IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



KERRY D. OGDEN,
Plaintiff, No. C 96-4116-MWB
vs.

PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

WAX WORKS, INC.,
Defendant.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF CLAIMS AND DEFENSES

NO. 4 - DUTY OF JURORS

NO. 5 - ORDER OF TRIAL

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY OF WITNESSES

NO. 8 - STIPULATED FACTS

NO. 9 - DEPOSITIONS

NO. 10 - INTERROGATORIES

NO. 11 - OBJECTIONS

NO. 12 - BENCH CONFERENCES

NO. 13 - NOTE-TAKING

NO. 14 - BURDEN OF PROOF

NO. 15 - ADMONITION

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - PLAINTIFF'S CLAIMS

NO. 4 - HOSTILE ENVIRONMENT HARASSMENT

NO. 5 - QUID PRO QUO HARASSMENT

NO. 6 - RETALIATION

NO. 7 - CONSTRUCTIVE DISCHARGE

NO. 8 - DAMAGES--IN GENERAL

NO. 9 - DAMAGES--ACTUAL

NO. 10 - DAMAGES--PUNITIVE

NO. 11 - DELIBERATIONS



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE

The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

Plaintiff Kerry Ogden has brought claims against her former employer, defendant Wax Works, Inc, arising from alleged sexual harassment during her employment. Ms. Ogden was the manager of two businesses owned by Wax Works, the Disc Jockey, a record store located in the Southern Hills Mall in Sioux City, Iowa, and Reel Collections, a video store that was formerly located in the same mall. Ms. Ogden terminated her employment with Wax Works on September 9, 1995.

Ms. Ogden alleges that she was subjected to sexual harassment by a former district manager of Wax Works, Robert Hudson, from approximately August of 1994 until she terminated her employment in 1995. Ms. Ogden alleges two kinds of sexual harassment. She alleges, first, creation by Mr. Hudson of a sexually hostile work environment and, second, quid pro quo harassment, which is a demand for sexual favors in return for employment benefits or to prevent adverse employment action. She also alleges that Wax Works retaliated against her for opposing the alleged harassment. Finally, she alleges that she was "constructively discharged" by Wax Works' conduct, that is, that Wax Works' actions were intended to force her to quit by making her working conditions intolerable.

Wax Works denies Ms. Ogden's claims. Wax Works also claims that Ms. Ogden failed to complain to the company of any harassment, and that the company took reasonable care to protect Ms. Ogden and its other employees from any harassing conduct.

You will be asked to resolve these disputes between the parties.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS AND DEFENSES

To help you follow the evidence, here is a brief summary of the elements of Ms. Ogden's claims and Wax Works' defenses.

1. Sexually hostile environment

To win her claim of a sexually hostile work environment, Ms. Ogden must prove each of the following elements by the greater weight of the evidence:

One, Ms. Ogden was subjected to sexually offensive conduct or conditions imposed by Robert Hudson;

Two, such conduct was based on Ms. Ogden's sex or gender;

Three, such conduct was unwelcome;

Four, such conduct was sufficiently severe or pervasive that a reasonable person in Ms. Ogden's position would find her work environment sexually hostile or abusive; and

Five, at the time such conduct occurred, and as a result of such conduct, Ms. Ogden believed her work environment to be sexually hostile or abusive.

If Ms. Ogden has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of a sexually hostile work environment. However, if you find that Ms. Ogden has proved all of these elements by the greater weight of the evidence, then you will consider whether Wax Works has proved both elements of the following affirmative defense by the greater weight of the evidence:

One, Wax Works exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

Two, Ms. Ogden unreasonably failed to take advantage of any preventive or corrective opportunities provided by Wax Works or to avoid harm otherwise.

If Wax Works has failed to prove both elements of this affirmative defense, and Ms. Ogden has proved all of the elements of her claim of a sexually hostile environment, then Ms. Ogden is entitled to damages in some amount on her hostile environment claim. However, if Wax Works has proved both elements of its affirmative defense, you must find in favor of Wax Works on this claim. This affirmative defense is only good against Ms. Ogden's hostile environment claim, not against her quid pro quo or retaliation claims.

