IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



RITA LYNN BAKER,
Plaintiff,

No. C 01-4003-MWB

vs.



PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

JOHN MORRELL & CO.,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - BURDEN OF PROOF 3

NO. 4 - ELEMENTS OF PLAINTIFF'S CLAIMS 4

NO. 5 - ORDER OF TRIAL 7

NO. 6 - DEFINITION OF EVIDENCE 8

NO. 7 - CREDIBILITY OF WITNESSES 9

NO. 8 - STIPULATED FACTS 10

NO. 10 - INTERROGATORIES 12

NO. 11 - OBJECTIONS 13

NO. 12 - BENCH CONFERENCES 14

NO. 13 - NOTE-TAKING 15

NO. 14 - CONDUCT OF JURORS DURING TRIAL 16

FINAL INSTRUCTIONS 18

NO. 1 - INTRODUCTION 18

NO. 2 - TESTIMONY OF EXPERTS AND IMPEACHMENT OF

WITNESSES 19

NO. 3 - SEXUAL HARASSMENT 20

NO. 4 - DEFINITIONS: "ADVERSE EMPLOYMENT ACTION" AND

"MOTIVATING FACTOR" 24

NO. 5 - RETALIATION 26

NO. 6 - DISPARATE TREATMENT 29

NO. 7 - CONSTRUCTIVE DISCHARGE 31

NO. 8 - DAMAGES--IN GENERAL 33

NO. 9 - COMPENSATORY DAMAGES 35

NO. 10 - NOMINAL DAMAGES 38

NO. 11 - PUNITIVE DAMAGES 39

NO. 12 - DELIBERATIONS 41



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, defendant John Morrell 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 Rita Baker and John Morrell stand equal before the law, and are entitled to the same fair consideration by you. When a corporation such as John Morrell is involved, of course, it may act only through natural persons, such as its managers, 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 depends upon that fact. In this case, unless I tell you otherwise, that party is plaintiff Rita Baker.

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 - ELEMENTS OF

PLAINTIFF'S CLAIMS





As I explained during jury selection, plaintiff Rita Baker asserts the following claims against defendant John Morrell: (1) sexual harassment; (2) retaliation; and (3) disparate treatment based upon sex. Each of her claims consists of "elements," which she must prove by the greater weight of the evidence if she is to win on that claim. To help you follow the evidence, here is a brief summary of the elements of Ms. Baker's claims.



SEXUAL HARASSMENT

Ms. Baker's first claim is that she was subjected to sexual harassment by co-workers at John Morrell, which was sufficiently severe to create a sexually hostile work environment. For Ms. Baker to win on her claim of sexual harassment, she must prove the following elements by the greater weight of the evidence:

One, Rita Baker was subjected to offensive conduct by male co-workers at John Morrell;

Two, such conduct was based on Rita Baker's sex;

Three, such conduct was unwelcome;

Four, at the time such conduct occurred, and as a result of such conduct, Rita Baker believed her work environment to be hostile or abusive;

Five, such conduct was sufficiently severe or pervasive that a reasonable person in Rita Baker's position would find her work environment to be hostile or abusive;

Six, John Morrell knew or should have known of the offensive conduct; and

Seven, John Morrell failed to take prompt and appropriate corrective action to end the offensive conduct.



RETALIATION

Ms. Baker's second claim is that John Morrell retaliated against her for opposing sexual harassment.

Elements

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

One, Rita Baker opposed or complained about conduct that she reasonably believed was sexual harassment;

Two, John Morrell subsequently took adverse employment action against Rita Baker; and

Three, Rita Baker's opposition to or complaints about sexual harassment were a motivating factor for the adverse employment action taken by John Morrell.

"Same decision" defense

If Ms. Baker proves all of the elements of her "retaliation" claim, then you must consider whether John Morrell has proved, by the greater weight of the evidence, that it would have made the same decision about its actions towards Ms. Baker or the conditions of her employment regardless of her opposition to or complaints about sexual harassment.



DISPARATE TREATMENT

Ms. Baker's third claim is that she was subjected to "disparate treatment" because of her sex, that is, that she was subjected to different, more adverse employment actions or conditions than similarly situated male employees.

