United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2758

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Susan Bauer, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the Western

* District of Missouri.

Curators of the *

University of Missouri, *

*

Appellant. *

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Submitted: March 14, 2012

 Filed: June 6, 2012

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Before WOLLMAN, COLLOTON and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Susan Bauer, an advanced practical nurse at the University of Missouri

Hospital and Clinics, sued the Board of Curators, alleging a violation of the Equal

Pay Act, 29 U.S.C. § 206(d). She claimed she was paid less than a male who

performed substantially equal work under similar working conditions. The district

court, over Bauer’s objection, gave the business-judgment instruction: “You may not

return a verdict for the plaintiff just because you might disagree with the defendant’s

decision or believe it to be harsh or unreasonable.” See 8th Cir. Civ. Jury Inst. 5.94. 

The jury returned a verdict for the Curators. Bauer moved for a new trial, arguing
that the instruction should not be given in an EPA case. The district court denied the

motion for new trial. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. 

Generally, this court reviews a district court’s instructionsto the jury for abuse

of discretion. Niemiec v. Union Pac. R.R. Co., 449 F.3d 854, 857 (8th Cir. 2006). 

Even if a district court erroneously instructs a jury, this court reverses “‘only where

the error affects the substantial rights of the parties.’” McCoy v. Augusta Fiberglass

Coatings, Inc., 593 F.3d 737, 744-45 (8th Cir. 2010), quoting Brown v. Sandals

Resorts Int’l, 284 F.3d 949, 953 (8th Cir. 2002).

The Curators argue that Bauer’s objections at trial did not preserve the issue. 

To preserve a jury-instruction issue for appellate review, a party must “make a

specific objection that distinctly state[s] the matter objected to and the grounds for the

objection.” Allen v. Entergy Corp., 193 F.3d 1010, 1014 (8th Cir. 1999). See Fed.

R. Civ. P. 51(c)(1). An objection must be specific, precise enough to allow the

district court to address any problems and avoid a retrial. Allen, 193 F.3d at 1013.

A general objection to a jury instruction, even when it encompasses a specific

objection, is insufficient. Id. at 1014. 

If a party does not properly object to preserve the issue for appeal, objections

to jury instructions are waived, absent a showing of plain error. Niemiec, 449 F.3d

at 857-58 (8th Cir. 2006); Fed. R. Civ. P. 51(d)(2). Plain error exists if: (1) the

district court deviates from a legal rule; (2) the error is clear under current law; and,

(3) the error affects substantial rights, which ordinarily means that the error affects

the outcome of the proceedings. United States v. Olano, 507 U.S. 725, 732-35

(1993). Plain error will not be corrected unless(4) it “seriously affect[s] the integrity,

fairness, or public reputation of judicial proceedings.” Kaplan v. Mayo Clinic, 653

F.3d 720, 726 (8th Cir. 2011), citing Rahn v. Hawkins, 464 F.3d 813, 819 (8th Cir.

2006).

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During a conference outside the hearing of the jury, Bauer objected to the

business-judgment instruction. Bauer stated that the instruction is “quite confusing,”

not “plain language,” “doesn’t aid the jury,” and implies that the plaintiff has the

burden to prove an intent thatsalary disparity was discriminatory. After Bauer made

her objection, the district court quoted the comment to the model instruction, noting

Walker v. AT&T Technologies, 995 F.2d 846 (8th Cir. 1993). The district court then

stated: “I’mgoing to give [the instruction] because I don’t like, that AT&T case could

be a problem. It could be reversible. I’m not – you can make your objection, but I’m

going to go ahead and give [the instruction].” The district court understood Bauer’s

objection but believed that the business-judgment instruction should be given due to

the AT&T case. This objection was preserved and isreviewed for abuse of discretion. 

