___________

No. 95-3482

___________

Rebecca Caviness, *

*

Appellee, *

*

v. *

*

Nucor-Yamato Steel Company, *

*

Appellant. *

*

Sally Parks, Deborah Gee, *

*

Intervenors. * Appeals from the United States

----------------------- * District Court for the

* Eastern District of Arkansas.

Sally Parks, *

*

Appellee, *

*

v. *

*

Nucor-Yamato Steel Company, *

*

Appellant. *

*

Deborah Gee, *

*

Intervenor. *

___________

No. 95-3583

___________

Rebecca Caviness, *

*

Appellant, *

*

v. *

*

Nucor-Yamato Steel Company, *

*

Appellee. *

*

Sally Parks, Deborah Gee, *

*

Intervenors. *

---------------------- *
-2-

*

Sally Parks, *

*

Appellant, *

*

v. *

*

Nucor-Yamato Steel Company, *

*

Appellee. *

*

Deborah Gee, *

*

Intervenor. *

___________

 Submitted: September 9, 1996

 Filed: January 29, 1997

___________

Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Nucor-Yamato Steel Company (NYS) appeals from the judgments entered

by the District Court on Rebecca Caviness's and Sally Parks's claims that

they were subjected to illegal sexual harassment resulting in a hostile

environment at the NYS steel plant where they worked. Caviness

conditionally cross-appeals, contending that the court erred in granting

summary judgment to NYS on her claim of discriminatory failure to hire, and

asking us to consider her argument only if NYS prevails on its appeal of

the judgment in her favor on her claim of sexual harassment. For the

reasons discussed below, we reverse and remand.

I.

Parks was an employee at NYS's steel plant in Blytheville, Arkansas,

from 1988 to 1992. Caviness was a contract employee for NYS in Blytheville

from December 1990 to November 1991. Both women
-3-

brought suit under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, alleging that

they were discriminated against on the basis of sex, including suffering

cumulative sexual harassment that amounted to a hostile work environment.

It is unnecessary for us to get into the details of the allegations of

sexual harassment, but suffice it to say that the record is replete with

evidence from which a jury could conclude, as it did, that the NYS plant

in Blytheville was a decidedly harsh environment for female employees,

especially for Caviness and Parks, and that NYS was in violation of Title

VII.

Before trial, the District Court granted summary judgment to NYS on

Caviness's claim of discriminatory failure to hire. A jury heard the

remaining claims of both women, acting only in an advisory capacity as to

Caviness's claims because the actions she alleged occurred before the

federal sex discrimination laws permitted jury trials. The jury found for

NYS on Parks's claim of discriminatory failure to promote and the court

dismissed that claim with prejudice. (The dismissal has not been appealed

and may not be revisited on remand.) The jury found for Parks on her claim

of sexual harassment, awarding her $200,000 in compensatory damages and

$50,000 in punitive damages. The jury advised judgment for Caviness on her

sexual harassment claim and an award of damages in the amount of $51,000.

The District Court entered judgment for the plaintiffs in accordance with

the jury's determinations.

For its appeal, NYS claims the District Court erred in four ways:

retroactively applying the Civil Rights Act of 1991; submitting Parks's

claim for punitive damages to the jury; giving improper jury instructions;

and mishandling, after the verdict, NYS's allegations of juror misconduct.

For her conditional cross-appeal, Caviness contends the court erred in

granting summary judgment to NYS on her claim of discriminatory failure to

hire.
-4-

II.

Title VII of the Civil Rights Act of 1964 was amended by the Civil

Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071. Until November 1991,

only equitable remedies were available to victims of discrimination under

Title VII. See Landgraf v. USI Film Prods., 511 U.S. 244, 252 (1994).

Section 102 of the 1991 Act, however, now makes it possible for a

successful plaintiff "to recover compensatory and punitive damages for

certain violations of Title VII." Id. at 247; see also 42 U.S.C.

§ 1981a(a) (1994). "Section 102 confers a new right to monetary relief on

persons . . . who were victims of a hostile work environment but were not

constructively discharged, and the novel prospect of damages liability for

their employers." Landgraf, 511 U.S. at 283. After considering whether

the amendments should apply to cases pending on the effective date of the

1991 Act, November 21, 1991, the Supreme Court in Landgraf held that § 102

does not apply retroactively. See id. at 286. That is, compensatory and

punitive damages are not available to plaintiffs for violations of Title

VII occurring before November 21, 1991. NYS argues that § 102 was

improperly applied retroactively here. We agree.

