*1 Thomson is in favor of affirmed. CAVINESS, Appellee,
Rebecca
v. COMPANY, STEEL
NUCOR-YAMATO
Appellant. Gee, Intervenors. Parks,
Sally Deborah PARKS, Appellee,
Sally
v. COMPANY, STEEL
NUCOR-YAMATO
Appellant. Gee, Intervenor.
Deborah CAVINESS, Appellant,
Rebecca
v. STEEL
NUCOR-YAMATO
COMPANY, Appellee. Gee, Parks, Intervenors.
Sally Deborah PARKS, Appellant,
Sally STEEL
NUCOR-YAMATO
COMPANY, Appellee. Gee, Intervenor.
Deborah 95-3482, 95-3583.
Nos. Appeals, Court
United States
Eighth Circuit. Sept.
Submitted 29, 1997.
Decided Jan. *2 Marshall, Jr.,
Denzil argued, Price Jones- (Richard boro, AR D. Alaniz and John K. Linker, brief), appellant/cross- appellee. Rainwater, argued, Rock,
Michael R. Little (Phillip Chamberlin, AR J. Duncan and Neil brief), on the appellee/cross-appellant. BOWMAN, BRIGHT, Before LOKEN, Judges. $50,000 damages. punitive ages and Judge.
BOWMAN, Circuit on her advised (N.Y.S) ap- Company Steel Nucor-Yamato an award of claim and sexual harassment entered judgments peals from $51,000. The Dis- damages in amount of *3 on Rebecca Caviness’s Court District plain- judgment for the entered trict Court subjected they were that Sally Parks’s claims jury’s determina- with the tiffs in accordance resulting in a illegal sexual to tions. plant the NYS steel at environment hostile conditionally they Caviness worked. where District appeal, claims the For its NYS court contending that cross-appeals, retroactively ap- ways: erred in four Court summary judgment to NYS granting in erred 1991; submit- Rights of plying the Civil Act hire, to discriminatory failure her claim of on damages punitive to claim for ting Parks’s argument asking us to her consider and instructions; jury jury; giving improper appeal prevails on its if NYS verdict, mishandling, after the NYS’s and harass- claim of sexual in favor on her her juror For her allegations of misconduct. below, we discussed For the reasons ment. contends cross-appeal, Caviness conditional and reverse remand. summary judg- granting in erred the court claim of ment to NYS on her I. to hire. failure steel employee at was an NYS’s Parks Arkansas, from 1988 to Blytheville, plant in employee for a contract II. Caviness was 1990 to Blytheville from December NYS Rights Act of 1964 Title VII of the Civil brought suit women 1991. Both November 1991, by Rights Act of was amended Civil VII, §§ 2000e to 42 U.S.C. Title under 102-166, 1071. Until 105 No Pub.L. Stat. 2000e-17, they were alleging that discrimi- 1991, only equitable remedies were vember sex, including against on the basis of nated to of under available victims discrimination that suffering sexual cumulative Prods., Landgraf v. Film USI Title VII. See It work environment. to a hostile amounted 1483, 1490, 244, 252, 114 128 S.Ct. 511 U.S. details unnecessary get into the for us (1994). of the 1991 L.Ed.2d Section harassment, but allegations of of however, Act, possible it for a now makes replete say record is that suffice it compensatory plaintiff “to recover successful jury con- could from which with evidence damages violations of punitive for certain Blythe- clude, did, plant in the NYS 1488; 247, at see Id. at 114 S.Ct. Title VII.” for decidedly harsh environment was a ville (1994). 1981a(a) § “Section also 42 U.S.C. especially employees, female monetary right relief a new on Parks, confers violation and that NYS of a persons ... who were hostile victims VII.
