USERRA prohibits an employer from retaliating against an employee because the employee has asserted rights or made complaints under that law. [This prohibition applies regardless of whether the employee has ever served in the uniformed services.]
Specifically, USERRA prohibits an employer from retaliating against an employee who [took action to enforce a protection afforded any person under USERRA/testified or otherwise made a statement in, or in connection with, any proceeding under USERRA/assisted, or otherwise participated in, an investigation under USERRA/exercised a right USERRA provides].
[Plaintiff] claims that [Defendant] [describe adverse employment action] because [he/she] [describe protected activity]. [Defendant] denies [Plaintiff]’s claim and asserts that [describe the Defendant’s defense].
To succeed on [his/her] claim, [Plaintiff] must prove all the following facts by a preponderance of the evidence:
Second: [Defendant] took an adverse employment action against [Plaintiff];
Third: [Plaintiff]’s protected activity was a motivating factor that prompted [Defendant] to take the adverse employment action; and
Fourth: [Plaintiff] suffered damages because of the adverse employment action.
For the first element, [Plaintiff] must prove by a preponderance of the evidence that [he/she] engaged, in good faith, in a protected activity. If you find that [Plaintiff] made the complaint to enforce what [he/she] believed in good faith to be [his/her] lawful rights, [he/she] may not be penalized – even if the [describe protected activity] is later found to be invalid or without merit. To establish “good faith,” it is not enough for [Plaintiff] to allege that [his/her] belief was honest and bona fide. The allegations and the record must also establish that the belief was objectively reasonable even though it might have been wrong.
For the second element, [Plaintiff] claims that [Defendant] took an adverse employment action against [him/her] when [Defendant] [describe adverse employment action]. An “adverse employment action” is any type of action that might reasonably deter [Plaintiff] or another employee from engaging in an activity protected by law. Put another way, if [Defendant]’s challenged action would make a reasonable employee less likely to exercise [his/her] rights under USERRA, that action is an adverse employment action.
For the third element, you must decide whether [his/her] protected activity was a motivating factor in [Defendant]’s decision. To prove that [Plaintiff]’s protected activity was a “motivating factor” in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] protected activity was the only reason that [Defendant] [describe adverse employment action]. It is enough if [Plaintiff] proves that [his/her] protected activity influenced [Defendant]’s decision. If [Plaintiff]’s protected activity made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.
[Defendant] claims that [Plaintiff]’s protected activity was not a motivating factor behind [describe adverse employment action]. [Defendant] argues that [he/she/it] [describe adverse employment action] [Plaintiff] for [another reason/other reasons]. An employer may not take an adverse employment action against an employee because of the employee’s 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 find that [his/her/its] decision was not motivated by [Plaintiff]’s protected activity, you must not second guess [Defendant]’s 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 [his/her] protected activity was a motivating factor in [Defendant]’s decision to [describe adverse employment action]. I have explained to you that evidence can be direct or circumstantial. To decide whether [Defendant]’s decision to [describe adverse employment action] was because of [Plaintiff]’s 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.]
For the fourth element, if you find that [Plaintiff] engaged in protected activity and that [Defendant] took an adverse employment action against [him/her] because of that protected activity, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide whether these damages would have occurred if [Defendant] had not [describe adverse employment action].
If you find that [Defendant]’s acts were the proximate cause of damages [Plaintiff] sustained, you must determine the amount of damages.
[Including Affirmative Defense: If you find in [Plaintiff]’s favor for each element [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have taken the same action even if [Defendant] had not taken [Plaintiff]’s protected activity into account. If you find that the [Defendant] would have made the same decision for reasons other than [Plaintiff]’s protected activity, you must make that finding in your verdict.
If you find for [Plaintiff] and against [Defendant] on [his/her/its] defense, you must decide the issue of [Plaintiff]’s compensatory damages.]
[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each element [he/she] must prove, you must decide the issue of [his/her] compensatory 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 the adverse 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.
To the extent you find that [Plaintiff] proved damages by a preponderance of the evidence, you must consider only net lost wages and benefits from the date of the adverse employment action to the date of your verdict.
To determine the amount of [Plaintiff]’s net lost wages and benefits, you should consider evidence of the actual wages [Plaintiff] lost and the monetary value of any benefits lost.
[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.]
[Willful Violation: [Plaintiff] also claims that [Defendant] willfully violated the law. You will only consider this issue if you find for [Plaintiff] and award [him/her] compensatory damages.
If the employer knew that [his/her/its] [describe adverse employment action] violated the law, or acted in reckless disregard of that fact, then [his/her/its] conduct was willful. If [Defendant] did not know, or knew only that the law was potentially applicable and did not act in reckless disregard as to whether [his/her/its] conduct was prohibited by the law, then [Defendant]’s conduct was not willful.]
