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 instructions to the jury for abuse of discretion.
Niemiec v. Union Pac. R.R. Co.,
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]
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the matter objected to and the grounds for the objection.”
Allen v. Entergy Corp.,
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,
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 that salary disparity was discriminatory. After Bauer made her objection, the district court quoted the comment to the model instruction, noting
Walker v. AT & T Technologies,
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.,
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,
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,
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,
The judgment of the district court is affirmed.
Notes
. If a case includes claims under both Title VII and the EPA, a business-judgment instruction is appropriate.
Wolff v. Brown,
. Bauer's ultimate argument on appeal — that the business-judgment instruction 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,