2. Quid pro quo harassment

To win her claim of quid pro quo sexual harassment, Ms. Ogden must prove each of the following elements by the greater weight of the evidence:

One, Ms. Ogden was subjected to requests from Robert Hudson for sexual relations;

Two, such conduct was unwelcome;

Three, such conduct was based on sex or gender;

Four, Robert Hudson withheld an employment benefit; and

Five, Ms. Ogden's rejection of Mr. Hudson's requests for sexual relations was a motivating factor in Mr. Hudson's decision to withhold an employment benefit.

If Ms. Ogden has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of quid pro quo sexual harassment.

3. Retaliation

To win her claim of retaliation, Ms. Ogden must prove the following three essential elements by the greater weight of the evidence:

One, Ms. Ogden opposed sexual harassment;

Two, Wax Works subsequently took adverse employment action against Ms. Ogden; and

Three, Ms. Ogden's opposition to sexual harassment was a motivating factor for the adverse employment action taken by Wax Works.

If Ms. Ogden has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of retaliation. However, if you find that Ms. Ogden has proved all of these elements by the greater weight of the evidence, then you will consider whether Wax Works has proved by the greater weight of the evidence that it would have taken the same actions concerning Ms. Ogden regardless of her opposition to sexual harassment. You need not be concerned with the effect of your determination of whether Wax Works would have taken the same actions concerning Ms. Ogden regardless of her opposition to sexual harassment; the effect of your determination on this question is for me to decide.

4. Constructive discharge

If you find in Ms. Ogden's favor on her sexually hostile environment claim, her quid pro quo harassment claim, her retaliation claim, or any combination of those claims, you will also consider her claim that Wax Works' actions caused her constructive discharge from her employment. To win her claim of constructive discharge, Ms. Ogden must prove the following three essential elements by the greater weight of the evidence:

One, Wax Works made Ms. Ogden's working conditions intolerable.

Two, Ms. Ogden's sex or gender or her opposition to sexual harassment was a motivating factor in Wax Works' actions.

Three, Ms. Ogden's quitting her job was a reasonably foreseeable result of Wax Works' actions.

If Ms. Ogden has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of constructive discharge.

This is only a preliminary outline of the elements of Ms. Ogden's claims and Wax Works' defenses. At the end of the trial, I will give you final written instructions that explain these claims, and Wax Works' defenses to them, in greater detail. Because they are more detailed, those final instructions govern on the elements of and defenses to Ms. Ogden's claims.



PRELIMINARY INSTRUCTION NO. 4 - DUTY OF JURORS

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, the defendant is a corporation. The mere fact that a party is a corporation does not mean that it is entitled to any greater or lesser consideration by you. All persons, including individuals and corporations, stand equal before the law, and are entitled to the same fair consideration by you.

When a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by the acts and declarations made while acting within the scope of the authority delegated to the employee by the corporation, or within the scope of the employee's or agent's duties as an employee or agent of the corporation.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.



PRELIMINARY INSTRUCTION NO. 5 - ORDER OF TRIAL

The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendant's lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiff will then present evidence and witnesses and the defendant may cross-examine. Following the plaintiff's case, the defendant may present evidence and witnesses and the plaintiff may cross-examine. Following the defendant's case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.



PRELIMINARY INSTRUCTION NO. 6 - DEFINITION OF EVIDENCE

You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.



PRELIMINARY INSTRUCTION NO. 7 - CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.



PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS

The plaintiff and defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.



PRELIMINARY INSTRUCTION NO. 9 - DEPOSITIONS

Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing.



PRELIMINARY INSTRUCTION NO. 10 - INTERROGATORIES

During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.



PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS

From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.



PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES

During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 13 - NOTE-TAKING

If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 14 - BURDEN OF PROOF

In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. Plaintiff Kerry Ogden has the burden of proving her claims of a sexually hostile environment, quid pro quo harassment, retaliation, and constructive discharge by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.



