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1.1.3 Public Employee Equal Protection Claim Race And/Or Sex Discrimination - Hostile Work Environment (Separate Liability Of Public Body And Individual Supervisors) In this case the Plaintiff claims that the Defendants, while acting "under color" of state law, intentionally discriminated against the Plaintiff based on [his] [her] [race] [sex or gender] in violation of the Plaintiff's constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The Defendants deny that they violated the Plaintiff's rights in any way, and assert that [describe the Defendants' theory of defense or affirmative defenses, if any]. You are instructed that the Equal Protection Clause of the Fourteenth Amendment does prohibit discrimination against public employees on the basis of [race] [sex or gender]. This includes the creation of a [racially] [sexually] hostile or abusive work environment which is also prohibited. And, federal law provides that a person may sue in this Court for an award of money damages against anyone who, "under color" of any state law or custom, intentionally violates the Plaintiff's rights under the Constitution of the United States. [The rules of law that apply to the Plaintiff's claim against the [City] are different from the law that applies to the Plaintiff's claims against the individual Defendants, and each claim must be considered separately.] I will first explain the rules or principles of law you must apply in deciding the Plaintiff's claim against the individual Defendants. With respect to the Plaintiff’s claims against the individual Defendants and, respectively, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the individual Defendant intentionally discriminated against the Plaintiff in the terms and conditions of [his] [her] employment based on the Plaintiff’s [race] [sex] through the creation and maintenance of a [racially] [sexually] hostile or abusive work environment; Second: That the individual Defendant committed such act or acts of discrimination “under color” of state law or authority; and Third: That the individual Defendant’s act or acts were the proximate or legal cause of damages sustained by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] A [racially] [sexually] hostile or abusive work environment means (1) an environment in which an employee is continuously and repeatedly subjected to [racially] [sexually] offensive acts or statements, or to different treatment based on [race] [sex]; (2) such treatment or such acts or statements are unwelcome and have not been invited or solicited by the employee's own acts or statements; (3) such treatment or such acts or statements resulted in a work environment that was so permeated with discriminatory intimidation, ridicule or insult of sufficient severity or pervasiveness that it materially altered the conditions of the Plaintiff’s employment; (4) that a reasonable person, as distinguished from someone who is unduly sensitive, would have found the workplace to be hostile or abusive; and (5) that the Plaintiff personally believed the workplace environment to be hostile or abusive. Whether a workplace environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; and whether it unreasonably interfered with the employee's work performance. The effect on the employee's psychological well being is also relevant to determining whether the Plaintiff actually found the workplace environment to be hostile or abusive; but while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Conduct that only amounts to ordinary socializing in the workplace such as occasional horseplay, sexual flirtation, sporadic or occasional use of abusive language, gender related jokes, and occasional teasing, does not constitute an abusive or hostile environment. Only extreme conduct amounting to a material change in the terms and conditions of employment is actionable. [In this case the parties have stipulated or agreed that the individual Defendant(s) acted "under color" of state law, and you should, therefore, accept that fact as proven.] [A state or local official acts "under color" of the authority of the state not only when the official acts within the limits of the official's lawful authority, but also when the official acts without or beyond the official's lawful authority. In order for unlawful or unconstitutional acts of an official to be done "under color" of state law, however, the acts must be done while the official was purporting or pretending to act in the performance of official duty; that is, the unlawful act must be an abuse or misuse of power which is possessed by the official only because [he] [she] is an official. In this case, therefore, you must determine whether the individual Defendant had supervisory authority over the Plaintiff in the terms and conditions of the Plaintiff's employment, and whether such Defendant abused or misused that authority by intentionally discriminating against the Plaintiff because of the Plaintiff's [race] [sex]. You will note that proof of intentional discrimination on the part of the individual Defendant is required; any evidence of mere negligence or the failure to exercise reasonable care in supervising other employees is insufficient. The Plaintiff must prove that the individual Defendant committed intentionally discriminatory acts, either personally 62 or through the direction of others, or that the Defendant knowingly and deliberately acquiesced in discriminatory acts being committed by the Defendant's subordinates without intervening to stop such discrimination. For damages to be the proximate or legal result of wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred. I will now explain