before reduction for any contributory negligence.
Furthermore, by using 7.08, a court which reviews the verdict on appeal
will be able to determine what the jury decided on these issues, and in
certain cases this may avoid the necessity of a retrial. For example,
assume that a jury finds for the plaintiff and assesses his or her total
damages at \$100,000 but finds the plaintiff 50% contributorily
negligent. Assume further that on appeal it is held that the defendant
failed to make a submissible case on the plaintiff\'s contributory
negligence and that it was error to submit this issue to the jury. If
7.08 were used in this hypothetical case, the appellate court could
simply reverse and enter judgment for the plaintiff in the amount of
\$100,000. *See* *Dixon v. Penn Central Company*, 481 F.2d 833 (6th Cir.
1973). If, however, a general form of verdict were used, the appellate
court would be unable to determine whether the jury had found no
negligence on the part of the plaintiff and evaluated his or her damages
at \$50,000 or found the plaintiff 90% negligent and evaluated his or
her damages at \$500,000. The appellate court would have no choice but
to remand the case for a new trial.

In addition, it is believed that the use of Form of Verdict 7.08 is more
likely to produce a jury verdict that is proper and consistent with the
court\'s instructions. 7.08 directs the jury\'s attention to the proper
issues in the proper order, and makes it possible for the court and
counsel to confirm that the jury has followed the instructions in this
regard.

**7.08A FORM OF VERDICT -**

**CONTRIBUTORY NEGLIGENCE NOT SUBMITTED**

VERDICT^1^

**Note:** Complete this form by writing in the name required by your
verdict.

On the claim^2^ of plaintiff \[(name of plaintiff)\] against defendant
\[(name of the defendant)\], we, the jury find in favor of:

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

Plaintiff \[(name of plaintiff)\] Defendant \[(name of the defendant)\]

**Note:** Complete the next paragraph only if the above finding is in
favor of the plaintiff.

We, the jury, assess the total damages of plaintiff \[(name of
plaintiff)\] at \$\_\_\_\_\_\_\_\_\_\_.

**Notes on Use**

1\. When more than one claim is submitted, a jury decision is required
on each claim.

Although the employee may bring claims for negligence as well as claims
for violation of the Safety Appliance Act or Boiler Inspection Act in
the same case, the employee is entitled to only one recovery for his or
her damages.

2\. If more than one claim is submitted in the same lawsuit, the claims
should be separately identified in the verdict form. *See infra* Model
Instruction 4.60.

**Committee Comments**

This form of verdict should be used in F.E.L.A. negligence cases when
contributory negligence is not submitted. Also, it is to be used in
Boiler Inspection Act and Safety Appliance Act cases.

**7.09 DEFINITION OF TERM \"NEGLIGENT\" OR \"NEGLIGENCE\"**

The term \"negligent\" or \"negligence\" as used in these Instructions
means the failure to use that degree of care which an ordinarily careful
person would use under the same or similar circumstances. \[The degree
of care used by an ordinarily careful person depends upon the
circumstances which are known or should be known and varies in
proportion to the harm that person reasonably should foresee. In
deciding whether a person was negligent you must determine what that
person knew or should have known and the harm that should reasonably
have been foreseen.\]

**Committee Comments**

When the term \"negligent\" or \"negligence\" is used, it must be
defined. *Note infra* Model Instruction 7.10 (definition of term
\"ordinary care\"); *note also infra* Model Instruction 7.11 (combined
definition of terms \"ordinary care\" and \"negligent\" or
\"negligence\").

Concerning the bracketed language, in order for the railroad to be found
negligent under the F.E.L.A., the jury must find that the railroad
either knew or should have known of the condition or circumstance which
is alleged to have caused the employee\'s injury or death. This is
referred to as the notice requirement. *See* *Siegrist v. Delaware,
Lackawanna & Western R. Co.*, 263 F.2d 616, 619 (2d Cir. 1959)
(referring to the \"doctrine of notice\"). Closely related to the notice
requirement is the \"essential ingredient\" of reasonable foreseeability
of harm. *Gallick v. Baltimore & Ohio Railway Co.*, 372 U.S. 108, 117
(1963). Given the actual or constructive notice of the condition or
circumstance alleged to have caused injury, \"the defendant\'s duty is
measured by what a reasonably prudent person should or could have
reasonably anticipated as occurring under like circumstances.\" *Davis
v. Burlington Northern, Inc.*, 541 F.2d 182, 185 (8th Cir. 1976). Thus,
\"the ultimate question of fact is whether the railroad exercised
reasonable care\" and this involves \"the question whether the railroad
had notice of any danger.\" *Bridger v. Union Ry, Co.*, 355 F.2d 382,
389 (6th Cir. 1966).

The bracketed language of this instruction instructs the jury on notice
and reasonable foreseeability of harm. *See* *Tiller v. Atlantic Coast
Line R. Co.*, 318 U.S. 54, 67 (1943); *Chicago & North Western Railway
Company v. Rieger*, 326 F.2d 329, 335 (8th Cir. 1964); W. Mathes, *Jury
Instructions and Forms for Federal Civil Cases*, 28 F.R.D. 401, 495
(1962). The bracketed language may be included even when the defendant
instructs on this issue in Model Instruction 7.02B, *infra*.

**7.10 DEFINITION OF THE TERM \"ORDINARY CARE\"**

The phrase \"ordinary care\" as used in these Instructions means that
degree of care that an ordinarily careful person would use under the
same or similar circumstances. \[The degree of care used by an
ordinarily careful person depends upon the circumstances which are known
or should be known and varies in proportion to the harm that person
reasonably should foresee. In deciding whether a person exercised
ordinary care you must consider what that person knew or should have
known and the harm that should reasonably have been foreseen.\]

**Committee Comments**

When the phrase \"ordinary care\" is used, it must be defined. *Note
infra* Model Instruction 7.09 (definition of term \"negligent\" or
\"negligence\"); *note also infra* Model Instruction 7.11 (combined
definition of terms \"ordinary care\" and \"negligent\" or
\"negligence\").

Concerning the bracketed language, in order for the railroad to be found
negligent under the F.E.L.A., the jury must find that the railroad
either knew or should have known of the condition or circumstance which
is alleged to have caused the employee\'s injury or death. This is
referred to as the notice requirement. *See* *Siegrist v. Delaware,
Lackawanna & Western R. Co.*, 263 F.2d 616, 619 (2d Cir. 1959)
(referring to the \"doctrine of notice\"). Closely related to the notice
requirement is the \"essential ingredient\" of reasonable foreseeability
of harm. *Gallick v. Baltimore & Ohio Railway Company*, 372 U.S. 108,
117 (1963). Given the actual or constructive notice of the condition or
circumstance alleged to have caused injury, \"the defendant\'s duty is
measured by what a reasonably prudent person should or could have
reasonably anticipated as occurring under like circumstances.\" *Davis
v. Burlington Northern, Inc.*, 541 F.2d 182, 185 (8th Cir. 1976). Thus,
\"the ultimate question of fact is whether the railroad exercised
reasonable care\" and this involves \"the question whether the railroad
had notice of any danger.\" *Bridger v. Union Railway Company*, 355 F.2d
382, 389 (6th Cir. 1966).

The bracketed language of this instruction instructs the jury on notice
and reasonable foreseeability of harm. *See* *Tiller v. Atlantic Coast
Line R. Co.*, 318 U.S. 54, 67 (1943); *Chicago & North Western Railway
Company v. Rieger*, 326 F.2d 329, 335 (8th Cir. 1964); W. Mathes, *Jury
Instructions and Forms for Federal Civil Cases*, 28 F.R.D. 401, 495
(1962). The bracketed language may be included even when the defendant
instructs on this issue in Model Instruction 7.02B, *infra*.

**7.11 DEFINITIONS OF THE TERMS \"NEGLIGENT\"**

**OR \"NEGLIGENCE\" AND \"ORDINARY CARE\" COMBINED**

The term \"negligent\" or \"negligence\" as used in these Instructions
means the failure to use ordinary care. The phrase \"ordinary care\"
means that degree of care that an ordinarily careful person would use
under the same or similar circumstances. \[The degree of care used by an
ordinarily careful person depends upon the circumstances which are known
or should be known and varies in proportion to the harm that person
reasonably should foresee. In deciding whether a person was negligent or
failed to use ordinary care you must consider what that person knew or
should have known and the harm that should reasonably have been
foreseen.\]

**Committee Comments**

Whenever the term \"negligent\" or \"negligence\" or the term \"ordinary
care\" is used in these instructions, it must be defined. When these
terms each appear in the same set of instructions, this instruction may
be used as an alternative to submitting *infra* Model Instruction 7.09
(\"negligent\" or \"negligence\") and Model Instruction 7.10 (\"ordinary
care\") individually.

Concerning the bracketed language, in order for the railroad to be found
negligent under the F.E.L.A., the jury must find that the railroad
either knew or should have known of the condition or circumstance which
is alleged to have caused the employee\'s injury or death. This is
referred to as the notice requirement. *See* *Siegrist v. Delaware,
Lackawanna & Western R. Co.*, 263 F.2d 616, 619 (2d Cir. 1959)
(referring to the \"doctrine of notice\"). Closely related to the notice
requirement is the \"essential ingredient\" of reasonable foreseeability
of harm. *Gallick v. Baltimore & Ohio Railway Company*, 372 U.S. 108,
117 (1963). Given the actual or constructive notice of the condition or
circumstance alleged to have caused injury, \"the defendant\'s duty is
measured by what a reasonably prudent person should or could have
reasonably anticipated as occurring under like circumstances.\" *Davis
v. Burlington Northern, Inc.*, 541 F.2d 182, 185 (8th Cir. 1976). Thus,
\"the ultimate question of fact is whether the railroad exercised
reasonable care\" and this involves \"the question whether the railroad
had notice of any danger.\" *Bridger v. Union Railway Company*, 355 F.2d
382, 389 (6th Cir. 1966).

The bracketed language of this instruction instructs the jury on notice
and reasonable foreseeability of harm. *See* *Tiller v. Atlantic Coast
Line R. Co.*, 318 U.S. 54, 67 (1943); *Chicago & North Western Railway
Company v. Rieger*, 326 F.2d 329, 335 (8th Cir. 1964); W. Mathes, *Jury
Instructions and Forms for Federal Civil Cases*, 28 F.R.D. 401, 495
(1962). The bracketed language may be included even when the defendant
instructs on this issue in Model Instruction 7.02B, *infra*.

