IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





CHARLENE KUCHENREUTHER,
Plaintiff,

No. C 98-3031-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

AG PROCESSING, INC., a Corporation, a/k/a AG PROCESSING, INC., a Cooperative, a/k/a PROCESSING ASSOCIATES - AGP OF EAGLE GROVE, IOWA,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF CLAIMS

NO. 4 - BURDEN OF PROOF

NO. 5 - DUTY OF JURORS

NO. 6 - ORDER OF TRIAL

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - STIPULATED FACTS

NO. 10 - DEPOSITIONS

NO. 11 - INTERROGATORIES

NO. 12 - OBJECTIONS

NO. 13 - BENCH CONFERENCES

NO. 14 - NOTE-TAKING

NO. 15 - CONDUCT OF JURORS DURING TRIAL

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - SEXUALLY HOSTILE ENVIRONMENT--HARASSMENT BY CO-WORKERS

NO. 4 - SEXUALLY HOSTILE ENVIRONMENT--HARASSMENT BY SUPERVISORS

NO. 5 - CONSTRUCTIVE DISCHARGE

NO. 6 - WAGE DISCRIMINATION

NO. 7 - DAMAGES--IN GENERAL

NO. 8 - ACTUAL DAMAGES

NO. 9 - PUNITIVE DAMAGES

NO. 10 - DELIBERATIONS



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



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



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



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

This is a civil case brought by plaintiff Charlene Kuchenreuther against her former employer, defendant Ag Processing, Inc., of Eagle Grove, which will be called AGP throughout these instructions. Ms. Kuchenreuther has brought claims of sexual harassment and wage discrimination during her employment with AGP from September of 1994 through October of 1997. During that time, Ms. Kuchenreuther held various jobs at the AGP Eagle Grove plant.

More specifically, Ms. Kuchenreuther alleges that she was subjected to sexual harassment by co-workers and supervisors at AGP until she quit her employment in 1997. She alleges that the actions of the co-workers and supervisors created a sexually hostile work environment. She also alleges that she was "constructively discharged" by AGP's conduct, that is, that AGP's actions were intended to force her to quit by making her working conditions intolerable. In addition, Ms. Kuchenreuther claims that she was not paid the same rate as men who did the same job. She seeks an award of money damages caused by the sexually hostile environment and wage discrimination.

AGP denies Ms. Kuchenreuther's claims. AGP contends that Ms. Kuchenreuther failed to complain to the company about all of the alleged harassment, and that the company took reasonable care to protect Ms. Kuchenreuther and its other employees from any harassing conduct. AGP also contends that Ms. Kuchenreuther failed to "mitigate" her damages--that is, to exercise reasonable diligence under the circumstances to minimize her damages. AGP also denies that Ms. Kuchenreuther was not paid the same rate as men who did the same job.

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

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS



To help you follow the evidence, here is a brief summary of the elements of Ms. Kuchenreuther's claims of a sexually hostile environment and wage discrimination and AGP's defenses to those claims.

1. Sexually Hostile Environment

Ms. Kuchenreuther alleges harassment by both co-workers and supervisors, which created a sexually hostile environment. Somewhat different standards of employer liability apply to harassment by co-workers and harassment by supervisors.

Harassment by co-workers

To win her claim of a sexually hostile work environment created by harassment from non-supervisory co-workers, Ms. Kuchenreuther must prove each of the following elements by the greater weight of the evidence:

One, Ms. Kuchenreuther was subjected to sexually offensive conduct or conditions imposed by male co-workers at AGP;

Two, such conduct was based on Ms. Kuchenreuther's sex;

Three, such conduct was unwelcome;

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

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

Six, AGP knew or should have known of the harassment; and

Seven, AGP failed to take prompt and appropriate corrective action to end the harassment.

If Ms. Kuchenreuther fails to prove all seven of these elements by the greater weight of the evidence, your verdict must be for AGP on Ms. Kuchenreuther's claim of creation of a sexually hostile work environment by co-workers. However, if Ms. Kuchenreuther proves all seven of these elements by the greater weight of the evidence, then she is entitled to damages in some amount for harassment by co-workers.

