Opinion
7:21CV5003
05-10-2023
KATRINA BERAN, Plaintiff, v. VSL NORTH PLATTE COURT LLC, Defendant.
COURT'S PROPOSED JURY INSTRUCTIONS
INSTRUCTION NO. 1.
Members of the Jury Panel, if you have a cell phone or other communication device, please take it out now and turn it off. Do not turn it to vibration or silent; power it down. During jury selection and the trial, you must leave it off.
From now until you are discharged from the case, and for those who are selected to try the case, from now until you retire to deliberate on a verdict at the end of the trial, you may not discuss this case with anyone, even the other jurors. You may tell your family, close friends, and other people about your participation in this trial so that you can explain when you are required to be in court. If you do so, you should warn them not to ask you about this case, tell you anything they know or think they know about it, or discuss this case in your presence.
Furthermore, you must not post any information on any social media or a social network, or communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else related to this case.
After you retire to deliberate on a verdict at the end of the trial, you must discuss the case with only the other jurors. You must not tell anyone else anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you discuss the case with someone other than the other jurors during deliberations, you may be influenced in your verdict by their opinions. That would not be fair to the parties, and it would result in a verdict that is not based entirely on the evidence and the law.
Also, while you are in the courthouse and until you are discharged in this case, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or social media or in any other way communicate to anyone any information about this case until I accept your verdict or until you have been excused as a juror.
Those of you who are selected for the jury in this case must decide this case based only on the evidence received by the court here in the courtroom and the instructions on the law that I give the jury. Do not do any research-on the internet, through social media, in libraries, in the newspapers, or in any other way-or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use internet programs or other devices to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, the people involved, including the parties, the witnesses, the lawyers, or the judge, until you have been excused as jurors.
The important reason for your not talking with anyone about the case is that the parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you do some research or investigation or experiment that we don't know about, then your verdict may be influenced by inaccurate, incomplete, or misleading information that has not been tested by the Rules of Evidence, the trial process, including the oath to tell the truth, and by cross-examination. Each of the parties is entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. It is very important that you abide by these rules. Failure to follow these instructions, and indeed any instructions the Court gives you throughout the trial could result in the case having to be retried. And failure to follow these and the Court's other instructions could result in you being held in contempt of the court and punished accordingly.
INSTRUCTION NO. 2.
Members of the Jury: I am now going to give you some instructions about this case and about your duties as jurors. At the end of the trial, I will give you more instructions. I may also give you instructions during the trial. All instructions-those I give you now and those I give you later, and whether they are in writing or given to you orally-are equally important and you must follow them all.
You must leave your cell phone, smartphone, iPhone, tablet computer, or any other wireless communication device in the jury room during the trial and may only use them during breaks. You will have to turn those devices “off” in the jury room during your deliberations.
This is a civil case brought by plaintiff Katrina Beran against defendant VSL North Platte Court, LLC, which was doing business as Linden Court. For the sake of simplicity, I will call the defendant “Linden Court.” Beran was employed by Linden Court as a Certified Nurse Assistant and Medication Aid at its skilled nursing and rehabilitation facility located in North Platte, Nebraska, from March 25, 2019, until February 7, 2020. Beran claims that while working for Linden Court she was subjected to sexual harassment by a male co-worker, and that after she reported the harassment to Linden Court, it failed to take prompt and appropriate corrective action to end the abusive conduct toward her. Beran further claims that Linden Court's failure to take action was malicious or recklessly indifferent to her right not to be subject to a sexually hostile or abusive work environment. Linden Court denies Beran was sexually harassed, denies Beran complained of sexual harassment to her supervisors, and denies that it failed to take any appropriate action regarding Beran's sexual harassment.
You will decide whether or not Beran has proved her claim. Your duty is to decide what the facts are from the evidence. You are allowed to consider the evidence in the light of your own observations and experiences. After you have decided what the facts are, you will have to apply those facts to the law that I give you in these and in my other instructions. That is how you will reach your verdict. Only you will decide what the facts are. However, you must follow my instructions, whether you agree with them or not. You have taken an oath to follow the law that I give you in my instructions.
Nothing I say or do during this trial is meant to suggest what I think of the evidence or what I think your verdict should be.
INSTRUCTION NO. 3.