**8. ADMIRALTY INSTRUCTIONS**

**Introduction**

The territorial bounds of the district courts of the Eighth Circuit
include large portions of the Missouri and Mississippi Rivers, the
longest inland river system in the United States. On this river system
moves most of the inland waterborne commerce in America. The
jurisprudence of the Eighth Circuit has generated opinions on many
admiralty and maritime disputes and issues. To facilitate the submission
of such issues to juries in federal judicial actions, the jury
instructions that follow this introduction are submitted.

Admiralty and maritime jury trials occur in actions brought by employees
against employers and by invitees against the owners and operators of
business premises. There are issues unique and issues common to each
type of claim. The rules of decision for such cases may be found in the
rich maritime common law precedents of the federal courts and in
Congressional legislation.

**[General Maritime Law]{.underline}**

The admiralty and maritime common law of the courts of the United States
provides rules of decision for claims brought by non-employee invitees
on vessels on navigable waters. *Norfolk Shipbuilding & Drydock Corp. v.
Garris*, 532 U.S. 811, 814-16 (2001); *The Max Morris*, 137 U.S. 1, 14
(1890); *Kermarec v. Compagnie Generale Transatlantique*, 358 U.S. 625,
628 (1959). Such claimants may bring a claim for negligence, subject to
a reduction of damages (not a complete defense) for comparative
negligence or fault. *Kermarec*, 358 U.S. at 629, 630.

> We hold that the owner of a ship in navigable waters owes to all who
> are on board for purposes not inimical to his legitimate interests the
> duty of exercising reasonable care under the circumstances of each
> case.

*Id.* at 632. However, admiralty law does not provide a non-employee a
claim for unseaworthiness of the subject vessel. *Id.* at 629.

The Supreme Court stated:

> It is settled that the general maritime law imposes duties to avoid
> unseaworthiness and negligence . . . , that non-fatal injuries caused
> by the breach of either duty are compensable . . . , and that death
> caused by breach of the duty of seaworthiness is also compensable.

*Norfolk Shipbuilding & Drydock Corp. v. Garris*, 532 U.S. at 813. The
Supreme Court recognized for the first time in *Garris* a wrongful death
claim under general maritime law based upon negligence. *Id.*

More generally, the Supreme Court has held, \"when a statute resolves a
particular issue, we have held that the general maritime law must comply
with that resolution.\" *Id.* at 817.

Further, \"even as to seamen, we have held that general maritime law may
provide wrongful-death actions predicated on duties beyond those that
the Jones Act imposes.\" *Id.* at 818.

**[Suits by Employees]{.underline}**

Employee claimants are immediately faced with determining whether to
bring suit for compensatory damages under general maritime law, the
Jones Act, or to seek workers\' compensation under the Longshore and
Harbor Workers\' Compensation Act (LHWCA) or the applicable state\'s
workers\' compensation laws. *Johnson v. Cont\'l Grain Co.*, 58 F.3d
1232, 1235 (8th Cir. 1995) (a Jones Act seaman \"is excluded from
coverage under the LHWCA and vice versa\"). A worker covered by the
LHWCA may not recover on a theory of unseaworthiness of the vessel.
*Id.* *See also Stewart v. Dutra Constr. Co.*, 543 U.S. 481, \_\_\_. 125
S. Ct. 1118, 1124 (2005) (\"Thus the Jones Act and the LHWCA are
complementary regimes that work in tandem: The Jones Act provides tort
remedies to *sea*-based maritime workers, while the LHWCA provides
workers\' compensation to *land*-based maritime employees.\").

**[The Jones Act]{.underline}**

The federal Jones Act provides in part that \"\[a\]ny seaman who shall
suffer personal injury in the course of his employment may, at his
election, maintain an action for damages at law, with the right of trial
by jury.\" 46 U.S.C. § 688(a). The Jones Act allows only to a seaman a
negligence action for either personal injury or wrongful death against
the seaman\'s employer. *Chandris, Inc. v. Latsis*, 515 U.S. 347, 354
(1995); *Britton v. U.S.S. Great Lakes Fleet, Inc.*, 302 F.3d 812, 816
(8th Cir. 2002) (quoting *Lewis v. Lewis & Clark Marine, Inc.*, 531 U.S.
438, 441 (2001)); *Shows v. Harber*, 575 F.2d 1253, 1254 (8th Cir.
1978).

By incorporating the Federal Employers\' Liability Act, 45 U.S.C. § 51,
*et seq.* (FELA), the Jones Act imports and applies FELA doctrines of
negligence and comparative negligence and abolishes the defense of
assumption of the risk. *Scindia Steam Navigation Co. v. DeLos Santos*,
451 U.S. 156, 166 n.13 (1981); *Ballard v. River Fleets, Inc.*, 149 F.3d
829, 831 (8th Cir. 1998); *Miller v. Patton-Tully Transp. Co.*, 851 F.2d
202, 205 (8th Cir. 1988).

The broad scope of Jones Act liability has been described thus:

> Under this statute the test of a jury case is simply whether the
> proofs justify with reason the conclusion that employer negligence
> played any part, even the slightest, in producing the injury or death
> for which damages are sought. It does not matter that, from the
> evidence, the jury may also with reason, on grounds of probability,
> attribute the result to other causes, including the employee\'s
> contributory negligence. Judicial appraisal of the proofs to determine
> whether a jury question is presented is narrowly limited to the single
> inquiry whether, with reason, the conclusion may be drawn that
> negligence of the employer played any part at all in the injury or
> death. Judges are to fix their sights primarily to make that appraisal
> and, if that test is met, are bound to find that a case for the jury
> is made out whether or not the evidence allows the jury a choice of
> other probabilities. The statute expressly imposes liability upon the
> employer to pay damages for injury or death due \"in whole or in
> part\" to its negligence.

*Clark v. Cent. States Dredging Co.*, 430 F.2d 63, 66 (8th Cir. 1970)
(quoting *Rogers v. Mo. Pac. R.R.*, 352 U.S. 500, 506-07 (1957)); *see
also* *Alholm v. Am. Steamship Co.*, 144 F.3d 1172, 1178 (8th Cir.
1998).

The Jones Act is to be liberally construed \"to accomplish its
beneficient purposes.\" *Cosmopolitan Shipping Co. v. McAllister*, 337
U.S. 783, 790 (1949).

**[Unseaworthiness]{.underline}**

The Eighth Circuit described the claim of unseaworthiness:

> "Unseaworthiness is a claim under general maritime law based on the
> vessel owner\'s duty to ensure that the vessel is reasonably fit to be
> at sea.\" *Lewis*, 531 U.S. at 441 . . . . It is a cause of action
> distinct from Jones Act negligence, which can be found without a
> corresponding finding of unseaworthiness.
>
> The warranty of seaworthiness . . . requires that the ship, including
> the hull, decks, and machinery, \"be reasonably fit for the purpose
> for which they are used.\" *In re Matter of Hechinger*, 890 F.2d 202,
> 207 (9th Cir. 1989) (citation omitted). Examples of conditions that
> can render a vessel unseaworthy include defective gear appurtenances
> in disrepair, insufficient manpower, unfit crew, and improper methods
> of loading or stowing cargo. *Usner v. Luckenbach Overseas Corp.*, 400
> U.S. 494, 499 (1971) . . . . The burden of proof in demonstrating
> unseaworthiness rests on the plaintiff, who must show by a
> preponderance of the evidence that the unseaworthiness was a proximate
> cause of the injury. *Alvarez v. J. Ray McDermott & Co., Inc.*, 674
> F.2d 1037, 1042 n.3 (5th Cir. 1982). Under these circumstances,
> proximate cause means: \"first, that the unseaworthiness . . . played
> a substantial part in bringing about or actually causing the injury;
> and two, that the injury was either a direct result of a reasonable
> probable consequence of the unseaworthiness. . . ." *Id.*

*Britton*, 302 F.3d at 818.

**[Seaman]{.underline}**

In order to recover from his or her employer under either the Jones Act
or general maritime law, a plaintiff must be a seaman. *McDermott
Internat., Inc. v. Wilander*, 498 U.S. 337 (1991). The Jones Act does
not define the term \"seaman.\" *Stewart v. Dutra Constr. Co.*, 543 U.S.
481 (2005). Whether or not a worker is a seaman \"is usually a
fact-intensive inquiry properly left to the jury to resolve.\" *Johnson
v. Cont. Grain Company*, 58 F.3d at 1235. In determining who are and who
are not Jones Act seamen, Supreme Court opinions and those of federal
courts of appeals have distinguished between maritime workers whose
employment is land-based and those whose employment is vessel-based. A
\"seaman\" is an employee whose \"duties must contribute to the function
of the vessel or to the accomplishment of its mission, and the worker
must have a connection to a vessel . . . (or an identifiable group of
vessels) that is substantial in terms of both its duration and nature.\"
*Chandris, Inc. v. Latsis*, 515 U.S. at 369; *see also* *Harbor Tug &
Barge Co. v. Papai*, 520 U.S. 548, 554 (1997). Stated another way,

> A finder of fact can conclude that a workman was a member of a crew of
> a vessel if:
>
> \(1\) the injured workman performed at least a substantial part of his
> work on the vessel or was assigned permanently to the vessel; and
>
> \(2\) the capacity in which the workman was employed and the duties
> which he performed contributed to the function of the vessel or to
> accomplishment of its mission.

*Miller v. Patton-Tully Transp. Co.*, 851 F.2d at 204 (quoting *Slatton
v. Martin K. Eby Constr. Co.*, 506 F.2d 505, 510 (8th Cir. 1974); *see
also* *Johnson*, 58 F.3d at 1235-36.

A Jones Act \"seaman\" need not be assigned to a specific vessel; he or
she retains his or her \"seaman\" status if assigned to a group of Jones
Act vessels under common ownership or control. *Harbor Tug & Barge Co.
v. Papai*, 520 U.S. at 556. Such a fleet of vessels \"must take their
direction from one identifiable central authority.\" *Johnson*, 58 F.3d
at 1236 (quoting *Reeves v. Mobile Dredging & Pumping Co.*, 26 F.3d
1247, 1258 (2d Cir. 1994)).

In determining whether or not an employee is a \"seaman,\" a court must
look not only to the nature of the activity in which the claimant was
injured, but in the overall nature of the employee\'s work, whether he
or she performs a substantial amount of work on board a \"vessel,\" with
regularity and continuity. In *Chandris*, the Supreme Court established
a guideline from which courts can vary depending upon the circumstances
of the case: \"A worker who spends less than about 30 percent of his
time in the service of a vessel . . . should not qualify as a seaman
under the Jones Act.\" 515 U.S. at 371.

