                              ___________

                              No. 95-3482
                              ___________

Rebecca Caviness,                 *
                                  *
           Appellee,              *
                                  *
     v.                           *
                                  *
Nucor-Yamato Steel Company,       *
                                  *
           Appellant.             *
                                  *
Sally Parks, Deborah Gee,         *
                                  *
           Intervenors.           *   Appeals from the United States
-----------------------           *   District Court for the
                                  *   Eastern District of Arkansas.
Sally Parks,                      *
                                  *
           Appellee,              *
                                  *
     v.                           *
                                  *
Nucor-Yamato Steel Company,       *
                                  *
           Appellant.             *
                                  *
Deborah Gee,                      *
                                  *
           Intervenor.            *

                              ___________

                              No. 95-3583
                              ___________

Rebecca Caviness,                 *
                                  *
           Appellant,             *
                                  *
     v.                           *
                                  *
Nucor-Yamato Steel Company,       *
                                  *
           Appellee.              *
                                  *
Sally Parks, Deborah Gee,         *
                                  *
           Intervenors.           *
----------------------            *
                                         *
Sally Parks,                             *
                                         *
           Appellant,                    *
                                         *
     v.                                  *
                                         *
Nucor-Yamato Steel Company,              *
                                         *
           Appellee.                     *
                                         *
Deborah Gee,                             *
                                         *
           Intervenor.                   *
                                    ___________

                     Submitted:     September 9, 1996

                           Filed:   January 29, 1997
                                    ___________

Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

                                    ___________

BOWMAN, Circuit Judge.


     Nucor-Yamato Steel Company (NYS) appeals from the judgments entered
by the District Court on Rebecca Caviness's and Sally Parks's claims that
they were subjected to illegal sexual harassment resulting in a hostile
environment    at   the   NYS   steel   plant   where   they   worked.   Caviness
conditionally cross-appeals, contending that the court erred in granting
summary judgment to NYS on her claim of discriminatory failure to hire, and
asking us to consider her argument only if NYS prevails on its appeal of
the judgment in her favor on her claim of sexual harassment.             For the
reasons discussed below, we reverse and remand.


                                         I.


     Parks was an employee at NYS's steel plant in Blytheville, Arkansas,
from 1988 to 1992.    Caviness was a contract employee for NYS in Blytheville
from December 1990 to November 1991.          Both women




                                        -2-
brought suit under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, alleging that
they were discriminated against on the basis of sex, including suffering
cumulative sexual harassment that amounted to a hostile work environment.
It is unnecessary for us to get into the details of the allegations of
sexual harassment, but suffice it to say that the record is replete with
evidence from which a jury could conclude, as it did, that the NYS plant
in Blytheville was a decidedly harsh environment for female employees,
especially for Caviness and Parks, and that NYS was in violation of Title
VII.


        Before trial, the District Court granted summary judgment to NYS on
Caviness's claim of discriminatory failure to hire.       A jury heard the
remaining claims of both women, acting only in an advisory capacity as to
Caviness's claims because the actions she alleged occurred before the
federal sex discrimination laws permitted jury trials.   The jury found for
NYS on Parks's claim of discriminatory failure to promote and the court
dismissed that claim with prejudice.   (The dismissal has not been appealed
and may not be revisited on remand.)   The jury found for Parks on her claim
of sexual harassment, awarding her $200,000 in compensatory damages and
$50,000 in punitive damages.   The jury advised judgment for Caviness on her
sexual harassment claim and an award of damages in the amount of $51,000.
The District Court entered judgment for the plaintiffs in accordance with
the jury's determinations.


        For its appeal, NYS claims the District Court erred in four ways:
retroactively applying the Civil Rights Act of 1991; submitting Parks's
claim for punitive damages to the jury; giving improper jury instructions;
and mishandling, after the verdict, NYS's allegations of juror misconduct.
For her conditional cross-appeal, Caviness contends the court erred in
granting summary judgment to NYS on her claim of discriminatory failure to
hire.




                                     -3-
                                        II.