A.

We first consider the $51,000 award to Caviness on her claim of

sexual harassment. The jury in this case "advised" a monetary award of

$51,000 for damages to Caviness that included, according to the verdict

form, pain, suffering, and mental anguish, all decidedly compensatory

damages. But all of Caviness's claims arose before November 1991, when she

stopped working at NYS, and therefore before compensatory damages were

available to plaintiffs in Title VII cases. The District Court

nevertheless entered judgment for Caviness in the amount of $51,000

"[p]ursuant to the jury verdicts in these cases," although the court did

not specify whether said damages were equitable, compensatory, or punitive.
-5-

Caviness v. Nucor-Yamato Steel Co., Nos. J-C-92-23, J-C-93-140 (filed Feb.

21, 1995). In its subsequent order denying NYS's motion for new trial, the

court circumvented Landgraf's prohibition against applying § 102

retroactively by recharacterizing the $51,000 in damages awarded to

Caviness, finding she was "entitled to backpay as a form of equitable

relief." Caviness v. Nucor-Yamato Steel Co., Nos. J-C-92-23, J-C-93-140,

Order at 14 (filed Aug. 28, 1995). The court erred.

As noted above, the recovery of monetary damages by successful

plaintiffs on claims of discrimination under Title VII before the 1991 Act

was limited to equitable forms of relief, such as backpay, and the

circumstances under which such monetary equitable relief was available were

likewise limited. "[E]ven if unlawful discrimination was proved, under

prior [pre-November 1991] law a Title VII plaintiff could not recover

monetary relief unless the discrimination was also found to have some

concrete effect on the plaintiff's employment status, such as a denied

promotion, a differential in compensation, or termination." Landgraf, 511

U.S. at 254. Sexual harassment occurring before November 1991 ordinarily

does not have the sort of concrete economic effect required for the

recovery of money damages under Title VII. The exception would be sexual

harassment that resulted in constructive discharge, that is, a resignation

by the plaintiff that was "a reasonably foreseeable consequence of [the

employer's] discriminatory actions." Hukkanen v. International Union of

Operating Eng'rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th

Cir. 1993). In that case, backpay (and front pay) would be potential

remedies. But in the absence of constructive discharge, a plaintiff

subjected to sexual harassment, no matter how egregious, is not "made

whole" by the equitable remedy of backpay. 

Caviness does not allege constructive discharge, but contends on

appeal that she was actually discharged by NYS. It is not clear
-6-

how the alleged actual discharge now becomes not only a part of Caviness's

claim of sexual harassment but the justification for an award of damages

on that claim. The District Court at trial specifically excluded evidence

of Caviness's alleged discriminatory discharge, since she did not raise

such a claim in her complaint. She does not appeal the court's evidentiary

ruling on her allegations of discharge and cannot now claim that the

court's award of "backpay" was based on her actual discharge. Further, NYS

received summary judgment on Caviness's claim of failure to hire, so it too

was not before the court. Because Caviness proved no "concrete effect on

[her] employment status" as the result of the sexual harassment she

suffered, she is not entitled to backpay.

The $51,000 in backpay awarded to Caviness on her claim of sexual

harassment is reversed.

B.

The next issue is whether compensatory damages were properly awarded

Parks on the jury's finding of unlawful sexual harassment. NYS would have

us vacate the entire award because some of the harassment complained of

occurred before the effective date of the 1991 Act, and the court did not

give the jury an instruction or a verdict form requiring it to limit

damages to post-Act conduct. We agree that the court erred, but we decline

NYS's invitation to vacate Parks's damages in toto and then to leave it at

that.

We first must consider the argument that NYS did not properly

preserve its claim of instructional error. At the instruction conference,

counsel for NYS advised the court that "there should be an instruction and

a verdict form which distinguishes [sic] between alleged damages after the

1991 Civil Rights Act for Mrs. Parks." Transcript at 1224. Counsel did

not, however, give the court a proposed instruction that would have limited

damages to post-Act conduct. "In order to properly preserve a claim of

instructional
-7-

error for appellate review, a party is not only required to make a

sufficiently precise objection before the district court, but it must also

propose an alternate instruction." Kehoe v. Anheuser-Busch, Inc., 96 F.3d

1095, 1104 (8th Cir. 1996) (citations omitted). Because NYS did not

proffer a proposed limiting instruction, "the claim is waived, and we will

reverse only if the district court's instructions constitute plain error."

