IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



ANITA LOPEZ and MARICELA VILLALPANDO,

 

Plaintiffs,

Nos. C 03-4015-MWB

C 03-4030-MWB

vs.

PRELIMINARY AND FINAL INSTRUCTIONS TO THE JURY

ARAMARK UNIFORM & CAREER APPAREL, INC., a Delaware corporation,

Defendant.

____________________



TABLE OF CONTENTS

 

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - DUTY OF JURORS

NO. 3 - BURDEN OF PROOF

NO. 4 - THE PLAINTIFFS’ CLAIMS

NO. 5 - HOSTILE ENVIRONMENT SEXUAL HARASSMENT

NO. 6 - QUID PRO QUO SEXUAL HARASSMENT

NO. 7 - RETALIATION

NO. 8 - CONSTRUCTIVE DISCHARGE

NO. 9 - ORDER OF TRIAL

NO. 10 - DEFINITION OF EVIDENCE

NO. 11 - CREDIBILITY OF WITNESSES

NO. 12 - STIPULATED FACTS

NO. 13 - DEPOSITIONS

NO. 14 - INTERROGATORIES

NO. 15 - OBJECTIONS

NO. 16 - BENCH CONFERENCES

NO. 17 - NOTE-TAKING

NO. 18 - CONDUCT OF JURORS DURING TRIAL

 

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - HOSTILE ENVIRONMENT SEXUAL HARASSMENT

NO. 4 - RETALIATION

NO. 5 - CONSTRUCTIVE DISCHARGE

NO. 6 - DAMAGES—IN GENERAL

NO. 7 - ITEMS OF DAMAGES

NO. 8 - PUNITIVE DAMAGES

NO. 9 - 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 - 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 plaintiffs Lopez and Villalpando and defendant ARAMARK, 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, such as its employees and administrators, as its agents.

        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. 3 - BURDEN OF PROOF

 

        In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim or defense depends upon that fact. In this case, unless I tell you otherwise, plaintiffs Lopez and Villalpando bear this burden of proof.

        The party with the burden of proof must prove facts by the “greater weight of the evidence.” To prove something “by the greater weight of the evidence” means to prove that it is more likely true than not true. The “greater weight of the evidence” is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the 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. 4 - THE PLAINTIFFS’ CLAIMS

 

 

        As I explained during jury selection, Plaintiffs Anita Lopez and Maricela Villalpando each assert three claims against defendant ARAMARK: (1) hostile environment sexual harassment; (2) quid pro quo sexual harassment; and (3) retaliation for complaining about sexual harassment. In addition, plaintiff Villalpando contends that she was constructively discharged, or forced to quit her job, by ARAMARK as the result of sexual harassment and retaliation. ARAMARK denies each plaintiff’s claims.

        You must give separate consideration to each plaintiff’s claims and ARAMARK’s defenses to those claims. Therefore, you must reach a separate verdict on each claim asserted by each plaintiff.

        The plaintiffs’ “sexual harassment” and “retaliation” claims consist of “elements,” which each plaintiff must prove by the greater weight of the evidence for that plaintiff to win on those claims. In the following instructions, I will give you preliminary instructions on the elements of the plaintiffs’ claims to assist you in understanding the evidence. However, these preliminary instructions provide only a preliminary outline of the elements of the plaintiffs’ claims. At the end of the trial, I will give you further final written instructions that explain these claims. Because the final instructions are more detailed, those instructions govern on the elements of the plaintiffs’ claims.


PRELIMINARY INSTRUCTION NO. 5 - HOSTILE ENVIRONMENT

SEXUAL HARASSMENT

 

 

 

        Each plaintiff’s first claim is that she was subjected to hostile environment sexual harassment by her male supervisor, Mr. “Butch” Tomoson. I will now give you preliminary instructions on the elements of each plaintiff’s hostile environment sexual harassment claim and ARAMARK’s affirmative defense to each plaintiff’s claim.

 

        The plaintiffs’ claims

        To win her claim of hostile environment sexual harassment, each plaintiff must prove the following five elements by the greater weight of the evidence:

        One, the plaintiff was subjected to sexually offensive conduct or conditions imposed by her male supervisor, Mr. “Butch” Tomoson;

        Two, such conduct was unwelcome;

        Three, such conduct was because of the plaintiff’s sex;

        Four, such conduct was sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would find the work environment to be sexually hostile or abusive; and

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

 

        Tangible employment action

        If you find that a plaintiff has proved all five elements of her hostile environment sexual harassment claim, as stated above, then to determine whether or not defendant ARAMARK can be held liable for that claim, you must also consider whether or not the hostile environment sexual harassment by Mr. Tomoson resulted in a “tangible employment action.”

        A “tangible employment action” is a significant change in employment status, such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. It requires an official act of the enterprise, in this case, a “corporate act.” In most cases, a tangible employment action inflicts direct economic harm.

        Ms. Lopez contends that the hostile environment sexual harassment by Mr. Tomoson, not her absenteeism, as alleged by ARAMARK, resulted in her termination. Ms. Villalpando contends that the hostile environment sexual harassment by Mr. Tomoson resulted in her “constructive discharge,” as “constructive discharge” is explained in Preliminary Jury Instruction No. 8. Termination and “constructive discharge” are “tangible employment actions.”

