                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-3615
DANIELLE CLARK HERNANDEZ,
                                               Plaintiff-Appellant,
                                v.


HCH MILLER PARK JOINT VENTURE,
                                               Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
            No. 02 C 320—Charles N. Clevert, Jr., Judge.
                         ____________
       ARGUED JUNE 9, 2005—DECIDED AUGUST 12, 2005
                         ____________




  Before BAUER, RIPPLE, and MANION, Circuit Judges.
  MANION, Circuit Judge. Danielle Hernandez sued her
former employer, HCH Miller Park Joint Venture (“HCH”),
for sex discrimination and retaliation under Title VII. A jury
returned a verdict in favor of HCH. Hernandez appeals,
challenging the district court’s exclusion of evidence and its
mixed-motive jury instruction. We affirm.
2                                              No. 04-3615

                             I.
  In 1997, construction began on Miller Park, the new
baseball stadium for the Milwaukee Brewers. HCH served
as the construction manager for this project. Although it
subcontracted much of the work, HCH reserved for itself
some tasks, including general cleanup, monitoring of con-
ditions, preparing concrete forms, and the placement of
concrete on the site. To perform these tasks, HCH employed
carpenters, operators, and laborers. In June 1997, HCH hired
Danielle Hernandez to work as a laborer.
  Laborers at Miller Park performed a number of functions,
including sweeping, cleaning, demolition, assisting carpen-
ter crews, pouring and placing concrete, and working in the
“bone yard” (an area near the construction site where
materials, including lumber, were kept and organized).
Laborers could be assigned to any of these tasks.
  While working at Miller Park, Hernandez spent most of
her time assisting the carpenter crew. Hernandez, however,
preferred to work on the concrete crew because, although
both assignments paid the same, Hernandez believed that
she would qualify for more overtime pay on the concrete
crew. Notwithstanding her desire to work with the concrete
crew, during the approximately two years Hernandez
worked for HCH, she was assigned to the concrete crew
only four or five times. Hernandez regularly complained
about the lack of more concrete assignments.
  Hernandez also complained to the Milwaukee County
Director of Contract Compliance that she was not given the
opportunity to do more skilled work and that instead she
was relegated to menial and dreary tasks, such as picking
up, sweeping, and carrying lumber from one area to another.
Hernandez claims that after she complained, she was exiled
for two weeks to the “bone yard.”
No. 04-3615                                                   3

  Following a crane accident in July 1999, which shut down
construction temporarily, Hernandez accepted a position
with another employer. In September 1999, Hernandez
returned to HCH, but following a slowdown in work, she
was again laid off in January 2000. In March 2000, she re-
turned once more to Miller Park, but was terminated at the
conclusion of that project.
   Nearly two years later, on March 29, 2002, Hernandez
filed suit against HCH alleging sex discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e, et seq. Hernandez’s claims were
tried to a jury. To prove her claims of sex discrimination and
retaliation, Hernandez wanted to present evidence that the
toilet facilities at Miller Park were dirty and contained
graffiti, contending that the condition of the toilets was
essentially an attempt to discourage women from working
at Miller Park. Prior to voir dire, HCH orally moved to
exclude evidence related to the condition of the toilet facili-
ties at Miller Park, arguing that this evidence was irrelevant
and that any relevance was outweighed by unfair prejudice
and, therefore, inadmissible under Fed. R. Evid. 403. The
district court delayed ruling on this motion until trial. Once
trial began and Hernandez called a witness expected to
testify about the condition of the toilets, HCH renewed its
objection to that testimony. After hearing additional
argument, the district court ruled that the evidence was
inadmissible.
  Trial then proceeded, with the jury hearing from
Hernandez and numerous HCH employees, who testified
about Hernandez’s employment at HCH, including her
work assignments. Among other things, Hernandez pre-
sented evidence at trial that the few times that she was per-
mitted to work on the concrete crew, she did her job very
well. Conversely, HCH presented testimony that, when it
4                                                No. 04-3615