Title not constructive work environment but were trial, granted District Court Before prospect ly discharged, and the of dam novel to NYS Caviness’s employers.” Land ages liability for their A discriminatory failure to hire. claim of 283, 114 at 1506. graf, 511 U.S. at S.Ct. remaining claims of both jury heard considering the amendments After whether women, advisory acting only capacity in an apply pending on the should to cases effec the actions she claims because to Caviness’s 21,1991, Act, of the 1991 November tive date sex dis- the federal alleged occurred before Landgraf held that Supreme Court jury The permitted trials. laws crimination retroactively. apply § See id. does dis- jury Parks’s claim of found for NYS is, 286, 114 compensa That at 1508. at court criminatory and the failure damages are not available tory punitive (The prejudice. claim dismissed plaintiffs for of Title VII occur violations may not appealed and has not dismissal 21,1991. argues remand.) ring November before The found revisited on be applied harassment, improperly § 102 was retroac on her of sexual Parks claim tively agree. $200,000 here. We compensatory dam- awarding her A. consequence employer’s] seeable of [the dis criminatory actions.” Hukkanen v. Interna $51,000 consider the award to We first Operating tional Union Eng’rs, Hoisting Caviness on her claim sexual harassment. 101, & Portable Local No. monetary in this case “advised” (8th Cir.1993). (and In that backpay $51,000 damages award of to Caviness pay) potential front would be remedies. But included, form, according to the verdict in the absence of discharge, constructive suffering, pain, anguish, and mental all decid plaintiff subjected harassment, to sexual no edly damages. But all compensatory of Ca- egregious, matter how is not “made whole” viness’s claims arose before November equitable remedy backpay. NYS, stopped working when she *4 compensatory therefore damages before allege Caviness does not constructive plaintiffs in were available to Title VII cases. discharge, appeal but contends on that she The District Court nevertheless entered actually was discharged by NYS. It is not $51,- in for Caviness the of amount alleged clear how the discharge actual now “[pjursuant jury to the in verdicts these only part becomes not a of Caviness’s claim cases,” although specify the court did not of justification sexual harassment the but for damages equitable, whether were said com damages an award of on that claim. The punitive. pensatory, or Caviness v. Nucor- District at specifically Court trial excluded Co., J-C-92-23, Yamato Nos. Steel J-C-93- alleged evidence of Caviness’s (filed 1995). subsequent Feb. In its discharge, since she did not raise a such trial, denying order NYS’s motion for new complaint. claim in her appeal She does not Landgraf’s prohibi the court circumvented evidentiary the court’s ruling allega on her against § applying retroactively by tion discharge tions of and cannot now claim that $51,000 recharacterizing damages in “backpay” the court’s award was based Caviness, finding awarded to she “enti was discharge. Further, her actual NYS re backpay equitable tled to as a form of relief.” ceived on Caviness’s Co., Caviness v. Nucor-Yamato Steel Nos. J- hire, claim of to failure so it too was not (filed C-92-23, J-C-93-140, Aug. at 14 Order before the court. Because Caviness proved 28,1995). The court erred. employment no “concrete effect on [her] sta tus” as the result of harassment above, recovery As monetary noted suffered, she she is backpay. not entitled to damages by plaintiffs successful on claims of discrimination under VII before the $51,000 Title backpay awarded to Cavi- equitable 1991 Act was limited to forms of ness on her claim of sexual harassment is relief, backpay, such as circum- reversed. monetary equitable stances under which such relief was available were likewise limited. B. “[E]ven if unlawful discrimination was compensatory The next issue is whether proved, prior [pre-November under law 1991] damages properly were awarded Parks plaintiff a Title could VII not mone- recover jury’s finding of unlawful sexual harass- tary unless the relief discrimination was also ment. would NYS have us vacate the entire found to have some concrete effect on the award some of the com- status, plaintiffs employment as a de- such plained of occurred before the effective date promotion, compensa- nied a differential in Act, give of the 1991 and the court did not tion, Landgraf, or termination.” 