___________ 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-Yam ato Steel Company (NYS) appeals from the judgments entered by the District Court on Rebecca Caviness's and Sally Parks's claims that the ywere subjected to illegal sexual harassment resulting in a hostil e environme nt at the NYS steel plant where they worked. Cavines s conditionallycross-appeals, contending that the court erred in granting summary judgment to NYS on her claim of discriminatory failure to hire, an d asking us to consider her argument only if NYS prevails on its appeal of the judgm ent in her favor on her claim of sexual harassment. For th e 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 Blythevill e from December 1990 to November 1991. Both women

### -3-

brought suit under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, alleging tha t theywere discriminated against on the basis of sex, including suffering cumulative sexual har assment that amounted to a hostile work environment. It is un necessary for us to get into the details of the allegations o f 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 Bly theville was a decidedly harsh environment for female employees , especially for Cavine ss and Parks, and that NYS was in violation of Title VII.

Before tr ial, the District Court granted summary judgment to NYS on Caviness's claim of discriminatory failure to hire. A jury heard th e remaining claims of b oth women, acting only in an advisory capacity as to Cavine ss's claims because the actions she alleged occurred before th e federal sex discrimination laws permitted jury t rials. The jury found for NYS on Parks's claim of discriminatory failure to promote and the cour t dismissed that claim with prejudice. (The dismi ssal has not been appealed and may not be revisited on remand.) The jury found for Parks on her clai m of sex ual harassment, awarding her $200,000 in compensatory damages an d $50,000 in punitive damages. The jury advised judgment for Caviness on he r sexual harassment cla im and an award of damages in the amount of $51,000. The District Court en tered judgment for the plaintiffs in accordance with the jury's determinations.

For its appeal, NYS claims the District Court erred in four ways : retroa ctivelyapplying the Civil Rights Act of 1991; submitting Parks' s claim for punitive damages to the jury; giving i mproper jury instructions; and mishandling, after the verdict, NYS's allega tions of juror misconduct. For he r conditional cross-appeal, Caviness contends the court erred i n 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 Civi l Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1 071. Until November 1991, only equitable remedi es were available to victims of discrimination under Title VI I. See Landgraf v. USI Film Prods. , 511 U.S. 244, 252 (1994)
. Sec tion 102 of the 1991 Act, however, now makes it possible for a succ essful plaintiff "to recover compensatory and punitive damages fo r cer tain violations of Title VII." Id. at 247; see also 42 U.S.C
. § 1981a(a) (1994). "Section 102 confers a new r ight to monetary relief on persons . . . who wer e victims of a hostile work environment but were not constructively discharged, and the novel prospec t of damages liability for their employers." Landgraf , 511 U.S. at 283. After considering whether the amendments shouldapply to cases pending on the effective date of the 1991 Act, November 21, 1991, the Supreme Court i n Landgraf held that § 102 does not apply retroa ctively. 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 wa s improperly applied retroactively here. We agree.

A.

We first consider the $51,000 award to Caviness on her claim o f sexual harassment. The jury in this case "advised" a monetary award of $51 ,000 for damages to Caviness that included, according to the verdic t form, p ain, suffering, and mental anguish, all decidedly compensator y damages. But all of Caviness's claims arose before November 1991, when sh e stoppe d working at NYS, and therefore before compensatory damages wer e available to plaintiffs in Title VII cases. The District Cour t nevert heless entered judgment for Caviness in the amount of $51,00 0 "[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, th e court circumvented Landgraf 's prohibition against applying § 10 2 retro activelyby recharacterizing the $51,000 in damages awarded t o Caviness, finding she was "entitled to backpay as a form of equitabl e 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 successfu l plaintiffs on claims of discrimination under Tit le VII before the 1991 Act
was limited to equitable forms of relief, such as backpay, and th e circumstances under which such monetary equitable relief was available wer e likewi se limited. "[E]ven if unlawful discrimination was proved, unde r prior [ pre-November 1991] law a Title VII plaintiff could not recove r monetar yrelief unless the discrimination was also found to have som e concrete effect on the plaintiff's employment status, such as a denie d promotion, a differential in compensation, or te rmination." Landgraf , 511 U.S. at 254. Sexual harassment occurring before November 1991 ordinarily does not have the sort of concrete economic effect required for th e recovery of money dam ages under Title VII. The exception would be sexual harassment that resulted in constructive dischar ge, that is, a resignation by the plaintiff that was "a reasonably foreseeable consequence of [th e employer's] discriminatory actions." Hukkanen v. International Union of Operating Eng'rs, Hoi sting & Portable Local No. 101 , 3 F.3d 281, 285 (8th Cir