had assigned Hernandez to pour concrete, she moved
awkwardly in and about the concrete, and that she failed to
move the material efficiently. Also, she did not work at the
necessary pace, and instead of digging into the concrete to
move it forward, as required, she merely scratched the
concrete surface. HCH also presented evidence that on one
occasion Hernandez improperly walked through an area of
finished concrete. In addition, there was testimony that
employees of another subcontractor complained about her
work and threatened to walk off the job if she were assigned
to another concrete pour.
  For her part, Hernandez testified at trial that on approxi-
mately ninety occasions she was denied overtime in favor of
a male employee. HCH responded by providing an analysis
of Hernandez’s overtime compared to other employees. This
analysis showed that Hernandez received 368 hours of
overtime, and was in fact one of the highest overtime-
earning laborers, other than management employees.
   Additionally, at trial Hernandez claimed that she was
assigned to the bone yard in retaliation for complaining
about not being assigned to pour concrete. HCH presented
testimony, however, that working in the bone yard was a
typical assignment for laborers and that when she worked
there, another male laborer had also been assigned that task.
Hernandez further complained that the locks on some of the
portable toilets were broken, but the HCH superintendent
testified that when he was informed that a lock was broken,
it was fixed within one day.
  Following the trial testimony, the district court instructed
the jury on the law of sex discrimination, including the law
related to a mixed-motive case. The district court instructed
No. 04-3615                                                    5
                                                    1
the jury that “if you find that the defendant’s sex was a
motivating factor in the defendant’s actions regarding the
terms and conditions of plaintiff’s employment, the plaintiff
is entitled to your verdict, even if you find that the defen-
dant’s conduct was also motivated by a lawful reason.”
Hernandez had objected to this instruction, arguing that the
district court should have used the word “treatment” as
opposed to “terms and conditions,” but the district court
rejected Hernandez’s formulation. The jury returned a
verdict in favor of HCH. Hernandez appeals.


                               II.
  On appeal, Hernandez presents two arguments. First, she
claims that the district court erred in excluding evidence
about the condition of the toilets, including the presence of
graffiti in the portable facilities. Second, Hernandez argues
that the district court erred in rejecting her formulation of
the mixed-motive instruction. We consider each issue in
turn.


A. Condition of the Toilets
  As noted, Hernandez first challenges the district court’s
exclusion of evidence concerning the condition of the toilets
available at the Miller Park construction site. The district
court held that this evidence was irrelevant because


1
  In reading this jury instruction, the district court mis-spoke,
saying “defendant’s” sex and not “plaintiff’s” sex. Hernandez
does not claim that this error constituted reversible error, and
given that the clear focus in this case was Hernandez’s claims of
sex discrimination, we conclude that this slip of the tongue was
harmless error.
6                                                  No. 04-3615

Hernandez was not presenting a hostile work environment
claim. Evidentiary rulings are reviewed for an abuse of
discretion. Manuel v. City of Chicago, 335 F.3d 592, 595 (7th
Cir. 2003).
  On appeal, as to the graffiti, Hernandez claims this
evidence was relevant because “[e]vidence that there was
sexually-explicit graffiti in the portable toilets and that it
remained there after Hernandez and other women com-
plained is relevant to the question of whether Hernandez
was treated less favorably than her male co-workers because
of her sex.” She further claims that “[e]vidence of sexually
harassing comments or behavior may be admissible and
relevant to show general sex bias and therefore to prove
discriminatory intent.”
  Although in making these arguments on appeal
Hernandez maintains that the graffiti was sexually explicit
and was “sexually harassing,” her offer of proof before the
district court did not state that the graffiti was of a sexual or
anti-female nature. On appeal, Hernandez attempted to
overcome this deficiency by filing with this court photo-
graphs depicting the graffiti. However, this court may only
consider evidence properly presented to the district court,
and, before the district court, Hernandez failed to proffer
any evidence that the graffiti had anything to do with sex or
women. See United States v. Elizalde-Adame, 262 F.3d 637, 640
(7th Cir. 2001) (holding that a party cannot “add materials
to the record on appeal which were not before the district
court”).
  Moreover, even assuming the graffiti was sexually
charged, Hernandez failed to tie the graffiti to an HCH
employee, much less a decisionmaker. This is significant
because Hernandez did not present a hostile environment
claim, but instead argues that the graffiti helps establish that
No. 04-3615                                                  7

HCH had a general bias against women. However, without
evidence that a decisionmaker was responsible for the
graffiti, evidence that the graffiti was sexually charged
cannot establish that a decisionmaker holds an anti-female
bias, and, in this case, the evidence established that hun-
dreds of subcontractors worked on the construction site, and
any one of them could have been responsible for the graffiti.
Or the graffiti might have been on the portable toilets prior
to their placement at Miller Park. Therefore, evidence of the
graffiti is irrelevant to Hernandez’s sex discrimination claim
against HCH. See Schreiner v. Caterpillar, Inc., 250 F.3d 1096,
1099 (7th Cir. 2001) (holding that sexist comments “are
relevant only when attributable to the person who made the
adverse employment decision,” and affirming the district
court’s exclusion of such comments).
  Hernandez also claims that evidence pertaining to the
condition of the toilets was admissible to establish an anti-
female bias. However, Hernandez failed to proffer any
evidence showing that HCH maintained the toilets differ-
ently for men and women. Rather, she merely sought to
show that the toilets were disgusting. The district court did
not abuse its discretion in concluding that such evidence
was irrelevant to the issue of sex discrimination because
Hernandez failed to show any discriminatory motive in the
                            2
maintenance of the toilets.
  Finally, Hernandez asserts that the evidence concerning
the graffiti and the condition of the toilets was admissible to
support her retaliation claim. Specifically, Hernandez