There is no such guideline, however, for \"determining whether an
injured worker is substantially connected to a vessel.\" *Lara v.
Harvey\'s Iowa Mgmt. Co.*, 109 F. Supp.2d 1031, 1034 (S.D. Iowa 2000).
An injured worker might be a Jones Act seaman without having worked on
board the vessel when it was in transit. *Id.* at 1036. Further, an
employer\'s consideration of an injured worker as a Jones Act \"seaman\"
by the payment of maritime \"cure\" may be relevant in determining
seaman status. *Id.* \"\[T\]he determinative factor is the employee\'s
connection to a vessel, not the employee\'s particular job.\" *Johnson*,
58 F.3d at 1236.

**[Vessel]{.underline}**

An employee-claimant can be a \"seaman\" under the Jones Act only if he
or she is assigned to a vessel. The definition of \"vessel\" for
admiralty and maritime law purposes is contained in 1 U.S.C. § 3:

> The word \"vessel\" includes every description of watercraft or other
> artificial contrivance used, or capable of being used, as a means of
> transportation on water.

1 U.S.C. § 3. The Supreme Court construed this definition to require the
subject structure to be practicably capable of water transportation.
*Stewart v. Dutra Constr. Co.*, 543 U.S. at \_\_\_, 125 S. Ct. at 1128
(\"The question remains in all cases whether the watercraft\'s use \'as
a means of transportation on water\' is a practical possibility or
merely a theoretical one.\"). \"Simply put, a watercraft is not 'capable
of being used' for maritime transport in any meaningful sense if it has
been permanently moored or otherwise rendered practically incapable of
transportation or movement.\" *Id.* at 1127, \*8.

In so construing \"vessel,\" the court rejected the relevance of the
\"in navigation\" factor, established in *Digiovanni v. Traylor Bros.,
Inc.*, 959 F.2d 1119 (1st Cir. 1992) (en banc), in determining whether a
watercraft qualifies as a vessel. *Id.* at 1128, \*10. Cases which
applied that factor must now be viewed with great care. *E.g.*,
*Tonnesen v. Yonkers Contracting Co.*, 82 F.3d 30, 36 (2d Cir. 1996);
*Digiovanni v. Traylor Bros., Inc.*, 959 F.2d 1119, 1123 (1st Cir. 1992
(en banc); *Ellender v. Kiva Constr. Eng\'g, Inc.*, 909 F.2d 803, 806
(5th Cir. 1990); *Pavone v. Miss. Riverboat Amusement Corp.*, 52 F.3d
560, 570 (5th Cir. 1995); *Hurst v. Pilings & Structures, Inc.*, 896
F.2d 504, 506 (11th Cir. 1990).

**[Longshore and Harbor Workers\' Compensation Act
(LHWCA)]{.underline}**

The Supreme Court has described the facets of the LHWCA generally thus:

> \[T\]he Longshore and Harbor Workers\' Compensation Act (LHWCA) . . .
> , 33 U.S.C. § 901 et seq., provides nonseaman maritime workers . . .
> with no-fault workers\' compensation claims (against their employer, §
> 904(b)) and negligence claims (against the vessel, § 905(b)) for
> injury and death. As to those two defendants, the LHWCA expressly
> pre-empts all other claims, §§ 905(a), (b) . . . , but it expressly
> preserves all claims against third parties \[(those who neither
> employed the claimant nor owned the vessel involved in the
> incident)\], §§ 933(a), (i).

*Garris*, 532 U.S. at 818.

**[§ 905(b) of LHWCA]{.underline}**

Injured maritime workers who are not Jones Act seamen may be able to
recover under the LHWCA. Section 905(b) allows a longshoreworker to seek
compensation for injuries caused by the negligence, but not the
unseaworthiness, of a vessel:^\*\*\*\*^[^5]

> In the event of injury to a person covered under this chapter caused
> by the negligence of a vessel, then such person . . . may bring an
> action against such vessel as a third party in accordance with the
> provisions of § 933 of this title, and the employer shall not be
> liable to the vessel for such damages directly or indirectly . . . .
> The liability of the vessel under the subsection shall not be based
> upon the warranty of seaworthiness or a breach thereof at the time the
> injury occurred. The remedy provided in this subsection shall be
> exclusive of all other remedies against the vessel except remedies
> available under this chapter.

33 U.S.C. § 905(b).

Section 905(b) does not define the bounds of actionable negligence.
*Reed v. ULS Corp.*, 178 F.3d 988, 990-91 (8th Cir. 1999). The Eighth
Circuit has recognized that the owner of a vessel owes longshoremen
three duties:

> The first, which courts have come to call the \"turnover duty,\"
> related to the condition of the vessel upon the commencement of
> stevedoring operations . . . . The second duty, applicable once
> stevedoring operations have begun, provides that a vessel owner must
> exercise reasonable care to prevent injuries to longshoremen in areas
> that remain under the \"active control of the vessel.\" . . . The
> third duty, called the \"duty to intervene,\" concerns the vessel\'s
> obligations with regard to cargo operations in areas under the
> principal control of the independent stevedore.

*Id.* at 991 (citing *Howlett v. Birkdale Shipping Co.*, 512 U.S. 92, 98
(1994), and *Scindia Steam Navigation Co. v. De Los Santos*, 451 U.S. at
167).

However, under the statute such a claim is denied to a longshoreworker
who was engaged in repair work. *Johnson v. Cont. Grain Co.*, 58 F.3d at
1237. Section 905(b) also provides in part:

> If such person was employed to provide shipbuilding, repairing, or
> breaking services and such person\'s employer was the owner, owner pro
> hac vice, agent, operator, or charterer of the vessel, no such action
> shall be permitted, in whole or in part or directly or indirectly,
> against the injured person\'s employer (in any capacity including as
> the vessel\'s owner, owner pro hac vice, agent, operator, or
> charterer) or against the employees of the employer.

33 U.S.C. § 905(b).

**[§ 933 of LHWCA]{.underline}**

Under § 933 of the Longshore and Harbor Workers\' Compensation Act, 33
U.S.C. § 933, a worker or the representative of his or her estate may
seek damages for personal injuries against a non-employer,
non-vessel-owner, third party. Also, under § 933 an employer has the
right to recoup amounts paid under the LHWCA to the employee or the
representative of the employee\'s estate in such a judicial action.
*See* 33 U.S.C. § 933.

**[Wrongful Death]{.underline}**

A general maritime cause of action for wrongful death due to
unseaworthiness was recognized in *Moragne v. States Marine Lines,
Inc.*, 398 U.S. 375 (1970). *See* *Spiller v. Thomas M. Lowe, Jr.*, 466
F.2d 903, 905 (8th Cir. 1972). The United States Supreme Court has
recognized a claim under the general maritime law for the wrongful death
of a non-seaman due to negligence. *See* *Norfolk Shipbuilding & Drydock
Corp. v. Garris*, 532 U.S. 811.

**[Punitive Damages]{.underline}**

Punitive damages are not recoverable by seamen^\*\*\*\*\*^[^6] in
personal injury claims under the Jones Act or under general maritime
law. *Miles v. Apex Marine Corp.*, 498 U.S. 19, 31 (1990) (a seaman\'s
recovery under the Jones Act or general maritime law is limited to
pecuniary losses); *Alholm v. Am. Steamship Co.*, 144 F.3d at 1180-81;
*Horsley v. Mobile Oil Corp.*, 15 F.3d 200, 203 (1st Cir. 1994)
(applying *Miles* to hold that punitive damages are not recoverable
under general maritime law); *Miller v. Am. Present Lines, Ltd.*, 989
F.2d 1450, 1457 (6th Cir. 1993) (applying *Miles* to hold that punitive
damages are not recoverable under the Jones Act).

**[Maintenance and Cure]{.underline}**

General maritime law requires a shipowner to pay an injured seaman
maintenance and cure irrespective of any finding or not of any liability
under the Jones Act or general maritime law; such a duty arises merely
under the employment contract. *Calmar S.S. Corp. v. Taylor*, 303 U.S.
525, 527 (1938); *Britton*, 302 F.3d at 815; *Wactor v. Spartan Transp.
Corp.*, 27 F.3d 347, 351-52 (8th Cir. 1994) (defining \"maintenance\"
and \"cure\"; failure of seaman to disclose medical information before
employment may be a defense to maintenance and cure); *Stanislawski v.
Upper River Servs., Inc.*, 6 F.3d 537, 540 (8th Cir. 1993).

A seaman\'s entitlement to maintenance and cure is independent of
entitlement to damages for negligence under the Jones Act. *Britton*,
302 F.3d at 816. The recovery of compensatory damages, however, cannot
duplicate moneys already recovered as maintenance and cure.
*Stanislawski*, 6 F.3d at 540. Maintenance is an amount sufficient to
provide the sick or injured seaman with food and lodging comparable to
that he or she would have received on his or her vessel. *Gardiner v.
Sea-Land Serv., Inc.*, 786 F.2d 943, 946 (9th Cir. 1986). Cure is
reasonable medical treatment and services needed during the seaman\'s
recovery. *Calmar S.S. Corp. v. Taylor*, 303 U.S. at 528.

Maintenance and cure might not be available, if the seaman was required
to provide preemployment medical information and failed to do so or
concealed material facts regarding the part of the plaintiff\'s body
allegedly injured. *Britton*, 302 F.3d at 816; *Wactor*, 27 F.3d at 352.
Before maintenance and cure is denied, \"the employer must show that the
nondisclosed medical information was material to its decision to hire.\"
*Britton*, 302 F.3d at 816. Maintenance and cure also may be denied if
the seaman personally did not incur actual expenses for food and
lodging. *Hall v. Noble Drilling (U.S.) Inc.*, 242 F.3d 582, 588 (5th
Cir. 2001).

**[Mitigation of Damages]{.underline}**

An injured seaman or other maritime worker must mitigate his or her
damages by obtaining reasonable medical treatment. *See* *Hagerty v. L &
L Marine Serv., Inc.*, 788 F.2d 315, 319 (5th Cir. 1986); *Young v. Am.
Export Isbrandtsen Lines, Inc.*, 291 F. Supp. 447, 450 (S.D. N.Y. 1968).

**[Comparative Fault and the Settling Defendant(s)]{.underline}**

In an admiralty action, when a plaintiff settles with one of several
joint tortfeasors, a nonsettling tortfeasor is responsible to the
injured party for the nonsettling tortfeasor\'s proportionate share of
the fault or responsibility in causing the injury. *McDermott, Inc. v.
AmClyde & River Don Castings, Ltd.*, 511 U.S. 202, 208-09 (1994). *See*
Special Interrogatories, § 8.90, below.