511 U.S. at jury an instruction aor verdict form 254, 114 at 1491. Sexual requiring damages post-Act it to limit occurring ordinarily before November 1991 erred, agree conduct. that the court but We does not have the sort of concrete economic decline we NYS’s invitation to vacate Parks’s recovery required money effect for the damages tato and that. then leave damages exception under Title VII. The argu would be sexual harassment that resulted We first must consider the is, discharge, resignation properly preserve constructive a ment that did not NYS its plaintiff reasonably was “a fore- claim of instructional error. At the instruc- indisputable “straddle” had an conference, advised the Parks for NYS counsel tion began instruction claim—the harassment should be an that “there court distinguishes [sic] her em form which Parks terminated and a verdict continued until damages after 1991 Civil alleged in 1992. The was ployment NYS between Transcript at Parks.” damages for Mrs. Rights Act that it could award not instructed not, however, give the did Counsel only illegal occurring actions after for NYS’s have would proposed instruction that 21, 1991, court did and the verdict form November “In post-Act damages to conduct. limited damages limit based require the not a claim of instruc preserve properly order There of the unlawful conduct. on the date review, party is appellate tional error determine, anyone way without is no sufficiently pre make a only required to not $200,000in speculation, part of the pure what court, but it the district objection before cise damages awarded to Parks compensatory an alternate instruction.” propose also must illegal activity post-November Anheuser-Busch, Inc., 96 F.3d Kehoe v. think, given may We thus sustainable. be omitted). Cir.1996) (citations 1095, 1104 that the fail circumstances proposed proffer a did not Because limiting give ure to instruction waived, instruction, claim is limiting “the clearly prejudicial that plain error but was so *5 only if the district court’s reverse we will Accordingly, we it must be vacate corrected. plain error.” Id. constitute instructions damages compensatory and re the award of is, give an instruction That the failure mand for a new trial. Landgraf will warrant incorporating the rule affecting only if it is error sub trial a new C. plain, and the rights, the error is stantial fairness, integri “seriously affect[s] error $50,000 punitive Parks also was awarded judicial proceed of ty public reputation or challenges. damages, Punitive which Nichols, 1248,1252 Wright v. 80 F.3d ings.” damages available since the effec- have been Cir.1996) (8th v. Ola (quoting United States the 1991 Act to the victim of tive date of 1770, 1779, 725, 736, no, 113 S.Ct. 507 U.S. who harassment “demon- unlawful sexual (1993) (quoted case omit L.Ed.2d 508 123 [employer] engaged in a strates that Olano). ted)) (alteration in discriminatory practice or given was The instruction was indif- practices with malice or with reckless of law under statement not a correct federally rights of protected ference to the recover Landgraf, Parks cannot because aggrieved individual.” U.S.C. damages pre-November for compensatory 1981a(b)(l) (1994). § Polacco v. Curators 1991harassment. See of damages award punitive Parks’s suffers Mo., the Univ. of instructional error her from the same Cir.1994). question that this is There is no damages regard to compensatory award with and, Landgraf was decided error claim. of the “straddle” nature of the Some in this case and its the trial well before allegedly warranting an award of the actions retroactivity unequivocal, the holding is as to punitive damages occurred before the effec- But will not correct even plain. we error Act, the 1991 some after. No tive date of “prejudiced plain appeal unless error it given jury, limiting was to the [NYS], instruction specifically presumptively.” or either by Olano, proffered and none was NYS. Neverthe- at 1780. 