Harassment by supervisors

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

One, Ms. Kuchenreuther was subjected to sexually offensive conduct or conditions imposed by one or more of her male supervisors at AGP;

Two, such conduct was based on Ms. Kuchenreuther's sex;

Three, such conduct was unwelcome;

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

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

If Ms. Kuchenreuther fails to prove all five of these elements by the greater weight of the evidence, your verdict must be for AGP on Ms. Kuchenreuther's claim of creation of a sexually hostile work environment by supervisors. However, if Ms. Kuchenreuther proves all five of these elements by the greater weight of the evidence, then you must consider whether AGP proves both elements of the following affirmative defense by the greater weight of the evidence:

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

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

If AGP fails to prove both elements of this affirmative defense, and Ms. Kuchenreuther proves all of the elements of her claim of creation of a sexually hostile environment by supervisors, then Ms. Kuchenreuther is entitled to damages in some amount on her hostile environment claim for harassment by supervisors. However, if AGP proves both elements of its affirmative defense, you must find in favor of AGP on this claim.

2. Constructive discharge

If you find in favor of Ms. Kuchenreuther on her claim of a sexually hostile environment, for harassment by co-workers, supervisors, or both, you will also consider her claim that AGP's actions caused her constructive discharge from her employment. To win her claim of constructive discharge, Ms. Kuchenreuther must prove the following two essential elements by the greater weight of the evidence:

One, AGP's creation of a sexually hostile environment made Ms. Kuchenreuther's working conditions intolerable;

Two, Ms. Kuchenreuther's quitting her job was a reasonably foreseeable result of AGP's actions.

If Ms. Kuchenreuther fails to prove both of these elements by the greater weight of the evidence, you may not award Ms. Kuchenreuther additional damages arising from her termination. However, if Ms. Kuchenreuther proves both of these elements by the greater weight of the evidence, you may award Ms. Kuchenreuther additional damages for sexual harassment arising from her termination.

3. Wage discrimination

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

One, Ms. Kuchenreuther did substantially equal work on jobs that required equal skill, effort, and responsibility as jobs held by men;

Two, Ms. Kuchenreuther performed her job under working conditions similar to those for men;

Three, Ms. Kuchenreuther was paid a lower wage than men doing equal work.

If Ms. Kuchenreuther fails to prove all three of these elements by the greater weight of the evidence, your verdict must be for AGP on Ms. Kuchenreuther's claim of wage discrimination. However, if Ms. Kuchenreuther proves all three of these elements by the greater weight of the evidence, then she is entitled to damages for wage discrimination as specified in the final instructions.



This is only a preliminary outline of the elements of Ms. Kuchenreuther's claims and AGP's defenses. At the end of the trial, I will give you further final written instructions that explain these claims and defenses more fully. Because the final instructions are more detailed, those instructions govern on the elements of Ms. Kuchenreuther's claims and AGP's defenses.

PRELIMINARY INSTRUCTION NO. 4 - 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, facts must be proved by the "greater weight of the evidence." To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

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

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

PRELIMINARY INSTRUCTION NO. 5 - 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. An individual, such as Ms. Kuchenreuther, and a corporation, such as AGP, stand equal before the law, and are entitled to the same fair consideration by you. The mere fact that AGP is a corporation, not an individual, does not mean that it is entitled to any greater or lesser consideration by you.