. 1993). In that case, backpay (and front pay) would be potentia l
reme dies. But in the absence of constructive discharge, a plaintif f subject ed to sexual harassment, no matter how egregious, is not "mad e whole" by the equitable remedy of backpay.

Caviness does not allege constructive discharge, but contends o n 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 claimof sexual harassment but the justification for an award of damages on that claim. The District Court at trial spec ifically excluded evidence of Cav iness's alleged discriminatory discharge, since she did not rais e such a claim in her complaint. She does not appeal the court's evidentiar y ruli ng on her allegations of discharge and cannot now claim that th e court's award of "backpay" was based on her actual discharge. Further, NY S received summary judgment on Caviness's claim of failure to hire, so it to o was not before the co urt. Because Caviness proved no "concrete effect on [her] employment status" as the result of the sexual harassment sh e suffered, she is not entitled to backpay.

The $51,000 in backpay awarded to Caviness on her claim of sexua l harassment is reversed.

B.
The next issue is whether compensato ry damages were properly awarded Parks on the jury's finding of unlawful sexual h arassment. NYS would have
us vacate the entire award because some of the harassment complained o f occurred before the e ffective date of the 1991 Act, and the court did not give t he jury an instruction or a verdict form requiring it to limi t damages to post-Act conduct. We agree that the court erred, but we declin e NYS's invitation to vacate Parks's damages in to to and then to leave it at that.

We first must consider the argument that NYS did not properl y preserve its claim of instructional error. At t he instruction conference, counsel for NYS advised the court that "there sh ould be an instruction and a verdict form which distinguishes [sic] betweenalleged 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 limite d damages t o post-Act conduct. "In order to properly preserve a claim o f instructional

### -7-

error for appellate review, a party is not only required to make a sufficiently precise objection before the distri ct court, but it must also propose an alternate instruction." Kehoe v. Anh euser-Busch, Inc. , 96 F.3d 1095 , 1104 (8th Cir. 1996) (citations omitted). Because NYS did no t proffer a proposed limiting instruction, "the cl aim is waived, and we will reverse only if the district court's instruction s constitute plain error." Id. That is, the failure to give an instruction incorporating the Landgra f rule will warrant a new trial only if it is error affecting substantia l rights, the error is plain, and the error "seriously affect[s] th e fairness, integrity or public reputation of judi cial 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 i n Olano ).
The instruction that was given was not a correct statement of t he law under Landgraf , because Parks cannot recover compensatory damages for preNovember 1991 harassment. See Polacco v. Curato rs 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 hadan indisputable "straddle" claim--the harassment began in 1988 and continued until Parks terminated her em ployment 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 di d not req uire the jury to limit damages based on the date of the unlawfu l conduct
. There is no way for anyone to determine, without pur e speculation, what par t of the $200,000 in compensatory damages awarded to Parks is for post-

### Parks wouldhave us hold that the sexual harassment found by 1 

### the District Court was a "continuing violation," and then affir m the award of compensatory and punitive damages as for the entir e course of conduct. We are not familiar with any Eighth Circ uit law wh ere the concept of continuing violation, ordinarily associate d with statutes of limitations i ssues, 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 provi sion would operate `retrospectively' if it were applied to conduct occurringbefore November 21, 1991.") (emphasis added). The harassing conduct in this case stradd led 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- Novem ber 1991 illegal activity and thus may be sustainable. We think , given the circumstanc es 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 compensator y damages and remand for a new trial.