     Title VII of the Civil Rights Act of 1964 was amended by the Civil
Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071.         Until November 1991,
only equitable remedies were available to victims of discrimination under
Title VII.     See Landgraf v. USI Film Prods., 511 U.S. 244, 252 (1994).
Section 102 of the 1991 Act, however, now makes it possible for a
successful plaintiff "to recover compensatory and punitive damages for
certain violations of Title VII."             Id. at 247; see also 42 U.S.C.
§ 1981a(a) (1994).    "Section 102 confers a new right to monetary relief on
persons . . . who were victims of a hostile work environment but were not
constructively discharged, and the novel prospect of damages liability for
their employers."     Landgraf, 511 U.S. at 283.        After considering whether
the amendments should apply to cases pending on the effective date of the
1991 Act, November 21, 1991, the Supreme Court in Landgraf held that § 102
does not apply retroactively.       See id. at 286.     That is, compensatory and
punitive damages are not available to plaintiffs for violations of Title
VII occurring before November 21, 1991.              NYS argues that § 102 was
improperly applied retroactively here.          We agree.


                                        A.


     We first consider the $51,000 award to Caviness on her claim of
sexual harassment.    The jury in this case "advised" a monetary         award of
$51,000 for damages to Caviness that included, according to the verdict
form, pain, suffering, and mental anguish, all decidedly compensatory
damages.    But all of Caviness's claims arose before November 1991, when she
stopped working at NYS, and therefore before compensatory damages were
available    to   plaintiffs   in   Title     VII   cases.   The   District   Court
nevertheless entered judgment for Caviness in the amount of $51,000
"[p]ursuant to the jury verdicts in these cases," although the court did
not specify whether said damages were equitable, compensatory, or punitive.




                                        -4-
Caviness v. Nucor-Yamato Steel Co., Nos. J-C-92-23, J-C-93-140 (filed Feb.
21, 1995).    In its subsequent order denying NYS's motion for new trial, the
court    circumvented    Landgraf's   prohibition   against   applying   §   102
retroactively by recharacterizing the $51,000 in damages awarded to
Caviness, finding she was "entitled to backpay as a form of equitable
relief."    Caviness v. Nucor-Yamato Steel Co., Nos. J-C-92-23, J-C-93-140,
Order at 14 (filed Aug. 28, 1995).      The court erred.


        As noted above, the recovery of monetary damages by successful
plaintiffs on claims of discrimination under Title VII before the 1991 Act
was limited to equitable forms of relief, such as backpay, and the
circumstances under which such monetary equitable relief was available were
likewise limited.       "[E]ven if unlawful discrimination was proved, under
prior [pre-November 1991] law a Title VII plaintiff could not recover
monetary relief unless the discrimination was also found to have some
concrete effect on the plaintiff's employment status, such as a denied
promotion, a differential in compensation, or termination."      Landgraf, 511
U.S. at 254.    Sexual harassment occurring before November 1991 ordinarily
does not have the sort of concrete economic effect required for the
recovery of money damages under Title VII.       The exception would be sexual
harassment that resulted in constructive discharge, that is, a resignation
by the plaintiff that was "a reasonably foreseeable consequence of [the
employer's] discriminatory actions."        Hukkanen v. International Union of
Operating Eng'rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th
Cir. 1993).     In that case, backpay (and front pay) would be potential
remedies.      But in the absence of constructive discharge, a plaintiff
subjected to sexual harassment, no matter how egregious, is not "made
whole" by the equitable remedy of backpay.


        Caviness does not allege constructive discharge, but contends on
appeal that she was actually discharged by NYS.       It is not clear




                                      -5-
how the alleged actual discharge now becomes not only a part of Caviness's
claim of sexual harassment but the justification for an award of damages
on that claim.    The District Court at trial specifically excluded evidence
of Caviness's alleged discriminatory discharge, since she did not raise
such a claim in her complaint.   She does not appeal the court's evidentiary
ruling on her allegations of discharge and cannot now claim that the
court's award of "backpay" was based on her actual discharge.    Further, NYS
received summary judgment on Caviness's claim of failure to hire, so it too
was not before the court.    Because Caviness proved no "concrete effect on
[her] employment status" as the result of the sexual harassment she
suffered, she is not entitled to backpay.