        If a plaintiff proves all five elements of her hostile environment sexual harassment claim, and that the hostile environment sexual harassment by Mr. Tomoson resulted in her termination or constructive discharge, then that plaintiff is entitled to damages in some amount from ARAMARK on this claim. However, if a plaintiff proves only the five elements of her hostile environment sexual harassment claim, but does not prove that the hostile environment sexual harassment by Mr. Tomoson resulted in a tangible employment action, then that plaintiff will only be entitled to damages if defendant ARAMARK fails to prove its affirmative defense, as explained below.

 

        ARAMARK’s affirmative defense

        If a plaintiff proves all five elements of her hostile environment sexual harassment claim, but fails to prove that her supervisor’s conduct resulted in a “tangible employment action,” as explained above, then ARAMARK can defeat that plaintiff’s hostile environment sexual harassment claim by proving an affirmative defense with the following elements:

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

        Two, the plaintiff in question unreasonably failed to take advantage of any preventive or corrective opportunities provided by ARAMARK or to avoid harm otherwise.

        If ARAMARK fails to prove both elements of this affirmative defense as to a particular plaintiff, and that plaintiff proves the five elements of her claim of hostile environment sexual harassment, then your verdict must be for that plaintiff on her claim of hostile environment sexual harassment and that plaintiff is entitled to damages in some amount on this claim. However, if ARAMARK proves both elements of its affirmative defense as to a particular plaintiff, then your verdict must be for ARAMARK on that plaintiff’s claim of hostile environment sexual harassment.


PRELIMINARY INSTRUCTION NO. 6 - QUID PRO QUO

SEXUAL HARASSMENT

 

 

        Each plaintiff’s second claim is that she was subjected to quid pro quo hostile environment sexual harassment by her male supervisor, Mr. “Butch” Tomoson. “Quid pro quo” literally means “something for something.” Thus, a claim of quid pro quo sexual harassment is a claim based upon receiving an employment benefit for submitting to a supervisor’s request for sexual favors or suffering the withholding of an employment benefit or suffering some other adverse employment action for refusing to submit to a supervisor’s request for sexual favors.

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

        One, the plaintiff was subjected to requests from her supervisor, Mr. “Butch” Tomoson, for sexual favors;

        Two, such conduct was unwelcome;

        Three, such conduct was based on sex or gender;

        Four, Mr. “Butch” Tomoson withheld an employment benefit from the plaintiff; and

        Five, the plaintiff’s rejection of Mr. “Butch” Tomoson’s request for sexual favors was a motivating factor in his decision to withhold an employment benefit from the plaintiff.

        If a plaintiff fails to prove all five of these elements by the greater weight of the evidence, then your verdict must be for ARAMARK on that plaintiff’s claim of quid pro quo sexual harassment. However, if a plaintiff proves all five of these elements by the greater weight of the evidence, then your verdict must be for that plaintiff on her claim of quid pro quo sexual harassment, and that plaintiff is entitled to damages in some amount on this claim.


PRELIMINARY INSTRUCTION NO. 7 - RETALIATION

 

 

        Each plaintiff’s third claim is that ARAMARK retaliated against her for opposing sexual harassment. To win on her “retaliation” claim, a plaintiff must prove the following three elements by the greater weight of the evidence:

        One, the plaintiff opposed or complained about conduct that was, or that she reasonably believed was, sexual harassment;

        Two, ARAMARK subsequently took adverse employment action against the plaintiff; and

        Three, the plaintiff’s opposition to, or complaints about, sexual harassment were a motivating factor for the adverse employment action taken by ARAMARK.

        If a plaintiff fails to prove all three of these elements by the greater weight of the evidence, then your verdict must be for ARAMARK on that plaintiff’s claim of retaliation. However, if a plaintiff proves all three of these elements by the greater weight of the evidence, then your verdict must be for that plaintiff on her claim of retaliation, and that plaintiff is entitled to damages in some amount on this claim.


PRELIMINARY INSTRUCTION NO. 8 - CONSTRUCTIVE DISCHARGE

 

 

        Ms. Villalpando contends that she was “constructively discharged,” or forced to quit her job, as the result of the hostile environment sexual harassment by Mr. “Butch” Tomoson, the quid pro quo sexual harassment by Mr. “Butch” Tomson, and/or the retaliation by ARAMARK for her opposition to or complaints about sexual harassment. A “constructive discharge” is not a separate claim under the anti-discrimination laws; however, if Ms. Villalpando proves that she was “constructively discharged” as the result of sexual harassment or retaliation, she may be entitled to additional damages that are only available if the wrongful conduct of ARAMARK resulted in the loss of Ms. Villalapando’s employment. Therefore, you will consider Ms. Villalpando’s claim of “constructive discharge” only if you find in her favor on one or more of her claims of sexual harassment and retaliation.

        To prove that she was constructively discharged, Ms. Villalpando must prove the following three elements by the greater weight of the evidence:

        One, either through action or inaction, ARAMARK made Ms. Villalpando’s working conditions intolerable;

        Two, Ms. Villalpando’s sex, in the case of her sexual harassment claims, or her opposition to sexual harassment, in the case of her retaliation claim, was a motivating factor in ARAMARK’s action or inaction; and

        Three, ARAMARK acted, or failed to act, with the intent of forcing Ms. Villalpando to quit or her resignation was a reasonably foreseeable result of ARAMARK’s action or inaction.