Elements

To win her claim of disparate treatment, Ms. Baker must prove the following elements by the greater weight of the evidence:

One, Rita Baker was subjected to different, more adverse employment actions or conditions than similarly situated male employees; and

Two, Rita Baker's sex was a motivating factor for that different treatment.

"Same decision" defense

If Ms. Baker proves both of the elements of her "disparate treatment" claim, then you must consider whether John Morrell has proved, by the greater weight of the evidence, that it would have made the same decision about its actions towards Ms. Baker or the conditions of her employment regardless of her sex.



This is only a preliminary outline of the elements of Ms. Baker's 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 Ms. Baker's claims.

PRELIMINARY INSTRUCTION NO. 5 - ORDER OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the plaintiff's 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 plaintiff will present evidence and call witnesses and the lawyer for the defendant may cross-examine them. Following the plaintiff's case, the defendant may present evidence and call witnesses and the lawyer for the plaintiff 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 instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 6 - 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 determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.

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, 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.

PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS



The plaintiff 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. 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. Consider that testimony as if it had been given in court.

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



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. 12 - 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. 13 - 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. 14 - 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 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.

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 23rd day of September, 2002.



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.

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 - TESTIMONY OF EXPERTS

AND IMPEACHMENT OF WITNESSES





In Preliminary Instruction No. 7, I instructed you generally on the credibility of witnesses. However, I must now give you some further instructions on the testimony of "experts" and how the credibility of witnesses can be "impeached."

Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you have heard 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.

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 - SEXUAL HARASSMENT





Ms. Baker's first claim is that she was subjected to sexual harassment by co-workers at John Morrell, which was sufficiently severe to create a sexually hostile work environment. For Ms. Baker to win on her claim of sexual harassment, she must prove the following elements by the greater weight of the evidence:

One, Rita Baker was subjected to offensive conduct by male co-workers at John Morrell.

Rita Baker alleges that the conduct of employees at John Morrell that created a sexually hostile environment included one or more of the following: rude sexual comments; other rude comments, including comments about her need to use the restroom; name-calling and swearing; Jeff Eichmann ("Eightball") making sexually suggestive hip thrusts to Ms. Baker; Eichmann referring to her as a dumb bitch; Eichmann and Murphy making her job harder by turning boxes the wrong direction on the conveyer belt to her scale, in retaliation for Ms. Baker's refusal to go out with Murphy and the displeasure she showed to Eichmann concerning his sexual gestures and sexually offensive language; Murphy asking her to go out with him; Murphy giving Ms. Baker a Wonder Woman Pez dispenser and saying he "wondered what she would look like naked"; Eichmann assaulting her with his truck and by pushing her and throwing a heavy box of meat at her and threatening to kill her mother; Eichmann brushing by her and pushing his pelvis into her; Murphy spreading sexual rumors about her; and retaliation following her complaints to her supervisors.



Two, such conduct was based on Rita Baker's sex.

Harassing conduct constitutes discrimination based on sex when members of one sex are exposed to conditions of employment to which members of the other sex are not exposed. The harassment need not be explicitly sexual in nature, nor must the plaintiff show that only women were subjected to harassment. However, she must prove by the greater weight of the evidence that women were the primary target of such harassment, that is, that a majority of the harassing conduct was directed toward females.



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, at the time such conduct occurred, and as a result of such conduct, Rita Baker believed her work environment to be hostile or abusive.

The victim must in fact perceive the environment to be hostile or abusive.



Five, such conduct was sufficiently severe or pervasive that a reasonable person in Rita Baker's position would find her work environment to be hostile or abusive.

The objectionable environment must be both one that the plaintiff found hostile or abusive, and one that a reasonable person in her position would have found to be so. 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 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 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 Rita Baker's position would find the work environment to be hostile or abusive.



Six, John Morrell knew or should have known of the offensive conduct.

John Morrell knew or should have known of the harassment if authorized agents or supervisors with a reporting duty (or persons who a reasonable person in Rita Baker's position would have believed to have such a duty) acquired knowledge of sexual harassment.



Seven, John Morrell failed to take prompt and appropriate corrective action to end the offensive conduct.