Id. That is, the failure to give an instruction incorporating the Landgraf

rule will warrant a new trial only if it is error affecting substantial

rights, the error is plain, and the error "seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings." Wright

v. Nichols, 80 F.3d 1248, 1252 (8th Cir. 1996) (quoting United States v.

Olano, 507 U.S. 725, 736 (1993) (quoted case omitted)) (alteration in

Olano).

The instruction that was given was not a correct statement of the law

under Landgraf, because Parks cannot recover compensatory damages for preNovember 1991 harassment. See Polacco v. Curators of the Univ. of Mo., 37

F.3d 366, 370 (8th Cir. 1994)). There is no question that this is error

and, because Landgraf was decided well before the trial in this case and

its holding as to retroactivity is unequivocal, the error is plain. But

we will not correct even plain error on appeal unless it "prejudiced [NYS],

either specifically or presumptively." Olano, 507 U.S. at 739. We hold

that NYS was specifically prejudiced by the erroneous instruction. 

Parks had an indisputable "straddle" claim--the harassment began in

1988 and continued until Parks terminated her employment with NYS in 1992.

The jury was not instructed that it could award damages only for NYS's

illegal actions occurring after November 21, 1991, and the verdict form did

not require the jury to limit damages based on the date of the unlawful

conduct. There is no way for anyone to determine, without pure

speculation, what part of the $200,000 in compensatory damages awarded to

Parks is for post-
 Parks would have us hold that the sexual harassment found by 1

the District Court was a "continuing violation," and then affirm

the award of compensatory and punitive damages as for the entire

course of conduct. We are not familiar with any Eighth Circuit law

where the concept of continuing violation, ordinarily associated

with statutes of limitations issues, has been employed to overcome

a non-retroactivity rule. In any case, it is clear that we would

violate the express teaching of the Supreme Court if we so held.

See Landgraf v. USI Film Prods., 511 U.S. 244, 282 (1994) ("[T]he

new compensatory damages provision would operate `retrospectively'

if it were applied to conduct occurring before November 21, 1991.")

(emphasis added). The harassing conduct in this case straddled the

effective date of the 1991 Act, so while it was "continuing" in

that sense, it nevertheless consists of discrete acts whose dates

of occurrence can be pinpointed with reasonable certainty.

-8-

November 1991 illegal activity and thus may be sustainable. We think,

given the circumstances of this case, that the failure to give a limiting

instruction not only was plain error but was so clearly prejudicial that

it must be corrected. Accordingly, we vacate the award of compensatory

damages and remand for a new trial.

C.

Parks also was awarded $50,000 in punitive damages, which NYS

challenges. Punitive damages have been available since the effective date

of the 1991 Act to the victim of unlawful sexual harassment who

"demonstrates that the [employer] engaged in a discriminatory practice or

discriminatory practices with malice or with reckless indifference to the

federally protected rights of an aggrieved individual." 42 U.S.C.

§ 1981a(b)(1) (1994). 

Parks's punitive damages award suffers from the same instructional

error as her compensatory damages award with regard to the "straddle"

nature of the claim. Some of the actions allegedly warranting an award of

punitive damages occurred before the effective date of the 1991 Act, some

after. No limiting instruction was given to the jury, and none was

proffered by NYS. Nevertheless, for the reasons discussed above, this was

plain error requiring reversal. The award of punitive damages to Parks

1

is
-9-

vacated. Because a new trial will be necessary, and the evidence adduced

at the new trial may differ from that adduced at the first trial, we do not

reach NYS's claim that Parks's evidence was insufficient to warrant the

submission of her punitive damages claim to the jury.

D.

The question remains whether on remand there should be a new trial

on liability, or only on damages. First, we note that the finding of

liability on Caviness's sexual harassment claim stands, but because that

liability was entirely for pre-1991 Act conduct, the question of damages

shall not be revisited on remand. As a matter of law, Caviness is not

entitled to recover damages on this claim. With respect to Parks's

"straddle" claim, we conclude that the liability and damages issues are so

factually intertwined that the new trial must address both issues. See

Hallberg v. Brasher, 679 F.2d 751, 758 (8th Cir. 1982); see also American

Road Equip. Co. v. Extrusions, Inc., 29 F.3d 341, 345 n.3 (8th Cir. 1994).