        If Ms. Villalpando fails to prove all three of these elements by the greater weight of the evidence, then you cannot find that she was “constructively discharged” from her employment by ARAMARK, and she will not be entitled additional damages that are only available if the wrongful conduct of ARAMARK resulted in the loss of her employment.


PRELIMINARY INSTRUCTION NO. 9 - ORDER OF TRIAL

 

        The trial will proceed as follows:

        After these preliminary instructions, the plaintiffs’ attorney may make an opening statement. Next, the lawyer for the defendant may make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to be.

        After opening statements, the plaintiffs will present evidence and call witnesses and the lawyer for the defendant may cross-examine them. Following the plaintiffs’ case, the defendant may present evidence and call witnesses and the lawyer for the plaintiffs may cross-examine them.

        After the evidence is concluded, I will give you most of the final instructions. 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 the remaining final instruction on deliberations, and you will retire to deliberate on your verdict.


PRELIMINARY INSTRUCTION NO. 10 - DEFINITION OF EVIDENCE

 

        Evidence is:

        1.     Testimony.

        2.     Exhibits I admit into evidence.

        3.     Stipulations, which are agreements between the parties.

        Evidence may be “direct” or “circumstantial.” 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.

        A particular item of evidence is sometimes admitted only for a limited purpose, and not for any other purpose. I will tell you if that happens, and instruct you on the purposes for which the item can and cannot be used.

        The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

        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.

        The weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence is not necessarily determined merely by the number or volume of documents or exhibits. The weight of evidence depends upon its quality, which means how convincing it is, and not necessarily upon its quantity. For example, you may choose to believe the testimony of one witness, if you find that witness to be convincing, even if a number of other witnesses contradict that witness’s testimony. The quality and weight of the evidence are for you to decide.


PRELIMINARY INSTRUCTION NO. 11 - 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, only part of it, or none of it.

        In deciding what testimony to believe, consider the witness’s intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’s memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness’s drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

        Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you may hear evidence from persons described as experts. Persons may become qualified as experts in some field by knowledge, skill, training, education, or experience. Such experts may state their opinions on matters in that field and may also state the reasons for their opinions. You should consider expert testimony just like any other testimony. You may believe all of what an expert says, only part of it, or none of it, considering the expert’s qualifications, the soundness of the reasons given for the opinion, the acceptability of the methods used, any reason the expert may be biased, and all of the other evidence in the case.


PRELIMINARY INSTRUCTION NO. 12 - STIPULATED FACTS

 

        The plaintiffs and the defendant have agreed or “stipulated” to certain facts and have reduced these facts to a written agreement or stipulation. Either 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. 13 - 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. Consider that testimony as if it had been given in court.


PRELIMINARY INSTRUCTION NO. 14 - 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. 15 - OBJECTIONS

 

        The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections.


PRELIMINARY INSTRUCTION NO. 16 - BENCH CONFERENCES

 

        During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because 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, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.


PRELIMINARY INSTRUCTION NO. 17 - NOTE-TAKING

 

        If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember that it is your own individual responsibility to listen carefully to the evidence.

        Notes you take during the trial are not necessarily more reliable than your memory or another juror’s memory. Therefore, you should not be overly influenced by the notes.

         If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

        You will notice that we 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. 18 - CONDUCT OF JURORS

DURING TRIAL

 

 

        You will not be required to remain together while court is in recess. However, to insure 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 that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case 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, it is because they are not supposed to talk or visit with you.

        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. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

        Sixth, do not do any research—on the Internet, in libraries, in the newspapers, or in any other way—or make any investigation about this case on your own. You must decide this case based on the evidence presented in court and the law as I explain it to you in my instructions.

        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.

        Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

        DATED this 31st day of October, 2005.

 

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                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


FINAL INSTRUCTION NO. 1 - INTRODUCTION




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

        The instructions I am about to give you, 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. 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 are not repeated here.

        However, the plaintiffs’ claims of quid pro quo sexual harassment are no longer before you and will not be decided by you. You should not guess about or concern yourselves with the reason that these claims are no longer before you.

        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. 11, I instructed you generally on the credibility of witnesses. However, I will now give you some further instructions on how the credibility of witnesses can be “impeached.”

        Any witness may be discredited or “impeached” by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other 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 earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and, therefore, whether they affect the credibility of that witness.

        If you believe that a witness has been discredited or impeached, it is your exclusive right to give that witness’s testimony whatever weight you think it deserves.


FINAL INSTRUCTION NO. 3 - HOSTILE ENVIRONMENT

SEXUAL HARASSMENT

 

 

 

        Each plaintiff’s first claim is that she was subjected to hostile environment sexual harassment by her male supervisor, Mr. “Butch” Tomoson. I will now explain in more detail the elements of each plaintiff’s claim of hostile environment sexual harassment and ARAMARK’s affirmative defense to each plaintiff’s claim.

 

        The plaintiffs’ claims

        To win her claim of hostile environment sexual harassment, each plaintiff must prove the following five elements by the greater weight of the evidence:

        One, the plaintiff was subjected to sexually offensive conduct or conditions imposed by her male supervisor, Mr. “Butch” Tomoson.