PRELIMINARY INSTRUCTION NO. 15 - ADMONITION

You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 9th day of November, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE





FINAL INSTRUCTION NO. 1 - INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial or during trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.



FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES

In Preliminary Instruction No. 7, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.



FINAL INSTRUCTION NO. 3 - PLAINTIFF'S CLAIMS

Plaintiff Kerry Ogden alleges that she was subjected to sexual harassment by the former district manager of defendant Wax Works, Robert Hudson, from approximately August of 1994 until she terminated her employment in 1995. Ms. Ogden has brought four claims against Wax Works, Inc., arising from that alleged sexual harassment. She alleges (1) that Mr. Hudson created a sexually hostile work environment; (2) that Mr. Hudson engaged in quid pro quo harassment, which is a demand for sexual favors in return for employment benefits or to prevent adverse employment action; (3) that Wax Works retaliated against her for complaining about the alleged harassment; and (4) that she was "constructively discharged" by Wax Works' conduct, that is, that Wax Works' actions were intended to force her to quit by making her working conditions intolerable. You will consider Ms. Ogden's claim of a constructive discharge only if you find in Ms. Ogden's favor on one or more of her claims of a sexually hostile environment, quid pro quo harassment, or retaliation.

Wax Works denies each of Ms. Ogden's claims and has also asserted defenses that you must consider in your deliberations. I will explain each of Ms. Ogden's claims, and Wax Works' defenses to them, in greater detail in the instructions that follow.



FINAL INSTRUCTION NO. 4 - HOSTILE ENVIRONMENT HARASSMENT

Ms. Ogden's first claim alleges that Mr. Hudson created a sexually hostile work environment. To win her claim of a sexually hostile work environment, Ms. Ogden must prove each of the following elements by the greater weight of the evidence:

One, Ms. Ogden was subjected to sexually offensive conduct or conditions imposed by Robert Hudson.

Kerry Ogden alleges that the conduct of Mr. Hudson that created a sexually hostile environment included one or more of the following: subjecting Ms. Ogden to unwelcome touching or fondling; verbal abuse of a sexual or sexist nature; sexually suggestive or obscene or insulting comments or acts; asking Ms. Ogden to come to his house or motel room or to go out with him; verbal abuse following Ms. Ogden's refusal to go out with him or to consent to his touching, fondling, or requests for sexual favors.



Two, such conduct was based on Ms. Ogden's sex or gender.

Three, such conduct was unwelcome.

Conduct is "unwelcome" if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.



Four, such conduct was sufficiently severe or pervasive that a reasonable person in Ms. Ogden's position would find her work environment sexually hostile or abusive.

Whether an environment is sufficiently hostile or abusive must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. However, no single factor is required in order to find a work environment sexually hostile or abusive. Federal anti-harassment law does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. Therefore, simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to sexual harassment in the form of creation of a sexually hostile environment.



Five, at the time such conduct occurred, and as a result of such conduct, Ms. Ogden believed her work environment to be sexually hostile or abusive.

If Ms. Ogden has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of a sexually hostile work environment.

However, if you find that Ms. Ogden has proved all of these elements by the greater weight of the evidence, then you will consider whether Wax Works has proved both elements of the following affirmative defense by the greater weight of the evidence:

One, Wax Works exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

Two, Ms. Ogden unreasonably failed to take advantage of any preventive or corrective opportunities provided by Wax Works or to avoid harm otherwise.

If Wax Works has failed to prove both elements of this affirmative defense, and Ms. Ogden has proved all of the elements of her claim of a sexually hostile environment, then Ms. Ogden is entitled to damages in some amount on her hostile environment claim. However, if Wax Works has proved both elements of its affirmative defense, you must find in favor of Wax Works on this claim. This affirmative defense is only good against Ms. Ogden's hostile environment claim, not against her quid pro quo or retaliation claims.