the rules or principles of law you must apply in deciding the Plaintiff’s claim against the [City] Ordinarily, a corporation - - including a public body or agency such as the [City of ] - - is legally responsible for the acts of its employees carried out in the regular course of their job duties as employees. This is known in the law as the doctrine of "respondent superior" which means "let the superior respond" for any losses or injuries wrongfully caused by its employees in the performance of their jobs. This doctrine does not apply, however, in a case such as this where the Plaintiff claims a violation of constitutional rights. In such a case it is not enough for the Plaintiff to prove that [he] [she] was discriminated against on the basis of [race] [sex] by other employees of the [City]; rather the [City of ] can be held liable only if you find that the deprivation of the Plaintiff's constitutional right to equal protection of law was the direct result of a [City] policy or custom that created a [racially] [sexually] hostile or abusive work environment. In order to prevail on the claim against the [City] the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff was treated differently than other employees in the terms and conditions of [his] [her] employment by the [City]; Second: That such different treatment was the intended result of a [racially] [sexually] hostile or abusive work environment which had become a [City] policy or custom, as hereafter defined; and Third: That the Plaintiff suffered damages as a proximate or legal result of such [City] policy or custom. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] A policy or custom means a persistent, widespread or repetitious course of conduct by public officials or employees that, although not authorized by, or which may even be contrary to, written law or express municipal policy, is so consistent, pervasive and continuous that the [City] policy makers must have known of it, so that, by their acquiescence, such policy or custom has acquired the force of law without formal adoption or announcement. The Court has determined that the [City's] policy makers, within the meaning of this instruction, were the [City Manager and the City Council]. Finally, for damages to be the proximate or legal result of a wrongful [City] policy or custom, it must be shown that, except for such policy or custom, the damages would not have occurred. If you find in favor of the Plaintiff and against the Defendant, you will then consider the issue of the Plaintiff's damages. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. [On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.] You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Emotional pain and mental anguish. [(c) Punitive damages, if any (as explained in the Court’s instructions)] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice, or reckless indifference to the Plaintiff’s federally protected rights, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 1.1.3 Public Employee Equal Protection Claim Race And/Or Sex Discrimination - Hostile Work Environment (Separate Liability Of Public Body And Individual Supervisors) SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the individual Defendant intentionally discriminated against the Plaintiff in the terms or conditions of [his] [her] employment based on the Plaintiff’s [race] [sex] through the creation and maintenance of a [racially] [sexually] hostile or abusive work environment? Answer Yes or No [Note: If you answered “No” to Question No. 1 you need not answer the remaining questions.] [2. That the individual Defendant committed such act or acts of discrimination “under color” of state law or authority? Answer Yes or No] 2. That the individual Defendant’s act or acts were the proximate or legal cause of damages sustained by the Plaintiff? Answer Yes or No 3. That the [racially] [sexually] hostile or abusive work environment had become a [city] policy or custom, as defined in the Court’s instructions, for which the [city] would be legally responsible? Answer Yes or No 4. That the Plaintiff should be awarded damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No If your answer is Yes, in what amount? $       5. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No If your answer is Yes, in what amount? $       6. That the Defendant acted with malice or with reckless indifference to the Plaintiff’s federally protected rights and that punitive damages should be assessed against the Defendant? Answer Yes or No If your answer is Yes, in what amount? $       SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS Gender based discrimination against public employees by their employers is a violation of the Fourteenth Amendment. Bohen v. City of East Chicago, Indiana, 799 F.2d 1180 (7th Cir. 1986); Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989); Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990); Trautvetter v. Quick, 916 F.2d 1140 (7th Cir. 1990); Pontarelli v. Stone, 930 F.2d 104 (1st Cir. 1991). The definition of a sexually hostile work environment is derived directly from Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). See also, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Supervisor liability for constitutional violations (denial of equal protection) is discussed in Cross v. State of Alabama, 49 F.3d 1490 (11th Cir.), reh’g denied, 59 F.3d 1248 (11th Cir. 1995). The definition of policy or custom is derived from Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also, Fundiller v. City of Cooper City, 777 F.2d 1436 (11th Cir. 1985). With regard to remedies, see the Annotations and Comments following Federal Claims Instruction 1.1.1, supra.