        The $51,000 in backpay awarded to Caviness on her claim of sexual
harassment is reversed.


                                      B.


        The next issue is whether compensatory damages were properly awarded
Parks on the jury's finding of unlawful sexual harassment.   NYS would have
us vacate the entire award because some of the harassment complained of
occurred before the effective date of the 1991 Act, and the court did not
give the jury an instruction or a verdict form requiring it to limit
damages to post-Act conduct.   We agree that the court erred, but we decline
NYS's invitation to vacate Parks's damages in toto and then to leave it at
that.


        We first must consider the argument that NYS did not properly
preserve its claim of instructional error.   At the instruction conference,
counsel for NYS advised the court that "there should be an instruction and
a verdict form which distinguishes [sic] between alleged damages after the
1991 Civil Rights Act for Mrs. Parks."     Transcript at 1224.   Counsel did
not, however, give the court a proposed instruction that would have limited
damages to post-Act conduct.     "In order to properly preserve a claim of
instructional




                                     -6-
error for appellate review, a party is not only required to make a
sufficiently precise objection before the district court, but it must also
propose an alternate instruction."         Kehoe v. Anheuser-Busch, Inc., 96 F.3d
1095, 1104 (8th Cir. 1996) (citations omitted).               Because NYS did not
proffer a proposed limiting instruction, "the claim is waived, and we will
reverse only if the district court's instructions constitute plain error."
Id.   That is, the failure to give an instruction incorporating the Landgraf
rule will warrant a new trial only if it is error affecting substantial
rights,    the error is plain, and the error "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings."           Wright
v. Nichols, 80 F.3d 1248, 1252 (8th Cir. 1996) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993) (quoted case omitted)) (alteration in
Olano).


      The instruction that was given was not a correct statement of the law
under Landgraf, because Parks cannot recover compensatory damages for pre-
November 1991 harassment.      See Polacco v. Curators of the Univ. of Mo., 37
F.3d 366, 370 (8th Cir. 1994)).        There is no question that this is error
and, because Landgraf was decided well before the trial in this case and
its holding as to retroactivity is unequivocal, the error is plain.               But
we will not correct even plain error on appeal unless it "prejudiced [NYS],
either specifically or presumptively."           Olano, 507 U.S. at 739.    We hold
that NYS was specifically prejudiced by the erroneous instruction.


      Parks had an indisputable "straddle" claim--the harassment began in
1988 and continued until Parks terminated her employment with NYS in 1992.
The jury was not instructed that it could award damages only for NYS's
illegal actions occurring after November 21, 1991, and the verdict form did
not require the jury to limit damages based on the date of the unlawful
conduct.     There   is   no   way   for    anyone   to   determine,   without   pure
speculation, what part of the $200,000 in compensatory damages awarded to
Parks is for post-




                                           -7-
November 1991 illegal activity and thus may be sustainable.                     We think,
given the circumstances of this case, that the failure to give a limiting
instruction not only was plain error but was so clearly prejudicial that
it must be corrected.          Accordingly, we vacate the award of compensatory
damages and remand for a new trial.


                                                  C.


      Parks also was awarded $50,000 in punitive damages, which NYS
challenges.    Punitive damages have been available since the effective date
of   the   1991   Act    to    the     victim     of   unlawful   sexual   harassment   who
"demonstrates that the [employer] engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to the
federally     protected       rights    of   an    aggrieved   individual."     42   U.S.C.
§ 1981a(b)(1) (1994).