FINAL INSTRUCTION NO. 5 - QUID PRO QUO HARASSMENT

Ms. Ogden's second claim alleges that Mr. Hudson subjected her to quid pro quo sexual harassment, that is, that he made a demand or demands for sexual favors in return for employment benefits or to prevent adverse employment action. To win her claim of quid pro quo sexual harassment, Ms. Ogden must prove each of the following elements by the greater weight of the evidence:

One, Ms. Ogden was subjected to requests from Robert Hudson for sexual relations.

Ms. Ogden alleges that Robert Hudson subjected her to requests to go out drinking or gambling with him, to go to his motel room, or to go to his house.



Two, such conduct was unwelcome.

Conduct is "unwelcome" if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.



Three, such conduct was based on sex or gender.

Four, Robert Hudson withheld an employment benefit.

Ms. Ogden alleges that Mr. Hudson failed to perform Ms. Ogden's job evaluation so that she could get a raise.



Five, Ms. Ogden's rejection of Mr. Hudson's requests for sexual relations was a motivating factor in Mr. Hudson's decision to withhold an employment benefit.

Ms. Ogden alleges that, because she rejected Mr. Hudson's requests, described in element one above, Mr. Hudson failed to perform Ms. Ogden's job evaluation so that she could get a raise.



If Ms. Ogden has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of quid pro quo harassment. However, if Ms. Ogden has proved all of the elements of her claim of quid pro quo harassment, then Ms. Ogden is entitled to damages in some amount on this claim.



FINAL INSTRUCTION NO. 6 - RETALIATION

Ms. Ogden's third claim is that Wax Works retaliated against her for opposing sexual harassment. To win her claim of retaliation, Ms. Ogden must prove the following three essential elements by the greater weight of the evidence:

One, Ms. Ogden opposed sexual harassment.

Ms. Ogden alleges that she opposed sexual harassment by protesting Hudson's touching her and telling him not to physically touch her again and otherwise rejected Hudson's advances and objected to his sexually offensive conduct.



Two, Wax Works subsequently took adverse employment action against Ms. Ogden.

Not everything that makes an employee unhappy is an actionable adverse action, but an adverse action does not have to be a discharge. Rather, the allegedly retaliatory conduct must be more disruptive than a mere inconvenience or an alteration of job responsibilities or changes in duties or working conditions that cause no materially significant disadvantage. Adverse employment action consists of the kind of serious employment consequences that adversely affected or undermined the employee's position, even if the employee was not discharged, demoted, or suspended. Furthermore, you may consider the cumulative effect of the employer's allegedly retaliatory actions, rather than determining whether any individual action upon which the claim relies was sufficiently adverse.

Ms. Ogden contends that Wax Works' failure to give her an annual raise or to give her a raise for managing both the Disc Jockey and Reel Collection stores were adverse employment actions taken in retaliation for her opposition to harassment by Hudson.



Three, Ms. Ogden's opposition to sexual harassment was a motivating factor for the adverse employment action taken by Wax Works.

There may be more than one factor in Wax Works' decision to take the actions Ms. Ogden alleges were retaliatory, and Ms. Ogden is not required to show that her opposition to sexual harassment was Wax Works' sole or primary motivation for its decisions. The term "motivating factor" means a consideration that moved the defendant toward its decision or a factor that played a part in that decision.



If Ms. Ogden has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Wax Works on Ms. Ogden's claim of retaliation. However, if you find that Ms. Ogden has proved all of these elements by the greater weight of the evidence, then you will consider whether Wax Works has proved by the greater weight of the evidence that it would have taken the same actions concerning Ms. Ogden regardless of her opposition to sexual harassment. You need not be concerned with the effect of your determination of whether Wax Works would have taken the same actions concerning Ms. Ogden regardless of her opposition to sexual harassment; the effect of your determination on this question is for me to decide.



