11th Cir. Pattern Jury Instr. (Civil) 4.6

No Tangible Employment Action Taken

(with Affirmative Defense by Employer)

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

Federal Civil Rights statutes that prohibit employers from discriminating against

employees in the terms or conditions of employment because of their

[race/religion/sex/national origin]. These statutes prohibit the creation of a hostile

work environment caused by harassment because of an employee’s

[race/religion/sex/national origin].

Specifically, [name of plaintiff] claims that [his/her] supervisor harassed

[him/her] because of [his/her] [race/religion/sex/national origin] and that the

harassment created a hostile work environment.

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

[describe the defendant’s defense].

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

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

evidence:

First: [Name of plaintiff]’s supervisor harassed [him/her] because

of [his/her] [race/religion/sex/national origin];

Second: The harassment created a hostile work environment for

[name of plaintiff]; and

Third: [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 “hostile work environment” created by harassment because of

[race/religion/sex/national origin] exists if:

(a) [name of plaintiff] was subjected to offensive acts or statements

about [race/religion/sex/national origin] – 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 or 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 or conditions of the person’s employment; and

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

materially altered the terms or conditions of [his/her] employment.

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

materially altered the terms or 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 conditions. 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/religion/sex/national

origin]. But discriminatory intimidation, ridicule, insults, or other verbal or

physical conduct may be so extreme that it materially alters the terms or conditions

of employment.

If you find that [name of plaintiff]’s supervisor harassed [him/her] because

of [his/her] [race/religion/sex/national origin], and that the harassment created a

hostile work environment, then you must decide whether [he/she] suffered

damages as a result. 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.

[Without Affirmative Defense: If you find that [name of plaintiff] suffered

damages because of the hostile work environment, you must decide the issue of

[his/her] compensatory damages.]

[Including Affirmative Defense: If you find that [name of plaintiff]

suffered damages because of the hostile work environment, you must decide

whether [name of defendant] has established [his/her/its] affirmative defense.

To succeed on its affirmative defense, [name of defendant] must prove each

of the following facts by a preponderance of the evidence:

First: [Name of defendant] exercised reasonable care to prevent

and promptly correct any harassing behavior because of

[race/religion/sex/national origin] in the workplace; and

Second: [Name of plaintiff] [unreasonably failed to take advantage of

preventive or corrective opportunities [name of defendant]

provided to avoid or correct the harm.] [took advantage of

[name of defendant]’s preventative or corrective

opportunities and [name of defendant] responded by taking

reasonable and prompt corrective action.]

To determine whether [name of defendant] exercised reasonable care, you

may consider whether:

(a) [name of defendant] created an explicit policy against harassment

because of [race/religion/sex/national origin] in the workplace;

(b)[name of defendant] communicated the policy to [his/her/its]

employees; and

(c) the policy provided a reasonable process for [name of plaintiff] to

complain to higher management.

[To determine whether [name of plaintiff] unreasonably failed to take

advantage of a preventive or corrective opportunity [name of defendant] provided,

you may consider, for example, whether [name of plaintiff] unreasonably failed to

follow a complaint procedure [name of defendant] provided.]

If you find that [name of defendant] established [his/her/its] affirmative

defense, you must indicate that on the verdict form, and you will not decide the

issue of [name of plaintiff]’s damages. If you find that [name of defendant] did not

establish [his/her/its] affirmative defense, you must decide the issue of [name of

plaintiff]’s compensatory 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) net lost wages and benefits 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 must determine what amount will fairly compensate [him/her] for those

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: [Name of plaintiff] also asks you to award punitive

damages. The purpose of punitive damages is not to compensate [name of plaintiff]

but, instead, to punish [name of defendant] for wrongful conduct and to deter

similar wrongful conduct. You will only reach the issue of punitive damages if you

find for [name of plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [name of plaintiff] must

prove by a preponderance of the evidence that [name of defendant] acted with

either malice or with reckless indifference toward [name of plaintiff]’s federally

protected rights. Specifically, [name of plaintiff] must show that an employee of

[name of defendant], acting in a managerial capacity, either acted with malice or

with reckless indifference to [name of plaintiff]’s federally protected rights.

There is no bright -line rule about which employees act in a managerial

capacity. You must determine whether an employee acted in a “managerial

capacity” based upon the type of authority [name of defendant] gave the employee

and the amount of discretion that the employee has in what is done and how it is

accomplished.

To show that [name of defendant] acted with malice, [name of plaintiff]

must show that an employee acting in a managerial capacity knew that federal law

prohibits discrimination and discriminated against [name of plaintiff] anyway. To

show that [name of defendant] acted with reckless indifference to [name of

plaintiff]’s federally protected rights, [name of plaintiff] must show that an

employee acting in a managerial capacity acted with serious disregard for whether

the conduct violated federal law. Either malice or reckless indifference is sufficient

to entitle [name of plaintiff] to an award of punitive damages; [name of plaintiff]

need not prove both.

An employer may not be held liable for punitive damages because of

discriminatory acts on the part of its managerial employees where the managerial

employees’ acts are contrary to the employer’s good faith efforts to comply with

the law by implementing policies and programs designed to prevent unlawful

discrimination in the workplace. However, the mere existence of policies

prohibiting discrimination does not preclude punitive damages if the policies are

ineffective.

There is no single factor that determines whether [name of defendant] acted

with malice or with reckless indifference to [name of plaintiff]’s federally

protected rights. In determining whether to award punitive damages, you may

consider factors such as: [(1) whether [name of defendant] engaged in a pattern of

discrimination toward its employees]; [(2) whether [name of defendant] acted

spitefully or malevolently]; [(3) whether [name of defendant] showed a blatant

disregard for civil legal obligations]; [(4) whether [name of defendant] failed to

investigate reports of discrimination]; [(5) whether [name of defendant] failed to

take corrective action concerning discriminatory acts or comments by its

employees]; and [(6) whether the person accused of discrimination was included in

the employer’s decision making process concerning [name of plaintiff]’s

[discharge] [denied promotion].]

If you find that punitive damages should be assessed against [name of

defendant], you may consider the evidence regarding [name of defendant]’s

financial resources in fixing the amount of such damages.]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff]’s supervisor harassed [name of plaintiff]

because of [his/her] [race/religion/sex/national origin]?

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 [name of defendant] exercised reasonable care to prevent and

promptly correct any harassing behavior in the workplace because of

[race/religion/sex/national origin]?

Answer Yes or No _____________

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

“No,” go to Question No. 5.

4. [That [name of plaintiff] unreasonably failed to take advantage of

the preventive or corrective opportunities [name of defendant] provided to

avoid or correct the harm.] [That [name of plaintiff] took advantage of the

preventive or corrective opportunities provided by [name of defendant] and

[name of defendant] responded by taking reasonable and prompt corrective

action].

Answer Yes or No _____________

If your answer is “Yes,” this ends your deliberations, and your

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

answer is “No,” go to the next question.]

5. 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.

6. 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? $_____________

7. 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 Nos. 6

or 7, this ends your deliberations, and your foreperson should sign and date

the last page of this verdict form. If you awarded damages in response to

Question Nos. 6 or 7 (or both), go to the next question.]

[8. 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: ___________________