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

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

PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL



The trial will proceed in the following order:

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

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

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

PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



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

Evidence is:

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

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

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

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

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

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



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

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

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

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

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

PRELIMINARY INSTRUCTION NO. 9 - STIPULATED FACTS



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



PRELIMINARY INSTRUCTION NO. 10 - 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. 11 - 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. 12 - OBJECTIONS



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

PRELIMINARY INSTRUCTION NO. 13 - BENCH CONFERENCES



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







PRELIMINARY INSTRUCTION NO. 14 - NOTE-TAKING



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

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

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

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



PRELIMINARY INSTRUCTION NO. 15 - CONDUCT OF JURORS

DURING TRIAL





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

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

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

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

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

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

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

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

DATED this 22nd day of February, 2000.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



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

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. 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 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 8, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

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

FINAL INSTRUCTION NO. 3 - SEXUALLY HOSTILE ENVIRONMENT--

HARASSMENT BY CO-WORKERS





Ms. Kuchenreuther's first claim is that she was subjected to sexual harassment by her non-supervisory male co-workers at AGP, which created a sexually hostile work environment. To win her claim of a sexually hostile work environment created by harassment of co-workers, Ms. Kuchenreuther must prove each of the following elements by the greater weight of the evidence:

One, Ms. Kuchenreuther was subjected to sexually offensive conduct or conditions imposed by her male co-workers at AGP.

Charlene Kuchenreuther alleges that the conduct of employees of AGP that created a sexually hostile environment included one or more of the following: subjecting Ms. Kuchenreuther to unwelcome touching or fondling; verbal abuse of a sexual or sexist nature; sexually suggestive or obscene or insulting comments or acts; and the display of sexually suggestive magazines and other written material.



Two, such conduct was based on Ms. Kuchenreuther's sex.

Three, such conduct was unwelcome.

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



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

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



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

The objectionable environment must be both one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.



Six, AGP knew or should have known of the harassment.

AGP knew or should have known of the harassment if authorized agents or supervisors with a reporting duty (or persons reasonably believed to have such a duty) acquired knowledge of sexual harassment.



Seven, AGP failed to take prompt and appropriate corrective action to end the harassment.

In deciding whether AGP 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. The ultimate question is whether the employer's remedial action was reasonably calculated to prevent further harassment.



If Ms. Kuchenreuther has failed to prove all seven of these elements by the greater weight of the evidence, your verdict must be for AGP on Ms. Kuchenreuther's claim of creation of a sexually hostile work environment by co-workers. However, if you find that Ms. Kuchenreuther has proved all seven of these elements by the greater weight of the evidence, then she is entitled to damages in some amount for harassment by co-workers.

FINAL INSTRUCTION NO. 4 - SEXUALLY HOSTILE ENVIRONMENT--

HARASSMENT BY SUPERVISORS





Ms. Kuchenreuther's second claim is that she was subjected to sexual harassment by her male supervisors at AGP, which created a sexually hostile work environment. To win her claim of a sexually hostile work environment created by harassment by supervisors, Ms. Kuchenreuther must prove each of the following elements by the greater weight of the evidence:

One, Ms. Kuchenreuther was subjected to sexually offensive conduct or conditions imposed by her male supervisors at AGP.

Charlene Kuchenreuther alleges that the conduct of supervisors of AGP that created a sexually hostile environment included one or more of the following: verbal abuse of a sexual or sexist nature; and allowing the display of sexually suggestive magazines and other written material.



Two, such conduct was based on Ms. Kuchenreuther's sex.

Three, such conduct was unwelcome.

"Unwelcomeness" was defined for you in the explanation to element three in Final Jury Instruction No. 3 on harassment by co-workers.



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

Whether an environment is sufficiently hostile or abusive was defined for you in the explanation to element four of Final Jury Instruction No. 3 on co-worker harassment.



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

This element was defined for you in the explanation to element five if Final Jury Instruction No. 3 on co-worker harassment.



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

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

Although an employer is not required in every case to have an anti-harassment policy with complaint procedure, you should consider the need for a stated policy suitable to the employment circumstances. You should also consider whether, during Ms. Kuchenreuther's employment, AGP maintained a written sexual harassment policy, which was posted in appropriate locations, or which was otherwise made available to all employees, and which all employees, including Kuchenreuther, reviewed and signed, or otherwise indicated they were aware of and understood its policies and procedures.



Two, Ms. Kuchenreuther unreasonably failed to take advantage of any preventive or corrective opportunities provided by AGP 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, although 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 Ms. Kuchenreuther's complaints, and what effect, if any, such a delay may have had on the immediacy or effectiveness of AGP's response.