      Parks's punitive damages award suffers from the same instructional
error as her compensatory damages award with regard to the "straddle"
nature of the claim.      Some of the actions allegedly warranting an award of
punitive damages occurred before the effective date of the 1991 Act, some
after.     No limiting instruction was given to the jury, and none was
proffered by NYS.       Nevertheless, for the reasons discussed above, this was
plain error requiring reversal.1              The award of punitive damages to Parks
is


      1
      Parks would have us hold that the sexual harassment found by
the District Court was a "continuing violation," and then affirm
the award of compensatory and punitive damages as for the entire
course of conduct. We are not familiar with any Eighth Circuit law
where the concept of continuing violation, ordinarily associated
with statutes of limitations issues, has been employed to overcome
a non-retroactivity rule. In any case, it is clear that we would
violate the express teaching of the Supreme Court if we so held.
See Landgraf v. USI Film Prods., 511 U.S. 244, 282 (1994) ("[T]he
new compensatory damages provision would operate `retrospectively'
if it were applied to conduct occurring before November 21, 1991.")
(emphasis added). The harassing conduct in this case straddled the
effective date of the 1991 Act, so while it was "continuing" in
that sense, it nevertheless consists of discrete acts whose dates
of occurrence can be pinpointed with reasonable certainty.

                                                -8-
vacated.    Because a new trial will be necessary, and the evidence adduced
at the new trial may differ from that adduced at the first trial, we do not
reach NYS's claim that Parks's evidence was insufficient to warrant the
submission of her punitive damages claim to the jury.


                                     D.


        The question remains whether on remand there should be a new trial
on liability, or only on damages.      First, we note that the finding of
liability on Caviness's sexual harassment claim stands, but because that
liability was entirely for pre-1991 Act conduct, the question of damages
shall not be revisited on remand.     As a matter of law, Caviness is not
entitled to recover damages on this claim.        With respect to Parks's
"straddle" claim, we conclude that the liability and damages issues are so
factually intertwined that the new trial must address both issues.      See
Hallberg v. Brasher, 679 F.2d 751, 758 (8th Cir. 1982); see also American
Road Equip. Co. v. Extrusions, Inc., 29 F.3d 341, 345 n.3 (8th Cir. 1994).
Accordingly, as to Parks we vacate the judgment of the District Court in
its entirety.


                                    III.


        NYS raises several additional issues in its appeal.   Because we are
remanding this case for a new trial, the challenge to the District Court's
handling of allegations of improper third-party contact with a juror is
moot.    We will address briefly the remaining contentions, however, all of
which concern instructional error that may reappear in the new trial.
Having considered the claims of error, we offer these thoughts.




                                     -9-
     The   challenged   instruction    is    the   verdict   director   for   the
plaintiffs' sexual harassment claims.       It seeks to define the elements of
a Title VII claim for sexual harassment resulting in a hostile work
environment.2   Instruction 16 was read to the jury as follows:


           Your verdict must be for the Plaintiff Sally Parks on her
     sexual harassment claim and your verdict must be for the
     Plaintiff Rebecca Caviness on her sexual harassment claim, if
     all of the following elements have been proved by a
     preponderance of the evidence:

           First, that Plaintiff was subject to a sexually hostile
     work environment, including a lack of bathroom facilities,
     sexual jokes and innuendos, demeaning pictures and posters,
     vulgar language on the radio, et cetera;

           Second, that such conduct was sufficiently severe or
     pervasive that a reasonable person in Plaintiff's circumstances
     would find the work environment to be hostile or abusive as to
     alter Plaintiff's conditions of employment;

           Third, based upon such conduct, Plaintiff perceived her
     work environment to be hostile or abusive; and

           Fourth, that the Defendant, Nucor-Yamato Steel Company,
     knew or should have known of the conduct to which Plaintiff was
     subjected and that Defendant failed to take appropriate action
     to end the conduct to which Plaintiff was subjected.

           If any of the above elements have not been proved by a
     preponderance of the evidence, your verdict must be for




      2
      There appears to be some misconception, evident at various
stages of the trial and also on appeal, concerning this Court's
role in promulgating or approving the Eighth Circuit Model Jury
Instructions. (The District Court relied on a draft of the model
instructions when formulating some of the instructions given in
this case.) These instructions are drafted by a committee. No
member of this Court participates in the work of that committee.
We do not promulgate these instructions, and "[w]e `approve' of the
model instructions only as they are individually litigated and
upheld by this court on a case-by-case basis." United States v.
Ali, 63 F.3d 710, 714 n.3 (8th Cir. 1995).