If the employer knows or should have known of harassment, the employer must undertake an investigation. The test of the adequacy of the investigation is its reasonableness in light of what the employer knew or should have known about the harassment and the seriousness of the harassment alleged. An investigation is not adequate if it is carried out in such a way that it prevents the discovery of serious and significant harassment, such that the remedy chosen by the employer cannot be reasonably calculated to prevent the harassment. Similarly, an employer's decision to do nothing on the basis of an inadequate investigation supports a finding that the employer did not take prompt and appropriate corrective action.

However, the law does not require that investigations into sexual harassment complaints be perfect, and an employer may take adequate remedial action even if its investigation was flawed. The ultimate question is whether the employer's remedial action was reasonably calculated to prevent further harassment.

The reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in the harassment. In evaluating the adequacy of the remedy, you may also take into account the remedy's ability to persuade potential harassers to refrain from unlawful conduct. However, an employer is liable for the harassment if no remedy is undertaken, or if the remedy attempted is not reasonably likely to be effective.

In deciding whether John Morrell took prompt and appropriate corrective action, factors you may consider include the amount of time that elapsed between the notice and corrective action; the options available to the employer, possibly including employee training sessions, transferring the harassers, written warnings, reprimands in personnel files, or termination; and whether or not the measures ended the harassment. Because it is not always possible for an employer to eliminate offensive behavior completely, your consideration of the effectiveness of the remedy should not look to whether offensive behavior actually ceased, but to whether the remedial and preventive action was reasonably calculated to end the harassment. Thus, an employer cannot be held liable if it did all that it reasonably could to stop the harassment.



Unless Ms. Baker proves all of these elements by the greater weight of the evidence, your verdict must be for John Morrell on Ms. Baker's claim of sexual harassment. However, if you find that Ms. Baker has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount on her claim of sexual harassment.

FINAL INSTRUCTION NO. 4 - DEFINITIONS: "ADVERSE

EMPLOYMENT ACTION" AND "MOTIVATING FACTOR"





Rita Baker's second and third claims, her claims of "retaliation" and "disparate treatment," each depend, in part, upon whether she proves that John Morrell took "adverse employment action" against her and whether a "motivating factor" for that "adverse employment action" was Rita Baker's opposition to sexual harassment, in the case of her "retaliation" claim, or her sex, in the case of her "disparate treatment claim." Therefore, I will now explain what is meant by "adverse employment action" and "motivating factor."

Adverse employment action. Not everything that makes an employee unhappy is an "adverse employment action" sufficient to prove a retaliation or disparate treatment 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.

Motivating factor. Rita Baker's (1) opposition to sexual harassment or (2) sex was a "motivating factor" if her opposition to sexual harassment or her sex played a part or played a role in John Morrell's decisions. However, the plaintiff's opposition to sexual harassment or her sex need not have been the only reason for those employment decisions.

You may find that Ms. Baker's opposition to sexual harassment or her sex was a motivating factor in John Morrell's adverse employment decisions if Ms. Baker has proved by the greater weight of the evidence that John Morrell's stated reasons for its decisions are not the true reasons, but are instead a pretext to hide a retaliatory or disparate decision. However, you cannot find that the "motivating factor" element of a retaliation or disparate treatment claim has been proved simply because you disagree with John Morrell's decisions, or think that those decisions were harsh and unreasonable. Instead, the "motivating factor" element is only proved if you find by the greater weight of the evidence that Ms. Baker's opposition to sexual harassment, in the case of her retaliation claim, or her sex, in the case of her disparate treatment claim, was a motivating factor for John Morrell's adverse employment action.

FINAL INSTRUCTION NO. 5 - RETALIATION





Ms. Baker's second claim is that John Morrell retaliated against her for opposing sexual harassment.

Elements

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

One, Rita Baker opposed or complained about conduct that she reasonably believed was sexual harassment.

Federal anti-discrimination law makes it unlawful for an employer to discriminate against an employee because of the employee's "opposition" to conduct or employment practices made unlawful under that law. Ms. Baker alleges that she opposed sexual harassment by protesting Eichmann and Murphy's treatment of her to supervisors, personnel managers, union representatives, the Sioux City Human Rights Commission, and eventually to the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission. The plaintiff must also prove that a reasonable person could have believed that the incidents about which she complained violated federal anti-discrimination law. In deciding whether a reasonable person could have believed that the incidents about which Ms. Baker complained violated federal anti-discrimination law, 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 is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.