**8.10 NEGLIGENCE CLAIM UNDER THE JONES ACT**

The law provides a remedy to any seaman who suffers personal injury in
the course of \[(his) (her)\] employment due to the negligence of
\[(his) (her)\] employer. The plaintiff has brought such a claim in this
action under the Jones Act.

The Jones Act, however, does not make the employer the accident insurer
of the seaman. Negligence on the part of the employer is necessary to
recover under the Act.

**8.10A NEGLIGENCE CLAIM UNDER THE JONES ACT\--ELEMENTS**

Your verdict must be for the plaintiff \[and against the defendant\]^1^
on the plaintiff\'s Jones Act claim if all the following elements have
been proved^2^:

*First*, the plaintiff was employed by the defendant as a seaman on a
vessel^3^;

*Second*, during the course of the plaintiff\'s employment as a seaman,
the defendant \[here describe the submitted act or omission\]; and

*Third*, the defendant in any one or more of the respects submitted in
paragraph Second was negligent; and

*Fourth*, such negligence**,** in whole or in part, caused injury to the
plaintiff.

**Notes on Use**

1\. Use this phrase if there is more than one defendant.

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

3\. *See* Model Jury Instructions, §§ 8.15-8.17 (defining \"seaman on a
vessel\"), below.

**Committee Comments**

*See* *Shows v. Harber*, 575 F.2d 1253, 1254 (8th Cir. 1978); *Offshore
Co. v. Robison*, 266 F.2d 769, 773-74 (5th Cir. 1959); *Petty v. Dakota
Barge Serv.*, 730 F. Supp. 983, 985 (D. Minn. 1989).

**8.11 JONES ACT\--\"COURSE OF EMPLOYMENT\" DEFINED**

Under the Jones Act a seaman is injured in the course of \[(his) (her)\]
employment when, at the time of injury, \[(he) (she)\] was doing the
work of \[(his) (her)\] employer, that is, \[(he) (she)\] was working in
the service of the vessel as a member of her crew.

**Committee Comments**

*See* *Eleventh Circuit Pattern Jury Instructions (Civil)*, § 6.1, at
236-37 (West Group 2000).

**8.12 JONES ACT\--\"NEGLIGENCE\" DEFINED**

The terms \"negligent\" and \"negligence,\" as used in these
instructions, mean the failure to use reasonable care. \"Reasonable
care\" means that degree of care which a reasonably careful person would
use under the same or similar circumstances. Negligence may consist
either in doing something that a reasonably careful person would not do
under the same or similar circumstances, or in failing to do something
that a reasonably careful person would do under the same or similar
circumstances.

**Committee Comments**

*See* *8^th^ Cir. Civil Jury Instr.* § 7.09 (2007); *Ninth Circuit
Manual of Model Jury Instructions (Civil)*, § 9.3 (West Group 2001).

**8.13 JONES ACT\--CAUSATION**

If you find from the evidence in the case that the defendant was
negligent, then you must decide whether or not such negligence caused,
in whole or in part, any injury or damages suffered by the plaintiff.
Negligence may cause damage or injury, even if it operates in
combination with the act of another or some natural cause, as long as
the negligence played any part in causing the damage or injury.

\[This standard is different from the causation required for a claim of
unseaworthiness of a vessel. Under such a claim, an unseaworthy
condition of a vessel caused damage or injury, if it was a proximate
cause, in that it played a substantial part in bringing about the injury
or damage, the injury or damage was either a direct result of or a
reasonably probable consequence of the condition, and except for the
unseaworthy condition of the vessel the injury or damage would not have
occurred. Unseaworthiness may be a proximate cause of damage or injury,
even though it operates in combination with the act of another or some
natural cause, as long as the unseaworthiness contributes substantially
to producing the damage or injury.\]^1^

**Notes on Use**

1\. Use the bracketed paragraph, if a claim for unseaworthiness is
submitted to the jury along with a Jones Act claim.

**Committee Comments**

*See* *8^th^ Cir. Civil Jury Instr.* § 7 (FELA Introduction) and § 7.01
n.9 (causation under F.E.L.A.) (2007); *Fifth Circuit Pattern Jury
Instructions (Civil)*, § 4.6 (West Group 1999); *Ninth Circuit Manual of
Model Jury Instructions (Civil)*, §§ 9.4, 9.8 (West Group 2001);
*Eleventh Circuit Pattern Jury Instructions (Civil)*, § 6.1 (West Group
2000). *See also* *Alholm v. Am. Steamship Co.*, 144 F.3d 1172, 1180-81
(8th Cir. 1998).

**8.14 JONES ACT\--CONTRIBUTORY NEGLIGENCE**

**(COMPARATIVE FAULT)**

The plaintiff has a duty to use the care that a reasonably careful
seaman would use under the same or similar circumstances.

If you find in favor of the plaintiff under Instruction No. \_\_\_ (here
insert the number of the plaintiff\'s elements instruction or verdict
director), you must consider whether \[(the plaintiff) or (name of
decedent)\] was also negligent. Under this instruction, on the
plaintiff\'s \[here identify the claim to which this instruction
applies\] claim, you must assess to the plaintiff a percentage of the
total negligence, if all the following elements have been proved^1^:

*First*, \[(the plaintiff) or (name of decedent)\] (describe the
evidenced negligent conduct); and

*Second*, \[(the plaintiff) or (name of decedent)\] was thereby
negligent; and

*Third*, such negligence of \[(the plaintiff) or (name of decedent)\]
resulted in whole or in part in \[(his) (her)\] own injury or damage.

The total percentages of the negligence of the \[(the plaintiff) or
(name of decedent)\] and of the defendant for causing \[(the
plaintiff\'s) or (decedent's)\] injury must equal 100 percent.

**Notes on Use**

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

**Committee Comments**

*See* *8^th^ Cir. Civil Jury Instr.* § 7.03 (2007) (regarding FELA
claims); *Fifth Circuit Pattern Jury Instructions (Civil)*, § 4.7 (West
Group 1999); *Ninth Circuit Manual of Model Jury Instructions (Civil)*,
§ 9.10 (West Group 2001). *See also* *Ballard v. River Fleets, Inc.*,
149 F.3d 829, 831-32 (8th Cir. 1998); *Alholm v. Am. Steamship Co.*, 144
F.3d 1172, 1179 (8th Cir. 1998).

**8.15 \"SEAMAN\" DEFINED**

A \"seaman\" is a \[(sea) or (river) or (lake)\]^1^-based maritime
employee whose work regularly exposes \[(him) (her)\] to the special
hazards and disadvantages to which they who go down to the \[(sea) or
(rivers) or (lakes)\]^2^ in ships are subjected. The term \"seaman\"
does not include a land-based worker who has only a temporary connection
to a vessel, and therefore whose employment does not regularly expose
\[(him) (her)\] to the perils of the \[(sea) or (river) or (lake)\].^3^
Rather, a \"seaman\" is a member of a crew of a vessel.

You must find that the plaintiff was a \"seaman,\" if it has been
proved^4^ that at the time of the incident for which the plaintiff is
claiming \[(he) (she)\] was injured:

*First*, the plaintiff had an employment-related connection to a vessel
\[or to an identifiable group of such vessels\]^5^ that was substantial
in terms of both its duration (in that it occupied at least 30 percent
of the plaintiff\'s work time) and nature; and

*Second*, the plaintiff\'s work duties contributed to \[(the function of
the vessel) or (the function of an identifiable group of vessels)^6^ or
(the accomplishment of (its) or (their))\]^7^ mission)\].

**Notes on Use**

1\. Although the case law refers to \"sea\" to include all types of
navigable water, to avoid jury confusion the term best describing the
navigable water at issue in the case should be used in this instruction.

2\. *See* footnote 1 above.

3\. *See* footnote 1 above.

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

5\. Include the \"identifiable group\" language of the definition only
if the evidence supports such an instruction.

6\. *See* footnote 5 above.

7\. The word \"their\" should be used, if the jury is instructed on an
identifiable group of vessels. *See* footnote 5 above.

**Committee Comments**

*See* Introduction at 5, above; *Harbor Tug & Barge Co. v. Papai*, 520
U.S. 548, 554 (1997); *Chandris, Inc. v. Latsis*, 515 U.S. 347, 368-72
(1995); *Roth v. U.S.S. Great Lakes Fleet, Inc.*, 25 F.3d 707, 708-09
(8th Cir. 1994); *Miller v. Patton-Tully Transp. Co., Inc.*, 851 F.2d
202, 204 (8th Cir. 1988); *Slatton v. Martin K. Eby Constr. Co.*, 506
F.2d 505, 510 (8th Cir. 1974); *Offshore Co. v. Robison*, 266 F.2d 769,
775 (5th Cir. 1959). *See also* *Stewart v. Dutra Constr. Co.*, 543 U.S.
481 (2005).

**8.16 JONES ACT\--\"VESSEL\" DEFINED**

For claims under the Jones Act, the term \"vessel\" means any structure
that is practically capable of transporting persons or property on
navigable waters.

**Committee Comments**

*See* 1 U.S.C. § 3; Introduction, Vessel, above. The definition of
\"vessel\" for claims under the Jones Act and for claims under the
Longshore and Harbor Workers\' Compensation Act relates to the seaman
status vel non of the plaintiff and the applicability of one or the
other of these statutes. Seaman status depends upon the nature of the
work performed by the plaintiff at the time of the alleged incident. In
this respect, the scope of the term \"vessel\" under the Longshore and
Harbor Workers\' Compensation Act is the same as that under the Jones
Act. *See* *Stewart v. Dutra Constr. Co.*, 543 U.S. 481 (2005).

**8.20 UNSEAWORTHINESS CLAIM AGAINST EMPLOYER**

Under maritime law, every shipowner or operator owes to every seaman
employed aboard the vessel the non-delegable duty to keep and maintain
the vessel, and all decks and passageways, appliances, gear, tools, and
equipment of the vessel, in a seaworthy condition at all times.

To be in a seaworthy condition means to be in a condition reasonably
suitable and fit to be used for the purpose or the use for which the
vessel was provided or intended. An unseaworthy condition may result
from the lack of an adequate crew, the lack of adequate manpower to
perform a particular task on the vessel, or the improper use of
otherwise seaworthy equipment.

Liability for an unseaworthy condition does not in any way depend upon
negligence or fault or blame. That is to say, the shipowner-operator is
liable for all injuries and damages substantially caused by an
unseaworthy condition existing at any time, even though the owner or
operator may have exercised due care under the circumstances, and may
have had no notice or knowledge of the unseaworthy condition which
substantially caused the injury or damage.