                                      -10-
     the Defendant and you need not proceed further in considering
     this claim.

           You must apply these elements to the facts surrounding
     each Plaintiff's claims.   Your verdict as to one Plaintiff
     should not affect your verdict as to the other.


Transcript at 1232-33.


     NYS first asserts that the instruction improperly commented on the
evidence by enumerating some of the incidents and conditions of employment
to which Parks and Caviness claimed to have been subjected.


     It has long been the rule that "under the Federal practice the trial
judge may in his charge comment on the evidence fairly and impartially,
more clearly to define the issues and assist the jury in reaching a correct
conclusion."   Davis v. R.K.O. Radio Pictures, Inc., 191 F.2d 901, 905 (8th
Cir. 1951); accord United States v. Dunmore, 446 F.2d 1214, 1218 (8th Cir.
1971) ("While a federal trial judge is permitted to comment on the evidence
and witnesses in his instructions to the jury, he must studiously avoid
one-sidedness.") (citations omitted), cert. denied, 404 U.S. 1041 (1972).
Apparently judicial comment on the plaintiff's evidence is not only
permitted but is the practice in the district courts of this Circuit in
framing instructions in sexual harassment cases.     See, e.g., Gillming v.
Simmons Indus., 91 F.3d 1168, 1171 (8th Cir. 1996) (quoting verdict
director that recited examples of the plaintiff's proof of the illegal
conduct).   NYS's concern, and ours, is that Instruction 16 may have placed
"undue emphasis" on plaintiffs' evidence, Tyler v. Hot Springs Sch. Dist.
No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987), because there were no comments
in the instructions on NYS's countervailing evidence, at least as to the
harassment claims.   In Instruction 13 the court did set forth NYS's primary
defense on the claims:    that the company denies subjecting Caviness and
Parks to a sexually hostile work




                                    -11-
environment.    See Transcript at 1231.         NYS apparently did not proffer an
instruction that included a more explicit defense than denial, although
some specifics were incorporated into the jury instruction that set forth
NYS's defense on Parks's claim of discriminatory failure to promote.                 See
id. at 1231 ("The Defendant denies this charge.               Specifically it claims
that it did not promote or transfer Plaintiff because she was not the most
qualified candidate for the promotions or transfers she sought.").              There
was, however, some countervailing evidence adduced as to some of the
examples of harassment the court cites in Instruction 16, which might
appropriately have been included in an instruction.


     We hesitate to say much more about this issue, as we recognize that
a district court has significant discretion to formulate instructions in
a jury trial, see Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th
Cir.), cert. denied, 117 S. Ct. 179 (1996), and such decisions are best
made in that forum on an ad hoc basis.          Moreover, we have our doubts, after
considering    the   instructions   as    a   whole,   that    any   error   based    on
Instruction 16's recitation of some of plaintiffs' evidence would be so
prejudicial as to be reversible, see Vanskike v. ACF Indus., Inc., 665 F.2d
188, 202 (8th Cir. 1981), cert. denied, 455 U.S. 1000 (1982), especially
when NYS did not offer an instruction that would have balanced the language
in Instruction 16 that it finds objectionable.                We simply caution the
District Court to be mindful on retrial of placing "undue emphasis" on one
party's evidence.


     NYS also alleges that Instruction 16 misstates the law because it
does not properly instruct the jury on the elements of a sexual harassment-
hostile work environment claim.     That is, it does not specifically require
the jury to find that the harassment was based on Parks's and Caviness's
sex or that it was unwelcome in order to find for the plaintiffs.




                                         -12-
     The elements of a claim of sexual harassment resulting from a hostile
work environment are well-established in this Circuit.                  In order to
prevail, a plaintiff must prove:


     (1) she belongs to a protected group; (2) she was subject to
     unwelcome sexual harassment; (3) the harassment was based on
     sex; (4) the harassment affected a term, condition, or
     privilege of employment; and (5) [the employer] knew or should
     have known of the harassment and failed to take proper remedial
     action.


Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993)
(quoting Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir.
1992)) (alteration by this Court).    Instruction 16 is missing the specific
requirements that, in order to find for the plaintiffs, the jury must find
that the conduct complained of was based on Parks's and Caviness's sex and
that it was unwelcome.    This was error.     Nonetheless, it is crystal clear
from the record that many of the illegal actions alleged in this case were
taken because the plaintiffs were women, and there are references to
"sexual"   harassment    throughout   the    instructions,      including     one   in
Instruction 16.    Further, it stretches credulity to conceive that a
reasonable jury might have thought Parks and Caviness welcomed from their
co-workers the conduct detailed in the evidence at trial.            Thus, when we
consider the instructions as a whole, we do not believe the missing
elements constitute reversible error.       See May v. Arkansas Forestry Comm'n,
993 F.2d 632, 637 (8th Cir. 1993) ("[A] single erroneous instruction does
not require reversal if the charge as a whole fairly and adequately submits
the issue to the jury.").    Nevertheless, the omissions should be remedied
in the instructions on remand.


                                      IV.


     Caviness   conditionally   cross-appeals      from   the   grant    of   summary
judgment in favor of NYS on her Title VII claim for discriminatory




                                      -13-
failure to hire.    Because we have held that she is not entitled to damages
on her claim of sexual harassment and have reversed the money judgment that
she won in the District Court, we now take up her appeal.


     We review the grant of summary judgment de novo, applying the same
standard as the District Court.      See Chance Management, Inc. v. South
Dakota, 97 F.3d 1107, 1110 (8th Cir. 1996), petition for cert. filed, 65
U.S.L.W. 3468 (U.S. Dec. 20, 1996) (No. 96-995).        We will affirm only if
we are convinced that there are no genuine issues of material fact on
Caviness's sex discrimination claim and that NYS is entitled to judgment
as a matter of law.   See id.; Fed. R. Civ. P. 56(c).    We view the facts in
the light most favorable to Caviness and give her the benefit of all
reasonable inferences.   See Smith v. City of Des Moines, 99 F.3d 1466, 1469
(8th Cir. 1996).


     The District Court held that Caviness could not prove a prima facie
case that NYS failed to hire her on account of her sex.            On appeal,
Caviness contends that she demonstrated genuine issues of material fact on
the elements of her prima facie case so as to survive NYS's motion for
summary judgment.


     To make out a prima facie case under Title VII for discriminatory
failure to hire, the plaintiff must be able to prove "1) that she is a
member of a protected class; 2) that she applied and was qualified for a
job for which the employer was seeking applicants; 3) that she was
rejected; and 4) that after rejecting plaintiff the employer continued to
seek applicants with plaintiff's qualifications."    Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995).     There is no dispute here about
the first and third elements of the prima facie case:           Caviness is a
female, a member of a protected class, and NYS did not hire her.          The
District Court concluded, and NYS argues in response to the cross-appeal,
that Caviness cannot show a fact dispute about the second




                                    -14-
element--"that she applied and was qualified for a job for which the
employer was seeking applicants," id.--because she never applied for the
jobs at issue.


       Caviness was a contract employee while she worked at the NYS plant,
first for Daniels Construction and then for Scheuck Steel, but she was
always under the direct control and supervision of NYS employees.       She
submitted bids for two job openings at the plant, but did not complete an
application for either.   One of the jobs, that of bundle turner, went to
a male NYS employee who had not submitted a bid for it (in fact, no one
except Caviness bid for the job); the male in question was a new employee
whom NYS sought out to fill the job.      Caviness, who had been doing the
bundle turner job temporarily for six months at the time it officially
became a job opening, helped train the transferee.   The other position, an
inspector job previously held by the transferred employee, was eliminated,
apparently at the suggestion of the all-male inspector crew.   A few months
later, and two months after Caviness stopped working at the plant, a man
from   outside the company was hired to fill a resurrected inspector
position.


