[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].
The Fourteenth Amendment’s Equal Protection Clause prohibits discrimination against public employees on the basis of [race/sex]. It also prohibits creating a [racially/sexually] hostile work environment.
[The law that applies to [Plaintiff]’s claims against [Defendant] is different from the law that applies to [his/her] claim against [name of city], and you must consider each claim separately.]
First, I will explain the law you must apply to decide [Plaintiff]’s claims against [Defendant].
To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Defendant] intentionally committed acts that created a hostile work environment for [Plaintiff], either personally or by directing others;
Third: [Defendant] had supervisory authority over [Plaintiff] in the terms and conditions of [his/her] employment;
Fourth: [Defendant]’s actions were “under color” of state law; and
Fifth: [Plaintiff] suffered damages because of the hostile work environment.
For the first element, [Plaintiff] must show that [he/she] was harassed because of [his/her] [race/sex].
For the second element, [Plaintiff] must show that [Defendant] intentionally committed acts that created a [racially/sexually] hostile work environment either personally or by directing others.
A [racially/sexually] “hostile work environment” exists if:
(b) [Plaintiff] did not welcome the offensive acts or statements, which means that [Plaintiff] did not directly or indirectly invite or solicit them by [his/her] own acts or statements;
(c) the offensive acts or statements were so severe or pervasive that they materially altered the terms and conditions of [Plaintiff]’s employment;
(d) a reasonable person – not someone who is overly sensitive – would have found that the offensive acts or statements materially altered the terms and conditions of the person’s employment; and
(e) [Plaintiff] personally believed that the offensive acts or statements materially altered the terms and conditions of [his/her] employment.
(b) its severity;
(c) whether it was physically or psychologically threatening or humiliating; and
(d) whether it unreasonably interfered with [Plaintiff]’s work performance.
[To be used when the parties stipulate that defendants acted “under color” of state law: The parties have agreed that [Defendant] acted “under color” of state law so you should accept that as a proven fact.]
[To be used when the parties dispute whether the defendants acted “under color” of state law: For the third and fourth elements, you must also decide whether [Defendant] had supervisory authority over [Plaintiff] and whether [he/she] acted “under color” of state law.
A government official acts “under color” of law when [he/she] acts within the limits of lawful authority. A government official also acts under color of law when [he/she] claims to be performing an official duty but [his/her] acts are outside the limits of lawful authority and abusive in manner, or [he/she] acts in a way that misuses [his/her] power and is able to do so only because [he/she] is an official.]
To find that [Defendant] acted “under color” of state law, you must find that [he/she] had supervisory authority over [Plaintiff] in the terms and conditions of [his/her] employment and that [Defendant] abused or misused that authority by subjecting [him/her] to a hostile work environment because of [his/her] [race/sex].]
Now I will explain the law you must apply to decide [Plaintiff]’s claims against [name of city].
To succeed on [his/her] claim against [name of city], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: The hostile work environment was the result of a “policy or custom” of [name of city]; and
Third: [Plaintiff] suffered damages because of the hostile work environment.
A “policy or custom” includes a:
(b) policy statement or decision that [name of city]’s policymakers made; or
(c) practice or course of conduct that is so widespread that it has acquired the force of law – even if the practice has not been formally approved. You may find that a “policy or custom” existed if there was a practice that was so persistent, widespread, or repetitious that [name of city]’s policymaker[s] either knew of it, or should have known of it.
If you find in [Plaintiff]’s favor on the elements [he/she] must prove, then you must you must decide whether [Plaintiff] suffered damages because of the hostile work environment. If the damages would not have existed except for the hostile work environment, then you may find that [Plaintiff] suffered those damages because of the hostile work environment.
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages as a result of the hostile work environment, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork.
You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:
(b) emotional pain and mental anguish.
To determine whether and how much [Plaintiff] should recover for emotional pain and mental anguish, you may consider both the mental and physical aspects of injury – tangible and intangible. [Plaintiff] does not have to introduce evidence of a monetary value for intangible things like mental anguish. You will determine what amount fairly compensates [him/her] for [his/her] claims. There is no exact standard to apply, but the award should be fair in light of the evidence.
[Mitigation of Damages: 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. For purposes of this case, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that:
(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
[Punitive Damages: To be used only for individual-capacity claims against individual defendants: [Plaintiff] also claims that [Defendant]’s acts were done with malice or reckless indifference to [Plaintiff]’s federally protected rights, which would entitle [him/her] to punitive damages in addition to compensatory damages. [Plaintiff] must prove by a preponderance of the evidence that [he/she] is entitled to punitive damages. You will only reach the issue of punitive damages if you find that [Plaintiff] has proved the elements of [his/her] claim against [Defendant] and you award [Plaintiff] compensatory damages. You may not assess punitive damages against [name of city].
If you find for [Plaintiff] and find that [Defendant] acted with malice or reckless indifference to [Plaintiff]’s federally protected rights, the law allows you, in your discretion, to award [Plaintiff] punitive damages as a punishment for [Defendant] and as a deterrent to others.
A person acts with malice if the person’s conduct is motivated by evil intent or motive. A person acts with reckless indifference to the protected federal rights of another person when the person engages in conduct with a callous disregard for whether the conduct violates those protected federal rights.
If you find that punitive damages should be assessed, you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages. [You also may assess punitive damages against one or more of the individual defendants, and not others, or against more than one individual defendant in different amounts.]]