2
  Hernandez seemingly argues that the condition of the toilets
affected women differently than men. However, Hernandez did
not present a disparate impact claim, much less evidence or
argument to the district court to support a claim of disparate
impact. Therefore, this argument also lacks merit.
8                                                     No. 04-3615

argues that she was fired for complaining about, among
other things, the graffiti and the conditions of the toilets,
and thus this evidence was admissible to support a claim of
retaliation. To prevail on a claim of retaliation, “the plaintiff
must show that: (1) [s]he complained about conduct that is
prohibited by Title VII; (2) [s]he suffered an adverse em-
ployment action; and (3) the adverse employment action
was caused by h[er] opposition to the unlawful employment
practice.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1007 (7th Cir. 2000).
  As noted above, in arguing for the admission of this evi-
dence, Hernandez focused on the disgusting condition of the
toilets, but she did not claim that HCH maintained the
toilets differently for men and women. She also failed to
explain to the district court how the condition of the toilets
constituted a violation of Title VII. Although, to prevail on
a retaliation claim, a plaintiff need not have opposed an
action that in fact violated Title VII, Fine v. Ryan Int’l Airlines,
305 F.3d 746, 752 (7th Cir. 2002), a plaintiff must “reason-
ably believe[ ] in good faith that the practice she opposed
violated Title VII.” Id. Before the district court in making her
offer of proof, Hernandez, however, failed to present legal
support for the proposition that complaining about the
condition of the toilets could reasonably be considered a
complaint about a violation of Title VII. See Young v.
Rabideau, 821 F.2d 373, 376 (7th Cir. 1987) (holding that
although a formal offer of proof is not necessary, the
plaintiff must “make the appropriate arguments to the
district court that he now makes on appeal in order to alert
the trial court to the issue”). Under these circumstances, the
district court did not abuse its discretion in excluding evi-
dence concerning the graffiti or the condition of the toilets
as irrelevant to Hernandez’s discrimination and retaliation
claims.
No. 04-3615                                                       9

B. Jury Instructions
  Hernandez’s second argument on appeal is that the
district court erred in instructing the jury on the law
regarding a mixed-motive employment decision. As ex-
cerpted above, at trial the district court instructed the jury
that: “[I]f you find that the defendant’s [sic] sex was a
motivating factor in the defendant’s actions regarding the
terms and conditions of plaintiff’s employment, the plaintiff
is entitled to your verdict, even if you find that
the defendant’s conduct was also motivated by a lawful
reason.” Hernandez argues on appeal that this instruction
was misleading because the phrase “terms and conditions”
was not broad enough, and that the district court should
have accepted her formulation, which would have in-
structed the jury to find in her favor if her sex was a moti-
vating factor in the defendant’s actions regarding her
“treatment.”
  In reviewing jury instructions, this court seeks “to deter-
mine if the instructions as a whole were sufficient to inform
the jury correctly of the applicable law.” Bronk v. Ineichen, 54
F.3d 425, 429 (7th Cir. 1995). To determine the applicable
law, we turn to the Civil Rights Act of 1991, which, among
other things, established the governing standard in mixed-
motive cases, providing that “an unlawful employment
practice is established when the complaining party demon-
strates that . . . sex . . . was a motivating factor for any
employment practice, even though other factors also
                                                    3
motivated the practice.” 42 U.S.C. § 2000e-2(m).


3
  The Civil Rights Act of 1991 further provided that if an
individual proves a violation under § 2000e-2(m), the employer
can avail itself of a limited affirmative defense that restricts the
                                                     (continued...)
10                                                  No. 04-3615

  Although we have noted that district courts are best
advised to rely on the statutory language in framing jury
instructions, Akrabawi v. Carnes Co., 152 F.3d 688, 694 (7th
Cir. 1998), the district court varied this language, using the
phrase “terms and conditions of plaintiff’s employment”
                                           4
instead of “employment practice.” Nonetheless, jury
instructions need not be perfect. Schobert v. Ill. Dep’t of
Transp., 304 F.3d 725, 730 (7th Cir. 2002). “We will not find
reversible error in jury instructions if, taken as a whole, they
fairly and accurately inform the jury about the law.” Trident
Inv. Mgmt., Inc. v. Amoco Oil, Co., 194 F.3d 772, 780 (7th Cir.
1999).
  In this case, although the district court’s mixed-motive
instruction spoke of the need for sex to be “a motivating
factor in the defendant’s actions regarding the terms and
conditions of plaintiff’s employment,” as opposed to a mo-
tivating factor “for any employment practice,” as the statute
provided, the instruction fairly informed the jury of the law.
That is because even in a mixed-motive case, Title VII
requires that the plaintiff prove that her “compensation,
terms, conditions, or privileges of employment” were ad-
versely affected, 42 U.S.C. § 2000e-2(a)(1). In giving the
mixed-motive instruction in this case, the district court
merely combined these distinct legal issues, providing the