       NYS contends that Caviness did not apply for either job, because
"bidding" on jobs was open only to NYS employees.     We conclude, however,
that it is for a fact-finder to decide whether Caviness's status as a
contract laborer in the plant, working under the supervision of NYS
employees, gave her the option of bidding for jobs.     Even if it did not,
there remains the factual question whether Caviness's bids would qualify
as applications.


       NYS also argues that Caviness cannot establish any fact question
about the fourth element of her case, at least as to the inspector
position, because the company did not continue to seek applicants for the
job, but eliminated it altogether.   We conclude, however, that the job's
reappearance a few months later raises a fact question relevant to
Caviness's proof of her claim.




                                   -15-
     We believe the District Court erred in holding that genuine issues
of material fact do not exist regarding Caviness's claim of discriminatory
failure to hire.   Accordingly, we reverse the summary judgment for NYS on
this claim and remand for trial.


                                     V.


     To summarize:    (1) the monetary award to Caviness on her claim of
sexual harassment is reversed; (2) the judgment for Parks on her claim of
sexual harassment is vacated; (3) the grant of summary judgment for NYS on
Caviness's Title VII claim of discriminatory failure to hire is reversed;
and (4) the case is remanded for a new trial on Parks's claim of sexual
harassment and for trial on Caviness's Title VII claim of discriminatory
failure to hire.


BRIGHT, Circuit Judge, concurring separately.


     I concur in the result.    I disagree, however, with the criticism of
the district court's jury instructions.       In my view, the trial court
properly instructed the jury.   When reviewing jury instructions, this court
must view the instructions as a whole, and if the instructions as a whole
are fair and not unduly suggestive, we should refrain from being overly
critical.    See Gillming v. Simmons Indus., 91 F.3d 1168, 1171 (8th Cir.
1996).


     In this case, the district court's jury instructions included the
following:


     Instruction No. 13:

           It is unlawful for an employer to intentionally refuse to
     transfer or promote any person or otherwise discriminate
     against any person with respect to compensation, tenure,
     conditions, or privileges of employment because of such
     person's sex. The Plaintiff in this case, Sally Parks, claims
     that    Defendant   Nucor-Yamato    Steel   Co.   intentionally
     discriminated against her because of her sex by failing to
     transfer or promote her




                                    -16-
     to certain positions within its workplace.       The Defendant
     denies this charge. Specifically it claims that it did not
     promote or transfer plaintiff because she was not the most
     qualified candidate for the promotions or transfers she sought.
     It is your responsibility to decide whether the Plaintiff has
     proven her claim against the Defendant by a preponderance of
     the evidence.

           It is also unlawful for an employer to allow its
     employees to be subjected to a sexually hostile workplace.
     Plaintiff Sally Parks and Plaintiff Rebecca Caviness both claim
     that Defendant Nucor-Yamato Steel Co. subjected them to such a
     sexually hostile workplace.       The Defendant denies these
     charges. It is your responsibility to decide whether Plaintiff
     Parks and Plaintiff Caviness have proven their claims against
     the Defendant by a preponderance of the evidence.


Jt. App. at 200.




     Instruction No. 17:

           In determining whether a reasonable person in the
     plaintiffs' circumstances would find the plaintiffs' work
     environment to be hostile or abusive, you must look at all the
     circumstances. The circumstances may include the frequency of
     the discriminatory conduct; its severity; whether it was
     physically threatening or humiliating, or merely offensive;
     whether it unreasonably interfered with the plaintiffs' work
     performance; and the effect on plaintiffs' psychological well-
     being. No single factor is required in order to find a work
     environment hostile or abusive.


Jt. App. at 212.


     Instruction No. 16:

           Your verdict must be for the Plaintiff Sally Parks on her
     sexual harassment claim and your verdict must be for the
     Plaintiff Rebecca Caviness on her sexual harassment claim, if
     all of the following elements have been proved by a
     preponderance of the evidence:

           First, that Plaintiff was subject to a sexually hostile
     work environment including a lack of bathroom




                                  -17-
     facilities, sexual jokes and innuendo, demeaning pictures and
     posters, vulgar language on the radio, etc.