507 U.S. S.Ct. above, less, reasons discussed specifically preju hold that NYS was We requiring The plain was error reversal.1 by the erroneous instruction. diced non-retroactivi1y employed to overcome a hold the sexual would have us Parks any that we would Court was a rule. In it is clear found the District violation," Supreme express teaching of the "continuing and affirm the violate the then Landgraf punitive damages v. USI Film compensatory Court if we so held. See award 1483, 1506, Prods., 244, 282, 511 U.S. entire course of conduct. We are not (1994) (“[TJhe compensato- any new Eighth law where the 128 L.Ed.2d familiar violation, operate ‘retrospec- ordinarily ry damages provision would concept continuing asso- issues, occurring tively’ applied if were to conduct has ciated with statutes of limitations punitive damages challenged to Parks is vacat- The award of instruction is the ver- necessary, a new trial will be ed. Because diet director for the sexual harass evidence adduced at the new trial and the ment claims. It seeks to define the elements may differ from that adduced at the first of a Title VII claim for sexual harassment trial, we do not reach claim that resulting NYS’s in a hostile work environment.2 In Parks’s evidence was insufficient to warrant 16 was struction read to the as follows: punitive damages the submission of her claim Your verdict must be for the Plaintiff jury. to the Sally Parks on her sexual harassment your
claim and verdict must be for the Plaintiff Rebecca Caviness on her sexual D. claim, following if all of the question remains whether on re elements proved by,a prepon- have been liability, mand there should be a new trial on derance of the evidence: First, damages. or we note that the First, subject Plaintiff was to a finding liability on Caviness’s sexual sexually environment, hostile work includ- stands, harassment claim but because that facilities, ing a lack of bathroom liability entirely pre-1991 Act con jokes innuendos, demeaning pictures duct, question damages shall not be. posters, vulgar language radio, on the law, revisited on remand. As a matter of cetera; et damages is not entitled to recover Second, that such conduct was sufficient- respect on this claim. to Parks’s With ly pervasive severe that a reasonable claim, “straddle” we conclude that the liabili person in Plaintiffs circumstances would ty damages factually issues are so inter find the work environment to be hostile or twined the new trial must both address *6 abusive as to alter Plaintiffs conditions of Brasher, Hallberg issues. v. See 679 F.2d employment; (8th 751, Cir.1982); 758 see also American Extrusions, Inc., Equip. v. Road Co. 29 F.3d Third, conduct, upon based such Plaintiff (8th Cir.1994). 341, Accordingly, 345 3n. perceived her work environment to be hos- , to Parks we vacate the of the abusive; tile or and . entirety. District in its Court Fourth, Defendant, Nucor- Company,
Yamato Steel knew or should III. have known the conduct to which Plain- subjected tiff was and that Defendant NYS raises several additional issues in its appropriate failed to take action to end the appeal. remanding Because we this are ease subjected. conduct to which Plaintiff was trial, challenge for a new to the District any If of the above elements have not handling allegations improper Court’s proved by preponderance been of the juror contact third-party with a is moot. We evidence, your verdict must be for the briefly remaining will address conten- you proceed Defendant and need riot fur- tions, however, all of which concern instruc- considering in ther this claim. may reappear tional error that in the new error, Having apply trial. considered the claims of You must these elements to the thoughts. surrounding we offer these facts each Plaintiffs claims. 21, 1991.”) added). (emphasis formulating before November of the model instructions when draft harassing case.) conduct in this case straddled the given some of the in instructions this Act, date of the effective 1991 so while it was These instructions are drafted committee. sense, "continuing” in that it nevertheless con- participates No member of this Court in the work sists of discrete acts whose dates of occurrence promulgate of that committee. We do not instructions, these pinpointed certainty. can be with reasonable 'approve' of the model “[w]e they individually litigated instructions are appears misconception, 2. There to be some evi- upheld by case-by-case this court on a ba stages dent at various of the trial and also on Ali, 710, sis.” United 63 F.3d 714 n. 3 States v. appeal, concerning promul- this Court’s role in (8th 995). C ir.1 gating approving Eighth or Circuit Model (The Jury Instructions. District Court relied on a 1222 was, sought.”). There how- transfers she Plaintiff should not as to one
Your verdict
ever,
countervailing evidence adduced
to the other.
some
your verdict as
affect
examples of harassment the
as to some of the
Transcript at 1232-33.