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, any reasons they might have to testify a certain way, how they act while testifying, whether they said something different at another time, whether their testimony is generally reasonable, and how consistent their testimony is with other evidence that you believe.
In deciding whether to believe a witness, remember that people sometimes hear or see things differently and sometimes forget things. You will have to decide whether a contradiction is an innocent misrecollection, or a lapse of memory, or an intentional falsehood. That may depend on whether it has to do with an important fact or only a small detail.
Do not let sympathy, or your own likes or dislikes, influence you. The law requires you to come to a just verdict based only on the evidence, your common sense, and the law that I give you in my instructions, and nothing else.
INSTRUCTION NO. 4.
Each party to a lawsuit is entitled to the same fair and impartial consideration, whether that party is a corporation or an individual. All persons, including individuals and corporations, stand equal before the law and are to be dealt with as equals in a court of justice. A corporation acts only through its agents or employees and any agent or employee of a corporation may bind the corporation by acts and statements made while acting within the scope of his or her duties as an employee of the corporation.
INSTRUCTION NO. 5.
You must treat these facts as having been proved:
1. Plaintiff Katrina Beran is a Caucasian female who is a resident of North Platte, Lincoln County, Nebraska.
2. Defendant VSL North Platte Court, LLC, is a Nebraska limited liability corporation conducting business in North Platte, Lincoln County, Nebraska.
3. Defendant VSL North Plate, LLC, operates a skilled nursing and rehabilitation facility under the name “Linden Court” at 4000 W. Philip Avenue in North Platte, Nebraska. As mentioned earlier, the Court will refer to the defendant as “Linden Court.”
4. Beran worked as an employee for Linden Court from March 25, 2019, until February 7, 2020.
5. Beran's job position with Linden Court during her employment was a Certified Nurse Assistant (CNA) and Medication Aide (Med Aide).
6. Beran was licensed, in good standing, as a Nurse Aide and Medication Aide by the State of Nebraska.
7. Beran's typical work schedule with Linden Court was day shift on weekdays and weekends.
8. Beran's immediate supervisor during her employment with Linden Court was Assistant Director of Nursing (ADON) Mariann Harless.
9. Beran indirectly reported to Director of Nursing (DON) Jasmine Moore.
10. Beran indirectly reported to Human Resources Manager Jessica Bertschinger.
11. Beran indirectly reported to Administrator Nolan Gurnsey.
12. ADON Harless reported to DON Moore and Administrator Gurnsey.
13. DON Moore and HR Manager Bertschinger reported to Administrator Gurnsey.
14. Chris Eugene is a black male who worked as an employee of Linden Court from December 2, 2019, to June 25, 2020.
15. Eugene and Beran were coworkers in January and February 2020.
16. Eugene and Beran both worked day shift at Linden Court on January 22, 23, 25, 26, 27, 28 and 31, 2020.
17. Eugene and Beran both worked day shift at Linden Court on February 2, 5, and 6, 2020.
18. Linden Court verbally coached Eugene on January 17, 2020, for negativity and the way he talked toward other team members.
19. Linden Court verbally coached Eugene on January 20, 2020, for negativity and the way he talked toward other team members.
20. Linden Court disciplined Eugene on January 30, 2020, after receiving concerns from team members, including making statements regarding questions about marital status and making coworkers feel uncomfortable.
The Court and the parties may refer to these facts as “Stipulated Facts,” meaning the parties agree these facts are true.
INSTRUCTION NO. 6.
When I use the word “evidence,” I mean the testimony of witnesses; documents and other things I receive as exhibits; facts that I tell you the parties have agreed are true (including the “Stipulated Facts”); and any other facts that I tell you to accept as true.
Some things are not evidence. I will tell you now what is not evidence:
1. Lawyers' statements, arguments, questions, and comments are not evidence.
2. Documents or other things that might be in court or talked about, but that I do not receive as exhibits, are not evidence.
3. Objections are not evidence. Lawyers have a right-and sometimes a duty-to object when they believe something should not be a part of the trial. Do not be influenced one way or the other by objections. If I sustain a lawyer's objection to a question or an exhibit, that means the law does not allow you to consider that information. When that happens, you have to ignore the question or the exhibit, and you must not try to guess what the information might have been.