FINAL INSTRUCTION NO. 7 - CONSTRUCTIVE DISCHARGE

Finally, Ms. Ogden asserts that Wax Works' actions caused her "constructive discharge" from her employment, that is, forced her to quit her job. A constructive discharge is not a separate claim under the anti-discrimination laws; however, if proved, a constructive discharge may entitle Ms. Ogden to additional damages that are available only if the wrongful conduct of Wax Works resulted in loss of Ms. Ogden's employment. Therefore, you will consider this claim only if you find in Ms. Ogden's favor on one or more of her claims of a sexually hostile environment, quid pro quo harassment, or retaliation.

To win her claim of constructive discharge, Ms. Ogden must prove the following three essential elements by the greater weight of the evidence:

One, Wax Works made Ms. Ogden's working conditions intolerable.

The conditions created by the employer must be such that a reasonable person would find them intolerable, not simply that the plaintiff found them intolerable.



Two, Ms. Ogden's sex or gender or her opposition to sexual harassment was a motivating factor in Wax Works' actions.

There may be more than one factor in Wax Works' decision to take the actions Ms. Ogden alleges made her workplace intolerable, and Ms. Ogden is not required to show that Wax Works' sole or primary motivation for those actions was to make her workplace intolerable. The term "motivating factor" means a consideration that moved the defendant toward its decision or a factor that played a part in that decision.



Three, Ms. Ogden's quitting her job was a reasonably foreseeable result of Wax Works' actions.

If Ms. Ogden has failed to prove all of these elements by the greater weight of the evidence, she was not constructively discharged from her employment with Wax Works and she will not be entitled to additional damages available only if she lost her job as the result of the wrongful conduct of Wax Works.



FINAL INSTRUCTION NO. 8 - DAMAGES--IN GENERAL

The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance. In the event that you should find that Ms. Ogden is entitled to damages in accord with the other instructions, you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages you find she sustained as a direct result of the wrongful conduct of Wax Works.

You must award the full amount for any item of damages that Ms. Ogden has proved, but a party cannot recover duplicate damages. In other words, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage on the same claim. However, Ms. Ogden has asserted three separate harassment claims--creation of a sexually hostile environment, quid pro quo harassment, and retaliation. You must award full damages for each item of damages on each claim you find Ms. Ogden has proved by the greater weight of the evidence. For example, if you find Ms. Ogden has proved damages for emotional pain and suffering on all three of her claims of harassment, you must award all damages for emotional pain and suffering that were a direct result of the creation of a hostile environment and all damages for emotional pain and suffering that were a direct result of the quid pro quo harassment and all damages for emotional pain and suffering that were a direct result of retaliation. Some items of damages, such as backpay, can only be awarded if you first find that Ms. Ogden was constructively discharged by the harassing or retaliatory conduct of Wax Works, or if you find that Ms. Ogden was denied a wage increase based on the alleged quid pro quo harassment or retaliatory conduct of Wax Works.

In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates shall be your award of damage for that item.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award damages under these Instructions by way of punishment (except for punitive damages as defined in Instruction No. 10) or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any item of compensatory damage must not exceed the amount caused by the defendant as proved by the evidence.

You are also instructed that a plaintiff has a duty under the law to "mitigate" his or her damages--that is, to exercise reasonable diligence under the circumstances to minimize his or her damages. Therefore, if you find that the defendant has proved by the greater weight of the evidence that Ms. Ogden failed to seek out or take advantage of an opportunity that was reasonably available to her, you must reduce her damages by the amount she reasonably could have avoided if she had sought out or taken advantage of such an opportunity.

You have heard evidence regarding plaintiff Kerry Ogden's use of alcohol and drugs. You may consider this evidence only on two issues: (1) the cause of Ms. Ogden's emotional distress, if any; and (2) whether her decision to quit her job was influenced by emotional distress she experienced as a direct result of her alcohol or drug use. This evidence may not be considered for any other purpose.

Finally, you have heard evidence of allegedly harassing conduct by Wax Works prior to December of 1994. You may consider this evidence as relevant background evidence, but you may award damages only for harassing or retaliatory conduct that occurred after December 9, 1994.