C.

Parks also was awarded $50,000 in punitive damages, which NY S challenges. Punitive damages have been availabl e since the effective date of the 1991 Act to the victim of unlawful sexual harassment wh o "demonstrates that th e [employer] engaged in a discriminatory practice or discriminatory practi ces with malice or with reckless indifference to the federa llyprotected rights of an aggrieved individual." 42 U.S.C

. § 1981a(b)(1) (1994).

Pa rks's punitive damages award suffers from the same instructiona l
error a s her compensatory damages award with regard to the "straddle " nature of the claim. Some of the actions allege dly warranting an award of punitive damages occu rred before the effective date of the 1991 Act, some after. N o limiting instruction was given to the jury, and none wa s proffered by NYS. Nevertheless, for the reasons discussed above, this was plain error requiring reversal. The award of punitive damages to Park s 1 is

### -9-

vacated. Because a n ew trial will be necessary, and the evidence adduced at the new trial may differ from that adduced at the first trial, we do no t
rea chNYS's claim that Parks's evidence was insufficient to warrant th e submission of her punitive damages claim to the jury.

D.

The que stion remains whether on remand there should be a new tria l
on liabil ity, or only on damages. First, we note that the finding o f liabilityon Caviness's sexual harassment claim stands, but because that liabilitywas entirely for pre-1991 Act conduct, the question of damages shal l not be revisited on remand. As a matter of law, Caviness is no t entitled to recover damages on this claim. With respect to Parks' s "straddle" claim, we conclude that the liability and damages issues are so factuallyintertwined that the new trial must address both issues. Se e 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 raise s several additional issues in its appeal. Because we are remanding this case for a new trial, the challen ge to the District Court's han dling of allegations of improper third-party contact with a juror i s moot. We will addres s briefly the remaining contentions, however, all of which c oncern 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 variou s 2 

### stages of the trial and also on appeal, concerning this Court' s role i n promulgating or approving the Eighth Circuit Model Jur y Instructions. (The District Court relied on a draft of the model inst ructions when formulating some of the instructions given i n this case.) These instructions are drafted by a committee. N o member of this Court participates in the work of that committee

. We do not promulgate these instructions, and "[w]e `approve' of the mo del instructions only as they are individually litigated an d upheld b y this court on a case-by-case basis." United States v

. Ali , 63 F.3d 710, 714 n.3 (8th Cir. 1995). -10- Th e challenged instruction is the verdict director for th e plaintiffs' sexual ha rassment claims. It seeks to define the elements of
a Title V II claim for sexual harassment resulting in a hostile wor k environment. Instruction 16 was read to the jury as follows: 2

Your verdict must be for the Plaintiff Sally Parks on her sex ual harassment claim and your verdict must be for th e 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 hostil e work environment, including a lack of bathroom facilities , sexual jokes and innuendos, demeaning pictures and posters , vulgar language on the radio, et cetera;
Secon d, that such conduct was sufficiently severe o r pervasive that a reasonable person in Plaintiff's c ircumstances would find the work envi ronment to be hostile or abusive as to alter Plaintiff's conditions of employment; Third, based upon such conduct, Plaintiff perceived he r work environment to be hostile or abusive; and
Fou rth, that the Defendant, Nucor-Yamato Steel Company , knew or should have known of the conduct to which P laintiff was subjected and that Defen dant 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

### -11- the Defendant and you need not proceed further in considering this claim.
Yo u must apply these elements to the facts surroundin g eac hPlaintiff's claims. Your verdict as to one Plaintif f should not affect your verdict as to the other.
Transcript at 1232-33.