Accordingly, as to Parks we vacate the judgment of the District Court in

its entirety.

III.

NYS raises several additional issues in its appeal. Because we are

remanding this case for a new trial, the challenge to the District Court's

handling of allegations of improper third-party contact with a juror is

moot. We will address briefly the remaining contentions, however, all of

which concern instructional error that may reappear in the new trial.

Having considered the claims of error, we offer these thoughts.
 There appears to be some misconception, evident at various

2

stages of the trial and also on appeal, concerning this Court's

role in promulgating or approving the Eighth Circuit Model Jury

Instructions. (The District Court relied on a draft of the model

instructions when formulating some of the instructions given in

this case.) These instructions are drafted by a committee. No

member of this Court participates in the work of that committee.

We do not promulgate these instructions, and "[w]e `approve' of the

model instructions only as they are individually litigated and

upheld by this court on a case-by-case basis." United States v.

Ali, 63 F.3d 710, 714 n.3 (8th Cir. 1995).

-10-

The challenged instruction is the verdict director for the

plaintiffs' sexual harassment claims. It seeks to define the elements of

a Title VII claim for sexual harassment resulting in a hostile work

environment. Instruction 16 was read to the jury as follows: 2

Your verdict must be for the Plaintiff Sally Parks on her

sexual harassment claim and your verdict must be for the

Plaintiff Rebecca Caviness on her sexual harassment claim, if

all of the following elements have been proved by a

preponderance of the evidence:

First, that Plaintiff was subject to a sexually hostile

work environment, including a lack of bathroom facilities,

sexual jokes and innuendos, demeaning pictures and posters,

vulgar language on the radio, et cetera;

Second, that such conduct was sufficiently severe or

pervasive that a reasonable person in Plaintiff's circumstances

would find the work environment to be hostile or abusive as to

alter Plaintiff's conditions of employment;

Third, based upon such conduct, Plaintiff perceived her

work environment to be hostile or abusive; and

Fourth, that the Defendant, Nucor-Yamato Steel Company,

knew or should have known of the conduct to which Plaintiff was

subjected and that Defendant failed to take appropriate action

to end the conduct to which Plaintiff was subjected.

If any of the above elements have not been proved by a

preponderance of the evidence, your verdict must be for
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the Defendant and you need not proceed further in considering

this claim.

You must apply these elements to the facts surrounding

each Plaintiff's claims. Your verdict as to one Plaintiff

should not affect your verdict as to the other.

Transcript at 1232-33.

NYS first asserts that the instruction improperly commented on the

evidence by enumerating some of the incidents and conditions of employment

to which Parks and Caviness claimed to have been subjected.

It has long been the rule that "under the Federal practice the trial

judge may in his charge comment on the evidence fairly and impartially,

more clearly to define the issues and assist the jury in reaching a correct

conclusion." Davis v. R.K.O. Radio Pictures, Inc., 191 F.2d 901, 905 (8th

Cir. 1951); accord United States v. Dunmore, 446 F.2d 1214, 1218 (8th Cir.

1971) ("While a federal trial judge is permitted to comment on the evidence

and witnesses in his instructions to the jury, he must studiously avoid

one-sidedness.") (citations omitted), cert. denied, 404 U.S. 1041 (1972).

Apparently judicial comment on the plaintiff's evidence is not only

permitted but is the practice in the district courts of this Circuit in

framing instructions in sexual harassment cases. See, e.g., Gillming v.

Simmons Indus., 91 F.3d 1168, 1171 (8th Cir. 1996) (quoting verdict

director that recited examples of the plaintiff's proof of the illegal

conduct). NYS's concern, and ours, is that Instruction 16 may have placed

"undue emphasis" on plaintiffs' evidence, Tyler v. Hot Springs Sch. Dist.

No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987), because there were no comments

in the instructions on NYS's countervailing evidence, at least as to the

harassment claims. In Instruction 13 the court did set forth NYS's primary

defense on the claims: that the company denies subjecting Caviness and

Parks to a sexually hostile work
-12-

environment. See Transcript at 1231. NYS apparently did not proffer an

instruction that included a more explicit defense than denial, although

some specifics were incorporated into the jury instruction that set forth

NYS's defense on Parks's claim of discriminatory failure to promote. See

id. at 1231 ("The Defendant denies this charge. Specifically it claims

that it did not promote or transfer Plaintiff because she was not the most

qualified candidate for the promotions or transfers she sought."). There

was, however, some countervailing evidence adduced as to some of the

examples of harassment the court cites in Instruction 16, which might

appropriately have been included in an instruction.