Ms. Lopez and Ms. Villalpando each allege that the conduct of Mr. “Butch” Tomoson that created a sexually hostile environment included one or more of the following: subjecting Ms. Lopez and Ms. Villalpando to unwelcome touching or fondling, including pinching, hitting, and bumping Ms. Lopez’s buttocks, subjecting Ms. Lopez and Ms. Villalpando to an environment of sexual promiscuity by their co-employees (pets) that was encouraged by management; verbal abuse of a sexual or sexist nature; sexually suggestive or obscene or insulting comments or acts; verbal abuse for failing to go along with the sexually hostile environment and for failing to consent to Mr. Tomoson’s touching, fondling, or requests for sexual favors. It is for you to decide whether Mr. Tomoson actually engaged in any of this conduct or actually imposed any of these conditions on either plaintiff.

 

        Two, such conduct was unwelcome.

Conduct may be “unwelcome,” even if the plaintiff submitted to it or participated in it. 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 because of the plaintiff’s sex.

        Four, such conduct was sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would have found the work environment to be sexually hostile or abusive.

The objectionable environment must be one that a reasonable person in the plaintiff’s position would have found to be hostile and abusive because of the sexual harassment. 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 hostile or abusive. Federal and state anti-harassment laws do 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 hostile environment. Similarly, conduct that is boorish, chauvinistic, unpleasant, rude, and immature may not be enough; rather, such conduct must be sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would have found the work environment to be hostile or abusive.

 

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

For sexual harassment to create a sexually hostile work environment, the victim must, in fact, perceive the environment to be hostile or abusive because of the sexual harassment.

 

        If the plaintiff in question has failed to prove these elements, then she cannot recover on her claim of hostile environment sexual harassment, and your verdict must be for ARAMARK on that plaintiff’s claim of hostile environment sexual harassment. However, if the plaintiff in question has proved all five of these elements, there are additional matters that you must decide to determine whether or not ARAMARK can be held liable on that plaintiff’s claim of hostile environment sexual harassment.

 

        Tangible employment action

        If you find that a plaintiff has proved the five elements of her hostile environment sexual harassment claim, as stated above, then to determine whether or not defendant ARAMARK can be held liable for that claim, you must consider whether or not the hostile environment sexual harassment by Mr. Tomoson resulted in a “tangible employment action.”

        A “tangible employment action” is a significant change in employment status, such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. It requires an official act of the enterprise, in this case, a “corporate act.” In most cases, a tangible employment action inflicts direct economic harm.

        Ms. Lopez contends that the hostile environment sexual harassment by Mr. Tomoson, not her absenteeism, as alleged by ARAMARK, resulted in her termination. Ms. Villalpando contends that the hostile environment sexual harassment by Mr. Tomoson resulted in her “constructive discharge,” as “constructive discharge” is explained in Final Jury Instruction No. 5. Termination and “constructive discharge” are “tangible employment actions.”

        If a plaintiff has proved all five elements of her hostile environment sexual harassment claim, and that the hostile environment sexual harassment by Mr. Tomoson resulted in her termination or constructive discharge, then that plaintiff is entitled to damages in some amount from ARAMARK on this claim. However, if a plaintiff has proved only the five elements of her hostile environment sexual harassment claim, but has not proved that the hostile environment sexual harassment by Mr. Tomoson resulted in a tangible employment action, then that plaintiff will only be entitled to damages if defendant ARAMARK has failed to prove its affirmative defense, as explained below.

 

        ARAMARK’s affirmative defense

        If a plaintiff has proved all five elements of her hostile environment sexual harassment claim, but has failed to prove that her supervisor’s conduct resulted in a “tangible employment action,” as explained above, then ARAMARK can defeat that plaintiff’s hostile environment sexual harassment claim by proving an affirmative defense with the following elements:

        One, ARAMARK exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

One indication that an employer took reasonable care to prevent harassment is that, during the plaintiff’s employment, the employer had in place an adequate written sexual harassment policy. An employer is not required in every case to have an anti-harassment policy with a complaint procedure; however, you should consider the need for a stated policy suitable to the employment circumstances. Therefore, you should consider whether ARAMARK had such a policy; whether the policy was posted in appropriate locations or otherwise made available to all employees; and whether all employees, including the plaintiff in question, indicated that they were aware of and understood the policy and its procedures, for example, by reviewing and signing the policy.

An anti-harassment policy or other method of preventing harassment is not adequate unless it is reasonably calculated to encourage victims of harassment and others with knowledge of harassment to come forward and allows information about harassment to be conveyed to those who are in a position to take appropriate action.

You should also consider whether ARAMARK took reasonable care to correct promptly sexual harassment when it discovered or learned about such harassment, through procedures in an anti-harassment policy or otherwise.

 

        Two, the plaintiff in question unreasonably failed to take advantage of any preventive or corrective opportunities provided by ARAMARK or to avoid harm otherwise.

Proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer. However, demonstration of such a failure will normally be enough to satisfy the employer’s burden under this element of the defense. You may also consider any delay between harassing conduct and complaints by the plaintiff in question, and what effect, if any, such a delay may have had on the immediacy or effectiveness of ARAMARK’s response.

 

        If ARAMARK has failed to prove both elements of this affirmative defense as to a particular plaintiff, and that plaintiff has proved the five elements of her claim of hostile environment sexual harassment, then your verdict must be for that plaintiff on her claim of hostile environment sexual harassment and that plaintiff is entitled to damages in some amount on this claim. However, if ARAMARK has proved both elements of its affirmative defense as to a particular plaintiff, then your verdict must be for ARAMARK on that plaintiff’s claim of hostile environment sexual harassment.