Two, John Morrell subsequently took adverse employment action against Rita Baker.

"Adverse employment action" was defined for you in Final Jury Instruction No. 4. Ms. Baker contends that John Morrell subsequently took adverse employment action against her consisting of management refusing to take active steps to prevent Eichmann and Murphy from further sexual harassment, knowing that there was a likelihood that it would continue and that it would be very disturbing to Ms. Baker. She also alleges adverse employment action consisting of Kathi Brown blaming Ms. Baker for reporting the harassment to John Morrell and the Civil Rights Commission when she told Ms. Baker she "was sick of (her) shit and that she (Baker) drug her into the whole mess" and telling her to "shut the fuck up"; adding work to Ms. Baker's job; refusing to provide help to her, even though Ms. Brown provided help to other, similarly situated, employees; and by refusing to give Ms. Baker equal breaks. Finally, she contends that adverse employment action consisted of forcing her to quit her job, or "constructively discharging" her, which will be explained in more detail in Final Jury Instruction No. 7.



Three, Rita Baker's opposition to or complaints about sexual harassment were a motivating factor for the adverse employment action taken by John Morrell.

"Motivating factor" was defined for you in Final Jury Instruction No. 4.



Unless Ms. Baker proves all of these elements by the greater weight of the evidence, your verdict must be for John Morrell on Ms. Baker's claim of retaliation. However, if you find that Ms. Baker has proved all of these elements by the greater weight of the evidence, you must consider whether John Morrell has proved its "same decision" defense, as explained below.

"Same decision" defense

If Ms. Baker proves all of the elements of her "retaliation" claim, then you must consider whether John Morrell has proved, by the greater weight of the evidence, that it would have made the same decision about its actions towards Ms. Baker or the conditions of her employment regardless of her opposition to sexual harassment. If John Morrell proves this defense, then you must enter your verdict in favor of John Morrell on this claim.

FINAL INSTRUCTION NO. 6 - DISPARATE TREATMENT





Ms. Baker's third claim is that she was subjected to "disparate treatment" because of her sex, that is, that she was subjected to different, more adverse employment actions or conditions than similarly situated male employees.

Elements

To win her claim of disparate treatment, Ms. Baker must prove the following elements by the greater weight of the evidence:

One, Rita Baker was subjected to different, more adverse employment actions or conditions than similarly situated male employees.

To prove disparate treatment, the plaintiff must show that she was similarly situated in all relevant respects to one or more male co-workers who were treated more favorably. In order to determine whether a plaintiff has shown that the employees involved were "similarly situated," you must consider, for example, whether the employees are involved in the same or similar jobs, or are accused of the same or similar conduct, but are treated or disciplined in different ways. Rita Baker alleges that John Morrell assigned her a disparate amount of job responsibilities, and refused to provide her with assistance that was made available to male employees, denied her equal access to bathroom breaks, and denied her breaks of equal frequency or duration.

The different treatment must also be sufficient to constitute "adverse employment action." "Adverse employment action" was defined for you in Final Jury Instruction No. 4.



Two, Rita Baker's sex was a motivating factor for that different treatment.

"Motivating factor" was defined for you in Final Jury Instruction No. 4.



Unless Ms. Baker proves both of these elements by the greater weight of the evidence, your verdict must be for John Morrell on Ms. Baker's claim of disparate treatment. However, if you find that Ms. Baker has proved both of these elements by the greater weight of the evidence, then you must consider whether John Morrell has proved its "same decision" defense, as explained below.

"Same decision" defense

If Ms. Baker proves both of the elements of her "disparate treatment" claim, then you must consider whether John Morrell has proved, by the greater weight of the evidence, that it would have made the same decision about its actions towards Ms. Baker or the conditions of her employment regardless of her sex. The effect of this defense is different for a "disparate treatment" claim than it is for a "retaliation" claim. If John Morrell proves this defense, then you cannot award Rita Baker damages for disparate treatment, although she may be entitled to other relief that only the court can provide. Therefore, if you find that John Morrell has proved its "same decision" defense, you will still enter your verdict for Rita Baker on her "disparate treatment" claim in the Verdict Form, but you will also mark the box indicating that John Morrell has proved its "same decision" defense, and award no damages to Rita Baker on her "disparate treatment" claim.