However, a shipowner is not required to furnish an accident-free vessel.
A vessel is not required to have the best equipment or the finest crew,
but only equipment which is reasonably fit for its intended purpose and
a crew which is reasonably adequate and competent.

**Committee Comments**

*See* *Mitchell v. Trawler Racer, Inc.*, 362 U.S. 539, 550 (1960);
*Fifth Circuit Pattern Jury Instructions (Civil)*, § 4.11 (West Group
1999); *Ninth Circuit Manual of Model Jury Instructions (Civil)*, §§
9.6, 9.7 (West Group. 2001).

**8.21 UNSEAWORTHINESS CLAIM AGAINST EMPLOYER\--ELEMENTS**

Your verdict must for the plaintiff \[and against defendant (name of the
defendant)\]^1^ on the plaintiff\'s claim of unseaworthiness, if all the
following elements have been proved^2^:

*First*, the plaintiff was employed by the defendant as a seaman on a
vessel^3^ at the time \[(he) (she)\] suffered injury; and

*Second*, the vessel on which the plaintiff was injured was \[(owned)
(operated)\] by \[(his) (her)\] employer; and

*Third*, the defendant\'s vessel was
\[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\];^4^ and

*Fourth*, the defendant\'s vessel was thereby rendered unseaworthy; and

*Fifth*, the unseaworthy condition of the vessel was a substantial
factor in causing the injury or damage to the plaintiff.

**Notes on Use**

1\. Use this phrase if there is more than one defendant.

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

3\. *See* Model Jury Instructions, §§ 8.15-8.17 (defining \"seaman on a
vessel\").

4\. Here state the submitted condition of the vessel.

**Committee Comments**

*See* *8^th^ Cir. Civil Jury Instr.* § 7.0 (2007); *Fifth Circuit
Pattern Jury Instructions (Civil)*, § 4.5 (West Group 1999); *Ninth
Circuit Manual of Model Jury Instructions (Civil)*, § 9.6 (West Group
2001); *Eleventh Circuit Pattern Jury Instructions (Civil)*, § 6.1 (West
Group 2000).

**8.22 UNSEAWORTHINESS CLAIM--CAUSATION**

An unseaworthy condition of a vessel caused damage or injury, if it was
a proximate cause, in that it played a substantial part in bringing
about the injury or damage, the injury or damage was either a direct
result of or a reasonably probable consequence of the condition, and
except for the unseaworthy condition of the vessel the injury or damage
would not have occurred. Unseaworthiness may be a proximate cause of
damage or injury, even though it operates in combination with the act of
another or some natural cause, as long as the unseaworthiness
contributes substantially to producing the damage or injury.

\[This standard is different from the causation required for a claim
under the Jones Act. Under a Jones Act claim, if you find from the
evidence in the case that the defendant was negligent, then you must
decide whether or not such negligence caused, in whole or in part, any
injury or damages suffered by the plaintiff. Negligence may be a cause
of damage or injury, even though it operates in combination with the act
of another or some natural cause, if the negligence of the defendant
played any part in causing the damage or injury.\]^1^

**Notes on Use**

1\. Use the bracketed paragraph, if a claim under the Jones Act is
submitted to the jury along with an unseaworthiness claim.

**Committee Comments**

*See* *8^th^ Cir. Civil Jury Instr.* §§ 7.00 and 7.01 n.9 (causation
under FELA) (2007); *Fifth Circuit Pattern Jury Instructions (Civil)*, §
4.6 (West Group 1999); *Ninth Circuit Manual of Model Jury Instructions
(Civil)*, §§ 9.4, 9.8 (West Group 2001); *Eleventh Circuit Pattern Jury
Instructions (Civil)*, § 6.1 (West Group 2000). *See also* *Alholm v.
Am. Steamship Co.*, 144 F.3d 1172, 1180-81 (8th Cir. 1998).

**8.30 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT**

**§ 905(b)\--TURN-OVER CLAIM\--NEGLIGENCE STANDARD**

Defendant \[name of the defendant\]^1^ does not owe the plaintiff the
duty to provide a seaworthy vessel; defendant \[name of the defendant\]
is liable only if the defendant was negligent and the defendant\'s
negligence was the proximate cause of the plaintiff\'s injury.

Negligence is the failure to exercise reasonable care under the
circumstances. A vessel operator such as defendant \[name of the
defendant\] must exercise reasonable care before the plaintiff\'s
employer began the defendant\'s operations on the vessel. This means
that defendant \[name of the defendant\] must use reasonable care to
have the vessel and its equipment in such condition that an expert and
experienced \[here, insert the type of maritime employment in which the
plaintiff\'s employer was engaged on the vessel\] would be able, by the
exercise of reasonable care, to carry on its work on the vessel with
reasonable safety to persons and property.

Defendant \[name of the defendant\] must warn the plaintiff\'s employer
of a hazard on the vessel, or a hazard with respect to the vessel\'s
equipment, if (1) defendant \[name of the defendant\] knew about the
hazard, or should have discovered it in the exercise of reasonable care,
and (2) the hazard was one which was likely to be encountered by the
plaintiff\'s employer in the course of its operations in connection with
the the defendant\'s vessel, and (3) the hazard was one which the
plaintiff\'s employer did not know about, and which would not be obvious
to or anticipated by a reasonably competent \[here, insert the type of
maritime employment in which the plaintiff\'s employer was engaged on
the vessel\] in the performance of its work.

\[Even if the hazard was one about which the plaintiff\'s employer
(stevedore) knew, or which would be obvious or anticipated by a
reasonably competent \[here, insert the type of maritime employment in
which the plaintiff\'s employer was engaged on the vessel\], defendant
\[name of the defendant\] must exercise reasonable care to avoid the
harm to the plaintiff if the hazard was one which the defendant knew or
should have known the plaintiff\'s employer (stevedore) would not or
could not correct and the plaintiff could not or would not avoid.\]^2^

**Notes on Use**

1\. If there are two or more defendants in the lawsuit, include this
phrase and identify the defendant against whom the claim covered by this
elements instruction is made.

2\. The Committee believes that the factual circumstances would be
infrequent which would warrant this instruction.

**Committee Comments**

This instruction pertains to a claim that the defendant breached its
\"turn-over\" duty. *See* *Reed v. ULS Corp.*, 178 F.3d 988, 990-91 (8th
Cir. 1999). It should only be used where the vessel owner is not the
plaintiff\'s employer (stevedore). Where the vessel owner is also the
plaintiff\'s employer (stevedore), an instruction should be given
consistent with *Morehead v. Atkinson-Kiewit*, J/V, 97 F.3d 603, 609,
613 (1st Cir. 1996) (en banc).

The standard of care which a vessel operator owes to the plaintiff after
the plaintiff\'s employer began the operations on the vessel is not the
subject of this instruction. Such is different from the standard of care
owed before the operations began.

*See* *Scindia Steam Navigation Co. v. De Los Santos*, 451 U.S. 156,
170-72 (1981).

**8.31 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT**

**§ 905(b)\--TURN-OVER CLAIM\--ELEMENTS OF CLAIM**

Your verdict must be for the plaintiff \[and against defendant (name of
the defendant)\]^1^ \[on the plaintiff\'s claim (describe claim)\]^2^ if
all of the following elements have been proved^3^:

*First*, the plaintiff was engaged in maritime employment and was
injured at \[(a place within the coverage of the Longshore and Harbor
Worker\'s Compensation Act)^4^\]^5^; and

*Second*,^6^ defendant (name of the defendant) had the defendant\'s
vessel and equipment in such condition that an expert and experienced
maritime worker would not be able, by the exercise of reasonable care,
to carry on \[(his) (her)\] work on the vessel with reasonable safety
\[in that (describe the conditions and inadequacies at issue)\]; and

*Third*, defendant \[(name of the defendant)\] in any one or more of the
ways described in Paragraph (Second)^7^ was negligent^8^; and^9^

*Fourth*, such negligence was the proximate cause of \[(injury to the
plaintiff) or (the death of (name of decedent))\].

If any of the above elements has not been proved, then your verdict must
be for defendant \[(name of the defendant)\].^10^

**Notes on Use**

1\. Use this phrase if there is more than one defendant.

2\. Include this phrase and identify the claim covered by this elements
instruction, if more than one claim is to be submitted.

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

4\. Identify the location of the injury supported by the evidence.

5\. This paragraph must be used in those cases where the plaintiff\'s
status as a worker covered by § 905(b) of the Longshore and Harbor
Worker\'s Compensation Act, 33 U.S.C. § 905(b), is at issue. The
plaintiff\'s status as a worker covered by § 905(b) has two
components\--maritime employment and place of injury. *See*
Introduction. The jury must be instructed with respect to each component
of the plaintiff\'s status that is at issue. If the maritime employment
segment is included in this instruction, an explanatory instruction on
maritime employment must also be given. *See* Model Instruction No.
8.32. Similarly, if the place of injury segment is included in this
instruction, an explanatory instruction on place of employment must also
be given. *See* *8^th^ Cir. Civil Jury Instr.* § 8.33 (2007).

6\. If the instruction with respect to the plaintiff\'s status as a
worker covered by § 905(b) is omitted, the paragraph numbers should
accordingly be modified and this should read \"*First*.\"

7\. Use the appropriate paragraph number corresponding to the paragraph
number describing the claimed deficiencies to the defendants\' vessel or
equipment.

8\. The terms \"negligent\" and \"negligence\" must be defined. *See*
*8^th^ Cir. Civil Jury Instr.* § 8.12 (2007).

9\. If only one phrase describing the defendant\'s breach of duty is
submitted in Paragraph Second, then Paragraph Third should read as
follows:

> Third, defendant \[(name of the defendant)\] was thereby negligent,
> and

10\. This paragraph should not be used if the jury is given a specific
instruction on the defendant\'s theory of the case.

**8.32 \"MARITIME EMPLOYMENT\" DEFINED**

A person is engaged in maritime employment if at the time of \[(his)
(her)\] injury, the person is either

\(1\) injured while engaged in an essential part of the loading or
unloading process of a vessel^1^; or

\(2\) on actual navigable waters in the course of that person\'s
employment on those waters; or

\(3\) working as a harbor worker, including a ship repairman,
shipbuilder, or shipbreaker.