16,
might
which
court cites
Instruction
im-
the instruction
NYS first asserts
in-
included in an
appropriately have been
by enu-
on the evidence
properly commented
struction.
incidents and condi-
merating
of the
some
Parks and
to which
employment
tions of
say
much more about
We hesitate
subjected.
have been
claimed to
issue,
recognize that a district
this
as we
significant
court has
discretion
formulate
long
the rule that “under
It has
trial,
v.
instructions in a
see Slathar
judge may in
trial
practice the
the Federal
(8th
415,
Trucking Corp., 78 F.3d
418
Sather
fairly
charge
on the evidence
his
comment
—
denied,
U.S. -,
Cir.),
117 S.Ct.
cert.
clearly to define the
impartially, more
(1996),
179,
and such deci
1223 Inc., 559, Indus., The District Court Caviness F.2d held McGregor Elec. Court). Cir.1992)) prove prima facie case that NYS (alteration could not (8th by this to hire her on account of her sex. On failed specific require- missing the 16 is Instruction appeal, contends that she demon- Caviness that, plaintiffs, to find for the in order ments genuine issues of material fact the strated conduct com- find that the jury must the prima case so as to of her facie elements and Cavi- on Parks’s plained of was based summary judg- for NYS’s motion survive unwelcome. This that it sex and was ness’s ment. Nonetheless, crystal clear it is was error. many illegal of the record that
from the un prima make out a facie case To case were taken be- alleged in this actions for failure der Title VII women, there and plaintiffs were cause the “1) hire, prove plaintiff must able to the be “sexual” are references 2) class; protected a member of a that she is instructions, including one throughout the job applied qualified and for that she was Further, creduli- it stretches Instruction 16. employer seeking appli for which the was jury might that a reasonable ty to conceive 3) 4) cants; rejected; and that she was thought Caviness welcomed Parks and have employer rejecting plaintiff contin after the conduct detailed the from their co-workers qualifi applicants plaintiffs ued to seek Thus, we consid- at trial. when the evidence Sueur, County Le cations.” Krenik v. whole, we do er the instructions Cir.1995). is no F.3d There constitute re- missing believe the elements third ele dispute here about the first and Forest- May v. Arkansas error. See versible prima is a case: Caviness ments facie (8th Cir.1993) Comm’n, F.2d ry class, female, protected and a member of a (“[A] does not single instruction erroneous District Court did not hire her. The NYS charge as a whole if require reversal concluded, response -argues in and NYS to the fairly adequately submits issue cross-appeal, that cannot show Caviness Nevertheless, should the omissions jury.”). element— dispute about the second a fact on remand. in the be remedied instructions joba applied qualified “that she was seeking appli employer for which IV. cants,” applied for she never id.—because conditionally cross-appeals from jobs at issue. in favor of grant of employee while a contract Caviness was for discriminato- Title VII NYS on her claim plant, first Dan- she worked at the have held ry to hire. Because we failure Steel, for Scheuck iels Construction then damages on her claim of she is not entitled always the direct control but she was under have reversed harassment and employees. She supervision of NYS District won money judgment that she job openings at bids for two submitted Court, up appeal. her we now take complete application plant, did not but *8 jobs, bundle tur- the that of judgment either. One of summary grant of review the We ner, employee who had to a male NYS went novo, as the applying the same standard de (in fact, no one it a bid- Management, not submitted See District Court. Chance (8th job); the male 1107, 1110 bid for the Dakota, except Caviness 97 F.3d Inc. v. South — NYS employee whom -, question was a new denied, Cir.1996), U.S. cert. — Caviness, job. who had L.Ed.2d - (1997). fill the sought out to willWe job temporarily doing the bundle turner are that there only if we are convinced affirm officiallybecame it months at the time Cavi for six fact on genuine issues of material no transferee. helped the job opening, train a claim and that NYS discrimination ness’s sex job previous- inspector position, The other judgment a matter of law. is entitled employee, was 56(c). ly by the transferred id.; held view the We Fed.R.Civ.P. See suggestion of eliminated, apparently at to Caviness light most favorable facts in the A few months inspector all-male crew. of all reasonable give her the benefit stopped later, and two months after City Des inferences. See Smith Cir.1996). from outside working plant, at the man Moines, 1466, 99 F.3d Gillming erly See v. Simmons In fill a in- critical. company was hired to resurrected dus., (8th Cir.1996). 