FINAL INSTRUCTION NO. 7 - CONSTRUCTIVE DISCHARGE





Finally, Ms. Baker contends that John Morrell's unlawful actions--sexual harassment, retaliation, and disparate treatment--caused her "constructive discharge," 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. Baker to additional damages resulting from the loss of her employment. Therefore, you will consider Ms. Baker's contention that she was "constructively discharged" only if you find in favor of Ms. Baker on one or more of her claims of sexual harassment, retaliation, or disparate treatment.

To prove that she was constructively discharged by unlawful actions of John Morrell, Ms. Baker must prove all of the following elements by the greater weight of the evidence:

One, either through action or inaction, John Morrell made Rita Baker'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 Rita Baker'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, Rita Baker's opposition to sexual harassment or her sex was a motivating factor in John Morrell's action or inaction.

"Motivating factor" was defined for you in Final Jury Instruction No. 4.



Three, John Morrell acted, or failed to act, with the intent of forcing Rita Baker to quit or her resignation was a reasonably foreseeable result of John Morrell's action or inaction.

Unless Ms. Baker proves all of these elements by the greater weight of the evidence, you cannot find that she was constructively discharged. However, if you find that Ms. Baker has proved all of these elements by the greater weight of the evidence, then she is entitled to damages in some amount proximately caused by her constructive discharge.

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 the plaintiff is entitled to damages in accord with the other instructions.

If you find that the plaintiff is entitled to damages 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 wrongful 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 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. 11, 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 that the 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.

You have heard evidence of allegedly disparate treatment and harassing or retaliatory conduct by John Morrell prior to March 30, 1999. You may consider such evidence as relevant background evidence regarding disparate treatment, but you may not award damages for any conduct prior to March 30, 1999, on Ms. Baker's disparate treatment claim. However, you may award damages for harassing or retaliatory conduct that occurred prior to March 30, 1999.

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 John Morrell has proved by the greater weight of the evidence that Ms. Baker failed to seek out or take advantage of an opportunity to reduce her damages that was reasonably available to her, then you must reduce her 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" section 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 wrongful conduct of the defendant.

FINAL INSTRUCTION NO. 9 - COMPENSATORY DAMAGES



If you find in favor of Ms. Baker 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 damages, if any, that you find were proximately caused by the wrongful conduct of the defendant at issue in that claim. Ms. Baker seeks three distinct kinds of compensatory damages on each claim: emotional distress damages, medical expenses, and backpay. You must consider each of these kinds of damages separately for each claim.

Emotional distress damages. Ms. Baker seeks damages for "emotional distress." Damages for emotional distress are the amount of damages that will reasonably compensate Ms. Baker for the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that was proximately caused by the wrongful conduct of the defendant at issue in a particular claim. Damages for emotional distress must compensate Ms. Baker for any emotional distress that she suffered from the time of the wrongful conduct until the time you give your verdict. The amount, if any, that you assess for damages for emotional distress cannot be measured by an exact or mathematical standard, and the 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.

Ms. Baker seeks two separate items of emotional distress damages, each proximately caused by different actions resulting from John Morrell's wrongful conduct: (1) emotional distress damages for the harassment, retaliation, or disparate treatment alleged in the claim in question; and (2) emotional distress damages for her constructive discharge. Although you may award the same or different amounts, if any, for emotional distress damages for harassment, retaliation, or disparate treatment, you may only award damages once for emotional distress caused by the plaintiff's constructive discharge. Therefore, do not allow any amount awarded for one item of emotional distress damages to be included in any amount awarded for any other item of such damages. This is so, because the plaintiff is not entitled to recover duplicate damages.

Emotional distress damages proximately caused by harassment, retaliation, or disparate treatment are damages for emotional distress proximately caused by the defendant's unlawful conduct at issue in the claim alleging such wrongful conduct.

You may also award emotional distress damages, if any, proximately caused by Ms. Baker's constructive discharge, if you find in her favor on one or more of her claims and you find that the conduct at issue in a claim or claims upon which she prevails proximately caused her constructive discharge, as constructive discharge is explained in Final Jury Instruction No. 7.