We hesitate to say much more about this issue, as we recognize that

a district court has significant discretion to formulate instructions in

a jury trial, see Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th

Cir.), cert. denied, 117 S. Ct. 179 (1996), and such decisions are best

made in that forum on an ad hoc basis. Moreover, we have our doubts, after

considering the instructions as a whole, that any error based on

Instruction 16's recitation of some of plaintiffs' evidence would be so

prejudicial as to be reversible, see Vanskike v. ACF Indus., Inc., 665 F.2d

188, 202 (8th Cir. 1981), cert. denied, 455 U.S. 1000 (1982), especially

when NYS did not offer an instruction that would have balanced the language

in Instruction 16 that it finds objectionable. We simply caution the

District Court to be mindful on retrial of placing "undue emphasis" on one

party's evidence.

NYS also alleges that Instruction 16 misstates the law because it

does not properly instruct the jury on the elements of a sexual harassmenthostile work environment claim. That is, it does not specifically require

the jury to find that the harassment was based on Parks's and Caviness's

sex or that it was unwelcome in order to find for the plaintiffs.
-13-

The elements of a claim of sexual harassment resulting from a hostile

work environment are well-established in this Circuit. In order to

prevail, a plaintiff must prove:

(1) she belongs to a protected group; (2) she was subject to

unwelcome sexual harassment; (3) the harassment was based on

sex; (4) the harassment affected a term, condition, or

privilege of employment; and (5) [the employer] knew or should

have known of the harassment and failed to take proper remedial

action.

Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993)

(quoting Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir.

1992)) (alteration by this Court). Instruction 16 is missing the specific

requirements that, in order to find for the plaintiffs, the jury must find

that the conduct complained of was based on Parks's and Caviness's sex and

that it was unwelcome. This was error. Nonetheless, it is crystal clear

from the record that many of the illegal actions alleged in this case were

taken because the plaintiffs were women, and there are references to

"sexual" harassment throughout the instructions, including one in

Instruction 16. Further, it stretches credulity to conceive that a

reasonable jury might have thought Parks and Caviness welcomed from their

co-workers the conduct detailed in the evidence at trial. Thus, when we

consider the instructions as a whole, we do not believe the missing

elements constitute reversible error. See May v. Arkansas Forestry Comm'n,

993 F.2d 632, 637 (8th Cir. 1993) ("[A] single erroneous instruction does

not require reversal if the charge as a whole fairly and adequately submits

the issue to the jury."). Nevertheless, the omissions should be remedied

in the instructions on remand.

IV.

Caviness conditionally cross-appeals from the grant of summary

judgment in favor of NYS on her Title VII claim for discriminatory
-14-

failure to hire. Because we have held that she is not entitled to damages

on her claim of sexual harassment and have reversed the money judgment that

she won in the District Court, we now take up her appeal.

We review the grant of summary judgment de novo, applying the same

standard as the District Court. See Chance Management, Inc. v. South

Dakota, 97 F.3d 1107, 1110 (8th Cir. 1996), petition for cert. filed, 65

U.S.L.W. 3468 (U.S. Dec. 20, 1996) (No. 96-995). We will affirm only if

we are convinced that there are no genuine issues of material fact on

Caviness's sex discrimination claim and that NYS is entitled to judgment

as a matter of law. See id.; Fed. R. Civ. P. 56(c). We view the facts in

the light most favorable to Caviness and give her the benefit of all

reasonable inferences. See Smith v. City of Des Moines, 99 F.3d 1466, 1469

(8th Cir. 1996).

The District Court held that Caviness could not prove a prima facie

case that NYS failed to hire her on account of her sex. On appeal,

Caviness contends that she demonstrated genuine issues of material fact on

the elements of her prima facie case so as to survive NYS's motion for

summary judgment.