1168, 1171 spector position. case, In this the district court’s in- that Caviness did not contends NYS following: structions included the apply job, “bidding” because for either employees. jobs open only to NYS We No. 13: Instruction conclude, however, for a is fact-finder employer It is unlawful for an to inten- whether Caviness’s status as a con decide tionally promote any refuse to or transfer working plant, tract in the under the laborer person against or otherwise discriminate supervision employees, gave her the of NYS any person respect compensation, not, bidding jobs. if option of Even it did tenure, conditions, privileges employ- question there remains the factual whether person’s ment because of such sex. The qualify applications. Caviness’s bids would ease, Parks, Sally Plaintiff in claims argues that Defendant Nucor-Yamato NYS also that Caviness cannot es- Steel Co. intentionally against any question about discriminated her be- tablish fact the fourth by failing her sex inspec- element of her at least as to the cause of to transfer or promote position, company positions her to certain within its tor because the did not job, workplace. applicants continue to seek for the but The Defendant denies this conclude, altogether. charge. Specifically it that it eliminated it We how- claims did ever, job’s reappearance plaintiff a few or transfer question qualified a fact she was not the most months later raises relevant candidate promotions proof sought. to Caviness’s of her claim. or transfers she your responsibility It is to decide whether We believe the District Court erred in proven against the Plaintiff has her claim holding genuine issues of material fact preponderance the Defendant regarding do not exist Caviness’s claim of evidence. Accordingly, failure to hire. It is employer also unlawful for an summary judgment we reverse the for NYS employees subjected allow its to be to a on this claim and remand for trial. sexually workplace. Sally hostile Plaintiff Parks and Plaintiff Rebecca Caviness both V. claim that Defendant Nucor-Yamato Steel (1) monetary To summarize: award to subjected sexually Co. them to such a hos- claim Caviness on her of sexual harassment workplace. tile The Defendant denies (2) reversed; is for Parks on charges. your responsibility these It is vacated; her claim of sexual harassment decide whether Plaintiff Plain- Parks and (3) grant for tiff proven Caviness have their claims on Caviness’s Title VII claim of discriminato- against by preponderance the Defendant (4) reversed; ry failure to hire is of the evidence. case is for a remanded new trial on Parks’s Jt.App. at 200. claim of sexual harassment and for trial on Caviness’s Title claim discriminatory VII Instruction No. 17: failure to hire. determining In whether a reasonable person plaintiffs’ in the circumstances BRIGHT, Judge, concurring would find the work environment *9 separately. abusive, you to be hostile or must look at I concur in disagree, the result. I howev- all the circumstances. The circumstances er, with the criticism may frequency of the district court’s include the of the discrimi- view, conduct; my natory instructions. In severity; the trial court its whether it properly jury. physically instructed the threatening humiliating, When review- was or instructions, ing jury offensive; merely this court must view or whether unreason- whole, the instructions a ably and if the in- plaintiffs’ interfered with the work unduly structions as a whole performance; are fair and not and the effect on suggestive, being psychological we should refrain from well-being. single ov- No factor to end the appropriate action to take failed environ- find a work to required order is subjected. plaintiff was conduct to which or abusive. hostile ment not any above have If of the elements Jt.App. at the by preponderance of proved been 16: No. Instruction evidence, be for Defen- your verdict must for the Plaintiff you proceed be need not further must Your verdict dant and considering this claim. her sexual harassment Sally Parks on must be for the your verdict the apply claim and these elements to You must sexual on her surrounding Plaintiffs claims. Plaintiff Rebecca each facts following claim, not if all of the should as to one Plaintiff Your verdict by prepon- other. proved your verdict as to the have been affect elements of the evidence: derance Jt.App. at 213. subject to a