Gender discrimination claims may be brought under both Title VII and the

Equal Pay Act, but the laws differ. The EPA, a strict liability statute, does not require

plaintiffs to prove that an employer acted with discriminatory intent; plaintiffs need

show only that an employer pays males more than females. Strecker v. Grand Forks

County Soc. Serv. Bd., 640 F.2d 96, 99 n.1 (8th Cir. 1980), rev’d on other grounds,

Pullman-Standard v. Swint, 456 U.S. 273 (1982). See Mickelson v. New York Life

Ins. Co., 460 F.3d 1304, 1310-11 (10th Cir. 2006). To avoid liability, an employer

must show that any pay disparity is justified by (1) a seniority system; (2) a merit

system; (3) a pay system based on quantity or quality of output; or (4) a disparity

based on any other factor other than sex. See Price v. Northern States Power Co.,

664 F.3d 1186, 1191 (8th Cir. 2011); 29 U.S.C. § 206(d)(1). 

Under Title VII, the burden of persuading the trier of fact that an employer

intentionally discriminated against the plaintiff always remains with the plaintiff. 

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-55 (1981); 42

U.S.C. § 2000e-2. After a prima facie case of unlawful discrimination is established,

the employer may assert “a legitimate, nondiscriminatory reason for its adverse

employment action.” Burdine, 450 U.S. at 252-55. Then, the employee may present

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evidence that the employer’s reasons are pretextual. Id. An employer under the EPA

carries the burden of persuasion and must prove an affirmative defense; a Title VII

defendant need only articulate a defense. 

Because an employer is “entitled to make its own subjective personnel

decisions . . . for any reason that is not discriminatory” under Title VII, this court

requires district courts, on request, to give the business-judgment instruction in a Title

VII case. AT&T Technologies, 995 F.2d at 849; 8th Cir. Civ. Jury Instr. 5.94 cmt. 

This logic, however, is irrelevant under the EPA. “Under the EPA, a defendant

cannot escape liability merely by articulating a legitimate non-discriminatory reason

for the employment action. Rather, the defendant must prove that the pay differential

was based on a factor other than sex.” Simpson v. Merchants & Planters Bank, 441

F.3d 572, 579 (8th Cir. 2006) (citation omitted). The business-judgment instruction

should not be given in an EPA case. The district court included incorrect language 1

in its instructions. 

2

If a case includes claims under both Title VII and the EPA, a business1

judgment instruction is appropriate. Wolff v. Brown, 128 F.3d 682, 685 (8th Cir.

1997).

Bauer’s ultimate argument on appeal–that the business-judgment instruction

2

was a “roving commission”–was not specifically raised in her objection, was not

preserved, and is reviewed for plain error. In the Missouri courts, a roving

commission occurs when a single instruction “assumes a disputed fact or submits an

abstract legal question that allows the jury to roam freely through the evidence and

choose any facts which suit[ ] its fancy or perception of logic to impose liability.” 

Scanwell Freight Express STL, Inc. v. Chan, 162 S.W.3d 477, 482 (Mo. banc 2005),

citing Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998)

(internal quotations omitted). This court, however, “need not consider the intricacies

of state procedural instruction law.” Crues v. KFC Corp., 768 F.2d 230, 232-33 (8th

Cir. 1985), citing Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir. 1985)

(emphasis added). As to the roving-commission issue, the district court did not

plainly err. 

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Although the business-judgment instruction should not have been given, this

court examines “‘whether the jury instructions, taken as a whole, fairly and

adequately represent the evidence and applicable law in light of the issues presented

to the jury in a particular case.’” McCoy, 593 F.3d at 745-46, quoting Brown, 284

F.3d at 953 (emphasis added). Here, the business-judgment instruction immediately

followed three instructionsthat correctly define the plaintiff’s prima facie case under

the EPA, the term “substantially equal,” the defendant’s burden of persuasion, and

four possible affirmative defenses. The business-judgment instruction limited the

jury from ruling for Bauer solely for irrelevant reasons that are not in the preceding

three instructions. Taken as a whole, the instructions correctly state the law, requiring

a verdict for the plaintiff under some circumstances or for the defendant under others. 

No error occurred. 

The judgment of the district court is affirmed.

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