11th Cir. Pattern Jury Instr. (Civil) 4.4

Hostile Work Environment – Co-worker Harassment

(Separate Liability for Public Body and Individual Supervisors)

In this case, [name of plaintiff] claims that [name of defendant], while acting

“under color” of state law, intentionally discriminated against [name of plaintiff]

because of [his/her] [race/sex] in violation of [name of plaintiff]’s constitutional

rights under the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution.

[Name of defendant] denies [name of plaintiff]’s claims and asserts that

[describe the defendant’s defense].

The Fourteenth Amendment’s Equal Protection Clause prohibits

discrimination against public employees on the basis of [race/sex]. It also prohibits

creating a [racially/sexually] hostile work environment.

[The law that applies to [name of plaintiff]’s claims against [name of

individual defendant] is different from the law that applies to [his/her] claim

against [name of city], and you must consider each claim separately.]

First, I will explain the law you must apply to decide [name of plaintiff]’s

claim against [name of individual defendant].

To succeed on [his/her] claim against [name of individual defendant], [name

of plaintiff] must prove each of the following facts by a preponderance of the

evidence:

First: [Name of plaintiff] was harassed because of [his/her]

[race/sex];

Second: The harassment created a hostile work environment for

[name of plaintiff];

Third: [Name of individual defendant] had supervisory authority

over [name of plaintiff] in the terms and conditions of

[his/her] employment;

Fourth: [Name of individual defendant] knew about the hostile work

environment;

Fifth: [Name of individual defendant] acted with deliberate

indifference in not taking prompt remedial action to eliminate

the hostile work environment;

Sixth: [Name of individual defendant]’s actions were “under color”

of state law; and

Seventh: [Name of plaintiff] suffered damages because of the hostile

work environment.

[In the verdict form that I will explain in a moment, you will be asked to

answer questions about these factual issues.]

A [racially/sexually] “hostile work environment” exists if:

(a) [name of plaintiff] was subjected to [racially/sexually] offensive

acts or statements – even if they were not specifically directed at

[him/her];

(b) [name of plaintiff] did not welcome the offensive acts or

statements, which means that [name of plaintiff] did not directly or

indirectly invite or solicit them by [his/her] own acts or statements;

(c) the offensive acts or statements were so severe or pervasive that

they materially altered the terms and conditions of [name of

plaintiff]’s employment;

(d) a reasonable person – not someone who is overly sensitive –

would have found that the offensive acts or statements materially

altered the terms and conditions of the person’s employment; and

(e) [name of plaintiff] personally believed that the offensive acts or

statements materially altered the terms and conditions of [his/her]

employment.

To determine whether the conduct in this case was “so severe or pervasive”

that it materially altered the terms and conditions of [name of plaintiff]’s

employment, you should consider all the circumstances, including:

(a) how often the discriminatory conduct occurred;

(b) its severity;

(c) whether it was physically or psychologically threatening or

humiliating; and

(d) whether it unreasonably interfered with [name of plaintiff]’s work

performance.

A “material alteration” is a significant change in condition. Conduct that

amounts only to ordinary socializing in the workplace does not create a hostile

work environment. A hostile work environment will not result from occasional

horseplay, [sexual flirtation,] offhand comments, simple teasing, sporadic use of

offensive language, or occasional jokes related to [race/sex]. But discriminatory

intimidation, ridicule, insults, or other verbal or physical conduct may be so

extreme that it materially changes the employment terms and conditions.

For the first and second elements, you must decide whether [harasser],

[name of plaintiff]’s co- worker, created a hostile work environment because of

[name of plaintiff]’s [race/sex].

For the fourth and fifth elements, you may hold [name of individual

defendant] responsible for the hostile work environment only if [name of plaintiff]

proves by a preponderance of the evidence that [name of individual defendant]

knew about the hostile work environment but permitted it to continue by failing to

take prompt action to eliminate it. If you find that the harassment was so

widespread and obvious that [name of individual defendant] should have been on

notice of the need to act, then you may find that [name of individual defendant]

“knew” about the hostile work environment. And if you find that [name of

individual defendant] knew about the hostile work environment but failed to take

prompt action to stop it, then you may find that [name of individual defendant]

acted with deliberate indifference in not taking prompt remedial action to eliminate

the hostile work environment.