**Notes on Use**

1\. When supported by the evidence, the court may be required to
instruct the jury that certain workers who meet the general definition
of \"employee\" under the Longshore and Harbor Workers\' Compensation
Act have been explicitly excluded from coverage by 33 U.S.C. §
902(3)(A)-(H). Section 902(3) and 33 U.S.C. § 902(4) provide:

> \(3\) The term \"employee\" means any person engaged in maritime
> employment, including any longshoreman or other person engaged in
> longshoring operations, and any harbor-worker including a ship
> repairman, shipbuilder, and ship-breaker, but such term does not
> include--
>
> \(A\) individuals employed exclusively to perform office, clerical,
> secretarial, security, or data processing work;
>
> \(B\) individuals employed by a club, camp, recreational operation,
> restaurant, museum, or retail outlet;
>
> \(C\) individuals employed by a marina and who are not engaged in
> construction, replacement, or expansion of such marina (except for
> routine maintenance);
>
> \(D\) individuals who (i) are employed by suppliers, transporters, or
> vendors, (ii) are temporarily doing business on the premises of an
> employer described in paragraph (4), and (iii) are not engaged in work
> normally performed by employees of that employer under this chapter;
>
> \(E\) aquaculture workers;
>
> \(F\) individuals employed to build, repair, or dismantle any
> recreational vessel under sixty-five feet in length;
>
> \(G\) a master or member of a crew of any vessel; or
>
> \(H\) any person engaged by a master to load or unload or repair any
> small vessel under eighteen tons net;
>
> if individuals described in clauses (A) through (F) are subject to
> coverage under a State workers\' compensation law.
>
> \(4\) The term \"employer\" means an employer any of whose employees
> are employed in maritime employment, in whole or in part, upon the
> navigable waters of the United States (including any adjoining pier,
> wharf, dry dock, terminal, building way, marine railway, or other
> adjoining area customarily used by an employer in loading, unloading,
> repairing, or building a vessel).

33 U.S.C. §§ 902(3), 902(4).

**Committee Comments**

This instruction must be given if the issue of maritime employment is
submitted to the jury in Paragraph *First* of the general negligence
instruction, Model Instruction No. 4.31, above.

*See* *Fifth Circuit Pattern Jury Instructions (Civil)*, § 4.13 (West
Group 1999).

**8.33 LONGSHORE AND HARBOR WORKERS\' COMPENSATION ACT**

**\"COVERED PLACE OF INJURY\" DEFINED**

A person is injured at a place within the coverage of the Longshore and
Harbor Workers\' Compensation Act if the injury occurs on navigable
waters, in an area adjoining navigable waters, or in an area that is
contiguous with an area adjoining navigable waters and that is
customarily used by an employer in the loading, unloading, building, or
repairing of a vessel.

**Committee Comments**

This instruction must be given if the issue of the place of injury is
submitted to the jury in Paragraph *First* of the General Negligence
Instruction, *8^th^ Cir. Civil Jury Instr.* § 8.31 (2007)

*See* *Fifth Circuit Pattern Jury Instructions (Civil)*, § 4.134 (West
Group 1999). An additional instruction may be needed, if there is an
issue over whether the plaintiff is excluded from coverage under 33
U.S.C. § 902(3). *See* *Northeast Marine Terminal Co. v. Caputo*, 432
U.S. 249 (1977).

**8.34 \"NAVIGABLE WATERS\" DEFINED**

The term \"navigable waters\" as used in these instructions means a body
of water which in its ordinary condition is presently capable of serving
as a highway for commerce over which trade and travel are, or may be,
conducted in the customary modes of trade and travel on water.

**Committee Comments**

*See* *The Daniel Ball*, 77 U.S. (10 Wall.) 557, 563 (1870); *Three
Buoys Houseboat Vacations, U.S.A. Ltd. v. Morts*, 921 F.2d 775, 778-79
(8th Cir. 1990); *Livingston v. United States*, 627 F.2d 165, 168-69
(8th Cir. 1980).

This instruction must be given if the issue of whether the place of
injury was on navigable waters is submitted to the jury in Paragraph
*First* of the General Negligence Instruction, Model Instruction No.
8.31.

**8.35 \"PROXIMATE CAUSE\" DEFINED**

As used in these instructions, the term \"proximate cause\" means a
cause of damage or injury that played a substantial part in bringing
about the injury or damage. The injury or damage must have been either a
direct result of or a reasonably probable consequence of the cause and
except for the cause the injury or damage would not have occurred.

A cause may be a proximate cause of damage or injury, even though it
operates in combination with the act of another or some natural cause,
as long as the subject cause contributes substantially to producing the
damage or injury.

**Committee Comments**

*See* *Britton v. U.S.S. Great Lakes Fleet, Inc.*, 302 F.3d 812, 818
(8th Cir. 2002); *Eleventh Circuit Pattern Jury Instructions (Civil)*, §
6.1 at 230 (West Group 2000).

**8.40 GENERAL MARITIME LAW\--NONEMPLOYEE-INVITEE\'S**

**NEGLIGENCE CLAIM\--ELEMENTS**

Your verdict must be for the plaintiff \[and against defendant (name of
the defendant)\],^1^ if all the following elements have been proved^2^:

*First*, the plaintiff was lawfully aboard the vessel; and

*Second*, while the plaintiff was lawfully aboard the vessel, the
defendant \[here describe the alleged act or omission\]; and

*Third*, the defendant in any one or more of the respects submitted in
paragraph Second was negligent^3^; and

*Fourth*, as a direct result of such negligence, the plaintiff sustained
injury.

**Notes on Use**

1\. Use this phrase if there is more than one defendant.

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

3\. Define \"negligence\" under the ordinary reasonable care standard.
*See* *8^th^ Cir. Civil Jury Instr.* §§ 7.09-7.11 (2007), below, without
the bracketed language. *See also* *Kermarec v. Compagnie Generale
Transatlantique*, 358 U.S. 625, 632 (1959).

**Committee Comments**

*See* *Kermarec v. Compagnie Generale Transatlantique*, 358 U.S. 625,
630 (1959).

**8.41 GENERAL MARITIME LAW\--NONEMPLOYEE-INVITEE\'S CLAIM\--**

**CONTRIBUTORY NEGLIGENCE (COMPARATIVE FAULT)**

If you find in favor of the plaintiff under Instruction No. \_\_\_ (here
insert the number of the plaintiff\'s elements instruction or verdict
director), you must consider whether plaintiff \[(name of decedent)\]
was also negligent. Under this Instruction, on the plaintiff\'s \[here
identify the claim to which this instruction applies\] claim, whether or
not the defendant was partly at fault, you must assess to \[(the
plaintiff) or (name of decedent)\] a percentage of the total negligence,
if all the following elements have been proved^1^:

*First*, \[(the plaintiff) or (name of decedent)\] (describe the
evidenced negligent conduct); and

*Second*, \[(the plaintiff) or (name of decedent)\] was thereby
negligent^1^; and

*Third*, such negligence of \[(the plaintiff) or (name of decedent)\]
resulted in whole or in part in \[(his) (her)\] own injury or damage.

The total of the negligence of \[(the plaintiff) or (name of decedent)\]
and of the negligence of the defendant for causing (the plaintiff\'s) or
(decedent's) injury must equal 100 percent.

**Notes on Use**

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

2\. Define \"negligence\" under the ordinary reasonable care standard.
*See* *8^th^ Cir. Civil Jury Instr.* §§ 7.09-7.11 (2007), below, without
the bracketed language. *See also* *Kermarec v. Compagnie Generale
Transatlantique*, 358 U.S. 625, 632 (1959).

**Committee Comments**

*See* *Ballard v. River Fleets, Inc.*, 149 F.3d 829, 831 (8th Cir.
1998).

**8.81 COMPENSATORY DAMAGES**

If you find the issues in favor of the plaintiff, you must award the
plaintiff such sum as you find will fairly and justly compensate the
plaintiff for any damages you believe \[(he) (she)\] sustained \[and is
reasonably certain to sustain in the future\] as a direct result of the
occurrence mentioned in the evidence.

You should consider the following elements of damages: physical pain and
suffering; mental anguish; income loss in the past; impairment of
earning capacity or ability in the future; and the reasonable value, not
exceeding the actual cost to the plaintiff, of medical care that you
find will be reasonably certain to be required in the future as a
proximate result of the injury in question. Such damages cannot be based
on speculation.

**8.81A COMPENSATORY DAMAGES**

**(COMPARATIVE FAULT ALTERNATE)**

If you find in favor of the plaintiff, then you must determine the
entire amount of money which you find will fairly and justly compensate
the plaintiff for any damages you believe \[(he) (she)\] sustained and
is reasonably certain to sustain in the future as a result of the
incident mentioned in the evidence. If liability is determined, you will
then assess the percentages of fault (from zero to 100 percent) for
which each party is responsible which caused the damages determined. Do
not reduce or increase any amount of damages you find by any percentage
of fault that you find.

You should consider the following elements of damages: physical pain and
suffering; mental anguish; income loss in the past; impairment of
earning capacity or ability in the future; and the reasonable value, not
exceeding the actual cost to the plaintiff, of medical care that you
find will be reasonably certain to be required in the future as a
proximate result of the injury in question. Such damages cannot be based
on speculation.

**8.82 PRESENT VALUE OF FUTURE DAMAGES**

If you should find that the plaintiff is entitled to a verdict, and
further find that the evidence in the case establishes either (1) a
reasonable likelihood of future medical expense, or (2) a reasonable
likelihood of loss of future earnings, then the jury must ascertain the
present worth in dollars of such future damage, since the award of
future damages necessarily requires that payment be made now for a loss
that will not be sustained until some future date.

Under these circumstances, the result is that the plaintiff will in
effect be reimbursed in advance of the loss, and so will have the use of
money which \[(he) (she)\] would not have received until some future
date, but for the verdict.

In order to make a reasonable adjustment for the present use, interest
free, of money representing a lump-sum payment of anticipated future
loss, the law requires that the jury discount, or reduce, to its present
worth, the amount of the anticipated future loss, by considering (1) the
interest rate or return which the plaintiff could reasonably be expected
to receive on an investment of the lump-sum payment, together with (2)
the period of time over which the future loss is reasonably certain to
be sustained; and then reduce, or in effect deduct from the total amount
of anticipated future loss whatever that amount would be reasonably
certain to earn or return, if invested at such rate of interest over
such future period of time; and include in the verdict an award for only
the present worth, that is, the reduced amount of anticipated future
loss.

**Committee Comments**

*See* *Heater v. Chesapeake & Ohio Ry. Co.*, 497 F.2d 1243 (7th Cir.
1974).

**8.83 COMPENSATORY DAMAGES NOT TAXABLE**

In the event that you determine to award the plaintiff money damages,
you are instructed that the award is not subject to any federal or state
income taxes. Therefore, you may not consider such taxes in considering
any award of damages.