NYS first asserts that the instruction improperly commented on th e evidence by enumerating some of the incidents an d conditions of employment to which Parks and Caviness claimed to have been subjected.
It has long been the rule that "unde r 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 correc t conclusion." Davis v. R.K.O. Radio Pictures, In c. , 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 evidenc e and witnesses in his instructions to the jury, he must studiously avoi d one-sidedness.") (cit ations omitted), cert. denied , 404 U.S. 1041 (1972). Appare ntlyjudicial comment on the plaintiff's evidence is not onl y permitted but is the practice in the district courts of this Circuit i n framing instructions in sexual harassment cases. See, e.g., Gillming v. Simmons Indus. , 91 F.3d 1168, 1171 (8th Cir. 1996) (quoting verdic t director that recited examples of the plaintiff's proof of the illega l conduct). NYS's concern, and ours, is that Inst ruction 16 may have placed "undue emphasis" on p laintiffs' evidence, Tyler v. Hot Springs Sch. Dist. No. 6 , 827 F.2d 1227, 1231 (8th Cir. 1987), beca use 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 primar y defense on the claims: that the company denies subjecting Caviness an d Parks to a sexually hostile work

### -12-

environment. See Transcript at 1231. NYS apparently did not proffer an instru ction that included a more explicit defense than denial, althoug h some specifics were i ncorporated into the jury instruction that set forth NYS's defense on Park s's claim of discriminatory failure to promote. See id. at 1231 ("The Defendant denies this charge. Specifically it claim s that it did not promote or transfer Plaintiff be cause she was not the most qualified candidate f or the promotions or transfers she sought."). There was, however, some countervailing evidence adduced as to some of th e example s of harassment the court cites in Instruction 16, which migh t appropriately have been included in an instruction.

We hesita te 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 Sla thar v. Sather Trucking Corp. , 78 F.3d 415, 418 (8th Cir.), ce rt. denied , 117 S. Ct. 179 (1996), and such decisions are bes t made in that forum on an ad hoc basis. Moreover, we have our doubts, afte r co nsidering the instructions as a whole, that any error based o n Ins truction 16's recitation of some of plaintiffs' evidence would be s o prejudicial as to be reversible, see Vanskike v. ACF Indus., Inc. , 665 F.2 d 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 languag e in Instruc tion 16 that it finds objectionable. We simply caution th e District Court to be mindful on retrial of placi ng "undue emphasis" on one party's evidence.

NYS a lso alleges that Instruction 16 misstates the law because i t does not properly instruct the jury on the elements of a sexual harassment

hostile work environment claim. That is, it doe s 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 h ostile work environment are well-established in this Circuit. In order t o prevail, a plaintiff must prove:
(1) she belongs to a protected group; (2) she was subject t o unwelc ome sexual harassment; (3) the harassment was based o n sex; (4) the harassment affected a term, condition, o r privilege of employment; and (5) [the employer] knew or should have known of the harassment and failed to take pro per remedial action.

Kop p v. Samaritan Health Sys., Inc. , 13 F.3d 264, 269 (8th Cir. 1993 ) (quoting Burns v. McGregor Elec. Indus., Inc. , 9 55 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 plai ntiffs, the jury must find that the conduct complained of was based on Park s'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 take n because the plaintiffs were women, and there are references t o "sexua l" harassment throughout the instructions, including one i n 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 missin g elements constitute reversible error. See May v. Arkansas Forestry Comm'n , 993 F.2d 632, 637 (8t h Cir. 1993) ("[A] single erroneous instruction does not require reversal if the charge as a whole fairly and adequately submit s 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 summar y 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 tha t she won in the District Court, we now take up her appeal.

We revi ew the grant of summary judgment de novo, applying the sam e standard a s the District Court. See Chance Management, Inc. v. Sout h 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 o n 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 li ght most favorable to Caviness and give her the benefit of al l reasonable inferences. See Smith v. City of Des Moines , 99 F.3d 1466, 146 9 (8th Cir. 1996).