For the seventh element, you must decide whether [name of plaintiff]

suffered damages because of the hostile work environment. If the damages would

not have existed except for the hostile work environment, then you may find that

[name of plaintiff] suffered those damages because of the hostile work

environment.

[To be used when the parties stipulate that defendants acted “under color” of

state law: The parties have agreed that [name of individual defendant] acted “under

color” of state law so you should accept that as a proven fact.]

[To be used when the parties dispute whether the defendants acted “under

color” of state law: For the third and sixth elements, you must also decide whether

[name of individual defendant] had supervisory authority over [name of plaintiff]

and whether [he/she] acted “under color” of state law.

A government official acts “under color” of law when [he/she] acts within

the limits of lawful authority. A government official also acts under color of law

when [he/she] claims to be performing an official duty but [his/her] acts are outside

the limits of lawful authority and abusive in manner, or [he/she] acts in a way that

misuses [his/her] power and is able to do so only because [he/she] is an official.]

To find that [name of individual defendant] acted “under color” of state law,

you must also find that [name of individual defendant] had supervisory authority

over [name of plaintiff] in the terms and conditions of [his/her] employment and

that [name of individual defendant] abused or misused that authority by allowing

[name of plaintiff] to be subjected to a hostile work environment because of

[his/her] [race/sex].]

Now I will explain the law you must apply to decide [name of plaintiff]’s

claims against [name of city].

To succeed on [his/her] claim against [name of city], [name of plaintiff]

must prove each of the following facts by a preponderance of the evidence:

First: [Name of plaintiff] was subjected to a hostile work

environment because of [his/her] [race/sex];

Second The hostile work environment was the result of a “policy or

custom” of [name of city]; and

Third: [Name of plaintiff] suffered damages because of the hostile

work environment.

[If there are no individual defendants, insert “hostile work

environment” paragraphs here.]

A “policy or custom” includes a:

(a) rule or regulation enacted, adopted, or ratified by [name of city];

(b) policy statement or decision that [name of city]’s policymakers

made; or

(c) practice or course of conduct that is so widespread that it has

acquired the force of law – even if the practice has not been

formally approved. You may find that a “policy or custom” existed

if there was a practice that was so persistent, widespread, or

repetitious that [name of city]’s policymaker[s] either knew about

it, or should have known about it.

[Name of policymaker] is [name of city]’s “policymaker.”

If you find that [name of plaintiff] has proved each element of [his/her]

claim against either [names of individual defendants], [name of city], or both, you

must decide the issue of [name of plaintiff]’s damages.

When considering the issue of [name of plaintiff]’s compensatory damages,

you should determine what amount, if any, has been proven by [name of plaintiff]

by a preponderance of the evidence as full, just and reasonable compensation for

all of [name of plaintiff]’s damages as a result of the hostile work environment, no

more and no less. Compensatory damages are not allowed as a punishment and

must not be imposed or increased to penalize [name of defendant]. Also,

compensatory damages must not be based on speculation or guesswork.

You should consider the following elements of damage, to the extent you

find that [name of plaintiff] has proved them by a preponderance of the evidence,

and no others:

(a) lost wages and benefits from the date of [discharge/denied

promotion] to the date of your verdict; and

(b) emotional pain and mental anguish.

To determine the amount of [name of plaintiff]’s net lost wages and benefits,

you should consider evidence of the actual wages [he/she] lost and the monetary

value of any benefits [he/she] lost.

To determine whether and how much [name of plaintiff] should recover for

emotional pain and mental anguish, you may consider both the mental and physical

aspects of injury – tangible and intangible. [Name of plaintiff] does not have to

introduce evidence of a monetary value for intangible things like mental anguish.