To make out a prima facie case under Title VII for discriminatory

failure to hire, the plaintiff must be able to prove "1) that she is a

member of a protected class; 2) that she applied and was qualified for a

job for which the employer was seeking applicants; 3) that she was

rejected; and 4) that after rejecting plaintiff the employer continued to

seek applicants with plaintiff's qualifications." Krenik v. County of Le

Sueur, 47 F.3d 953, 957 (8th Cir. 1995). There is no dispute here about

the first and third elements of the prima facie case: Caviness is a

female, a member of a protected class, and NYS did not hire her. The

District Court concluded, and NYS argues in response to the cross-appeal,

that Caviness cannot show a fact dispute about the second
-15-

element--"that she applied and was qualified for a job for which the

employer was seeking applicants," id.--because she never applied for the

jobs at issue.

Caviness was a contract employee while she worked at the NYS plant,

first for Daniels Construction and then for Scheuck Steel, but she was

always under the direct control and supervision of NYS employees. She

submitted bids for two job openings at the plant, but did not complete an

application for either. One of the jobs, that of bundle turner, went to

a male NYS employee who had not submitted a bid for it (in fact, no one

except Caviness bid for the job); the male in question was a new employee

whom NYS sought out to fill the job. Caviness, who had been doing the

bundle turner job temporarily for six months at the time it officially

became a job opening, helped train the transferee. The other position, an

inspector job previously held by the transferred employee, was eliminated,

apparently at the suggestion of the all-male inspector crew. A few months

later, and two months after Caviness stopped working at the plant, a man

from outside the company was hired to fill a resurrected inspector

position.

NYS contends that Caviness did not apply for either job, because

"bidding" on jobs was open only to NYS employees. We conclude, however,

that it is for a fact-finder to decide whether Caviness's status as a

contract laborer in the plant, working under the supervision of NYS

employees, gave her the option of bidding for jobs. Even if it did not,

there remains the factual question whether Caviness's bids would qualify

as applications.

NYS also argues that Caviness cannot establish any fact question

about the fourth element of her case, at least as to the inspector

position, because the company did not continue to seek applicants for the

job, but eliminated it altogether. We conclude, however, that the job's

reappearance a few months later raises a fact question relevant to

Caviness's proof of her claim.
-16-

We believe the District Court erred in holding that genuine issues

of material fact do not exist regarding Caviness's claim of discriminatory

failure to hire. Accordingly, we reverse the summary judgment for NYS on

this claim and remand for trial.

V.

To summarize: (1) the monetary award to Caviness on her claim of

sexual harassment is reversed; (2) the judgment for Parks on her claim of

sexual harassment is vacated; (3) the grant of summary judgment for NYS on

Caviness's Title VII claim of discriminatory failure to hire is reversed;

and (4) the case is remanded for a new trial on Parks's claim of sexual

harassment and for trial on Caviness's Title VII claim of discriminatory

failure to hire.

BRIGHT, Circuit Judge, concurring separately.

I concur in the result. I disagree, however, with the criticism of

the district court's jury instructions. In my view, the trial court

properly instructed the jury. When reviewing jury instructions, this court

must view the instructions as a whole, and if the instructions as a whole

are fair and not unduly suggestive, we should refrain from being overly

critical. See Gillming v. Simmons Indus., 91 F.3d 1168, 1171 (8th Cir.

1996).

In this case, the district court's jury instructions included the

following:

Instruction No. 13:

It is unlawful for an employer to intentionally refuse to

transfer or promote any person or otherwise discriminate

against any person with respect to compensation, tenure,

conditions, or privileges of employment because of such

person's sex. The Plaintiff in this case, Sally Parks, claims

that Defendant Nucor-Yamato Steel Co. intentionally

discriminated against her because of her sex by failing to

transfer or promote her
-17-

to certain positions within its workplace. The Defendant

denies this charge. Specifically it claims that it did not

promote or transfer plaintiff because she was not the most

qualified candidate for the promotions or transfers she sought.

It is your responsibility to decide whether the Plaintiff has

proven her claim against the Defendant by a preponderance of

the evidence.

It is also unlawful for an employer to allow its

employees to be subjected to a sexually hostile workplace.

Plaintiff Sally Parks and Plaintiff Rebecca Caviness both claim

that Defendant Nucor-Yamato Steel Co. subjected them to such a

sexually hostile workplace. The Defendant denies these

charges. It is your responsibility to decide whether Plaintiff

Parks and Plaintiff Caviness have proven their claims against

the Defendant by a preponderance of the evidence.

Jt. App. at 200.