The Distr ict 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 elem ents of her prima facie case so as to survive NYS's motion fo r summary judgment.

To make out a prima facie case under Title VII for discriminator y fail ure 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 wa s 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 fem ale, a member of a protected class, and NYS did not hire her. Th e District Court conclu ded, and NYS argues in response to the cross-appeal, that Caviness cannot show a fact dispute about the second

### -15-

elem ent--"that she applied and was qualified for a job for which th e 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 wa s alway s under the direct control and supervision of NYS employees. Sh e submitted bids for tw o job openings at the plant, but did not complete an application for either. One of the jobs, that of bundle turner, went to
a m ale NYS employee who had not submitted a bid for it (in fact, no on e except Caviness bid f or the job); the male in question was a new employee whom NYS sought out to fill the job. Caviness, who had been doing th e bundl e turner job temporarily for six months at the time it officiall y became a job opening, helped train the transfere e. The other position, an inspector job previously held by the transferredemployee, was eliminated, apparently at the suggestion of the all-male ins pector crew. A few months later, and two months after Caviness stopped working at the plant, a man from out side the company was hired to fill a resurrected inspecto r position.

NY S contends that Caviness did not apply for either job, becaus e "bidding" on jobs was open only to NYS employees. We conclude, however, tha t it is for a fact-finder to decide whether Caviness's status as a contract laborer in the plant, working under the supervision of NY S 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 questio n about the fourth element of her case, at least as to the inspecto r position, because the company did not continue to seek applicants for the job, but eliminated it altogether. We conclude, however, that the job's reappear ance a few months later raises a fact question relevant t o Caviness's proof of her claim.

### -16- We belie ve the District Court erred in holding that genuine issue s of material fact do not exist regarding Caviness 's claim of discriminatory failure to hire. Acc ordingly, we reverse the summary judgment for NYS on this claim and remand for trial.

V.

To summar ize: (1) the monetary award to Caviness on her claim o f sexual harassment is reversed; (2) the judgment for Parks on her claim of sexual harassment is vacated; (3) the grant of s ummary 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 sexua l 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 cour t properly instructed the jury. When reviewing jury instructions, this cour t must view the instruc tions as a whole, and if the instructions as a whole
are fair and not unduly suggestive, we should refrain from being overl y critical. See Gillming v. Simmons Indus. , 91 F.3d 1168, 1171 (8th Cir

. 1996).

In this case, the district court's jury instructions included th e following:

Instruction No. 13: It is unlawful for an employer to inten tionally refuse to trans fer or promote any person or otherwise discriminat e again st any person with respect to compensation, tenure , cond itions, or privileges of employment because of suc h person's sex. The Plain tiff in this case, Sally Parks, claims tha t Defendant Nucor-Yamato Steel Co. intentionall y dis criminated against her because of her sex by failing t o transfer or promote her

### -17- to cert ain positions within its workplace. The Defendan t denies this charge. Specifically it claims that it did no t pro mote or transfer plaintiff because she was not the mos t qualified candidate for the promotions or transfers she sought. It is your responsibility to decide whether the Plaintiff has pro ven her claim against the Defendant by a preponderance o f the evidence.
It is also unlawful for an employer to allow it s empl oyees to be subjected to a sexually hostile workplace

. Plaintiff Sally Parks and Plaintiff Rebecca Cavines s both claim that Defendant Nucor-Yam ato Steel Co. subjected them to such a sexu allyhostile workplace. The Defendant denies thes e charges. It is your responsibility to decide wheth er 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 th e pla intiffs' circumstances would find the plaintiffs' wor k environment to be hostil e or abusive, you must look at all the circumstances. The circ umstances may include the frequency of the d iscriminatory conduct; its severity; whether it wa s phy sicallythreatening or humiliating, or merely offensive ; wh ether it unreasonably interfered with the plaintiffs' wor k performance; and the eff ect on plaintiffs' psychological wellbeing. No single factor is required in order to find a wor k environment hostile or abusive.
Jt. App. at 212.