If AGP has failed to prove both elements of this affirmative defense, and Ms. Kuchenreuther has proved all of the elements of her claim of a sexually hostile environment created by harassment from supervisors, then Ms. Kuchenreuther is entitled to damages in some amount on her claim of a sexually hostile environment created by harassment from supervisors. However, if AGP has proved both elements of its affirmative defense, you must find in favor of AGP on this claim.

FINAL INSTRUCTION NO. 5 - CONSTRUCTIVE DISCHARGE



If you find in favor of Ms. Kuchenreuther on her claim of a sexually hostile environment, for harassment by co-workers, supervisors, or both, you will also consider her claim that AGP's actions caused her constructive discharge from her employment. To win her claim of constructive discharge, Ms. Kuchenreuther must prove the following two essential elements by the greater weight of the evidence:

One, AGP's creation of a sexually hostile environment made Ms. Kuchenreuther's working conditions intolerable.

To show a "constructive discharge," the plaintiff must show more than just creation of a sexually hostile environment. A "constructive discharge" occurs only when an employer's creation of a sexually hostile environment makes an employee's working conditions so intolerable that the employee is forced to quit. An employee may not be unreasonably sensitive to her working environment. Rather, the conditions created by the employer must be such that a reasonable person would find them intolerable, not simply that the plaintiff found them intolerable.



Two, Ms. Kuchenreuther's quitting her job was a reasonably foreseeable result of AGP's actions.

Ms. Kuchenreuther's quitting her job was reasonably foreseeable if a reasonable person in her position would also have felt compelled to quit. The employee must act reasonably and cannot assume the worst or jump to conclusions too quickly, but must instead give her employer a reasonable chance to work out the problem, before quitting. However, an employer's assertion that it did not intend to force the plaintiff to quit does not disprove this element, if you find that it was reasonably foreseeable that the employee would quit in the face of the harassing conduct. This is so, because an employer must necessarily be held to intend the reasonably foreseeable consequences of its actions, even if the employer believes or states that it had no such intention.



If Ms. Kuchenreuther has failed to prove both of these elements by the greater weight of the evidence, you may not award Ms. Kuchenreuther additional damages arising from her termination. However, if Ms. Kuchenreuther has proved both of these elements by the greater weight of the evidence, you may award Ms. Kuchenreuther additional damages for sexual harassment arising from her termination.

FINAL INSTRUCTION NO. 6 - WAGE DISCRIMINATION



Ms. Kuchenreuther's next claim is that she was not paid the same rate as men who did the same job. To win her claim of wage discrimination, Ms. Kuchenreuther must prove the following three essential elements by the greater weight of the evidence:

One, Ms. Kuchenreuther did substantially equal work on jobs that required equal skill, effort, and responsibility as jobs held by men.

Ms. Kuchenreuther must prove that she did "substantially equal work," not "equal work." Therefore, unimportant or insubstantial differences in the skill, effort, and responsibility requirements of particular jobs should be ignored. In considering whether work on jobs is "substantially equal," you should consider whether the performance of those jobs requires substantially equal skill, effort, and responsibility, as those words are used in this instruction.

To determine whether jobs require equal "skill," you should consider such factors as experience, training, education, and ability, and these factors should be measured in terms of the performance requirements of the job. If an employee must have essentially the same "skill" in order to perform either of two jobs, the jobs will qualify as jobs requiring "equal skill," even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his or her working time as the employee in the other job.

"Effort" is the measurement of the physical or mental exertion needed for the performance of a job. The job factors that cause mental or physical fatigue and stress, as well as those that alleviate fatigue, all bear on the question of "effort" required by the job. Where jobs are otherwise "equal" under the law, and there is no substantial difference in the amount or degree of "effort" that must be expended in performing the jobs under consideration, the jobs may require "equal effort" in their performance, even though the "effort" may be exerted in different ways on the two jobs. However, jobs do not entail "equal effort," even though they entail most of the same routine duties, if one job involves other additional tasks that require extra effort and that consume a significant amount of time of substantially all those doing that job. An evaluation of whether two jobs involve "equal effort" should involve a direct comparison of the physical or mental exertion required by the jobs. No factor should be added to compensate for physiological differences between men and women.