        Remember that you will only consider this affirmative defense as to a particular plaintiff’s claim of hostile environment sexual harassment if that plaintiff has failed to prove that the hostile environment sexual harassment resulted in a “tangible employment action.”


FINAL INSTRUCTION NO. 4 - RETALIATION

 

 

 

        Each plaintiff’s second claim is that ARAMARK retaliated against her for opposing sexual harassment. I will now explain in more detail the elements of each plaintiff’s retaliation claim.

        To win on her “retaliation” claim, a plaintiff must prove the following three elements by the greater weight of the evidence:

        One, the plaintiff opposed or complained about conduct that was, or that she reasonably believed was, sexual harassment.

Federal and state anti-discrimination laws make it unlawful for an employer to discriminate against an employee because of the employee’s “opposition” to conduct or employment practices made unlawful under those laws. The plaintiffs each contend that they opposed sexual harassment or conduct that they reasonably believed was sexual harassment by reasonably making known to Mr. Tomoson that they did not consent to it.

If the conduct that a plaintiff opposed was not, in fact, unlawful, the plaintiff must prove that a reasonable person could have believed that the incidents about which the plaintiff complained violated the anti-discrimination laws. In deciding whether a reasonable person could have believed that the incidents about which a plaintiff complained violated anti-discrimination laws, you must determine whether the conduct and resulting environment were sufficiently sexually hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee’s work performance.

 

        Two, ARAMARK subsequently took adverse employment action against the plaintiff.

Not everything that makes an employee unhappy is an “adverse employment action” sufficient to prove a retaliation claim. Rather, an “adverse employment action” must be more disruptive than a mere inconvenience, alteration of job responsibilities, or change in duties and working conditions that causes no materially significant disadvantage. Thus, an adverse employment action consists of the kind of serious employment consequences that adversely affect or undermine the employee’s position, even if the employee is not discharged, demoted, or suspended. You may also consider the cumulative effect of the employer’s actions to determine whether the employer’s allegedly retaliatory or disparate actions amounted to sufficiently adverse employment action, rather than determining whether any individual action upon which the claim in question relies was sufficiently adverse.

Ms. Lopez contends that she was terminated in retaliation for opposing sexual harassment and Ms. Villalpando contends that she was constructively discharged for opposing sexual harassment, as “constructive discharge” is explained in Final Jury Instruction No. 5. Termination and “constructive discharge” are both adverse employment actions.

 

 

        Three, the plaintiff’s opposition to or complaints about sexual harassment were a motivating factor for the adverse employment action taken by ARAMARK.

Something was a “motivating factor” if it played a part in a person’s decision. However, it need not have been the only reason for the person’s decision. It is for you to decide whether a plaintiff’s opposition to or complaints about sexual harassment were a “motivating factor” for the adverse employment action by ARAMARK.

 

        If a plaintiff has failed to prove all three of these elements by the greater weight of the evidence, then your verdict must be for ARAMARK on that plaintiff’s claim of retaliation. However, if a plaintiff has proved all three of these elements by the greater weight of the evidence, then your verdict must be for that plaintiff on her claim of retaliation, and that plaintiff is entitled to damages in some amount on this claim.


FINAL INSTRUCTION NO. 5 - CONSTRUCTIVE DISCHARGE

 

 

 

        Ms. Villalpando contends that she was “constructively discharged,” or forced to quit her job, as the result of the hostile environment sexual harassment by Mr. “Butch” Tomoson, and/or the retaliation by ARAMARK for her opposition to or complaints about sexual harassment. A “constructive discharge” is not a separate claim under the anti-discrimination laws; however, if Ms. Villalpando proves that she was “constructively discharged” as the result of sexual harassment or retaliation, she may be entitled to additional damages that are only available if the wrongful conduct of ARAMARK resulted in the loss of Ms. Villalapando’s employment. Therefore, you will consider Ms. Villalpando’s claim of “constructive discharge” only if you find in her favor on one or more of her claims of sexual harassment and retaliation.

        To prove that she was constructively discharged, Ms. Villalpando must prove the following three elements by the greater weight of the evidence:

        One, either through action or inaction, ARAMARK made Ms. Villalpando’s working conditions intolerable.

An employee’s dissatisfaction with working conditions, without more, does not establish a constructive discharge. Rather, a constructive discharge occurs when an employer, through action or inaction, renders an employee’s working conditions so intolerable that the employee essentially is forced to terminate her employment. Working conditions are “intolerable” if a reasonable person in the plaintiff’s situation would have considered that resigning or quitting was the only reasonable alternative. Also, an employee has an obligation not to assume the worst and jump to conclusions too quickly. Therefore, an employee must ordinarily give an employer a reasonable opportunity to work out a problem. However, an employee who quits because she reasonably believes that there is no chance for fair treatment has been constructively discharged.

 

        Two, Ms. Villalpando’s sex, in the case of her sexual harassment claim, or her opposition to sexual harassment, in the case of her retaliation claim, was a motivating factor in ARAMARK’s action or inaction.