Attached to these Instructions is a Verdict Form, which you must fill out upon completion of your deliberations. In the Verdict Form, there is a list of the types of damages you may award in this case. The fact that there is a list of the types of damages should not be considered as an indication that you must award damages for each type of damage claimed. You should only award those damages, if any, that Ms. Ogden has proved by the greater weight of the evidence.



FINAL INSTRUCTION NO. 9 - DAMAGES--ACTUAL

If you find in favor of Ms. Ogden on one or more of her claims of harassment--creation of a hostile environment, as explained in Final Instruction No. 4, quid pro quo harassment, as explained in Final Instruction No. 5, or retaliation, as explained in Final Instruction No. 6--then you must award Ms. Ogden such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages you find she sustained as a direct result of Wax Works' wrongful conduct identified in the claim or claims upon which she has prevailed.

Ms. Ogden seeks three distinct types of damages and you must consider them separately:

Compensatory damages. On each of her harassment claims, Ms. Ogden seeks compensatory damages, including damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. If you find that Ms. Ogden was constructively discharged as the result of Wax Works' wrongful actions, as constructive discharge is explained to you in Final Instruction No. 7, then you may award compensatory damages that are a direct result of that constructive discharge. However, if you find that Ms. Ogden was not constructively discharged by Wax Works' wrongful actions, then you may only award compensatory damages that are a direct result of the hostile environment, the quid pro quo harassment, or the retaliation, but not any other damages that are a direct result only of Ms. Ogden's decision to quit her job.

A defendant's liability to compensate for injuries is limited to injuries caused by the defendant's own harassing or retaliatory acts, and does not extend to emotional distress due to other, pre-existing causes. Ms. Ogden bears the burden of proof on the issues of causation and damages; therefore, the burden remains on her to prove she did not suffer from a pre-existing emotional condition arising from a prior cause.

However, if you find that plaintiff Kerry Ogden had post-traumatic stress syndrome or emotional distress from such events as childhood sexual abuse, rape, marital discord, or family traumas, before she was subjected to harassment or retaliation by Wax Works, and her pre-existing emotional conditions were aggravated by the harassment or retaliation causing further emotional distress, then Ms. Ogden is entitled to recover here only damages caused by the aggravation. She is not entitled to recover for any emotional distress that existed before the harassment or retaliation or for any injuries or damages that she now has that were not caused by Wax Works' harassment or retaliatory actions.

Pre-termination backpay. Ms. Ogden also seeks an award of pre-termination backpay, which is the amount of any raise--that is, any additional wages and fringe benefits, over and above the wages and benefits she actually received--that she would have earned prior to quitting her job at Wax Works, but did not receive, because of the alleged quid pro quo sexual harassment or retaliation, or both, by Wax Works. However, you may award Ms. Ogden pre-termination backpay only if you find for Ms. Ogden on either her quid pro quo harassment claim as explained in Final Instruction No. 5, or her retaliation claim as explained in Final Instruction No. 6. Ms. Ogden can only recover one award of pre-termination backpay, even if she prevails on both her quid pro quo and retaliation claims.

Post-termination backpay. Ms. Ogden also seeks an award of post-termination backpay, which is the amount of any wages and fringe benefits she would have earned from the date on which she quit until the date of your verdict, minus the wages and fringe benefits, if any, she actually did earn during that time from other employment after quitting her job with Wax Works. However, you may award post-termination backpay only if Wax Works' wrongful conduct resulted in Ms. Ogden's constructive discharge, as constructive discharge is explained in Final Instruction No. 7. Ms. Ogden can only recover one award of post-termination backpay, even if she prevails on more than one of her claims of harassment or retaliation.



FINAL INSTRUCTION NO. 10 - DAMAGES--PUNITIVE

In addition to the damages mentioned in other instructions, the law permits the jury under certain circumstances to award the injured person punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.