The term "responsibility" means the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation and the degree of authority delegated to the employee.

If you find that two jobs generally involve substantially equal "skill," "effort," and "responsibility, then, in considering whether the two jobs are "substantially equal," you should consider whether the additional tasks consume a significant amount of time of substantially all those doing the job. Two jobs are not unequal if one job involves only occasional tasks requiring greater "skill," "effort," or "responsibility," or if only some of the employees in one job are required to perform tasks requiring greater "skill," "effort," or "responsibility." However, two jobs are not "equal," even though they involve many of the same duties if substantially all of those doing one job spend a significant amount of their time doing additional tasks that require greater "skill," "effort," or "responsibility."

In determining whether two jobs are "substantially equal," you should consider the actual job requirements and performance. Job classifications, descriptions, or titles are not controlling.



Two, Ms. Kuchenreuther performed her job under working conditions similar to those for men.

The term "working conditions" encompasses two factors, namely "surroundings" and "hazards." "Surroundings" concern the nature and character of the environment in which the jobs are performed and considerations of the elements to which employees may be exposed. "Hazards" take into account physical dangers regularly encountered, their frequency, and severity of any injury these hazards or dangers might cause. The plaintiff need not prove that the jobs are performed under equal or identical working conditions, but must prove that the jobs are performed under "similar working conditions."



Three, Ms. Kuchenreuther was paid a lower wage than men doing substantially equal work.

If Ms. Kuchenreuther has failed to prove all three of these elements by the greater weight of the evidence, your verdict must be for AGP on Ms. Kuchenreuther's claim of wage discrimination. However, if Ms. Kuchenreuther has proved all three of these elements by the greater weight of the evidence, then she is entitled to damages for wage discrimination as specified in the final instructions.

FINAL INSTRUCTION NO. 7 - 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.

However, if you find in favor of Ms. Kuchenreuther on one or more of her claims, you must award her such sum as you find will fairly and justly compensate her for any damages you find she sustained as a direct result of AGP's wrongful conduct. I will now explain to you some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, 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 for that claim. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. However, the amount, if any, you assess for items of non-economic damages, such as damages for emotional distress, cannot be measured by an exact or mathematical standard. A plaintiff does not need to introduce evidence of the monetary value of such elements of damages. You must use your sound judgment based upon an impartial consideration of the evidence to determine the amount of damages, if any, for emotional distress.

You must not award actual damages under any of 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. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant as proved by the evidence.

You must award the full amount for any item of damages that Ms. Kuchenreuther has proved. However, a party cannot recover duplicate damages. Therefore, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage on the same claim. Some items of damages, such as post-termination backpay, can only be awarded if you first find that Ms. Kuchenreuther was constructively discharged by the harassing conduct of AGP. Similarly, pre-termination backpay can only be awarded if you find that Ms. Kuchenreuther was denied a wage increase based on wage discrimination.

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

Finally, you have heard evidence of allegedly harassing conduct by AGP employees prior to February 22, 1997. You may consider this evidence as relevant background evidence, but you may award damages only for harassing conduct that occurred after February 22, 1997. You have also heard evidence of alleged wage discrimination by AGP prior to May 1, 1996. You may consider this evidence as relevant background evidence, but you may award damages only for wage discrimination that occurred on or after May 1, 1996.

Attached to these Instructions is a Verdict Form, which you must fill out upon completion of your deliberations. You should only award those damages, if any, that Ms. Kuchenreuther has proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 8 - ACTUAL DAMAGES



If you find in favor of Ms. Kuchenreuther on one or more of her claims--creation of a sexually hostile environment by co-workers, supervisors, or both, as explained in Final Instructions Nos. 3 and 4, or wage discrimination, as explained in Final Instruction No. 6--then you must award Ms. Kuchenreuther such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages you find she sustained as a direct result of AGP's wrongful conduct identified in the claim or claims upon which she has prevailed.