**Committee Comments**

*See* *Norfolk & Western Ry. Co. v. Liepelt*, 444 U.S. 490 (1980)
(instruction is mandatory); *Fanetti v. Hellenic Lines, Ltd.*, 678 F.2d
424, 431 (2nd Cir. 1982); *cf.* *Flanigan v. urlington N., Inc.*, 632
F.2d 880, 889 (8th Cir. 1980).

**8.84 DUTY TO MITIGATE DAMAGES**

It is the duty of any person who has been injured to use reasonable
diligence and reasonable means, under the circumstances, to prevent the
aggravation of such injury to act in a way that brings about a recovery
from such injury and to take advantage of any reasonable opportunity
\[(he) (she)\] may have to reduce or minimize loss or damage. \[(He)
(She)\] is required to obtain reasonable medical care and follow \[(his)
(her)\] doctor\'s reasonable advice and to seek out or take advantage of
a business or employment opportunity that was reasonably available to
\[(him) (her)\] under all the circumstances shown by the evidence. You
should reduce the amount of the plaintiff\'s damages by the amount
\[(he) (she)\] could have avoided by obtaining and following reasonable
medical care and advice or the amount that the plaintiff could have
reasonably realized if \[(he) (she)\] had taken advantage of such
business or employment opportunity, but did not do so.

**Committee Comments**

*See* *Rapisardi v. United Fruit Co.*, 441 F.2d 1308, 1312 (2d Cir.
1971); *Saleeby v. Kingsway Tankers, Inc.*, 531 F. Supp. 879, 891
(S.D.N.Y. 1981).

**8.85 \"MAINTENANCE\" AND \"CURE\" DEFINED**

As used in these instructions, the term \"maintenance\" means the cost
of food and lodging that the plaintiff has actually incurred that is
reasonable for a person in \[(his) (her)\] community or is reasonably
necessary for survival, whichever is less, and the reasonable cost of
any necessary transportation to and from a medical facility.

As used in these instructions, the term \"cure\" means the cost of
necessary medical attention, including the services of physicians and
nurses as well the cost of hospitalization, medicines and medical
apparatus.

**Committee Comments**

*See* Introduction at 11-12; *Calmar S.S. Corp. v. Taylor*, 303 U.S.
525, 527 (1938); *Hall v. Noble Drilling (U.S.) Inc.*, 242 F.3d 582 (5th
Cir. 2001); *Wactor v. Spartan Transp. Corp.*, 27 F.3d 347, 351-52 (8th
Cir. 1994) (definitions of \"maintenance\" and \"cure\"; failure of
seaman to disclose medical information before employment may be a
defense to maintenance and cure); *Stanislawski v. Upper River Servs.,
Inc.*, 6 F.3d 537, 540 (8th Cir. 1993); *Gardiner v. Sea-Land Serv.,
Inc.*, 786 F.2d 943, 946 (9th Cir. 1986).

**8.86 MAINTENANCE AND CURE\--SUPPLEMENTAL**

A seaman is entitled to recover maintenance and cure, if \[(he) (she)\]
becomes injured or ill, without willful misbehavior on \[(his) (her)\]
part, while in the service of \[(his) (her)\] employer\'s vessel. A
seaman is entitled to maintenance and cure even though \[(he) (she)\]
was not injured as a result of any negligence on the part of \[(his)
(her)\] employer or as a result of the unseaworthiness of the
employer\'s vessel. Moreover, the seaman\'s injury or illness need not
be work-related. It need only occur while the seaman was in the service
of \[(his) (her)\] employer\'s vessel. Furthermore, an award for
maintenance and cure must not be reduced because of any negligence on
the part of the plaintiff.

A seaman is entitled to receive maintenance and cure from the date
\[(he) (she)\] leaves the vessel until \[(he) (she)\] reaches \"maximum
medical cure.\" The term \"maximum medical cure\" means the point at
which no further improvement in the seaman\'s medical condition is
reasonably expected. Thus, if it appears that a seaman\'s condition is
incurable, or that treatment will only relieve pain or provide comfort
but will not improve the seaman\'s physical condition, \[(he) (she)\]
has reached maximum medical cure.

If you find that the plaintiff is entitled to an award of damages under
\[either\] the Jones Act \[or on an unseaworthiness claim\] and if you
award \[(him) (her)\] lost wages or medical expenses, then you may not
also award the plaintiff maintenance and cure for the same period of
time, because the plaintiff may not recover twice for the same loss of
wages or medical expenses.

**Committee Comments**

A seaman\'s claim for maintenance and cure is separate and distinct from
a claim under the Jones Act or for the unseaworthiness of a vessel.
*Aguilar v. Standard Oil Co. of N.J.*, 318 U.S. 724 (1943); *Britton v.
U.S.S. Great Lakes Fleet, Inc.*, 302 F.3d 812, 816-18 (8th Cir. 2002).

**8.90 SPECIAL INTERROGATORIES**^1^

**I.**

**[NEGLIGENCE CLAIM]{.underline}**

1\. Was (name of the plaintiff or decedent) a seaman at the time of the
incident shown in the evidence?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 1 is \"Yes,\" proceed to
Interrogatory No. 2. If the answer to No. 1 is \"No,\" do not answer any
more interrogatories on this form. The Foreperson must sign this form
and return it into court.\]

2\. Was (name of the plaintiff or decedent) injured in the course of
\[(his) (her)\] employment as a seaman?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 2 is \"Yes,\" proceed to
Interrogatory No. 3. If the answer to No. 2 is \"No,\" do not answer any
more interrogatories on this form, but the Foreperson must sign this
form and return it into court.\]

3\. Did the defendant \[here describe the act or omission submitted by
the plaintiff\]?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 3 is \"Yes,\" proceed to
Interrogatory No. 4. If the answer to No. 3 is \"No,\" do not answer No.
4, but proceed to No. 7.\]

4\. Was the act of the defendant found with respect to No. 3 negligent?

Answer: \_\_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 4 is \"Yes\" proceed to
Interrogatory No. 5. If the answer to No. 4 is \"No,\" do not answer No.
5, but proceed to No. 7.\]

5\. Did any such negligent act or negligent omission of the defendant,
found by the jury with respect to Interrogatory No. 4, cause injury to
the plaintiff?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 5 is \"Yes,\" proceed to
Interrogatory No. 6. If the answer to No. 5 is \"No,\" do not answer No.
6, but proceed to No. 7.\]

6\. What is the total amount of damages that the plaintiff has suffered
\[and is reasonably certain to suffer in the future\] as a result of the
incident established in the evidence?

Answer: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Dollars
(\$\_\_\_\_\_\_\_\_\_\_).

**II.**

**[UNSEAWORTHINESS CLAIM]{.underline}**

7\. At the time and place established in the evidence, was the vessel
(here name the subject vessel) in an unseaworthy condition in that it
(here state condition of vessel submitted by the plaintiff)?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 7 is \"Yes\" proceed to
Interrogatory No. 8. If the answer to No. 7 is \"No,\" proceed to No.
10.\]

8\. Was the unseaworthy condition of the subject vessel, found by the
jury with respect to No. 7, a substantial factor in causing any injury
or damage sustained by the plaintiff?

Answer: \_\_\_\_\_\_ (Yes or No)

\[If the answer to Interrogatory No. 8 is \"Yes\" proceed to
Interrogatory No. 9. If the answer to No. 8 is \"No,\" do not answer No.
9, but proceed to No. 10.\]

9\. What is the total amount of damages which the plaintiff has suffered
\[and is reasonably certain to suffer in the future\] as a result of the
incident established in the evidence?

Answer:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Dollars
(\$\_\_\_\_\_\_\_\_\_\_).

**III.**

**[COMPARATIVE NEGLIGENCE DEFENSE]{.underline}**

(Plaintiff, Defendant, and Settling Defendant)

10(a). Do you, the jury, find that defendant
\[\_\_\_\_\_\_\_\_\_\_\_\]^2^
\[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]^3^
and thereby was negligent?

Answer: \_\_\_\_\_\_\_\_ (Yes or No)

\[**Note:** If the answer to No.10(a) is \"Yes,\" answer No. 10(b). If
the answer to No. 10(a) is \"No,\" do not answer any more of the
interrogatories. The Foreperson must sign the form and return it into
court.\]

10(b). Do you, the jury, find that the negligence found by the jury in
its answer to No. 10(a), above, caused, in whole or in part, damage or
injury to the plaintiff?

Answer: \_\_\_\_\_\_\_ (Yes or No).

\[**Note:** If the answer to No. 10(b) is \"Yes,\" answer No. 11(a). If
the answer to No. 10(b) is \"No,\" do not answer any more of the
interrogatories. The Foreperson must sign the form and return it into
court.\]

11(a). Do you, the jury, find that plaintiff
\[\_\_\_\_\_\_\_\_\_\_\_\]^4^
\[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]^5^
and thereby was negligent?

Answer: \_\_\_\_\_\_\_\_ (Yes or No)

\[**Note:** If the answer to Interrogatory No. 11(a) is \"Yes,\" answer
No. 11(b). If the answer to No. 11(a) is \"No,\" do not answer No.
11(b), but proceed to answer No. 12(a).\]

11(b). Do you, the jury, find that the negligence of the plaintiff,
found in the answer to No. 11(a), caused, in whole or in part, damage or
injury to the plaintiff?

Answer: \_\_\_\_\_\_\_ (Yes or No).

12(a). Do you, the jury, find that \[\_\_\_\_\_\_\_\_\_\_\_\]^6^
\[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]^7^
and thereby was negligent?

Answer: \_\_\_\_\_\_\_\_ (Yes or No)

\[**Note:** If the answer to Interrogatory No. 12(a) is \"Yes,\" answer
No. 12(b). If the answer to No. 12(a) is \"No,\" do not answer No.
12(b), but proceed to answer No. 13.\]

12(b). Do you, the jury, find that the negligence found by the jury in
its answer to No. 12(a) caused, in whole or in part, caused damage or
injury to the plaintiff?

Answer: \_\_\_\_\_\_\_ (Yes or No).

13\. What percentage(s) of the relative fault for the plaintiff\'s
damages are assessed

> \(a\) to defendant ([name of the defendant]{.underline})?
> \_\_\_\_\_\_\_%
>
> \(b\) to the plaintiff ([name of the plaintiff]{.underline})?
> \_\_\_\_\_\_\_%
>
> \(c\) to ([name of the settling defendant]{.underline})?^8^
> \_\_\_\_\_\_\_%.
>
> \[TOTAL MUST EQUAL 100%\] 100 %

14\. Without regard to any percentage found with respect to
Interrogatory No. 13, what are the total compensatory damages, if any,
you, the jury, find that plaintiff \_\_\_\_\_\_\_\_\_\_\_\_\_ suffered
and is reasonably certain to suffer in the future as a direct result of
the acts found with respect to the jury\'s answers to Interrogatories
Nos. 10(b), 11(b), and 12(b)?

