PJC Business 2024

PJC 107.24

E MPLOYMENT

PJC 107.24 Question and Instruction on Affirmative Defense to Harassment Where No Tangible Employment Action Occurred If you answered “Yes” to Question ______ [ 107.20 ], then answer the follow ing question. Otherwise, do not answer the following question. QUESTION ______ Is Don Davis legally excused from responsibility for the conduct of [ name(s) of supervisor(s) ] found in Question ______ [ 107.20 ]? Don Davis is legally excused if— 1. Don Davis exercised reasonable care to prevent and correct promptly any harassment behavior; and 2. Paul Payne unreasonably failed to take advantage of any preven tive or corrective opportunities by his employer or to avoid harm otherwise. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 107.24 should be used if the defendant employer alleges the affirmative defense of reasonable care and there has been no tangible employment action taken by the employer against the employee alleging harassment. Tangible employment action includes discharge, demotion, or undesirable reassignment. Dil lard Department Stores v. Gonzales , 72 S.W.3d 398, 410 (Tex. App.—El Paso 2002, pet. denied); Wal-Mart Stores, Inc. v. Itz , 21 S.W.3d 456, 472–73 (Tex. App.—Austin 2000, pet. denied) (quoting Faragher v. City of Boca Raton , 524 U.S. 775, 808 (1998)). This instruction should not be used for a claim of sexual harassment. Source of question. PJC 107.24 is derived from Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 765 (1998), and Faragher , 524 U.S. at 807–08; see also Padilla v. Flying J, Inc. , 119 S.W.3d 911, 915 (Tex. App.—Dallas 2003, no pet.); Gulf States Toyota, Inc. v. Morgan , 89 S.W.3d 766, 770–71 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Dillard Department Stores , 72 S.W.3d at 410–11. Broad-form submission. PJC 107.24 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of

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