Under the FMLA, an eligible employee may take up to 12 weeks of leave during any 12-month period for [a serious health condition/the birth or adoption of a child/the care of a spouse, child, or parent who has a serious health condition/active-duty orders/the care of a covered service member]. This leave is called FMLA leave. It is unlawful for an employer to take action against an employee because the employee exercises [his/her] FMLA rights. The FMLA does not require an employer to pay an employee while on FMLA leave.
To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Plaintiff] was eligible for FMLA leave;
Third: [Plaintiff] was entitled to FMLA leave;
Fourth: [Plaintiff] [describe protected activity];
Fifth: [Defendant] [described challenged employment action];
Sixth: [Describe challenged employment action] was an “adverse employment action;” and
Seventh:[Defendant] took that action because of [Plaintiff]’s [described protected activity].
[The parties have agreed that [Plaintiff] was employed by [Defendant]. You should consider that a proven fact.]
For the second element, [Plaintiff] was “eligible” for FMLA leave if:
(b) [Plaintiff] worked for [Defendant] for at least 1,250 hours during the 12-month period before the date any FMLA leave was to begin.
(b) [Plaintiff] gave [Defendant] proper notice of [his/her] need for leave.
[A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical facility, or continuing treatment by a healthcare provider. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, and other similar conditions do not meet the definition of a “serious health condition” and do not qualify for FMLA leave.]
[Plaintiff] “gave proper notice” to [Defendant] of [his/her] need for FMLA leave if [he/she] notified [Defendant] of the need to take FMLA leave in a timely manner and in a way that alerted [Defendant] that [his/her] absence might qualify as an FMLA leave – even if [Plaintiff] did not expressly mention the FMLA.
If [Plaintiff] knew of the need for leave more than 30 days before the leave was to begin, [he/she] was required to give [Defendant] notice at least 30 days before the leave was to begin. If [Plaintiff] knew of the need for leave less than 30 days before the leave was to begin, [he/she] was required to give [Defendant] notice as soon as was reasonably possible.
For the fourth element, you must decide whether [Plaintiff] [describe protected activity]. If you find that [Plaintiff] [describe protected activity], then you have found that [he/she] engaged in “FMLA-protected activity.”
For the fifth element, you must decide whether [Defendant] [describe challenged employment action].
For the sixth element, you must decide whether [describe challenged employment action] is an “adverse employment action.” An “adverse employment action” is any type of action that would have made a reasonable employee reluctant to exercise FMLA rights. Put another way, if a reasonable employee would be less likely to exercise [his/her] FMLA rights because [he/she] knew that [Defendant] would [describe adverse employment action], then that action is an adverse employment action. If the employment action would not make it less likely for a reasonable employee to exercise FMLA rights, it is not an adverse employment action.
For the seventh element, you must decide whether [Defendant] [describe adverse employment action] because of [Plaintiff]’s FMLAprotected activity. Put another way, you must decide whether [Plaintiff]’s FMLA-protected activity was the main reason for [Defendant]’s decision.
To determine that [Defendant] [describe adverse employment action] because of [Plaintiff]’s FMLA-protected activity, you must decide that [Defendant] would not have [describe adverse employment action] if [Plaintiff] had not engaged in FMLA-protected activity but everything else had been the same.
To determine that [Defendant] [describe adverse employment action] because of [Plaintiff]’s FMLA-protected activity, you must decide that [Defendant] would not have [describe adverse employment action] if [Plaintiff] had not engaged in FMLA-protected activity but everything else had been the same.
[Defendant] claims that [he/she/it] did not [describe adverse employment action] because of [Plaintiff]’s [describe protected activity] and that [he/she/it] took the action for [another reason/other reasons]. An employer may not take an adverse action against an employee because of the employee’s FMLA-protected activity. But an employer may [describe adverse employment action] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision, and you find that [Defendant] did not make [his/her/its] decision because of [Plaintiff]’s FMLA-protected activity, you must not second guess that decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you do not agree with it.
[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [Defendant]’s decision to [describe adverse employment action] was because of [Plaintiff]’s FMLA-protected activity. I have explained to you that evidence can be direct or circumstantial. To decide whether [Defendant]’s [describe adverse employment action] was because of [Plaintiff]’s FMLA-protected activity, you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] that [Defendant] gave for the decision. If you do not believe the reason[s] that [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a cover-up to hide the true retaliatory reasons for the decision.]
If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide the issue of [Plaintiff]’s damages.
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 [describe challenged employment action], 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.
If [Plaintiff] proved that [he/she] lost wages or benefits because of [Defendant]’s FMLA violation, then [Plaintiff] may recover net lost wages and benefits from the date of [describe challenged employment action] to the date of your verdict.
[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 [Plaintiff]’s claim for lost pay, 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.]