Answer: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Dollars
(\$\_\_\_\_\_\_\_\_\_\_).

**Notes on Use**

1\. In an appropriate case, the court may submit the case to the jury
with a general verdict form.

2\. Here name the defendant.

3\. Here state the act of negligence submitted by the plaintiff.

4\. Here name the plaintiff.

5\. Here state the act of negligence submitted by the defendant.

6\. Here name the settling defendant.

7\. Here state the act of negligence submitted by the plaintiff or the
nonsettling defendant.

8\. *See* footnote 6.

**9. DEFINITIONS**

**9.01 AGENCY**

A corporation acts only through its agents or employees and any agent or
employee of a corporation may bind the corporation by acts and
statements made while acting within the scope of the authority delegated
to the agent by the corporation, or within the scope of \[(his) (her)\]
duties as an employee of the corporation.

**Committee Comments**

This instruction is a modification of 3 Kevin F. O'Malley, et al.,
FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil § 108.01 (5^th^ ed. 2000).

The authority of an agent to speak for the principal may vary from state
to state and differ from federal law.

**9.02 COLOR OF STATE LAW (42 U.S.C. § 1983)**

Acts are done under color of law when a person acts or purports to act
in the performance of official duties under any state, county or
municipal law, ordinance or regulation.

**Committee Comments**

Adopted from *Ninth Circuit Manual of Model Jury Instructions - Civil*,
Instruction 11.1.1 (West 1997). *See Monroe v. Pape*, 365 U.S. 167
(1961), *overruled in part*, *Monell v. Department of Social Services*,
436 U.S. 658 (1978); *Screws v. United States*, 325 U.S. 91 (1945);
*United States v. Classic*, 313 U.S. 299, *reh\'g denied*, 314 U.S. 707
(1941). The court should, if possible, rule on the record whether the
conduct of the defendant, if it occurred as claimed by the plaintiff,
constitutes acts under color of state (county, municipal) law and not
even instruct the jury on this issue. In most cases, the color of state
law issue is not challenged and the jury need not be instructed on it.
If it must be instructed, this instruction should normally be
sufficient.

**9.03 DELIBERATE INDIFFERENCE - CONVICTED PRISONERS**

**(42 U.S.C. § 1983)**

Deliberate indifference is established only if there is actual knowledge
of a substantial risk that the plaintiff (describe serious medical
problem or other serious harm that the defendant is expected to prevent)
and if the defendant disregards that risk by intentionally refusing or
failing to take reasonable measures to deal with the problem. Mere
negligence or inadvertence does not constitute deliberate indifference.

**Committee Comments**

*See* *Farmer v. Brennan*, 511 U.S. 825 (1994) (clearly limiting
deliberate indifference to intentional, knowing or recklessness in the
criminal law context which requires actual knowledge of a serious risk).
*Wilson v. Seiter*, 501 U.S. 294 (1991). The court is limiting Eighth
Amendment claims to those in which the plaintiff can show actual
subjective intent rather than just recklessness in the tort sense. In
*Wilson*, the court characterized as Eighth Amendment violations only
acts which are \"*deliberate* acts *intended* to chastise or deter\"
(emphasis added) or \"punishment which has been administered for a
disciplinary *purpose*\" (emphasis added). *Wilson*, 501 U.S. at 300.
The court, continuing to follow the deliberate indifference standard,
clearly stated that negligence was not sufficient.

The Committee believe the phrase \"deliberate indifference\" should
probably be defined in most cases, although Eighth Circuit case law does
not require it.

**9.04 MOTIVATING FACTOR**

As used in these instructions, the plaintiff's (sex, gender, race,
national origin, religion, disability)^1^ was a \"motivating factor,\"
if the plaintiff's (sex, gender, race, national origin, religion,
disability) played a part^2^ \[or a role^3^\]^4^ in the defendant's
decision to \_\_\_\_\_\_\_\_\_\_^5^ the plaintiff. However, the
plaintiff's (sex, gender, race, national origin, religion, disability)
need not have been the only reason for the defendant's decision to
\_\_\_\_\_\_\_\_\_\_ the plaintiff.

**Notes on Use**

1\. Here state the alleged unlawful consideration.

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

3\. *See Hazen Paper Co. v. Biggins*, 507 U.S. 604, 609 (1993)
(\"Whatever the employer's decisionmaking process, a disparate treatment
claim cannot succeed unless the employee's protected trait actually
played a role in that process and had a determinative influence on the
outcome.\")

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

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

5\. Here state the alleged adverse employment action.

6\. \"Determining factor\" is appropriate to signify the sole cause in
an indirect evidence, pretext case brought under the decisional format
of *McDonnell Douglas Corp. v. Green*, 411 U.S. 792 (1973); *Estes v.
Dick Smith Ford, Inc.*, 856 F.2d 1097, 1101-02 (8^th^ Cir. 1988).
\"Motivating\" is often used in a direct evidence, mixed-motive case
brought under *Price Waterhouse v. Hopkins*, 490 U.S. 228 (1989), to
signify the multiple factors, at least one of which is assertedly
unlawful, which caused the adverse employment decision. 42 U.S.C. §
2000e-2(m); *Hennessy v. Penril Datacomm Networks, Inc.*, 69 F.3d 1344,
1350-51 (8^th^ Cir. 1995); *Parton v. GTE North, Inc.*, 971 F.2d 150,
153 (8^th^ Cir. 1992); *Foster v. University of Ark.*, 938 F.2d 111, 114
(8^th^ Cir. 1991). \"Determining factor\" also has been used in a
mixed-motive case. *Williams v. Fermenta Animal Health Co.*, 984 F.2d
261, 265 (8^th^ Cir. 1993). \"Substantial factor\" and \"motivating
factor\" have been used to convey the same legal standard. *Mt. Healthy
City School Dist. Bd. of Educ. v. Doyle*, 429 U.S. 274, 287 (1977);
*Glover v. McDonnell Douglas Corp.*, 981 F.2d 388, 393-95 (8^th^ Cir.),
*vacated and remanded on other grounds*, 510 U.S. 802 (1993), 12 F.3d
845 (8^th^ Cir. 1994). \"Motivating factor\" has been used with
\"determining factor\" in the decisional calculus of a single cause,
pretext case. *Nelson v. Boatmen's Bancshares, Inc.*, 26 F.3d 796, 801
(8^th^ Cir. 1994). \"Discernible factor\" has been equated with
\"motivating factor\" in a mixed-motive case. *Estes*, 856 F.2d at 1102.

7\. \"Motive\" (the root of \"motivating\") is defined as \"something
that causes a person to act in a certain way, do a certain thing, etc.\"
Random House Compact Unabridged Dictionary, Motive, p.1254 (Special
Second Edition, 1996).

8\. The Age Discrimination in Employment Act, at 29 U.S.C. § 623(a)(1),
and Title VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C.
§ 2000e-2(a), also use the phrase \"because of\" to describe the
prohibited causal relationship between the defendant's intention and
factors which may not be used in making an employment decision.

**Committee Comments**

For the trials of disparate treatment cases, the Committee has selected
the term \"motivating factor\" to constitute the subject matter of the
defendant's asserted, unlawful state of mind when the action sued upon
occurred. Whether this term or another term^6^ is selected is immaterial
as long as the term used signifies the proper legal definition for the
jury. A court may decide that the term \"motivating factor\" need not be
defined expressly because its common definition^7^ is also the
applicable legal definition.

The Americans With Disabilities Act prohibits each \"covered entity\"
from discriminating against a \"qualified individual\" with a disability
in an employment context \"because of\"^8^ the disability. *See* 42
U.S.C. § 12112(a). The gist of the term \"because of\" is intentional
discrimination which resulted in the employment decision adverse to the
plaintiff, whether in a sole cause, pretext context or in a mixed-motive
context. The burden on the plaintiff, in both a sole cause and a
mixed-motive case, is to prove to the factfinder that the adverse
employment decision resulted from the unlawful motive, *Price Waterhouse
v. Hopkins*, 490 U.S. 228, 258 (1989); *St. Mary's Honor Center v.
Hicks*, 509 U.S. 502, \_\_\_, 113 S. Ct. 2742, 2751-52 (1993), and the
burden of proof on the defendant in a mixed-motive case is to prove, as
an affirmative defense, that the same decision would have been made
absent the unlawful motive. *Price Waterhouse*, 490 U.S. at 258. The
evidence offered in what starts out as the trial of a sole cause case
may support a finding of a mixed-motive liability. *See Nelson v.
Boatmen's Bancshares, Inc.*, 26 F.3d 796, 801 (8^th^ Cir. 1994) (the
employer's proffered nondiscriminatory explanation may permit an
inference of the existence of an unlawful motivating factor). In both
contexts, the plaintiff's ultimate burden is to persuade the factfinder
that the defendant intentionally acted adversely to the plaintiff for a
proscribed reason. *St. Mary's Honor Center v. Hicks*, 509 U.S. at
\_\_\_, 113 S. Ct. at 2747.

Each of the definitions of \"motivating factor\" set out in this section
accurately states the law.

[^1]: ^?^See Costa, 539 U.S. at \_\_\_, 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); Radabaugh 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, 539 U.S. at \_\_\_, 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).

[^4]: ^\*^ ^\*\*\*\*^This instruction may be given as a paragraph in the
    plaintiff\'s elements instruction or as a separate instruction.

[^5]: ^\*^ ^\*\*\*\*\*^The definition of \"vessel\" under the LHWCA
    should be considered the same as that under the Jones Act. Stewart
    v. Dutra Constr. Co., 543 U.S. 481, \_\_\_, 125 S. Ct. 1118, 1125
    (2005) (\"at the time Congress enacted the Jones Act and the LHWCA
    in the 1920\'s, it was settled that § 3 defined the term 'vessel'
    for purposes of those statutes.\").

[^6]: ^\*^ ^\*\*\*\*\*\*^Some cases have allowed the recovery of
    punitive damages to non-seamen in maritime cases. In re Horizon
    Cruises Litigation, 2000 WL 685365 (S.D.N.Y. 2000) (acknowledges
    split among courts); contra In re Diamond B Marine Services, Inc.,
    2000 WL 222847 (E.D. La. 2000); O\'Hara v. Celebrity Cruises, 979 F.
    Supp. 254 (S.D.N.Y. 1997).