Instruction No. 16: Your verdict must be for the Plaintiff Sally Parks on her sex ual harassment claim and your verdict must be for th e 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 hostil e work environment including a lack of bathroom

### -18- facilities, sexual jokes and innuendo, demeaning pictures and posters, vulgar language on the radio, etc.
Secon d, that such conduct was sufficiently severe o r pervasive that a reasonable person in plaintiff's c ircumstances would find the work envi ronment to be hostile or abusive as to alter Plaintiff's conditions of employment; Third, based on such conduct, Plaintiff perceived he r work environment to be hostile or abusive; and,
Fou rth, that the Defendant, Nucor-Yamato Steel Company , knew or should have known of the conduct to which p laintiff was subjected and that Defen dant 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 prepo nderance of the evidence, your verdict must be fo r Defendant and you need n ot proceed further in considering this claim.
Yo u must apply these elements to the facts surroundin g eac hPlaintiff's claims. Your verdict as to one Plaintif f should not affect your verdict as to the other.
Jt. App. at 213.

Men tioning the specific allegations of sexual harassment in th e verdict director was not improper. Cf. , Gillming , 91 F.3d at 1171 (quotin g and upholding jury instructions including specific allegations of sexual harassment). The all egations may be mentioned either in the introduction to the ju ry instructions or in the verdict director. I believe th e distr ict court's inclusion of the Plaintiffs’ allegations of sexua l harassment could have been included in Instruction No. 13 or in Instructio n No. 16 . In either case, the instructions would be appropriate. Th e ins tructions as a whole make abundantly clear to the jury that th e Plaintiff s must carry the burden of proof by a preponderance of th e evidence on all relevant issues relating to establishing sexual harassment

.

### An example of improper and misleading instructions is th e 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 th e employee's sex. The Act does not, for purposes of this laws uit, forbid any other type of discrimination, no r does i t forbid any other action or inaction by Nucor

Yamato relative to Plaintiff. The Ac t does not state that being female entitle s employees to special favorable consideration; nor is it equivalent to an affirmative action program to promote o r hir e a certain number of female employees. The Ac t requir es that a female employee not be the subject o f discriminationbecause of her sex. The Act does not see k to aff ect 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 anemployer is entitled to refuse or fail to promote or advance an employee for good cau se, poor cause, or no cause at all, so long a s the reason is not the employee's sex. You must bear in mind that an employer is entitled to make its ow n subjective business judgments, however misguided an d sho rtsighted they may appear to you, and may refuse t o promot e an employee for any reason that is no t discriminatorily

based on sex. An employer may refuse t o promote an employee who is performing poorly, or may eve n ref use to promote an adequate employee because th e employ er believes that another person could do the jo b better. It is the employer who must be satisfied wit h th e employee's performance, and unsatisfactor y performance means unsatisfactory as evaluated by th e em ployer. Your concern is not whether the promotio n decisionreflected an objective fact finder's judgment o f anemployee's abilities or whether it was a wise busines s jud gment or whether you would have done the same thin g hadyou been in the employer's shoes. You are asked onl y to decide whether the employer's refusal to promot e Plaintiff was because of her sex. Thus, if you shoul d findthat sex was not a determining factor in the refusa l -19- More over, the Defendant did not propose any proper alternativ e instructions. 3

### to promote Plaintiff, then youmust render a verdict for

Defendant on these issues eventhough you might feel the failure to promote was unreasonable, arbitrary, or unfair.
Jt. Ap p. at 224-25. The foregoing does not instruct the jury o n the law, but rather amounts to an argumentative essay. Th e district court properly rejected this instruction. -20- I believe the district court correctly and properly instructed th e jury.

A true copy.

Attest:

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