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

Emotional distress damages. On each of her sexually hostile environment claims, Ms. Kuchenreuther seeks damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. You may award emotional distress damages on both of Ms. Kuchenreuther's sexually hostile environment claims if you find that she has proved harassment by both co-workers and supervisors that was sufficient to create a sexually hostile environment. However, on the co-worker harassment claim, you may only award those damages for emotional pain and suffering that were a direct result of the harassment by co-workers, and on the supervisor harassment claim, you may only award those damages for emotional pain and suffering that were a direct result of harassment by supervisors.

If you find that Ms. Kuchenreuther was constructively discharged, as explained in Final Jury Instruction No. 5, then you may award damages for emotional distress that is a direct result of that constructive discharge. However, if you find that Ms. Kuchenreuther was not constructively discharged by AGP's wrongful actions, then you may only award damages for emotional distress that are a direct result of the hostile environment; you may not award damages that are a direct result of Ms. Kuchenreuther's decision to quit her job.

When considering the amount of monetary damages to which Ms. Kuchenreuther may be entitled for emotional distress, you should consider the nature, character, and seriousness of the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that she felt. You must also consider the extent or duration of her emotional distress, as any award you make must cover damages endured by Ms. Kuchenreuther since the wrong-doing to the present time. Remember that you may only award damages for past emotional distress that is a direct result for harassing conduct that occurred after February 22, 1997.

Pre-termination backpay. If you find that Ms. Kuchenreuther has proved her claim of wage discrimination, as explained in Final Jury Instruction No. 6, then you should award her "pre-termination backpay," which is the amount of money that would compensate her for the wages lost as a result of wage discrimination. Pre-termination backpay damages are the difference between the amount male employees at AGP were paid for performing jobs requiring substantially equal skill, effort, and responsibility, performed under similar working conditions, as the job performed by Ms. Kuchenreuther and the amount Ms. Kuchenreuther was actually paid by AGP from May 1, 1996, until the date she quit her job.

Post-termination backpay. You may award post-termination backpay only if AGP's wrongful conduct resulted in Ms. Kuchenreuther's constructive discharge, as constructive discharge was explained in Final Jury Instruction No. 5. Ms. Kuchenreuther can only recover one award of post-termination backpay, even if she prevails on both of her claims of harassment by co-workers and harassment by supervisors. Post-termination backpay is the amount of any wages and fringe benefits Ms. Kuchenreuther would have earned from the date on which she quit until the date of your verdict, minus the wages and fringe benefits, if any, that Ms. Kuchenreuther actually did earn during that time from other employment after quitting her job with AGP.

If you award post-termination backpay, you should award backpay based on Ms. Kuchenreuther's actual wage. However, if you find that Ms. Kuchenreuther was subjected to wage discrimination, as explained in Final Jury Instruction No. 6, you may also award additional wages and fringe benefits Ms. Kuchenreuther would have earned at the higher wage to which she was entitled from the date on which she quit to the date of your verdict.



FINAL INSTRUCTION NO. 9 - PUNITIVE DAMAGES



In addition to the actual damages mentioned in the preceding Instruction, 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. Therefore, if you find that Ms. Kuchenreuther has proved either of her claims of creation of a sexually hostile environment, as explained in Final Jury Instructions Nos. 3 and 4, then you must consider what, if any, punitive damages you should award in addition to any actual damages awarded under Instruction No. 8. Punitive damages are awarded 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.

If you find that the defendant acted with malice or with reckless indifference to the plaintiff's right to be free of a sexually hostile environment, then in additional to any actual damages to which you find the plaintiff is entitled, you may, but are not required to, award her an additional amount as punitive damages if you find it is appropriate to punish the defendant or to deter the defendant and others from like conduct in the future.