Instruction No. 17:

In determining whether a reasonable person in the

plaintiffs' circumstances would find the plaintiffs' work

environment to be hostile or abusive, you must look at all the

circumstances. The circumstances may include the frequency of

the discriminatory conduct; its severity; whether it was

physically threatening or humiliating, or merely offensive;

whether it unreasonably interfered with the plaintiffs' work

performance; and the effect on plaintiffs' psychological wellbeing. No single factor is required in order to find a work

environment hostile or abusive.

Jt. App. at 212.

Instruction No. 16:

Your verdict must be for the Plaintiff Sally Parks on her

sexual harassment claim and your verdict must be for the

Plaintiff Rebecca Caviness on her sexual harassment claim, if

all of the following elements have been proved by a

preponderance of the evidence:

First, that Plaintiff was subject to a sexually hostile

work environment including a lack of bathroom
-18-

facilities, sexual jokes and innuendo, demeaning pictures and

posters, vulgar language on the radio, etc.

Second, that such conduct was sufficiently severe or

pervasive that a reasonable person in plaintiff's circumstances

would find the work environment to be hostile or abusive as to

alter Plaintiff's conditions of employment;

Third, based on such conduct, Plaintiff perceived her

work environment to be hostile or abusive; and,

Fourth, that the Defendant, Nucor-Yamato Steel Company,

knew or should have known of the conduct to which plaintiff was

subjected and that Defendant failed to take appropriate action

to end the conduct to which plaintiff was subjected.

If any of the above elements have not been proved by a

preponderance of the evidence, your verdict must be for

Defendant and you need not proceed further in considering this

claim.

You must apply these elements to the facts surrounding

each Plaintiff's claims. Your verdict as to one Plaintiff

should not affect your verdict as to the other.

Jt. App. at 213.

Mentioning the specific allegations of sexual harassment in the

verdict director was not improper. Cf., Gillming, 91 F.3d at 1171 (quoting

and upholding jury instructions including specific allegations of sexual

harassment). The allegations may be mentioned either in the introduction

to the jury instructions or in the verdict director. I believe the

district court's inclusion of the Plaintiffs’ allegations of sexual

harassment could have been included in Instruction No. 13 or in Instruction

No. 16. In either case, the instructions would be appropriate. The

instructions as a whole make abundantly clear to the jury that the

Plaintiffs must carry the burden of proof by a preponderance of the

evidence on all relevant issues relating to establishing sexual harassment.
 An example of improper and misleading instructions is the

3

defendant's proffered Instruction No. 7:

The Act under which Plaintiff brings this lawsuit,

Title VII of the Civil Rights Act of 1964, as amended,

forbids discrimination against an employee because of the

employee's sex. The Act does not, for purposes of this

lawsuit, forbid any other type of discrimination, nor

does it forbid any other action or inaction by NucorYamato relative to Plaintiff.

The Act does not state that being female entitles

employees to special favorable consideration; nor is it

equivalent to an affirmative action program to promote or

hire a certain number of female employees. The Act

requires that a female employee not be the subject of

discrimination because of her sex. The Act does not seek

to affect employer decisions based on the employer's

individual assessments of a person's abilities,

capabilities, or potential, or the employer's needs.

The basic principle is that an employer is entitled

to refuse or fail to promote or advance an employee for

good cause, poor cause, or no cause at all, so long as

the reason is not the employee's sex. You must bear in

mind that an employer is entitled to make its own

subjective business judgments, however misguided and

shortsighted they may appear to you, and may refuse to

promote an employee for any reason that is not

discriminatorily based on sex. An employer may refuse to

promote an employee who is performing poorly, or may even

refuse to promote an adequate employee because the

employer believes that another person could do the job

better. It is the employer who must be satisfied with

the employee's performance, and unsatisfactory

performance means unsatisfactory as evaluated by the

employer. Your concern is not whether the promotion

decision reflected an objective fact finder's judgment of

an employee's abilities or whether it was a wise business

judgment or whether you would have done the same thing

had you been in the employer's shoes. You are asked only

to decide whether the employer's refusal to promote

Plaintiff was because of her sex. Thus, if you should

find that sex was not a determining factor in the refusal

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Moreover, the Defendant did not propose any proper alternative

instructions.3
to promote Plaintiff, then you must render a verdict for

Defendant on these issues even though you might feel the

failure to promote was unreasonable, arbitrary, or

unfair.

Jt. App. at 224-25. The foregoing does not instruct the jury on

the law, but rather amounts to an argumentative essay. The

district court properly rejected this instruction.

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I believe the district court correctly and properly instructed the

jury.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.