4. Testimony and exhibits that I strike from the record or tell you to disregard are not evidence, and you must not consider them.
5. Anything you see or hear about this case outside the courtroom is not evidence, and you must not consider it unless I specifically tell you otherwise.
Also, I might tell you that you can consider a piece of evidence for one purpose only, and not for any other purpose. If that happens, I will tell you what purpose you can consider the evidence for and what you are not allowed to consider it for. You need to pay close attention when I give an instruction about evidence that you can consider for only certain purposes, because you might not have that instruction in writing later in the jury room.
Some of you may have heard the terms “direct evidence” and “circumstantial evidence.” You should not be concerned with those terms because the law makes no distinction between the weight to be given to direct and circumstantial evidence.
INSTRUCTION NO. 7.
You must decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved by the greater weight of the evidence, if you find that it is more likely true than not true. You decide that by considering all the evidence and deciding what evidence is more believable.
You have probably heard the phrase “proof beyond a reasonable doubt.” That is a stricter standard than “more likely true than not true.” It applies in criminal cases, but not in this civil case, so put it out of your mind.
INSTRUCTION NO. 8.
During the trial, I will sometimes need to talk privately with the lawyers. I may talk with them here at the bench while you are in the courtroom, or I may call a recess and let you leave the courtroom while I talk with the lawyers. Either way, please understand that while you are waiting, we are working. We have these conferences to make sure that the trial is proceeding according to the law and to avoid confusion or mistakes. We will do what we can to limit the number of these conferences and to keep them as short as possible.
INSTRUCTION NO. 9.
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written copy of the testimony to refer to. Because of this, you must pay close attention to the testimony and other evidence as it is presented here in the courtroom.
If you wish, however, you may take notes to help you remember what witnesses say. If you do take notes, do not show them to anyone until you and your fellow jurors go to the jury room to decide the case after you have heard and seen all the evidence. Do not let taking notes distract you from paying close attention to the evidence as it is presented. The Clerk will provide each of you with a pad of paper and a pen or pencil. At each recess, leave your notes at your seat here in court or in the jury room.
When you leave at night, your notes will be locked up and returned to you when you return. When the trial is over your notes will be destroyed. They will not be read by anyone other than you.
INSTRUCTION NO. 10.
The trial will proceed in the following manner:
First, Beran's attorney may make an opening statement. Linden Court's attorney may then make an opening statement. An opening statement is not evidence. Rather, it is a summary of the evidence the lawyers expect you will see and hear during the trial
After opening statements, Beran's attorney will present evidence. Linden Court's attorney will have a chance to cross-examine Beran's witnesses. After Beran's attorney has finished presenting Beran's case, Linden Court's attorney may present evidence, and Beran's attorney will have a chance to cross-examine Linden Court's witnesses.
After you have seen and heard all the evidence from both sides, the attorneys will make closing arguments that summarize and interpret the evidence. Just as with opening statements, closing arguments are not evidence. After the closing arguments, I will instruct you further on the law. After the lawyers' arguments and after the Court's instructions, you will go to the jury room to deliberate and decide on your verdict.
INSTRUCTION NO. 11.
Jurors, to make sure this trial is fair to all parties, you must follow these rules:
First, do not talk or communicate among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to consider 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 tries to talk to you about the case during the trial, please report it to the courtroom deputy.
Fourth, during the trial, do not talk with or speak to any of the parties, lawyers, or witnesses in this case-not even to pass the time of day. It is important not only that you do justice in this case, but also that you act accordingly. If a person from one side of the lawsuit sees you talking to a person from the other side-even if it is just about the weather-that might raise a suspicion about your fairness. So, when the lawyers, parties, and witnesses do not speak to you in the halls, on the elevator, or the like, you must understand that they are not being rude. They know they are not supposed to talk to you while the trial is going on, and they are just following the rules.
Fifth, you may need to tell your family, close friends, and other people that you are a part of this trial. You can tell them when you have to be in court, and you can warn them not to ask you about this case, tell you anything they know or think they know about this case, or talk about this case in front of you. Just remember that you must not communicate with anyone or post information in any manner about the parties, witnesses, participants, claims, evidence, or anything else related to this case. You must not tell anyone anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you talk about the case with someone besides the other jurors during deliberations, it looks as if you might already have decided the case or that you might be influenced in your verdict by their opinions. That would not be fair to the parties, and it might result in the verdict being thrown out and the case having to be tried over again.