           Second, that such conduct was sufficiently severe or
     pervasive that a reasonable person in plaintiff's circumstances
     would find the work environment to be hostile or abusive as to
     alter Plaintiff's conditions of employment;

           Third, based on such conduct, Plaintiff perceived her
     work environment to be hostile or abusive; and,

           Fourth, that the Defendant, Nucor-Yamato Steel Company,
     knew or should have known of the conduct to which plaintiff was
     subjected and that Defendant failed to take appropriate action
     to end the conduct to which plaintiff was subjected.

           If any of the above elements have not been proved by a
     preponderance of the evidence, your verdict must be for
     Defendant and you need not proceed further in considering this
     claim.

           You must apply these elements to the facts surrounding
     each Plaintiff's claims.   Your verdict as to one Plaintiff
     should not affect your verdict as to the other.


Jt. App. at 213.


     Mentioning the specific allegations of sexual harassment in the
verdict director was not improper.   Cf., Gillming, 91 F.3d at 1171 (quoting
and upholding jury instructions including specific allegations of sexual
harassment).   The allegations may be mentioned either in the introduction
to the jury instructions or in the verdict director.         I believe the
district court's inclusion of the Plaintiffs’ allegations of sexual
harassment could have been included in Instruction No. 13 or in Instruction
No. 16.   In either case, the instructions would be appropriate.        The
instructions as a whole make abundantly clear to the jury that the
Plaintiffs must carry the burden of proof by a preponderance of the
evidence on all relevant issues relating to establishing sexual harassment.




                                     -18-
Moreover,   the     Defendant   did   not    propose   any   proper   alternative
                3
instructions.



      3
       An example of improper and misleading instructions is the
defendant's proffered Instruction No. 7:

          The Act under which Plaintiff brings this lawsuit,
     Title VII of the Civil Rights Act of 1964, as amended,
     forbids discrimination against an employee because of the
     employee's sex. The Act does not, for purposes of this
     lawsuit, forbid any other type of discrimination, nor
     does it forbid any other action or inaction by Nucor-
     Yamato relative to Plaintiff.

          The Act does not state that being female entitles
     employees to special favorable consideration; nor is it
     equivalent to an affirmative action program to promote or
     hire a certain number of female employees.        The Act
     requires that a female employee not be the subject of
     discrimination because of her sex. The Act does not seek
     to affect employer decisions based on the employer's
     individual   assessments   of   a   person's   abilities,
     capabilities, or potential, or the employer's needs.

          The basic principle is that an employer is entitled
     to refuse or fail to promote or advance an employee for
     good cause, poor cause, or no cause at all, so long as
     the reason is not the employee's sex. You must bear in
     mind that an employer is entitled to make its own
     subjective business judgments, however misguided and
     shortsighted they may appear to you, and may refuse to
     promote an employee for any reason that is not
     discriminatorily based on sex. An employer may refuse to
     promote an employee who is performing poorly, or may even
     refuse to promote an adequate employee because the
     employer believes that another person could do the job
     better. It is the employer who must be satisfied with
     the    employee's   performance,    and    unsatisfactory
     performance means unsatisfactory as evaluated by the
     employer.    Your concern is not whether the promotion
     decision reflected an objective fact finder's judgment of
     an employee's abilities or whether it was a wise business
     judgment or whether you would have done the same thing
     had you been in the employer's shoes. You are asked only
     to decide whether the employer's refusal to promote
     Plaintiff was because of her sex. Thus, if you should
     find that sex was not a determining factor in the refusal

                                      -19-
        I believe the district court correctly and properly instructed the
jury.


        A true copy.


             Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     to promote Plaintiff, then you must render a verdict for
     Defendant on these issues even though you might feel the
     failure to promote was unreasonable, arbitrary, or
unfair.

Jt. App. at 224-25. The foregoing does not instruct the jury on
the law, but rather amounts to an argumentative essay.      The
district court properly rejected this instruction.

                                    -20-