You will determine what amount fairly compensates [him/her] for [his/her] claims.

There is no exact standard to apply, but the award should be fair in light of the

evidence.

[Mitigation of Damages: You are instructed that any person who claims

damages as a result of an alleged wrongful act on the part of another has a duty

under the law to “mitigate” those damages. For purposes of this case, the duty to

mitigate damages requires [name of plaintiff] to be reasonably diligent in seeking

substantially equivalent employment to the position [he] [she] held with [name of

defendant]. To prove that [name of plaintiff] failed to mitigate damages, [name of

defendant] must prove by a preponderance of the evidence that: (1) work

comparable to the position [name of plaintiff] held with [name of defendant] was

available, and (2) [name of plaintiff] did not make reasonably diligent efforts to

obtain it. If, however, [name of defendant] shows that [name of plaintiff] did not

make reasonable efforts to obtain any work, then [name of defendant] does not

have to prove that comparable work was available.

If you find that [name of defendant] proved by a preponderance of the

evidence that [name of plaintiff] failed to mitigate damages, then you should

reduce the amount of [name of plaintiff]’s damages by the amount that could have

been reasonably realized if [name of plaintiff] had taken advantage of an

opportunity for substantially equivalent employment.]

[Punitive Damages: To be used only for individual -capacity claims against

individual defendants: [Name of plaintiff] also claims that [name of individual

defendant]’s acts were done with malice or reckless indifference to [name of

plaintiff]’s federally protected rights, which would entitle [him/her] to punitive

damages in addition to compensatory damages. These damages are a punishment

for [name of defendant] and as a deterrent to others. [Name of plaintiff] must prove

by a preponderance of the evidence that [he/she] is entitled to punitive damages.

You will only reach the issue of punitive damages if you find that [name of

plaintiff] has proved the elements of [his/her] claim against [name of individual

defendant] and you award [name of plaintiff] compensatory damages. You may not

assess punitive damages against [name of city].

A person acts with malice if the person’s conduct is motivated by evil intent

or motive. A person acts with reckless indifference to the protected federal rights

of another person when the person engages in conduct with a callous disregard for

whether the conduct violates those protected federal rights.

If you find that punitive damages should be assessed, you may consider the

evidence regarding [name of defendant]’s financial resources in fixing the amount

of such damages, [You also may assess punitive damages against one or more of

the individual defendants, and not others, or against more than one individual

defendant in different amounts.]]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff] was harassed because of [his/her]

[race/sex]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

2. That the harassment created a hostile work environment for [name

of plaintiff]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

3. That [individual defendant] had supervisory authority over [name

of plaintiff] in the terms and conditions of [name of plaintiff]’s employment?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

4. That [individual defendant] knew about the hostile work

environment?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

5. That [individual defendant] acted with deliberate indifference in not

taking prompt remedial action to eliminate the hostile work environment?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

[6. That [individual defendant]’s actions were “under color” of state

law?

Answer Yes or No _____________]

[7. That the hostile work environment was the result of a “policy or

custom” of [name of city]?

Answer Yes or No _____________]

[If you answered “No” to both Questions No. 6 and 7, this will end

your deliberations, and your foreperson should go to the end of this verdict

form to sign and date it. If you answered “Yes” to either Question No. 6 or 7

(or both), go to the next question.]

8. That [name of plaintiff] suffered damages because of the hostile

work environment?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

9. That [name of plaintiff] should be awarded damages to compensate

for a net loss of wages and benefits to the date of your verdict?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $_____________

10. That [name of plaintiff] should be awarded damages to

compensate for emotional pain and mental anguish?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $_____________

If you did not award damages in response to either Question No. 9 or

Question No. 10, this will end your deliberations, and your foreperson

should go to the end of this verdict form to sign and date it. If you awarded

damages in response to Question No. 9 or Question No. 10 (or both), go to

the next question.

11. That punitive damages should be assessed against [name of

defendant]?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $_____________

SO SAY WE ALL.

___________________________

Foreperson’s Signature

DATE: ___________________