During the trial, while you are in the courthouse and after you leave for the day, do not give any information to anyone, by any means, about this case. For example, do not talk face-to-face or use any electronic device, such as a telephone, cell phone, smartphone, Blackberry, PDA, computer, or computer-like device. Likewise, do not use the internet or any internet service; do not text or send instant messages; do not go on or use any internet or other medium, including an internet chat room, blog, or other websites such as Facebook, MySpace, YouTube, or Twitter. In other words, do not communicate with anyone about this case-except for the other jurors during deliberations-until I accept your verdict.
Sixth, do not do any research-on the internet, in libraries, newspapers, or otherwise-and do not investigate this case on your own. Do not visit or view any place discussed in this case, and do not use the internet or other means to search for or view any place discussed in the testimony. Also, do not look up any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge.
Seventh, do not read or otherwise receive any information, including any news stories or internet articles or blogs that are about the case, or about anyone involved with it. Do not listen to any radio or television reports, or digital streaming, about the case or about anyone involved with it. In fact, until the trial is over, I suggest that you avoid reading or receiving any digital streaming or any newspapers or news journals and avoid listening to any television or radio newscasts at all. I do not know whether there will be news reports about this case, but if there are, you might accidentally find yourself reading or listening to something about the case. If you want, you can have someone collect information and set it aside to give to you after the trial is over. I can assure you, however, that by the time you have heard all the evidence in this case, you will know what you need to decide it.
The parties have a right to have you decide their case based only on evidence admitted here in court. If you research, investigate, or experiment on your own, or get information from other sources, your verdict might be influenced by inaccurate, incomplete, or misleading information. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through cross-examination. All the parties are entitled to a fair trial and an impartial jury, and you have to conduct yourselves in a way that assures the integrity of the trial process. If you decide a case based on information not admitted in court, you will deny the parties a fair trial. You will deny them justice. Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
Eighth, do not make up your mind during the trial about what your verdict should be. Keep an open mind until after you and your fellow jurors have discussed all the evidence.
INSTRUCTION NO. 12.
Members of the jury, the instructions I gave at the beginning of the trial and during the trial are still in effect. Now I am going to give you additional instructions.
You have to follow all of my instructions-the ones I gave you earlier, as well as those I give you now. Do not single out some instructions and ignore others, because they are all important. This is true even though I am not going to repeat some of the instructions I gave you at the beginning of or during the trial.
You will have copies of all the instructions in the jury room. Remember, you have to follow all instructions, no matter when I give them, whether or not you have written copies.
Although you must follow my instruction, I have not intended to suggest what I think your verdict should be by any of my rulings or comments during trial. During the trial, I have asked some questions of witnesses. Do not try to guess my opinion about any issues in the case based on the questions I asked.
INSTRUCTION NO. 13.
Your verdict must be for plaintiff Katrina Beran and against defendant Linden Court on Beran's claim of sexual harassment if Beran has proved all the following elements by the greater weight of the evidence:
First, Beran was subjected to offensive or undesirable conduct by her co-worker, Chris Eugene;
Second, such conduct was unwelcome;
Third, such conduct was based on Beran's sex;
Fourth, such conduct was sufficiently severe or pervasive that a reasonable person in Beran's position would find her work environment hostile or abusive;
Fifth, at the time such conduct occurred and as a result of such conduct, Beran believed her work environment to be hostile or abusive;
Sixth, Linden Court knew or should have known of Eugene's offensive or undesirable conduct toward Beran;
Plaintiff objects to inclusion of both elements six and seven as confusing or misleading. Plaintiff argues that Note 6 to 8th Cir. MCivJI 8.42 points out that it is factually inconsistent for Defendant to make both arguments without rendering one of the elements moot. Note 6 actually says, “As a practical matter, it is unlikely that the defendant will seriously contest both issues.” The Note does not say it is improper for Defendant to do so, nor does any case law I have found. As I have previously explained, in her proposed statement of the case now incorporated into Instruction No. 2, Plaintiff contends that she reported the harassment, but Defendant failed to take prompt and appropriate corrective action. In light of these assertions, Defendant is entitled to dispute both whether Plaintiff complained about sexual harassment and, and if she did, whether Defendant responded appropriately. In its Trial Brief, Defendant asserts, “Plaintiff did make some complaints about Eugene” and that it “still took remedial steps to address her articulated concerns,” citing anticipated evidence. Filing 60 at 6-7. Thus, there is some evidence to support Defendant's contention as to element seven. I have included both elements.