First, was allegations of Mentioning specific that Plaintiff sexu the includ- environment not sexually hostile in the director was work verdict al facilities, sexual at 1171 Cf., Gillming, 91 F.3d improper. of bathroom ing a lack innuendo, in demeaning pictures jury instructions upholding and jokes (quoting and radio, allegations of harass language cluding specific on the sexual vulgar posters, ment). may allegations be mentioned The etc. jury instruc to the in the introduction either Second, was sufficient- such conduct I the believe or in the verdict director. tions that a pervasive reasonable ly severe or of Plaintiffs’ alle court’s inclusion the district would circumstances plaintiffs person could have been gations sexual harassment of or to be environment hostile find the work or in Instruc in Instruction No. 13 included of Plaintiffs conditions toas alter abusive instructions In either the tion No. 16. employment; as a instructions appropriate. be The would conduct, Plaintiff Third, such based abundantly the to clear whole make hos- to environment be perceived her work carry proof of the burden must the Plaintiffs and, abusive; tile or all evidence on by preponderance the Defendant, establishing relating Fourth, to the Nucor- issues relevant Moreover, did Defendant knew or should Company, harassment. Yamato Steel instruct any proper alternative plain- propose to which not conduct of the have known ions.3 subjected and that Defendant tiff was mind that employee’s must bear in sex. You misleading in- example improper and
3. An subjec- its own proffered employer entitled to Instruc- is make an is the defendant's structions misguided judgments, however tion No. 7: tive business’ you, they may appear brings shortsighted to Plaintiff under which The Act any lawsuit, Rights employee Act of promote the Civil may an Title VII refuse amended, discriminatorily forbids discrimination based not that is reason employee's employee against because not, an may promote an employer refuse An sex. purposes of this Act does sex. The lawsuit, may poorly, or performing employee who is type any other discrimina- forbid employee adequate promote an even refuse tion, any other forbid action nor does it employer that another believes because by relative Plaintiff. inaction Nucor-Yamato job It is the em- person could do the better. being female does state The Act employ- ployer who must be satisfied special favorable consid- employees to entitles eration; perfor- unsatisfactory performance, ee's equivalent to an affirmative is it nor unsatisfactory as evaluated means mance a certain promote or hire program action not whether employer. is Your concern employees. The Act re- number of female objective an promotion decision reflected employee sub- not be the quires that a female employee’s abili- anof fact finder’s her The because of sex. ject of discrimination judg- business it was a wise whether ties or employer decisions to affect does not seek Act you done have or whether would ment employer’s assess- individual based on employer's you thing had same abilities, capabilities, or person’s of a ments whether to decide are asked You shoes. employer’s needs. potential, or the Plaintiff employer’s refusal to employer principle is that basic Thus, you find should if of her sex! promote or fail to advance to refuse or entitled *10 determining factor in the cause, was not cause, that sex poor noor employee good Plaintiff, you must then all, not the refusal long the reason is so cause correctly I district court believe the jury.
properly instructed MAYARD, Appellant,
Elsie Marie Joy HOPWOOD;
Tamara Kernie Beam
Miller; Terry Hyde, Defendants, Meyer; Wright;
Dennis John Karsten
Winger, Appellees.
No. 95-3989. Appeals,
United States Court of
Eighth Circuit.
Submitted Oct. 1996.
Decided Jan. Erlinder, MN, Paul,
Carl Peter argued, St. appellant. Hendrickson, Paul, Gerald Thomas St. MN, argued, appellees. MAGILL, BRIGHT,
Before MURPHY, Judges. Circuit MAGILL, Judge. Mayard brought
Elsie this 42 U.S.C. § against Paul, 1983 action officers of the St. Minnesota, police department. Mayard Jt.App. render verdict for Defendant on these foregoing issues at 224-25. The does not in- law, though you might struct the an on the pro- even but rather amounts to feel the failure to argumentative essay. prop- unreasonable, The district court arbitrary, mote was or unfair. erly rejected this instruction.