A plaintiff’s sex, in the case of her sexual harassment claim, or her opposition to sexual harassment, in the case of her retaliation claim, was a “motivating factor” if her sex or opposition to sexual harassment played a part or played a role in ARAMARK’s decisions. However, the plaintiff’s sex or opposition to sexual harassment need not have been the only reason for those employment decisions.

 

        Three, ARAMARK acted, or failed to act, with the intent of forcing Ms. Villalpando to quit or her resignation was a reasonably foreseeable result of ARAMARK’s action or inaction.

        If Ms. Villalpando has failed to prove all three of these elements by the greater weight of the evidence, then you cannot find that she was “constructively discharged” from her employment by ARAMARK, and she will not be entitled to additional damages that are only available if the wrongful conduct of ARAMARK resulted in the loss of her employment. However, if Ms. Villalpando has proved all three of these elements by the greater weight of the evidence, then she was “constructively discharged,” and she will be entitled to additional damages that are only available if the wrongful conduct of ARAMARK resulted in the loss of her employment.


FINAL INSTRUCTION NO. 6 - 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 whether any 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 a plaintiff is entitled to damages in accord with the other instructions.

        If you find in favor of a plaintiff on a particular claim, then 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 that you find were proximately caused to her by the conduct of the defendant at issue in that claim. An act is a “proximate cause” of damage if the act was a substantial factor in producing the damage and the damage would not have happened except for the act. “Substantial” means that the act had such an effect in producing damage as to lead a reasonable person to regard it as a cause of the damage.

        In arriving at an amount for any particular item of damages, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages. Rather, you must use your sound judgment based upon an impartial consideration of the evidence.

        Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. Except where instructed otherwise, in your consideration of punitive damages in Final Jury Instruction No. 8, you must not award damages under these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily or out of sympathy or prejudice for or against any of the parties.

        You must award the full amount of damages, if any, that a plaintiff has proved by the greater weight of the evidence. However, the amount you assess for damages must not exceed the amount proximately caused by the wrongful conduct of the defendant as proved by the evidence. Also, do not allow any amount awarded for one item of damages on a particular claim to be included in any amount awarded for any other item of damages on that claim, because a plaintiff is not entitled to recover duplicate damages.

        A plaintiff has a duty under the law to “mitigate” her damages—that is, to exercise reasonable diligence under the circumstances to minimize her damages. Therefore, if you find that ARAMARK has proved by the greater weight of the evidence that a particular plaintiff failed to seek out or take advantage of an opportunity to reduce her damages that was reasonably available to her, then you must reduce that plaintiff’s damages by the amount that she reasonably could have avoided if she had sought out or taken advantage of such an opportunity.

        Attached to these Instructions is a Verdict Form, which you must fill out. In the “Damages” sections of the Verdict Form, you should only award those damages, if any, that the plaintiff has proved by the greater weight of the evidence were proximately caused by the defendant’s wrongful conduct toward a plaintiff that is at issue in the particular claim you are considering.


FINAL INSTRUCTION NO. 7 - ITEMS OF DAMAGES

 

 

        Plaintiff Lopez seeks distress damages for emotional distress on her claim of sexual harassment and her claim of retaliation.

        Plaintiff Villalpando seeks damages for emotional distress and backpay on her claim of sexual harassment and her claim of retaliation.

        Emotional distress damages. Damages for “emotional distress” are the amount of damages that will reasonably compensate a plaintiff for the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that were proximately caused by the wrongful conduct of ARAMARK at issue in a particular claim. The amount, if any, that you assess for damages for emotional distress cannot be measured by an exact or mathematical standard, and a plaintiff is not required to introduce evidence of the monetary value of such damages. However, you must use your sound judgment based upon an impartial consideration of the evidence to determine the amount of such damages. Damages for emotional distress must compensate a plaintiff for any emotional distress that she suffered from the time of the wrongful conduct in question until the time that you give your verdict. You may also award future emotional distress damages, but only if you find that a plaintiff has proved that her emotional distress proximately caused by the defendant’s wrongful conduct at issue in the particular claim you are considering is reasonably certain to extend into the future.

        The amount of emotional distress damages, if any, that you award for each claim may be the same or different, but the damages awarded must reflect the amount of emotional distress, if any, caused to the plaintiff by the wrongful conduct at issue in each particular claim.

        Backpay. Plaintiff Villalpando also seeks an award of backpay on each of her claims. You can only award backpay on a particular claim if you find that the wrongful conduct of ARAMARK at issue in that claim proximately caused Ms. Villalpando’s constructive discharge, as “constructive discharge” is explained in Final Jury Instruction No. 5.

        “Backpay” is the amount of any wages and fringe benefits that Ms. Villalapando would have earned from the date that she was constructively discharged until the date of your verdict, minus the wages and fringe benefits, if any, that she actually did earn during that time from other employment after she was constructively discharged. However, do not deduct from any award of backpay any benefits, such as sick leave or vacation pay, earned by Ms. Villalpando during her employment with ARAMARK, but not paid until after she left her employment with ARAMARK.

        You may award backpay for each claim on which Ms. Villalpando prevails, if you find that Ms. Villalpando went on unpaid leave as a direct result of the wrongful conduct alleged in that claim. However, Ms. Villalpando can only recover one award of backpay, even if she prevails on more than one of her claims. I will prevent the award of duplicate damages for backpay, if you award backpay as damages on more than one claim.