Whether or not to award punitive damages, and the amount of those damages, are within your discretion. However, in deciding the amount of punitive damages, if any, to award for creation of a sexually hostile environment, you should consider how offensive the defendant's conduct was; what amount is needed, considering the defendant's financial condition, to punish it 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 this claim under the preceding Instruction; and what sum is sufficient to deter other similar employers from wrongful conduct in the future.



You may award different amounts of punitive damages for a sexually hostile environment created by co-workers, on the one hand, and a sexually hostile environment created by supervisors, on the other, if you find that such differences are appropriate on the evidence in the case. You may also award punitive damages on only one sexually hostile environment claim, and no such damages on the other sexually hostile environment claim, if you find that such differences are appropriate on the evidence in the case. You may also decide to award no punitive damages on either claim, as whether or not to award punitive damages, and in what amount, is a matter in your discretion.

Remember, you should determine the amount of any punitive damages award on either claim using calm discretion and sound reasoning. You must not be influenced by sympathy for or dislike of any party in the case.

FINAL INSTRUCTION NO. 10 - 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 forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your decision must be unanimous. If you all agree, the verdict form must be signed by your foreperson and all members of the jury.

DATED this 25th day of February, 2000.



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





CHARLENE KUCHENREUTHER,
Plaintiff,

No. C 98-3031-MWB

vs.





VERDICT FORM
AG PROCESSING, INC., a Corporation, a/k/a AG PROCESSING, INC., a Cooperative, a/k/a PROCESSING ASSOCIATES - AGP OF EAGLE GROVE, IOWA,
Defendant.

____________________





On the claims of plaintiff Charlene Kuchenreuther against defendant AGP, we the Jury, find as follows:

LIABILITY
Claim As explained in Verdict for
Sexually Hostile Work Environment-- Harassment by Co-Workers

Final Jury Instruction No. 3


_____ Charlene Kuchenreuther or

_____ AGP

If you found in favor of Charlene Kuchenreuther on this claim, did harassment by co-workers cause Ms. Kuchenreuther's constructive discharge, as constructive discharge is explained to you in Final Jury Instruction No. 5



_____ Yes

_____ No

Sexually Hostile Work Environment-- Harassment by Supervisors



Final Jury Instruction No. 4


_____ Charlene Kuchenreuther or

_____ AGP

If you found in favor of Charlene Kuchenreuther on this claim, did harassment by supervisors cause Ms. Kuchenreuther's constructive discharge, as constructive discharge is explained to you in Final Jury Instruction No. 5?



_____ Yes

_____ No

Wage Discrimination Final Jury Instruction No. 6 _____ Charlene Kuchenreuther or

_____ AGP

ACTUAL DAMAGES

as explained in Final Jury Instructions No. 7 and No. 8

(You may only award damages for claims on which you found in Ms. Kuchenreuther's favor.)

Damages for Emotional Distress for a Sexually Hostile Environment for a sexually hostile environment caused by harassment by co-workers, since February 22, 1997, to the present time



$ ______________
for a sexually hostile environment caused by harassment by supervisors, since February 22, 1997, to the present time

$ ______________
Pre-termination Backpay for Wage Discrimination difference in wages from May 1, 1996, until the date Ms. Kuchenreuther quit her job

$ ______________
Post-termination Backpay for Constructive Discharge wages and fringe benefits Ms. Kuchenreuther would have earned at her actual wage from the date on which she quit until the date of your verdict



$ ______________
additional wages and fringe benefits Ms. Kuchenreuther would have earned at the higher wage to which she was entitled, from the date on which she quit to the date of your verdict, if you find in her favor on her wage discrimination claim







$ ______________
PUNITIVE DAMAGES

as explained in Final Jury Instruction No. 9

Punitive Damages for a Sexually Hostile Environment--Harassment by Co-Workers for actions taken with malice or with reckless indifference to the plaintiff's right to be free of a sexually hostile environment





$ ______________
Punitive Damages for a Sexually Hostile Environment--Harassment by Supervisors for actions taken with malice or with reckless indifference to the plaintiff's right to be free of a sexually hostile environment



$ ______________




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