Seventh, Linden Court failed to take prompt and appropriate corrective action reasonably calculated to end the harassment.
Defendant objects to the prior statement of the seventh element. Defendant requested that I add “reasonably calculated” before “to end the harassment.” The Eighth Circuit Court of Appeals has not been entirely consistent about including that or similar language in its statement of the last element of a co-worker sexual harassment claim. Compare Bell v. Baptist Health, 60 F.4th 1198, 1204 (8th Cir. 2023) (“failed to take prompt and effective remedial action”), with Sellars v. CRST Expedited, Inc., 13 F.4th 681, 696 (8th Cir. 2021) (“failed to take prompt and effective remedial action that was reasonably calculated to stop the harassment”), cert. denied, 142 S.Ct. 1361 (2022). Nevertheless, the Sellars decision recognizes the “reasonably calculated” requirement, adding that the fact that the employer's remedial action did not stop the harassment is not enough standing alone to show that the employer's action was not “reasonably calculated” to end the harassment. 13 F.4th at 700. I conclude that Defendant is entitled to the requested change to the seventh element, so I have incorporated the requested language.
If you find that Beran has proved all the elements above, your verdict on the claim of sexual harassment must be for Beran. On the other hand, if Beran has failed to prove any of the elements above, your verdict must be for Linden Court, and you need not consider this claim further.
INSTRUCTION NO. 14.
For an environment to be sufficiently hostile or abusive, the harassment must be so severe or pervasive as to alter the conditions of Beran's employment and create an abusive working environment. In determining whether a reasonable person in Beran's circumstances would find Beran's work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or a merely offensive utterance; whether it unreasonably interfered with Beran's work performance; and the effect on Beran's psychological well-being. No single factor is required in order to find a work environment hostile or abusive. In most cases, the environment must be filled with sexually discriminatory intimidation, ridicule, and insult, but a few isolated or infrequent incidents of sexual harassment are enough if they are extremely serious.
Plaintiff argues that the explanation of a sufficiently hostile environment should contrast “physically threatening or humiliating conduct” with “a merely offensive utterance.” I drew the prior explanation from Note 5 to 8th Cir. MCivJI 8.42, which does not include that specific contrast. Nevertheless, I agree with Plaintiff that case law supports the contrast. See, e.g., Hairston v. Wormuth, 6 F.4th 834, 841 (8th Cir. 2021) (“Assessing whether [the plaintiff] has met this burden, we look at the totality of the circumstances, including the frequency and severity of the discriminatory conduct, whether such conduct was physically threatening or humiliating, as opposed to a mere offensive utterance, and whether the conduct unreasonably interfered with [her] work performance.” (internal quotation marks and citations omitted)). I also agree that setting out that contrast in the Instruction will be helpful to the jury. I have made the requested change, but I question whether a more jury-friendly word, such as “statement” or “remark” should be used instead of “utterance.” I invite comment from the parties on that question.
INSTRUCTION NO. 15.
If you find in favor of Beran under Error! Reference source not found., then you must award Beran such sum as you find will fairly and justly compensate her for any damages you find she sustained as a direct result of sexual harassment. Beran's claim for damages in this case is for her emotional distress.