FINAL INSTRUCTION NO. 8 - PUNITIVE DAMAGES

 

        In addition to compensatory damages described in Final Jury Instruction No. 7, the law permits the jury, under certain circumstances, to award 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. Punitive damages can be awarded on each of the claims asserted by each plaintiff. On any of these claims, whether or not to award punitive damages, and the amount of such punitive damages, are for you to decide.

        You may, but are not required to, award punitive damages on a claim on which a plaintiff has prevailed, but only if you find the following two elements as to the wrongful conduct at issue on that particular claim:

        One, the defendant acted with malice or reckless disregard for, and did not make a good faith effort to comply with, the law.

A defendant acted with “malice or reckless disregard for the law” if the plaintiff has proved by the greater weight of the evidence that the defendant knew that the conduct to which the plaintiff was subjected was in violation of the law prohibiting sexual harassment or retaliation for opposing sexual harassment, as such wrongful conduct is at issue on a particular claim, or acted with reckless disregard of that law. However, you may not award punitive damages if it has been proved by the greater weight of the evidence that the defendant made a good-faith effort to comply with the law prohibiting the wrongful conduct at issue in the claim.

 

        Two, it is appropriate to punish the defendant or to deter the defendant and others from like conduct in the future.

        If the plaintiff proves both of these elements, then you may, but are not required to, award that plaintiff an additional amount as punitive damages. Whether to award punitive damages to a particular plaintiff on a particular claim, and the amount of punitive damages to award, are within your discretion. The amount of punitive damages, if any, that you award on each claim may be the same or different.

        If you decide to award punitive damages on a particular claim, you should consider the following factors in determining the amount of the punitive damages to award: the nature of the defendant’s conduct under the totality of the circumstances; the frequency of the defendant’s conduct; how reprehensible the defendant’s conduct was toward the plaintiff’ what amount of punitive damages, in addition to any damages for emotional distress and backpay already awarded, is needed, considering the defendant’s financial condition, to punish the defendant for its wrongful conduct toward the plaintiff that is at issue in that particular claim and to deter the defendant and others from similar wrongful conduct in the future; the amount of fines and civil penalties, if any, applicable to similar conduct; and whether the amount of punitive damages bears a reasonable relationship to the compensatory damages awarded.


FINAL INSTRUCTION NO. 9 - DELIBERATIONS

 

 

        In conducting your deliberations and returning your verdict, there are certain rules that 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. 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 as I have given it to you in my instructions. 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 Form. A Verdict Form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the Verdict Form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the Verdict Form and all of you must sign that copy to record your individual agreement with the verdict and to show that it is unanimous. The foreperson must bring the signed Verdict Form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

        DATED this 4th day of November, 2005.

 

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                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION


ANITA LOPEZ and MARICELA VILLALPANDO,

 

Plaintiffs,

Nos. C 03-4015-MWB

C 03-4030-MWB

vs.

VERDICT FORM

ARAMARK UNIFORM & CAREER APPAREL, INC., a Delaware corporation,

Defendant.

____________________



I. ANITA LOPEZ


        On the claims of plaintiff Anita Lopez, we, the Jury, find as follows:


HOSTILE ENVIRONMENT SEXUAL HARASSMENT

Step 1:

Harassment

Has plaintiff Anita Lopez proved the five elements of her claim of hostile environment sexual harassment, as explained in Final Jury Instruction No. 3? (If your answer is “no,” do not consider Step 2 or Step 3 for this claim; instead, enter a verdict on this claim in favor of ARAMARK in Step 4, then go on to consider your verdict on Ms. Lopez’s other claim. However, if your answer is “yes,” please go on to Step 2 for this claim.)


___ Yes


___ No

Step 2:

Tangible Employment Action

If you answered “yes” to the question in Step 1, do you find that the hostile environment sexual harassment resulted in a “tangible employment action,” as “tangible employment action” is defined in Final Jury Instruction No. 3? (If you answered “no,” then you must consider ARAMARK’s affirmative defense in Step 3. However, if you answered “yes,” then do not consider ARAMARK’s affirmative defense in Step 3; instead, enter a verdict in favor of Ms. Lopez in Step 4, and go on to consider damages on this claim in Steps 5 and 6.)

_____ Yes

_____ No

Step 3:

Affirmative defense

If you answered “no” to the question in Step 2, do you find that ARAMARK has proved the affirmative defense explained in Final Jury Instruction No. 3? (If your answer is “yes,” you must enter a verdict in favor of ARAMARK in Step 4. However, if your answer is “no,” you must enter a verdict in favor of Ms. Lopez in Step 4.)

___ Yes

___ No

Step 4:

Verdict

Do you find in favor of plaintiff Lopez or defendant ARAMARK on plaintiff Lopez’s claim of hostile environment sexual harassment? (If you find in favor of defendant ARAMARK, do not consider any further Steps for this claim; instead, go on to consider your verdict on Ms. Lopez’s other claim. However, if you find in favor of plaintiff Lopez, go on to consider damages in Steps 5 and 6.)

_____ Plaintiff Lopez

_____ Defendant ARAMARK

Step 5:

Emotional Distress Damages

What amount, if any, do you award for emotional distress damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for past emotional distress

 

 

$___________________ for future emotional distress

Step 6:

Punitive Damages

What amount, if any, do you award for punitive damages on this claim, as punitive damages are explained in Final Jury Instruction No. 8?