3
  (...continued)
available remedies if it demonstrates that it would have taken the
same action absent the impermissible motivating factor. 42 U.S.C.
§ 2000e-5(g)(2)(B).
4
  Hernandez also did not seek an instruction based on
the precise statutory language, and on appeal, she continues to
maintain that the district court should have used the word “treat-
ment” as opposed to the statutorily provided language of
“employment practice.”
No. 04-3615                                                   11

jury, in one instruction, guidance on both the initial inquiry
of whether HCH’s conduct adversely affected a term or
                                          5
condition of Hernandez’s employment, and also on the
secondary issue related to an employer’s mixed motive. This
is clear when one considers the district court’s explanation
for rejecting Hernandez’s proposed modification of the
mixed-motive jury instruction. The district court explained:
    The plaintiff wanted language regarding the treatment
    of the plaintiff; however, treatment of the plaintiff with
    regard to certain matters may not be discriminatory.
    And any treatment of the plaintiff with regard to
    matters that do not pertain to the terms or conditions of
    employment would not warrant compensation, and
    certainly would not lead to damages.
  This also distinguishes Hernandez’s case from Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003), which she claims
establishes that the mixed-motive jury instruction provided
by the court in this case was improper. In Desert Palace, the
Supreme Court upheld a mixed-motive jury instruction that
read: “If you find that the plaintiff’s sex was a motivating
factor in the defendant’s treatment, the plaintiff is entitled
to your verdict, even if you find that the defendant’s
conduct was also motivated by a lawful reason.” Id. at 96.
Hernandez claims that this shows that the district court


5
   In the mixed-motive jury instruction, the district court did
not require Hernandez to establish an “adverse” term or con-
dition. Rather, the district court established a lower standard,
requiring only that Hernandez establish that sex was a motivating
factor “regarding the terms and conditions of plaintiff’s employ-
ment . . . .” But terms and conditions can be positively or
adversely affected, and the instruction failed to make this dis-
tinction clear. Thus, if anything, the error in the instruction
favored Hernandez.
12                                                No. 04-3615

should have used the word “treatment” and not “terms and
conditions.” Initially, we note that more than one formula-
tion of a jury instruction may be appropriate, and therefore,
the fact that the Supreme Court approved one version in
Desert Palace does not mean that all other formulations are
improper. In this case, however, Hernandez’s reliance on
Desert Palace is misplaced for an additional reason. In Desert
Palace, in addition to the mixed-motive instruction, the
district court also instructed the jury that the plaintiff must
have “suffered adverse work conditions.” Id. at 96. Thus, the
use of the word “treatment” in Desert Palace was appropri-
ate because the district court also instructed the jury of the
need to find an “adverse work condition.”
  In response, Hernandez claims that the use of “terms and
conditions” is improper because Title VII refers to “com-
pensation, terms, conditions or privileges.” This court,
however, has often used the shorthand “terms and condi-
tions” when speaking of the statutory standard. See, e.g.,
Herron v. DaimlerChrysler Corp., 388 F.3d 293, 301 (7th Cir.
2004) (quoting Haywood v. Lucent Techs., Inc., 323 F.3d 524,
532 (7th Cir. 2003) (“To demonstrate an adverse employ-
ment action, ‘an employee must be able to show a quanti-
tative or qualitative change in the terms or conditions of
employment.’ ”) (emphasis added)). In the context of this
case, we find nothing improper about the district court
using a simplified and more understandable phrase when
instructing the jury. In fact, in Desert Palace, the instruction
provided concerning the requirement for an adverse action
was even more simplified, providing merely that the
plaintiff must have “suffered adverse work conditions.”
Desert Palace, 539 U.S. at 96 (emphasis added). Accordingly,
we reject this argument as well. In sum, then, the district
court’s mixed-motive jury instruction, when considered in
total, adequately informed the jury of Title VII law. There-
No. 04-3615                                                13

fore, Hernandez is not entitled to a new trial based on the
district court’s refusal to provide her version of the mixed-
motive instruction.


                             III.
  The district court did not abuse its discretion in excluding
evidence concerning the condition of the toilets, including
the presence of graffiti, because this evidence was not rel-
evant to Hernandez’s discrimination and retaliation claims.
The district court’s mixed-motive jury instruction also fairly
informed the jury of Title VII law. For these and the forego-
ing reasons, we AFFIRM.


A true Copy:
       Teste:

                       ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-12-05