Defendant objects to “direct result of sexual harassment,” arguing that it should say “direct result of defendant failing to take prompt and appropriate corrective action to end the harassment.” Defendant relies on Mack v. Van Dyke Supply Co., 2007 U.S. Dist. LEXIS 96958, at *18, 2008 WL 2019503, at *7 (D.S.D. May 9, 2007), for the statement, “Sexual harassment by a co-employee does not violate Title VII unless the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action.” The Eighth Circuit decision on which Mack relies, Hubbard v. United Parcel Service, 200 F.3d 556, 558 (8th Cir. 2000), describes the employer's knowledge and failure to respond as determinative of whether Title VII was “violated.” The real problem is that Defendant then goes further by arguing, “Thus, there is no violation, and no liability, until such time as there is a failure to take corrective action, and in that instance, plaintiff's damages flow from what takes place after that failure of corrective action.” Neither Mack nor Hubbard supports the proposition that damages for co-worker harassment flow only from what takes place after the employer's failure to take corrective action. Indeed, neither decision discusses damages at all. Defendant has cited no authority supporting that proposition, and I have found none. To the contrary, the Supreme Court has said, “[U]nder Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). More specifically, the Court said, “[W]e have held that an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff.” Id. at 427. Indeed, the Supreme Court explained that where the employer knows of harassment but fails to stop it, “the combined knowledge and inaction may be seen as demonstrable negligence, or as the employer's adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy.” 524 U.S. at 789. Thus, the employer is “directly liable for an employee's unlawful harassment,” and such liability is for all “the offending conduct and its results,” not just for what takes place after the employer's failure of corrective action as Defendant would have it. Similarly, the Eighth Circuit Court of Appeals has explained, “In cases of coworker-on-coworker harassment, the employer is liable only if the employer's own negligence caused the harassment or led to the continuation of the hostile work environment.” Sellars v. CRST Expedited, Inc., 13 F.4th 681, 696 (8th Cir. 2021) (internal citations omitted), cert. denied, 142 S.Ct. 1361 (2022). The Eighth Circuit explained that the question of whether the employer was “negligent” was “whether [the employer] knew or should have known of the harassment and failed to take prompt and effective remedial action that was reasonably calculated to stop the harassment.” Id. (cleaned up). Thus, what the employer is liable for is co-worker harassment “caused” by the employer's own negligence or where the employer's negligence “led to the continuation of the hostile work environment,” not just damages that flow from what happened after the employer's failure to take corrective action. In Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410 (8th Cir. 2010), the Eighth Circuit also made clear that the employer's liability is for harassment by the co-worker, not just for damages from what happened after the employer's failure to take corrective action. The Eighth Circuit explained, “[The employer] may be directly liable for its employees' actions that violate Title VII if the company knows or should have known of the conduct, unless it can show that it took immediate action and appropriate corrective action. Where an employer takes prompt remedial action that is reasonably calculated to stop the harassment, the employer is not liable under Title VII for the underlying sexual harassment.” 626 F.3d at 419 (internal quotation marks and citations omitted). This decision makes clear that the employer is “directly liable for its employees' actions that violate Title VII” if the employer knows of but fails to stop harassment; the employer is not liable only for what happens after the employer fails to take corrective action. Finally, the Eighth Circuit has held that a damages award against an employer in a co-worker harassment case is for both the conduct of the harasser and the employer's negligent response. See Sheriff v. Midwest Health Partners, P.C., 619 F.3d 923, 932 (8th Cir. 2010) (“The damage award which the jury found supported by the evidence is not shocking, monstrous, or plainly unjust. Sheriff testified that Meyer's conduct and Midwest's response to it caused her significant emotional trauma.”). In short, the Court's formulation is a correct statement of the law, and Defendant's objection is overruled.
You must determine the amount of damages for any past, present and future emotional distress sustained by Beran as a result of sexual harassment. Damages for emotional distress include damages for emotional pain, suffering, mental anguish, stress, worry, humiliation, fear, apprehension, anxiety, inconvenience, and loss of enjoyment of life.
An award of damages for emotional distress must be based on evidence of genuine injury. Medical or other expert evidence is not required; a plaintiff's own testimony may be sufficient. However, the evidence must show the damages were directly connected to the sexual harassment, that the emotional distress was substantial, and that the emotional distress persisted even after the harassment ended.
Plaintiff objects to the last sentence of this paragraph in the prior draft, pointing out that whether the distress was remedied by finding new employment shortly after termination is relevant to a retaliatory discharge claim, such as the claim at issue in Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013), on which I relied, but it is not appropriate here in a hostile environment case. I agree that is a fair point. Nevertheless, there should be some language addressing the causal link between the harassment and the emotional distress and addressing the severity and duration of the distress. I have redrafted the sentence as shown. See Rowe v. Hussmann Corp., 381 F.3d 775, 783 (8th Cir. 2004) (sexual harassment case concluding that the evidence was adequate where it showed severe symptoms of the emotional distress and its effect on the plaintiff's behavior and her relationship with her children and that her treating psychologist testified that the plaintiff suffered from an anxiety disorder and that her prognosis was poor).
Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award damages under this Instruction by way of punishment or through sympathy. The amount, if any, that you award for emotional distress damages must be entered on your verdict form.
INSTRUCTION NO. 16.
If you find in favor of Beran under Error! Reference source not found., but you find that Beran's damages have no monetary value, then you must return a verdict for Beran in the nominal amount of One Dollar ($1.00).
INSTRUCTION NO. 17.
In addition to the damages mentioned in other instructions, the law permits the jury to award punitive damages when the defendant acted with malice or reckless indifference to what the law requires.
If you find in favor of Beran under Error! Reference source not found., then you must decide whether Linden Court acted with malice or reckless indifference to Beran's right not to be subjected to sexual harassment. Linden Court acted with malice or reckless indifference if Beran has proved Linden Court failed to respond to sexual harassment despite recognizing the risk that its failure to do so would violate the law prohibiting sexual harassment or recklessly disregarding the risk that failure to do so would violate the law.
However, you may not award punitive damages if Linden Court has been proved by the greater weight of the evidence that it made a good-faith effort to comply with the law prohibiting sexual harassment.
If you find that Linden Court acted with malice or reckless indifference to Beran's rights and did not make a good-faith effort to comply with the law, then, in addition to any other damages to which you find Beran is entitled, you may, but are not required to, award her an additional amount as punitive damages for the purposes of punishing Linden Court for engaging in such misconduct and deterring Linden Court and others from engaging in such misconduct in the future. You should presume that Beran has been made whole for her injuries by the damages awarded under Error! Reference source not found..
If you decide to award punitive damages, you should consider the following in deciding the amount of punitive damages to award:
1. How reprehensible the defendant's conduct was. In this regard, you may consider whether the harm suffered by Beran was physical or economic or both; whether there was violence, deceit, intentional malice, reckless disregard for human health or safety; whether Linden Court's conduct that harmed Beran also posed a risk of harm to others; whether there was any repetition of the wrongful conduct and past conduct of the sort that harmed Beran.
2. How much harm Linden Court's wrongful conduct caused Beran and could cause Beran in the future. You may not consider harm to others in deciding the amount of punitive damages to award.
3. What amount of punitive damages, in addition to the other damages already awarded, is needed, considering Linden Court's financial condition, to punish Linden Court for its wrongful conduct toward Beran and to deter Linden Court and others from similar wrongful conduct in the future.
The amount of any punitive damages you award should bear a reasonable relationship to the harm caused to Beran.
You may assess punitive damages against Linden Court or you may refuse to impose punitive damages.
INSTRUCTION NO. 18.
There are rules you must follow when you go to the jury room to deliberate and return with your verdict.
First, you will select a foreperson. That person will preside over your discussions and speak for you here in court.
Second, your verdict must be the unanimous decision of all jurors. Therefore, 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 this without going against what you believe to be true. Each of you must come to your own decision, but only after you have considered all the evidence, discussed the evidence fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your mind if the discussion persuades you that you should. On the other hand, do not come to a decision just because other jurors think it is right, or just to reach a unanimous verdict. Remember you are not for or against any party. You are judges-judges of the facts. Your only job is to study the evidence and decide what is true.
Third, during your deliberations, including during any recess taken during deliberations, you must not directly or indirectly communicate with or provide any information to anyone by any means or by any medium about anything relating to this case, until I accept your verdict and discharge you from further service in this case.
Fourth, as stated in my instructions at the beginning of the trial, you may not in any manner seek out or receive any information about the case from any source other than the evidence received by the court and the law of the case I have provided to you. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.
Fifth, if you need to communicate with me during your deliberations, send me a note signed by one or more of you. Give the note to my Courtroom Deputy, and I will answer you as soon as I can, either in writing or here in court. While you are deliberating, do not tell anyone-including me-how many jurors are voting for any side.
Sixth, nothing I have said or done was meant to suggest what I think your verdict should be. The verdict is entirely up to you.
Finally, the verdict form is your written decision in this case. You will take this form to the jury room, and when you have all agreed on the verdict, your foreperson will fill in the form, sign and date it, and tell the Courtroom Deputy that you are ready to return to the courtroom.