 

$___________________ for punitive damages

 

 

RETALIATION

Step 1:

Verdict

Do you find in favor of plaintiff Lopez or defendant ARAMARK on plaintiff Lopez’s claim of retaliation, as that claim is explained in Final Jury Instruction No. 4? (If you find in favor of defendant ARAMARK, do not consider any further Steps for this claim; instead, go on to consider your verdict on plaintiff Villalpando’s claims. However, if you find in favor of plaintiff Lopez, go on to consider damages in Steps 2 and 3.)

_____ Plaintiff Lopez

_____ Defendant ARAMARK

Step 2:

Emotional Distress Damages

What amount, if any, do you award for emotional distress damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for past emotional distress

 

 

$___________________ for future emotional distress

Step 3:

Punitive Damages

What amount, if any, do you award for punitive damages on this claim, as punitive damages are explained in Final Jury Instruction No. 8?

 

$___________________ for punitive damages

 

 



Date: ________________     Time: ________________



_______________________________

Foreperson

_______________________________

Juror


________________________________

Juror


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Juror




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Juror




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Juror


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Juror


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Juror






I. MARICELA VILLALPANDO


        On the claims of plaintiff Maricela Villalpando, we, the Jury, find as follows:


HOSTILE ENVIRONMENT SEXUAL HARASSMENT

Step 1:

Harassment

Has plaintiff Maricela Villalpando proved the five elements of her claim of hostile environment sexual harassment, as explained in Final Jury Instruction No. 3? (If your answer is “no,” do not consider Step 2 or Step 3 for this claim; instead, enter a verdict on this claim in favor of ARAMARK in Step 4, then go on to consider your verdict on Ms. Villalpando’s other claim. However, if your answer is “yes,” please go on to Step 2 for this claim.)


___ Yes


___ No

Step 2:

Tangible Employment Action

If you answered “yes” to the question in Step 1, do you find that the hostile environment sexual harassment resulted in a “tangible employment action,” as “tangible employment action” is defined in Final Jury Instruction No. 3? (If you answered “no,” then you must consider ARAMARK’s affirmative defense in Step 3. However, if you answered “yes,” then do not consider ARAMARK’s affirmative defense in Step 3; instead, enter a verdict in favor of Ms. Villalpando in Step 4, and go on to consider damages on this claim in Steps 5 and 6.)

_____ Yes

_____ No

Step 3:

Affirmative defense

If you answered “no” to the question in Step 2, do you find that ARAMARK has proved the affirmative defense explained in Final Jury Instruction No. 3? (If your answer is “yes,” you must enter a verdict in favor of ARAMARK in Step 4. However, if your answer is “no,” you must enter a verdict in favor of Ms. Villalpando in Step 4.)

___ Yes

___ No

Step 4:

Verdict

Do you find in favor of plaintiff Villalpando or defendant ARAMARK on plaintiff Villalpando’s claim of hostile environment sexual harassment? (If you find in favor of defendant ARAMARK, do not consider any further Steps for this claim; instead, go on to consider your verdict on Ms. Villalpando’s other claim. However, if you find in favor of plaintiff Villalpando, go on to consider damages in Steps 5, 6, and 7.)

_____ Plaintiff Villalpando

_____ Defendant ARAMARK

Step 5:

Emotional Distress Damages

What amount, if any, do you award for emotional distress damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for past emotional distress

 

 

$___________________ for future emotional distress

Step 6:

Backpay

What amount, if any, do you award for backpay damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for backpay

 

 

Step 7:

Punitive Damages

What amount, if any, do you award for punitive damages on this claim, as punitive damages are explained in Final Jury Instruction No. 8?

 

$___________________ for punitive damages

 

 

RETALIATION

Step 1:

Verdict

Do you find in favor of plaintiff Villalpando or defendant ARAMARK on plaintiff Villalpando’s claim of retaliation, as that claim is explained in Final Jury Instruction No. 4? (If you find in favor of defendant ARAMARK, do not consider any further Steps for this claim; instead, notify the Court Security Officer that you have reached a verdict. However, if you find in favor of plaintiff Villalpando, go on to consider the questions in Steps 2 through 5.)

_____ Plaintiff Villalpando

_____ Defendant ARAMARK

Step 2:

Constructive Discharge

Do you find that Ms. Villalpando was constructively discharged by retaliation, as constructive discharge is explained in Final Jury Instruction No. 5? (Remember that you cannot award damages for backpay in Step 4, unless you answer “yes” to this question.)

 

___ Yes

___ No

 

 

Step 3:

Emotional Distress Damages

What amount, if any, do you award for emotional distress damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for past emotional distress

 

 

$___________________ for future emotional distress

Step 4:

Backpay

If you found that plaintiff Villalpando was constructively discharged in Step 2, what amount, if any, do you award for backpay damages on this claim, as such damages are explained in Final Jury Instruction No. 7?

 

$___________________ for backpay

 

 

Step 5:

Punitive Damages

What amount, if any, do you award for punitive damages on this claim, as punitive damages are explained in Final Jury Instruction No. 8?

 

$___________________ for punitive damages

 

 



Date: ________________     Time: ________________



_______________________________

Foreperson

_______________________________

Juror


________________________________

Juror


_______________________________

Juror


_______________________________

Juror


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Juror


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Juror


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Juror