You may award damages for future emotional distress only if you find that the plaintiff's emotional distress proximately caused by the defendant's wrongful conduct is reasonably certain to extend into the future.

Medical expenses. Ms. Baker also seeks damages for past and future medical expenses proximately caused by the wrongful conduct of John Morrell. You may award damages for future medical expenses only if you find that the plaintiff's medical expenses proximately caused by the defendant's wrongful conduct are reasonably certain to extend into the future. Do not reduce any damages you may award for medical expenses by the amount paid by insurance, if any; instead, award the full amount of any such damages.

Backpay. Ms. Baker also seeks an award of backpay. You can only award backpay if you find that the wrongful conduct of John Morrell at issue on any of Ms. Baker's claims proximately caused Ms. Baker's constructive discharge, as constructive discharge is explained in Final Jury Instruction No. 7. Moreover, you can only award backpay for constructive discharge once, even if Ms. Baker prevails on more than one of her claims. "Backpay" is the amount of any wages and fringe benefits that Ms. Baker would have earned from the date that you find 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.

FINAL INSTRUCTION NO. 10 - NOMINAL DAMAGES



If you find in favor of plaintiff on one or more of her claims, but you find that her damages proximately caused by the wrongful conduct at issue on that claim have no monetary value, then you must return a verdict on that claim for the plaintiff in the nominal amount of One Dollar ($1.00).

FINAL INSTRUCTION NO. 11 - PUNITIVE DAMAGES



In addition to compensatory damages described in Final Jury Instruction No. 9, 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 any of Ms. Baker's claims. 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 Ms. Baker has prevailed, but only if you find that, as to the wrongful conduct at issue on that particular claim, (1) the defendant acted with malice or reckless disregard for, and did not make a good faith effort to comply with, the law, and (2) it is appropriate to punish the defendant or to deter the defendant and others from like conduct in the future. 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, retaliation for opposing sexual harassment, or disparate treatment based on sex, 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.

If you find that defendant acted with malice or reckless disregard and did not make a good-faith effort to comply with the law, then, in addition to any actual or nominal damages to which you find plaintiff is entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter defendant and others from like conduct in the future. Whether to award plaintiff punitive damages, and the amount of those damages, are within your discretion.

In determining the amount of punitive damages, if any, to award on these claims, you should consider how offensive the defendant's conduct at issue in that claim was; what amount is needed, considering the defendant's financial condition, to punish the defendant for its wrongful conduct toward the plaintiff and to prevent a repetition of that wrongful conduct in the future; whether the amount of punitive damages bears a reasonable relationship to the actual damages awarded on that particular claim; and what sum is sufficient to deter other similar employers from similar wrongful conduct in the future.

FINAL INSTRUCTION NO. 12 - 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. 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. 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 1st day of October, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





RITA LYNN BAKER,
Plaintiff,

No. C 01-4003-MWB

vs.





VERDICT FORM

JOHN MORRELL & CO.,
Defendant.

____________________





PART I: LIABILITY

On the claims of plaintiff Rita Baker, we, the Jury, find as follows:

SEXUAL HARASSMENT VERDICT
Step 1:

Liability

On the claim of sexual harassment, as explained in Final Jury Instruction No. 3, in whose favor do you find? _____ Ms. Baker

_____ John Morrell

Step 2:

ConstructiveDischarge

If you found in favor of Ms. Baker on this claim, do you find that she was constructively discharged by the wrongful conduct at issue on this claim, as constructive discharge is explained in Final Jury Instruction No. 7? (Remember, you cannot award certain damages on this claim unless you find that Ms. Baker was constructively discharged by the wrongful conduct at issue on this claim.) _____ Yes

_____ No

RETALIATION VERDICT
Step 1:

Liability

(a) Proof of elements. Has Ms. Baker proved all of the elements of her claim of retaliation for opposing sexual harassment, as explained in Final Jury Instruction No. 5? (Unless Ms. Baker has proved all of the elements of her retaliation claim, you must enter your verdict at step 1(c) in favor of John Morrell.) _____ Yes

_____ No

(b) Proof of defense. Has John Morrell proved its "same decision" defense? (If John Morrell has proved its "same decision" defense, your verdict must be in favor of John Morrell.) _____ Yes