In order to award punitive damages, you must first find in favor of Ms. Ogden on one of her claims of harassment or retaliation. You must further find that the conduct of Wax Works identified in the claim on which Ms. Ogden has prevailed was recklessly and callously indifferent to Ms. Ogden's right to be free of sexual harassment or retaliation. If you make both of these findings, then, in addition to any other damages to which you find Ms. Ogden is entitled, you may, but are not required to, award Ms. Ogden an additional amount as punitive damages if you find it is appropriate to punish Wax Works or to deter Wax Works or others from like conduct in the future. Whether to award Ms. Ogden punitive damages and the amount of those punitive damages are within your sound discretion.

Factors you may consider in awarding punitive damages include, but are not limited to the following: the nature of the defendant's conduct; the impact of the defendant's conduct on the plaintiff; the relationship between the plaintiff and the defendant; the likelihood that the defendant would repeat the conduct if a punitive award is not made; the defendant's financial condition; Ms. Ogden's actual damages, if any; and any other circumstances shown by the evidence, including any circumstances of mitigation, that bear on the question of the size of any punitive award.



FINAL INSTRUCTION NO. 11 - DELIBERATIONS

In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, all jurors will sign it, and the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 17th day of November, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

KERRY D. OGDEN,
Plaintiff, No. C 96-4116-MWB
vs.

VERDICT FORM
WAX WORKS, INC.,
Defendant.

____________________



I. LIABILITY



Question No. 1: On Ms. Ogden's claim of creation of a sexually hostile environment, as that claim is submitted to you in Final Instruction No. 4, in whose favor do you find?

_____ Kerry D. Ogden _____ Wax Works, Inc.

Note: If you found in favor of Wax Works, Inc., in answer to Question No. 1, you cannot award any damages on Ms. Ogden's hostile environment claim in section II.



Question No. 2: On Ms. Ogden's claim of quid pro quo harassment, as that claim is submitted to you in Final Instruction No. 5, in whose favor do you find?

_____ Kerry D. Ogden _____ Wax Works, Inc.

Note: If you found in favor of Wax Works, Inc., in answer to Question No. 2, you cannot award any damages on Ms. Ogden's quid pro quo harassment claim in section II.



Question No. 3:

a.: On Ms. Ogden's claim of retaliation, as that claim is submitted to you in Final Instruction No. 6, in whose favor do you find?

_____ Kerry D. Ogden _____ Wax Works, Inc.

Note: If you found in favor of Wax Works, Inc., in answer to Question No. 3, you cannot award any damages on Ms. Ogden's retaliation claim in section II.



b.: If you found in favor of Kerry D. Ogden in response to Question No. 3.a. above, has Wax Works proved by the greater weight of the evidence that it would have taken the same actions concerning Ms. Ogden regardless of her opposition to sexual harassment?

_____ Yes _____ No

Note: You need not be concerned with the effect of your determination in answer to Question 3.b. above; the effect of your determination on this question is for me to decide.



Question No. 4: Do you find that Ms. Ogden was constructively discharged from her employment with Wax Works on September 9, 1995, as constructive discharge was explained to you in Final Instruction No. 7?

_____ Yes _____ No

Note: You cannot award post-termination backpay or compensatory damages for a constructive discharge if you answered "No" to Question No. 4.





II. Damages

Question No. 5: What damages do you award for claims upon which you find Ms. Ogden has prevailed in answer to Questions 1 through 4 above, as damages are explained to you in Final Instructions Nos. 8 through 10? (Please complete all that apply.)

Type of damages Claim Amount of damages
Compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, as explained in Final Instruction No. 9

Hostile environment

$

Quid pro quo harassment

$



Retaliation

$

Compensatory damages that are a direct result of a constructive discharge, as explained in Final Instruction No. 9, if you have found a constructive discharge



$

Pre-termination backpay, as explained in Final Instruction No. 9, if you have found Ms. Ogden was denied a raise because of quid pro quo harassment or retaliation





$

Post-termination backpay, as explained in Final Instruction No. 9, if you have found a constructive discharge



$

Punitive damages, if any, as explained in Final Instruction No. 10

Hostile environment $
Quid pro quo harassment

$

Retaliation $





Date: ________________



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