_____ No

(c) Verdict. On the claim of retaliation, as explained in Final Jury Instruction No. 5, in whose favor do you find? (Your verdict will be for Ms. Baker if she has proved all of the elements of her claim and John Morrell has failed to prove its "same decision" defense; otherwise, your verdict must be for John Morrell on this claim.) _____ Ms. Baker

_____ John Morrell

Step 2:

ConstructiveDischarge

If you found in favor of Ms. Baker on this claim, do you find that she was constructively discharged by the wrongful conduct at issue on this claim, as constructive discharge is explained in Final Jury Instruction No. 7? (Remember, you cannot award certain damages on this claim unless you find that Ms. Baker was constructively discharged by the wrongful conduct at issue on this claim.) _____ Yes

_____ No

DISPARATE TREATMENT VERDICT
Step 1:

Liability

On the claim of disparate treatment, as explained in Final Jury Instruction No. 6, in whose favor do you find? _____ Ms. Baker

_____ John Morrell

Step 2:

ConstructiveDischarge

If you found in favor of Ms. Baker on this claim, do you find that she was constructively discharged by the wrongful conduct at issue on this claim, as constructive discharge is explained in Final Jury Instruction No. 7? (Remember, you cannot award certain damages on this claim unless Ms. Baker was constructively discharged by the wrongful conduct at issue on this claim.) _____ Yes

_____ No

Step 3:

"Same Decision" Defense

If you found in favor of Ms. Baker on this claim, do you find that defendant John Morrell has proved by the greater weight of the evidence that it would have made the same decision about its actions towards Ms. Baker or the conditions of her employment regardless of her sex? (Remember, if John Morrell proves this defense, then you cannot award Rita Baker damages for disparate treatment, although she may be entitled to other relief that only the court can provide.) _____ Yes

_____ No



If you have found in favor of plaintiff Rita Baker on one or more of her claims, then continue with Part II of this Verdict Form to award damages on the claim or claims on which she has prevailed. However, if you found in favor of defendant John Morrell on all of Ms. Baker's claims, do not complete Part II of this Verdict Form. Instead, sign the Verdict Form and notify the Court Security Officer that you have reached a verdict.

PART II: DAMAGES

On the claim or claims on which plaintiff Rita Baker has prevailed, we, the Jury, award damages as follows:

COMPENSATORY DAMAGES

(Please see Final Jury Instruction No. 9.)

AMOUNT
Step 1:

Emotional distress damages

(a) for wrongful conduct

Sexual harassment Past emotional distress $__________________
Future emotional distress $__________________
Retaliation Past emotional distress $__________________
Future emotional distress $__________________
Disparate treatment (Award no damages if John Morrell has proved its "same decision" defense.) Past emotional distress $__________________
Future emotional distress $__________________
(b) for constructive discharge Constructive discharge Past emotional distress $__________________
Future emotional distress $__________________
Step 2:

Medical expenses

Sexual harassment Past medical expenses $__________________
Future medical expenses $__________________
Retaliation Past medical expenses $__________________
Future medical expenses $__________________
Disparate treatment

(Award no damages if John Morrell has proved its "same decision" defense.)

Past medical expenses $__________________
Future medical expenses $__________________
Step 3:

Backpay

Remember: You may only award backpay if you find in favor of the plaintiff on one or more of her claims, and that the wrongful conduct at issue on that claim or those claims proximately caused the plaintiff's constructive discharge. However, the plaintiff is only entitled to one award of backpay, even if she prevails on more than one of her claims. $__________________
NOMINAL DAMAGES

(Nominal damages may be awarded instead of compensatory damages, as explained in Final Jury Instruction No. 10.)

AMOUNT
Nominal damages for "sexual harassment" $__________________
Nominal damages for "retaliation" $__________________
Nominal damages for "disparate treatment" $__________________
PUNITIVE DAMAGES

(Please see Final Jury Instruction No. 11.)

AMOUNT
What amount, if any, do you award as punitive damages for "sexual harassment"? $__________________
What amount, if any, do you award as punitive damages for "retaliation"? $__________________
What amount, if any, do you award as punitive damages for "disparate treatment"? $__________________







Date: ________________ Time: ________________





_______________________________

Foreperson

_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror